Queensland Building and Construction Commission v Jarvis - [2014] QCAT 294

CITATION:

Queensland Building and Construction Commission v Jarvis [2014] QCAT 294

PARTIES:	Queensland Building and Construction Commission (Applicant)
V
Christopher Andrew Jarvis (Respondent)

APPLICATION NUMBER:

OCR171-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 March 2014

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

26 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Christopher Andrew Jarvis be fined $2000 and is reprimanded.

2. Mr Jarvis pay the Commission’s costs fixed at $2000.

CATCHWORDS:

Application – disciplinary proceeding – whether proper grounds for taking disciplinary action

Queensland Building and Construction Commission Act 1991 (Qld)
Domestic Building Contracts Act 2000 (Qld)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Shaheen Afzal

RESPONDENT:

Mr Christopher Jarvis

REASONS FOR DECISION

Christopher Jarvis is a licensed contractor holding Contractor’s License Number 733061.
On 20 September 2011 he entered into a HIA Small Works Contract with Joycelyn Windus for the carrying out of renovation work at 95 Bunya Park Road, Eatons Hill. The contract price was $27,518.
The contract contained a term that a deposit of 10% or $2,751.80 be paid by Ms Windus to Mr Jarvis. On or about 14 October 2011, Ms Windus paid to Mr Jarvis that sum by way of a cheque.
On or about 24 October 2011, the renovation work commenced.
A certificate of insurance was issued on 5 December 2011. It was for risk at a commencement date of 5 December 2011 with the date of expiry being 5 June 2018. The insurance was in respect of the property at Bunya Park, Eatons Hill and the insured residential construction work was described as “alternation and/or addition and/or repairs.” The notified contract value was $27,518.[1]
[1]Affidavit Carol Ann Leung, Exhibit 6, Attachment CAL-2.
On 14 June 2012, the Queensland Building Services Authority issued to Mr Jarvis an infringement notice number 14756 for an offence against s 68 of the Queensland Building Services Authority Act 1991 (Qld) at 92 Bunya Park Drive, Eatons Hill QLD 4073 on 27 September 2011 and an infringement notice number 14757 for an offence against s 64 of the Domestic Building Contracts Act 2000 (Qld) at 92 Bunya Park Drive, Eatons Hill QLD 4073 on 20 September 2011.[2]
[2]Exhibit 6, affidavit Carol Ann Leung, Attachment CAL-17 and CAL-18.
Both infringement notices purported to impose a penalty of $1000.
Mr Jarvis elected to have the infringement notices dealt with by a court and on 13 July 2012, the Authority withdrew the infringement notices and advised that it would commence a prosecution in the Magistrates Court or disciplinary action in the Queensland Civil and Administrative Tribunal.
Section 88 of the Queensland Building and Construction Commission Act 1991 (Qld) provides for the Queensland Civil and Administrative Tribunal to have jurisdiction to conduct a disciplinary proceeding to decide whether proper grounds exist for taking disciplinary action against a person under Part 7 Division 4 of that Act.
In the application, the Authority sought four orders. The first was that
proper grounds exist for taking disciplinary action against the respondent pursuant to s 89(a) of the Queensland Building Services Authority Act 1991 in that, on or about 27 September 2011, the respondent contravened a requirement imposed under s 68 of the Queensland Building Services Authority Act 1991.
The second order sought was
that proper grounds exist for taking disciplinary action against the respondent pursuant to s 89(a) of the Queensland Building Services Authority Act 1991 in that, on or about 20 September 2011, the respondent contravened a requirement imposed under s 64 of the Domestic Building Contracts Act 2000.
The third order sought was “that the respondent pay a penalty” and the fourth order was “that the respondent is reprimanded.”
Sections 6(2) and (3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the relationship between it and enabling Acts. Section 9 of the QCAT Act provides that the Tribunal has jurisdiction to deal with matters as it is empowered to deal with under an enabling Act. The conferred jurisdiction is the Tribunal’s original jurisdiction pursuant to s 10(1)(b) of the QCAT Act.
The Queensland Building Services Authority Act 1991 is an enabling Act pursuant to s 6(2)(a) of the QCAT Act and s 88 of the QBSA Act.
Section 88 of the QBSA Act allowed the authority to apply as provided under the QCAT Act to the Tribunal to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under Part 7, Division 4 of the QBSA Act.
The Authority alleged that the respondent failed to pay an appropriate insurance premium for residential construction work to the Authority as soon as practicable after he entered into a contract with a consumer thereby contravening s 68 of the QBSA Act.
It also alleged “further, or in the alternative” that the respondent, before starting to provide contract of services, demanded or received a deposit under the contract of more than 5% thereby contravening s 64 of the Domestic Building Contracts Act 2000.
At a compulsory conference held on 26 October 2013, the Tribunal made two orders by consent. Those orders were:
(a) Proper grounds exist for taking disciplinary action against Christopher Andrew Jarvis pursuant to s 89(2) of the QBSA Act in that, on or about 27 September 2011, Christopher Andrew Jarvis contravened a requirement imposed under s 68 of the QBSA Act.
(b) Proper grounds exist for taking disciplinary action against Christopher Andrew Jarvis pursuant to s 89(2) of the QBSA Act in that, on or about 20 September 2011, Christopher Andrew Jarvis contravened a requirement imposed under s 64 of the Domestic Building Contracts Act 2000.
The respondent accepted that he had contravened the relevant Act.
Section 91(1) of the QBSA Act provides that if the Tribunal decides that appropriate grounds exist for taking disciplinary action against a person, the Tribunal may make one or more of the orders mentioned in sub-sections (3)-(5).
Section 91 provides:
91 Orders for disciplinary action
(1)If the tribunal decides that appropriate grounds exist for taking disciplinary action against a person, the tribunal may make 1 or more of the orders mentioned in subsections (3) to (5).
(2)Also, the tribunal may, in relation to defective or incomplete tribunal work carried out by a person for a building owner—
(a)make an order that the person rectify or complete the work; or
(b)if the person is not appropriately licensed to rectify or complete the work—make an order that the person have the work rectified or completed by another person who is appropriately licensed; or
(c)make an order that the person pay the building owner an amount sufficient to rectify or complete the work.
(3)The tribunal may make an order imposing a penalty on the person of not more than—
(a)for an individual—an amount equivalent to 200 penalty units; or
(b)for a corporation—an amount equivalent to 1000 penalty units.
(4)The tribunal may make an order directing the person to pay compensation to someone else who has suffered loss or damage because of the act or omission that resulted in the disciplinary action.
(5)If the person is a licensee, the tribunal may make an order—
(a)reprimanding the licensee; or
(b)suspending the licence; or
(c)imposing conditions on the licence; or
(d)cancelling the licence.
(6)An order of the tribunal under subsections (3) to (5) must be published.
(7)The commission may recover an amount ordered by the tribunal to be imposed as a penalty as a debt due to it in a court with jurisdiction up to the amount of the debt.
The contract[3] by clause 5 had the commencement date as 24 October 2011. In the payment schedule the deposit stage had 10%, $2,751.80 inserted. Under the notation of that schedule there appeared the following: “where the contract price is $3,300 or more, the deposit by law cannot exceed 10% if the contract price is less than $20,000 or 5%, if the contract price is $20,000 or more.” The copy of the contract provided to the Tribunal has a signature beside the words “Contractor’s Signature” and the date 20 September 2011.
[3]Exhibit 6, Annexure CAL-7.
The conditions attached to the contract included a contract information statement. That statement included:
For contracts for residential construction work over $3,300 in value, the BSA statutory insurance scheme provides up to $200,000 cover for a 6 and ½ period if a licensed contractor performs the work. … Your contractor is required to pay the premium directly to the BSA before the plans can be approved by the local government or building certifier. When you receive your certificate of insurance and policy from the BSA, read the terms of the policy (note the extent of cover and exlcusions) and check that the notified contract value agrees with your contract price. If these amounts vary by more than $5,000 you should contact the BSA to amend your cover.
The note also included the following:
The Act places restrictions on amounts that your contractor can claim. The deposit is to be no more than 5% where the price is $20,000 or more, or not greater than 10% and the price is less than $20,000, the maximum deposits cannot be exceeded.
Joycelyn Windus wrote Mr Jarvis a cheque in the sum of $2,751.80 as a 10% deposit on 12 October 2011. The transaction is recorded by the Westpac Bank as being on 14 October 2011.[4]
[4]Affidavit of Joycelyn Windus filed 2 October 2013, paragraph 8, Exhibit 7.
The Tribunal’s exercise of disciplinary powers is done with a paramount consideration of the protection of the public.[5] It is not exercised for a punitive purpose.[6]
[5]See Fillippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Developments [2008] QCA 96.
[6]See Queensland Building Services Authority v Nelson [2006] QCCTB 131.
The purpose of disciplinary proceedings is to protect the public rather than to publish wrongdoing.[7] This purpose can be achieved by maintaining the integrity of a statutory regulations scheme in the building industry which promotes confidence that building contractors are being required to comply with statutory requirements for the protection of the public and consumers in the building industry.[8]
[7]NSW Bar Association v Evatt (1968) 117 CLR 177; Skinner v Beaumont [1974] 2 NSWLR 106 at 109, 113; Ex Parte Attorney General (Cth); Re a barrister and solicitor (1972) 20 FLR 324 at 244; Thomson v British Medical Association (NSW Branch) [1924] AC 764 at 769; Clyne v NSW Bar Association (1961) 104 CLR 186; MacMillen v Pharmaceutical Council of WA [1983] WAR 166 at 174; Hard Castle v Commissioner ofPolice (1986) 53 ALR 593 at 597; Police Service Board v Morris (1985) 156 CLR 397 at 412; Adamson v Queensland Law Society Inc [1991] Qd R 498 at 504.
[8]Queensland Building Services Authority v Metal Line Brisbane Pty Ltd [2010] QCAT 164 at [26].
A contravention by a licensed contractor of statutory requirements tends to adversely impact on the integrity of an occupation or regulatory scheme and to erode public confidence in the regulatory scheme unless a penalty is imposed proportionate to the contravention.[9]
[9]Queensland Building Services Authority v Metal Line Brisbane Pty Ltd [2010] QCAT 164 at [27].
The Tribunal 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.[10]
[10]Queensland Building Services Authority v Battaglia Industries PtyLtd [2012] QCAT 3 at [8].
Interests to be protected include those of licensee’s 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.”[11]
[11]Queensland Building Services Authority v Battaglia Industries Pty Ltd [2012] QCAT 3; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471 per Giles JA.
The maximum penalty provided for by s 91 of the QBCC Act for an individual is 200 penalty units for each disciplinary ground. A penalty unit is equivalent to $110.[12]
[12]Penalties and Sentences Act 1992 (Qld) s 5.
Section 68 of the QBCC Act provides:[13]
[13]At the time of the breach, the QBSA Act.
Payment of insurance premium for residential construction work
(1) The appropriate insurance premium payable under section 68D for residential construction work must be paid to the commission by the following—
(a) if section 68B applies, the licensed contractor;
(b)if section 68C applies, the construction manager who holds a contractor’s licence of the relevant class.
Maximum penalty—100 penalty units.
(1A) The premium must be paid—
(a)if section 68B(a) applies, as soon as practicable after the contract is entered into with the consumer; or
(b) if section 68C applies, as soon as practicable after the construction management contract is entered into with the principal; or
(c) if section 68B(b) applies, before residential construction work is started.
(2) An assessment manager or compliance assessor must not, under the Sustainable Planning Act 2009, issue a development approval or a compliance permit for building work in respect of residential construction work unless—
(a) the assessment manager or compliance assessor has written information from the commission showing that the appropriate insurance premium has been paid; or
(b) the applicant produces satisfactory evidence that no insurance premium is payable.
(3)A certificate of insurance issued by the commission in relation to residential construction work is conclusive evidence that the work is covered by a policy of insurance under the statutory insurance scheme.
(4) A private certifier who is acting as an assessment manager must not contravene subsection (2).
Maximum penalty—20 penalty units.
The purpose of the Domestic Building Contracts Act 2000 (Qld) was provided for at s 3 of that Act as follows:
The purpose of this Act, in regulating Domestic Building Contracts, is-
(a)To achieve a reasonable balance between the interests of building contractors and building owners; and
(b)To maintain appropriate standards of conduct in the building industry.
Section 64 provides for the requirements for the deposits under regulated contracts as follows:
(1) The building contractor under a regulated contract must not, before starting to provide the contracted services, demand or receive a deposit under the contract of more than—
(a)if the contract price is equal to or more than the set amount—5% of the contract price; or
(b)if the contract price is less than the set amount—10% of the contract price.
Maximum penalty—100 penalty units.
(2) In this section, a reference to the contract price for a contract includes, for a cost plus contract, a reference to the contract estimated amount for the contract.
(3) In this section—
set amount means—
(a) the amount, above $20000, prescribed under a regulation as the set amount; or
(b) if an amount is not prescribed for paragraph (a)—$20000.
There is no prescribed amount for this provision provided for under any regulation and accordingly the set amount is $20,000. Accordingly s 64(1)(a) of the Domestic Building Contracts Act 2000 applies to this contract.
The respondent was entitled to demand a deposit of no more than 5% of the contract price.
The applicant submitted that the Tribunal ought to consider an assessment of the gravity of the conduct, protection of consumers, preventing repetition of the conduct and general deterrence; the monetary value involved in the conduct and any profit gained; the motivation behind the conduct; any reparation and remorse evidenced and the prior history and character of the respondent.[14] Part of the submission put forward by the applicant is to the effect that the respondent should be disciplined more severely because he has threatened Joycelyn Windus during the course of these disciplinary proceedings, pressuring her to withdraw her complaint against him or else face legal action for defamation and breach of contract.
[14]Queensland Building Services Authority v Webster [2005] QCCTB 85.
In my view, on the principles I have spoken about earlier, that is not a proper matter to be taken into account even if the summary of it was correct in these proceedings.
Similarly, the respondent has made submissions about the conduct of investigators employed by the applicant and the conduct of the proceedings. In my view, those are not relevant matters in determining whether the respondent should be disciplined and if so, to what extent.
The applicant submitted that the public deserves protection from the complained of conduct. In my view, that is not an aspect to be taken into account in determining here the discipline required.
The respondent has not previously come to the adverse attention of the applicant even though he has held a license since 2000.
The applicant seeks costs pursuant to s 102 of the QCAT Act because it says it is in the interests of justice to award costs. Some of the reasons relied on include that the applicant has been wholly successful in its disciplinary application; it is a self-funded statutory body, without recourse to consolidated revenue and it has various legal costs in conducting the matter by its practising solicitors. It submits the appropriate scale of costs is the District Courts Scale Schedule 2 of the Uniform Civil Procedure Rules 1999 (Qld) and seeks costs fixed in the sum of $2,000. There is no attempt made to justify that claim. In its written submissions of 10 February 2014, it sought a penalty in the range of $4,000-$5,000 for each disciplinary ground, an order that the respondent is reprimanded and that the respondent pay the applicant’s costs fixed in the sum of $2,000.
In determining the penalty, the Tribunal must consider the circumstances of each case and exercise its discretion in light of the objects of the Act and provisions relating to offences and possible penalties. Factors which are appropriate to consider when deciding a question of penalty include an assessment of the gravity of the conduct, protection of consumers, preventing a repetition of the offence and deterring others, the number of offences in question, the monetary value involved in the offences and profit gained, the motivation behind the offences, any reparation and remorse evidenced. The list is not prescriptive or exhaustive and each case must be looked at in the light of its own individual circumstances.[15]
[15]Queensland Building Services Authority v Nelson [2006] CCTL 009-05 [26]; Queensland Building Services Authority v Webster [2005] CCTL 031-04 [34]-[35].
I note from Annexure CAL-1 to the affidavit of Carol Ann Leung that the history of the respondent discloses that there are no tribunal direction orders against him, no tribunal disciplinary orders, no recorded offences, no directions to rectify defective work, no record of exclusions, no record of bans, no record of disqualification, infringement notices or demerit points recorded.
Joycelyn Windus swore an affidavit concerning her dealings with Mr Jarvis. She recalls asking Mr Jarvis a few times during the job about BSA insurance and she says that each time he would respond words to the effect that he would give it to her the next day. He did not actually provide the insurance certificate until after the job was completed. That was after Ms Windus had contacted the BSA. Ms Windus was later dissatisfied with the standard of the building work carried out by Mr Jarvis including the plumbing and electrical work.

The Commission made submissions to the effect that Mr Jarvis’ letter of 10 October 2013[16] should be taken into account in determining any penalty. That letter sought to convince Ms Windus to withdraw her complaint and advised that if she did not respond to the request, Mr Jarvis would have to fight the case and cross-examine her in the witness box. It also advised that he was contemplating a defamation damages case against her. Ms Windus took them as threats and complains that her anxiety and stress levels increased and her wellbeing has been immensely affected. In my view, those matters are not properly matters to be taken into account in assessing penalty here.
[16]Annexure JW-4 to the addendum affidavit of Joycelyn Windus sworn 7 January 2014.
Although Ms Windus made a complaint to the Commission and a direction to rectify was issued, it was withdrawn as was the application to review the decision to issue the direction.
Material filed by both the applicant and the respondent in part deals with directions issued by the Commission and the conduct of Commission officers. In my view, much of that material is not relevant to any question to penalty associated with the disciplinary action.
As part of the material filed by Mr Jarvis, an explanation of the charging of a 10% deposit was proffered. He advised that initially the job was the subject of two subject quotations which did not trigger the requirement for a lesser deposit.
With respect to the obtaining of insurance payment to be made as soon as practicable, he proffered the explanation that due to an administrative “stuff up” the insurance was not implemented until 2 December 2011. He regretted that situation and described it as unfortunate but says that once it was discovered it was adjusted immediately.
Mr Jarvis believes that “the applicant has adopted an approach to this situation as a “sledgehammer to crack a nut.” He said that he fully understands the seriousness of the infringements and understands why the applicant needs to implement the law. He submits that the consequences of his actions have caused no harm and were merely an administration error with no intention to deceive. Mr Jarvis has, as part of his material, provided references and awards.
After the decision of the High Court in Barbaro v The Queen,[17] Ms Afzal did not make a submission urging any particular penalty. The range provided in the written submission was provided before the decision in Barbaro. Ms Afzal did however hand up three decisions of the Tribunal. They are not directly on point but provide an indication of some penalties imposed in respect of a breach of s 64 of the then QBSA Act. Those fines were $2,250 as a total penalty for two breaches of the Act,[18] and $1,350 as a total penalty of which $850 was for the breach of s 64.[19]
[17][2014] HCA 2 (12 February 2014).
[18]Queensland Building Services Authority v Building Central Pty Ltd [2008] CCT Qd 006-08.
[19]Queensland Building Services Authority v Metal Line Brisbane Pty Ltd [2010] QCAT 164.
In my view, taking all of the matters into account and the circumstances of this case, the appropriate penalty for each breach is $1,000. Mr Jarvis is also reprimanded.

Costs

Section 100 of the QCAT Act provides as follows:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
Section 102 of the QCAT Act provides as follows:
102 Costs against party in interests of justice
(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.

Transitional provisions

Schedule 1, s 48 of the QBCC Act provides as follows:
48 References to former entities
In an Act or document—
(a) a reference to the former authority may, if the context permits, be taken to be a reference to the commission; and
(b) a reference to the former board may, if the context permits, be taken to be a reference to the board; and
(c) a reference to the general manager under the QBSA Act may, if the context permits, be taken to be a reference to the commissioner.
Schedule 1, s 41 of the QBCC Act provides as follows:
41 Unresolved applications
(1) On the transfer day, the commission stands in place of the former authority for any unresolved application made—
(a) under the QBSA Act to the former authority; or
(b) by the former authority to the tribunal.
(2) For subsection (1)(a), the commission may be satisfied about a matter merely because the former authority was satisfied about the matter under the relevant provision of the QBSA Act.
(3) In this section—
unresolved application means an application made, but not finally decided or withdrawn, before the transfer day.
The meaning of ‘former authority’ is defined in Schedule 1, section as follows:
former authority means the former Queensland Building Services Authority established under the QBSA Act.
In my view it is appropriate in all of the circumstances here that Mr Jarvis bay the costs of the Commission fixed in the sum of $2000.