Queensland Building Services Authority v Colmer
[2013] QCAT 61
•18 January 2013
| CITATION: | Queensland Building Services Authority v Colmer [2013] QCAT 61 |
| PARTIES: | Queensland Building Services Authority (Applicant) |
| v | |
| Steven John Colmer (Respondent) |
| APPLICATION NUMBER: | OCR002-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 26 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Andrew McLean Williams, Member |
| DELIVERED ON: | 18 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent is to pay to the Queensland Building Services Authority a penalty of $3,000.00 within sixty (60) days; 2. The Respondent pay the Queensland Building Services Authority’s costs of these proceedings fixed in the amount of $1,500.00 within sixty (60) days. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – carpenters – failure to comply with a direction to rectify – factors relevant to penalty – comparable cases – factors relevant to the exercise of the discretion to award costs pursuant to QCAT Act, s 102 Queensland Building Services Authority Act 1991, ss 72(1), 75, 88, 89, 91 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Robert Lovrincevic, in-house solicitor |
| RESPONDENT: | No appearance by or on behalf of the Respondent |
REASONS FOR DECISION
Preliminary
On 6 January 2012 the Queensland Building Services Authority (‘QBSA’) commenced these disciplinary proceedings pursuant to s 88 of the Queensland Building Services Authority Act 1991 (‘the QBSA Act’), alleging a failure by Mr Steven John Colmer (‘the Respondent’) to comply with two directions requiring him to rectify defects in building works that had been undertaken by him at an address at Yathong Court, Arana Hills.
The QBSA alleges that on or about 6 May 2010 the Respondent failed to comply with Direction to Rectify No 34689 (‘the first direction’); and then alleges that on or about 9 July 2010 the Respondent failed to comply with a subsequent direction to rectify, No 35036 (‘the second direction’).
This matter came on for hearing before me on 26 September 2012. Mr Colmer made no appearance before the Tribunal on that occasion, although voluminous written submissions had been received by the QCAT Registry from the Respondent, prior to the date of the hearing.
Having satisfied myself that Mr Colmer had received sufficient notice of the hearing conducted on 26 September 2012, the matter proceeded to be heard in his absence, yet with regard to his written submissions.
Statutory Framework
As a starting point, it is to be recognised that the QBSA is conferred with various regulatory powers pursuant to the QBSA Act. As part of that, pursuant to s 72(1), the QBSA has the power to issue directions to building industry license holders requiring them to undertake rectification works, if the QBSA is of the opinion that building work undertaken by the license holder is either defective, or is otherwise incomplete. In the event that a direction to rectify is issued to a licence holder by the QBSA pursuant to s 72(1), then the license holder must satisfactorily address the defective or incomplete building work, within the time frame required by the direction.
Next, pursuant to sections 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’), QCAT is conferred with original jurisdiction in relation to any matters conferred upon QCAT by an ‘enabling Act’. The QBSA Act is just an enabling Act, and s 88 therein provides:
88. Tribunal has jurisdiction to conduct disciplinary proceeding
The authority may apply to the tribunal to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under this division.
Section 89 of the QBSA Act then provides:
89 Proper grounds for disciplinary action against a licensee
For section 88, proper grounds exist for taking disciplinary action against a licensee if—
…
(j) the licensee fails to comply with a direction of the authority to rectify or complete tribunal work.
‘Tribunal work’, is defined by a 75 of the QBSA Act, which (in part) provides:
75. Tribunal work defined
(1) The following is tribunal work –
(a) The erection or construction of a building;
(b) The renovation, alteration, extension, improvement or repair of a building;
(c) The provision of electrical work, water supply, sewerage or drainage or other like services for a building; and
…
(e) Any site work related to tribunal work of a kind mentioned in paragraphs (a) to (d).
It follows therefore that any satisfactorily proven failure by a building industry license holder to complete remedial works that have been required by a direction to rectify issued by the QBSA pursuant to s 72(1) of the QBSA Act thereby constitutes a breach of s 89(j) of the QBSA Act; thus giving rise to grounds for disciplinary proceedings, pursuant to s 88 of that Act.
In circumstances where proper grounds do exist for the taking of disciplinary action, QCAT has the powers conferred by s 91 of the QBSA Act, which 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 one or more of the orders mentioned in subsection s(3) to (5)
…
(3)The Tribunal may make an order imposing a penalty on a 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
…
(7)The Authority 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.
Factual Background
On or about 20 January 2010 the QBSA received a complaint from Mr Darryl Sinclair, who is one of the owners of the house at Yathong Court Arana Hills, where roofing renovation works had been performed by Mr Colmer. By that complaint Mr Sinclair alleged that the roofing work that had been undertaken by Mr Colmer (a QBSA licensed carpenter[1]) were defective, by reason that the roof leaked very significantly whenever it rained.
[1]At that time the respondent held QBSA Licence Number 47493 in the class of carpentry.
On 25 February 2010 a QBSA Inspector, Mr Angus Ross, inspected the roof at the house at Yathong Court, and was able to identify seven (7) defective or incomplete items in the roofing works undertaken by Mr Colmer.
On or about 8 April 2010 Mr Ross sent the Respondent the first direction to rectify (No 34689), requiring that Mr Colmer rectify the listed defective items within 28 days. Although some of the items listed in Direction 34689 were then rectified by Mr Colmer, as at 6 May 2010, not all of them had been addressed by him.
On or about 11 June 2010 Mr Ross then caused the second Direction to Rectify (No 35026) to be issued to Mr Colmer requiring that he attend to the rectification of two (2) further defective items found in the roof at the house at Yathong Court, within a further 28 days. As at 9 July 2010 the Respondent had failed to rectify either of the items listed in the second Direction.
On the basis of the evidence adduced before QCAT by the Applicant, I am fully satisfied that proper grounds[2] exist for the taking of disciplinary action against the Respondent, in relation to each of the first and the second Directions to Rectify.[3]
[2] QBSA Act, s 89(j).
[3]Queensland Building Services Authority v Wayne David Turner (unreported, D143-99, 21 September 1999, per Member Lohrisch (CCT)).
As was noted by Mr Wensley QC in the matter of Queensland Building Services Authority v Brian Frederick Black:[4]
“… [O]nce the [Authority] has demonstrated that there has been a relevant direction and failure to comply with it, proper grounds for taking disciplinary action are established. It is quite irrelevant to that determination that the builder may have had some reason, even a good reason, for failing to comply with the direction.”
[4] (unreported D033.92, 13 April 1993, at page 4 (CCT)).
The Respondent’s Submissions to QCAT
As indicated, this matter was determined in the absence of Mr Colmer, yet with necessary regard for all of the extensive written submissions filed by him, in the QCAT Registry. Unfortunately none of these materials are in any way responsive to any of the germane matters for determination by QCAT, and by those submissions Mr Colmer seeks, instead, to challenge the jurisdiction of QCAT, on misconceived jurisdictional grounds. This is no simple matter of mistake. The Respondent has even been so bold enough as to create novel legal documents in an effort to thwart these disciplinary proceedings. Despite the Respondent’s materials I am comfortable in concluding that QCAT has all the necessary jurisdiction to determine this matter.
Penalty
I am satisfied that the evidence reveals that some attempts were made the Respondent to respond to the first Direction to Rectify (No 34689), albeit those attempts were incomplete and/or unsuccessful. The QBSA submits, and I accept, that this ought be treated as a mitigating factor and taken into account in relation to the determination of penalty.
Noting that the intent of disciplinary proceedings under the Act is to protect members of the community and at the same time assist to ensure the maintenance of proper standards within the building industry;[5] and noting also the seriousness with which non-compliance by a licensee with a direction to rectify issued by the QBSA is to be regarded,[6] I determine that an appropriate pecuniary penalty in this instance should be assessed in the cumulative sum of $3,000.00, for both breaches. This case is highly analogous to that which arose in Queensland Building Services Authority v Last Laugh Pty Ltd,[7] where a similar penalty was imposed.
[5] Queensland Building Services Authority v Taylor [2005] QCCT B70, at para 25.
[6] QBSA v Classic Concrete Australia Pty Ltd [2008] CCT QD013-08.
[7] [2011] QCAT 263.
Costs
The QBSA seeks its costs for being required to prosecute these disciplinary proceedings against Mr Colmer. I have had regard to the general rule regarding costs in s 100 of the QCAT Act, as well as for the provisions of ss 48 and 102(3), and the guidance afforded by the Court of Appeal in its decision in Tamawood Ltd & Anor v Paans.[8] In my view the manner in which the Respondent determined that he would conduct his response enlivens s 102(3)(a) and (c) of the QCAT Act, such that a costs order against the Respondent is warranted. The QBSA should now have its costs, as requested, which I fix in the sum of $1,500.00.
[8] (2005) QCA 111.
Orders
The orders of the Tribunal are as follows:
1. That in relation to the failure to comply with Direction to Rectify No 34689 and Direction to Rectify No 35026 the Respondent is to pay to the QBSA a cumulative penalty of $3,000.00 within sixty (60) days;
2. That the Respondent pay the QBSA’s costs of these proceedings fixed in the amount of $1,500.00 within sixty (60) days.
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