Queensland Building and Construction Commission v Nuttall
[2015] QCAT 203
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- Unreported Judgment
- Queensland Building and Construction Commission v Nuttall[2015] QCAT 203
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Queensland Building and Construction Commission v Nuttall[2015] QCAT 203
Queensland Building and Construction Commission v Nuttall[2015] QCAT 203
CITATION: | Queensland Building and Construction Commission v Nuttall [2015] QCAT 203 | ||
PARTIES: | Queensland Building and Construction Commission (Applicant) v Ashley Leonard Nuttall (Respondent) | ||
APPLICATION NUMBER: | OCR179-14 | ||
MATTER TYPE: | Occupational regulation matters | ||
HEARING DATES: | 30 March 2015 | ||
HEARD AT: | Townsville | ||
DECISION OF: | Member Pennell | ||
DELIVERED ON: | 10 June 2015 | ||
DELIVERED AT: | Townsville | ||
DECISION MADE: |
| ||
CATCHWORDS: | DISCIPLINARY PROCEEDINGS – where Respondent was a co-director of a company – the company contravened condition of its license by co-ordinating the installation of 182 hot water systems – the Commission warned the company that it was contravening the legislation – the company ignored Commission’s warning and continued contravening the legislation. COSTS – DISCRETION TO ORDER COSTS – whether interest of justice requires a costs order to be made against the Respondent – where the Commission sought an amount for bringing proceedings – discretion to award costs – factors to be taken into account in a particular case – Respondent co-operated with Commission – where no disadvantage to the Commission – presumption that each party bears its own costs – public policy of legislation to establish a no cost jurisdiction. Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 5, s 89(a), s 89(k), s 89(g) Queensland Civil and Administrative Tribunal Act 2009 (Qld s 48(1) s 100, s 102, s 107 Justices Regulation 2014 (Qld), Schedule 2 - Part 2 Corporations Act (Cth) s 180(1) Nursing and Midwifery Board of Australia v Ascot [2011] QCAT 266 Paridis v Settlement Agency Advisory Board (2007) 33 WAR 361 Green v The Queen (2011) 244 CLR 462 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 QBSA v Abu-Dabat [2006] L016-05 QBSA v Nortask [2011] QCAT 164 QBSA v Ventura Quality Painters Pty Ltd [1996] QBT 136 QBSA v Webster t/as Multiskill [2003] CCT L031-04 QBSA v Taylor [2005] QCCTB 70 QBCC v Airconstruct H.V.A.C. Pty Ltd [2014] QCAT 72 QBSA v Flowtech Hydraulics Pty Ltd [2013] QCAT 517 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 | ||
APPEARANCES and REPRESENTATIONS: |
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APPLICANT: | Mr Scott Seefeld of Counsel instructed by the QBCC | ||
RESPONDENT: | Mr Darin Honchin of Counsel instructed by Rennick Lawyers | ||
REASON FOR DECISION
Introduction
- [1]The Applicant is the Queensland Building and Construction Commission (“the Commission”). The Respondent is Ashley Leonard Nuttall (“Mr Nuttall”).
- [2]The Commission is a statutory body established by section 5 of the Queensland Building and Construction Commission Act 1991 (Qld) ("the QBCC Act"). One of the objects[1] of the QBCC Act is the regulation of the building industry to ensure proper standards of the industry.
Background
- [3]The Commission commenced disciplinary proceedings against Mr Nuttall pursuant to the QBCC Act for directly or indirectly causing tribunal work to be carried out. That work was the installation of 182 hot water systems by NQ Go Green Technology Pty Ltd ("the Company") in contravention of the condition on the Company's license between 1 June 2010 and 1 February 2012.
- [4]Mr Nuttall was a co-director and operator of the Company until its voluntary deregistration on 21 April 2014. The company traded under the name of Solarhart Townsville. The other co-director was Gregory Dean Bennett.[2]
- [5]The Commission’s allegations are that on each of those 182 installations, Mr Nuttall contravened a requirement of the license,[3] and further, contravened a condition of the license[4] and knowingly helped another person[5] (being NQ Go Green) to perform tribunal work in contravention of the condition of its license.
- [6]A company must have a Nominee in order for a license to be issued to that company, and the company can only hold a license in the same class as its nominee. Mr Nuttall does not, and has never held a license with the Commission, however Mr Bennett did hold a QBCC License.[6] He was the Nominee for the Company.
- [7]There is no suggestion that the Company was engaging in unlicensed contracting pursuant to section 42(1) of the QBCC Act, however, by engaging in and co-ordinating the installation of hot water systems, the Company was acting outside the condition of its license.
- [8]As a result of an investigation carried out by the Commission in May 2010 into the installation of hot water systems by companies in the Townsville area the Commission telephoned the Company and spoke to Mr Nuttall. The advice given to him was that the Company could not be involved in the installations of the hot water systems without an appropriate license. This same advice was the provided by the Commission to the Company by way of a formal letter in which stated:
“It does not matter whether a director or employee of the company hold a license, or of the company uses licensed contractors or subcontractors to perform building work – if the company is trading, or running trade accounts, it needs a BSA license”.
- [9]On 21 June 2010, and again on 30 June 2010, the Commission telephoned the Company and spoke to the Mr Nuttall. In those discussions it was again made clear to him that although the Company could sell the hot water systems, the Company’s license was a Restricted Builders License which did not allow the Company to install or co-ordinate the installation of hot water systems. Despite being armed with that advice, Mr Nuttall seemingly disregarded it and the Company continued to contravene the QBCC Act.
- [10]On 9 August 2011 the Commission again telephoned the Company. This time Mr Bennett was spoken to and given the same advice provided to Mr Nuttall 14 months earlier.
- [11]On 3 November 2011 Mr Bennett telephoned the Commission to advise that Mr Nuttall was within 24 hours of obtaining the relevant qualifications to obtain an appropriate QBCC License. By this time it was some 18 months since this issue was first brought to the Company’s attention.
- [12]Although the Commission took enforcement action against the Company by way of an infringement notices, those notices were later discontinued. The Commission later commenced proceedings against both Mr Nuttall and Mr Bennett. By this time the Company had been deregistered.[7]
- [13]At a very early stage in the proceedings Mr Nuttall indicated to the Tribunal that proper grounds existed for the taking of disciplinary proceedings against him and the Tribunal is satisfied of those proper grounds.
Mr Nuttall
- [14]Mr Nuttall is 37 years of age. He was a Director of the Company, but since the Company’s deregistration, he has gained employment as an apprentice plumber, earning less than $1,000 per week.
- [15]Mr Nuttall does not dispute that the Company sold hot water systems and arranged for a suitably qualified persons to install those systems. He accepted that as a director of a company he has various duties at law including knowing what his company is doing at all times and exercising his powers and discharging his duties associated with the Company with care and diligence.[8]
- [16]Mr Nuttall accepts that in all of the circumstances he did not inform himself of the work that may be properly engaged in under the Company's license, and he further accepted that there were proper grounds for the Commission to take disciplinary action again him for breaches of the QBCC Act.
- [17]The mitigating circumstances in favour of Mr Nuttall are that it appears that over the prolonged period when the QBCC Act was contravened, all 182 installations were co-ordinated in a similar manner and there was one continuing course of conduct. The installations were carried out at a very high standard of workmanship and there had never been any complaints received about the installation work. This was not disputed by the Commission.
- [18]The only fact within the Commission’s case that Mr Nuttall disputes is where the Commissions contends that the contract work for the 182 installations was valued at $1,028,000. He said that the Company charged a customer between $900 and $1,400 depending on various installation factors. Included in those costs was a component for the costs associated with the installation, such as fixtures and fittings and the fee to be paid to the installer.
- [19]Mr Nuttall said that depending on the installation factors, the installer’s fee was usually costed out for each installation to be in the range of $500 to $600. He is unsure what the exact profit margin was for each installation, but estimates that it would have been less than $300. He said that the Company’s profit was minor in each case and overall the profit from the entire 182 installations was at its highest, $54,600. Despite Mr Nuttall’s estimation, no company records were provided to the Tribunal to support that submission.
- [20]Mr Nuttall also relied upon others factors[9] which he said were a particular feature to his case and which the Tribunal should take notice of in mitigating any penalty imposed upon him. He said that because of the Commission’s investigation, the Company ultimately went into voluntary administration. When the Company was wound up, there were no defective work left outstanding, no insurance claims outstanding and all subcontractors had been paid.
- [21]Mr Nuttall further submitted that because 182 contraventions of the QBCC Act were of a technical there had been no damage inflicted to the reputation of the building industry or consumer confidence. The Tribunal does not accept this. Had the contraventions been isolated, then perhaps it could be determined as a technical breach. However, the evidence is that at a very early stage the contraventions were raised by the Commission. Even after being alerted to the contraventions, the conduct of the Company continued for a further 18 months, during which time it repeatedly ignored its obligations under the legislation. Perhaps it was more of an inadvertent breach rather than a technical one.
Penalty Considerations
- [22]Disciplinary proceedings are not designed to punish the person being disciplined. Notwithstanding that, the purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession and to protect the public interest. An aspect of the public interest is support for a system of registration and supervision intended to maintain professional standards.[10]
- [23]In considering the appropriate order, the Tribunal must have regard for the primary principles of protecting the public and maintaining proper professional standards.[11] In considering those principles, general and personal deterrence are relevant in applying protection of the public.
- [24]Deterrence is used in two senses, general deterrence and specific deterrence. General deterrence refers to dissuading like-minded persons from committing such an offence as that which the penalty is being imposed. Specific deterrence refers to dissuading a person from repeating the offence in general. It seems that from the evidence presented to the Tribunal, there is no suggestion that there is any risk that Mr Nuttall would commit further offences in the future.
- [25]The Commission has brought proceedings against Mr Nuttall and his business partner, Mr Bennett. They both had their individual matters dealt with on the same day by the Tribunal, but separately. Therefore, any penalty should be subject to the parity principle, and such principle is designed to ensure equality and takes into account the principle of equal justice according to law.
- [26]Generally the principle requires that like cases be treated alike, and if there were to be any differential treatment of them, then it has to be according to differences between them relevant to the scope, purpose and subject matter of the law.[12]
- [27]The primary source of this principle is Lowe v The Queen.[13] Dawson J, with whom Wilson J agreed, summarised the parity principle as:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to recognise both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or give the appearance that justice has not been done”.
- [28]The avoidance and elimination of unjustifiable discrepancy in imposing a penalty is a matter of abiding importance to the administration of justice and to the community.[14] Disparity in penalties imposed is not simply the imposition of different penalties for the same offence but a question of disproportion between them. Parity is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability.[15] Both directors of the Company appeared before the Tribunal with respect to the same offences and they share equal responsibility for the actions of the Company. The Tribunal is satisfied that there is no justification for disparity between any penalty imposed upon Mr Nuttall and his co-offender.
- [29]The Commission submitted that the total value of the contracts entered into by a party is a significant factor to be taken into account, however other factors may aggravate or mitigate the penalty. Both the Commission and Mr Nuttall have relied upon a number of authorities, each designed to support the position they each hold with regards to an appropriate penalty.
- [30]The Commission submitted that where the offending is inadvertent, or caused by the deception of others,[16] the Tribunal has imposed penalties that are relatively low. Where there is an element of wilfulness in breaching the law, the Tribunal will impose a relatively high penalty, at a minimum of 10% of the contract value.
- [31]The Commission says that the actions of Mr Nuttall can be seen as laying somewhere between those identified in QBSA v Webster t/as Multiskill[17] and QBSA v Taylor.[18] Mr Nuttall’s offending behaviour may not have the element of commercial deception present in the case of Taylor, but on the other hand it was more planned and wilful than the offending behaviour identified in the matter of Webster.
- [32]In Taylor’s case, he was disciplined for eleven offences after he placed advertisements in a Mackay newspaper seeking building work. The advertisement contained a deliberate deception, in that he used a QBSA license number belonging to another licensee with the same surname. He entered into eight (8) contracts and received a total of just over $12,000 in payments. On most occasions no work was performed, and where work was performed, it was of a very poor quality. Mr Taylor failed to co-operate with the QBSA and the matter went to a hearing with homeowners being called upon to give evidence. The Tribunal found that, as almost no work was performed the majority of the payments received by Mr Taylor amounted to profit and that he should be deprived of that profit. Mr Taylor was ordered to pay a fine of $26,550 plus costs of $1,000.
- [33]In Webster’s case, he performed unlicensed contracting under a contract worth $41,000. The work was so poor that it required demolition and reconstruction under the Statutory Insurance Scheme, costing $74,000. Mr Webster knowingly worked outside his license and was continuing to work in the industry.
- [34]Mr Webster’s carpentry license was cancelled and he was fined $4,100 and costs of $1,500. The penalty in this matter amounted to ten percent of the contract price to which he had undertaken which amounted to the assessed profit of the job.
- [35]With regards to the offending behaviour of Mr Nuttall, the Tribunal is not satisfied that those cases of Taylor and Webster is comparable to those identified against Mr Nuttall. What is distinguishable between the cases is that in both Taylor and Webster work was either not performed or performed so badly that it required rectification. None of those features are evident in the case of Mr Nuttall. Both Taylor and Webster displayed a significant amount of deception to their clients with regards to their license or skill, however with Mr Nuttall, competent and qualified sub-contractors were engaged by the Company to carry out the installations from which there has been no complaints.
- [36]Both the Commission and Mr Nuttall seek a global penalty for all the offences. The Commission seeks a penalty, to be determined by the Tribunal, up to a maximum of 200 penalty units for each of his 182 breaches of the QBCC Act and says that a penalty of $60,000[19] would be appropriate. Mr Nuttall seeks a penalty of a much lesser amount between $4,000 to $8,000.[20] Mr Nuttall’s co-offender, Mr Bennett, seeks a penalty of between $6,000 and $10,000.
Penalty
- [37]Both Mr Nuttall and his co-offender were the directors of the Company. Each director was equally responsible as the other for the activities of the Company at the time, and to apply the parity principle to the circumstances of this matter would ultimately mean that any penalty given should be the same for each director. The cumulative penalty amount imposed upon both directors should reflect the overall penalty which ordinarily could have been imposed upon the Company should it still exist.
- [38]Having regard to the circumstances of Mr Nuttall’s offending behaviour, and the mitigating circumstances of this matter, the Tribunal is satisfied that the appropriate penalty is for Mr Nuttall pay the Commission an amount of $6,000.
Costs
- [39]The Commission seeks costs from Mr Nuttall to the amount of $3,000. In seeking that amount the Commission says that the Tribunal had previously accepted that where the Commission has succeeded in disciplinary proceedings, an award of a modest amount for costs is appropriate.[21] The Commission further says that in the event that the Tribunal does not consider an award of $3000 appropriate, then guidance on an appropriate amount may be taken by reference to the scale of costs as provided in the Justices Regulation 2014.[22] The Tribunal is not persuaded to seek guidance from that legislation for any consideration of costs in the administration of the QBCC Act and the QCAT Act.
- [40]The starting position is the presumption that each party usually bears its own costs, that is, the public policy intent of the QCAT Act was to establish a no cost jurisdiction[23]. That presumption may be displaced if the Tribunal considers that there is a need to depart from the starting position. If there is a departure, and the Tribunal decides to make an award of costs, then the Tribunal should consider the points set out under section 102(3) of the QCAT Act, bearing in mind that those points are not grounds for awarding costs, but are factors to be taken into account in a particular case.[24]
- [41]The discretion to award cost against a party[25] lies with the Tribunal, but only if in the interests of justice there is a requirement for a costs order. If the Tribunal decides to exercise its discretion, it may have regard to the number of factors prescribed in s 102(3) of the QCAT Act, and must fix the amount of costs if possible.[26]
- [42]In Mr Nuttall’s case, the Tribunal is satisfied that the nature of the offending was serious enough to warrant the action taken by the Commission, but it is not satisfied that the nature of the application was overly complex, or that Mr Nuttall acted in a way that unnecessarily disadvantaged the Commission.[27]
- [43]Having regard to the factors as prescribed in s 102(3) of the QCAT Act the Tribunal is not persuaded to depart from the presumption that each party should bear their own costs. Therefore, the Commission’s application for costs is dismissed.
Decision
- [44]The decision of the Tribunal is that –
- Proper grounds exist for taking disciplinary action against Ashley Leonard Nuttall, pursuant to section 90(1) of the Queensland Building and Construction Commission Act 1991 for directly or indirectly causing tribunal work to be carried out, being the installation of hot water systems, by NQ Go Green Technology Pty Ltd in contravention of a condition on its license, on 182 occasions.
- Pursuant to section 91(3)(a) of the Queensland Building and Construction Commission Act 1991, Ashley Leonard Nuttall pay the Queensland Building and Construction Commission a penalty of $6,000 by 4:00pm on 30 September 2015.
- The Commission’s application for a Costs Order is dismissed.
Footnotes
[1]QBCC Act s 3.
[2]See Tribunal’s decision OCR180-14: Queensland Building and Construction Commission v Bennett [2015] QCAT 204.
[3]QBCC Act s 89(a).
[4]QBCC Act s 89(k).
[5]QBCC Act s 89(g).
[6]Licence issued in June 2006.
[7]The Company was deregistered on 21 April 2014.
[8]Corporations Act 2001 (Cth) s 180(1).
[9]Mr Nuttall’s submissions at paragraph 4.12.
[10]Nursing and Midwifery Board of Australia v Ascot [2011] QCAT 266 at [41].
[11]Paridis v Settlement Agency Advisory Board (2007) 33 WAR 361 at 375.
[12]Green v The Queen (2011) 244 CLR 462 at 472 – 473 [28].
[13](1984) 154 CLR 606 at 623.
[14]Lowe v The Queen (1984) 154 CLR 606 at 610.
[15]Postiglione v The Queen (1997) 189 CLR 295.
[16]QBSA v Abu-Dabat [2006] CCT L016-05; QBSA v Nortask [2011] QCAT 164; QBSA v Ventura Quality Painters Pty Ltd [1996] QBT 136.
[17][2003] CCT L031-04.
[18][2005] QCCTB 70.
[19]The Commission’s submissions on penalty at paragraph 72.
[20]Mr Nuttall’s submissions on penalty at paragraph 4.14.
[21]QBCC v Airconstruct H.V.A.C. Pty Ltd [2014] QCAT 72 at [11]; QBSA v Flowtech Hydraulics Pty Ltd [2013] QCAT 517 at [26].
[22]Schedule 2, Part 2.
[23]QCAT Act s 100.
[24]Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].
[25]QCAT Act s 102.
[26]QCAT Act s 107.
[27]QCAT Act s 48(1)(a) to (g).