Corry v Quinlan [1992] QSC 388 [1993] 2 Qd R 610

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority _of the Director, State Reporting Bureau.) -r:-·~ ~-:-5~~::-;:.~:,;::c·l s:.._a~(: R~·port~P:J 8·Jt"r;~.:·.: ! . i D:::it-2 ..t I to f~.:L_.)_)__j C: SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION c c c RYAN J No 751 of 1992 VINCENT GERARD COR~ and ROBERT QUINLAN BRISBANE .. DATE 21/10/92 .. JUDGMENT Applicant Respondent 1 -- 1 of 11 -- --. ~-- -- --·· --------~- ------~--· - -· ... .. _· .··:--·: .... 211092 HIS HONOUR: I dismiss the application and I publish my reasons. I make no order as to costs. JUDGMENT 2 10 20 30 0 40 0 50 60 -- 2 of 11 -- c\ c c ATTACHMENT C. 2 IN THE SUPREME COURT OF QUEENSLAND APN No. 751 of 1992 Brisbane Before The Hon. Mr. Justice K.W. Ryan [Re: Vincent Gerard Carry & Others] BETWEEN: AND: VINCENT GERARD CORRY ROBERT QUINLAN Stipendiary Magistrate at Brisbane REASONS FOR JUDGMENT - RYAN J. Applicant Respondent Judgment delivered on 21/10/92 Counsel: Mr. Copely Q.C. with Mr. Boulton for Applicant Mr. Vize, Solicitor for Respondent (Given leave to withdraw) Mr. S. Williams Q.C. with Mr. K. Varley for Queensland Building Services Authority Solicitors: McCullough Robertson for Applicant Smits Leslie Barwick, Solicitors for Queensland Building Services Authority Hearing Date: 01/10/92 -- 3 of 11 -- THE SUPREME COURT OF QUEENSLAND o.s. No. 751 of 1992 BETWEEN VINCENT GERARD CORRY ROBERT QUINLAN Stipendiary Magistrate at Brisbane REASONS FOR JUDGMENT - RYAN J. Applicant Respondent Delivered the Twenty-first day of October, 1992. c~ The applicant claims an order in the nature of certiorari directed to the respondent quashing the decision of the respondent made on 28 August 1992 at Brisbane in the matter of Carry v. Builders' Registration Board of Queensland, and an order in the nature of mandamus directed to the respondent to enter all necessary adjournments and proceed according to law. The c application is made under s. 43 of the Judicial Review Act 1991. In late 1991 the applicant, then a registered builder, was called upon to show cause by the Builders' Registration Board of Queensland why his registration under the Builders' Registration and Home-Owners' Protection Act 1979-1989 should not be cancelled or suspended. On 19 December 1991 the Board ordered that the registration of the applicant as a registered general builder and registered house builder under the Act be restricted to act only as the nominee for a registered building company approved by the Board. The applicant appealed against the decision on 19 February 1992. On 19 August 1992 the applicant applied to have the appeal -- 4 of 11 -- / / 2 set down for hearing. Solicitors for the Board opposed the application, arguing that the Magistrates Court had no jurisdiction to entertain the appeal. On 28 August 1992 the respondent, a Stipendiary Magistrate, refused to set down the appeal for hearing, adjourning it to a date to be fixed. In the transcript of proceedings in the Magistrates Court, it is noted that Mr. Pyman appeared for the respondent. This is given as the Queensland Builders' Registration Board. The Magistrate observed that "V.G, Corry is the applicant and the CJ Builders Registration Board being the respondent. I notice the appearances are a little different". It does not appear from the record what the appearances were, but as the Magistrate noted, (J the Builders Registration Board of Queensland had been dissolved by the Queensland Building Services Act and its assets and liabilities had vested in the new authority. The Magistrate said in his judgment:- "The Builders' Registration Board of Queensland cannot respond to the appeal as it simply does not exist. Most certainly the right to appeal is still there but there is no respondent to carry out any order that may be made. No order for costs can be made against an entity that does not exist. It would seem that Mr. Corry is caught in a no man's land situation having to apply for registration under the new Act that being the case I refuse to set the matter down for hearing". Later he stated that "the matter is adjourned to a date to be fixed". At the hearing before me, I was informed that the respondent Stipendiary Magistrate abided the order of the Court. An application was made by the Queensland Building Services Authority to be made a party to the application pursuant to s. 28 of the Judicial Review Act 1991. I grant that application. 0 0 -- 5 of 11 -- 3 By proclamation made on 28 May 1992, the Queensland Building Services Authority Act commenced on 1 July 1992. By s. 5(1) of that Act an Authority called the Queensland Building Services Authority is established. By s . 7 5, a Tribunal called the Queensland Building Tribunal is established. Section 98 provides that certain specified decisions of the Authority are subject to review by the Tribunal, including a decision to refuse an application for a licence, to impose or vary a condition of a c= licence, or to suspend or cancel a licence. By the Schedule to the Act the Builders' Registration and Home-Owners Protection Act c= c: c= 1979 and amendments thereto are repealed. In s. 2 of the Schedule it is provided that:- " ( 1) On the commencement of this section, the Builders Registration Board of Queensland is dissolved and all the assets and liabilities vest in the Authority. ( 3) The provJ.sJ.on of the repealed Act as to insurance continue to apply, subject to any adaptations and modifications prescribed by regulation under this Act, to building work commenced before the commencement of this section and the Authority may exercise any of the powers of the former Board in relation to such insurance. (4) A direction or order for rectification of building work may be made under this Act in respect of building work carried out before the commencement of this section by a person registered under the repealed Act as if references in this Act to a licensed contractorextended to such a person." The Statute Law (Miscellaneous Provisions) Act 1992 adds further subsections to s. 2. Included in these is a provision that a proceeding for an offence against the repealed Act may, subject to the limitation of time prescribed by s. 58 of the -- 6 of 11 -- .~--- 4 repealed Act, be brought by a person authorised by the Authority to bring the proceeding. Section 48 of the Builders' Registration and Home-Owners Protection Act gave a right of appeal against a decision of a Board which made the registration of any person as a registered builder subject to a condition or restriction, and s. 49 conferred jurisdiction upon a Magistrates Court to hear and determine such appeals. It was submitted for the applicant that, notwithstanding the repeal of the Builders' Registration and Home-Owners Protection Act, s. 20 of the Acts Interpretation Act 1991 preserved the applicant's right of appeal. That section provides that the repeal of an Act does not: (c) affect a right, privilege, obligation or liability acquired, accrued or incurred under the Act; or (e) affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty. I was referred to Esben v. The Commonwealth (1992) 66 ALJR 0 0 0 373. In that case, the appellant had required that a decision 0 in relation to compensation entitlements be reviewed by the Administrative Appeals Tribunal. Before the hearing, the Act was repealed and superseded by a later Act. He argued that s. 8 of the Acts Interpretation Act 1901 (Cth), in the same terms as s. 20, preserved his entitlement under the earlier Act to have the Tribunal determine his application to review a decision. It was said in the joint judgment of Mason CJ., Deane, Toohey and Gaudron JJ at p. 377 that s. 8 "protects anything that may truly -- 7 of 11 -- c c c 5 be described as a right, although that right mig~t fairly be called initiate or contingent". I read that decision as leading to the conclusion that, in the absence of any contrary intention, the right of the applicant to appeal against the decision of the Board was preserved. It was however submitted for the Authority that the Act of 1991 expressed a contrary intention. The Board, which had been established by s. 6(2) of the Act of 1979 as a body corporate had been dissolved by the Act of 1991. It could not therefore be a respondent to the appeal. No provision in the new Act transferred to the Authority any responsibility as respondent to the appeal. Moreover, there was no provision in the new Act providing for the continuance of appeals under s. 48 of the earlier Act. I can see nothing in s. 48 of the 1979 Act which requires the continued existence of the Board as a condition for the maintenance of a right of appeal against the decision of a Board. The section gives a person aggrieved by the Board's decision a right to appeal against the decision to a Magistrates Court. That decision remains, subject to anything to the contrary provided in the 1991 Act, unless an appeal against it is allowed by a Magistrates Court, and the right of the applicant to appeal against it is preserved by s. 20 of the Acts Interpretation Act. It is correct to say that nothing in the 1991 Act makes a decision or order of the Board a decision or order of the Authority, but that does not seem to me to have the effect that the right of the applicant to appeal against a decision or order -- 8 of 11 -- 6 of a Board which no longer exists is to be taken as abrogated by implication. Counsel for the Authority presented a further submission. The Statute Law (Miscellaneous Provisions) Act 1992 inserts in s. 2 of the Schedule to the Act of 1991 a provision that a regulation may be made with respect to any matter for which (a) it is necessary or convenient to facilitate the transition from the operation of the repealed Act to the operation of this Act; and (b) this Schedule does not make provision a sufficient provision. Pursuant to this, a regulation has been made in these terms:- 31 ( 1 ) ( 2) A person (not being a company) who before the commencement of Part was, immediately 3 of the Act, registered as a general builder under the former Act is taken to have the qualifications and experience required by this regulation for a general building contractor's licence or a general building supervisor's licence. A person (not being a company) who before the commencement of Part was, immediately 3 of the Act, registered as a house builder under the former Act is taken to have the qualifications and experience required by this regulation for a house building contractor's licence or a house building supervisor's licence. (3) The Authority must - (a) issue a general building contractor's licence to every person who was, immediately before the 0 0 0 0 -- 9 of 11 -- 7 commencement of that Part, registered as a general builder under the former Act; and (b) issue a house building contractor's licence to every person who was, immediately before the commencement of that Part, registered as a house builder under the former Act. (4) A licence issued under subsection (3) takes effect as from the commencement of Part 3 of the Act. C It was submitted by Counsel for the Authority that the applicant's licence with the conditions attached to it was c c continued by this regulation, and took effect as a license issued by the Authority. Section 99 of the Act of 1991 enables a person affected by a decision of the Authority that is subject to review to apply for a review of the decision. A decision to impose or vary a condition of a licence is, by s. 98(b), a decision of the Authority which is subject to review by the Tribunal. Accordingly, a contrary intention to s. 20 of the Acts Interpretation Act had been expressed. If the effect of Regulation 31(3) is that the applicant's C licence is issued by the Authority without any condition attached to it, the applicant will no longer be a person aggrieved by the Board's decision and no appeal will be against it. If the Authority issues a licence with the restriction imposed by the Board or any other restriction, as it may do under s. 35 of the 1991 Act, the applicant will have the rights conferred upon him by s. 99 of the 1991 Act. If the effect of Regulation 31(3) is, as was submitted for the respondent, that the applicant's licence is continued with the condition attached to it by the Board, he -- 10 of 11 -- /------- 8 may request its removal by the Authority and if it refuses the decision of the Authority will be one that adversely affects the applicant and he may apply under s. 99 for a review of the decision. In my opinion, the new Act and the regulations made under it provide machinery for the applicant to appeal against any condition imposed on his licence, and accordingly an intention contrary to s. 20 of the Acts Interpretation Act appears in the 1991 Act. I dismiss the application. 0 0 0 0 -- 11 of 11 --