Queensland Building and Construction Commission v Buchanan - [2020] QCATA 172

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v Buchanan [2020] QCATA 172

PARTIES: QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant/appellant)

v

CASEY BUCHANAN

(respondent)

APPLICATION NO/S:

APL344-19

ORIGINATING APPLICATION NO/S:

OCR121-17; OCR215-17

MATTER TYPE:

Appeals

DELIVERED ON:

18 December 2020

HEARING DATE:

21 July 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:
In OCR121-17:

1.      Order 2 is set aside.

In OCR215-17:

1.      Order 1 is set aside;

2.      The decision of the Queensland Building and Construction Commission made on 1 September 2017 is confirmed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tribunal considered on review two decisions made by the QBCC – where tribunal set aside the QBCC’s decision to categorise respondent as a permanently excluded individual – where applicant alleges error in failing to apply the amended version of s 56AC of the QBCC Act as it applied at the time of hearing – whether applying the provision as amended would have a retrospective effect – whether provision is procedural and not substantive in effect as to displace the presumption against retrospectivity

Acts Interpretation Act 1954 (Qld), s 20, s 20C

Building Industry Fairness (Security of Payment) Act 2017 (Qld)

Professional Engineers and Other Legislation Amendment Act 2014 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AF, s 58, s 59(a)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 20(2), s 24(1), s 24(2), s 142(1), s 146

Buchanan v Queensland Building and Construction Commission [2019] QCAT 354

D’Arro v Queensland Building and Construction Commission [2016] QCATA 76

D’Arro v Queensland Building and Construction Commission [2018] 1 Qd R 204

Ericson v Queensland Building Services Authority [2013] QCA 391

Esber v Commonwealth (1992) 174 CLR 430

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380

Maxwell v Murphy (1957) 96 CLR 261

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Queensland Building and Construction Commission v Ezra Constructions Pty Ltd [2019] QCA 304

APPEARANCES & REPRESENTATION:

Applicant:

R De Luchi of counsel instructed by Robinson Locke

Respondent:

No appearance

REASONS FOR DECISION

What is this appeal about?

Mr Buchanan was an officeholder of two companies, QUBE Projects Pty Limited (QP) and QUBE North Pty Limited (QN). Mr Buchanan ceased to be an office holder of QP on 13 January 2016. Mr Buchanan ceased to be an office holder of QN on 13 December 2016.
On 3 April 2017 a liquidator was appointed to QN (the first relevant event). On 24 May 2017 a liquidator was appointed to QP (the second relevant event).
Accordingly, Mr Buchanan:
(a)ceased to be an office holder of QN approximately 4 months before the first relevant event;
(b)ceased to be an office holder of QP approximately 16 months before the second relevant event.
This appeal is about the time that elapsed between Mr Buchanan ceasing to be an office…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 172
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the matter of Queensland Building and Construction Commission v Buchanan, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing decisions made by the Queensland Building and Construction Commission (QBCC). The primary dispute centred around the QBCC's classification of Mr Buchanan as a permanently excluded individual, a status that arose from two separate events. The QBCC appealed QCAT's decision to set aside its classification of Mr Buchanan as permanently excluded, arguing that QCAT erred in law by failing to apply the amended version of s 56AC of the QBCC Act as it stood at the time of the hearing. The crux of the legal issues revolved around whether applying the amended provision would have a retrospective effect and if the provision was procedural rather than substantive, thereby negating the presumption against retrospectivity.

The court examined the interplay between the Acts Interpretation Act 1954 (Qld) and the presumption against retrospective legislation. It found that the application of s 24(2)(b) of the QCAT Act meant that QCAT’s decision in the review applications would be effective from when the reviewable decision took effect. The learned member highlighted that applying the law as it was at the time of the tribunal’s decision, rather than the law as it was at the time of the QBCC’s decisions, would mean confirming a decision made under the previous law based on a new law, which is impermissible. The court further found that s 20(2) and s 20(3) of the Acts Interpretation Act conveyed the legislature’s intent that an amendment should not impose any additional burden not imposed by the earlier Act. The court also referred to the distinction between amended laws dealing with substance versus those dealing with procedure, noting that while substantive laws can only be prospective, procedural laws may have retrospective effect.

The court concluded that QCAT did not erroneously apply the amended version of s 56AC in a retrospective manner. The QBCC's argument that the tribunal’s decision would impose an additional burden not intended by the earlier Act was rejected. The court held that the relevant liability had already been imposed by Mr Buchanan's classification as an excluded individual, and therefore, applying the amended law would not have a retrospective effect. The appeal was dismissed, and the QBCC’s decision to classify Mr Buchanan as a permanently excluded individual was confirmed.

ORDERS:
1. Order 2 in OCR121-17 is set aside.
2. Order 1 in OCR215-17 is set aside.
3. The decision of the Queensland Building and Construction Commission made on 1 September 2017 is confirmed.

Orders

Orders of the court

In OCR121-17:

1. Order 2 is set aside.

In OCR215-17:

1. Order 1 is set aside;

2. The decision of the Queensland Building and Construction Commission made on 1 September 2017 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As has been observed, the consequence for Mr Buchanan of being classified as an excluded individual in respect of both the first relevant event and the second relevant event was that he was classified as a permanently excluded individual. The decision below The learned member considered whether the amendment to s 56AC(2)(c)(ii) had a retrospective effect in affecting a right, privilege or liability acquired, accrued or incurred by, or to, Mr Buchanan under the Act prior to the amendment. The learned member found that, by application of s 24(2)(b) of the QCAT Act, the tribunal’s decision in the review applications would be effective from when the reviewable decision took effect, subject to any contrary order. The learned member found that this provision:… speaks to the conclusion that the law to be applied to the Tribunal’s decision is the law that applied as at the date of the original decision.[12][12]Reasons, [35]. The learned member found that applying the law as it was when the tribunal made its decision, rather than the law as it was at the time of the first and second decisions, would result in the tribunal:(a) Confirming a decision of the QBCC that was made under the previous law; (b) Based on a new law, not the law applying at the time of the original decision; and (c) Ordering that the decision apply from the date of the original decision (subject to the tribunal making a contrary order).[13][13]Ibid, [36]. The learned member then proceeded to consider the application of the provisions of the Acts Interpretation Act 1954 (Qld) and in particular s 20(2) and s 20(3). The learned member found that:… these provisions convey the intent of the legislature that an amendment of an Act should not permit the imposition of any additional burden upon a person that was not imposed by the earlier Act.[14][14]Ibid, [40]. The learned member found support for this interpretation in s 20C of the AI Act. Section 20C(2) provides that if an Act makes an act or omission an offence, the act or omission is only an offence if committed after the Act commences. The learned member referred to the difference between amended laws dealing with substance and those dealing with procedure, the former of which can only be prospective and the latter of which may have retrospective effect.[15] [15]Reasons, [43]. The learned member considered the decision of the Court of Appeal in D’Arro v Queensland Building and Construction Commission[16] and stated:A proper understanding of D’Arro v Queensland Building and Construction Commission accords with this interpretation. In that case the issue before the Court concerned whether ss 56AC(3) and (4) of the QBCC Act were being given retrospective operation. The leading judgment was that of Fraser JA, the other judges agreeing. In a key comment His Honour said, ‘[this] sentence describes the distinction I regard as applicable in this case’ when quoting a passage from Windeyer J in Ogden Industries Pty Ltd v Lucas: … I do not think it is the sense in which it is said that an amending Act does not disturb existing liabilities arising out of past transactions. That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability. In other words, if a liability has matured, an amending Act cannot affect the liability; but if a liability is inchoate, accrued, incomplete or yet to be realised, an amending Act may have an effect upon the later reconsideration of a decision.It is not a difficult extrapolation to refer not only to liabilities in this context, but to offences, privileges, rights and penalties. [17] (footnotes omitted)[16]Ibid, [45]-[47].[17]Ibid.

Ratio Decidendi

Legal Principle Established

In respect of the first ground of appeal the QBCC says that the learned member erroneously concluded that applying the amended version of s 56AC would be to give the section retrospective effect. Specifically, the QBCC says that the learned member erred in reasoning:(a)The decision of the tribunal would operate from the date of the original decision by the QBCC;(b)A decision confirming the QBCC’s decision would effectively be confirming, based on a new law, a decision made under the previous law;(c)The tribunal, in carrying out its task, must have reference to past events;(d)Section 20 and s 20C of the AI Act were supportive of the tribunal’s interpretation by conveying the intent of the legislature that an amendment should not permit the imposition of an additional burden that was not imposed by the earlier Act;(e)The relevant liability or ‘penalty’ had already been imposed by Mr Buchanan’s excluded individual classification. Consideration The task before the learned member in conducting the review proceeding was to make the correct and preferable decision, stepping into the shoes of the original decision maker. It is trite to observe that difficulties may arise in review proceedings when the statutory provision applicable at the time that the tribunal decides the review proceeding is different to the statutory provision applicable at the time of the decision under review. There is a presumption that legislation is not intended to have retrospective effect. In McNab Constructions Australia Pty Ltd v Queensland Building Services Authority Chesterman JA stated:[20]… the power of an appellate court, or a tribunal, on a rehearing to determine the appeal “by reference to the law as it then exists” is not a power to apply statutes retrospectively unless the terms of the statute require such an application, or the statute is procedural in nature. The presumption against the retrospective application of legislation is not displaced by the circumstance that an appeal by way of rehearing occurs after a change to legislation relevant to the appeal.[20][2010] QCA 380, [91]. The presumption against retrospectivity may be rebutted by the clear words of the statute. As Chesterman JA referred to in McNab, it may also be the case that the subject matter of the statutory provision is procedural as opposed to substantive in effect, in which case there is no presumption against the retrospective effect of the statute. Whether a provision is substantive or procedural in effect is not always clear. A provision that confers or imposes or otherwise affects rights or liabilities will, however, be substantive in nature. In Maxwell v Murphy,[21] Dixon CJ stated:The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[21](1957) 96 CLR 261, 267.