Queensland Building Services Authority v Rowlands

[2010] QCAT 308

CITATION: Queensland Building Services Authority v Rowlands [2010] QCAT 308

PARTIES:
First applicant:	Queensland Building Services Authority
Second applicant:	Elaine Eager
v
Respondent:	Geoffrey Allan Rowlands

APPLICATION NUMBER:   QD007-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 30 June 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The respondent pay a penalty of $2,500 within sixty days of today’s date.

CATCHWORDS :  Penalty – where failure to comply with direction to rectify – where subsequent compliance after proceedings commenced – deterrence – protection of public - section 89 QBSA Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. On 20 May 2008, the Authority issued a direction to rectify directed to Mr Rowlands. Mr Rowlands did not comply with that direction so the Authority filed these proceedings in the tribunal. The parties agree that proper grounds existed for taking disciplinary action against Mr Rowlands pursuant to section 89(1) of the Queensland Building Services Authority Act.

2. Mr Rowlands submits that the tribunal should impose no penalty:

a)At the time the notice issued, Mr Rowlands was diagnosed with throat cancer which altered his focus from business matters to personal preservation matters.

b)He has held a licence for 38 years and has never previously been issued with a direction to rectify or any other notice.

c)He has never been paid in full for the work done for Ms Eager.

d)The work the subject of the direction has now been completed to the Authority’s satisfaction even though Mr Rowlands had concerns about the proposed works.

e)He has completed other works at no cost to Ms Eager and without a direction from the Authority.

f)Ms Eager continues to pursue him for further work. Ms Rowlands says that these works were never part of the original scope of works.

1. The Authority submits that a penalty in the range of $2,000 to $3,000 is appropriate because:

a)A penalty should serve as a deterrent to both Mr Rowlands and others in the future so that no party may think that non-compliance is a viable commercial decision. In this regard, the Authority referred the tribunal to a number of decisions from the Commercial and Consumer Tribunal.

b)The public deserves protection from this sort of behaviour.

c)Mr Rowlands failed to take any steps to comply with the direction to rectify until these proceedings were filed.

d)If the Authority had issued an infringement, the amount of penalty would have been 20 penalty units, an amount of $2,000.

1. Ms Eager made no submissions other than by letter of 8 March 2010 in which she expresses a lack of confidence in Mr Rowlands being willing or able to attend to rectification.

2. I have scoured the tribunal file for any evidence to support Mr Rowlands’ submission that his diagnosis of throat cancer prevented him from carrying out the rectification work. There is a file note of a conversation between the case manager and “a man who picked up Mr Rowlands mobile phone” on 19 May 2009 in which “the man” advised that Mr Rowlands was in hospital. That is not enough. Mr Rowlands has not submitted any medical certificates that would enable the tribunal to verify his assertions. Given that the direction issued in May 2008, proceedings were issued in April 2009 and the rectification work was carried out some time after March 2010, the tribunal needs to know when the diagnosis was made and what effect the condition had on Mr Rowlands’ ability to work over a two-year period. Nothing has been provided; the tribunal cannot take that matter into account.

3. Mr Rowlands did not inform the Authority of his difficulties at the time the direction issued. It is possible that, if the Authority did have this information, it may have granted an extension of time in which to comply with the direction. The parties will never know.

4. Whether or not Mr Rowlands has been paid for all works the subject of contract between himself and Ms Eager is not relevant. The obligation to comply with a direction from the Authority does not depend upon full payment to the contractor. Similarly, the extra works performed and the continuing dispute between Mr Rowlands and Ms Eager is irrelevant.

5. The Authority accepts that the work has now been completed but it points out that this did not occur until these proceedings were filed.

6. The Authority is charged with the regulation of the building industry in a way which gives consumers confidence and does not bring the industry into disrepute. To enable the Authority to achieve these objectives, it is important that licensees understand that directions to rectify from the Authority are to be taken seriously and that failure to rectify can never be a viable commercial option.

10. The Authority would have issued an infringement notice for $2,000. It has been put to additional expense to secure compliance. I note Mr Rowlands’ previously good record. But for that, the penalty would have been even greater.

11. I direct that Mr Rowlands pay a penalty of $2,500 within sixty days.