Sometimes Form is a Matter of Substance

Iris Broadbeach Business Pty Ltd V Descon Group Australia Pty Ltd & Anor [2023] QSC 290

Introduction

1. In Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290, the court was asked to consider, in detail, the mechanism contained in s.79 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) which, if correctly engaged, commences the process of the adjudication of a disputed claim. The respondent before the court was Descon Group Australia Pty Ltd (Descon), being the claimant under the BIF Act. The successful applicant before the court was Iris Broadbeach Business Pty Ltd (Iris), being the respondent to the BIF claim.
2. There are two ways in which a claimant can lodge an application for adjudication of a payment claim pursuant to the BIF Act; electronically, via the Queensland Building and Construction Commission’s (QBCC) website, or physically, at the registry of the QBCC.
3. Whichever method is adopted, s. 79(2)(a) of the BIF Act requires an adjudication application to be accompanied by the “approved form” and s. 79(3) of the BIF Act requires a copy of the “adjudication application” – including a copy of the “approved form” – to be given to the respondent. The courts have long held that a claimant must strictly comply with the requirements of s.79(2) and (3) to avail itself of the rights which are then available under the legislation.[1]
4. The “approved form” is a template document. It provides details of, for example, the identity of the applicant and the respondent, the contract in dispute and details of the payment claim in respect of which the applicant seeks adjudication.
5. If a claimant elects to lodge an application for an adjudication physically, at the registry of the QBCC, there is a “manual copy” of the “approved form” to be completed by the applicant, and submitted with its adjudication application.
6. However, if a claimant elects to lodge an application for adjudication application online, using the QBCC’s website, the applicant is directed to fill out information regarding their application via an online “portal”. The process mirrors the type of information that would be provided if the applicant had elected to complete the “manual copy” of the “approved form”.
7. At the completion of lodgement of an adjudication application online, the applicant is sent (via email from the QBCC) an automatically generated form, entitled “electronic adjudication application”, hereafter the “PDF Form”. The PDF Form includes details of some, but not all, of the information that the applicant submitted when lodging the adjudication application via the online portal.
8. Two of the key issues in dispute[2] in Iris were (a) whether the PDF Form was the, or an, “approved form” for the purposes of s. 79(2)(a) of the BIF Act and, (b) whether the Respondent  had satisfied s. 79(3) of the BIF Act when it served the Applicant  with a copy of the PDF Form, as a part of its purported service of an adjudication application.
9. Justice Williams answered both of those in the negative. The consequence of this finding is that (at least at the time of judgment) the PDF Form which an applicant receives electronically from the QBCC via email after the filing of an adjudication application online is not the “approved form” referred to in s. 79(2)(a) of the BIF Act, nor does the giving of the that document to a respondent satisfy the requirements of s. 79(3) of the BIF Act.  

Why the Online Form was not the “approved form” referred to in s. 79(2)(a) of the BIF Act

10. Descon contended that the PDF Form was an approved form within the meaning of s. 79(2)(a) of the BIF Act. Descon identified that the PDF Form was entitled “electronic adjudication application – s. 79 & s. 198”. The reference to “s. 79” was taken to be a reference to the BIF Act. The reference to “s. 198” was taken to be a reference to s. 198 of the BIF Act, which provision is entitled “Approved Form” and provides, inter alia, that “the chief executive or commissioner may approve forms for use under this Act”. Descon also identified that the PDF Form included much of the information that it had submitted when lodging its adjudication application via the QBCC’s online portal.
11. Justice Williams considered sections 48 and 48A of the Acts Interpretation Act 1954 (Qld) with respect to Descon’s contentions. Relevantly, those provisions provide that “the approval or availability under an authorising law of a form, or a new version of a form, must be notified in the gazette on a relevant website” (s. 48(5)) and “if a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient (s. 48A)). Descon contended that the “deeming provision” in s. 48A of the Acts Interpretation Act 1954 (Qld) in respect of substantial compliance is not displaced by the language of the BIF Act, when regard is had to the purpose of the BIF Act.
12. Justice Williams noted that there are no gazetted forms under the BIF Act, although there had been under the previous acts.[3] Accordingly, it was necessary for her Honour to consider both the “manual form” (i.e. the form an applicant would lodge with the QBCC registry in person) and the PDF Form. There were significant differences between the two, discussed in more detail below. For the present discussion, it was noteworthy that the PDF Form is only available as completed for a particular application and is not otherwise available on the QBCC’s website in generic format.
13. Justice Williams found that:

(a) s. 79(1) of the BIF Act defines an “adjudication application” to be a claimant’s application to the registrar for adjudication of a payment claim. Subparagraph (a) requires that the application be in the approved form (at [54] and [55]);

(b) the “approved form” is, therefore, the form approved for the purpose of a claimant applying to the registrar for an adjudication of a payment claim. That is the document which the claimant lodges, either electronically or in hardcopy (at [57]);

(c) logically, the “approved form” could not be a document provided by the QBCC after lodgement of an adjudication application (i.e. the PDF Form), because it is the adjudication application itself which is to be in the approved form, not a document created after submission of the adjudication application (at [58]); and

(d) Descon’s reliance upon s. 48A of the Acts Interpretation Act 1954 (Qld) had the result that there would potentially be multiple approved forms in existence at the same time – the PDF Form and the “approved form” (at [84]).

14. As such, the PDF Form was not the “approved form” for the purposes of s. 79(2)(a) of the BIF Act. This, however, was not the end of the argument. A question remained as to whether Descon nevertheless satisfied s. 79(3) of the BIF Act (i.e. the requirement to “give” a copy of the adjudication application to the respondent) by giving Iris a copy of the PDF Form.

Why the giving of the PDF Form did not satisfy s. 79(3) of the BIF Act

15. Iris contended that it was not given a copy of the adjudication application lodged by Descon with the QBCC, but some other document – being the PDF Form. Therefore, s. 79(3) of the BIF Act had not been complied with because that provision requires the “giving” of a copy of the document actually lodged.
16. The PDF Form was not a “copy” of the document actually submitted by Descon because there were several differences between that Form and the information submitted by Iris, when lodging its adjudication application online via the QBCC’s online portal. Specifically, the PDF Form appeared to be a subset or summary of the information actually provided by Descon when submitting its adjudication application via the online portal because:

(a) the PDF Form did not identify the supporting documentation relied upon in support of the adjudication application, whereas this information was identified by Descon when lodging its adjudication online (see [76(a)];

(b) the PDF Form did not include the information in respect of “Adjudicator Fees”, including the fees that may be payable to the nominated adjudicator, whereas this information was included as a part of Descon’s online adjudication application (see [76(b)]); and

(c) the PDF Form did not include a declaration that is required to be completed by a person when lodging an adjudication application online. The declaration requires the person lodging the adjudication application to declare that they have read and understood the application form and the attachments, that the application must be made within the prescribed timeframes and that they “must give a full copy of this application to the respondent” (see [76(c)]).

17. Iris submitted that these differences were not trivial, but substantive (for the reasons why, see [77]). Descon, on the other hand, contended that the differences were trivial and that the PDF Form was an approved form (for the reasons why, see [81]).
18. Justice Williams found that Descon’s submission can only be understood on the basis that if the PDF Form is not the approved form, it is an approved form, thereby complying with s. 79(2)(a) of the BIF Act (at [83]). Justice Williams found that the difficulty with this argument (see above) is that it would result in there being multiple “approved” forms in existence at the same time, each with different content. Moreover, the PDF Form lacked precision in material respects, which is inconsistent with a statutory regime that demands the need for precision (see [84]).
19. Ultimately, Justice Williams found that the PDF Form was not a copy of the adjudication application that Descon had lodged with the QBCC registry, and it therefore did not satisfy s. 79(3) of the BIF Act when it gave to Iris the PDF Form only (see [85] to [89] and [98]).
20. For these reasons, Justice Williams found[4] that because Descon had not satisfied s. 79(3) of the BIF Act, the adjudicator did not have jurisdiction to decide the adjudication application. The adjudicator’s decision was therefore declared void and set aside.[5]

[1] See the cases referenced in the Decision at [66]-[69].

[2] The court was also asked to determine the factual dispute as to when service of the purported adjudication application took place, and whether the payment claim satisfied the requirements of s.69(1)(a) of the BIF Act.

[3] The transitional provisions of the BIF Act did not result in the previously gazetted forms as being relevant to the BIF Act (see [41]).

[4] On the parties’ agreement as to the consequence.

[5] Each of the matters stated in this article were, to the best of the Applicant’s knowledge, correct at the time of hearing of the proceeding the subject of this article. Procedures and processes may have changed since the publication of judgment in the proceeding.