Considine v the Plumbers and Drainers Board

[2010] QCAT 6

CITATION: Considine v The Plumbers and Drainers Board [2010] QCAT 6

PARTIES:   Colin Beveridge Considine

V

The Plumbers and Drainers Board

APPLICATION NUMBER:            OCR031-09

MATTER TYPE:   

HEARING DATE:   8 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   11 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application dismissed

CATCHWORDS: Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Commercial and Consumer Tribunal on 30 November 2009 by Colin Beveridge Considine (the applicant) seeking a review of a decision of the Plumbers and Drainers Board (the respondent) made on 14 October 2009 to suspend the applicant’s Plumber Licence, his Drainer Licence and the Fire Protection and Thermostatic Maxing Valve endorsements attached to the licences until 30 June 2010.  The applicant lodged an application seeking to stay the operation of the decision under review on 6 January 2010. 

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal as a result of the Commercial and Consumer Tribunal being abolished by the Queensland Civil and Administrative Tribunal Act 2009 (the Act).  

2. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals abolished by the 2009 Act but not heard by the abolished Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. However, according to section 271 of the Act, the Tribunal only has the functions that the Commercial and Consumer Tribunal had had in relation to the pending proceeding under the now repealed Commercial and Consumer Tribunal Act2003. 

3. Both the repealed Commercial and Consumer Tribunal Act2003 and the 2009 Act contain provisions for the relevant Tribunal in its discretion to stay the operation of a decision being reviewed by the Tribunal. Section 22 of the 2009 Act provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.

4. The respondent Board is a statutory body established by the Plumbing and Drainage Act 2002 and is required by section 6 of that Act to promote acceptable standards of competence for the trade.  In performing its functions, the respondent Board must act independently, impartially and in the public interest. 

SUBMISSIONS

6. The applicant submitted that he has experienced extreme financial detriment because he cannot work due to the suspension of his licences.   He had been offered full time plumbing work but he has had to decline the offers while his licence is suspended.  The applicant estimated that he would lose in the order of $55,800 in earnings between 9 November 2009 and 30 June 2010 as a result of the suspension of his licences. 
7. The applicant submitted that if the stay were to be granted, he could take up the offers of work and earn money which would provide him with the financial means to pay any fines that may be imposed if the review of the decision to suspend his licences was to be successful.  He would also be able to service other financial commitments from his earnings during the period of the stay.  
8. The applicant submitted that he had negotiated with the Queensland Building Services Authority to be granted a supervisor’s licence but those negotiations were on hold due to the suspension of his base trade licences.   
9. The applicant provided details of some of his financial commitments.  He has a child support liability of $386.25 per month, fines of $40 per month and income tax instalments of $250 per month.  His company, Lamina Pty Ltd, owed arrears of $3,502.57 on a hire purchase agreement under which the total amount payable was stated to be $89,030.00 and the vehicle subject to the agreement was to be repossessed. 
10. The applicant had informed the Tribunal in his application for review that a receiver had been appointed to his company and that there were on going liquidation issues relating to his company since June 2009.  As a combined result of the suspension of his licences and these liquidation issues, the applicant had presented a debtors petition and was made bankrupt on 1 December 2009.  
11. The respondent made extensive submissions on the application for review of its decision and the Tribunal took these submissions into consideration on the issue of a stay order where relevant. The respondent opposes the making of a stay order. 
12. The respondent submitted that the applicant had been disciplined for leaving an apprenticed plumber on a building site without being directly supervised by a licensed plumber and engaging a school based work experience person on site to perform plumbing work.  The applicant had admitted the matters alleged against him. 
13. The respondent submitted that the applicant had been prosecuted and pleaded guilty in 2007 to supervising unlicensed work and had been fined $5,000 in the Magistrates Court.  The respondent Board on that occasion decided not to take separate disciplinary action against the applicant due to the severity of the penalty imposed by the Magistrates Court.  

14. The respondent submitted that the actions of the applicant placed at risk the health of the apprentice, the work experience person, other workers on the site and the persons who were to reside in the dwelling.  The respondent submitted that the decision to suspend the licences until 30 June 2010 was within the options available to the respondent Board and was a necessary outcome to protect the public and to send a clear message to others. 

CONCLUSION

15. The Tribunal had regard to the information provided by the applicant as to how the applicant’s interests will be affected in the event that a stay of the decision is not made.   The Tribunal accepts the applicant’s evidence that he has experienced severe financial impacts since the suspension of his licences.  However the Tribunal finds that the applicant’s adverse financial position is not solely the result of the suspension of his licences as the liquidation issues relating to his company predated the respondent’s decision to suspend his licences and contributed to his financial problems.
16. The Tribunal is not satisfied that staying the respondent’s decision will materially assist the applicant to reverse his adverse financial position as the stay will not directly resolve his personal bankruptcy or the liquidation issues involving his company. 
17. The Tribunal notes that the applicant was offered on 10 November 2009 a site supervisor grade of licence by the Queensland Building Services Authority that does not require him to hold a contractor grade of licence. Submissions were made by the applicant that this offer is now on hold.  The applicant did not inform the Tribunal that the offer was withdrawn. The Tribunal is uncertain whether the placing of the offer of a supervisor’s licence on hold was the result of disciplinary action having been taken by the respondent Board regardless of the outcome of that action or whether the offer is available for acceptance on some modified terms after further negotiation.  
18. The Tribunal accepts the applicant’s submissions that he is unable to perform work in his trade while his licences are suspended. The Tribunal was not provided with evidence that the applicant is unable to work in some other occupation for which he has either skills or qualifications and cannot conclude on the evidence that the applicant is otherwise precluded from earning income from work other than in his trade.    
19. The stay application is opposed by the respondent.  The Tribunal accepts that the respondent is required to act in the public interest when performing its statutory functions.  It is well established that disciplinary action for professions and trades are not penal in nature but rather are protective in nature.[1]   The protection of the public is a primary object of the disciplinary proceedings in this case as reflected in the range of outcomes that were available to the respondent Board i.e. a reprimand, an order to rectify the work, imposition of licence conditions, licence suspension or cancellation. The respondent submitted that it was necessary to suspend the applicant’s licences in the public interest in this case. 

[1] NSW Bar Association v Evatt (1968) 117 CLR 177 at 183

20. The question of whether the outcome imposed in this case was appropriate in the public interest will be determined by the final hearing of the review application.  However, for the purposes of the stay application, the Tribunal can have regard to public interest concerns relevant to the stay. 
21. It is in the public interest that the respondent Board is able to conduct its statutory duty of ensuring the promotion of acceptable standards of competence for the trade with all reasonable diligence and independence.  It is in the public interest that its functions, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the disciplinary scheme set up by the Plumbing and Drainage Act 2002 for the protection of the public.  
22. The outcome imposed on the applicant in this case was within the range of outcomes provided in the Plumbing and Drainage Act 2002 and was the result of due deliberation by the respondent after considering information from the Board’s investigator.  The applicant did not take the opportunity afforded to him to have input into the respondent’s deliberations before its decision was made.       
23. The Tribunal is not satisfied that it is desirable in this case to make an order to stay the operation of the decision under review.  The Tribunal is not satisfied that granting a stay would on balance be an effective course of action to assist the applicant to address his adverse financial position.  On the other hand, the Tribunal considers that granting a stay in this case would tend to undermine the integrity of the disciplinary scheme in circumstances where the applicant has admitted his wrongdoing and the outcome imposed by the respondent was within the range of options available in the discretion of the respondent.    
24. The application for a stay of the decision of the respondent made on 14 October is dismissed.