Queensland Building Services Authority v Kay
[2000] QDC 207
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- Queensland Building Services Authority v Kay[2000] QDC 207
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Queensland Building Services Authority v Kay[2000] QDC 207
Queensland Building Services Authority v Kay[2000] QDC 207
DISTRICT COURT | Appeal No 1105 of 2000 |
CIVIL JURISDICTION
JUDGE McGILL SC
QUEENSLAND BUILDING SERVICES AUTHORITY | Applicant/Appellant |
and
JOHN MICHAEL STEPHEN KAY | Respondent |
BRISBANE
DATE 07/06/2000
JUDGMENT
HIS HONOUR: This is an application for leave to appeal from a determination of the Queensland Building Tribunal. On 22 February 2000 the Tribunal determined in relation to a count of unlicensed contracting that the allegation was not established because the respondent's licence would have been in place at the time the relevant work was performed because of an earlier order of the Tribunal, being an order made on 2 December 1999.
The application for leave is made under section 94(1) of The Queensland Building Services Authority Act. There are no specific grounds identified in the Act for determining whether or not to give leave in any particular case but if a decision raises a question of any general importance then that would certainly be a factor which was relevant for determining whether to give leave.
The issue in the present case is that there is no doubt that the respondent had a licence at some stage, relevantly a licence for constructing a swimming pool. The licence however was cancelled by the appellant on 28 September 1998. The respondent had in August 1998 entered into a contract to construct a swimming pool for a particular person but that work was done after the cancellation of the licence; that is in October, November and perhaps December 1998.
That appears to be the finding of the Tribunal on page 2 of the transcript of the hearing which led to the determination from which this application is brought.
The respondent commenced review proceedings in October 1998 but as a result of an order made in March 1999 those review proceedings were dismissed in September 1999. The respondent made a further application for review in October 1999 and on 2 December 1999, as a result of correspondence from the applicant to the respondent, the following order was made by the Tribunal:
“1. That the applicant's licences for metal fabrication, structural landscaping, swimming pool and spa construction and glazing will be re-instated with an immediate condition imposed on all licences that the applicant satisfy the current financial requirements to hold those licences. The record be noted that the conditions imposed upon the applicant's licences will prevent the applicant from trading until The Queensland Building Services Authority is satisfied that the applicant has met its financial requirements.
- That by consent application number 144-99 is dismissed.
- That the pre-hearing conference set down for 7 December 1999 be vacated.”
The power of the Tribunal on a review is set out in section 99(5) of The Queensland Building Services Authority Act 1991. The Tribunal may “confirm, annul, vary or reverse the decision subject to the review and make consequential orders and directions”.
One of the decisions which can be subject to review is a decision to cancel licence, see section 98(c). The respondent was clearly entitled to apply for review of that decision.
For the moment, at least, I will assume that the order which was made on 2 December 1999 was effective. The member of the Tribunal who considered the matter on 22 February 2000 clearly took the view that the effect of that order was to reinstate the licence from the time when it was cancelled. That appears both from the conclusions stated at page 7 and from the comment on page 1 that the review gave rise to an inference that the licence ought not to have been cancelled.
Section 99(5) speaks of both annulling a decision and reversing a decision. I hope that I am not drawing inferences from the terminology of the statute which are unjustified and assume a greater degree of precision in drafting than was, in fact, applied, but those words suggest to me that a distinction was being drawn between setting aside a decision as if it had never been made, that is annulling it, and reversing the decision, that is substituting a contrary decision but to take effect from the time of the review.
It would seem to me that, in the case of a review of a decision to cancel a licence, if the decision is confirmed the licence is simply left cancelled.
If the decision is varied then there is something other than the reinstating of the licence but if the decision is either annulled or reversed the effect will be to reinstate the licence.
The difference, I suppose, would be that if the decision is annulled that one would expect that it would be reinstated as if it had never been cancelled whereas if the decision is reversed it would be reinstated prospectively.
There may well be good reason for giving the Tribunal power to reinstate a cancelled licence retrospectively because of the fairly serious consequences to a licensee of the loss of the licence, and because obviously there would have to be some time elapsing between the decision subject to the review and the determination at the conclusion of the review.
It is therefore not particularly surprising that the legislature might want to give a power to set aside a decision with the setting aside taking effect from the time when the decision was originally made. I was originally wary about the idea that the Tribunal would have power to set aside a decision retrospectively but after further consideration of the consequences of some of the decisions identified in section 98 the legislature might well have chosen to confer that power and the use of the two different words “annul” and “reverse” suggests that there was an intention to confer a power to set aside retrospectively as well as power to set aside prospectively.
The issue however which has to be determined and had to be determined by the Tribunal was whether the power was exercised in this case. To speak of a licence being reinstated without more would suggest to me that the reinstatement was prospective rather than retrospective but I readily concede that it might be used in either sense. The reference to the immediate condition suggests also that it is prospective although again it would be possible, or at least it would not be meaningless, to have a retrospective reinstatement but with the imposition of a prospective condition. I must say however that my reaction on reading the order of 2 December is not that it involved a retrospective reinstatement of the licence; rather that it involved a prospective and indeed conditional reinstatement of the licence.
The determination of the correct effect of the order of the Tribunal of 2 December 1999 is a matter of law and therefore is a matter upon which the Court can interfere even on an appeal in the strict sense. There is an authority that appeals under section 94 are to be dealt with as appeals in the strict sense: see the decision of the Court of Appeal in Whywait Proprietary Limited v. Davison [1997] 1 QdR 225.
...
HIS HONOUR: Happily the restriction this imposes on the appeal is shortly to disappear with the proclamation of the new legislation which puts appeals from the Tribunal to this Court on a more rational basis. In any case it is appropriate to interfere as I think that the decision on that matter was wrong. For that reason I will allow the appeal.
There seems to have been no dispute that some swimming pool construction work was done after the licence was cancelled so it was appropriate to conclude therefore that proper grounds existed for taking disciplinary action under section 101. In those circumstances there was a discretion in the Tribunal under subsection 4 to impose a penalty or to make some order in respect of the licence of the respondent and I was asked to impose a penalty or in the alternative send the matter back to the Tribunal for the imposition of a penalty.
Although there was no specific debate before the Tribunal on the last occasion as to what was an appropriate penalty it does appear that the only relevant unlicensed work was the construction of the swimming pool under the contract signed prior to the cancellation of the licence. That was not for a large sum and there was some dispute as to whether that work was done properly.
The appellant's manager in Mackay estimated the cost of rectification was in the vicinity of $1,000 although the owner claimed to have paid out some $3,500 in rectification work. On the other hand the respondent claimed that he was owed some $7,525 for work which was not done which included some extras. It is not clear whether that was ultimately accepted by the Tribunal.
Although the performance of unlicensed work ought to be discouraged and may well be a serious problem, this is a case where the work was done under a contract entered into at the time when the respondent was licensed and it seems that the respondent has been left substantially short of remuneration for that work. He has in a sense paid some penalty for entering into that contract anyway because of the dispute about the work that was done. I think that it is unfortunate that the difficulty about the order arose and it has really arisen because of the lack of precision of the wording of the order of 2 December 1999 rather than anything which was done or not done by the respondent.
I think it is also of some significance in terms of penalty that the Tribunal took a different view. I think what matters really is that the issue be clarified for future reference, and perhaps that the Tribunal be encouraged in the future to express its orders which may potentially have retrospective effect with greater clarity. In that sense the appeal serves a useful purpose but my general impression is that the respondent's conduct, perhaps exceptionally for the performance of unlicensed work, should not be further penalised, partly because of the history of this matter and partly because of the apparent other consequences to him. I think this is one perhaps exceptional case where no penalty should be imposed. Without wishing to detract from the authority of those other cases referred to in relation to the imposition of penalties in such circumstances I think in the special circumstances of this case I will not impose a penalty. I will not refer the matter back and simply decide myself not to impose a penalty.
The appellant has been otherwise successful however and I think the respondent should pay the costs of the appeal. If there is jurisdiction to do so I will give the appellant a certificate in respect of those costs from the appeal costs fund as it does appear that the problem lay with the Tribunal rather than as a result of acceptance of any submission by either party below.
I will have to check to see whether I have jurisdiction to give the appellant a certificate. I think as well I have previously held that there is no jurisdiction to give a certificate in respect to proceedings by way of appeal from the Tribunal to the District Court because of the definition of “appeal” in the Appeal Costs Funds Act. I will look that up.
[There is no jurisdiction to grant an indemnity certificate to the appellant because this is not an appeal against the decision of a Magistrates Court: Appeal Costs Fund Act 1973 s. 17. Apart from that section the only jurisdiction the District Court has is under s. 15(3), which allows in certain circumstances a certificate to be granted to a respondent “upon application made in that behalf”. I therefore cannot grant the applicant a certificate.]