Robuild Pty Ltd v Queensland Building Services Authority
[2013] QCAT 197
•3 May 2013
| CITATION: | Robuild Pty Ltd v Queensland Building Services Authority [2013] QCAT 197 |
| PARTIES: | Robuild Pty Ltd (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR379-12 |
| MATTER TYPE: | General Administrative Review Matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 3 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Respondent’s application to dismiss the review application refused. |
| CATCHWORDS: | Jurisdiction of the Tribunal - QBSA Act as a remedial statute - service of infringement notice – service by post – service in accordance with s109A QBSA Act – service in accordance with s39 Acts Interpretation Act - principal office Queensland Civil and Administrative Tribunal Act 2009, s32 Forza Finance Pty Ltd v Vergepoint Sales & Management Pty Ltd [2010] QSC 46 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Robuild Pty Ltd holds an unconditional QBSA builder’s licence. The company did residential building work for a homeowner quite a few years ago and the homeowner made recent complaint about some of the work. The Queensland Building Services Authority investigated and directed Robuild perform some rectification work.
Mr Stainton, Robuild's nominee, requested an extension of time to complete the work and that was granted with the work to be done by 10 October 2012. Despite the extension, it wasn’t.
The Authority issued an infringement notice on 15 October 2012. The notice was addressed to Robuild at Unit 4a, 5 – 9 Turnbull Street, Garbutt, QLD 4814.
On 25 October 2012 Robuild filed an application for a domestic building dispute in QCAT’s Townsville registry. The application should have been one for review of the Authority's decision to direct Robuild to rectify work. Robuild then filed a review application in the Brisbane registry on 12 November 2012.
The Authority has now applied to dismiss Robuild’s the review application. It says QCAT does not have jurisdiction to hear the matter. That application by the Authority is now before me for decision.
The QBSA Act
Section 86(2)(b) of the Queensland Building Services Authority Act 1991 provides that the Tribunal must not review a decision of the Authority to direct rectification of tribunal work (building work) if 28 days have elapsed from the date the direction to rectify was served on the building contractor, the contractor has not within that time applied to the Tribunal for a review of the decision and the Authority has taken one of various steps specified, including as in this case the serving of an infringement notice.
The Authority asserts those circumstances apply here and the Tribunal has no jurisdiction.
Service
Robuild argues it has never been served with the infringement notice.
Mr Stainton has filed an affidavit. He deposes he has never received the infringement notice. He has made enquiries amongst his staff and searched Robuild's business premises and has not located it.
Mr Stainton’s primary submission seems to be that the material filed by the Authority in support of its application is not sufficient to be able to satisfy the Tribunal about service of the infringement notice and therefore s 86(2)(b) does not come into play.
The QBSA Act makes special provision for service of documents on a licensee by the Authority. By s 109A(1) a document may be served on a licensee by leaving it at, or sending it by post (or by various other permitted means) to “the address of the licensee in the register of licensees kept by the authority”.
Section 99(1) of the Act provides the Authority must keep a register of licensees and by s 99(2)(a) the register must, amongst other things, include particulars in relation to the licensee’s business address. No other address particulars are mentioned. There is no statutory requirement to record a postal address or the registered office details of a corporate licensee.
Accordingly service in accordance with s 109A(1) should be understood to permit service by post on the licensee at the licensee’s business address as listed in the Authority's register. As at the date of alleged service of the infringement notice, the Authority's register showed Robuild's business address as “5-9 Turnbull Street, Garbutt, Qld, 4814”.
According to the Authority, Robuild provided a change in particulars of its business and registered office addresses on 17 September 2012.
There is no mention of “Unit 4a” in the business address of Robuild listed in the register. The words “Unit 4a” seem to be a prefix gratuitously added by the Authority at the time of addressing the infringement notice.
Mrs Stainton, a former director of Robuild, states in an affidavit that she works at the Robuild’s business premises which she identifies as being at Unit 4a, 5 – 9 Turnbull Street, Garbutt, Townsville. Mr Stainton also says the same thing in his affidavit, namely that the business premises of Robuild is at Unit 4a, 5 – 9 Turnbull Street, Garbutt, Townsville.
Mrs Stainton also deposes that mail addressed to Robuild’s street address is usually to be found in the complex’s mailbox number 7 and that there is no specific mailbox for 4a. It is not clear when Mrs Stainton refers to the “street address” whether she is referring to mail addressed to Robuild at “Unit 4a, 5-9 Turnbull Street …” or the abbreviated “5-9 Turnbull Street …” description. Mr Stainton however refers to Unit 4a, 5-9 Turnbull Street, Garbutt, Qld, 4814 as the company’s “street address” in his affidavit.
To complete the confusion I note the letterhead paper of Robuild Pty Ltd trading as Stainton Master Builders gives a street address of 7 Turnbull Street, Garbutt, Townsville, Qld, 4814’
There is apparently a mailbox number 4 at the complex at Turnbull Street, but it is for the use of another business trading there.
Mr and Mrs Stainton both depose that nobody at Robuild received the infringement notice nor have they been able to discover its whereabouts by enquiries made. That of course does not mean that good service has not been effected. If service by way of prescribed mode is proven, the service cannot be challenged simply on the basis the documents were not received.[1]
[1]Forza Finance Pty Ltd v Vergepoint Sales & Management Pty Ltd [2010] QSC 46 at [15 – 16]; Grant Thornton (Qld) Pty Ltd v Green Global Technologies Pty Ltd [2009] QSC 262 at 5-6; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
In order to establish good service by post, it has been said[2] that at a minimum the document concerned must bear the correct name and address. That is only sensible.
[2]Grant Thornton (Qld) Pty Ltd v Green Global Technologies Pty Ltd [2009] QSC 262 at [8-10] per Daubney J citing with approval Barrett J in Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 and the authorities referred to there.
Section s 109A(1) does not say service may be effected by the Authority posting documents to a licensee company at its business address. It states service may be effected by the Authority by service at the address of the licensee in the register of licensees kept by the Authority. The address kept by the Authority is required to be the business address of the licensee. If it is incorrectly recorded it will not necessarily be the case that service by post to that incorrect but recorded address is not effective pursuant to s 109A(1).
In the matter before me I conclude the Authority cannot rely on service of the infringement notice pursuant to s 109A(1) because by adding the prefix “Unit 4a” it was incorrectly addressed in breach of the mandated circumstances prescribed by that provision that it bear the recorded address details of the register.
Such conclusion should not be considered an outcome based on a “mere” technicality. The provisions of s 86 of the QBSA Act allowing review of the decisions of the Authority are remedial in nature providing to aggrieved parties affected by a decision an avenue of review. The fullest possible relief should be allowed such affected party in the application of the provision or, to the contrary where such review jurisdiction is ousted. Limits to such remedial rights, such as prescribed by s 86(2)(b) should be strictly interpreted.[3]
[3]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [29] per Mason CJ; and see Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 – “In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.[7]). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.”; and see Australian Postal Corporation v Forgie [2003] FCAFC 223 “… The beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review.”
Acts Interpretation Act 1954
By s 109A(2) service pursuant to s 39 of the Acts Interpretation Act 1954 is also available. That permits service of documents by post on a body corporate by leaving it at or sending it by post to the head office, a registered office or a principal office of the body corporate.
Has there been effective service of the infringement notice pursuant to this provision?
Registered Office
I required the Authority file in the Tribunal a copy of an ASIC company search of Robuild. The Authority has details of a registered address for Robuild in its register. It is the same as the business address. According to the ASIC search however the registered office details of Robuild was at all material times Rod Parker, Unit 2, 35 Fleming Street, Aitkenvale, Qld, 4814. The Authority did not serve the infringement notice at the registered office.
Head or Principal Office
There is no reference to a head or principal office in the ASIC company search. There is reference to a principal place of business, but that does not assist the Authority because the address given is 7 Turnbull Street, Garbutt, Qld, 4814.
The expression "principal office" is not defined in the Acts Interpretation Act. Mention is made of the term in disparate pieces of legislation but no clear distinction is made explaining the difference to the expression principal place of business. The former is the expression used in both the Queensland and Commonwealth Acts Interpretation Acts. Neither of those statutes use the expression principal place of business.
There appears to be a difference however, though it is not clear just what the difference is. For example s 4 of the Australian Crime Commission (Queensland) Regulation 2004 provides that a summons to appear before an examiner may be served on a body corporate by sending a copy by registered post or certified mail to the "head office, a registered office, a principal office or a principal place of business of the body corporate."
In Palmer v Caledonian Railway Co[4] Lord Esher explained the term as follows: “I should have thought without any authority that the principal office of the company must be the place at which the business of the company is controlled and managed….”
[4] [1892] 1 QB 823.
In Polstar Pty Ltd v Agnew,[5] Barrett J considered the matter of service at a principal office in the context of service pursuant to s 28A of the Commonwealth Acts Interpretation Act. He said:
17 The Corporations Act provision contemplates posting to “the company’s registered office”. The Acts Interpretation Act provision also refers to “a registered office”, as well as “the head office” and “a principal office”. The common theme is “office”. Provisions of the Corporations Act imposing requirements with respect to a company’s “registered office” elucidate the meaning of “office” in the expression “registered office”. Those provisions make it clear that such an office may only be at a location capable of being “open to the public”: see s.145(1). It must also be a location at which it is possible to display prominently the company’s name (s.144(1)) and the words “Registered Office” (s.144(2)). Furthermore, it is contemplated that there will be “premises at the address of” the registered office (see s.143(1)) and that “premises” will be used “as the address of the company’s registered office” (s.143(2)(a)).
18 In short, the Corporations Act’s concept of “office”, in the references to “registered office”, is one centred on a physical location in the nature of premises (that is, a building or a room in or section of a building) to which persons may go and which can be identified by prominent display as a company’s registered office. I am of the opinion that the Acts Interpretation Act reflects a similar concept of “office” in its references to “registered office”, “head office” and “principal office”.[5] [2007] NSWSC 114.
That view was supported by Ward J in Anton Fabrications (NSW) Pty Ltd - Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd.[6]
[6] [2011] NSWSC 186.
I have no information as to whether or not Unit 4a, 5 – 9 Turnbull Street, Garbutt, QLD 4814 is a place identified by prominent display as the principal office of Robuild, nor whether it is open to the public. It is described by Mrs Stainton simply as Robuild’s “business premises” without saying more. Mr Stainton also very generally describes those premises as "business premises" without elaboration.
I have similarly no information about the head office of Robuild.
I must therefore conclude that the Authority is also unable to rely on service pursuant to s39 of the Acts Interpretation Act when it posted the infringement notice to Unit 4a, 5 – 9 Turnbull Street, Garbutt, QLD 4814.
Accordingly I find there has not been effective service of an infringement notice pursuant to s 86(2)(b)(ii) of the QBSA Act and the review jurisdiction of the Tribunal has not been ousted pursuant to that provision.
As such the Authority’s application must fail.
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