Queensland Building Services Authority v Tungate
[2010] QCAT 470
•27 September 2010
| CITATION: | Queensland Building Services Authority v Tungate [2010] QCAT 470 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Mr Bradley Ryan Tungate |
| APPLICATION NUMBER: | QD030-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Anne Forbes |
| DELIVERED ON: | 27 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
| CATCHWORDS : | Disciplinary proceedings against officer of company – failure to ensure compliance of company with directions to rectify defective work – penalty $1200 – application for costs dismissed. |
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
These are disciplinary proceedings brought by the Queensland Building Services Authority (“the Authority”) against the Respondent, Bradley Ryan Tungate. At material times Tungate held a contractor’s licence to perform certain classes of building work.
The Tribunal’s jurisdiction in this matter is conferred by section 88 of the Queensland Building Services Authority Act 1991 (“the QBSA Act”). The application filed on 9 November 2009 in the former Commercial and Consumer Tribunal is now a pending proceeding under section 245 of the Queensland Civil and Administrative Tribunal Act 2009 [“ the QCAT ACT”). While QCAT has jurisdiction to deal with a pending proceeding “it has, and only has, the functions that the former entity had in relation to the matter under the former Act”.[1]
[1] The QCAT Act sections 256 and 271.
The application consists of a charge involving breaches of the Domestic Building Contracts Act 2000 (“the DBC Act”) and of section 68(1) of the QBSA Act. On 2 February 2010 the parties joined in an Application for Decision/Order by Consent in these terms:
“1. That proper grounds exist for taking disciplinary action against BRADLEY RYAN TUNGATE, in that on the 28th day of February 2009 BRADLEY RYAN TUNGATE who was, at the relevant time, a licensee within the meaning of the Queensland Building Services Authority Act 1991 (“the Act”), and an executive officer of One City Pty Ltd, ACN 091 407 082 (“the Company”), failed to ensure the Company complied with items 14 and 16 of Directions to Rectify and/or complete Number 32557, to rectify Tribunal work at 61 Birchwood Crescent, Brookwater in the State of Queensland, in contravention of section 111B(2) of the Act;…”
The parties also consented to orders that the remaining issues of penalty and costs be determined on the papers after they had filed their respective submissions. They have now done so.
Background:
The Respondent was appointed as a director of the Company on 2 February 2002. On 1 September 2005 the Respondent and the Company were each issued with a licence in the class of “Builder-Low Rise.” The Company constructed a building at the above address. On 8 January 2009 the Authority issued a direction to the Company to rectify 16 items of work at the property assessed as defective work. The Company was required to comply with the direction by 27 February 2009. The Respondent says that the Company attended to the rectification work by that date.
On 17 March 2009 the Authority notified the Company that the rectification work had not been performed to a satisfactory standard in respect of three items[2] within the prescribed time and on 20 March 2009 issued an infringement notice. The Company elected on 22 April 2009 to have the matter referred to the Court but on 24 June 2009 liquidators were appointed. In July 2009 an insurance claim under the Act in the sum of $14,483.90 was approved. The Application before the Tribunal concerns only Direction Items 14 and 16; the parties have reached a compromise on Item 9.
[2] Directions Items numbered 9,14 and 16.
The Authority commenced the present proceedings against the Respondent for a breach of section 111B(2) of the Act which attaches liability to executive officers of a company for failing to ensure that the company complies with the Act. An offence carrying a maximum penalty of 250 penalty units is committed by a person who, having received a direction by the Authority, fails to rectify building work.[3] The Tribunal is authorised by section 91 of the QBSA Act to impose a penalty on an individual of up to 200 penalty units.
[3] QBSA section 72(10).
Submissions by the Authority on Penalty:
It is well settled that the focus of, and paramount consideration in, disciplinary proceedings such as the present claim is the protection of the public rather than punishment of the offender.[4] [The Authority has referred the Tribunal to the line of decisions in point.] Moreover, the objects of the Act include ensuring the maintenance of proper standards in the industry and providing remedies for defective building work.
[4] NSW Bar Association v Evatt(1968) 117 CLR 177 at 183; Clyne v NSW Bar Association(1960) 104
Relevant factors for the determination of the appropriate penalty are to be found in section 111B(2) of the QBSA Act. They include:
- To what extent the level of penalty might serve as a deterrent to such conduct;
- The gravity of the conduct considered in the context of consumer protection;
- Any satisfactory explanation for the breach offered by the offender;
- Any likely re-occurrence of the breach;
- Whether the offender admitted the breach at the earliest opportunity; and
- A need to establish consistency in level of penalties imposed.
The Authority contends that there exist aggravating circumstances relevant to penalty: namely, that it has expended about $14,500 in rectifying the company’s defective work; that the Company is not entitled to a discount because it originally elected to have a court hearing; and that the Company has been directed on an earlier occasion to rectify defective work.
10. The Authority points to a mitigating factor in favour of the Respondent, namely, that he did attempt to rectify the defective work, and that he has admitted his failure as an officer of the company to ensure its compliance with the statutory direction.
11. The current value of a penalty unit is $100.00.[5] The Authority submits that the subject breach deserves a moderate penalty in the range of $6,000 to $6,500.
[5] Penalties and Sentences Act 1992, section 5(1)(b)
Submissions by the Respondent on Penalty:
12. The Respondent objects to the Tribunal having any regard to any previous order against the Company, as a separate entity in law, and without any particulars of the circumstances and grounds of the complaint. He contends that the rectification cost of the defective work cannot provide a measure of the gravity of the breach, absent any disclosure of the particulars of the costs. He says that when action was commenced against him personally in November 2009 he entered an “early plea” within three months.
13. The Respondent points out that the Company rectified 14 of the 16 Directions Items and that he received notice of three outstanding items only three days before the issue of the infringement notice, allowing him or the Company insufficient time to complete the task. He points out that the Company had already complied with Item 9 and that the Company was justified in that context in electing to have a court determine the matter.
14. On quantum of the penalty the Respondent relies on a 1996 decision of the former Queensland Building Tribunal[6] in which the adjudicator stated that the range of appropriate penalties in similar matters was $1000 to $3000. The Respondent submits that his breach is at the low end of the scale and that he should be liable to a penalty of $500-$1000.
[6] Queensland Building Services Authority v Homelodge Pty Ltd D221-95 [1996] QBT 8
15. It appears from the Respondent’s submissions that the Authority issued an infringement notice to the Company at the same time as it issued one to him, and that it fixed the penalty at $2000. Consequently, so says the Respondent, it is inequitable for the Authority to seek a greater penalty.
Costs:
16. The Authority seeks $500 in costs against the Respondent for its attendance at two directions hearings and the preparation of a witness statement and its submissions on penalty and costs. It relies on section 102 of the QCAT Act (which lists several factors that may enliven the discretion to award costs).
17. Its grounds are:
- That the Authority has conducted the proceedings in fair and proper manner;
- It was appropriate for the parties to have legal representation;
- The strength of the authority’s claim given that the Respondent formally admitted the breach;
- Additional expense brought about by the Company’s initial election for a court determination;
- Costs should follow the event.
18. The Respondent submits that the cost provisions of both the QCAT Act and the former Commercial and Consumer Tribunal Act 2003 (“the CCCT Act”) commence from the presumption that parties should bear their own legal costs, and that the Authority has pointed to no circumstance that should disturb that position. The Authority was required by statute to file material in support of its application and the Respondent contends that neither his conduct not any supposed legal complexity altered the normal procedural requirement.
Consideration and Findings:
19. The Authority identified some 16 items requiring rectification. The Respondent attended the subject property and carried out rectification work on all items but failed to satisfy the building inspector on items numbered 9, 14 and 16. By agreement, the Application is confined to the items 14 and 16. Those two concern unsatisfactory paint work on an external rendered masonry wall in the area of a back deck, and a roughly completed control joint on an external wall.
20. I am unable to determine whether the Respondent might have completed the rectification on items 14 and 16 had he been given an opportunity. I note that only three days elapsed between the issue of the notice of unsatisfactory rectification and the issue of the infringement notice. It cannot be said that the Respondent acted in flagrant disregard of the Direction to Rectify.
21. I am not persuaded that there are any aggravating circumstances relevant to the penalty. The Company rather than the Respondent initially claimed its statutory right to a court determination, no doubt because item 9 was then in dispute. The vague and un-detailed reference by the Authority to the earlier history of the Company is not relevant to the current breach. The reference to moneys allegedly spent on rectification is lacking particulars and is disregarded.
22. I find that the breach is at the lower end of range of offences and the penalty should reflect this. The range of penalties in the Homelodge decision in 1996 and suggested by the Respondent is too remote to be of assistance. Bearing in mind the purpose of disciplinary proceedings, the factors in section 111B of the QBSA Act, and the facts in this matter, I find that a penalty of $1,200 is appropriate.
Turning to the application for costs:
23. The Tribunal’s jurisdiction to award costs is a statutory creation. The listing by the Authority of decisions dealing with the exercise of the common law tradition is not of assistance. The decision of the Court of Appeal in Tamawood v Paans[7] is frequently cited in applications for costs in tribunal proceedings. In that decision Justice Keane was at pains to point out, in reference to the costs provision of the former CCT Act that:
“…it is clear that the power of a Court or Tribunal to award costs to a party is now the creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the Courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.” Emphasis added.
[7] [2005] QCA 111
24. Section 102 of the QCAT Act and section 70 of the CCCT Act which list the factors enlivening the discretion to award costs are in almost identical terms although differently arranged. However, the principal provision, section 100 of the QCAT Act has a significant difference from its counterpart, section 70 in the now repealed CCCT Act.
QCAT Act Section 100: “Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
CCCT Act Section 70: “The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.”
25. The starting point under the QCAT Act is that parties must pay their own costs unless one of them can point to a basis that is “in the interests of justice” within section 102. It is arguable that the QCAT Act has strengthened the presumption against an award of costs and that the Tamawood decision (where costs were awarded to the successful party) should now be considered in the context of section 100.
26. Having considered the several grounds raised by the Authority to support an award for costs. I find that it has not displaced the presumption and so dismiss that part of its application.
Orders:
- The Respondent will pay the Applicant the sum of one thousand two hundred dollars [$1200.00] by way of penalty on or before 4:00pm on 25 October 2010
- The application for costs is dismissed.
CLR 186 at pp201,202; Filippini v Chief Executive ,Department of Tourism, Fair Trading & Wine
Industry Development [2008] QCA 96; Queensland Building Services Authority v Taylor,R [2005]
QCCTB70At 25
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