Queensland Building Services Authority v Christie
[2013] QCAT 587
•11 November 2013
| CITATION: | Queensland Building Services Authority v Christie [2013] QCAT 587 |
| PARTIES: | Queensland Building Services Authority (Applicant) |
| v | |
| Allan John Christie (Respondent) |
| APPLICATION NUMBER: | OCR129-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 11 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Proper grounds exist for taking disciplinary action against Allan John Christie pursuant to section 88 and section 90(1)(a) of the Queensland Building Services Authority Act 1991, because that on a date or dates unknown between November 2010 and February 2011, Allan John Christie carried out tribunal work for which a licence is required without holding a licence of the appropriate class at 56 Hunter Street, Ipswich in the State of Queensland. 2. Proper grounds exist for taking disciplinary action against Allan John Christie pursuant to section 88 and section 90(1)(a) of the Queensland Building Services Authority Act 1991, because that on a date or dates unknown between 14 August 2010 and 14 January 2011, Allan John Christie carried out tribunal work for which a licence is required without holding a licence of the appropriate class at 306 Wishart Road, Mt Gravatt in the State of Queensland. 3. The applicant must file in the Tribunal one (1) copy and give to the respondent one (1) copy of any submissions on penalty by 4:00pm on 6 December 2013. 4. The respondent must file in the Tribunal one (1) copy and give to the applicant one (1) copy of any submissions on penalty in reply by 4:00pm on 20 December 2013. 5. Unless otherwise objected to in writing within 14 days of receipt of these directions the question of penalty will be determined on the papers without an oral hearing. |
| CATCHWORDS: | Disciplinary proceeding – where proper grounds exist – where respondent carried out Tribunal work without holding a licence of the appropriate class – where the tribunal work included painting – whether the respondent was acting as agent for the purposes of engaging subcontractors – where written contract under which the respondent agreed to carry out tribunal work – whether the breaches alleged were separate and distinct breaches of section 90(1)(a) of the Queensland Building Services Authority Act 1991 – whether the respondent can both carry out tribunal work and undertake tribunal work as two separate and distinct breaches – whether alleged breaches duplicitous. Queensland Building Services Authority Act 1991 ss 75, 88, 90, and 111 Briginshaw v Briginshaw (1938) 60 CLR 336 Walsh v Tattersall (1996) 139 ALR 27. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | represented by Mr Formby, lawyer, of the Queensland Building Services Authority. |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
The respondent carries on the business of the removal of asbestos from buildings under the business name of Northside Asbestos. Between August 2010 and February 2011 he entered into written contracts with Seventh-day Adventist Schools (South Qld) Ltd (“SDAS”) to remove asbestos from their buildings at Hunter Street in Ipswich and Broadwater Road in Mount Gravatt.[1] The contracts also provided for the “refurbishment” of the premises after the asbestos was removed.
[1] Exhibit 5 affidavit of Allan Christie – annexure “AJC-3” and “AJC-4”.
The work, in accordance with the contracts, was carried out at both locations although not completed at the Mount Gravatt premises as the contract was terminated prematurely by SDAS. However in respect of both premises, the respondent, as principal contractor, engaged Finesse Décor Pty Ltd to undertake the painting work to the refurbished works after the asbestos was removed. The painting work was completed at the Ipswich premises, and all but completed at the Mount Gravatt premises.
The Queensland Building Services Authority says that the respondent was not licensed to carry out the refurbishment work and in particular the painting work which falls within the definition of tribunal work under the Queensland Building Services Authority Act 1991.[2] There is no dispute that painting work was carried out by Finesse Décor. As a consequence, the Authority contends the respondent is in breach of the QBSA Act and filed an application seeking orders that proper grounds exist for taking disciplinary action against the respondent.
[2] Queensland Building Services Authority Act 1991 (QBSA Act) s 75.
It is not disputed that the respondent was not licensed to carry out tribunal work, including painting, but the respondent contends that at all times he was only acting as the agent for SDAS in engaging subcontractors to carry out the refurbishing work including the painting work.
The issue for determination in this proceeding is whether the respondent was acting as an agent for SDAS or whether the contract between them resulted in the respondent being the principal contractor for all the refurbishment works for which he would need a license under the QBSA Act. If the latter is found to be the case then proper grounds do exist for taking disciplinary action against him.
Legislation
The application is brought under section 88 of the QBSA Act which provides that the Authority may apply to the Tribunal, under the QCAT Act, to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under this division. Section 91 of the QBSA Act provides that if the Tribunal decides that appropriate grounds exist for the taking of disciplinary action against a person the Tribunal can impose a penalty. The Tribunal can also order compensation but that is not relevant here.
To avoid any confusion I will deal with the respondent’s submission that section 111 of the QBSA Act applies here because this proceeding is a prosecution. That being the case, he contends, the onus of proof is beyond reasonable doubt. That is not the case, this is not a prosecution for an offence against the Act under section 111 and therefore the standard of proof is the Briginshaw test.[3] This test requires the Tribunal to be satisfied to its reasonable satisfaction that, here, the respondent carried out Tribunal work in circumstances where a license was required to its reasonable satisfaction having regard to the seriousness of the case and the consequences to the respondent upon the Tribunal being so satisfied.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
The Authority contends that the respondent has committed four (4) breaches of the QBSA Act under s 90(1)(a). The section provides:
For section 88, proper grounds exist for taking disciplinary action against a person who is not a licensee if the person –
(a)carries out, or undertakes to carry out, tribunal work for which a license is required without holding a licence of the appropriate class.
In respect of the two jobs, the Authority contends that the respondent is in breach because firstly, he undertook to carry out the work by entering into the written contracts, and; secondly, he carried out the work by actually doing the work. I raised with the Authority at the commencement of the hearing whether the respondent could be found to have committed the two breaches as alleged because of the way the section was worded. The submission from the Authority was to the effect that if it was found that the respondent was the principal contractor, and not the agent for SDAS, then he undertook to do tribunal work and in fact did tribunal work without the appropriate licence.
My concern is that the section, by use of the word or contemplates alternative circumstances that might constitute “proper grounds”. It is also curious that the section first makes reference to “carries out”, which must include giving an undertaking to carry out, and then followed by the reference to “undertakes to carry out”. This suggests that the section creates two separate and distinct potential breaches, that is, actually carrying out tribunal work or if the work is not carried out, undertaking to carry out tribunal work. The section could also be read as “carries out or alternatively undertakes to carry out”.
The general principle seems to be that where a number of acts of a similar nature are committed at the same time and place in such a way they could fairly be regarded as forming part of the same transaction then, they should be charged as a single breach.[4] There is no reason why that principle should not apply here because carrying out must include undertaking to carry out as a single breach.
[4] Walsh v Tattersall (1996) 139 ALR 27.
I have come to the conclusion that it would be duplicitous for the respondent to be found to be in breach of the QBSA Act if he both carried out the work and undertook to carry out the work.
Further background
The respondent had undertaken asbestos removal work for SDAS on previous occasions to the work the subject of this application. Therefore, there existed a familiar and ongoing working relationship between Mr Christie and Mr Rogers the Compliance Manager of SDAS. However, unlike the subject contracts, the previous work was solely confined to the removal of asbestos.
In August 2010 the respondent was asked to provide a quote for removal of asbestos at the Mount Gravatt premises. He provided a quote for asbestos removal only for $62,377.40.[5] Mr Christie was immediately contacted by Mr Rogers who told him that the quote must also include the replacement of material in lieu of the asbestos.[6] The respondent then provided a further quote which took the price to $165,741.29. The quote[7] provides:
Final Price
[5] Exhibit 5 – annexure “AJC-1”.
[6] Exhibit 5 – annexure “AJC-2”.
[7] Exhibit 2 – annexure “DR-4”.
Asbestos Removal & Disposal
1161.50 square metres @ $45.00 per square (Plus GST)
$ 52,267.50
Refurbish of Buildings
Materials & Labour (Supplied & Fitted) (Plus GST)
$ 73,006.40
Painting Contractor
Highly Reputable Qualified & Licensed (Plus GST)
$ 25,400.00
(Painting Contractor’s quote valid for 30 days only)
Sub-Total
$150,673.90
G.S.T -
$ 15,067.39
Payable Total - $165.741.29
There is also a representation on page 1 of the quote that:
Northside Asbestos currently employs qualified carpenters, which both employees have years of experience in the construction industry from refurbishing bathrooms to house commercial building construction.
Northside Asbestos has enquired and received quotes from local licensed planning contractors to paint the replacement sheets and architraves; which will match the buildings pre removal paint code. Painting quote are only valid in 30 day interval.
All qualifications of tradesman and applicable insurances will be issued before commencing scopes of work.
This quotation was provided on 28 November 2010. Sometime after that, a written contract was entered into between SDAS and the respondent for the work, the subject of the quote, to be carried out at the Mount Gravatt premises. The contract[8] is comprehensive in its terms and identifies the contractor ‘as the person whose tender for the work under the contract has been accepted’. That is the respondent.
[8] Exhibit 5 – annexure “AJC-4”.
At or about this time, SDAS also sought a quote from the respondent for the removal of asbestos and refurbishment of its school at 56 Hunter Street, Brassall, Ipswich. This quote was for $74.602.00 and a written contract was entered into in exactly the same terms as the Mount Gravatt contract.
After the contracts were signed the respondent carried out the work initially at the Ipswich premises and then the Mount Gravatt premises. The Ipswich work was completed and the respondent was paid the contract sum.
In respect of both projects, the respondent engaged Finesse Décor Pty Ltd as the painting sub contractor. Daniel Tarau, the principal of Finesse Decore, has sworn an affidavit saying that he carried out painting work at the Ipswich school and was paid for that work by the respondent. He also carried out the painting work at the Mount Gravatt campus and invoiced the respondent $25,400.00 for the painting work, but was not paid.
Although not particularly relevant to this proceeding, for the purposes of completeness the contract for the Mount Gravatt works between SDAS and the respondent was terminated by SDAS on 18 April 2011 because of alleged breaches of the contract by the respondent. It is not necessary for me to make any finding about that other than to note that by the time Mr Tarau issued the final invoice on 13 January 2011 nearly all of the painting work had been carried out by him and therefore, it follows that a large part of the refurbishment work had been undertaken by the respondent but, it seems, this work was not carried out to the satisfaction of SDAS.
It follows from this brief description of the history that there can be no doubt that the respondent agreed, under the contract, in writing, to undertake refurbishment work after the asbestos was removed, and engaged Finesse Décor to do the painting work. The respondent paid Finesse Décor for the painting work at the Ipswich premises but did not pay Finesse Décor for the work at the Mount Gravatt site, mainly because he was not paid by SDAS.
The respondent’s case
The respondent contends in his statement of evidence and oral evidence that at all times he was merely acting as an agent for SDAS and in particular, Mr Rogers who he believed was the project manager for the school. He says that in discussions with Mr Rogers he was told that he ‘must use all pre-approved contractors, subcontractors, trade services and services from Brisbane Adventist College – Secondary Campus must supply their quotation; and submit all approved quotations in one (1) quote under Asbestos Removal and Disposal of ACM’.[9]
[9] Exhibit 5 paragraph 17
It is from this discussion he contends that he was only ever acting as an agent, engaging subcontractors on behalf of his principal, SDAS, and therefore was not personally liable to or responsible for the work undertaken by the subcontractors, and in particular, the painting work by Finesse Décor.
In support of this contention, he refers specifically to the written contracts and relies on the following:
a) There is no definition of building works or “tribunal work” or any other definition under the Queensland Building Services Authority Act 1991 in the contracts. This is irrelevant to what I have to decide. I must look at the facts and decide whether the respondent either carried our or undertook to carry out tribunal work as defined in the QBSA Act.
b) Clause 4.2(a) in applying the definition of “principal contractors” under the Workplace Health & Safety Act 2011 (WHS Act) that refers to SDAS. Be that as it may, the respondent under the written agreement is the “contractor” for the purposes of carrying out the work the subject of the agreement. Also clause 4.2 specifically provides that the respondent is appointed the principal contractor for the purposes of the Act “upon acceptance of the tender”. This point does not assist the respondent.
c) Similarly, the respondent’s obligations only related to asbestos removal by reference to clause 4 of the contract. Although this clause does make reference specifically to asbestos for the purposes of the WHS Act, the contract as a whole does not confine the work to the removal of asbestos. This provision deals specifically with asbestos because of its inherently dangerous qualities.
d) The provision in the contract about access, clause 12, Mr Rogers is identified as the “project manager”. This means he is the person with whom the respondent is to liaise for the purposes of carrying out the work.
e) By reference to clause 23.3 of the contract, the respondent contends that he held the relevant license which applied to asbestos removal. However the contract also provides for the refurbishment work, including painting, for which he does not hold a license.
f) Again in relying on section 3, he refers to the fact that the “project manager” must approve all contractors, subcontractors, trade services and services. However, this is a provision giving a discretion to SDAS to approve or reject any subcontractors provided by the respondent if they so choose. There is nothing unusual about this clause particularly, if for example a particular contractor subcontractor doesn’t hold a relevant license. It also, in the usual way, provides for SDAS to provide consent to any assignment of the respondent’s obligations under the contract.
g) Because the time for completion excludes painting, the respondent contends that changes the tenor of the relationship between himself and SDAS. There is no explanation for this however I do not see how this changes the relationship.
h) Clause 22 provides that the project manager is responsible for certification of the works. The respondent contends that he must therefore hold the appropriate license under the QBSA Act for certification. This does not follow, it merely ensures that the project manager must accept that the work undertaken by the respondent under the contract has been completed so payment for the work can be authorised.
i) Finally, because the contract document itself is identified as an Asbestos Removal Contract, the respondent contends that his obligations under the contract only relate to asbestos removal and not refurbishment. This, he says, is the responsibility of SDAS. The description of the contract itself does not limit the contractual works to be undertaken pursuant to it.
Each of the arguments advanced by the respondent do not sit comfortably with the legal relationship entered into under the contract. Mr Rogers’ evidence is that as far as SDAS was concerned, it was contracting with the respondent to carry out asbestos removal and refurbishment of the premises under an arms length contract and it, SDAS, had no responsibility for the subcontractors engaged by the respondent. Mr Rogers disagreed with any contention that the respondent was acting as agent for SDAS in so far as it related to the refurbishment works.
I find myself compelled to accept Mr Rogers’s evidence on this point. Not only is his evidence consistent with how the work was carried out, it is also consistent with the contractual documents entered into between SDAS and the respondent. I have already recited above the content of the written contract which specifically describes the work to be undertaken by the respondent at the fixed price of $74,602.00 (Hunter Street, Ipswich) and $165,741.29 (Mount Gravatt).
Under the contracts the respondent’s obligation was to ‘remove and dispose of all asbestos containing materials from Ipswich Adventist School at 56 Hunter Street, Brassall and replace with similar materials, painted and finished to industry standard and compliance with the relevant Australian Standards’. The same clause is in the Mount Gravatt contract. For undertaking that work the respondent was to be paid the contract sum.
In further support of the contractual relationship contented for by SDAS, the respondent, on 9 December 2010, issued a tax invoice for 50% of the contract sum in respect of the Mt Gravatt premises[10]. The invoice claims a progress claim of $82,870.50 being 50% of the total contract sum of $165,741.29 with the balance payable on completion. This obviously includes the asbestos removal and painting. There are also emails which do not support the respondent’s contention of agency.[11] I also reject any suggestion that Mr Rogers represented that he had a current builders licence under which the refurbishment work could be carried out. I accept that the mention of him holding a New South Wales licence many years earlier was for the purposes of giving him creditability when discussing building matters with the respondent.
[10] Exhibit 14.
[11] Exhibit 16.
Even if Mr Christie was under a genuine belief that he was only engaging subcontractors on behalf of SDAS, the signed written agreements must take precedence over any understanding that the respondent had with respect to the nature of the commercial arrangements entered into between himself and SDAS.
The respondent relies on the evidence of some independent contractors who forwarded their invoices to SDAS for payment and were paid. Both Mr Zolliea and Mr Lord submitted invoices on 4 March 2011 and 17 March 2011 respectively for work done at the request of the respondent. The invoices are countersigned by “Allan Christie” seemingly to approve the claim made.
The invoices were issued after the respondent and SDAS fell into dispute about the quality of work at the Mt Gravatt site. SDAS withheld payment under the contract to the respondent but did pay some of the subcontractors engaged by the respondent because of the dispute. Because of the written contracts and the respondents conduct subsequent to that in carrying out the work, this evidence is of little assistance.
Similarly, the evidence of Mr Hirst does not go to the arrangements entered into between the respondent and SDAS.
I have therefore come to the conclusion that by engaging Finesse Décor to carry out painting work at both locations and not holding a Building Services Authority license to carry out Tribunal work, the respondent is in breach of the Act and therefore reasonable grounds exist for taking disciplinary action against the respondent. However, I do not accept that he has breached the Act by both carrying out and undertaking to carry out tribunal work for the reasons above. By reference to the particulars referred to in annexure B to the application the formal orders will be:
1. Proper grounds exist for taking disciplinary action against Allan John Christie pursuant to section 88 and section 90(1)(a) of the Queensland Building Services Authority Act 1991, because that on a date or dates unknown between November 2010 and February 2011, Allan John Christie carried out tribunal work for which a licence is required without holding a licence of the appropriate class at 56 Hunter Street, Ipswich in the State of Queensland.
2. Proper grounds exist for taking disciplinary action against Allan John Christie pursuant to section 88 and section 90(1)(a) of the Queensland Building Services Authority Act 1991, because that on a date or dates unknown between 14 August 2010 and 14 January 2011, Allan John Christie carried out tribunal work for which a licence is required without holding a licence of the appropriate class at 306 Wishart Road, Mt Gravatt in the State of Queensland.
The parties will be directed to file submissions on penalty and, unless otherwise objected, the question of penalty will be determined on the papers without an oral hearing.
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