Queensland Building Services Authority v Reid
[2012] QCAT 199
•17 May 2012
| CITATION: | Queensland Building Services Authority v Reid [2012] QCAT 199 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Gary Andrew Reid |
| APPLICATION NUMBER: | OCR091-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 17 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Proper grounds exist for taking disciplinary action against Gary Andrew Reid pursuant to s 89(j) of the Queensland Building Services Authority Act1991. 2. Gary Andrew Reid will pay a penalty of $3,000 to the Queensland Building Services Authority by 10 August 2012. 3. Gary Andrew Reid will pay the costs of the Queensland Building Services Authority fixed at $1,500 by 10 August 2012. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – BUILDERS – where builder failed to comply with direction to rectify – where builder submitted direction incapable of compliance – where defective roof and considerable rain during rectification period – factors relevant to penalty COSTS – whether costs should follow the event – whether builder should pay the Authority’s costs of the proceeding Queensland Civil and Administrative Tribunal Act 2009, ss 43, 100, 102 Queensland Building Services Authority Act 1991, ss 3, 89(j) Queensland Building Services Authority v Last Laugh Pty Ltd [2011] QCAT 263 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms K Haywood, in-house lawyer of the Queensland Building Services Authority |
| RESPONDENT: | Mr G Reid assisted by Mr M Reid |
REASONS FOR DECISION
Mr Reid built a house for Mr John Atchison. Mr Atchison and his family moved into the house in December 2007. In January 2008, Mr Atchison noticed that water was penetrating a number of areas of the home, principally through the roof.
In July 2008, Mr Atchison lodged a complaint with the Authority. The Authority issued a direction to rectify to Mr Reid and he complied with that direction.
Mr Atchison lodged a second complaint with the Authority in October 2010. On 12 November 2010, the Authority issued a second direction to rectify.
The Authority says that Mr Reid has not complied with the second direction to rectify, so it has referred Mr Reid to the tribunal for disciplinary proceedings.
The Authority submits that, in deciding whether to take disciplinary action, the tribunal must be satisfied of four matters:
a)That Mr Reid was a licensee.
b)That the Authority issued a direction to rectify.
c)The direction to rectify related to tribunal work.
d)That Mr Reid failed to comply with the direction to rectify.
Mr Reid does not dispute that: he is a licensee; the Authority issued a direction to rectify; the direction to rectify related to building work or that he did not comply with the direction to rectify. He submits that the tribunal should not take disciplinary action because the direction to rectify was not capable of compliance. He says that he could not comply with the direction to rectify because of: the rainfall at the time; the impending Christmas shutdown of the building industry; and Mr Atchison’s refusal to provide access to enable rectification.
There is no doubt that there was significant rainfall in the period 12 November 2010 to 24 December 2010. The Authority has conceded that fact. It is well known that the building industry shuts down over the Christmas period. Those factors may be reasons why Mr Reid did not comply with the direction to rectify within time but it does not mean that Mr Reid could not comply the direction to rectify.
At the hearing, Mr Reid raised two further issues. Firstly, he says that at a meeting on 15 December 2010, Mr Atchison agreed that a third party, Metal Line North Roofing, would start rectification work on 10 January 2011.
In his affidavit filed 14 October 2011, Mr Reid states that, at the meeting on 15 December Mr Asher from Metal Line indicated he could not do the work straight away but he could return in the New Year to do the work. Mr Reid records that Mr Atchison said he would be away until 9 January 2011. Mr Reid then states:
“it was then agreed that Metal Line North would attend on 10 January 2011 to begin the work discussed during this meeting.”[1]
[1] Paragraph 28.
[10] Significantly, Mr Reid does not record who said what to conclude the agreement.
[11] Mr Asher has provided an affidavit. He records that:
I told the Owner that I could not get the work done until after the 5 January 2011 …
…the Owner indicating that he would be on holidays till 10 January 2011 and that the work could be done after that date. It was arranged by me to ring the Owner after that date to commence the work to the roof. At this time, I understood that all parties, including the owner, had agreed that Metal Line North would commence the work after the owners returned from holidays on 10 January 2011.[2]
[2] Affidavit sworn 14 October 2011, paragraphs 11 and 12.
[12] Mr Reid cross-examined Mr Atchison at the hearing. Mr Atchison agreed that Mr Asher said he could not start the job until January 2011. He agreed that he told the meeting he was away until 10 January 2011. He denied that he agreed to allow Mr Asher to start rectification on that day.
[13] The Authority filed an affidavit from Mr Atchison on 19 September 2011. The body of the affidavit does not refer to the meeting of 15 December but Mr Atchison sent an email to the Authority that evening. He wrote:
The roofing company Metal Line said straight out that they are busy up until Xmas and are then off for two weeks. They asked me to be patient, but I said if they were the company that Gary was getting to rectify the roof, the time frames for when they could do it was up to ‘Gary’ to sort out as this is ’his’ concern & not mine, as he knows the situation…
….this could not be done by prior to Xmas. I said to them that this was not their problem, but Gary’s which he said he understood to me when I asked him this. I don’t ‘care’ who he engages, as long as they are licensed & knows what they are doing, and can rectify things, but Gary has had ‘ample’ time to even ‘start’ arranging things, and today was his attempt to possibly try to buy some more time with yourselves…
…Surely by doing this, this would not put Gary Reid in a position to request a ‘further’ extension.[3]
[3] Exhibit JA10.
[14] These are not the words of a man who, according to Mr Reid and Mr Asher, has “agreed” that Metal Line would attend on 10 January 2011 to start rectification.
[15] Mr Reid sent a letter to the Authority on 24 December 2010. The last line of that letter states:
I have engaged the services of Metal Line North to carry out a report on the roof area on the 10th of January 2011, to determine whether there is any other problem areas.[4]
[4] Exhibit WS8 to the affidavit of William Shipp filed 19 August 2011.
[16] That statement is not consistent with “an agreement” that Metal Line would attend to start rectification on 10 January 2011. I prefer the contemporaneous evidence of the documents and find that Mr Atchison did not agree that Metal Line could attend on 10 January 2011 to start rectification work.
[17] The second issue Mr Reid raised at the hearing is that the Authority’s emails led him to believe that he would not be able to seek a further extension of time to complete the direction to rectify. He relies on an email to him from Mr Shipp, an inspector from the Authority dated 13 December 2010 which says:
Further to your request, the BSA is willing to extend the Direction to Rectify period a further 14 days, being considered the limit of BSA’s discretion regarding sufficient time to rectify the defective Building Work at the above address. This is based on the repair or replacement of the roof/s being a 1 or 2 day standard operation.[5]
[5] Exhibit WS7 to Mr Shipps’ affidavit.
[18] Mr Reid also relies on an email from Mr Shipp to Mr Atchison dated 16 December 2010 in which Mr Shipp states:
… if Gary Reid chooses to meet his obligations after that time (i.e. in January 2011) you will need to provide access to his contractors.[6]
[6] Exhibit JA-11 to the affidavit of Mr Atchison.
[19] On reflection, as he conceded in cross-examination, Mr Shipp may have phrased both of those emails more elegantly. The email to Mr Atchison did not come to Mr Reid’s attention until these proceedings started. I do not see how it could have influenced Mr Reid’s deliberations about whether to ask for a further extension of time.
[20] The question of whether or not Mr Reid was dissuaded from seeking a further extension is a distraction. When he asked for the first extension on 14 December 2010, Mr Reid referred to the “constant rain” over the last 30 days but Mr Reid’s timeline records “7 days without rain to 18/11/10.” Mr Reid does not explain what action, if any, that he took between 12 November 2010 and the request for an extension. He did not order the necessary flashings until 13 December 2010. He did not have Metal Line attend site until 15 December 2010.
[21] On 23 December 2010, Mr Reid and a plumber installed the flashing, and made some further repairs. Mr Reid could have asked for a further extension to allow Metal Line to undertake repairs but it is implicit in his letter of 24 December 2010 that Mr Reid thought he had “done enough” to comply with the direction to rectify.
[22] Mr Reid also complains that Mr Atchison did not provide access on the afternoon of 24 December 2010, effectively reducing the time for compliance with the direction to rectify by one day. By that time, either Mr Reid thought he had complied, hence the letter to the Authority, or he could not comply because he was waiting for Metal Line to attend on 10 January 2011. I find that Mr Atchison’s refusal to allow access on 24 December 2010 did not mean that the direction to rectify was incapable of compliance.
[23] Even if I had found that Mr Reid could not comply with the direction to rectify, it is not a matter that I can take into account in these proceedings. Mr Reid did not challenge the direction to rectify, as he was entitled to do, nor did he seek an extension.
[24] I find that there proper grounds for disciplinary proceedings exist because Mr Reid has failed to comply with a direction of the Authority to rectify tribunal work.[7] As Mr Wensley QC stated in Queensland Building Services Authority v Brian Frederick Black[8]:
[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.
[7] Section 89(j) Queensland Building Services Authority Act 1991.
[8] Unreported D033/92, 13 April 1993.
Penalty
[25] The Authority has submitted that the matters raised by Mr Reid go to penalty, not whether or not proper grounds exist for disciplinary proceedings.
[26] The Authority urges a penalty of between $3,000 and $5,000.
[27] Mr Reid says:
a)The Authority’s submissions are designed to discourage builders from natural justice in contested matters.
b)The Authority has a role in protecting the rights of builders.
c)He has shown a clear commitment to rectification but was limited by the weather and Mr Atchison.
d)He has spent $6,000 defending this proceeding and had to pay the Authority $20,000 for the rectification undertaken by others.
[28] The Authority’s submissions that are supposedly contrary to natural justice are that:
a)I should impose a penalty equal to or higher than the Infringement Notice to avoid opening the floodgates for licensees to contest a matter simply to obtain a lower penalty.
b)I should impose a penalty that reflects the tribunal’s intolerance of licensees who failed to comply with their obligations and signal support for the regulatory regime.
c)The penalty should have a deterrent effect both with Mr Reid and the industry at large.
d)A significant penalty will properly reflect Parliamentary intention and “place” consumer confidence in the building industry.
[29] I agree with Mr Reid that the floodgates argument is not a proper consideration. Licensees are entitled to seek a lower penalty that that provided in the Infringement Notice and there may be situations where a lower penalty is justified. A licensee should not expect to receive a higher penalty just because of review proceedings in the tribunal. The tribunal must come to its own decision about the penalty, based upon all of the facts and circumstances before it.
[30] The tribunal’s power to impose disciplinary proceedings is part of a legislative matrix aimed at ensuring the maintenance of proper standards in the building industry; to achieve a reasonable balance between the interests of building contractors and consumers; provide for remedies for defective building work; and provide support, education and advice those who undertake building work and consumers[9]. It is not part of the tribunal’s remit to express intolerance of licensees who fail to comply with their obligations or to signal support for the regulatory scheme.
[9] Section 3 QBSA Act.
[31] However, the penalty imposed should have a deterrent effect on both Mr Reid and the industry at large. The penalty should otherwise reflect the seriousness of the breach and the attitude of the licensee to the regulatory regime.
[32] The tribunal often hears complaints from licensees that the Authority is biased towards the homeowner, as it often hears complaints from the homeowner that the Authority is biased towards the builder. The truth is that, as s 3(a)(ii) of the Queensland Building Services Authority Act 1991 points out, the Authority is part of a regime designed to achieve a balance between competing interests. Issuing a direction to rectify, and bringing an application for disciplinary proceedings, are simply administrative actions taken to achieve that balance. I do not accept that the Authority’s actions in this proceeding show any evidence of bias towards Mr Atchison.
[33] The Authority’s argument that it has spent $25,207 in rectification by a third party is nullified by the fact that there is an agreement that Mr Reid will reimburse the Authority $20,000 for that cost.
[34] Mr Reid asserts that he has already been penalised by spending $6,000 on legal costs in defending these proceedings. The main purpose of the tribunal is that parties represent themselves[10] and that each party to a proceeding bears that party’s own costs of the proceeding.[11] Mr Reid was not given leave to be represented in the proceedings. It was his choice to incur legal costs and that fact can have no bearing on my consideration of the appropriate penalty.
[10] Section 43 Queensland Civil and Administrative Tribunal Act 2009.
[11] Section 100 QCAT Act.
[35] Both parties have directed my attention to Queensland Building Services Authority v Last Laugh Pty Ltd[12] as being analogous to the present proceedings. The Authority submits that Last Laugh justifies a penalty of $3,000. Mr Reid submits that, because he turned up and defended the proceeding, he should not have to pay a penalty.
[12] [2011] QCAT 263.
[36] That Mr Reid turned up to defend the proceedings does not assist him. The Authority has always argued that Mr Reid’s reasons for the failure to comply with a direction to rectify are relevant to penalty only and do not affect his responsibility for the breach. My decision has been made on that basis. Mr Reid’s refusal to recognise that threshold principle has put the parties to additional expense through a hearing.
[37] Mr Reid conceded at the hearing that, if I did not accept that the direction to rectify was incapable of compliance, the best position for Mr Reid was that described in Queensland Building Services Authority v T & T Building Pty Ltd[13]. In that case, the builder completed the direction to rectify outside the nominated time period. The tribunal still imposed a penalty of $3,000.
[13] [2008] CCT QD009-08.
[38] Adopting the rationale in Last Laugh and T & T Building, I find that a penalty of $3,000 is appropriate.
Costs
[39] The Authority asks for an order that Mr Reid pay its costs of the proceeding calculated at $1,500. It says that a costs order is justified because:
a)It has always conducted its case in a way that allowed Mr Reid to be fully aware of the case brought against him.
b)The nature and complexity of the case required it to prepare material, confer with witnesses, file submissions and attend multiple directions hearings.
c)Mr Reid did not, in fact, contest the disciplinary charge but raised matters of mitigation.
d)The proceedings were only necessary because of Mr Reid’s refusal to accept that, pursuant to s 89(j) of the QBSA Act, proper grounds existed for disciplinary action against him.
e)Costs should follow the event.
[40] Mr Reid argues that each party should bear its own costs and that an order he pay the Authority’s costs is, effectively, the imposition of a further penalty. He also says that the imposition of an order for costs would present real financial hardship as he is nearing the end of his working career and that the decision to impose costs would delay his withdrawal from the workforce.
[41] Mr Reid says that s 100 of the QCAT Act rebuts the presumption that costs follow the event except in the circumstances set out in s 102. He argues that the mere fact that this is a disciplinary matter is not enough to overturn the presumption in s 100. Further, Mr Reid says that the Authority has not sufficiently demonstrated that the interests of justice require an order for costs.
[42] I do not accept the Authority’s argument that costs should follow the event and I note that this submission is in contradiction to an admission the Authority made to the tribunal in Last Laugh[14].
[14] Supra at [31].
[43] I am satisfied that neither party in this proceeding acted in a way that unnecessarily disadvantaged the other. I am also satisfied that the nature and complexity of this proceeding does not, in isolation, justify an order for costs.
[44] The Authority’s argument that Mr Reid never, in fact, denied his failure to comply with the direction is compelling. Even if Mr Reid wrongly took the view that he could not ask for a further extension of time and even if that view was formed because of an email from the Authority, it should have been obvious to Mr Reid at an early stage in the proceedings that the QBSA Act allowed no latitude in that regard. In other words, there was never any “defence” to the disciplinary action, and the proceeding was always a question of penalty.
[45] Because Mr Reid’s application had no merit, and because the Authority is obliged to prosecute disciplinary matters that come to its attention so as to ensure licensees’ compliance with the Act, it is appropriate that Mr Reid pay the Authority’s costs of the proceeding. This approach is consistent with the approach taken by the learned Senior Member in Last Laugh[15]. In the circumstances, $1,500 is a modest amount.
[15] Supra at [37].
[46] I have some sympathy for Mr Reid’s argument that he will suffer a financial hardship but I do not consider costs of $1,500 to be such as impost that it will lead to Mr Reid’s financial ruin.
Orders
[47] Proper grounds exist for taking disciplinary action against Gary Andrew Reid pursuant to s 89(j) of the Queensland Building Services Authority Act 1991.
[48] Gary Andrew Reid will pay a penalty of $3,000 to the Queensland Building Services Authority by 10 August 2012.
[49] Gary Andrew Reid will pay the costs of the Queensland Building Services Authority fixed at $1,500 by 10 August 2012.
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