QBCC v Morley - [2016] QMC 8

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

QBCC v Morley [2016] QMC 8

PARTIES:

QUEENSLAND BUILDING & CONSTRUCTION COMMISSION (QBCC)

(Complainant)

v

WADE FRANCIS MORLEY

(Defendant)

FILE NO/S:

MAG-00029741/15(8) (COOL-MAG 237/15) and MAG-00051466/15(2) BRIS-MAG 7427/15)

DIVISION:

Criminal

PROCEEDING:

Trial Hearing at Coolangatta and Southport

ORIGINATING COURTS:

Coolangatta and Brisbane

DELIVERED ON:

10 May 2016

DELIVERED AT:

Southport

HEARING DATE:

11 September and 27 October, 2015

MAGISTRATE:

J J Costanzo

ORDERS:

In relation to the Coolangatta Complaint:

Charge 1:  The defendant is found Not Guilty.

Charges 2, 3 and 4:     The defendant is found Guilty.

In relation to the Brisbane Complaint:

Charge 1:        The prosecution offered no further evidence.

The defendant is discharged. The charge is dismissed.

Charges 2, 3 and 4:      The Defendant is found Guilty.

CATCHWORDS:

CRIMINAL LAW — Summary Offences — Queensland Building and Construction Commission Act— Whether person unlawfully carrying out building work without holding a Contractor’s Licence of the appropriate class — Meaning of “building work” — Whether person exempt under schedule 1A from holding a contractor’s licence of the appropriate class — Whether work is excluded by regulation from the ambit of the definition of “building work”

Whether person has published an advertisement that did not state the value of the work the person was entitled to carry out without a licence — Meaning of “work” — Meaning of “works” — Meaning of “excluded work”

Whether person making use of a licensee’s licence to pretend to be a licensee — Meaning of “pretend” — Meaning of “making use”

Acts Interpretation Act 1954, s 14A.

Plumbing and Drainage Act 2001, s 3 and Schedule.

Queensland Building Construction Commission Act 1991, sections 3, 7, 30, 42, 51, 53C and schedule 1A.

Queensland Building Services Authority Act 1991.

Queensland Building Construction Commission Regulation 2003, sections 5, 14 and Schedule 1AA items 2 and 11, Schedule 2, Parts 18 and 19.

CASES CITED IN THIS JUDGMENT

Goldfield Project Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552.

Morley v See [2015] QCATA 127.

Moosawi v Massey [2015] QSC 169.

Walton Construction (Qld) P/L v Plumber by Trade P/L & Ors [2012] QSC 264.

LAWYERS

Mr SP Formby (of Counsel) for the Complainant.

Mr M Ohlson (Solicitor) for the Defendant.

This trial commenced at Coolangatta on 11 September 2015 and concluded at Southport on 27 October 2015.

There were 2 Complaints which the parties called the Brisbane Complaint and the Coolangatta Complaint, which originally contained a total of 8 charges (4 on each complaint). On day 2 of the trial charge 1 on the Brisbane complaint was discontinued by the prosecutor.

All of the seven remaining charges were laid under the Queensland Building Construction Commission Act 1991 (QBCC Act) and/or the Queensland Building Services Authority Act 1991 (QBSA Act). The QBCC Act was formerly known as the QBSA Act. The amending Act and transitions made no changes to text or applicability of the relevant sections. Therefore, for convenience, I will refer in this judgment to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading QBCC v Morley

Details

AGLC: QBCC v Morley [2016] QMC 8
Case: [2016] QMC 8
Decision Date: 10 May 2016

CaseChat Overview and Summary

The parties involved in this case were the Queensland Building and Construction Commission (QBCC) and the defendant, Morley. The dispute centred on allegations that Morley was unlawfully carrying out building work without the necessary Contractor’s Licence, as stipulated under the Queensland Building and Construction Commission Act. Additionally, it was alleged that Morley had failed to state the value of the work he was entitled to carry out without a licence in his advertisements, and had made use of a licensee’s licence to pretend to be a licensee. The case was heard in the Magistrates Court.

The court was tasked with determining several key legal issues. Firstly, it needed to clarify the definition of "building work" and whether the work performed by Morley fell within this definition. Secondly, the court had to ascertain if Morley was exempt from holding a contractor’s licence under Schedule 1A. Thirdly, the court needed to determine if the work in question was excluded by regulation from the definition of "building work". Furthermore, the court had to interpret the meaning of "work" and "works" in the context of the Act, as well as the term "excluded work". Lastly, the court needed to understand the meaning of "pretend" and "making use" in relation to the use of a licensee's licence.

The court meticulously examined the statutory definitions and regulations to address these issues. It found that Morley was indeed carrying out building work without the appropriate licence, thus violating the Act. The court also ruled that the work Morley performed was not exempt from the licensing requirements and was not excluded by regulation. Regarding the advertisements, the court determined that Morley had failed to disclose the value of the work he could perform without a licence, which was a breach of the Act. Additionally, the court concluded that Morley had used a licensee’s licence to present himself as a legitimate licensee, fulfilling the definition of "pretend" and "making use". The court found Morley guilty on several charges but not guilty on others, leading to a mix of acquittals and convictions.

The final orders of the court were as follows. In relation to the Coolangatta Complaint, Morley was found not guilty of Charge 1, while being found guilty of Charges 2, 3, and 4. Regarding the Brisbane Complaint, the prosecution offered no further evidence on Charge 1, resulting in its dismissal. Morley was found guilty on Charges 2, 3, and 4 of the Brisbane Complaint.

Orders

Orders of the court

In relation to the Coolangatta Complaint:

Charge 1: The defendant is found Not Guilty.

Charges 2, 3 and 4: The defendant is found Guilty.

In relation to the Brisbane Complaint:

Charge 1: The prosecution offered no further evidence.

The defendant is discharged. The charge is dismissed.

Charges 2, 3 and 4: The Defendant is found Guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	QBCC v Morley [2016] QMC 8
PARTIES:	QUEENSLAND BUILDING & CONSTRUCTION COMMISSION (QBCC) (Complainant) v WADE FRANCIS MORLEY (Defendant)
FILE NO/S:	MAG-00029741/15(8) (COOL-MAG 237/15) and MAG-00051466/15(2) BRIS-MAG 7427/15)
DIVISION:	Criminal
PROCEEDING:	Trial Hearing at Coolangatta and Southport
ORIGINATING COURTS:	Coolangatta and Brisbane
DELIVERED ON:	10 May 2016
DELIVERED AT:	Southport
HEARING DATE:	11 September and 27 October, 2015
MAGISTRATE:	J J Costanzo
ORDERS:	In relation to the Coolangatta Complaint: Charge 1: The defendant is found Not Guilty. Charges 2, 3 and 4: The defendant is found Guilty. In relation to the Brisbane Complaint: Charge 1: The prosecution offered no further evidence. The defendant is discharged. The charge is dismissed. Charges 2, 3 and 4: The Defendant is found Guilty.
CATCHWORDS:	CRIMINAL LAW — Summary Offences — Queensland Building and Construction Commission Act— Whether person unlawfully carrying out building work without holding a Contractor’s Licence of the appropriate class — Meaning of “building work” — Whether person exempt under schedule 1A from holding a contractor’s licence of the appropriate class — Whether work is excluded by regulation from the ambit of the definition of “building work” Whether person has published an advertisement that did not state the value of the work the person was entitled to carry out without a licence — Meaning of “work” — Meaning of “works” — Meaning of “excluded work” Whether person making use of a licensee’s licence to pretend to be a licensee — Meaning of “pretend” — Meaning of “making use” Acts Interpretation Act 1954, s 14A. Plumbing and Drainage Act 2001, s 3 and Schedule. Queensland Building Construction Commission Act 1991, sections 3, 7, 30, 42, 51, 53C and schedule 1A. Queensland Building Services Authority Act 1991. Queensland Building Construction Commission Regulation 2003, sections 5, 14 and Schedule 1AA items 2 and 11, Schedule 2, Parts 18 and 19.
CASES CITED IN THIS JUDGMENT	Goldfield Project Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552. Morley v See [2015] QCATA 127. Moosawi v Massey [2015] QSC 169. Walton Construction (Qld) P/L v Plumber by Trade P/L & Ors [2012] QSC 264.
LAWYERS	Mr SP Formby (of Counsel) for the Complainant.
Mr M Ohlson (Solicitor) for the Defendant.