Queensland Building and Construction Commission v Nuttall - [2015] QCAT 203

CITATION:		Queensland Building and Construction Commission v Nuttall [2015] QCAT 203
PARTIES:		Queensland Building and Construction Commission (Applicant)
v
Ashley Leonard Nuttall (Respondent)
APPLICATION NUMBER:		OCR179-14
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 Ashley Leonard Nuttall, pursuant to section 90(1) of the Queensland Building and Construction Commission Act 1991 for directly or indirectly causing tribunal work to be carried out, being the installation of hot water systems, by NQ Go Green Technology Pty Ltd in contravention of a condition on its license, on 182 occasions. 2. That pursuant to section 91(3)(a) of the Queensland Building and Construction Commission Act 1991, Ashley Leonard Nuttall pay the Queensland Building and Construction Commission a penalty of $6,000 b y 4:00pm on 30 September 2015. 3. 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 Midwifery Board of Australia [2010] QCAT 364
APPEARANCES and REPRESENTATIONS:
APPLICANT:	Mr Scott Seefeld of Counsel instructed by the QBCC
RESPONDENT:	Mr Darin Honchin of Counsel instructed by Rennick Lawyers

REASON FOR DECISION
Introduction

The Applicant is the Queensland Building and Construction Commission (“the Commission”). The Respondent is Ashley Leonard Nuttall (“Mr Nuttall”).

The Commission is a…

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 203
Decision Date: 10 June 2015

CaseChat Overview and Summary

The Queensland Building and Construction Commission (Commission) initiated disciplinary proceedings against Mr Nuttall, who was a co-director of a company licensed under the Building Act 1975 (Qld). The company had contravened the conditions of its license by coordinating the installation of 182 hot water systems. The Commission had previously warned the company that it was contravening the legislation, yet the company continued to do so. The Commission brought the proceedings against Mr Nuttall for his role in the company's actions.

The primary legal issue the court needed to decide was whether the interests of justice required a costs order to be made against Mr Nuttall. The Commission had sought an amount for bringing the proceedings, and the court considered the discretion to award costs. The factors the court took into account included Mr Nuttall's cooperation with the Commission, the absence of any disadvantage to the Commission, and the presumption that each party bears its own costs. The court also considered the public policy of the legislation, which aimed to establish a no-cost jurisdiction.

In its reasoning, the court determined that the interests of justice did not warrant a costs order against Mr Nuttall. The court noted that Mr Nuttall had cooperated with the Commission and that there was no disadvantage to the Commission. The court also highlighted the public policy of the legislation to establish a no-cost jurisdiction. Therefore, the court declined to make a costs order against Mr Nuttall.

No final orders were made as the court did not proceed to order costs against Mr Nuttall.

Orders