Queensland Building Services Authority v Johnson
[2012] QCAT 367
•10 August 2012
| CITATION: | Queensland Building Services Authority v Johnson [2012] QCAT 367 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Philip Johnson |
| APPLICATION NUMBER: | OCR251-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Keith Dodds, Member |
| DELIVERED ON: | 10 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Johnson must pay the Queensland Building Services Authority a penalty of $5,000.00 within 60 days |
| CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – DISCIPLINARY PROCEEDINGS – where respondent carried out building work regarding provision of materials and construction – where respondent did not hold a contractor’s licence of the appropriate class under Queensland Building Services Authority Act 1991– whether proper grounds exist for disciplinary action – whether a penalty is an appropriate order in the circumstances Queensland Building Services Authority Act 1991, ss 3, 42, 88, 90, 91 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
REASONS FOR DECISION
This is an application by the Queensland Building Services Authority (“QBSA”) under ss 88 and 90(1)(a) of the Queensland Building Services Authority Act 1991 (“the Act”) to determine whether proper grounds exist for disciplinary action against the respondent Mr Johnson and, if so, to make an appropriate order under s 91 of the Act.
One of the orders which may be made under s 91 is to impose a penalty. QBSA seeks such an order. The maximum penalty which may be imposed is 200 penalty units ($20,000).
It is not disputed that Mr Johnson at the material time was not the holder of a contractor’s licence under the Act. Nor is it disputed that in March 2009 he provided a hand written quotation for construction of a deck onto the dwelling of one Wayne Boyd and carried out work involving provision of materials and construction of the deck pursuant to that quotation between May and July 2009.
An offence
Section 42 of the Act provides:
“(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act.
…
(9) A person who contravenes this Section commits an offence.
Maximum penalty – 250 penalty units”
Mr Johnson was issued with an infringement notice dated 28 October 2010 by the QBSA for an offence against s 42 of the Act – committed at Mr Boyd’s address, offence date 26 July 2009, penalty amount $2,000. Mr Johnson had the option of paying that penalty or electing to have the matter dealt with by a court. He apparently did not so elect and the penalty has been referred to the State Penalty Enforcement register for collection.
Disciplinary action
Section 90 of the Act provides:
“(1) … 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 licence is required without holding a licence of the appropriate class.”
Tribunal work is defined in s 75 of the Act. It includes:
“(b) the renovation, alteration, extension, improvement or repair of a building.”
This was the sort of work Mr Johnson performed at Mr Boyd’s dwelling.
In a submission by Mr Johnson dated 2 May 2012, he has said that Mr Boyd decided to be the builder of his deck. Amongst the papers provided to me is a Development Application (undated) signed by Mr Boyd for construction of a roofed deck at his dwelling. In the space for builder’s details thereon is inserted “owner”. In his submission Mr Johnson says he and Mr Boyd and another man constructed the deck. He says he was lured in as a friend to get involved in the deck and that he is the victim of a confidence trickster.
Included in the material provided to me is a hand written quotation by Mr Johnson to Mr Boyd for the construction of the deck. It is as follows:
“To Wayne.
36sqM Deck, all Aussie hardwood
with Roof guttering, downpipe to ground,
using existing stairs $21,600.
Any doors are extra (to kitchen and study) ? etc.
Under Owner Builder Permit.
Plans supplied by owner.
Private Certification fees also owner’s expense.”
Amongst the material provided to me are three independent building reports about the constructed deck. Without descending into detail, they all reveal very serious problems with the constructed deck, both in the materials used and in construction. Major remedial work is necessary.
Discussion
The objects of the Act set out in s 3 thereof are:
a)“to regulate the building industry –
i.to ensure the maintenance of proper standards in the industry
b)to provide remedies for defective building work; and
c)to provide support, education and advice for those who undertake building work and consumers.”
The principal purpose of disciplinary action under the Act is protection of the community. The system of licensing provided by the Act seeks to ensure those who undertake building work such as was done in this case are appropriately trained and qualified.
To address the principal purpose of this disciplinary action it is necessary to determine what order or orders provided for in s 91 of the Act are appropriate to emphasise the public importance of the Act’s licensing requirements, and the seriousness of unlicensed operators performing building work for which the Act requires they be licensed. Having considered the QBSA submissions about an appropriate order, I consider this may be achieved by a substantial penalty commensurate with all the circumstances: the nature of the contravention; the price of the work involved; the amount, if any, the recipient of the work has paid; the quality of the work done; and, the attitude of the unlicensed contractor to the disciplinary action.
Mr Johnson has not previously been dealt with for a breach of the Act.
$15,000 has been paid by Mr Boyd to Mr Johnson for the deck. He refused to pay any more. On 12 January 2010 Mr Johnson lodged a minor debt claim with QCAT for the balance he claimed was owing for work done and materials supplied for the deck. On 14 July 2010 QCAT dismissed the claim.
Mr Johnson has been penalised $2,000 for a breach of s 42. It appears he did not contest the penalty. He has not contested this disciplinary action. It may be remarked, with respect to both the breach of s 42 and the present proceeding, the evidence against him was overwhelming. Nonetheless, he has apparently accepted that proper grounds exist for this disciplinary action. The determination of the order or orders to be made has proceeded on the papers.
In submissions from the Authority there are brief details about the circumstances and penalties with respect to other disciplinary action under s 90(i)(a) of the Act. I have read those.
I am satisfied that proper grounds exist for taking disciplinary action against Philip Johnson pursuant to s 90(1)(a) of the Queensland Building Services Authority Act 1991.
In my view the appropriate order is that Mr Johnson pay the QBSA a penalty of $5,000 within 60 days.
The Authority does not contend there be any order for costs.
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