QBSA v Battaglia Industries Pty Ltd
[2012] QCAT 3
•4 January 2012
| CITATION: | Queensland Building Services Authority v Battaglia Industries Pty Ltd [2012] QCAT 3 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Battaglia Industries Pty Ltd |
| APPLICATION NUMBER: | OCR119-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 4 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1 That by way of disciplinary sanction the Respondent pay the sum of eleven thousand dollars ($11,000) to the Queensland Building Services Authority within sixty (60) days of service of this order upon it. 2 That the Respondent pay the further sum of two hundred and fifty dollars ($250) to the said Authority, by way of costs. |
| CATCHWORDS: | Licensee exceeding allowable annual turnover without authority of Board – protective purpose of statutory limit – appropriate sanction Queensland Building Services Authority Act 1991, ss 9A, 35, 88, 89(a), 89(k), 91(3)(b) |
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 (QCAT Act).
REASONS FOR DECISION
In this disciplinary proceeding the following consent orders are sought:
(i)That proper grounds exist for taking disciplinary action against the Respondent, in that it contravened sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act 1991 in that, during its 2007-2008 licence year it exceeded its Allowable Annual Turnover by one million, ninety-three thousand, four hundred and eight dollars ($1,093,408) or 364.5% without first notifying the Queensland Building Services Authority [“QBSA”] or obtaining the QBSA’s approval.
(ii)That proper grounds exist for taking disciplinary action against the Respondent, in that it contravened sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act 1991 in that, during its 2008-2009 licence year it exceeded its Allowable Annual Turnover by two million, eighteen thousand and nine dollars ($2,018,009) or 143.99% without first notifying the QBSA or obtaining the QBSA’s approval.
(iii)That the matters of penalty and costs be determined by the Tribunal on the papers.
Appropriate jurisdiction is conferred on this Tribunal by sections 6, 9, 10, and 102 of the QCAT Act, and sections 88 and 91(3)(b) of the Queensland Building Services Authority Act 1991 [“BSA Act”].
Section 89 of the BSA Act provides, so far as is now material:
For section 88, proper grounds exist for taking disciplinary action against a licensee if--
(a) the licensee contravenes a requirement imposed under this Act ...
At all material times the Respondent was a licensee under the BSA Act. It is an automatic condition of such a licence (a) [that] the licensee's financial circumstances must at all times satisfy the relevant financial requirements stated in the board's policies; and (b) [that] variations of the contractor's turnover[1] and assets must be notified, or notified and approved, in accordance with the relevant financial requirements stated in the board's policies.[2] The purpose of those requirements is protective, namely to prevent licensees from trading beyond their financial and technical resources, to the detriment of suppliers, clients, sub-contractors and the industry in general.[3] A 10% “leeway”, or margin of error, is tolerated.
[1]A definition of “allowable annual turnover” appears in the Queensland Building Authority Regulation 2003, Schedule 3.
[2]QBSA, s 35(3). The Board policies are formulated under QBSA, s 9A subject to approval by regulation. For relevant approvals, see Queensland Building Authority Regulation 2003, Schedule 1A, Items 1, 3, 6, 8, 9, 12.
[3]QBSA v C-View Windows Pty Ltd [2011] QCAT 211at [15]; Application filed 17 June 2011, Annexure “B”, paragraph 14.
Particulars of the subject breaches are set out above, and verified by the affidavit of Michelle Ann Lockton, senior compliance officer of the Board, sworn on 14 June 2011.
The Respondent admits the breaches alleged.[4] Accordingly the issues that remain are the quantum of a fine by way of disciplinary sanction, and the Applicant’s claim for costs.
[4] Submissions of Respondent, 2 December 2011, paragraph 11.
The maximum fine that may be imposed in a case of this kind is 1,000 penalty units[5], or $100,000. The Applicant submits that a fine in the range of $8,000 to $10,000 would be appropriate, while the Respondent argues for an amount between $2000-$3000. The maximum fine provided by law is $100,000.
[5]At present a penalty unit entails a fine of $100: Penalties and Sentences Act 1992, s 5(1)(c).
The Tribunal’s task is to assess the relative seriousness of the breaches charged, to ascertain the amount of fines imposed in comparable cases, and to apply the results of that survey to the instant case.
It is undisputed that in the licensing years 2007-2008 and 2008-2009 the Respondent, without the Board’s approval, exceeded the turnover permitted by its licence. The excesses were substantial, not to say staggering – 364.5% in the first year and 143.99% in the second.
The Respondent submits that at all material times it was unaware of the rules relating to allowable annual turnover (“AAT”). However, it concedes that “there is a law and it has been contravened.”
The Respondent’s claim that it was unaware of the AAT rules is not acceptable. I accept the Board’s evidence that, by letters dated 28 February 2005, 21 March 2007 and 2 May 2008 the Applicant warned the Respondent that a turnover in excess of 10% of the lawful limit would constitute a breach of the QBSA Act.[6] I find that all of those letters were duly served upon the Respondent.[7] The letter dated 28 February 2005, written when the Respondent was first licensed, reads in part: “Please note it is a breach of the condition for a licensee to exceed the allowable annual turnover by more than 10% during the licensing period ... a breach of either condition creates grounds for the cancellation or suspension of a licence.” Similar warnings are contained in the letters of March 2007 and May 2008. When the breaches in question occurred, the Respondent had already held a licence for two and three year respectively.
[6] Affidavit of Michelle Ann Lockton sworn 14 June 2011, annexures MAL 2, MAL 3, MAL 6.
[7]See affidavit of Michelle Ann Lockton sworn 14 June 2011; Applicant’s submissions 21 October 2011.
It is appropriate to have regard to comparable cases, while recognising that no two cases are likely to be precisely the same, and that the present and future need not be rigidly bound to the past. In the period 2009-2011 single offences were variously sanctioned by fines between $4,000 and $4,700,[8] and dual offences (as in the present case) by fines between $8,000 and $10,000.[9] Allowing for inflation, the equivalent of a fine of $4,700 in 2009 is about $4,840 in 2010, and $8,000 is equivalent to about $8,230 in 2010.[10] Further adjustments would be needed to arrive at 2011 equivalents.
[8]QBSA v M & R Hudson Plumbing Pty Ltd [2010] QCAT 623; QBSA v G & T Roofing Pty Ltd [2010] QCAT QD031-09; QBSA v Janda Commercial Pty Ltd [2009] QCCTB 241; QBSA v Dilizio Painting Pty Ltd [2009] CCT QD012-09.
[9]QBSA v Peninsula Construction Group (Qld) Pty Ltd [2009] QCAT 26; QBSA v Sandy Straits Plumbing Pty Ltd OCR 068-11 (decision 18 October 2011); QBSA v Classic Brick and Block Pty Ltd [2011] QCAT 130.
[10] Reserve Bank of Australia, Inflation Calculator, 2011.
In an egregious case[11] four breaches attracted a sanction of $8,000, but it appears that the Board’s lack of vigilance, pointedly criticised by the Tribunal, may have been treated as a mitigating factor.
[11] QBSA v C-View Windows Pty Ltd [2011] QCAT 211.
In none of the single-breach cases mentioned did the unauthorised turnover exceed the Respondent’s 2007-2008 figure of 364%[12] and in only one of the three dual-breach cases is the total excess greater than in the present case. That case resulted in a fine of $8,000 two years ago. In 2011 a dual-offence case (involving a very small excess in the second year, and in which only one official warning was established) a fine of $10,000 was imposed. In the present case the Respondent received an official warning before each of its two substantial breaches. No such warning occurred in QBSA v Sandy Straits Plumbing Pty Ltd,[13] where the fine was $9,000.
[12] All are at least 100% lower.
[13]OCR 068-11 at [17]. The same comment applies to QBSA v Peninsula Construction Group (Qld) Pty Ltd [2009] QCAT 26 at [17]. The fine in the latter case was $8,000.
It is well settled that the purpose of disciplinary sanctions is protective, rather than penal.[14] The interests to be protected here include those of licensees’ clients and contractors, the stability and integrity of the industry and the proper functioning of the licensing system. At the same time, “the object of protection of the public also includes deterring [a licensee] from repeating the [prohibited] conduct, and deterring others who might be tempted to fall short of the ... standards ... required of them.”[15] In this case the Respondent, on two occasions, and after repeated warnings, has far exceeded the limit permitted by the Board’s rules relating to allowable annual turnover. There is a belated admission, but no other position would be tenable. In the absence of an appropriate sanction, a repetition by the Respondent, or imitation by others, cannot be entirely discounted.
[14]NSW Bar Association v Evatt (1968) 117 CLR 177; Skinner vBeaumont [1974] 2 NSWLR 106 at 109, 113; Ex parteAttorney-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 244; Thompson v British Medical Association(NSW Branch) [1924] AC 764 at 769; Clyne v NSW BarAssociation (1960) 104 CLR 186; MacMillan v PharmaceuticalCouncil of WA [1983] WAR 166 at 174; Hardcastle vCommissioner of Police (1986) 53 ALR 593 at 597; PoliceService Board v Morris (1985) 156 CLR 397 at 412; Adamsonv Queensland Law Society Inc [1990] 1 Qd R 498 at 504.
[15] Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471 per Giles JA.
In all the circumstances I consider that a fine of eleven thousand dollars ($11,000) should be imposed.
COSTS
The Board seeks $250 by way of costs. Considering the relative strength of the parties’ claims[16], the seriousness of the breaches involved, and the modest amount of the claim in relation to the preparation required[17], I consider that it is in the interests of justice to grant the application.
[16]Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(c); the Applicant has succeeded in full.
[17] Ibid, s 102(3)(f).
FINDINGS
I find:
(a)That proper grounds exist for taking disciplinary action against the Respondent, in that it contravened sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act 1991 in that, during its 2007-2008 licence year it exceeded its Allowable Annual Turnover by one million, ninety-three thousand, four hundred and eight dollars ($1,093,408) or 364.5% without first notifying the QBSA or obtaining the QBSA’s approval.
(b)That proper grounds exist for taking disciplinary action against the Respondent, in that it contravened sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act 1991 in that, during its 2008-2009 licence year it exceeded its Allowable Annual Turnover by two million, eighteen thousand and nine dollars ($2,018,009) or 143.99% without first notifying the QBSA or obtaining the QBSA’s approval.
ORDERS
That by way of disciplinary sanction the Respondent pay the sum of eleven thousand dollars ($11,000) to the Queensland Building Services Authority within sixty (60) days of service of this order upon it.
That the Respondent pay the further sum of two hundred and fifty dollars ($250) to the said Authority, by way of costs.
7
10
0