Fraser Property Developments P/L v Sommerfeld

[2] The appeal arises out of proceedings in the Supreme Court in which the plaintiff Fraser Property Developments Pty Ltd claims to have made a contract with the first defendant Sommerfeld, who is a builder, for a house to be built on the plaintiff's land. Sommerfeld in turn engaged the second defendant Bale to prepare engineering designs for the footings and slab of the building, and Sommerfeld constructed it in accordance with those designs. The designs, or so it is alleged, did not comply with the applicable Australian standard. In fact, Bale turns out not to have been registered in Queensland as a professional engineer. It has so far not proved possible to locate or serve him with process in the proceedings brought by the plaintiff.

[3] In the meantime, after succeeding in this matter at first instance, the first defendant Sommerfeld has become bankrupt. His trustee took no part in the appeal. This leaves only the third defendant, which is the Burnett Shire Council. Its function as the local authority responsible under the Integrated Planning Act 1997 for supervising building work in the area involved the assessment and certification of the design plans for compliance with the Standard Building Regulation 1993, which incorporates the standards in the Building Code of Australia. This it is alleged to have done without checking to see that they complied with the Australian standard or that Bale was registered as a professional engineer, and without warning the plaintiff of those matters. In consequence, the plaintiff claims against it a large amount of damages for negligence.

[4] Sommerfeld applied to the Supreme Court to have the proceedings transferred to the tribunal, which was done by ordering the plaintiff to discontinue its proceedings in the Court and re-institute its claim before the tribunal. At that stage the plaintiff Fraser Property Developments opposed the order to that effect. Here, however, it has taken no part in this appeal, leaving it to the Council alone to pursue an appeal against the order made below. Mr Morrison QC, with him Mr Ashton of counsel, were therefore left without an opponent in this Court, but presented submissions as to why the order below should be set aside.

[5] Authority to make the order appealed against is conferred by s 40(1) of the Commercial and Consumer Tribunal Act 2003 if a proceeding is started in a court "and the proceeding could be heard by the tribunal" under that Act. The question therefore is whether it could be so heard. By s 8(1), the tribunal is invested with jurisdiction to deal with matters by any "empowering Act", which is defined in the statutory dictionary in schedule 2 to include the QBSA Act. It therefore becomes necessary to turn to the QBSA Act to ascertain the ambit of the jurisdiction invested by that Act. It is contained in Part 7 of the Act - JURISDICTION OF TRIBUNAL, where it is defined by implication rather than expressly. Subsection (1) of s 77 under the heading Tribunal may decide building dispute provides:

"(1) A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute."

Section 77(2) proceeds to prescribe the tribunal's powers to resolve the dispute, which include ordering payment, awarding damages, ordering restitution, and other relief.

[6] In his reasons, the primary judge held that s 77(1) was "unambiguous", saying that it conferred on the tribunal "express jurisdiction to hear building disputes as defined in schedule 2" to the QBSA Act and that the claim by the plaintiff against the third defendant Council was such a dispute. His Honour held that, read in conjunction with that definition, s 77(1) was, as I would describe it, in effect a self-contained or "free-standing" statement of the ambit of the tribunal's jurisdiction.

[7] Unfortunately, nothing in the provisions of the QBSA Act is as simple as this may appear to suggest. The expression "building dispute" is defined in schedule 2 of the QBSA Act to mean: (a) a domestic building dispute; or (b) a minor commercial building dispute; or (c) a major commercial building dispute if the parties consent to its being heard by the tribunal. It may be accepted that the applicable category of "building dispute" in the present case is a domestic building dispute within para (a) of the definition in schedule 2. The expression "domestic building dispute" is then itself defined in the dictionary in schedule 2 of the QBSA Act to mean various kinds of claims or disputes between specified persons as, for example, in para (a), a building owner and a building contractor; in para (b), between two or more building contractors, and so on. Paragraph (d) of the definition declares it to mean a claim or dispute arising between a building owner or a building contractor and any one or more other specified persons including, for example, an architect, an engineer, and a supplier of materials. The dispute between the first defendant Sommerfeld as builder and the second defendant engineer (if that is what Bale is) therefore seems clearly enough to be comprehended by para (d). But there is nothing in that or the other paragraphs of the definition to suggest that a local government entity like the third defendant Council is within the ambit of para (d) or any of the other paragraphs of the definition of domestic building dispute.

[8] At first sight, this might seem to be qualified in para (c) of the definition of "domestic building dispute" in schedule 2 of the QBSA Act. It comprehends (c) "a claim or dispute in negligence ... related to the performance of reviewable domestic work other than a claim for personal injuries". The plaintiff's claim against the Council is, as has been said, formulated in negligence. But in order to fall within that provision, para (c) in terms also requires that it be "related to the performance of reviewable domestic work". The expression "reviewable domestic work" is defined in the schedule 2 dictionary, to mean:

"domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition 'excluded building work' in that Act is taken not to mean anything mentioned in paragraph (b), (c), or (d) of the definition."

[9] The consequence is to divert attention to yet another Act, the Domestic Building Contracts Act 2000, which may shortly be referred to here as the DBC Act. Section 8 of that Act contains a meaning of "domestic building work". It is at present enough to say that it embodies a series of meanings which, shortly stated, refer to the erection, construction, renovation, alteration, improvement, repair, etc of a home or dwelling. It appears clearly enough to include the construction of the residence on the plaintiff's land; but that is to reckon without s 8(8) of the DBC Act. It provides:

"(8) However, 'domestic building work' does not include excluded building work."

This sets the hare running again because the expression "excluded building work" is defined in the scheduled dictionary to the DBC Act. There it means a number of things including in para (a) work relating to buildings for farm, business and animal accommodation, and also in paras (b), (c) and (d) various forms of described work or activity, including in para (b) design work carried out by an engineer; in para (c) the preparation of plans for the carrying out of domestic building work; and in para (d) work involved in obtaining foundations data about a building site. The impact of the definition of "reviewable domestic work" in schedule 2 of the QBSA Act falls to be determined with this provision in mind. It is that, in applying in the QBSA Act the meaning of domestic building work in the DBC Act, the definition of "excluded building work" in that Act "is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition".

[10] Taking "excluded building work" as not meaning anything mentioned in para (b), (c) or (d), of the definition has the apparent effect of re-instating the contents of those paragraphs as part of the meaning of domestic building work. In the end this amended definition of excluded building work does not seem to matter here. Its consequence is, in those respects in paras (b), (c) and (d), to enlarge "domestic building work" in the QBSA Act beyond its meaning in the DBC Act. However, because it has an enlarging rather than a restrictive impact on the meaning of "domestic building work" as defined in the scheduled dictionary meaning, it does not affect the question to be decided on this appeal. It may in the end safely be ignored. It has the effect of adding to, rather than taking away from, the meaning of domestic building work and consequently of expanding the meaning of "domestic building dispute" in schedule 2 of the QBSA Act.

[11] This leaves untouched as part of the subject-matter of the tribunal's jurisdiction under Part 7 a "domestic building dispute" as defined in para (c) to mean "a claim or dispute in negligence ... related to the performance of reviewable domestic work other than a claim for personal injuries". The words "related to the performance of reviewable domestic work" plainly have a limiting or qualifying effect. Otherwise it would mean that the tribunal is invested with jurisdiction over all claims in negligence for property damage or economic loss of any kind, which cannot have been the legislative intention. Beyond, however, giving it the expanded meaning already set out, "reviewable domestic work" is not defined in schedule 2 of the QBSA Act.

[12] There is, it may be noticed, a category of "reviewable decisions" in s 86(1) of the QBSA Act. It contains a series of disparate decisions of the authority (meaning the Queensland Building Services Authority) which the tribunal may "review". The list includes matters such as the authority's decision to refuse or to suspend a building licence under the Act, as well as an array of other matters having no direct reference to the matter of domestic building work or the disputes at present under consideration. Paragraphs (e) and (f) of s 86(1) are concerned with decisions of the authority directing rectification or completion of "tribunal work", or that "tribunal work" undertaken at the direction of the authority is or is not of a satisfactory standard. It is possible that these are matters comprehended by the expression "reviewable domestic work" in para (c) of the meaning of "domestic building dispute" in schedule 2 of the QBSA Act; that is to say, it is "domestic building work" about which the authority has made a decision that is reviewable by the tribunal, and in that sense "tribunal work" within s 86(1)(e) and (f) of the QBSA Act. But there is nothing in the Act to confine it to that subject matter.

[13] In the series of definitions and dictionary meanings incorporated in these Acts, the function of the expression "tribunal work" is not fully expounded as distinct from defining what is and is not tribunal work. It appears to mean "work" that the tribunal may do in the sense of hearing or having jurisdiction over it, or, what is probably much the same thing, work done or to be done by others over which the tribunal has jurisdiction. The meaning of "tribunal work" is, however, central to the issue in this appeal. That is because in ascribing content to the JURISDICTION OF TRIBUNAL, s 75 defines what is Tribunal work and s 76 defines What is not tribunal work.

[14] Section 75(1) defines "tribunal work" by reference to a list consisting of paras (a) to (h) in that subsection. None of the specifications contained in those paragraphs, which are concerned with forms of or adjuncts to building work, is apt to describe the Council's function in considering and approving design plans for the subject residence in this case. Section 75(2) declares that, to remove doubt, reviewable domestic work is tribunal work. This may include authority decisions made reviewable by the tribunal such as those mentioned in s 86(1)(e) and (f) of the Act, but they have no relevance to the present problem. What is more important for present purposes is the definition or statement in s 76(1) of what is stated to be not tribunal work. It contains an extensive list of matters, such as construction, maintenance or repair of public services or utilities like water reticulation and sewerage systems, storm water drains, bridges, railways, ports and so on, as well as other items, such as mining construction work, monumental masonry and other matters of no apparent relevance in the present instance.

[15] What is critical for present purposes is para (m) of s 76(1) in the collocation of things that are not tribunal work. It comprises:

"(m) tribunal work carried out by a local government for a local government, the State or an entity representing a local government or the State".

The effect is that the subject matter of para (m) is not tribunal work and, in consequence, that it is not within the jurisdiction of the tribunal specified in Part 7. It can in my view scarcely be doubted that in considering and approving the design plans for the plaintiff's residential building in the present case, the Council as the local government was carrying it out "for a local government" within the meaning of s 76(1)(m). It is conceivable that this expression means to refer to some local government entity or authority other than the one performing the work; but that is not what s 76(1)(m) says, and it may be compared to s 76(1)(l) which immediately precedes it. It excludes tribunal work "carried out by the State for the State". Since there is only one State, it must refer to the State of Queensland and so to tribunal work done by the State for itself. By comparable reasoning s 76(1)(m) must be intended to include tribunal work done by a local government (in this case the Burnett Shire Council) for itself. Contrast s 76(3), which provides that tribunal work carried out for a local government by an independent contractor is not carried out by a local government.

[16] It follows that even if the Council's action in considering and approving the design plans for the plaintiff's residence is "tribunal work" within the general terms of s 75(1), it is taken out of the ambit of that expression by the specific and express terms of s 76(1)(m) as not being "tribunal work". In the end, it is the decisive provision in favour of the Council in this case.

[17] It should be said that, in making the order that he did, his Honour accepted that the Council approves plans for its own purpose of regulating building standards within its boundaries; and that if the jurisdiction of the tribunal was "tribunal work" as prescribed in s 75(1) but limited by s 76, the tribunal would not have jurisdiction to determine the claim against the Council. However, his Honour went on to hold that the tribunal was not restricted to hearing tribunal matters set out in s 75(1), with the consequence, he said, that "one does not need to have recourse to the exclusions set out in s 76". Because he thought s 77(1) of the QBSA Act was "unambiguous", there was, he concluded, no need to refer back to the definition of "tribunal work" in ss 75 or 76.

[18] His Honour supported this conclusion by reference to s 8(3)(a) of the DBC Act, which expresses "domestic building work" to include work ("associated work") associated with the erection, construction, removal or resiting of a detached dwelling. The failure of the legislature in this instance to exclude from the definition of "tribunal work" work done by a local government for its own purposes must, his Honour considered, be deliberate. From there, he went on to decide that the process of approving the plans by the Council, "being a necessary transitional step between the design and the preparation of plans phase and the construction phase", must also be associated work; and that a dispute about it was therefore a "building dispute" over which the tribunal was invested with jurisdiction by s 77(1).

[19] I have slightly truncated my summary of his Honour's reasoning at this point; but only because, for present purposes, it is sufficient to adopt, without closer consideration, the proposition that the Council's work of approving the plans was "associated work" within the meaning of s 8(3)(a) of the DBC Act. However, in my view, it is not the final word on the matter. This is because "associated work" is simply part or an extension of "domestic building work" which, in schedule 2 of the QBSA Act, is defined by reference to the DBC Act. The concept of "domestic building work" under the DBC Act, is under schedule 2 of the QBSA Act, "reviewable domestic work" as that expression is defined under the QBSA Act. Section 75(2) expressly provides that, to remove doubt, reviewable domestic work is declared to be tribunal work. Hence, whatever "associated work" may comprehend, it is "tribunal work" for the purpose of ss 75 and 76 of the QBSA Act.

[20] It follows that, even if the work done by the Council of considering and preparing the plans was or is "associated work", it remains "tribunal work" and so is specifically excluded by s 76(1)(m) of the QBSA Act in its character as "tribunal work carried out by a local government for a local government". The specific exclusionary provision ("not tribunal work") in s 76(1) must necessarily prevail over the more general definition of tribunal work in s 75. Otherwise there would be no purpose in saying what is not tribunal work.

[21] I may add that Mr Morrison QC also made a submission based on the dictionary meaning or definition of "building work" in schedule 2 of the QBSA Act. The list of matters comprised within it concludes with the statement that building work "does not include work of a kind excluded by regulation from the ambit of this definition". Section 5(1)(i) of the Queensland Building Services Authority Regulation 2003 expressly excludes "work performed by a local government" from the definition of building work under that Act. However, I do not consider that this assists the appellant. The expression used in s 77(1), on which his Honour relied to hold that that section invested jurisdiction in the tribunal in this instance, is "building dispute". It is not "building work", which is a term that is used in ss 43, 46, 47, and perhaps elsewhere, in dealing with the statutory requirement that building work be carried out by persons who are licensed under the QBSA Act.

[22] For the reasons given, however, I remain persuaded that his Honour was not correct in holding that s 77(1) confers on the tribunal a jurisdiction that is independent of the meanings ascribed to "tribunal work" in ss 75 and 76 of the QBSA Act. Those meanings are said to be "central terms" in the heading to Division 1 of Part 7 JURISDICTION OF TRIBUNAL. Section 77(1) says no more than that a person involved in a building dispute may apply to the tribunal to decide the dispute. Each of the items listed in the definition of "domestic building dispute" in schedule 2 of QBSA Act imports the qualification "relating to" or "related to" the performance of "reviewable domestic work", which is then defined to mean domestic building work under the DBC Act.

[23] In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:

"nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged."

See Peacock v Bell [1845] EngR 175; (1667) 1 Wms Saund 69, 74; [1845] EngR 175; 85 ER 81, 87-88, applied in Mayor of London v Cox (1867) LR 2 HL 239, 259-260; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 585; and DMW v CGW [1982] HCA 73; (1982) 151 CLR 491, 509. The Supreme Court is the superior court of general jurisdiction for this State, and, if its authority to hear and determine the plaintiff's claim against the third defendant is to be taken away and bestowed on another body or tribunal, it must be accomplished by statutory provisions that are very much clearer in their meaning and effect than those contained in either s 75(1) or 77(1) of the Queensland Building Services Authority Act 1991. The presumption against depriving this Court of jurisdiction is one that applies with peculiar force in the present case.

[24] I would allow the appeal and set aside the order made on 22 October 2004. The costs of the appeal should be reserved. The appellant may within ten days of delivery of this judgment provide written submissions as to incidence of costs, if sought, especially with reference to the fact that the first defendant is now said to be bankrupt.

[25] WILLIAMS JA: The background against which this appeal has to be determined is fully outlined in the reasons for judgment of McPherson JA.

[26] Statutes creating specialist tribunals usually define their jurisdiction with some particularity if only because they only have such jurisdiction as is expressly conferred on them. The Commercial and Consumer Tribunal Act 2003 (Qld) establishes the Commercial and Consumer Tribunal ("the Tribunal") (s 6). Jurisdiction is then conferred on that Tribunal by s 8 in the following vague terms:

"The tribunal has jurisdiction to deal with the matters it is empowered to deal with under this Act or an empowering Act."

That statute then deals extensively with the powers, practice and procedure of the Tribunal, but does not define or specify any subject matter as being within its jurisdiction. In order to discover the subject matter of the Tribunal's jurisdiction one has to go to the "empowering" Acts.

[27] That then takes one through the maze of statutory provisions set out in the reasons for judgment of McPherson JA.

[28] Section 77 of the Queensland Building Services Authority Act 1991 (Qld) ("the QBSA Act") provides that a "person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute." One would have thought that it would have been easy for the legislature to have defined what was a "building dispute" for purposes of that provision conferring jurisdiction on the Tribunal. But, as the reasons of McPherson JA indicate, it is an almost impossible task to arrive at a clear definition of what is a "building dispute" for purposes of that provision; in order to arrive at an answer one has also to go to another statute, the Domestic Building Contracts Act 2000 ("the DBC Act").

[29] What complicates the matter even further is that s 75 of the QBSA Act defines "tribunal work" which is asserted to be one of the "central terms" of the legislation; then s 76 defines what is not "tribunal work". What is puzzling is that the statute does not expressly say that the Tribunal has jurisdiction with respect to "tribunal work". But given the fact that s 75 and s 76 are found in Pt 7 which is headed "Jurisdiction of Tribunal", the only conclusion reasonably open is that those two sections play a significant part in determining the jurisdiction of the Tribunal. Relevantly, s 75(2) declares "that reviewable domestic work is tribunal work."

[30] Importantly for present purposes "tribunal work carried out by a local government for a local government" is not "tribunal work" (s 76(1)(m)).

[31] I have real difficulty in concluding that a local authority's conduct in approving or rejecting building or engineering plans pursuant to its obligations under the Standard Building Regulation 1993 (Qld) would be performing work caught by any of the provisions resulting in a definition of a "building dispute", or would be within the definition of "tribunal work" in s 75 of the QBSA Act. Perhaps the closest one gets to such a conclusion is through the definition of "domestic building dispute" in the QBSA Act which includes "a claim or dispute in negligence . . . related to the performance of reviewable domestic work other than a claim for personal injuries". It could also be argued that the work of a local authority in approving plans was "associated work" within s 8(3) of the DBC Act.

[32] But if that reasoning is correct and what the appellant did was otherwise caught by the definition of "tribunal work", s 76(1)(m) of the QBSA Act declares it not to be "tribunal work". There can be no doubt that the approval or rejection of engineering plans pursuant to the obligation imposed on a local authority by the Standard Building Regulation 1993 (Qld) was work carried out by a local authority for its own purposes. If it is not "tribunal work" then the conduct of the local authority cannot be reviewed by the Tribunal; it is not within its jurisdiction.

[33] In other words, leaving aside s 76(1)(m) of the QBSA Act, I am not satisfied that what was done, or not done, by the appellant constituted work or conduct which was reviewable by the Tribunal in the exercise of the jurisdiction conferred on it by the legislation in question; but if the work or conduct was otherwise within the Tribunal's jurisdiction, s 76(1)(m) of the QBSA Act operated to exclude it.

[34] I agree with the reasoning of McPherson JA. It follows that the appeal should be allowed and the order made on 22 October 2004 set aside. I agree that the costs of the appeal should be reserved as indicated in the reasons for judgment of McPherson JA.

[35] PHILIPPIDES J: I agree with the reasons for judgment of McPherson JA and with the orders proposed.