The superintendent's authority to issue a payment schedule

With Government departments relying on external consultants to superintend construction contracts, it is important to understand how the Government can be bound by the actions of its consultant under the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act).

The Government entity that has entered a contract for construction work in Queensland, upon receiving a claim for a progress payment from a contractor under the BIF Act, is required to respond with a payment schedule, setting out the amount that the Government entity intends to pay, and if it is less than the amount claimed, the reasons for why it is less.

This obligation to provide a payment schedule is often outsourced to an appointed superintendent on a project. The construction contract, which the payment schedule is issued under, often includes a provision that deems the superintendent’s payment certificate to be the principal’s payment schedule for the purposes of the BIF Act. This is usually for the protection of the principal so that it is not exposed to the risks of not submitting a payment schedule under the BIF Act.

That said, there can be circumstances where the principal to the contract wishes to issue their own payment schedule under the BIF Act, be it that the principal does not agree with the position taken by the superintendent or to ensure that all reasons for withholding payment are covered in the payment schedule so that it is not barred from raising those reasons in an adjudication response under the BIF Act.

If this is the case, what happens when the superintendent and principal both issue a payment schedule?

In the case of RHG Construction Fitout and Maintenance Pty Ltd v Kangaroo Point Developments [2021] QCA 117, it was held by the Queensland Court of Appeal that where the contract deems that the superintendent’s payment certificate is the principal’s payment schedule for the purposes of the BIF Act, and the contract provides no authority or power to the principal to withdraw that agency under the contract, the superintendent’s payment certificate will be the payment schedule. This will be the case even if the principal issues their own payment schedule first and within the time allowed by the BIF Act, and advises the contractor in advance that its payment schedule (and not the superintendent’s payment certificate) will be the payment schedule for the purpose of the BIF Act. This can leave the principal exposed if the consultant fails to complete and issue a payment certificate with due care and skill, identifying all reasons for withholding payment. It also can leave the principal exposed if the principal disagrees with the superintendent’s certification of particular items claimed.

The simplest way to avoid this vulnerability is to simply amend the contract to give the government principal the power to revoke the superintendent’s authority to issue a payment schedule for the purposes of the BIF Act.

In the media

New laws to make pandemic practices permanent in Queensland New legislation is to see some temporary measures that were put in place during the COVID-19 pandemic made permanent. The Justice and Other Legislation Amendment Bill 2021 embeds measures that have supported small businesses and benefited the community, including modernising the way important legal documents are made (23 November 2021). More...

Auditor updates agencies’ self-progress The Queensland Audit Office has released an update on Government entities’ self-assessed progress in implementing the performance audit recommendations made to them between 2015 and 2018. The most common types of recommendations entities failed to implement were those related to performance monitoring and reporting, governance and strategic planning (23 November 2021). More...

In practice and courts

Queensland

CCC Publication: Privacy 2 November 2021 - The purpose of this policy is to outline the responsibilities of the CCC under the Information Privacy Policy 2009.

OIC Qld Submissions Submission to the Economics and Governance Committee November 23, 2021 - the Brisbane Olympic and Paralympic Games Arrangements Bill 2021.

OIC Queensland Decisions – 22 November 2021 U24 and Brisbane City Council [2021] QICmr 61 (22 November 2021) | Office of the Information Commissioner Queensland G42 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 62 (22 November 2021) | Office of the Information Commissioner Queensland

Department of Justice and Attorney-General: QTranscripts - A secure system for requesting transcripts The Department of Justice and Attorney-General is moving to a new way of delivering recording and transcription services across Queensland Courts and Tribunals in 2022. For further information and instructions on use, please refer to the attached December 2021.

Queensland Courts Practice Directions Magistrates Court practice direction 1 of 2014 - Amended 26 Nov 2021 Clarify the permitted use of electronic devices and taking of photographs and video footage in courtrooms. Magistrates Court practice direction 4 of 2021 26 Nov 2021 Facilitate the operation of the Queensland Intermediary Scheme Pilot Program.

Department of the Premier and Cabinet Consultation - Annual report 2020-21 Feedback survey open until 31 July 2022. By taking a minute to complete this survey, you will help us improve our annual reports so readers can use them more effectively.

Queensland Sentencing and Advisory Council: Serious violent offences scheme review We are reviewing the serious violent offences scheme in the Penalties and Sentences Act 1992 in response to Terms of Reference issued to us in early April 2021. Findings and recommendations are to be reported by 11 April 2022. Read the Terms of Reference which describe the scope for our review. Terms of Reference Submissions close on 17 December 2021. More...

Published - articles, papers, reports

Gender Balance on Australian Government Boards Report 2020-21 PMC Office for WomenLeadership: 03 December 2021 The Gender Balance on Australian Government Boards Report is prepared annually by the Office for Women, and reports on the Government’s performance against its gender diversity target. Click here to read more.

Cases

Young v Crime and Corruption Commission [2021] QCA 256Mr Young had alleged that the respondent failed to respond appropriately to a series of complaints which he made to the respondent about the Gold Coast City Council which employed him for nearly 10 years until May 2005 when he was summarily dismissed. He pleaded that his complaints of misconduct and offences by the Council’s employees were not properly investigated by the respondent.

O’Gorman v Somerset Regional Council [2021] QCAT 408Administrative law – Administrative Tribunals – Queensland Civil & Administrative Tribunal – animals – dangerous dog – where unprovoked attack causing bodily harm – where bodily harm constituted wounds to the victim’s legs – where dangerous dog declaration made – whether the attack was by the applicant’s dog – where there is a dispute about an attack – where there is different versions of what occurred.

Storry v Office of Fair Trading [2021] QCA 255ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Office of Fair Trading made four separate directions concerning the freezing of certain trust accounts and the appointment of a receiver – where the proceeding arose out of the affairs of a real estate agency of which the applicant’s father was the principal and which was subsequently taken over by the applicant – where it emerged during the hearing that the receivership over the applicant’s own account had ended – where the point of the proceeding appears to be personal vindication – where a person is seeking to agitate the correctness of an administrative decision for the third time, something special must be shown to justify such a course – where it is material to notice that, as Boddice J observed in his reasons, when he dismissed the application for judicial review, that the applicant had previously commenced and then abandoned proceedings for judicial review – where this is, therefore, actually an attempt by the applicant to relitigate the propriety of these decisions for the sixth time – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 Qld s 150.

Legislation

Commonwealth

Bills

Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting and the Robson Rotation) Bill 202103 December 2021 – A Bill for an Act to amend the law relating to elections in respect of ballot papers and to provide for optional preferential voting and ensure voter choice.

Illegal Detention of Australian Journalists (Free Julian Assange) Bill 2021House of Representatives Introduced and read a first time 29 November 2021 Discharged from Notice Paper : In accordance with House Standing Order 116(a) 29 November 2021 The Bill seeks to clearly define ‘journalism’ to include conduct engaged in the regular course of legitimate journalism, such as publishing and passively receiving information. This includes conduct engaged in for the purpose of journalistic activity that would not be subject to an offence in Australia.

Crimes Amendment (Remissions of Sentences) Bill 2021Finally passed both Houses 01 Dec 2021 Amends the Crimes Act 1918 to: Repeal section 19AA which applies remissions or reductions under stat or territory laws to federal sentences; and make consequential amendments. The repeal of section 19AA of the Crimes Act is necessary in order to address the significant risks to community safety as a result of remissions, known as emergency management days, being granted in high numbers to federal offenders under Victorian laws since the beginning of the COVID-19 pandemic.

Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021Finally passed both Houses 02 Dec 2021 Amends the Commonwealth Electoral Act 1918 to: Extend the application of the foreign donations framework to current sitting members of the House of Representatives and Senators; require members of the House of Representatives and Senators who receive gifts for the purpose of incurring electoral expenditure or creating or communicating electoral matter to lodge an annual return with the Australian Electoral Commission; and extend the period for which a person is taken to be a candidate by an additional six months for the purpose of the disclosure period for candidate and Senate group returns and for restrictions on receiving foreign donations.

Electoral Legislation Amendment (Contingency Measures) Bill 2021Finally passed both Houses 02 Dec 2021 Amends the Commonwealth Electoral Act 1918 to: Implement certain recommendations of the Joint Standing Committee on Electoral Matters' Report of the inquiry on the future conduct of elections operating during times of emergency situations by enabling the Electoral Commissioner to make limited operational modifications by legislative instrument where an emergency declaration has been issued under a Commonwealth law and moving the existing power to adjourn or suspend polling at a polling place or pre-poll voting office from local polling booth presiding officers to the Electoral Commissioner; delay the commencement of the scrutiny for a House of Representatives election for a Division where polling has been adjourned or temporarily suspended; prevent scrutineers and Australian Electoral Commission officers from disclosing the results of a Senate election in a Division where polling has been adjourned; and make minor amendments in relation to the cut-off date for postal vote applications and the format of postal vote certificates.

Electoral Legislation Amendment (Candidate Eligibility) Bill 2021Registered 29 Nov 2021 Introduced HR 25 Nov 2021 A Bill for an Act to amend the law relating to elections in respect of the checklist for nomination of candidates - Schedule 1 amends Part XIV of the Electoral Act, and Form DB of Schedule 1, to simplify the Qualification Checklist and to clarify when a response to a question is mandatory. The Qualification Checklist is also more streamlined with fewer questions.

Autonomous Sanctions Amendment (Thematic Sanctions) Bill 2021Senate 24 November 2021 - The Bill makes clear that autonomous sanctions regimes, established under the Autonomous Sanctions Regulations 2011 (the Regulations), can be either country-specific or thematic

Act compilation

Independent National Security Legislation Monitor Act 201030/11/2021 - Act No. 32 of 2010 as amended

Australian Human Rights Commission Act 198622/11/2021 - Act No. 125 of 1986 as amended

Regulations

Competition and Consumer Amendment (Consumer Data Right) Regulations 202130/11/2021 - This instrument amends the Competition and Consumer Regulations 2010 to exempt the Australian Energy Market Operator (AEMO) from four privacy safeguard obligations, and in circumstances where AEMO provides Consumer Data Right data to a retailer.

Queensland

Acts No 23 Justice and Other Legislation Amendment Act 2021 24/11/2021

Subordinate legislation as made – 03 December 2021 No 169 Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 4) 2021 No 171 COVID-19 Emergency Response and Other Legislation Amendment (Postponement) Regulation 2021