Queensland Building and Construction Commission v Airconstruct H.V.A.C Pty Ltd
[2014] QCAT 72
| CITATION: | Queensland Building and Construction Commission v Airconstruct H.V.A.C. Pty Ltd [2014] QCAT 72 |
| PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v | |
| Airconstruct H.V.A.C. Pty Ltd (Respondent) |
| APPLICATION NUMBER: | OCR133-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 27 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Airconstruct H.V.A.C. Pty Ltd pay to the Queensland Building and Construction Commission a penalty of $6,000 by 4.00pm on 14 April 2014. 2. Airconstruct H.V.A.C. Pty Ltd pay to the Queensland Building and Construction Commission its costs fixed at $1,750 by 4.00pm on 14 April 2014. |
| CATCHWORDS: | DISCIPLINARY PROCEEDINGS – ALLOWABLE ANNUAL TURNOVER – two breaches – warning after first breach – appropriate penalty – whether costs should be ordered Queensland Building and Construction Commission Act 1991 (Qld) ss 89(a), 89(k) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss100, 102, 107 Justices Regulation 2004 (Qld) Schedule 2, Part 2 Queensland Building Services Authority v Built Qld Pty Ltd [2005] QCCTB 152 |
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
On 9 January 2014 I found that proper grounds exist for taking disciplinary action.[1] The Commission seeks a penalty in the order of $6,000 - $8,000 together with an order for costs in the sum of $1,750. Airconstruct contends that a penalty in the order of $4,000 with no order as to costs is appropriate.
[1]Queensland Building and Construction Commission Act 1991 (Qld) ss 89(a), 89(k).
Factors relevant to determination of an appropriate penalty include[2]:
[2]Queensland Building Services Authority v Built Qld Pty Ltd [2005] QCCTB 152.
a)Airconstruct was granted a contractor’s licence in October 2003 and given the significant period it has held a licence it ought to have been aware of its licensing obligations;
b)The breaches were not an isolated incident as there was more than one breach;
c)Airconstruct exceeded its 2009 – 2010 AATO by one hundred and eighty-three thousand, seven hundred and thirty-six dollars ($183,736) or 10.21%. The first breach is relatively small both in percentage and monetary terms given the allowable threshold of 10%;
d)After the first breach a warning letter was issued by the Commission’s predecessor on 22 November 2010. The warning was apparently disregarded. There is no evidence before the Tribunal of any steps Airconstruct took as a consequence of receiving the warning;
e)Airconstruct exceeded its 2010-2011 AATO by one million four hundred and sixteen thousand, one hundred and eight dollars ($1,416,108) or 70.81%. This breach is significant both in percentage and monetary terms;
f)The Commission characterises Airconstruct as a moderate sized business at the time of the second breach in view of turnover. Airconstruct contends that at that time it employed 45 – 50 full time staff but now employs 7 full time staff and 2 casual staff due to contraction in the mining industry;
g)The explanation from Airconstruct was that it or its accountant was mistaken or misunderstood how the Form 1 Independent Review Report was to be completed and what income was to be included;
h)Airconstruct had retained an accountant to assist in regulatory compliance matters;
i)Airconstruct’s director has given evidence that Airconstruct has introduced measures in the nature of monthly monitoring, tracking and reporting AATO to prevent further breaches so a further breach appears unlikely.
The purpose of imposing a penalty is to deter breaches by licensees generally as well as the specific licensee before the Tribunal.
Both the Commission and Airconstruct contend that Queensland Building Services Authority v MGS Technologies Pty Ltd t/a 21st Century Steel Homes[3] is the most analogous case. In that case the AATO was exceeded by 44.9%, the licensee had a previous AATO breach (less than 10%) and a penalty of $3,500 was imposed.
[3][2008] QCCTB 100.
The value of penalty units has increased from $75 to $110 since 2008.
The Tribunal has previously accepted that when comparing penalties it is appropriate to adjust the penalties to reflect the increase in penalty unit values.[4] Such an adjustment would cause that penalty to be in the order of $5,133 in today’s terms. The first ‘breach’ (in respect of which no action was taken because it was less than 10%) and the second breach in MGS were less in percentage terms than the current circumstances. These are factors indicating that a higher penalty is appropriate.
[4]Queensland Building Services Authority v Fisher Builders Pty Ltd [2013] QCAT 431 at [20]; Queensland Building Services Authority v Bencee Pty Ltd [2013] QCAT 687 at [19].
Airconstruct contends that given the relatively small amount by which it exceeded the AATO in respect of the first breach the second breach is akin to a single breach. The Tribunal has noted that the usual penalty for a single breach with no aggravating factors in today’s penalty unit values is between $3,300 and $6,600.[5]
[5]Queensland Building Services Authority v Fisher Builders Pty Ltd [2013] QCAT 431 at [20].
Relevantly in this case there are some aggravating factors. There was an earlier breach and a warning which was apparently disregarded.
I consider that, in all the circumstances, an appropriate penalty is $6,000.
The Commission seeks its costs. The usual rule is that each party bears its own costs.[6] The Tribunal has discretion to award costs where the interests of justice require such an order.[7] Factors which may be considered are set out in section 102(3).
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s100.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s102(1).
The Tribunal has previously accepted that if the Commission succeeds in disciplinary proceedings awarding a modest amount for costs is appropriate.[8] The Tribunal is to fix the amount for costs where possible.[9]
[8]Queensland Building Services Authority v Flowtech Hydraulics Pty Ltd [2013] QCAT 517 at [26].
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s107.
The Tribunal has also previously accepted the scale in Schedule 2, Part 2 of the Justices Regulation 2004 (Qld) is appropriate for disciplinary proceedings. [10] I am satisfied that the amount of $1,750 is reasonable for the work undertaken by the Commission given that both liability and penalty submissions were required.
[10]Queensland Building Services Authority v Bencee Pty Ltd [2013] QCAT 687 at [32].
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