Andrew Orford (read my bio) and Lauren Crome conclude, from their analysis of this recent decision that, the Queensland Court of Appeal confirms that a broad and practical approach is to be applied in determining whether work is excluded from the operation of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
Monadelphous Engineering Pty Ltd and Muhibbah Construction Pty Ltd (appellants) entered into a contract with Wiggins Island Coal Export Terminal Pty Ltd (respondent) for the construction of a jetty and a wharf (contract).
In the initial trial court, the appellants argued that the contract was a 'building contract' falling within the ambit of the QBCC Act, with the consequence that the respondent was required by the QBCC Act to give notice of its intention to call on bank guarantees. The judge dismissed the claim on the basis that the temporary works to assist in the construction of the jetty and wharf, which the appellants alleged were building work, was work excluded from the operation of the QBCC Act.
On appeal, the appellants argued:
- a temporal requirement had been imposed on the operation of statutory provisions which was not present in the legislation;
- considering the closeness of the relationship between the temporary works and the construction of the jetty and wharf was an error; and
- one of the exclusions relied upon to bring the work outside the QBCC Act only operated in respect to work undertaken on the maritime structure itself, not to work physically separate from the structure.
The appeal was dismissed with costs.
Applegarth J gave the leading judgment with Holmes CJ and Boddice J concurring as to the reasons given and the order made.
His Honour found that:
- looking at the temporary character of the works and the closeness of the relationship between the works and the construction of an item (such as a jetty) was appropriate and practical. 'The 'temporary' character of structures which are erected simply for the purpose of carrying out the construction and which will not endure beyond the performance of the contract' is a factor pointing to the closeness of the relationship; and
- the appellants' insistence that work had to be on the maritime structure was a narrow construction of that exclusion and was inconsistent with a broad and practical interpretation. 'The fact that part of the work of constructing a maritime structure occurs on land, and is undertaken in an area physically separate from the maritime structure that is constructed does not necessarily prevent the work from being part of the construction of the maritime structure' and therefore excluded from the QBCC Act.