Queensland Building and Construction Commission v Bennett - [2015] QCAT 204

CITATION:

Queensland Building and Construction Commission v Bennett [2015] QCAT 204

PARTIES:

Queensland Building and Construction Commission
(Applicant)

Gregory Dean Bennett
(Respondent)

APPLICATION NUMBER:

OCR180-14

MATTER TYPE:

Occupational regulation matters

HEARING DATES:

30 March 2015

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

10 June 2015

DELIVERED AT:

Townsville

DECISION MADE:

1. That proper grounds exist for taking disciplinary action against Gregory Dean Bennett pursuant to section 89(g) of the Queensland Building and Construction Commission Act 1991 because he knowingly helped NQ Go Green Technology Pty Ltd to perform tribunal work, being the installation of, or co-ordination of the installation of hot water systems, in contravention of a condition on its license on 182 occasions.

2. That proper grounds exist for taking disciplinary action against Gregory Dean Bennett pursuant to section 89(k) of the Queensland Building and Construction Commission Act because he carried out tribunal work, being the installation of, or co-ordination of the installation of, hot water systems in contravention of a condition imposed on his license on 182 occasions.

3. That pursuant to section 91(3)(a) of the Queensland Building and Construction Commission Act, Gregory Dean Bennett pay the Queensland Building and Construction Commission a penalty of $6,000 by 4:00pm on 30 September 2015.

4. That the Commission’s application for a Costs Order is dismissed.

CATCHWORDS:

DISCIPLINARY PROCEEDINGS – where Respondent was a co-director of a company – the company contravened condition of its license by co-ordinating the installation of 182 hot water systems – the Commission warned the company that it was contravening the legislation – the company ignored Commission’s warning and continued contravening the legislation.

COSTS – DISCRETION TO ORDER COSTS – whether interest of justice requires a costs order to be made against the Respondent – where the Commission sought an amount for bringing proceedings – discretion to award costs – factors to be taken into account in a particular case – Respondent co-operated with Commission – where no disadvantage to the Commission – presumption that each party bears its own costs – public policy of legislation to establish a no cost jurisdiction.

Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 5, s 89(a), s 89(k), s 89(g)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48(1), s 100, s 102, s 107
Justices Regulation 2014 (Qld), Schedule 2 – Part 2

Corporations Act (Cth) s 180(1)

Nursing and Midwifery Board of Australia v Ascot [2011] QCAT 266
Paridis v Settlement Agency Advisory Board (2007) 33 WAR 361
Green v The Queen (2011) 244 CLR 462
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
QBSA v Abu-Dabat [2006] L016-05
QBSA v Nortask [2011] QCAT 164
QBSA v Ventura Quality Painters Pty Ltd [1996] QBT 136
QBSA v Webster t/as Multiskill [2003] CCT L031-04
QBSA v Taylor [2005] QCCTB 70
QBCC v Airconstruct H.V.A.C. Pty Ltd [2014] QCAT 72
QBSA v Flowtech Hydraulics Pty Ltd [2013] QCAT 517
Ascot v Nursing and…

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.

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Details

Case: [2015] QCAT 204
Decision Date: 10 June 2015

CaseChat Overview and Summary

In the matter of Queensland Building and Construction Commission versus Bennett, the Queensland Civil and Administrative Tribunal was called upon to address disciplinary proceedings against a co-director of a company found to have contravened licensing conditions. The respondent, Bennett, was identified as a co-director of a company that coordinated the installation of 182 hot water systems, an action that contravened the conditions of its license. Despite being warned by the Commission about the illegal activity, the company persisted in its contravention of the legislation.

The central legal issues revolved around whether the Tribunal had the discretion to order costs against the respondent and what factors should be considered in such a decision. The Commission sought a costs order against the respondent for bringing the proceedings, while the respondent argued against such an order. The Tribunal had to weigh the respondent's cooperation with the Commission, the absence of any disadvantage to the Commission, and the presumption that each party bears its own costs against the public policy objectives of the legislation, which aim to establish a no-cost jurisdiction.

The Tribunal considered the respondent's cooperation and the absence of any disadvantage to the Commission, which typically would support a decision against awarding costs. However, the overarching public policy objective of the legislation to establish a no-cost jurisdiction was a significant factor. The Tribunal ultimately decided that in this particular case, the interest of justice did not require a costs order against the respondent, balancing the need to encourage compliance with the legislation and the respondent's cooperation.

The final orders were that no costs order would be made against the respondent, reflecting the Tribunal's consideration of all relevant factors and its commitment to upholding the public policy objectives of the legislation.

Orders