Jarvis v Queensland Building and Construction Commission
[2015] QCATA 18
•6 February 2015
| CITATION: | Jarvis v Queensland Building and Construction Commission [2015] QCATA 18 |
| PARTIES: | Chris Jarvis (Applicant/Appellant) |
| V | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | APL338 14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM Member Hughes |
| DELIVERED ON: | 6 February 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted and the appeal allowed. 2. Order 2 of the decision dated 26 June 2014 is set aside. 3. The question of costs is returned to the tribunal for determination. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL –OCCUPATIONAL REGULATION – where parties agreed grounds existed for taking disciplinary action – where tribunal to determine penalty – whether penalty excessive – whether grounds for leave to appeal COSTS – where tribunal ordered costs - whether grounds to order costs – whether reasons for cost order adequate - whether grounds for leave to appeal Domestic Building Contracts Act 2000 (Qld) s 64 House v The King (1936) 55 CLR 499 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Jarvis is a licensed contractor. On 20 September 2011, he entered into a contract with Ms Windus to renovate her bathroom, ensuite and laundry. The contract price was $27,518.
By section 64 of the Domestic Building Contracts Act 2000 (Qld), Mr Jarvis was entitled to charge a deposit of 5% of the contract price. Contrary to s 64, Mr Jarvis charged a 10% deposit.
By section 68 of the Queensland Building Services Authority Act 1991 (Qld) (as it then was), a contractor must pay the appropriate insurance premium on a contract “as soon as practicable” after entering into the contract. Mr Jarvis did not pay the insurance premium required until December 2011.
The Queensland Building and Construction Commission (QBCC) filed a referral of a disciplinary proceeding. On 26 June 2014, the tribunal found that Mr Jarvis had contravened both the Domestic Building Contracts Act and the Queensland Building Services Authority Act. The tribunal reprimanded Mr Jarvis, fined him $2,000 and ordered that he pay QBCC’s costs fixed at $2,000.
Mr Jarvis wants to appeal that decision. He submits that the learned Member erred at law in three respects. First, he submits that the hearing was listed for a full day but, in fact, lasted only 20 minutes and, therefore, he was not given an opportunity to express all his rebuttals, explain the mitigating circumstances and cross examine the people who swore affidavits for QBCC
The fact that a matter is listed for a day’s hearing does not mean that the tribunal will necessarily take all of the available time to hear the dispute. It is important to remember that the hearing was only in relation to penalty. The parties had agreed, at a compulsory conference, that proper grounds existed for disciplinary action against Mr Jarvis. Therefore, the points to be argued before the learned Member were confined.
The learned Member acknowledged receipt of Mr Jarvis’ submissions[1]. He gave Mr Jarvis an opportunity to read and comment upon case law handed up by QBCC[2]. He heard submissions from Mr Jarvis[3]. He gave Mr Jarvis a further opportunity to speak, after QBCC’s submissions in reply[4]. He asked Mr Jarvis if he was content to rely on the material he had filed[5]. He again asked Mr Jarvis if there was anything Mr Jarvis wanted to add and Mr Jarvis said he did not[6]. The transcript does not support a finding that Mr Jarvis was denied procedural fairness.
[1]Transcript page 1-6, line 43 to page 1-7, line 9.
[2]Transcript page 1-8, line 26 to page 1-9 line 16.
[3]Transcript page 1-10, line 43 to page 1-12, line 15.
[4]Transcript page 1-14, lines 18.
[5]Transcript page 1-15, lines 45 – 47.
[6]Transcript page 1-16, lines 30 – 33.
The learned Member acknowledged Mr Jarvis’s material in his reasons for decision[7]. It is obvious that he read those submissions but, as the reasons for decision show, the learned Member did not consider the submission compelling. There is nothing in the transcript or Mr Jarvis’s submissions that suggest I should take a different view.
[7]Reasons for decision at [39], [48] – [52].
Second, Mr Jarvis submits that the penalty imposed was excessive. He has provided the Appeals Tribunal with two decisions which, he says, demonstrate a lower penalty for more serious breaches. The first of those decisions is Queensland Building Services Authority v Rix[8]; the other is Queensland Building Services Authority v Building Central Pty Ltd[9].
[8][2011] QCAT 333.
[9]QD006-08.
Mr Jarvis wants to appeal against the way the learned Member exercised his discretion. The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[10]. Just because the Appeal Tribunal might have exercised the discretion differently, is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[11].
[10]House v The King (1936) 55 CLR 499, at 504.
[11]Lovell v Lovell (1950) 81 CLR 513.
The learned Member referred to Queensland Building Services Authority v Building Central Pty Ltd in his reasons for decision[12]. He also had regard to the tribunal’s decision in Queensland Building Services Authority v Metal Line Brisbane Pty Ltd[13]. The learned Member’s decision on penalty is within a range which can be supported by the evidence and precedent. We can find no suggestion that the learned Member acted on a wrong principle, made a mistake of fact that affected the exercise of his discretion or was influenced by irrelevant matters. Mr Jarvis’ application to appeal on penalty must fail.
[12]At [52].
[13][2010] QCAT 164.
We note, for completeness, that the value of a penalty unit has increased significantly between 2008 and 2014. Even if the learned Member took the view that Mr Jarvis’ offending conduct was at the same level as the conduct in previous decisions, there was justification for an increase in the amount of the penalty imposed, based on an equivalent penalty unit.
Finally, Mr Jarvis submits that the learned Member did not give proper reasons for his decision on costs.
To the extent that this is an appeal of a costs order, leave is necessary[14]. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[15]
[14]QCAT Act s 142(3)(a)(iii).
[15]Pickering v McArthur [2005] QCA 294 at [3].
In giving his reasons about costs, the learned Member’s sets out the general position under ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act and the modifying sections of the Queensland Building Services Authority Act. Regrettably, the learned Member then simply concludes that, in his view and in all the circumstances, it is appropriate that Mr Jarvis pays QBCC’s costs of the application.
A failure to give reasons ‘... adds insult to the injury of an adverse decision. Without reasons, a party cannot be confident that the learned Member understood and properly considered the case.[16] The failure to give adequate reasons is a denial of natural justice, which is an error of law[17]. The appeal as to the imposition of costs should be allowed and the question returned to the learned Member for consideration.
[16]Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2.
[17]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
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