FEDERAL COURT OF AUSTRALIA

Scott Russell Constructions Pty Limited (In Liq) v Queensland Building and Construction Commission [2019] FCA 1378

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the second applicant seeking leave to bring the proceedings in the name of the company in liquidation (the first applicant) is dismissed.

2.    The originating application is dismissed.

3.    The second applicant pay the costs of the first and second respondents of and incidental to the proceeding.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with three interlocutory applications all heard together.

2    The first applicant in the originating application (the “principal proceeding”) is Scott Russell Constructions Pty Limited (In Liquidation) (the “company”). The second applicant is Mr Scott Russell. The first respondent is the Queensland Building and Construction Commission (“QBCC”), a body corporate constituted under the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) (the “QBCC Act”): see, in particular, s 5 of that Act. The second respondent is Mr Darren Phillip. Mr Darren Phillip was at all relevant times employed as a Debt Recovery Officer by QBCC and it seems that his employment ceased on 23 January 2018.

3    As to the company, it was incorporated on 21 July 2011. The sole director and shareholder of the company from incorporation until 11 June 2015 was Mr Russell. The sole director and shareholder of the company after 11 June 2015 was Mr Russell’s wife, Sylvanna Angela Russell. The company held an instrument called a “builder - low rise contractor’s licence” issued by QBCC on 25 October 2011. The company’s licence was suspended by QBCC on 20 September 2016 and cancelled by QBCC on 24 October 2016. It seems that at all times that the company held the licence just described, Mr Russell was the nominee licence holder in relation to the company’s licence.

4    The originating application recites in brief terms that on the grounds stated in the statement of claim, the details of the claim are: “damages pursuant to s 236 of the Australian Consumer Law (“ACL”); damages; interest and costs”.

5    A claim for interlocutory relief is made in these terms: “That, pursuant to the inherent jurisdiction of the Court, the second applicant be granted leave, nunc pro tunc, to bring and take responsibility for these proceedings”.

6    One interlocutory application is brought by the second respondent, Mr Phillip, in which he seeks an order that he be removed as a party from the proceeding having regard to s 114 of the QBCC Act. I will return to that matter. In the alternative, Mr Phillip seeks an order that the claim for damages pursuant to s 236 of the ACL and paras 29 to 33 of the statement of claim be struck out. In the alternative, again, Mr Phillip seeks an order that he be granted summary judgment against the applicants for the entire claim or alternatively for that part of the claim relating to the ACL questions. He also seeks an order for costs.

7    The second interlocutory application is made by both respondents for an order that all of the statement of claim be struck out together with an order for costs.

8    Mr Phillip was at one point represented independently of QBCC. Later, the solicitors and counsel for QBCC assumed the carriage of the joint application just described.

9    The third interlocutory application is the application described at [5] of these reasons.

10    It is now necessary to describe some aspects of the statement of claim. Throughout the pleading there are references to events which occurred on or about particular dates. Many of these dates are susceptible of precision which is lacking. The defence of QBCC identifies the precise dates for the relevant events. I will assume for present purposes that the dates identified by QBCC are the correct dates.

11    The material facts asserted in the statement of claim are the matters set out at [12] to [39] of these reasons. They are, of course, only assertions of fact and, from time to time, I will also mention for convenience some of the contentions of QBCC although, of course, these contested matters go to factual questions which would need to be resolved on a hearing.

12    Mr Russell asserts that at all relevant times, he was, and is, a creditor of the company. The company engaged in the business of residential construction in the Brisbane area. On 9 July 2013, the company entered into a contract with Vanessa Brewis and Gavin Foulger (the “homeowners”) for renovations to be undertaken to a dwelling in Mount Ommaney (the “Mount Ommaney contract”).

13    In about February 2014, a dispute arose between the company and the homeowners in relation to works carried out pursuant to the Mount Ommaney contract.

14    On about 30 March 2015, the company and the homeowners entered into a “heads of agreement” (the “HOA”) which recorded a settlement of their dispute. Under the HOA, the parties agreed that the homeowners had an outstanding liability to the company of $66,000 which was to be paid in a particular way; the parties were to assist QBCC in conducting an inspection and in undertaking a claims rectification and completion process; and, in the event that QBCC issued the company with a rectification order, the company would be liable for the costs of any rectification.

15    The HOA was ultimately recorded in a Deed of Settlement on about 18 August 2015.

16    The homeowners defaulted in terms of their obligations under the HOA and the Deed of Settlement by failing to pay the $66,000 in the manner agreed, or any sum at all.

17    Nevertheless, on 30 April 2015, Mr Chris O’Shannessy, a Technical Claims Manager for QBCC, undertook an inspection of the homeowners’ premises in the absence of the company and Mr Russell. QBCC says that its power to carry out an inspection of relevant premises is not affected by whether a homeowner has defaulted upon an obligation owed to the builder under any relevant agreement.

18    In about July 2015, Mr O’Shannessy provided the company with a list of incomplete works and defects (a “Scope of Works”) listing defective work and rectification work to be undertaken to the value of $280,000 to $320,000. QBCC says that the estimated value of the works to be carried out was $206,000 comprised of incomplete works to the value of $112,000 and defective items requiring rectification to the value of $94,000.

19    On about 23 July 2015, Mr Russell met with Mr O’Shannessy to discuss the Scope of Works. Mr Russell says that he told Mr O’Shannessy that he could not meaningfully comment upon the Scope of Works because he had not been given access to the homeowners’ premises. He says that Mr O’Shannessy represented to him (and thus the company), in trade or commerce, that unless the homeowners provided access to their premises, to the company, QBCC would not take “the matter” any further. This is called the “access representation”.

20    QBCC says that it does not admit these matters because it has not been able to determine, after reasonable recent enquiry, whether the matters are true or false. It also says that to the extent that any representations were made by Mr O’Shannessy to Mr Russell, they were made in Mr O’Shannessy’s capacity as an employee of QBCC and made in the course of QBCC’s functions as a government agency responsible for administering the QBCC Act and in the QBCC’s capacity as a regulator of the building industry in Queensland under that Act.

21    QBCC says that any such representation was not made “in trade or commerce”.

22    In September 2015, QBCC and Mr Phillip represented, in trade or commerce, to the company and Mr Russell that QBCC intended to initiate debt recovery proceedings against the company by reason of the company’s failure to respond to the Scope of Works. That matter is said to have been the subject of a telephone conversation in early September 2015 between Mr Phillip and Mr Russell. QBCC says that it does not admit the alleged representation because, despite reasonable enquiry, it remains unsure whether these matters are true or false and, in any event, any such representation was made in Mr O’Shannessy’s capacity as earlier described and, if made, the representation was made in the course of QBCC’s role as a government agency administering the QBCC Act and as regulator as earlier described.

23    Mr Russell says that during the September telephone conversation, Mr Phillip (and thus, he says, QBCC) represented, in trade or commerce, to Mr Russell and the company that QBCC “did not care about the access representation”; would commence proceedings against the company and Mr Russell to recover any monies paid by QBCC to the homeowners pursuant to “the insurance scheme under the QBCC Act”; and the only way for the company and Mr Russell to resolve matters was “by the payment of money”.

24    This is said to be the “September demand”.

25    QBCC does not admit those representations (for the same reason as earlier described) and, in any event, denies that such representations were made in trade or commerce for the reasons earlier identified going to QBCC’s role and capacity.

26    On 16 November 2015 (a date identified by QBCC), QBCC paid $200,000 to the homeowners pursuant to a scheme described as the Home Warranty Scheme established under the QBCC Act.

27    On about 25 September 2015, QBCC issued to the company and Mr Russell, a Notice of Potential Debt and Scope of Works (the “decision”).

28    On 23 October 2015 (a date identified by QBCC), the company and Mr Russell commenced proceedings in the Queensland Civil and Administrative Tribunal (“QCAT”) challenging the QBCC decision earlier described. QBCC says that the QCAT proceedings were commenced by the company. It says that Mr Russell was not a party to the proceeding. The applicants identify at paras 21.1 to 21.8 the matters said to be in question before QCAT concerning the decision. QBCC takes issue with an aspect of that part of the pleading but admits that the challenge in the QCAT proceeding was made on the basis of the matters at paras 21.1 to 21.8 of the statement of claim.

29    On 18 February 2016 (a date identified by QBCC), a directions hearing took place in the QCAT proceedings.

30    The applicants say that at that directions hearing, QBCC and Mr Phillip represented, in trade or commerce, to the company and Mr Russell, that: the company’s only option was to “settle this with money and we can make it go away”; QBCC “did not care” and nor did Mr Phillip care, that the homeowners were in default under the Deed of Settlement or that the company did not have access to the premises of the homeowners to respond to the Scope of Works or the decision, or that the company had approximately $100,000 in unpaid progress claims; neither QBCC nor Mr Phillip was prepared to discuss the Scope of Works or the QBCC decision, despite these matters being the purpose of the directions hearing; the company and Mr Russell should “know how this works because your father has been through the process”; and the company and Mr Russell “‘had better be’ in Mr Phillip’s office the next day to make a settlement”. All of these matters are described as the “first May threats”. If, in fact, the QCAT directions hearing occurred on 18 February 2016, the pleaded matters should be described as the 18 February 2016 threats.

31    As to the matters at [30] of these reasons, QBCC does not admit that Mr Phillip attended any directions hearing in the QCAT proceeding because, despite reasonable enquiry, it remains unsure whether these matters are true or false. In any event, it denies that any of the pleaded representations were made in trade or commerce for the same reasons as described earlier.

32    The applicants say that as at May 2016 (which might be 18 February 2016), Mr Russell and the company were aware that QBCC had been a party in protracted and expensive litigation against Mr Russell’s father, Mr Cedric Russell; and that although Mr Cedric Russell was ultimately successful in that matter, it placed great financial pressure upon him, forced him out of business as a builder and impacted upon his mental and physical health. They say that having regard to all the matters described at [30] of these reasons, Mr Russell and the company interpreted those matters “as a direct threat by QBCC and Darren Phillip” to place undue pressure on the company and Mr Russell both financially and emotionally and otherwise to force the company out of business, both irrespective of the merit of any of the claims.

33    QBCC says that because Mr Russell was not a director of the company, his state of mind is not relevant and QBCC is not in a position to plead to matters known only to Mr Russell.

34    The applicants say that the day after the directions hearing, Mr Russell and the company’s solicitor met with Mr Phillip during the course of which QBCC and Mr Phillip made representations, in trade or commerce, to the company and Mr Russell to this effect: the company and Mr Russell had “better come up with a settlement [because Mr Phillip] did not have time to spend with them”; if the company and Mr Russell did not “come up with a settlement” Mr Phillip would (para 25.2):

  (a)    “ruin” them;

  (b)    “come after” Scott Russell’s wife;

  (c)    “come after” the house owned by Scott Russell’s wife; and

(d)    by the time he was “finished” with Scott Russell, Scott Russell would “only be able to work as a supervisor for a construction company”;

(e)    make sure that [the company] lost its licence to undertake residential construction work;

(f)    force them through protracted and expensive litigation similar to the Cedric Russell Matter.

35    These statements are described as the “second May threats” (although the relevant date might be February 2018). QBCC does not admit any of the matters just described because after reasonable enquiry it remains unsure whether the matters are true or false and it denies that the representations, if made, were made in trade or commerce for the reasons earlier identified.

36    The applicants say that on 2 May 2016, QBCC and Mr Phillip demanded that the company and Mr Russell pay QBCC $130,000 within 30 days “or he would proceed to carry out the first May Threats and the second May Threats”.

37    QBCC says that it does not admit any such representation because, after reasonable enquiry, it remains unsure whether these matters are true or false. It says that by letter dated 25 May 2016, QBCC offered to settle the company’s liability (and that of Mr Russell under ss 71 and 111C of the QBCC Act) in respect of QBCC’s payment of $200,000 under the Home Warranty Scheme, for an amount of $130,000 to be paid within 30 days. It also says that the QBCC offer to settle was accepted by a letter dated 26 May 2016 from the solicitor for the company and Mr Russell to Mr Phillip of the QBCC.

38    The applicants say that by reason of the September demand, the first May threats, the second May threats and the reference to Mr Cedric Russell, Mr Scott Russell considered that “they” (the company and Mr Russell) had no alternative but to accede to the QBCC offer and agree to pay $130,000 to resolve the QCAT proceedings with the result that on 2 May 2016 the company, Mr Russell and his wife, entered into a settlement deed with QBCC pursuant to which the company and Mr Russell agreed to pay $130,000 within 30 days. The company paid that sum.

39    As to these matters, QBCC says that it does not admit the matters which go to the state of mind of Mr Russell. It denies that Mr Russell’s state of mind is relevant because he was not a director of the company at the time. It admits that the company, Mr Russell and his wife entered into a settlement deed for the payment of $130,000 to QBCC within 30 days. It says that the date of the document was 26 May 2016. It says that the payment was a joint and several liability of the company, Mr Russell and his wife.

40    Having regard to all of these matters, Mr Russell says at para 29 of the statement of claim that QBCC, by engaging in the conduct described as the September demand, the first May threats, the second May threats and the reference to the Cedric Russell matter, engaged in conduct, in trade or commerce, that was unconscionable within the meaning of s 21 or alternatively s 22 of the ACL.

41    Mr Russell says that QBCC and Mr Phillip were in a position of significant strength in terms of their bargaining position. He says that the pleaded matters were unnecessary to protect QBCC’s position. He says that by making the various threats and references, QBCC and Mr Phillip, exerted unfair pressure on the company and Mr Russell and used “unfair tactics to force a settlement”. He says that Mr Russell (and therefore the company), felt he had no alternative but to agree to the settlement. He says that by reason of the conduct of QBCC and Mr Phillip, the company and Mr Russell were denied an opportunity to have a fair hearing in relation to the Scope of Works and the decision before QCAT.

42    Mr Russell also says that by reason of the unconscionable conduct of QBCC and Mr Phillip, the company and Mr Russell suffered loss and damage measured by the difference between the position “they are in now and the position they would have been [in] had they not been forced into the settlement with QBCC”. He says that the $130,000 would not have been paid and the company would have received a final progress claim from the homeowners of $58,688.73. He says that the company’s licence was suspended because it could not meet the “minimum financial requirements” obligations of that licence which, in turn, resulted in other clients refusing to pay outstanding progress claims amounting to $180,000. These circumstances, in turn, resulted in the winding up of the company in insolvency. The total claims are said to amount to $4,295,812 according to the schedule to the statement of claim under the heading “Particulars of Damage”.

43    The second claim is characterised as conduct of QBCC and Mr Phillip amounting to “harassment and coercion” in contravention of s 50 of the ACL. The particulars of that matter are the same particulars of the conduct said to constitute the unconscionable conduct.

44    The third claim is characterised as “misfeasance in public office”. The applicants rely upon all of the conduct as described in the statement of claim and say this. QBCC and Mr Phillip acted in the course of their duties as public officers. They say that QBCC is a statutory corporation constituted under the QBCC Act responsible for the licensing and regulation of builders in Queensland. They say that Mr Phillip acted with authority to bind QBCC and that he was an agent of QBCC. They say that the acts (and knowledge) of Mr Phillip comprising the September demand, the reference to Cedric Russell, the first May threats and the second May threats are imputed to QBCC and are therefore the acts of QBCC. They say that all of these acts were a purported exercise of power that was invalid in the exercise of the public duties of QBCC. They say that those demands and threats and the reference to Cedric Russell were made “in bad faith and or with malice”. They say that this pleaded conduct of QBCC and Mr Phillip amounted to misfeasance in public office and the particulars of loss are the same particulars as already mentioned.

45    The first issue to note is that the originating application has been filed on the footing that Mr Russell would seek leave, nunc pro tunc, to bring the proceeding on behalf of or in the name of the company. That order is sought as an exercise of the inherent jurisdiction of the Federal Court of Australia. The solicitor for QBCC is Mr Seamus Monaghan. Mr Monaghan exhibits to his affidavit, sworn 15 February 2019, email exchanges with the liquidator of the company. In an email from an officer of the liquidator, the liquidator confirms that he has not consented to the proceedings and that the solicitor for Mr Russell does not act for the liquidator or the company.

46    Section 471B of the Corporations Act 2001 (Cth) (the “Act”) provides that while a company is being wound up in insolvency or by the court, a person cannot begin a proceeding in a court “in relation to property of the company”, except with the leave of the court and in accordance with such terms, if any, as the court imposes. Section 471B is more particularly, and usually, concerned with proceedings against the company or enforcement process in relation to the company and has the effect of preventing those proceedings from being taken or continued without leave. Section 474 of the Act deals with the custody and vesting of a company’s property. Section 477 of the Act deals with the powers of the liquidator. They are well known. They include the power to address and compromise “all questions in any way relating to or affecting the property or the winding up of the company, on such terms as are agreed” and they include the power to bring or defend any legal proceeding in the name and on behalf of the company. The power to take proceedings to recover a liability due, or asserted to be due, to the company is vested in the liquidator as an essential function of the insolvent administration of the company by the liquidator.

47    Where the company is a going concern, s 236 of the Act has a role to play.

48    Section 236 provides that a person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party, for the purpose of taking responsibility on behalf of the company for those proceedings, if the person is a member, former member or person entitled to be registered as a member of the company (or a related body corporate), or the person is an officer or former officer of the company, and the person is acting with leave granted by the Court under s 237 of the Act.

49    Section 237 provides for an application to the Court by a person with the relevant standing and sets out the criteria for leave. One aspect of the criteria is that it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them.

50    However, when the company is placed in the liquidation, those very special circumstances have been addressed by the Parliament in a way which, recognising the history of earlier legislation on the same topic, casts by s 477 of the Act, the administration of the company into the hands of a liquidator with full authority to decide the question of whether proceedings will or will not be taken, subject to particular considerations such as, for example, an application to the Court for directions or applications to the Court arising under s 477(2B). Once a liquidator is appointed, ss 236 and 237 have no role to play: Chahwan v Euphoric Pty Ltd (2008) 227 FLR 43, Tobias JA at [124] and [125], Beazley JA agreeing at [1], Bell JA agreeing at [2] to [8] (“Chahwan”).

51    In Chahwan, the Court of Appeal at [124](j) accepted that notwithstanding the statutory provisions, the inherent jurisdiction of the Court remains, together with the statutory provisions, such that the Court enjoys a jurisdiction to grant leave to a person to bring proceedings on behalf of a company under insolvent administration by a liquidator. The source of that jurisdiction is said to rest on “the same principle on which a man could always have filed a bill in the old Court of Chancery against his trustee to be allowed to use his name to recover the trust property”: Cape Bretton Co v Fenn (1881) 17 Ch D 198 at 207, Jessel MR. That position was the position adopted by McLelland J in Aliprandi v Griffith Vintners Pty Ltd (In Liq) (1991) 6 ACSR 250, at 251-253 (“Aliprandi”). Such procedure is said to be of “respectable antiquity” and “sanctioned by high authority”. See the authorities cited in Aliprandi at 252. McLelland J recognises that the procedure has the “disadvantage” that the conduct of litigation in the name of the company is, by reason of the exercise of this inherent jurisdiction (based on the old bill in equity), taken out of the hands, control and supervision of an officer of the Court in the form of the liquidator. This notion seems inconsistent with the modern statutory foundation for the powers, duties and responsibilities of a liquidator of an insolvent company. Nevertheless, an intermediate Court of Appeal has held that this jurisdiction sits comfortably with the statutory arrangements: Chahwan. Moreover, it can be invoked by a creditor: Chahwan.

52    If the jurisdiction relied upon is the inherent jurisdiction, anchored in authorities of respectable antiquity, the question that arises is how does that jurisdiction arise in the Federal Court of Australia as a matter of federal jurisdiction?

53    The Federal Court of Australia Act 1976 (Cth) creates the Court as a superior court of record and a court of law and equity. Thus, it is capable of determining questions of law and equity in matters in respect of which it is invested with jurisdiction. The original jurisdiction of the Federal Court is such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament: s 19(1). It also includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, or authorities, or tribunals other than courts: s 19(2). The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed: s 21(1).

54    Section 22 provides that the Court shall, in every matter before it, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

55    Section 23 provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

56    These provisions (apart from s 19 which simply recognises that the original jurisdiction is that vested in it by laws made by the Parliament), are not the source of jurisdiction. They go to the scope of the remedies and powers the Court might exercise or grant in a matter in which it is invested with jurisdiction. Importantly, s 39B(1A) of the Judiciary Act 1903 (Cth) provides that the original jurisdiction of the Federal Court includes, relevantly, jurisdiction “in any matter arising under laws made by the Parliament”.

57    In this proceeding, Mr Russell says that he has standing, as a creditor, to seek an order nunc pro tunc granting him the leave of the Court to bring and take responsibility for proceedings on behalf of the company in liquidation in insolvency, as an exercise of the Court’s inherent jurisdiction. Of course, the Federal Court is expressly invested with jurisdiction “with respect to civil matters arising under the Corporations legislation”: s 1337B of the Act. However, the Act does not expressly confer a statutory jurisdiction to seek the order now sought by Mr Russell. However, the company is the subject of a winding up order under the Act and in a state of insolvent administration by a liquidator appointed by the Court under the Act. The question of an order made in the exercise of an inherent jurisdiction, concerns “a matter arising” under the Corporations Act 2001 (Cth) as to the powers of the liquidator under the Act and the relationship between those powers and the extent to which they relate to and/or subsist coherently with a power to grant leave as an exercise of an inherent jurisdiction. The Court, seized of that matter, is seized of a matter arising under a Commonwealth Act which confers jurisdiction to determine that question.

58    In this proceeding, Mr Russell, seeking leave as he does, seeks to maintain a proceeding on behalf of the company in which a remedy is sought under the Australian Consumer Law which, of course, is a schedule to, and given force by, Part XI of the Competition and Consumer Act 2010 (Cth). The questions alive in these interlocutory applications involve matters arising under that Act. Of course, that Act also invests the Federal Court with jurisdiction “in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part”: s 86(1), Competition and Consumer Act 2010 (Cth).

59    I am satisfied that the question of whether leave nunc pro tunc is to be granted as an expression of the Court’s inherent jurisdiction is a matter which falls within the Court’s jurisdiction as conferred by s 39B(1A) of the Judiciary Act and is a question incidental to matters the subject of jurisdiction under the Corporations Act and the Competition and Consumer Act.

60    The next question which arises is whether the conduct complained of involves a sufficiently arguable contravention of provisions of the Australian Consumer Law. As to those matters, it is common ground between the parties, that the ACL is the subject of an application of laws provision enacted by the State of Queensland. Section 24 of the Fair Trading Act 1989 (Qld) provides that the ACL applies to the State of Queensland so far as the State carries on a business either directly or by an authority of the State. Accordingly, the provisions of the Australian Consumer Law, as a Commonwealth enactment, will apply to the State of Queensland only to the extent that it carries on a business either directly or by an authority of the State of Queensland. Thus, the ACL will only apply to QBCC (and its employees) to the extent that it carries on a business. Importantly however, the question is whether the conduct identified by Mr Russell is conduct which has occurred in the course of carrying on a business.

61    The parties also agree that the principles identified by Croft J in Murphy v State of Victoria & Another (No 2) [2014] VSC 404 (“Murphy”) concerning the phrase “carries on a business” in the context of a statutory provision in virtually identical terms to s 24 of the Fair Trading Act 1989 (Qld), have application to the questions presently in issue. Three principles derive from the observations of Croft J. The first is that the focus of the analysis “must be on the impugned conduct: the impugned conduct must be engaged in, in the course of carrying no the business”: Murphy at [43]. The second principle is that it is not sufficient that the conduct “be connected in some way with a business to be conducted by the State at some time in the future”: Murphy at [45]. The third is that “the activity in the course of which the impugned conduct occurs must properly be characterised as ‘carrying on a business’”: Murphy at [50].

62    In the course of oral submissions, Mr Ivantsoff, for Mr Russell, accepted the relevance and application of these principles identified by Croft J (as quoted by counsel for QBCC in the written submissions). The following observations of Croft J in Murphy at [51] should be noted (citations omitted):

51.    Nevertheless, the meaning of the term “business” is not unlimited or at large having regard to numerous authorities in which the courts have considered whether activities asserted to be carrying on a business can be described as such. In my view, the following propositions which the State submits emerge from the decided cases are both accurately stated and relevant and applicable in the present context.

(a)    For activities to constitute “carrying on a business”, the activities must be undertaken in a commercial enterprise or as a going concern. The activities must constitute trade or commercial transactions or engagements. A business activity is an activity which takes place in a business context and which, of itself, bears a business character.

(b)    The expression “carry on a business” signifies a course of conduct involving the performance of a succession of acts with system and regularity, not the effecting of a solitary transaction. The less commercial the character and objectives of an organisation, the greater the degree of system and regularity required to establish that it carries on a business.

(c)    On the other hand, mere repetitiveness is insufficient. It does not necessarily follow that one who engages in transactions of the same kind systematically or regularly is carrying on a business in those transactions (eg regular deposits into a bank account). Absence of a system and regularity might deny that a business is being carried on but their presence does not necessarily establish that it is.

(d)    There is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of a business. To carry on some part of “the business of government” is something different from carrying on a business in the relevant sense.

(e)    The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business.

(f)    There must be present some element of commerce or trade such as a private citizen or trader might undertake.

[emphasis added]

63    In this case, Mr Russell says that QBCC is carrying on a business notwithstanding that it is a statutory body corporate established under the QBCC Act. The objects of the Act are these:

  (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.

64    Subject to s 4C, s 4B provides that the Act binds all persons, including the State and, so far as the legislative power of the (Queensland) Parliament permits, the Commonwealth and the other States. The QBCC is established by s 5 of the Act. The QBCC consists of a Board and a Commissioner. The functions of the QBCC are: to administer the Act and further its objects; and any function given to it under another Act: s 7. The powers of the QBCC are these:

(1)    The commission has all the powers of an individual and may, for example –

(a)    enter into contracts or agreements; and

(b)    acquire, hold, deal with and dispose of, property; and

(c)    employ staff; and

(d)    appoint agents and attorneys; and

(e)    engage consultants; and

(f)    charge a fee for services and other facilities it supplies; and

(g)    do anything else necessary or convenient to be done for its functions.

(2)    Without limiting subsection (1), the commission has the powers given to it under an Act.

65    By s 9, the Minister may give the QBCC a written direction in relation to it and its functions and the Commission must comply with the direction. The functions of the Board are set out at s 11 of the Act. By s 20D, the Commission must have a Commissioner. The role of the Commissioner is set out at s 20J. The Commissioner is responsible for, among other things, the overall management of the organisational unit under the control of the Commissioner; the administration of the licensing system established by the QBCC Act; the administration of a system of inspection; issuing directions for rectification of building work under the QBCC Act; taking disciplinary and other proceedings.

66    Section 21 provides that there is to be an insurance manager of the Commission. The insurance manager must report regularly to the Board of the QBCC on the administration of the statutory insurance scheme: s 22. By s 26, a fund called the “Insurance Fund” is established. The fund consists of, among other things, all monies received or recovered by the QBCC in connection with the statutory insurance scheme. The QBCC must ensure that the statutory insurance scheme is managed in accordance with actuarially sustainable principles so that the amounts paid into the Insurance Fund will be sufficient to satisfy the amounts to be paid from the fund under s 26(3): s 26A.

67    Part 3, Division 1 of the Act, deals with the topic of licensing and the various classes of licences that may be issued.

68    Part 5 of the Act deals with the topic of the statutory insurance scheme. Section 67X provides that a statutory insurance scheme is to operate under the name Queensland Home Warranty Scheme (or some other name as might be prescribed). Section 67Y contains statutory prohibitions upon conduct in connection with selling the right to participate in any warranty or insurance scheme by that or a similar name, unless the scheme is that to which the Act relates and the person does so on behalf of QBCC. Section 68 provides that the appropriate insurance premium payable under s 68D for residential construction work must be paid to the QBCC by the licensed contractor if s 68B applies; and if s 68C applies, it must be paid by the construction manager who holds a contractor’s licence of the relevant class.

69    Sections 68A, 68B and 68C deal with aspects of those matters.

70    Section 68D provides for the setting of insurance premiums for residential construction work.

71    Section 69 provides that when the QBCC accepts the appropriate insurance premium in respect of residential construction work, the QBCC must issue a certificate of insurance in respect of the residential construction work. Section 69 then addresses aspects of when a policy of insurance comes into force.

72    Section 69A also addresses the topic of the commencement of insurance cover.

73    Section 70 provides that a person claiming to be entitled to indemnity under the scheme must give notice of the claim to the QBCC in accordance with the Regulations.

74    Section 70A addresses the topic of persons not entitled to indemnity under the statutory insurance scheme.

75    Section 71 provides that if the QBCC makes any payment on a claim under the scheme, it may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction was, or was to be, carried out or any other person through whose fault the claim arose.

76    Section 71AA addresses the topic of the cancellation of a policy of insurance.

77    Section 71AB provides that in deciding any action to be taken in relation to a licensee’s licence, the QBCC must not have regard to the implications for the statutory insurance scheme.

78    Section 86 identifies the range of decisions which are “reviewable decisions” and s 86A identifies who may apply for an internal review. Subdivision (1) of Division 3 of Part 6 provides for external review. Section 86F identifies decisions which are not reviewable decisions.

79    Section 111C addresses the topic of the liability of directors in relation to convictions of an offence against a provision of the QBCC Act and in relation to penalties imposed.

80    Section 114 provides that neither the State, the QBCC nor a relevant officer of the QBCC “incurs any civil liability for an honest act or omission other than a publication act, in the performance or purported performance of functions under this Act or the Building Act 1975”. The term “publication act” has the definition recited in s 114(5).

81    Mr Russell says that QBCC is carrying on an insurance business notwithstanding that the source of the authority and obligation to do so is contained in the QBCC Act. Mr Russell says that the Queensland Home Warranty Scheme (the statutory insurance scheme) is the subject of a product disclosure document which says that the QBCC administers a home warranty scheme to provide insurance cover for homes in Queensland under which licensed contractors must collect premiums on behalf of the consumer and pay the premium to QBCC in relation to specified residential work carried out. The scheme is described as a “not for profit” scheme and is “self-funded through the payment of premiums”. It says that the scheme covers consumers for loss suffered if a contractor (or an individual where fraud or certain representations are made) fails to complete a contract for residential work or fails to rectify defective work. It says that assistance is also provided in specific circumstances for loss associated with incomplete work which has been damaged by fire or storm, vandalism or theft. The document then describes a range of features of the scheme.

82    The insurance terms are set out at pp 83-129 of Exhibit SR-1 to Mr Russell’s affidavit filed 11 March 2019.

83    The premium table for the insurance scheme for the construction of a new residence is set out at pp 131-141 of SR-1. The premiums are calculated by reference to the value of the work commencing at $3,300 ranging up to $2,999,000. For work to the value of $3 million or greater there is a premium ($19,630.30 in the example). For work to a value greater than $3 million the premium is that premium plus an amount for every $1,000 above $3 million. The premium table for renovations, alterations, additions, repairs or extensions is set out at pp 142-152 in a similar way (with, obviously enough, different amounts). The premium table for optional additional cover is set out at pp 153-162 of SR-1 in a similar fashion.

84    The Annual Report of QBCC to 30 June 2016 commences at p 163 of SR-1. It sets out a range of statistics about insurance claim approvals, response times and other matters typical of the management and operation of an insurance scheme. The operating result for the year ending 30 June 2016 is set out at p 241 of SR-1 and it shows that premium revenue was $77.7 million. Reinsurance and other recoveries revenue was $77.4 million. Outward reinsurance expenses/premiums were $51.3 million. Licence revenue was $32.6 million. The overall operating result was $10.9 million. The premium revenue in the year ending 30 June 2015 was $76.4 million and reinsurance and recoveries revenue was $27.7 million. Outward reinsurance expenses were $58.8 million.

85    As to the year ending 30 June 2017, premium revenue was $84.4 million and reinsurance and other recoveries revenue was $75 million. Outward reinsurance expenses were $44.7 million. Claims approved and charged were $60.8 million. Licence revenue was $35.5 million. The overall operating result for continuing operations was $14.3 million. At p 391 of SR-1 which is part of the Annual Report for 2017, the QBCC describes its principal activities as licensing, dispute resolution, home warranty insurance and compliance and enforcement. It says that its “supporting business activities” are education and awareness campaigns and payment and dispute resolution. The Annual Report for the year ending 30 June 2018 sets out a similar scope of financial activities with the relevant changes according to that year’s financial performance.

86    The point of all this is that Mr Russell says that QBCC is, on any view of the matter, carrying on a significant and substantial insurance undertaking with major premium income and related expenses. He says that QBCC is, on any view of the matter, carrying on a business notwithstanding that it does so under a statutory obligation. I am willing to accept, for present purposes, that QBCC, so far as the statutory insurance scheme is concerned, is carrying on a business in that aspect of its activities.

87    The fundamental difficulty for Mr Russell in seeking to bring this proceeding on behalf of the company is that the impugned conduct, as pleaded, did not occur in the course of the QBCC conducting its insurance activities. If, for example, the impugned conduct had consisted of representations as to the scope of the cover; the nature of a “defect”; the scope of the exclusions or limitations under the policy; when the cover would come into force; the scope of entitlements under the policy; whether the policy would “respond” in particular circumstances; or other representations as to one or more of the conditions at pp 85-129 of SR-1, the impugned conduct would then engage the “business activities” of the statutory insurance undertaking with the result that the ACL (the Commonwealth Act) would then apply to that conduct concerning those activities. The question would then be whether, according to the terms of the provisions then applying and said to be contravened, an arguable contravention is made out on the face of the pleading.

88    As to the provisions, Mr Russell seeks to bring a claim on behalf of the company as a claimant said to have suffered loss or damage because of the conduct of QBCC in circumstances where the conduct contravenes a provision of Chapter 2 or 3: s 236, ACL. Mr Russell says that s 21 of the ACL is contravened and it provides that a person must not, in trade or commerce, in connection with the supply or possible supply of services to a person or the acquisition or possible acquisition of services from a person engage in conduct that is, in all the circumstances, unconscionable. Section 22 of the ACL sets out relevant matters to be taken into account in determining whether a contravention of s 21 arises. Mr Russell also says that a contravention of s 50 of the ACL has arisen. That provision contains a prohibition upon use of physical force, undue harassment or coercion by a person in connection with the supply of services. The definition of services includes any “rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce”: s 2(a). Section 2(b) provides that services include a contract of insurance.

89    It can be seen therefore that in relation to the claims based upon s 21 and s 22 of the ACL, the impugned conduct must occur in “trade or commerce”.

90    Having regard to all of the factual matters pleaded, I am not satisfied that the impugned conduct has occurred in the course of the business activities of QBCC or, in the course of trade or commerce. The activities pleaded have occurred in the course of the regulatory functions of QBCC and in connection with the recovery from the company of monies paid by QBCC to the homeowners.

91    In determining whether leave is to be given in the inherent jurisdiction of the Court to Mr Russell to bring the proceedings, I am not satisfied that the causes of action are arguably raised. Moreover, the liquidator has not consented to the proceedings. Further, there is no material which demonstrates that the financial responsibilities for the conduct of the proceeding by Mr Russell can be discharged by him.

92    For all these reasons, the application for leave to bring the proceedings is refused and the proceeding is to be dismissed with costs.

Associate:

Dated:    26 August 2019