Queensland Building and Construction Commission & Anor v Groupline Constructions Pty Ltd [2020] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION: Queensland Building and Construction Commission & Anor v Groupline Constructions Pty Ltd [2020] QCA245

PARTIES: QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION / ABN 88 568 500 260 / (first appellant) / BRETT BASSETT AS THE COMMISSIONER OF THE QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION / (second appellant) / v / GROUPLINE CONSTRUCTIONS PTY LTD / ACN 168 247 621 / (respondent)

FILE NO/S: Appeal No 463 of 2020 / SC No 13486 of 2019

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 311 (Flanagan J)

DELIVERED ON: 10 November 2020

DELIVERED AT: Brisbane

HEARING DATE: 5 June 2020 / Further written submissions: 7 August 2020

JUDGES: Fraser and McMurdo JJA and Bradley J

ORDER: The appeal is dismissed with costs.

CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERAL MATTERS CONSTRAINED BY REFERENCE TO SPECIFIC – where the first appellant purported to impose seven conditions on the building licence held by the respondent pursuant to its general power to impose conditions – where the first appellant had a specific power to direct a licensee to remedy damage caused by or as a consequence of defective or incomplete building work and the second appellant had aspecific power to compel a person to stop work if satisfied something was being done in contravention of a provision of certain Acts – where requirements attached to the exercise of each specific power that did not attach to the exercise of the general power – where the first appellant did not comply with those requirements when imposing the conditions pursuant to its general power – where the conditions effectively required the respondent to remedy damage and stop work – whether the imposition of the conditions was a valid exercise by the first appellant of its general power / Acts Interpretation Act 1954 (Qld), s 14A / Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 31, s 34, s 35, s 36, s 48, s 49A, s 72, s 72A, s 74B, s 108AD, s 108AI / Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490; [1970] HCA 42, cited Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, considered Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28, distinguished Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, considered Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, cited Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30, distinguished Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, followed Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, cited

COUNSEL: P Dunning QC, with S McNeil, for the appellants B E Codd with J P Hastie for the respondent

SOLICITORS: Holding Redlich for the appellants CDI Lawyers for the respondent

1. FRASER JA: I have had the advantage of reading the reasons for judgment of Bradley J. I agree with those reasons and with the order proposed by his Honour.

2. McMURDO JA: I have had the advantage of reading in draft form the reasons for judgment of BradleyJ. With one exception, I agree with his Honour’s conclusion that the conditions were not permissible upon the proper construction of s 36 of the Queensland Building and Construction Commission Act 1991 (the Act). As I will explain, it is my view that the seventh condition is in a different category from the others, and to that extent the appeal should be allowed. In what follows, I will refer to the Act as it was before it was recently amended.¹

3. Section 36 relevantly provided as follows:

“36Subsequent imposition of conditions etc.

(1)If the commission has reason to believe—

(a)that a licensee may have insufficient financial resources to meet possible liabilities in relation to building work; or

(b)that there is some other proper ground for imposing a condition on the licence;

the commission may notify the licensee of the proposed condition and invite the licensee, within a period specified in the notice, to make written representations on the proposal.

(2)After considering the written representations (if any) made by the licensee, the commission, if satisfied that the condition is appropriate, may, by notice to the licensee, impose the condition.

(3)A condition may be imposed preventing the licensee from continuing to carry on business until the licensee has lodged with the commission appropriate security against possible liabilities in relation to building work.

(3A)A condition may be imposed requiring the licensee to complete a course module included in technical or managerial national competency standards relevant to the building industry.

(3B)A condition may be imposed requiring the licensee to give to the commission specified documents that relate to the licensee’s obligations under part 4 or schedule 1B.

(3C)Subsections (3), (3A) and (3B) do not limit the power to impose conditions under subsection (2).

(4)The commission may, by subsequent notice to the licensee, vary or revoke a condition imposed under this section.”

4. Section36 must first be read with s 35(1), by which conditions could be imposed on the grant of a licence “as the commission considers appropriate”. Section 35(3) then provided:

“(3)Without limiting subsection (1), a contractor’s licence is subject to the condition that—

(a)the licensee’s financial circumstances must at all times satisfy the minimum financial requirements for the licence; and

(b)variations of the contractor’s turnover and assets must be notified, or notified and approved, in accordance with the minimum financial requirements for the licence.”

5. The commission’s power to issue a licence came from s 34(1), which was in these terms:

“(1)If the commission is satisfied, on an application under this division, that the applicant is entitled to a licence, the commission must issue a licence of the appropriate class.”

6. An entitlement to a contractor’s licence was defined by s 31, which it is necessary to set out in full:

“31Entitlement to contractor’s licence

(1)A person (not being a company) is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that—

(a)the applicant is a fit and proper person to hold the licence; and

(b)the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class; and

(c)the applicant satisfies the minimum financial requirements for the licence; and

(d)the applicant can lawfully work in Queensland; and

(e)the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and

(f)the applicant is not a disqualified individual; and

(g)the applicant is not a banned individual; and

(h)the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71.

(2)A company is entitled to a contractor’s licence if the commission is satisfied, on application by that company for a licence, that—

(a)the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds acontractor’s licence; and

(b)the company’s nominee holds a licence specifically identifying, as a class of building work that the nominee may supervise, the same class of building work for which the licence is sought by the company; and

(c)the applicant satisfies the minimum financial requirements for the licence; and

(d)the company is not an excluded company; and

(e)the company is not a company for which a banned or disqualified individual is a director, secretary, influential person or nominee; and

(f)neither the company, nor a director, secretary, influential person or nominee of the company has an unpaid judgment debt for an amount the commission may recover under section 71.

(3)In deciding whether a particular person is a fit and proper person to hold a contractor’s licence or to exercise control or influence over a company that holds a contractor’s licence, the commission may have regard to—

(a)commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and

(b)any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and

(c)tier 1 defective work carried out by the person, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and

(ca)if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and

(d)any other relevant factor.

(4)However, the commission may not have regard to the matter mentioned in subsection (3)(ca) if—

(a)the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or

(b)28 days have not elapsed since the date of the enforcement order.”

7. By s 31(2)(a), a corporate applicant had to establish that those who exercise control or influence over the company were fit and proper persons to do so, and that those individuals had the appropriate personal qualities, evidenced by their commercial and personal histories, according to the considerations prescribed by s 31(3).

8. By s 31(2)(b), the company had to have a nominee, who held a licence for the same class of building work for which the licence was sought by the company, and in that way, the requirements of s 31(1) (for a licence held by an individual) were relevant also to the company’s licence. The nominee had to be a fit and proper person to hold the licence, and have the qualifications and experience required by a regulation in relation to a licence of the relevant class.²

9. The company had to satisfy the “minimum financial requirements for the licence”³ and not be an “excluded company”,⁴ and it must not have had an unpaid judgment debt for an amount the commission may recover under s 71.

10. Therefore, it is evident from the terms of s 31(1), (2) and (3) that an entitlement of a company to a contractor’s licence derived from the satisfaction of requirements of three kinds, namely requirements about the character of those who control the company (and its nominee), the qualifications and experience of the nominee and the company’s financial position.

11. Those same requirements were relevant upon an application for renewal of a licence. Section37B provided that if requested by the commission, the licensee must give the commission the further information or evidence the commission requires “to decide whether the applicant continues to be entitled to hold a licence”.

12. By s 35(1), the commission was given a power to impose “such conditions as [it] considers appropriate.” However that power was necessarily limited by the statutory context, and in particular, by the terms of s 31. The purpose for which conditions could be imposed was to ensure that those requirements of character, competence and financial standing would be met. This was because on satisfaction of those requirements, aperson or a company was entitled to a contractor’s licence. And in turn, only further conditions of that kind could be imposed on an existing licence under s 36.

13. A breach of a condition was not an offence.

14. Section 48 provided for the cancellation or suspension of a licence. The grounds for cancellation or suspension were set out in s 48(1), of which it is necessary to mention only those which could involve defective building work or something done in contravention of a prescribed provision. By paragraph (f) of s 48(1), there was aground for cancellation or suspension if the licensee was convicted of an offence against the Act or the 1975 (Qld), or an offence against any of the enactments referred to in s 48(2). By paragraph (ha), there was a ground for cancellation or suspension where building or other work on a building site under the licensee’s control may have caused the death of, or grievous bodily harm to, a person, or that such work may have involved “a serious risk to the health or safety of a person”.

The stop work power

16. By s 108AI, the commissioner might issue a “stop work notice”, if satisfied that “something is being done, or is about to be done, in contravention of a prescribed provision.”⁶ In this context, a prescribed provision was a provision of the Act, the Building Act 1975 or the Building Code of Australia.⁷

17. A stop work notice might prohibit a person who was doing, or about to do, the relevant thing from starting or continuing to do so, and might direct that person to take any other action the commissioner considered necessary to give effect to that prohibition or to “ensure the contravention of the prescribed provision is not repeated or does not happen in the future.”

18. The contravention of a stop work notice was an offence.⁸

The rectification and remediation power

19. Section 72 applied if the commission was of the opinion that building work was defective or incomplete, or that “consequential damage” had been caused by, or as aconsequence of, carrying out building work. Section 71H(1) defined consequential damage to be damage caused by, or as a consequence of, carrying out building work at a building site, and being damage to a residential property which was at that site, which contained that site or which was adjacent to that site.

20. By s 72(2), the commission might direct the person who carried out the building work to rectify defective or incomplete work and remedy consequential damage. Such adirection had to be made within the period prescribed by regulation.⁹ A direction by the commission had to require work to be rectified or damage to be remedied within a stated period.

21. A direction to rectify or remedy might be given to a person not currently licensed to carry out the required work, in which event that person had to have the work carried out by a licensed contractor.¹⁰ The fact that a direction was given under s 72(2) did not prevent the commission from taking additional action against a person under the Act for the building work to which the direction related.¹¹

22. A failure to rectify building work that was defective or incomplete, or to remedy consequential damage, as required by a direction under s 72, constituted an offence.

The Anthony Hordern principle

23. In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia,¹² Gavan Duffy CJ and DixonJ said:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

24. Similarly, in Leon Fink Holdings Pty Ltd v Australian Film Commission,¹³ MasonJ said:

“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.”

25. The primary judge in this case cited those passages from Anthony Hordern and Leon Fink Holdings before concluding that it was “impermissible for [the commission] to impose conditions on a licence that have the effect of either enlarging or circumventing the requirements of either Part6 [which contains s 72] or s 108AI of the Act.”¹⁴ Respectfully, I am unable to agree with the primary judge that the Anthony Hordern principle is applicable in this case.

26. The Anthony Hordern principle applies to a case where the ambit of a restricted power is ostensibly wholly within the ambit of a power which itself is not expressly subject to restrictions.¹⁵ In such a case, depending upon the text and context of the relevant provisions,¹⁶ it may be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the other power.¹⁷ Sections 72 and 108AI conferred powers to compel, by a direction of the commission, the cessation or rectification of building work, and the remedy of consequential damage. Clearly however, the powers of the commission under s 35 and s 36 were not of that kind. The purported exercise of the commission’s powers under s 36 in the present case, by the imposition of conditions 1 to 6, was an evident attempt to cause the respondent to have rectification and remedial works performed. If they were valid conditions, that may have been their practical consequence, but they did not have effect as directions with which the respondent must comply or else commit an offence. Consequently, s 72 and s 108AI conferred powers which, on any view, were not of the kind conferred by s 35 and s 36.

27. Although the Anthony Hordern principle is inapplicable in this case, the powers conferred by s 72 and s 108AI are nevertheless relevant in the construction of s 36, at least by demonstrating that it is unnecessary to construe s 36 in the way for which the appellants contend, in order to serve the objects of the Act. The existence of the powers in s 72 and s 108AI is consistent with the correct construction of s 36, which is that it was limited to the imposition of conditions which were relevant to what can be described as the fitness of the person or company to remain a licensee, in the sense of the licensee meeting the requirements of character, competence and financial standing which I have discussed.

The conditions in this case

28. The conditions numbered 1 to 6 were directed to the performance of remaining work on the so-called Maya Development and to the remedy of consequential damage on the adjacent site. The purported basis for the imposition of these conditions, according to the commission’s notice dated 15 November 2019, was that the commission had reason to believe that there was a proper ground for imposing them in that the work on the Maya Development may have involved a serious risk to the health and safety of a person. However there was no expressed view about a different matter, namely that the respondent was unfit to hold its licence. It is evident that the commission did hold a concern about whether the respondent had “safe systems of work”, but not such as to make it appropriate to exercise its power to suspend the respondent’s licence. And these conditions purported to stop the respondent from working on the Maya Development site, but they did not affect the respondent’s ability to undertake other work under its licence. Consequently, these six conditions were invalid, because they were imposed for an ulterior purpose or purposes.¹⁸

29. The seventh condition is different, in that it is apparently related to the fitness of the respondent as a licensee. It is in terms that the respondent will give to the commission a safety audit report of the respondent’s safety management system, demonstrating its compliance with the standards of safety required by the Work Health and Safety Act 2011 (Qld). In my conclusion, this condition was within the commission’s powers under s 36.

30. I would order that the appeal be allowed, and that the orders made by the primary judge on 17 December 2019 be set aside. I would declare that conditions numbered 1 to 6, purportedly imposed by the first appellant on the respondent’s building licence, are of no effect and order that the appellants remove any reference to those conditions as having been imposed on the respondent’s licence from the website of the first appellant and the register of licences maintained by the first appellant under s 99 of the Act. I would direct that the parties provide written submissions as to the costs of the proceeding at first instance and of this appeal.

31. BRADLEY J: The first appellant (the QBCC) administers the Queensland Building and Construction Commission Act 1991 (Qld) (the Act) and has certain powers under the Act.¹⁹ The second appellant (the Commissioner) is responsible for the administration of the licensing system established by the Act and also has certain powers conferred by the Act. The respondent holds a building licence issued by the QBCC under the Act.

The facts

33. Since 24 January 2018, the respondent has held its licence. It authorises the respondent to undertake building work on all classes of buildings and to prepare plans and specifications for use in building work the respondent is to perform.²⁰ The licence class is “builder – open”. The licence permits the respondent to generate revenue in the range of $12,000,001 to $30,000,000 in a financial year.

34. On 30 April 2019, the respondent contracted to design and construct an eight level residential complex, with a two level basement carpark, at 1 Coyne Street, Coolangatta (the building site). The respondent was required to complete the works by 12 June 2020. This work was within the scope of the respondent’s licence.

35. The building site is adjacent to 12-14 Musgrave Street, Coolangatta (the adjacent site), where someone other than the respondent had constructed a three level residential building called Kirra Vista.

36. On or about 7 September 2019, a QBCC officer attended the adjacent site, in response to complaints from the Kirra Vista Body Corporate. He received a report by Jeffrey Hills & Associates (JHA)²¹ dated 6 September 2019 about an inspection of the adjacent site on 26 August 2019. The report had been prepared at the request of the loss adjuster appointed by the insurer of the Kirra Vista Body Corporate.

37. On 9 September 2019, the Commissioner issued to the respondent a notice to show cause why a stop work notice should not be issued under s 108AI of the Act. As the learned primary judge noted:

“The notice to show cause alleged that the [respondent] was in contravention of the Building Code of Australia, Vol 1, Part BP1.1 as:

(a)the foundations at Kirra Vista had been undermined by the excavation piling work being carried out by the [respondent] on the [building] site;

(b)significant movement and damage had become evident at Kirra Vista which was outside the tolerances allowed in the relevant Australian Standards; and

(c)there was a likely possibility of further foundation displacement and damage to Kirra Vista occurring during the further construction of the [development at the building site].”²²

38. On 13 September 2019, the respondent provided an initial response to the show cause notice.

39. On 18 September 2019, the QBCC received some preliminary advice from Peter Wright of Hughes, Beal & Wright Pty Ltd (HBW), consisting of short comments inserted into the body of an email originally sent from the QBCC to Mr Wright.

40. On 19 September 2019, the Commissioner issued a stop work notice to the respondent pursuant to s 108AI. The notice prohibited the respondent from continuing any building work at the building site until the QBCC and the Commissioner were satisfied any future works would not be in contravention of the Building Code of Australia (the Building Code).

41. On 23 September 2019, the Commissioner withdrew the stop work notice. As the learned primary judge noted, the Commissioner and the QBCC:

“formed the view on expert advice that:

(a)the majority of the damage likely to be suffered to the Kirra Vista structure had already occurred;

(b)there was unlikely to be additional further movement or subsidence to the footing system at Kirra Vista; and

(c)in light of the wording of Building Code of Australia Vol 1, Part BP1.1 and the advice received from the relevant expert, the further imposition of the stop work notice was not warranted.”²³

42. Between then and early November 2019, the respondent resumed work at the building site.

43. On 13 November 2019, the QBCC received a report from HBW (the HBW report). As the learned primary judge noted, the HBW report concluded:

“(a)there had been at least a 50 per cent increase in the subsidence of the eastern footing to Kirra Vista (being the footing closest to the [building] site) since the expert’s initial inspection at the site on 18 September 2019;

(b)the level of distress and damage to units 6, 12 and 18 on the eastern side of Kirra Vista building (being the units closest to the [building] site) “far exceeded what would be considered acceptable or cosmetic damage”;

(c)the loadbearing walls which are supporting the upper level slabs of Kirra Vista had been:

(i)cracked, with cracks up to 9.5 millimetres in width having been observed; and

(ii)suffered lateral displacement;

(d)Kirra Vista had suffered structural damage;

(e)units 6, 12 and 18 on the eastern side of Kirra Vista building should be vacated until remedial work was carried out to stabilise the eastern end of Kirra Vista.”²⁴

44. That day, the QBCC issued to the respondent a notice of the immediate suspension of its licence. The QBCC issued the notice pursuant to s 49A in Part 3 of the Act. The QBCC stated its reasons in these terms:

“●The [respondent] is undertaking building or other work on [the building site], adjacent to [the adjacent site].

●As a result of the work being performed, there is a serious risk of the adjoining (West) property wall collapsing as a result of structural damage and instability.

●There is a serious risk of harm that may occur to other licensees, and their workers, suppliers and consumers which poses aserious risk to their health and safety.”

45. On 15 November 2019, the QBCC further explained the suspension of the licence in a letter to the respondent. The QBCC advised it had received information on 13 November 2019 in relation to the building work undertaken by the respondent at the building site and had formed the view that there was “a reasonable concern of serious risk to the health and safety of a person at that site”. The QBCC reiterated:

“the QBCC believes, on reasonable grounds, there is a serious risk of harm occurring to other licensees, and their workers, suppliers and consumers which poses a serious risk to their health and safety.”

46. The letter continued:

“In considering the matters provided for in section 48(1)(ha), the QBCC is further satisfied that in the circumstances, there is reasonable concern that there is a risk the licensee may not have in place safe systems of work for the carrying out of building work across its business (not just the specific site) consistent with legislative obligations.”

47. Next in the letter, the QBCC advised the respondent that it had become aware of the following grounds for imposing a condition on the respondent’s licence pursuant to s 36:

“●The licensee is undertaking building work at [the building site] and this building work adjoins [the adjacent site].

●The building work undertaken to date at the building site has caused damage to the building located at [the adjacent site] (building), including damage to the eastern wall and associated footings (at-risk wall).

●The severity of the damage to the building, including the at-risk wall, has been identified by an independent engineer, with the level of damage exceeding what would be acceptable. (Refer Annexure1)

●The engineer is not satisfied that the outer brick veneer of the at-risk wall is structurally stable. The lateral restraint of the at-risk wall is unknown, though there is a probability that the restraint could be ineffective, leading to the potential for apartial collapse of the outer veneer of the at-risk wall.

●The QBCC is of the view the damage to the building, including the at-risk wall, has been caused by the ongoing construction activities on the building site.

●The QBCC is of the view that lateral movement poses the risk that the at-risk wall will collapse or partially collapse.

●The QBCC is of the view that further building work being undertaken by the licensee at the building site is likely to contribute to further displacement and instability of the building, including the at-risk wall, and therefore poses aserious risk to the health and safety of persons.

●The QBCC is of the view that the licensee may not have in place safe systems of work for the carrying out of building work across its business (not just the specific site) consistent with legislative obligations.”

48. Following the grounds, the letter gave formal notice that the QBCC proposed to impose the Conditions. They were:

“1.The licensee is to engage, at the licensee’s cost, an independent RPEQ engineer to determine the corrective action needed to make safe the building at 12-14 Musgrave Street, Coolangatta QLD 4225 including the at-risk wall and prepare a report detailing that action. The report must be provided to the QBCC.

Upon receipt of written agreement from the QBCC that the correction action stated in the engineer’s report referred to in condition1 is satisfactory, such agreement not to be unreasonably withheld, the licensee must, at the licensee’s cost, engage an appropriately licensed contractor to carry out all necessary work to make safe the building, including the at-risk wall, at 12-14Musgrave Street, Coolangatta QLD 4225 in accordance with the corrective action stated in the engineer’s report.

The licensee must, at the licensee’s cost, provide the QBCC with a report prepared by an independent RPEQ engineer confirming the building, including the at-risk wall, at 12-14 Musgrave Street, Coolangatta QLD 4225 is no longer a risk to the health and safety of others upon completion of condition 2.

Building work is not to be carried out or caused to be carried out on the building site of 1 Coyne Street, Coolangatta QLD 4225, other than that required to make safe the building, including the at-risk wall, at 12-14 Musgrave Street, Coolangatta QLD 4225, until conditions 1 to 3 have been complied with and until receipt of written agreement from the QBCC that the building, including the at-risk wall, is no longer a risk to the health and safety of others, such agreement not to be unreasonably withheld.

For the duration of any remaining building work carried out at the site of 1 Coyne Street, Coolangatta QLD 4225, the licensee must, at the licensee’s cost, provide the QBCC with an independent RPEQ engineer’s report at the close of business each week confirming the building, including the at-risk wall, at 12-14 Musgrave Street, Coolangatta QLD 4225 remains safe. The report must also state any movement of the at-risk wall or the building at 12-14 Musgrave Street, Coolangatta QLD 4225.

Within one month of the building work completion at 1 Coyne Street, Coolangatta QLD 4225, the licensee, at the licensee’s cost, must provide the QBCC with an independent RPEQ engineer’s report confirming the building, including the at-risk wall, at 12-14 Musgrave Street, Coolangatta QLD 4225 is not arisk to the health and safety of others.

The licensee must give the QBCC a safety audit report of the licensee’s safety management system which demonstrates compliance with standards of safety as required by the Work Health and Safety Act 2011, including any corrective actions implemented by the licensee. The safety audit report must be undertaken by an independent Certified Auditor in OHS Management Systems and provided to the QBCC within 30 days of this condition being imposed.”

49. On 18 November 2019, the QBCC gave the respondent notice that it had imposed the Conditions on the respondent’s licence. The Conditions were identical to those in the letter of 15 November 2019.

50. In a second letter that day, the QBCC advised the respondent:

“QBCC has considered representations received, and is satisfied [the respondent] has had appropriate conditions imposed on the licence, which warrants the immediate suspension imposed on the licence on 15 November 2019, be lifted.

As a result, the immediate suspension has been lifted as of close of business on 18 November 2019.”

51. On 19 November 2019, the respondent engaged NJA Consulting Pty Ltd (NJA) to prepare a design to “make safe” any damage caused to Kirra Vista. Mr McDonald of NJA inspected the adjacent site that day. On 20 November 2019, NJA provided areport to the respondent, including a recommendation and a design for make safe works in the form of two wall stabilisation drawings.

52. Between 19 and 22 November 2019, the respondent carried out the make safe works in accordance with the NJA design.

53. On 27 November 2019, the respondent received notice that no further make safe works were to be conducted on the adjacent site until a building consultant, to be appointed by the insurer of the Kirra Vista Body Corporate, had consulted with JHA. The respondent was unable to continue with any work on the adjacent site, and so, according to the Conditions, unable to proceed with any work on the building site.

The proceeding below

54. On 4 December 2019, the respondent filed an originating application seeking a finding that the Conditions were void or an order setting them aside or quashing them.

55. On 10 December 2019, the originating application was heard before the learned primary judge in the Applications List. His Honour reserved judgment, indicating it would be delivered within about a week. At the request of the appellants, the learned primary judge gave the parties leave to deliver further short written submissions over the following two days.

56. On 16 December 2019, the learned primary judge published the Reasons, concluding the decision to impose the Conditions and the Conditions themselves were void and of no effect. His Honour indicated he would hear the parties’ submissions as to the form of orders that should be made, including as to costs.

57. On 17 December 2019, the learned primary judge declared the decision of the QBCC to impose the Conditions void and of no effect and the Conditions void and of no effect. His Honour ordered the appellants to remove any references to the Conditions having been imposed from the QBCC website and register. The appellants were ordered to pay the respondent’s costs. The appellants appeal the whole of the orders made by the learned primary judge.

The decision of the learned primary judge

58. The learned primary judge had the benefit of written and oral submissions by counsel for the parties. His Honour considered the objects of the Act, the provisions in Part3 dealing with conditions of licences, Part 6 dealing with the rectification of building work and the remediation of consequential damage, and s 108AI, in Part 9, dealing with stop work notices.

59. The learned primary judge concluded:

“[52]The wording of the conditions and their effect covers the same subject matter as either a stop work notice under s 108AI or anotice to rectify or remedy consequential damage under Part6 of the Act. The circumstances in which QBCC can issue such notices is expressly limited to the circumstances identified in s 108AI and in Part 6 of the Act. Nothing in Part 6 of the Act permits QBCC to instruct a licensed builder as to how to comply with a notice to remedy consequential damage. As observed by McPhersonJ (as his Honour then was) in R v His Honour Judge McGuire & Ors:

‘It is possible to conceive of reasons why the Board was not invested with power to make orders specifying the particular means or method to be used in rectifying faulty work. Apart from difficulties of supervision well known to other branches of the law, it is builders to whom orders under s 59(1) are directed. It may well have been intended that they should use their own judgment as builders with respect to the performance of rectification work.’

[53]The applicant’s submission, namely that the scheme of the Act does not permit the conditions by reason that the relevant matters are regulated by specific provisions of the Act, is supported by authority.

[54]In Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia Gavan Duffy CJ, Dixon and McTiernanJJ observed:

‘When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.’

[55]To similar effect in Leon Fink Holdings Pty Ltd v Australian Film Commission, Mason J (as his Honour then was) refined the principle in stating:

‘It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.’

[56]The power to be exercised under s 36 by QBCC is quite separate and distinct to the power to be exercised under either s 108AI or Part 6 of the Act. The power to impose conditions on alicence is to be exercised in order to regulate and control those persons who may lawfully perform building work in Queensland. If in the course of conducting that building work the Commissioner is satisfied that something is being done or about to be done in contravention of a prescribed provision, it may issue a stop work notice pursuant to s 108AI. In doing so the Commissioner must follow the steps mandated by s 108AI(3) and (5) and the Commissioner must be satisfied in terms of s 108AI(1). Similarly, if a licensed builder in the course of conducting building work causes consequential damage, including to an adjacent owner, QBCC may exercise its powers under Part 6 of the Act, including the power to require remediation of consequential damage to an adjacent owner. The exercise of these specific powers are governed by provisions that set out a number of matters, which include QBCC forming the necessary opinion under s 72(1), as well as time and procedural requirements under s 72(2A), (3) and (4). It is, in my view, impermissible for QBCC to impose conditions on a licence that have the effect of either enlarging or circumventing the requirements of either Part 6 or s 108AI of the Act. To do so would undermine the powers in s 108AI and s 72 and the requirements that attend their exercise.

[57]Resort to the objects of the Act does not, in my view, support such an expansive construction of the power granted to QBCC under s 36. The objects of the Act which include both regulating the building industry and providing remedies for defective building work, are sought to be achieved by QBCC and the Commissioner holding various powers. These powers not only include imposing conditions on a licence, but also the power to cancel or suspend a licence and to issue notices to stop work and to direct remedial work in respect of consequential damage. The fact that each of these powers are conferred on QBCC and the Commissioner in order to achieve the objects of the Act does not mean that the general power to impose conditions on alicence should be exercised in such a way as to override the requirements of specific sections permitting the issuing of directions to stop work and remedy consequential damage.”²⁵

The grounds of appeal

60. The appellants press three grounds of appeal. Each concerns the proper construction of s 36 of the Act, which the QBCC relied upon as the source of power to impose the Conditions.

The proper construction of s 36

61. The proper approach to construing a statutory provision is not in dispute. It has been recently noted by this court in dealing with other provisions of the Act.²⁶ In short, the meaning of s 36 is determined by reference to the section itself and to the language of the Act viewed as a whole, on the basis that “its provisions are intended to give effect to harmonious goals”.²⁷

62. The relevant part of s 36 is in these terms:

“36****Subsequent imposition of conditions etc.

(1)If the commission has reason to believe—

(a)that a licensee may have insufficient financial resources to meet possible liabilities in relation to building work; or

(b)that there is some other proper ground for imposing a condition on the licence;

the commission may notify the licensee of the proposed condition and invite the licensee, within a period specified in the notice, to make written representations on the proposal.

(2)After considering the written representations (if any) made by the licensee, the commission, if satisfied that the condition is appropriate, may, by notice to the licensee, impose the condition.

(3)A condition may be imposed preventing the licensee from continuing to carry on business until the licensee has lodged with the commission appropriate security against possible liabilities in relation to building work.

(3A)A condition may be imposed requiring the licensee to complete a course module included in technical or managerial national competency standards relevant to the building industry.

(3B)A condition may be imposed requiring the licensee to give to the commission specified documents that relate to the licensee’s obligations under part 4 or schedule 1B.

(3C)Subsections (3), (3A) and (3B) do not limit the power to impose conditions under subsection (2).”

63. Absent a concern about a licensee’s financial resources, the QBCC may only exercise the s 36 power where it has reason to believe there is a “proper ground for imposing acondition” and where it is “satisfied that the condition is appropriate”.

Part 3 of the Act

64. Part 3, which includes s 36, provides for the licensing of persons to carry out classes of building work. Its other provisions reveal the nature of these licences and the QBCC’s powers concerning the issue, suspension and cancellation of licences.

65. The QBCC issues licences authorising a person to carry out work²⁸ in classes fixed by regulation.²⁹ Generally speaking, a person must not carry out building work unless they hold a licence of the appropriate class³⁰ and a company must also have a nominee with an appropriate licence.³¹ Breaches of these provisions are criminal offences attracting fines.

66. The QBCC is obliged to issue a licence, of an appropriate class, to each applicant entitled to such a licence.³² A company is entitled to a licence if, amongst other things, the company’s directors, secretary and influential persons are fit and proper persons to exercise control over a company with the licence sought, the company has a nominee who holds a licence to provide supervisory services for building work of the same class, and the company satisfies minimum financial requirements prescribed by regulation.³³

67. A licensee may renew their licence on the payment of a prescribed fee.³⁴ If the fee is not paid in time, the licence is suspended and, after three months in suspension, it may be cancelled by the QBCC.³⁵ The QBCC must restore a cancelled licence if the fee is paid within three months of the cancellation.³⁶

68. The QBCC may suspend or cancel a licence in certain other circumstances,³⁷ including if the licensee is convicted of an offence against the Work Health and Safety Act 2011 (Qld) (the WHS Act), if the licensee has contravened a condition imposed on their licence, or if building work on a building site under the licensee’s control may have involved a serious risk to the health and safety of a person. The QBCC must give the licensee notice of the reasons it proposes to cancel or suspend the licence and allow the licensee 21 days to make written representations about the matter, and consider them.

Parts 3A – 3E of the Act

73. Parts 3A, 3B, 3C, 3D and 3E provide for the exclusion of certain individuals and companies from holding licences. These provisions affect the entitlement of persons to obtain or retain licences issued under Part 3.

74. Part 3D provides for the QBCC to give notice to an individual who was a director, secretary, influential person or nominee of a company that has carried out “tier 1 defective work” cancelling the individual’s licence and deeming the person to be not afit and proper person.⁴⁶

75. Tier 1 defective work is:

“grossly defective building work that … falls below the standard reasonably expected of a licensed contractor for the type of building work … and either—

(i)adversely affects the structural performance of a building to the extent that a person could not reasonably be expected to use the building for the purpose for which it was, or is being, erected or constructed; or

(ii)is likely to cause the death of, or grievous bodily harm to a person.”⁴⁷

76. If an individual is deemed not a fit and proper person, they cease to be entitled to a licence, and any company of which they are a director, secretary, influential person or nominee also ceases to be entitled to a licence.⁴⁸ The QBCC is prohibited from granting a licence to such an individual (a banned individual) or to a company of which the banned individual is a director, secretary, influential person or nominee.⁴⁹

77. Before cancelling an individual’s licence, the QBCC must follow a procedure. It cannot act unless it considers the individual carried out tier 1 defective work.⁵⁰ It must give the individual written notice with details of the defective work and an invitation to make written submissions to satisfy the QBCC that the individual did not carry out the work or that the work was not tier 1 defective work or that the individual exercised reasonable diligence to ensure the work was not defective.⁵¹

Part 6 of the Act

78. Part 6 provides for the rectification of building work that is defective or incomplete and the remediation of consequential damage caused by or as a consequence of it.

79. Within Part 6, s 72 gives the QBCC power to direct a licensee to remedy consequential damage. That power is confined to damages to a residential property at, containing or adjacent to the site where the building work was carried out.⁵² It may be triggered by a request from the owner or occupier of the adjacent residential property, who must give the QBCC details of the consequential damage and other details reasonably required by the QBCC, and pay a prescribed fee.⁵³ The request must be made within 12 months after the person becomes aware of the consequential damage.⁵⁴ The QBCC may give a direction whether or not there has been a request.⁵⁵

80. The Governor in Council has power to fix a period within which the QBCC may make a direction,⁵⁶ and a direction cannot be given more than six years and six months after the work to which it relates ended, without the QBCC obtaining an extension.⁵⁷

81. The QBCC may consider all the reasonably relevant circumstances in deciding whether to give a direction.⁵⁸ It need not give a direction if satisfied it would be unfair to do so.⁵⁹ It may be unfair to direct remedial work if the owner of the damaged property has refused to allow the licensee to attend the property or undertake the remedial work. The QBCC must include in the direction a period within which the licensee must remedy the damage.⁶⁰ A person given a direction must remedy the damage.⁶¹ If the person is not licensed to carry out the specific work, they must have it carried out by a person who is licensed to do so.

Part 6A of the Act

83. Part 6A provides for the QBCC to investigate and take disciplinary action against licensees, former licensees and other persons. The grounds for taking disciplinary action against a licensee include where the licensee contravenes or is taken to have contravened the WHS Act in relation to building work carried out under their licence,⁶⁴ or where building work on a building site under the licensee’s control may have involved a serious risk to the health or safety of a person.⁶⁵ The parties do not contend that any provision in Part 6A (or Part 9) of the Act relevantly affects the power of the QBCC under s 36.⁶⁶

Part 9B of the Act

84. Within Part 9B, s 108AD provides for the Supreme Court to grant an injunction against a person and s 108AI for the Commissioner to issue stop work notices.

85. The power conferred by s 108AD may be exercised when the Court is satisfied a person has done or is proposing to do something that is or would be a contravention of the Act or the Building Act. The Court may also act if satisfied the person’s conduct is or would be an attempted contravention, the aiding, abetting, counselling or procuring of a contravention, or inducing or attempting to induce a contravention, or that the person is or would be a party to or knowingly concerned in a contravention or a conspiracy to contravene the Act or the Building Act. The Commissioner may apply to the Court for such an injunction.⁶⁷

86. The power conferred by s 108AI enables the Commissioner to compel a person to stop work by issuing a notice. The Commissioner must be satisfied that acontravention of a provision of the Act, the Building Act or the Building Code is occurring or is about to occur.⁶⁸ The power is limited to prohibiting the person from starting or continuing the thing that is in contravention of the particular provision of that Act or Code and directing the person either to comply with that prohibition or to ensure the contravention is not repeated or does not happen in the future.⁶⁹ The maximum penalty for contravening a stop work notice is a fine of 500 penalty units.⁷⁰

The first ground of appeal

87. The first ground is that the learned primary judge erred in not construing s 36 as one of a suite of powers conferred on the appellants to better secure the purpose or objects of the Act.

88. The appellants contend the power conferred by s 36 is overlapping and cumulative with the powers to be exercised under s 108AI and Part 6 of the Act, rather than separate and discrete from them. They say, by these provisions, they have “broad, overlapping powers conferred upon them to be able to select the best and most calibrated combination of them to secure the legislatively nominated purposes”.

89. The appellants say the nominated purposes are the objects found in s 3 of the Act:

“The objects of this Act are—

(a)to regulate the building industry—

(i)to ensure the maintenance of proper standards in the industry; and

(ii)to achieve a reasonable balance between the interests of building contractors and consumers; and

(b)to provide remedies for defective building work; and

(c)to provide support, education and advice for those who undertake building work and consumers; and

(d)to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners; and

(e)to regulate building products to ensure—

(i)the safety of consumers and the public generally; and

(ii)persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use; and

(f)to provide for the proper, efficient and effective management of the commission in the performance of its functions.”

90. The appellants contend the only constraint on the QBCC’s “broad discretion in regard to the imposition of conditions” is that the QBBC must impose a condition for the purpose of regulating the building industry, being the object stated in s 3(a). Within this, they submit the QBCC could impose conditions that “may relate to either or both specific projects or the licensee’s business activities more broadly”.

Consideration of the first ground of appeal

91. The objects in s 3 of the Act are important as they inform the proper interpretation of the provisions of the Act.⁷¹ However, Parliament’s identification of these objects does not confer power on the QBCC to act as it may choose in pursuit of them. The QBCC has only the powers conferred upon it by the Act, subordinate legislation or another Act.

92. Distinct from purely facilitative powers,⁷² the QBCC has powers to do specific things that create or affect the rights and liabilities of other persons. Among these powers are those of interest here: the power under s 36 to impose a condition on a licence; and the power under s 72 to direct the person who carried out building work to remedy consequential damage. The Commissioner has a relevant power under s 108AI to issue a notice prohibiting a person from doing or continuing a thing in contravention of a provision of the Act, the Building Act or the Building Code. The Court has power under s 108AD to grant an injunction restraining conduct related to contravention of the Act or the Building Act.

93. The QBCC’s power under s 72 may be understood as directed to the object in s 3(b) of providing remedies for defective building work. Each of these other powers may be understood as directed to the regulatory object in s 3(a), which is “to achieve areasonable balance between the interests of building contractors and consumers.”

94. As Walsh J explained in respect of a different statutory instrument, a general statutory power to impose conditions does not give “an unlimited discretion as to the conditions which may be imposed”, but confers:

“a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made.”⁷³

95. It has been observed that, by authority dating back to Rooke’s Case,⁷⁴ a statutory power conferred for public purposes can validly be used only in the right and proper way which Parliament is presumed to have intended when conferring it and that “in asystem based on the rule of law, unfettered governmental discretion is a contradiction in terms”.⁷⁵

96. As Aickin J observed in Leon Fink Holdings Pty Ltd v Australian Film Commission,⁷⁶ there is a difference between generality and comprehensiveness. Since Leon Fink, the accepted principle has been that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power.⁷⁷

97. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom,⁷⁸ Gummow and Hayne JJ considered the general principle of construction from Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia⁷⁹ and subsequent cases, including Leon Fink. Their Honours explained:

“what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.”⁸⁰

98. In Plaintiff S4/2014 v Minister for Immigration and Border Protection,⁸¹ the High Court considered the approach to statutory interpretation set out in Project Blue Sky. The Court, citing Nystrom, concluded that:

“It is these fundamental principles which underpin what is sometimes called the ‘Anthony Hordern principle’ and the proposition on which that principle depends: ‘that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.’”⁸²

99. The question is ultimately a matter of the construction of the particular statute.

100. The requirements and limitations in s 72 and s 108AI give effect to the regulatory object of the Act, achieving a reasonable balance between the interests of building contractors and consumers. The learned primary judge noted that, in deciding to impose the Conditions pursuant to s 36, the QBCC avoided the requirements the Parliament attached to the exercise of powers by the QBCC under s 72 and by the Commissioner under s 108AI. In doing so, the QBCC acted as if those statutory requirements or limitations could be treated as if they were of no effect.

Conclusion on the first ground of appeal

101. The construction of s 36 adopted by the learned primary judge favours the coherence of the Act. It gives effect to the limitations on the exercise of specific powers in s 72 and s 108AI. It best achieves the purpose of the Act.⁸³ With respect, it is the proper construction.

The respondent’s alternative argument on the first ground of appeal

102. The respondent advances an alternative argument to support the orders below: that the power conferred by s 36 did not include a power to impose conditions on the carrying out of building work authorised by the licence, such as conditions about work on a particular project or building site.

103. By imposing the Conditions, the QBCC sought to prohibit the respondent from carrying out building work permitted by its licence at the building site; this being the effect of prohibiting such work without the prior agreement of the QBCC. The QBCC also sought to require the respondent to engage another licensee to carry out the make safe work at the building site. Arguably, the QBCC purported to negate the statutory effect of the respondent’s licence, which is to render lawful the carrying on of building work within its scope.

104. The conclusion reached above makes it unnecessary to consider the respondent’s alternative argument.

The second ground of appeal

105. The second ground of appeal is that the learned primary judge erred in construing s 36 so as to limit the ambit of the powers conferred on the appellants by limitations not contained within that grant of power.

106. The appellants submitted that “legislative provisions should not be construed as being subject to any limitations not contained within the grant of that power”. They relied on two passages from judgments of Gaudron J, as authority for the broad proposition. These passages were:(a)In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia:⁸⁴

“It is well settled that provisions granting power to or conferring jurisdiction on a court should not be construed as subject to limitations not required by their terms.”

(b)In the earlier decision of Knight v FP Special Assets Ltd:⁸⁵

“It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to alimitation not appearing in the words of that grant. … [A] grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary.”

Consideration of the second ground of appeal

107. Like the first, the second ground of appeal is a challenge to the learned primary judge’s decision about the proper construction of s 36. The contention that the enactment of s 72 and s 108AI should not be understood as importing a limitation on the power under s 36 must fail for the same reasons as the first ground of appeal, unless there is some other compelling consideration.

108. Patrick Stevedores concerned a conferral of jurisdiction on the Federal Court to deal with breaches of Commonwealth industrial legislation and Knight concerned a grant of power to the Supreme Court of Queensland to make orders for costs. The QBCC is not a court. The power conferred by s 36 is not a judicial power to determine aperson’s obligations, but an executive power to create new obligations.

109. The specific considerations that might inform the interpretation of a provision conferring judicial power on a court are not relevant to the proper construction of s 36. In Knight, Gaudron J referred to the significance of the difference:

“Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.”⁸⁶

110. The authorities cited by the appellants on the grant of power do not lead to a different conclusion on the second ground of appeal to that on the first. The absence of an express limitation in s 36, and of a cross-reference to s 72 or s 108AI, does not affect the relevant limits of the QBCC’s power under s 36 that arise from the proper construction of the provision in the context of the Act as a whole.

Conclusion on the second ground of appeal

111. The learned primary judge did not err in construing the Act so as to give effect to the restrictions on the exercise of the specific powers conferred by s 72 and s 108AI, even though s 36 was not expressly subject to those restrictions.

The third ground of appeal

112. The third ground of appeal is that the learned primary judge erred in considering all seven of the Conditions collectively, rather than each individually. The appellants submit that, considered individually, each of the Conditions is within the QBCC’s power to impose under s 36.

113. The parties’ written submissions before the learned primary judge did not deal with the Conditions individually. His Honour had asked whether any distinction should be drawn between the individual Conditions and their wording. Counsel sought and were granted leave to file further short written submissions. A two page submission on Condition 4 was prepared and submitted by each side on 11 December 2019.

114. In this appeal, the appellants make no submissions concerning Conditions 1 to 4 individually, and rely on the matters put in respect of the first and second grounds of appeal. As those submissions fail, Conditions 1 to 4 are beyond power.

115. The appellants do make specific submissions with respect to Conditions 5, 6 and 7.

116. The appellants say:

“Condition 5 is best described as a weekly reporting requirement in regards to the carrying out of works generally at the site, which includes the at-risk wall. … It is simply a reporting requirement imposed upon the Respondent in regards to confirming that any work already carried out by that time (that is, by the end of each week), is not a risk to the health and safety of others.”

117. The appellants note that Condition 5 does not direct the respondent to rectify any consequential damage at the adjacent site, and does not prohibit the respondent carrying out any work, or require it to stop work. The appellants submit it does not involve an exercise of power under s 36 that might otherwise be effected by an exercise of power under s 72 or s 108AI.

118. The appellants submit that Condition 6 is a matter that “was not and could not have been the subject of any action” under other provisions of the Act, including s 72 and s 108AI. They say:

“It is simply a reporting requirement imposed upon the Respondent in regards to confirming that any work already carried out by that time (that is, within one month of all building work being completed at the [building] site), is not a risk to the health and safety of others. It relates to all of the building work carried out and to be carried out by completion, including the at-risk wall. It is not specific to only work, for example, that could have been the subject of a direction to rectify.”

119. The appellants make similar submissions about Condition 7, including that it “relates generally to the business and operations of the Respondent as a whole, from a health and safety perspective”. They say, correctly, that there is no specific provision in the Act authorising the QBCC to require a licensee to produce a safety audit report. The appellants contend that no power to be found elsewhere in the Act would affect the proper construction of s 36 so as to exclude a power to impose such a condition.

120. As noted above, if a licensee is convicted of a breach of the WHS Act in relation to building work carried out under the licence, or if building work at a building site under the licensee’s control caused things of the nature of a notifiable incident,⁸⁷ then the QBCC may suspend or cancel the licensee’s licence,⁸⁸ or take disciplinary action against the licensee.⁸⁹ The appellants submit Conditions 5, 6 and 7 “better secure the avoidance of such issues that the Appellants might have to prosecute or discipline”.

121. The respondent says the health and safety considerations of building work are regulated under the WHS Act, for which a different regulator is responsible. The role of the QBCC is limited. It may investigate such matters.⁹⁰ It must give the other regulator information obtained by the QBCC in performing one of the QBCC’s own functions in relation to the death or serious injury or illness of a person, or a notifiable incident.⁹¹

Consideration of the third ground of appeal

122. It is not immediately apparent that the learned primary judge erred in considering all seven Conditions collectively, rather than individually. The QBCC notice of the Conditions identified a single set of reasons for proposing that they be imposed. It expressed a common underlying concern about the risk of harm to persons and risks to their health and safety. This same concern was the reason for the immediate suspension of the respondent’s licence under s 49A and relevant to the possible cancellation of the licence under s 48 of the Act.

123. The QBCC explained that its decision to lift the suspension of the licence was warranted by the imposition of the Conditions. This confirmed the common basis for doing so.

124. It also betrayed another erroneous understanding by the QBCC of its powers. On 13November 2019, the QBCC must have reasonably believed there was a real likelihood that serious harm would happen to a person if the respondent’s licence was not immediately suspended; as it suspended the licence under s 49A. The suspension would lapse in ten days if the QBCC failed to give the respondent notice of its reasons and invite written representations within that time. The QBCC’s power to proceed to suspend or cancel the licence was subject to the limits in s 48 of the Act. The QBCC had identified the relevant ground as s 48(1)(ha)⁹² – that work undertaken at the building site may have involved a serious risk to the health and safety of a person. If that had occurred, subject to the statutory limits and requirements, the QBCC had power to suspend or cancel the respondent’s licence. If it had not occurred, then the QBCC did not have such power. The imposition of the Conditions could not change what had occurred at the building site. In any event, the QBCC chose not to exercise its power under s 48.

125. It is clear from the correspondence of 13, 15 and 18 November 2019 that the QBCC purported to impose all the Conditions (including 5 to 7) as part of single measure to prevent the respondent acting so as to give rise to a serious risk to the health and safety of a person. That risk could be prevented by an injunction, which the Court may grant if satisfied of any of the grounds in s 108AD relating to a contravention of the Act or the Building Act, or by a stop work notice, which the Commissioner may issue under s 108AI if satisfied something is being or is about to be done in contravention of the Act, the Building Act or the Building Code.

126. The Parliament, in allocating the power to prevent a person from engaging in specific conduct to the Court and the power to prevent a licensee from continuing with building work to the Commissioner, specified the course to be followed in each instance. To give effect to those provisions, s 36 is properly construed as excluding the same purpose and subject matter from the scope of the general power to impose conditions on a licence.

Conclusion on the third ground of appeal

127. Just as Conditions 1 to 4 are beyond the power of the QBCC under s 36, so each of the balance of the Conditions is also beyond power, because s 36 is to be construed in the context of the Act as a whole, and so consistently with s 108AD and s 108AI.

Disposition of the appeal

128. The appeal should be dismissed with costs.

Footnotes

1. By the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020. ↩

2. s 31(1)(a), (b). ↩

3. s 31(2)(c). ↩

4. Which s 56AC defines to be, amongst other things, a company with a director or secretary, or an influential person, who has taken advantage of the laws of bankruptcy or become bankrupt within the past three years. ↩

5. As that term is defined in s 108AI(7). ↩

6. s 108AI(1). ↩

7. s 108AI(7). ↩

8. s 108AI(6). ↩

9. s 72(2A). ↩

10. s 72A(3). ↩

11. s 72A(5). ↩

12. (1932) 47 CLR 1 at 7; [1932] HCA 9. ↩

13. (1979) 141 CLR 672 at 678; [1979] HCA 26. ↩

14. Groupline Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QSC311 at [56].