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

CITATION: D’Arro v Queensland Building and Construction Commission [2016] QCATA 76 PARTIES: Orazio Salvatore D’Arro (Applicant/Appellant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: APL185-15 MATTER TYPE: Appeals HEARING DATE: 15 February 2016 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Browne DELIVERED ON: 20 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal on Grounds 1 and 2 is allowed and the decision of the Tribunal made on 30 March 2015 is set aside. 2. The following applications to review are to be returned to the Tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment: (a) The original decision made on 3 July 2009 that Orazio Salvatore D’Arro is an excluded individual by reason of the appointment of a liquidator to Innovare Developments Pty Ltd on 22 May 2009; and (b) The decision to refuse to categorise Orazio Salvatore D’Arro as a permitted individual made on 2 October 2012. 3. Any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2(a) of this order, must be filed in the Appeal Tribunal and given to the other -- 1 of 19 -- 2 party by: 4:00 pm on 7 June 2016. 4. Any written submissions in response to any application to rely on additional evidence at the fresh hearing must be filed in the Appeal Tribunal and given to the other party by: 4:00 pm on 28 June 2016. 5. Unless otherwise ordered by the Appeal Tribunal and in the absence of a request for an oral hearing, any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2(a) of this order will be determined by the Appeal Tribunal on the papers and without an oral hearing on a date not before 28 June 2016. CATCHWORDS: APPEALS – OCCUPATIONAL REGULATION – EXCLUDED INDIVIDUAL – PERMITTED INDIVIDUAL – RETROSPECTIVITY OF LEGISLATIVE AMENDMENTS – where Tribunal considered on review two decisions made by the QBCC – where Tribunal found applicant to be an excluded individual – whether the Tribunal properly considered ameliorative effect of s 56AC(6) – whether the Tribunal should have applied legislative amendments to the Queensland Building and Construction Commission Act 1991 (Qld) effective 10 November 2014 – where Tribunal confirmed decision to refuse to categorise applicant as permitted individual – where Tribunal was not satisfied applicant took all reasonable steps to avoid the relevant bankruptcy event – whether Tribunal properly exercised discretion under s 56AD Acts Interpretation Act 1954 (Qld) ss 20, 32C Legislative Standards Act 1992 (Qld) s 4 Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld) ss 3, 56AC, 56AD, 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19-20, 146 Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606; cited -- 2 of 19 -- 3 Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited [1998] QCA 430; cited D’Arro v Queensland Building and Construction Commission [2015] QCAT 100; cited Dinsey v Queensland Building Services Authority [2013] QCATA 225; cited Ericson v Queensland Building and Construction Commission [2014] QCA 297; cited Esber v The Commonwealth of Australia & Anor (1992) 174 CLR 430; cited Halstead v Queensland Building & Construction Commission [2015] QCAT 324; cited John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; cited Mahoney v Corrin [2013] QCAT 318; cited Maxwell v Murphy (1957) 96 CLR 261; cited McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380; cited Nguyen v Nguyen (1990) 169 CLR 245; cited R v Hay [2009] QDC 333; cited R v Given, ex parte Builders’ Registration Board of Queensland [1985] 2 Qd R 32; cited Re a Solicitor’s Clerk [1957] 1 WLR 1219; cited Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; cited S v White [2005] TASSC 27; cited Taylor v Queensland Law Society Incorporated [2011] QSC 8; cited Younan v Queensland Building Services Authority [2010] QDC 158; cited REPRESENTATIVES: APPLICANT: Orazio D’Arro represented by Mr P Tucker of Counsel instructed by Nicholsons Solicitors RESPONDENT: Queensland Building and Construction Commission represented by Mr N Andreatidis of Counsel instructed by Robinson Locke Litigation Lawyers REASONS FOR DECISION [1] Orazio D’Arro operated businesses through several corporate entities collectively known as the Innovare Group. The various companies from the Innovare Group went into liquidation and soon after Mr D’Arro became bankrupt. -- 3 of 19 -- 4 [2] The appointment of a liquidator to the first company (Innovare Pty Ltd) to be incorporated from the Innovare Group was a ‘relevant company event’ and Mr D’Arro was deemed to be an ‘excluded individual’.1 Subsequent to that event and because liquidators were appointed to another company from the Innovare Group (Innovare Developments Pty Ltd), Mr D’Arro was again deemed to be an ‘excluded individual’. [3] Mr D’Arro was also deemed to be an ‘excluded individual’ because of his bankruptcy. This had ramifications for Mr D’Arro because he could no longer hold a licence under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act) unless he became a ‘permitted individual’. [4] Mr D’Arro applied to the Queensland Building and Construction Commission (QBCC) seeking to be categorised as a permitted individual. The QBCC refused the application. [5] On 11 August 2014 a review hearing proceeded before the Tribunal in relation to the QBCC’s decisions to declare Mr D’Arro an excluded individual because of the liquidation of Innovare Developments; and to refuse to categorise him as a permitted individual in relation to the bankruptcy.2 The Tribunal on review confirmed both decisions.3 [6] Mr D’Arro wants to appeal the Tribunal’s decision. The grounds of appeal can be distilled down to three issues. Firstly, whether the Tribunal properly exercised its discretion in finding that Mr D’Arro is an excluded individual. Secondly, there is a question of whether the relevant sections of the QBCC Act as amended and effective from 10 November 2014 apply retrospectively.4 Thirdly, whether the Tribunal properly exercised its discretion in refusing to categorise Mr D’Arro as a permitted individual. The Grounds of Appeal [7] In addressing the grounds of appeal, Mr D’Arro firstly says the learned Member did not consider the ameliorative effect of s 56AC(6) of the QBCC Act in finding that the appointment of a liquidator to Innovare Developments meant that he was excluded by reasons of the relevant event.5 Mr D’Arro says had the Tribunal properly applied s 56AC(6), he would have found that the appointment of liquidators to Innovare (the first company event) and later Innovare Developments, all flowed from the same set of circumstances. 1 Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) s 56AC. 2 Applications OCR173-11 and OCR013-14 (incorrectly cited as OCR014-14 in the Tribunal’s reasons, see D’Arro v Queensland Building and Construction Commission [2015] QCAT 100). 3 D’Arro v Queensland Building and Construction Commission [2015] QCAT 100. 4 By virtue of the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (the PEOLA Amendments). 5 Applicant’s/Appellant’s outline of agreement filed 22 July 2015 at [10]-[11]. -- 4 of 19 -- 5 [8] Mr D’Arro relies on the learned Member’s findings that a number of the company events have occurred in different companies (all from the Innovare Group) ‘and have arisen out of the one sequence of events’.6 The learned Member found that ‘it is just not open’ to the Tribunal to consider whether there was a relevant company event because of the appointment of a liquidator to Innovare Developments.7 The learned Member confirmed the QBCC’s decision that Mr D’Arro is an excluded individual. [9] At the oral hearing, Mr Tucker of legal counsel for Mr D’Arro submits that the Appeal Tribunal, in deciding the appeal on a question of law, should exercise its power under s 146(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and set aside the Tribunal’s decision (that Mr D’Arro is an excluded individual) and substitute its own decision. Mr Tucker submits that the Appeal Tribunal should adopt the findings made by the learned Member that the appointment of liquidators, the first relevant event and subsequent events has (as found) ‘arisen out of the one sequence of events’ in applying s 56AC(6) of the QBCC Act. Mr Tucker submits that the Appeal Tribunal should determine, in exercising its powers under s 146(b), that Mr D’Arro is not an excluded individual because of the appointment of a liquidator to Innovare Developments. [10] In relation to the legislative amendments to the QBCC Act, Mr D’Arro says the learned Member should have applied s 56AC(5) (as amended) by virtue of the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (the PEOLA amendments). Mr D’Arro submits that had the learned Member applied the PEOLA amendments it would not be necessary to determine whether he should be categorised as a permitted individual. This is because Mr D’Arro says there is only one event for which he is excluded (all events flowing from the one set of circumstances) and the period of exclusion for the first event has now expired. [11] Thirdly, and in the event the Appeal Tribunal finds that the legislative amendments did not apply retrospectively, Mr D’Arro says the learned Member should have found in determining whether he be categorised as a permitted individual for the bankruptcy, that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event. In respect of this ground of appeal, Mr Tucker invites the Appeal Tribunal to exercise its powers under s 146(c) of the QCAT Act and set aside the Tribunal’s decision and return the matter to a different constituted tribunal for reconsideration.8 [12] It is common ground that the three grounds of appeal raise questions of law for which leave is not required. In relation to Ground 1, the QBCC concede there are errors in the learned Member’s findings that Mr D’Arro 6 D’Arro v Queensland Building and Construction Commission [2015] QCAT 100 [38]. 7 Ibid [40]-[41]. 8 QCAT Act s 146(c). -- 5 of 19 -- 6 is an ‘excluded individual’ because the learned Member misapplied the reasoning in Dinsey v Queensland Building Services Authority9 and did not consider whether there was a relevant company event.10 Although this is what is contended, the learned Member did not err in finding that it was beyond contention that there was a relevant company event but instead, as Mr D’Arro submits, the learned Member erred in not considering whether he was an excluded individual for that relevant company event. The QBCC further contend that the learned Member failed to consider the different causal effects that applied in the case of Innovare and Innovare Developments in order to be satisfied for the purposes of s 56AC(6) that the exclusion event (the appointment of liquidators) arose from the same set of circumstances.11 [13] In relation to Ground 2, the QBCC do not agree that the learned Member should have applied the PEOLA amendments and argue that in the absence of transitional provisions that the amendments apply retrospectively, the presumption against the retrospective operation of statutes applies. [14] At the oral hearing, Mr Andreatidis of legal counsel for the QBCC in addressing Ground 3 of the appeal concedes there is an error in the Tribunal’s findings in relation to the decision to refuse to categorise Mr D’Arro as a permitted individual because the learned Member did not properly exercise his discretion under s 56AD. [15] Mr Andreatidis submits that because there is an error of law raised for each of the grounds of appeal, the learned Member’s decision should be set aside and the matter returned to the Tribunal for reconsideration according to law and the QBCC Act effective as at the date of the QBCC’s decisions (before the PEOLA amendments).12 Mr Andreatidis submits that in relation to Ground 1 (the excluded individual decision), the issue of what was the circumstances was not the ‘whole focus’ of the case and the QBCC should be afforded an opportunity to address this issue further in the rehearing. Ground 2: Did the PEOLA amendments apply? [16] The Tribunal in exercising its review function must decide the review in accordance with the QCAT Act and the ‘the enabling Act’ (the QBCC Act) under which ‘the reviewable decision being reviewed was made’.13 The Tribunal stands in the shoes of the decision-maker to arrive at the correct and preferable decision.14 [17] It was previously held by the Appeal Tribunal in Attudawage v Medical Board of Australia (No 3)15 that the Tribunal ‘must make the correct and 9 [2013] QCATA 225; see also Respondent’s Outline of Argument filed on 14 August 2015 at [46]. 10 Respondent’s Outline of Argument filed on 14 August 2015 at [47]. 11 Ibid [49]. 12 See, for eg, Ericson v Queensland Building and Construction Commission [2014] QCA 297. -- 6 of 19 -- 7 preferable decision now [emphasis added], because the review is a fresh hearing of the matter on the merits’. The Tribunal (also) has the power to invite a decision-maker to ‘reconsider its decision at any stage of the review proceedings’.16 [18] In this case, the Tribunal on review standing in the shoes of the QBCC decision-maker was determining whether Mr D’Arro is an excluded individual by reason of the appointment of a liquidator to Innovare Developments and whether to categorise Mr D’Arro as a permitted individual having been declared an excluded individual by reason of his bankruptcy. [19] The QBCC decision-maker and regulator under the QBCC Act is charged with the responsibility of maintaining standards, achieving a balance between the interests of building contractors and consumers, to provide remedies for defective building work and to provide support, education and advice for those who undertake building work and consumers.17 This includes making decisions about building contractors who perform building work in the industry and whether a person is suitable to hold a licence in circumstances where there has been a ‘relevant event’. [20] In this case, the QBCC made decisions that have ramifications for Mr D’Arro and his suitability to hold a licence. The QBCC made decisions that Mr D’Arro is an excluded individual because of ‘relevant events’ identified under the QBCC Act (before amendment) as a ‘relevant bankruptcy event’ and a ‘relevant company event’. The relevant events were the appointment of a liquidator to Innovare Developments and Mr D’Arro’s bankruptcy. The reviewable decisions were made by the QBCC by virtue of the powers contained under ss 56AC and 56AD (respectively) of the QBCC Act. The relevant sections of the QBCC Act that were later amended by the PEOLA Act are ss 56AC(5) and (6). [21] Sections 56AC(5) and (6) that existed as at the date the decisions were made by the QBCC (before the PEOLA amendments) were: (5) An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual. (6) An excluded individual for a relevant company event (the first event) does not also become an excluded individual for another relevant company event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the company. 13 QCAT Act s 19. 14 Ibid s 20. 15 [2011] QCAT 606. 16 Attudawage v Medical Board of Australia (No 3) [2011] QCAT 606 at [24]-[26]. 17 QBCC Act s 3. -- 7 of 19 -- 8 [22] The PEOLA amendments became effective from 10 November 2014 and delete ss 56AC(5) and (6) of the QBCC Act and insert a new s 56AC(5) as follows: (5) An excluded individual for a relevant event does not also become an excluded individual for another relevant event if the commission is satisfied that both events are consequences flowing from what is, in substance, the one set of circumstances. [23] A question as to whether the PEOLA amendments apply retrospectively arises in this case because the amendments became effective after the hearing of Mr D’Arro’s applications (on 11 August 2014) but before the Tribunal published its final decision on 30 March 2015. [24] Mr D’Arro has responded to the QBCC’s written submissions outlining contentions that the amendments did not apply.18 The Appeal Tribunal has summarised Mr D’Arro’s submissions19 (in response to the QBCC) as follows: a) The machinery applicable to an administrative decision does not ordinarily give rise to an accrued right, as opposed to invoking the processes of a court or tribunal to review a decision. b) A merits review is a process designed to achieve the correct and preferable decision in light of all available evidence and represents a continuum of the decision-making processes rather than an appraisal of the correctness of the decision under review. The law as it stands as at the date of the merits review should be applied, unless there is an accrued right under consideration. c) The presumption against retrospective operation of statutes has no operation in respect of procedural amendments. d) The presumption against retrospective operation of statutes also does not apply in respect of statutes having future operation although in respect of past events. e) The presumption against retrospectivity is rebutted if the application of the statute is properly seen to be retrospective. [25] In addressing the first contention, Mr D’Arro says the issue before the Tribunal on review was whether the QBCC had made the correct and preferable decision as to whether or not s 56AC(6) of the QBCC Act as it stood prior to the PEOLA amendments applied in respect of the circumstances concerning the appointment of the liquidator to Innovare Developments.20 Mr D’Arro says this involved no accrued right in either Mr D’Arro or the QBCC. Mr D’Arro also says the QBCC failed to observe that the appointment of a liquidator to Innovare Developments had arisen from substantially the one set of circumstances that applied to each of the 18 Respondent’s Outline of Argument filed on 14 August 2015 at [25]-[43]. 19 Applicant’s/Appellant’s Outline of Argument in Reply filed on 22 September 2015 at[9]- [13]. 20 Applicant’s/Appellant’s Outline of Argument in Reply filed on 22 September 2015 at[14]-[15]. -- 8 of 19 -- 9 Innovare companies and the Tribunal on review should have applied s 56AC(5) of the QBCC Act (as amended).21 [26] Mr D’Arro’s submission as to the issue before the Tribunal at first instance is misleading because the Tribunal on review was not confined to only consider the applicability of s 56AC(6) of the QBCC Act. The decision on review, correctly identified by the learned Member in the reasons, was ‘the determination that [Mr D’Arro] is an excluded individual as the result of the appointment of a liquidator to Innovare Developments’. The learned Member was not solely confined on review to the applicability of s 56AC(6) of the QBCC Act (before amendment) but was required to arrive at the correct and preferable decision to determine whether Mr D’Arro is an excluded individual as the result of the appointment of liquidators to Innovare Developments. [27] As we have said it is common ground that there is an error in the learned Member’s findings (in Ground 1) because the Tribunal misapplied Dinsey’s case and it was open to the Tribunal to consider the ameliorative effect of s 56AC(6) in arriving at the correct and preferable decision. [28] The PEOLA amendments (if applicable) would benefit Mr D’Arro. This is because if the Tribunal found the appointment of liquidators and the bankruptcy all flow from the ‘the one set of circumstances’ (under the amended s 56AC(5)) Mr D’Arro can only be deemed an excluded individual for the first relevant event and the period of exclusion (under the QBCC Act) has now expired. [29] If the QBCC Act (before the PEOLA amendments) is applied there are in effect two relevant events (the liquidation and the bankruptcy) for which Mr D’Arro becomes an excluded individual. If Mr D’Arro is not categorised as a permitted individual, the QBCC’s decision that Mr D’Arro is an excluded individual because of the bankruptcy (and the liquidation) has ramifications for Mr D’Arro because under the QBCC Act (before amendment) a person who has ‘twice been an excluded individual for a relevant event’ is a ‘permanently excluded individual’.22 [30] The PEOLA Act is silent as to any transitional provisions. In the absence of transitional provisions to the contrary, there is a presumption at common law that retrospectivity of legislation does not apply.23 The leading authority is Maxwell v Murphy24 (see Dixon J). In Mahoney v Corrin,25 the former President of QCAT Wilson J (as he then was) summarised the position stated by Dixon J: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as 21 Ibid. 22 QBCC Act s 58. 23 Maxwell v Murphy (1957) 96 CLR 261; see also Mahoney v Corrin [2013] QCAT 318 at [14]. 24 Maxwell v Murphy (1957) 96 CLR 261. 25 [2013] QCAT 318. -- 9 of 19 -- 10 applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.26 [31] In Mahoney’s case Wilson J refers to the ‘potential mischief’ of retrospective legislation and sets out the ‘classic example’ of a person who performs a lawful act one day, is then exposed to criminal sanctions because of that act by some later change to the legislation.27 [32] In R v Hay28 Dearden DCJ said that the presumption against retrospectivity of legislation is ‘enshrined’ in s 20 of the Acts Interpretation Act 1954 (Qld) which provides as follows: … (2) The repeal or amendment of an Act does not— (a) revive anything not in force or existing at the time the repeal or amendment takes effect; or (b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or (c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or (d) affect a penalty incurred in relation to an offence arising under the Act; or (e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d). (3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened. … [33] Dearden DCJ also said s 20 is ‘consistent’ with the Legislative Standards Act 1992 (Qld) in particular s 4 and the reference to ‘principles relating to the legislation that underlie a Parliamentary democracy based on the rule of law’.29 Dearden DCJ identifies that one of those principles is that legislation should ‘not adversely affect rights and liberties…retrospectively’.30 [34] It is settled law that the presumption against retrospectivity of legislation can be rebutted where the legislative amendments are procedural and not substantive in nature. This raises a question as to the nature of the PEOLA amendments in determining whether they are procedural or substantive and whether the decisions being reviewed involve a consideration of accrued rights or liabilities.31 26 Mahoney v Corrin [2013] QCAT 318;see also Maxwell v Murphy (1957) 96 CLR 261 at 267. 27 Mahoney v Corrin [2013] QCAT 318 at [17]. 28 [2009] QDC 333. 29 Ibid. 30 R v Hay [2009] QDC 333. 31 See, eg, Re Costello and Secretary, Department of Transport (1979) 2 ALD 934. -- 10 of 19 -- 11 [35] In Taylor v Queensland Law Society Incorporated,32 Daubney J helpfully summarises the ‘distinction’ between procedural and substantive issues as explained in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in the High Court decision of John Pfeiffer Pty Ltd v Rogerson:33 As already indicated, the choice of law rules traditionally distinguish between questions of substance and questions of procedure. There is much history that lies behind the distinction, but search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case. But, as the majority said in McKain: “Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes. Some statutes of limitation have traditionally been held to be procedural on the basis that they bar the remedy not the right; other limitation provisions can affect whether a plaintiff recovers. Questions of what heads of damage are allowable have been held to be substantive; but questions of quantification of damages have been held to be procedural. But all questions about damages can affect how much a plaintiff recovers and, thus, statutes such as the NSW Compensation Act, which is in issue in this case, alter the rights of plaintiffs and, also, the obligations of defendant. Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive. These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.” 32 [2011] QSC 8. 33 (2000) 203 CLR 503 at [42], [97]-[100]. -- 11 of 19 -- 12 [36] In addressing the issue as to whether the decisions being reviewed involve a consideration of accrued rights or liabilities, Mr D’Arro has referred the Appeal Tribunal to Re Costello and Secretary, Department of Transport34 and Halstead v Queensland Building & Construction Commission.35 [37] In Re Costello’s case the applicant, an experienced pilot, sought a review of a decision made to refuse to grant him a Senior Commercial Pilot Licence. The Administrative Appeals Tribunal (AAT) said that the decision (being reviewed) may require the Tribunal to consider facts and circumstances before it in the light of the law ‘at some anterior date’ in order to determine the accrued rights or liabilities of the applicant.36 In Re Costello’s case the AAT outlines the Tribunal’s exercise of power on review where the Tribunal is ‘standing in the shoes of the decision-maker’ exercising the same powers as the decision-maker. The AAT effectively confirms the position at common law that legislation should not be applied retrospectively unless the ‘intention appears with reasonable certainty’.37 The AAT said the amended law should be applied (by the Tribunal) where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather ‘involves investigation whether the applicant has a present entitlement to the grant of a right or privilege’.38 The relevant extract from Re Costello’s case appears as follows: …It is clear, firstly, that in the exercise of our review function under s 43 of the Administrative Appeals Tribunal Act 1975 we stand in the shoes of the decision-maker and that the exercise of our review jurisdiction is the occasion of a fresh exercise of administrative power. In the ordinary course of events, therefore, the tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision... Where the relevant law at all material times is the same, no problem arises as to the law to be applied. But where, as in the present, the law has been changed between the date of the administrator’s decision and the decision of this Tribunal it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard: (i) to the nature of the decision under review; and (ii) to the provisions of the legislation by which the change in the law is effected... The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant… A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively… But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of 34 (1979) 2 ALD 934. 35 [2015] QCAT 324. 36 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943-944. 37 Maxwell v Murphy (1957) 96 CLR 261; Mahoney v Corrin [2013] QCAT 318 at [14]. 38 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943-944. -- 12 of 19 -- 13 a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision.39 [38] In Halstead v Queensland Building & Construction Commission40 a single Member of this Tribunal considered Costello’s case and the comments of Brennan J in Esber v The Commonwealth of Australia & Anor41. In Esber’s case Brennan J said the law as it then exists should be applied (by the Tribunal on review) and not the law as it existed at an earlier time.42 Brennan J said in Esber’s case: Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then existed is applied, not the law as it existed at an earlier time... By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides.43 [39] In Halstead’s case, the Tribunal found the ‘situation’ to be analogous to Costello’s case and determined the law as it now stands should be applied by the Tribunal and not the law as it stands before the amendments.44 The Tribunal said: I agree with the Applicant’s submission that the situation is analogous to Costello’s case. There has never been a decision made to the effect that the Applicant did not satisfy the ‘one set of circumstances’ test. I agree also that what has happened in this matter is that the Applicant, in the words of the majority in Esber’s case, is taking ‘advantage of an enactment’. He is not asserting any crude, substantive right.45 [40] In addressing the four remaining contentions identified in these reasons at paragraph [24] above and the nature of the PEOLA amendments, Mr D’Arro relies on various decisions. The Appeal Tribunal has summarised some of the decisions as follows: a) S v White that applied the law as at the date of the alleged offences;46 b) R v His Honour Judge Given, ex parte Builders’ Registration Board of Queensland that said the legislation is regarded as having an effect that is procedural; 47 39 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943-944. 40 [2015] QCAT 324. 41 (1992) 174 CLR 430. 42 Esber v The Commonwealth of Australia & Anor (1992) 174 CLR 430 at 448-449. 43 Ibid; Halstead v Queensland Building & Construction Commission [2015] QCAT 324 at [21]. 44 Halstead v Queensland Building & Construction Commission [2015] QCAT 324 at [23]. 45 Ibid at [22]. 46 [2005] TASSC 27 at [11]. 47 [1985] 2 Qd R 32 at 39. -- 13 of 19 -- 14 c) Re a Solicitor’s Clerk that said the legislation enables a disqualification to be imposed for the future ‘which in no way affects anything done by the appellant in the past’;4849 and d) Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited50 that said amendments to the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act) now renamed the QBCC, were not made ‘inapplicable by the rule against retrospective operation of statutes’51. [41] In McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority,52 the Queensland Court of Appeal looked at the question of whether amendments made to the QBSA Act apply prospectively. The Court of Appeal said unless the language of the amendment clearly indicates it is to have that operation (retrospectively), it should be construed as ‘speaking to the future only’.53 [42] In McNab’s case, the amendments to the QBSA Act concerned the power to direct a person who had carried out building work to rectify defective work. Before the amendments, a person (the applicant) who provided services but did not build or design, did not carry out building work and was not deemed or taken to have carried out the work. After the amendments, the person (the applicant) is taken to have carried out the defective building work because the person was a construction manager engaged under a construction management contract to provide building work services for the building work. [43] In McNab’s case, the Court of Appeal found that the application of the amendments of the QBSA Act ‘falls squarely’ within Dixon CJ’s formulation in Maxwell’s case because it applies to facts that have already occurred in a way to impose or otherwise affect liabilities. The Court of Appeal said: The present appeal is one to which the “general rule” described by Dixon CJ applies. It is a case of the type described by Goddard LCJ by way of distinguishing this category of case from that into which Re a Solicitor’s Clerk fell. The 2007 amendments would be retrospective if by the Act “a penalty were inflicted for having acted in this or any other capacity before the Act came into force.” That is the result QBSA seeks. Jordan CJ’s formulation of the test is equally applicable. QBSA contends that the amendments have brought into existence a “particular liability” in respect of events which “occurred prior to the passing of the Act”, so that the operation of the Act contended for would be retrospective. As Fullager J pointed out, “retrospective”: 48 [1957] 1 WLR 1219 49 Ibid at 1223. 50 [1998] QCA 430. 51 Ibid at 12 per Pincus JA. 52 [2010] QCA 380. 53 McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380 at [129]. -- 14 of 19 -- 15 “… is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before (an act) became law.” The application of the amendments which QBSA contends is correct falls squarely within Dixon CJ’s formulation, “… as applying to facts … that have already occurred in such a way as to … impose or otherwise affect … liabilities …” which attracts the presumption. To adapt the analysis of Kaye J in Nicholas the amendments to s 72 do impose a liability for conduct antecedent to the enactment of the amendments.54 [44] In McNab’s case, the Court of Appeal considered the decision in Baulderstone’s case and said that the Court (in that case) had ‘mistakenly assumed itself on all fours with Judge Given’s case.55 In McNab’s case, the Court of Appeal acknowledged in citing Dawson, Toohey and McHugh JJ in Nguyen v Nguyen,56 that it should depart from earlier decisions (such as in Baulderstone’s case) ‘cautiously and only when compelled to the conclusion that the earlier decision is wrong’. The Court of Appeal said that decision (in Baulderstone’s case), if followed, is capable of ‘working substantial hardship, not to say injustice’.57 [45] Similarly, in this matter the Tribunal’s earlier decision in Halstead’s case does not assist us because Halstead’s case does not properly consider the nature of the PEOLA amendments and the decisions under review. As held in Re Costello’s case, where the nature of the decision under review does not involve a consideration of accrued rights or liabilities the amending law (in this case the PEOLA Act) should be applied. [46] Here there were events that triggered s 56AC of the QBCC Act, being the appointment of liquidators to Mr D’Arro’s corporate entities (Innovare and Innovare Developments) on 22 May 2009 and later on 1 July 2010 when he entered into bankruptcy. The relevant sections (before amendment) took effect on 22 May 2009 and 1 July 2010 respectively and Mr D’Arro was again deemed to be an ‘excluded individual’ by virtue of s 56AC(3) (the bankruptcy event). Mr D’Arro is by reason of ‘the event’ (the appointment of liquidators) and a subsequent event (the bankruptcy) an excluded individual and can therefore no longer hold a licence. [47] If they were to apply, the amendments to the PEOLA Act would apply to facts that have already occurred because liquidators were appointed (a relevant company event) and Mr D’Arro entered into bankruptcy (a relevant bankruptcy event). Those events triggered the provisions of s 56AC and Mr D’Arro is deemed an excluded individual because there was a relevant company event and a further relevant bankruptcy event under 54 McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380 at [128]. 55 Ibid at [130]. 56 (1990) 169 CLR 245 at 269; McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380 at [131]. 57 McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380 at [131]. -- 15 of 19 -- 16 the QBCC Act (before amendment). Because the distinction between the events (the liquidation being a company event and the bankruptcy event) remains under the QBCC Act (before amendment), Mr D’Arro is an excluded individual for both events unless he is declared a permitted individual. [48] The PEOLA amendments relevantly provide that an excluded individual for a ‘relevant event’ does not also become an excluded individual for ‘another relevant event’ if both events flow from the one set of circumstances. The PEOLA amendments effectively remove the distinction between a ‘relevant company event’ and a ‘relevant bankruptcy event’ for the purposes of applying the ameliorative effect of s 56AC(5). [49] As found by the Court of Appeal in McNab’s case, the PEOLA amendments would seem to fall within Dixon CJ’s formulation ‘…applying to facts…that have already occurred in such a way as to…impose or otherwise affect…liabilities’. This is because the events (the liquidation and bankruptcy) have triggered the effect of s 56AC under the QBCC Act (before amendment) and Mr D’Arro is deemed an excluded individual for both relevant events. [50] The PEOLA Act does not provide any indication that the amendments are to apply prospectively. As stated by the Court of the Appeal in McNab’s case, unless the language of the amendment clearly indicates it is to have the operation, it should be construed as speaking to the future only.58 The answer to the question of whether the PEOLA amendments apply retrospectively is, no. Grounds 1 and 3 – was there an error in the Tribunal’s decision? [51] It is common ground that there are errors in the learned Member’s ultimate finding that Mr D’Arro is an excluded individual by reason of the appointment of a liquidator to Innovare Developments. The learned Member made findings of fact that because the companies were conducted as a group, Mr D’Arro should be entitled to the ameliorative effect of s 56AC(6) of the Act but did not give Mr D’Arro the benefit of the section. The learned Member did not consider the benefit of the ameliorative effect of s 56AC(6) of the QBCC Act and did not properly apply the reasoning in Dinsey’s case. In Dinsey’s case the Appeal Tribunal said that s 56AC is primarily a definition section and s 56AC(6) includes a specific means of avoiding the status of ‘excluded individual’.59 In Dinsey’s case the Appeal Tribunal said that unless s 56AC(6) ‘can save’ the applicant, he is permanently excluded. The relevant extract from Dinsey’s case is as follows: [36] In the circumstances relied on by Mr Dinsey, seven relevant company events occurred. Exclusion is prima facie automatic upon any of them. The occurrence of the event brings about the exclusion. Causation of the event 58 McNab Constructions Australia Pty Ltd P/L v Queensland Building Services Authority [2010] QCA 380. 59 Dinsey v Queensland Building Services Authority [2013] QCATA 225 at [33]. -- 16 of 19 -- 17 is not an element. The external administration of each company is a separate event, producing automatic exclusion for each event unless the individual becomes a ―permitted individual‖ for each under section 56AD. [37] Apart from the possible operation of s 56AC(6), unless he succeeds in obtaining "permitted individual" status in a sufficient number of matters he will be at least ―twice .. an excluded individual for a relevant event‖ under section 58. It follows that unless section 56AC(6) can save him from that consequence, he is permanently excluded.60 [52] In this case the learned Member said that there had been a number of relevant company events in different companies that have ‘arisen out of the one sequence of events’ but did not consider whether Mr D’Arro should have the benefit of s 56AC(6). The learned Member found in citing Dinsey’s case that ‘it is just not open’ to the Tribunal to consider whether there was a relevant company event stating ‘that fact is beyond contention’.61 As found in Dinsey’s case, it was open to the learned Member to consider the possible operation of s 56AC(6) that, as held in Dinsey’s case, can ‘save him from’ being declared a permanently excluded individual62 by reason of the second relevant event. [53] In relation to Ground 3, the learned Member did not properly exercise his discretion under s 56AD in finding that he ‘cannot be satisfied’ Mr D’Arro took all reasonable steps to avoid the relevant bankruptcy event.63 The learned Member has correctly identified the matters to be considered under s 56AD(8A) but did not properly identify the steps taken by Mr D’Arro and properly consider whether Mr D’Arro took all reasonable steps to avoid those circumstances coming into existence which involves a consideration of whether those steps were reasonable. [54] The learned Member found that ‘it is uncontroversial’ that the circumstances that resulted in the happening of the relevant event (the bankruptcy) was the triggering of various personal guarantees that had been given by Mr D’Arro to Innovare creditors that were then called into operation due to payment defaults by the Innovare companies.64 The learned Member has then considered whether Mr D’Arro took ‘all reasonable steps’ without identifying the steps that were taken. The learned Member said: It is uncontroversial that the circumstances that resulted in the happening of that relevant bankruptcy event was the triggering of various personal guarantees that had been given by the Applicant to Innovare creditors that were then called in to operation, due to payment defaults by the Innovare companies. Examination must turn to the question whether the Applicant took ‘all reasonable steps’ to avoid the coming into existence of the 60 Dinsey v Queensland Building Services Authority [2013] QCATA 225 at [36]-[37]. 61 D’Arro v Queensland Building and Construction Commission [2015] QCAT 100 at [40]. 62 Dinsey v Queensland Building Services Authority [2013] QCATA 225 at [37]. 63 Ibid at [55]. 64 D’Arro v Queensland Building and Construction Commission [2015] QCAT at [44]. -- 17 of 19 -- 18 circumstances that resulted in the relevant event, in view of the requirements laid out in s 56AD(8A) and (8B) of the QBSA Act.65 [55] As held in Younan v Queensland Building Services Authority,66 s 56AD requires a ‘consideration of whether the relevant individual took all reasonable steps to avoid those circumstances coming into existence’ without the benefit of hindsight. In Younan’s case McGill DCJ said: The section speaks about taking reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event. The test in s 56AD(8) requires first, the identification of the relevant event; second, the identification of the circumstances that resulted in the happening of the relevant event; third, a consideration of whether the relevant individual took all reasonable steps to avoid those circumstances coming into existence; and, if satisfied of that, fourth, a decision whether to categorise the individual as a permitted individual. What were reasonable steps depended on what was reasonable for the individual concerned in the circumstances in which he found himself, with such information as he then had … It is not a question of whether he did everything possible to prevent these circumstances from arising, or whether they would not have arisen if he had acted differently. The reasonableness of his behaviour must be assessed by reference to what was known by him at the time, without the benefit of hindsight….67 [56] In this case, the learned Member has misapplied the test in s 56AD because he did not properly identify all of the circumstances, as they were known to Mr D’Arro at the relevant time that resulted in the bankruptcy, to be satisfied that Mr D’Arro did not take all reasonable steps. Conclusion [57] We have found that the PEOLA amendments did not apply. We have also found that there are errors in the learned Member’s decision in relation to the finding that Mr D’Arro is an excluded individual and the decision to refuse to categorise Mr D’Arro as a permitted individual. In relation to the excluded individual decision, the learned Member did not properly consider the ameliorative effects of s 56AC(6) of the QBCC Act and properly apply the reasoning in Disney’s case. Because there is an error of law the decision made on 3 July 2009 that Mr D’Arro is an excluded individual by reason of the appointment of a liquidator to Innovare Developments on 22 May 2009 (application OCR013-14) is to be set aside and the application sent back to the Tribunal for reconsideration.68 [58] In relation to the permitted individual application (on review), we have found that the learned Member did not properly exercise his discretion in order to be satisfied that Mr D’Arro did not take all reasonable steps. The learned Member did not properly identify all of the circumstances that resulted in the happening of the relevant event, all of the steps taken by 65 D’Arro v Queensland Building and Construction Commission [2015] QCAT at[44]. 66 [2010] QDC 158. 67 Younan v Queensland Building Services Authority [2010] QDC 158 at [26]. 68 QCAT Act s 146(c); see also Ericson v Queensland Building and Construction Commission [2014] QCA 297. -- 18 of 19 -- 19 Mr D’Arro and properly consider whether Mr D’Arro took all reasonable steps to avoid the circumstances coming existence which involved a consideration of whether the steps were reasonable as they were known to Mr D’Arro at the relevant time. Because there is an error of law, the decision made on 2 October 2012 to refuse to categorise Mr D’Arro as a permitted individual (application OCR127-13) is to be set aside and the application sent back to the Tribunal for reconsideration.69 [59] In finding that the excluded individual and permitted individual decisions are to be set aside and the applications sent back to the Tribunal for reconsideration, we have considered Mr D’Arro’s submission that the Tribunal should be re-constituted. In the absence of a ground of appeal or contention that raises an issue of bias in the Tribunal’s decision or that the learned Member failed to afford procedural fairness to Mr D’Arro, we see no reason why the applications (OCR013-14 and OCR127-13) cannot proceed before the learned Member who heard the applications at first instance. This is of course subject to the needs of the Tribunal as to whether it is otherwise suitable for the rehearing of the applications to proceed before a newly constituted Tribunal. [60] The rehearing of the excluded individual application may involve further evidence and submissions because the QBCC say in responding to the grounds of appeal, that the issue as to whether the events (appointment of liquidators) all flow from the one set of circumstances was not properly addressed by the Tribunal at first instance. Both parties should be given a further opportunity to address the Appeal Tribunal in relation to whether the rehearing should proceed with additional evidence and we will make those directions accordingly. [61] In the absence of any application for leave to rely on fresh evidence at the rehearing of the excluded individual application, the rehearing of both applications is to proceed before the Tribunal based on the evidence at first instance now contained in the transcript. Both parties should also be given an opportunity at the rehearing before the Tribunal to make any further written and/or oral submissions. 69 QCAT Act s 146(c). -- 19 of 19 --