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Vickers v Queensland Building and Construction Commission

Vickers v Queensland Building and Construction Commission

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Case Copied 16 April 2019 47 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Vickers v Queensland Building and Construction Commission & Ors [2019] QCA 66

PARTIES:

MICHAEL ANTHONY VICKERS
(appellant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(first respondent)
BRETT BASSETT AS THE COMMISSIONER OF THE QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(second respondent)
MARK E WILSON
(third respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervener)

FILE NO/S:

Appeal No 10283 of 2018
SC No 3696 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 199 (Crow J)

DELIVERED ON:

16 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGES:

Holmes CJ and Gotterson and Morrison JJA

ORDERS:

1. The appeal is dismissed.

2. The appellant is to pay the respondents’ costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PURPOSIVE APPROACH – GENERAL PRINCIPLES – where the appellant was the director of two construction companies, one in Queensland and one in New South Wales – where the New South Wales company was placed into liquidation and the appellant was sent a Notice of Reasons for a proposed cancellation of his builder’s licence, pursuant to s 56AF and s 56AG of the Queensland Building and Construction Commission Act 1991 (Qld) – where the appellant contends that the company was not a construction company for the purposes of s 56AC(7) of the Queensland Building and Construction Commission Act 1991 (Qld) – where it is submitted that the words of the statute confine the definition of a “construction company” to a company which actually undertakes activities with respect to “buildings” constructed on land within the State of Queensland – where it is contended that ss 9 and 35 of the Acts Interpretation Act 1954 (Qld) operate to confine the carrying out of building work and building work services to activities conducted in Queensland – where it was submitted by the Queensland Building and Construction Commission contended that the purpose of Part 3A of the Queensland Building and Construction Commission Act 1991 (Qld) was the protection of the public – where the purpose of the legislation is stated to be to prevent the failed companies re-emerging as “phoenix” companies following cancellation of a licence – whether the definition of a construction company in New South Wales is covered under the Queensland Building and Construction Commission Act 1991 (Qld)

CONSTITUTIONAL LAW – IMPERIAL, COLONIAL, STATE AND COMMONWEALTH CONSTITUTIONAL RELATIONSHIPS – GENERALLY – SOVEREIGNTY – PLENARY NATURE OF POWERS – where the appellant contends that that s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) is constitutionally invalid – where the learned primary judge concluded that s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) was constitutionally valid – where the appellant contended that the addition of the words “in this or another State” in s 56AC(7) of the Queensland Building and Construction Commission Act 1991 (Qld) was too remote from the “peace, welfare and good government” of Queensland to be…

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: [2019] QCA 66
Decision Date: 16 April 2019

CaseChat Overview and Summary

In Vickers v Queensland Building and Construction Commission, the appellant, who was the director of two construction companies, one in Queensland and one in New South Wales, contested the Queensland Building and Construction Commission's decision to cancel his builder's licence. The appellant argued that the New South Wales company did not qualify as a "construction company" under the Queensland Building and Construction Commission Act 1991 (Qld). He contended that the statutory definition of "construction company" was limited to those companies that undertook activities with respect to buildings constructed in Queensland. The Queensland Building and Construction Commission argued that the purpose of the legislation was to protect the public by preventing failed companies from re-emerging as "phoenix" companies.

The court was required to decide whether the definition of a "construction company" in the Queensland Act applied to a company registered in another state and whether the legislation was constitutionally valid. The appellant claimed that the inclusion of companies from another state was too remote from the "peace, welfare, and good government" of Queensland to be within the power of the state. The Queensland Building and Construction Commission argued that the purpose of the legislation was to protect the public from failed companies re-emerging as "phoenix" companies.

The court rejected the appellant's argument, stating that the purpose of the legislation was to prevent the re-emergence of failed companies as "phoenix" companies, and the inclusion of companies from another state was a necessary part of achieving that purpose. The court held that the legislation was valid and that the definition of "construction company" under the Queensland Act applied to companies registered in other states. As a result, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondents’ costs.

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

This ground fails.Conclusion As all grounds of appeal have failed, I would propose the following orders:1.The appeal is dismissed.2.The appellant is to pay the respondents’ costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vickers v Queensland Building and Construction Commission & Ors [2019] QCA 66
PARTIES:	MICHAEL ANTHONY VICKERS (appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) BRETT BASSETT AS THE COMMISSIONER OF THE QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (second respondent) MARK E WILSON (third respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervener)
FILE NO/S:	Appeal No 10283 of 2018 SC No 3696 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 199 (Crow J)
DELIVERED ON:	16 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2019
JUDGES:	Holmes CJ and Gotterson and Morrison JJA
ORDERS:	1. The appeal is dismissed. 2. The appellant is to pay the respondents’ costs.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PURPOSIVE APPROACH – GENERAL PRINCIPLES – where the appellant was the director of two construction companies, one in Queensland and one in New South Wales – where the New South Wales company was placed into liquidation and the appellant was sent a Notice of Reasons for a proposed cancellation of his builder’s licence, pursuant to s 56AF and s 56AG of the Queensland Building and Construction Commission Act 1991 (Qld) – where the appellant contends that the company was not a construction company for the purposes of s 56AC(7) of the Queensland Building and Construction Commission Act 1991 (Qld) – where it is submitted that the words of the statute confine the definition of a “construction company” to a company which actually undertakes activities with respect to “buildings” constructed on land within the State of Queensland – where it is contended that ss 9 and 35 of the Acts Interpretation Act 1954 (Qld) operate to confine the carrying out of building work and building work services to activities conducted in Queensland – where it was submitted by the Queensland Building and Construction Commission contended that the purpose of Part 3A of the Queensland Building and Construction Commission Act 1991 (Qld) was the protection of the public – where the purpose of the legislation is stated to be to prevent the failed companies re-emerging as “phoenix” companies following cancellation of a licence – whether the definition of a construction company in New South Wales is covered under the Queensland Building and Construction Commission Act 1991 (Qld) CONSTITUTIONAL LAW – IMPERIAL, COLONIAL, STATE AND COMMONWEALTH CONSTITUTIONAL RELATIONSHIPS – GENERALLY – SOVEREIGNTY – PLENARY NATURE OF POWERS – where the appellant contends that that s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) is constitutionally invalid – where the learned primary judge concluded that s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) was constitutionally valid – where the appellant contended that the addition of the words “in this or another State” in s 56AC(7) of the Queensland Building and Construction Commission Act 1991 (Qld) was too remote from the “peace, welfare and good government” of Queensland to be…