Semmens v Thomas

[2002] QDC 333

DISTRICT COURT OF QUEENSLAND

CITATION:

Semmens  v Thomas [2002] QDC 333

PARTIES:

ROBERT VICTOR EDGAR SEMMENS
APPELLANT

and

DAVID THOMAS
RESPONDENT

FILE NO/S:

414/2001

DIVISION:

Justices Act Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

 10 September 2002

DELIVERED AT:

Southport

HEARING DATE:

29 May 2002

JUDGE:

Alan Wilson SC DCJ

ORDER:

1.   Appeal allowed

2.   Finding of Ms Cornack, Magistrate at Southport on 30 March 2001 be set aside and in lieu thereof the following finding be substituted:

(a) that the respondent David Thomas was on or about 10 May 2000 in breach of the Queensland Building Services Authority Act, section 72, in that he failed to rectify defective or incomplete building work as required by a direction given to him under s 72;

(b)  that David Thomas be fined the sum of $150.00, payable within three months of this order.

CATCHWORDS:

APPEAL – APPEAL UNDER JUSTICES ACT, S 222

STATUTES – CONSTRUCTION – meaning and effect of Queensland Building Services Authority Act (1991), s 72

Queensland Building Services Authority Act (1991), s 72

Cases considered:

He Kaw The v R (1985) 157 CLR 523

R v Maguire and Hanlon Homes Limited ex parte Builders Registration Board [1986] 1 Qd R

Wilson v Gahan (1999) VSC 72

COUNSEL:

Mr M J Burnett for the Appellant 

SOLICITORS:

Primrose Couper Cronin Rudkin for the appellant 

1. This is an appeal from a decision of Ms Cornack, Magistrate at Southport who, on 15 February 2001 heard two charges against the respondent, David Thomas, under ss 42, and 72 of the Queensland Building Services Authority Act (1991). The first, under s 42, involved an allegation that on 29 and 30 September 1999 he carried out building work in Queensland while he was not the holder of an appropriate licence under the Act. The second, under s 72, alleged that he failed to rectify defective or incomplete building work despite a notice under the legislation requiring him to do so. The hearing went into a second day, 30 March 2001 and the learned Magistrate delivered her reasons on that day. She found Mr Thomas not guilty of both offences.

1. The complainant appealed. The appeal is limited to the finding concerning s 72. it was heard on 29 May 2002, in the absence of the respondent. On 3 May 2002 His Honour Judge Hall had ordered that service of the notice of the appeal hearing upon the respondent be effected by way of a newspaper advertisement in “The Australian” and, as affidavit evidence showed, that occurred on 16 May.

Background

1. The case involved the application of a coloured concrete stencilling surface to an old and new concreted area at a house at 3 Douma Drive, Mudgeeraba.  As the transcript of the proceedings before the Magistrate and her Reasons show, contractual arrangements for the performance of this work were unclear.  One of the owners of the house, Mr Whittier, swore that he had asked a friend of his son called Ashley Gill, to do the…