In brief - Always consider public holidays when calculating time limits

To ensure compliance with BCIPA, claimants and respondents should consider all possible relevant public holidays - regardless of region - when calculating time limits for making and responding to claims and adjudication applications.

Different regional holidays can cause confusion and uncertainty

The Building and Construction Industry Payments Act 2004 imposes strict time limits for making and responding to payment claims and adjudication applications. Failure to comply with these time limits can have serious consequences for both claimants and respondents.

The time limits are measured in "business days", which naturally do not include public holidays.

However, different regions in Queensland often have different public holidays and this can cause significant confusion and uncertainty when calculating time limits under BCIPA.

For example, this year the Brisbane Ekka Day holiday was on 13 August, whereas the Gold Coast Annual Show holiday was on 29 August. If a Gold Coast builder sends a payment claim under BCIPA to the principal's office in Brisbane, which public holiday should be used for calculating the 10 business day period which the principal has to respond?

Unhelpful definition of "business day" in BCIPA

The definition of "business day" in BCIPA incorporates the definition in the Acts Interpretation Act 1954 (Qld) (AIA), which says in Schedule 1 that "business day" does not include a public holiday "in the place in which any relevant act is to be or may be done".

So, in the AIA definition, is the "place in which any relevant act is to be or may be done" the place where the payment claim was sent or received?

Neither BCIPA nor the AIA offer any guidance on this question.

Baulderstone Queensland Pty Ltd v Civelec Pty Ltd

One authority which has dealt with this question is the unreported decision of the Queensland Supreme Court inBaulderstone Queensland Pty Ltd v Civelec Pty Ltd.

In that case, a Gold Coast-based subcontractor served an adjudication application on a Brisbane-based head contractor and lodged the application with a Brisbane-based adjudicator nominating authority. The subcontractor had 10 business days from when the head contractor had served its payment schedule to file the adjudication application.

The Gold Coast show holiday was a few days after the head contractor had served its payment schedule and the subcontractor did not count it as a business day when calculating how long it had to file the application.

The head contractor considered that the Gold Coast holiday was not a relevant public holiday and applied to the court for an order declaring that the adjudication application was served late.

The court had to decide whether the Gold Coast holiday was a public holiday in the "place in which any relevant act is to be or may be done".

"Relevant act" deemed to be preparation of adjudication application

The head contractor argued that the "relevant act" was either the service of the adjudication application on the head contractor, or the lodgement of the adjudication application with the adjudicator nominating authority, and as both of these occurred in Brisbane, the Gold Coast public holiday was irrelevant.

However, the court found that the "relevant act" was the actual preparation of the adjudication application, which the subcontractor had done at its Gold Coast office. The places where adjudication application was sent from and to were considered to be irrelevant.

The court found that as the Gold Coast holiday was a relevant public holiday, the adjudication application was made in time.

Don't assume that place of preparation of claim or adjudication application will always be relevant

Based on the Baulderstone decision, it would appear that public holidays in the place in which the claim or adjudication application is prepared will apply, but the decision has not been tested and may not always be followed in future decisions which deal with different facts.

For example, in the Baulderstone case, the court took into account the fact that there were no adjudicator nominating authorities on the Gold Coast, which meant that the subcontractor had no choice but to lodge the application in Brisbane. If the Gold Coast holiday was ignored, the subcontractor was deprived of a business day to prepare the application.

Furthermore, it will not always be possible to know where a payment claim or adjudication application has been prepared.

Consider all possible relevant public holidays when calculating time limits

Claimants and respondents should consider all possible relevant public holidays when calculating time limits for making and responding to claims and adjudication applications under BCIPA.

We recommend erring on the side of caution. If there is any doubt about whether a public holiday will apply, it should be ignored for the purposes of calculating time limits