Semmens v Thomas[2002] QDC 333

DISTRICT COURT OF QUEENSLAND

1. [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.

2. [2]
   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

3. [3]
   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 work but Mr Gill was too busy and said he would arrange for some other person to perform it and, later, Mr Thomas arrived at Mr Whittier’s house and did the work. Mr Thomas’s evidence was to quite the contrary effect. He said he was an employee of Mr Gill’s firm or company called “Young Guns Concreting” and he did the work at Mr Whittier’s property while Gill’s employee. The Magistrate preferred his evidence to that of Mr Whittier and found that he was employed for wages only and was a “worker” and not a “contractor” and, in particular, had no contract with Mr Whittier.

4. [4]
   Mr Thomas said^[1] that while working for Gill he had performed some stencilling work and Gill then asked him to do this at Whittier’s home. He conceded that Gill had relied upon his expertise for the stencilling work, but maintained that Gill visited the job regularly and Gill was “running” it. The respondent’s involvement in the work totalled one day to undertake the initial installation of concrete, and three days for the stencilling, with other persons.

5. [5]
   A complaint was made to the Queensland Building Services Authority and an inspector, Mr McGregor, arranged for a building consultant to attend the site and report on complaints^[2]. Some time was allowed for the parties to resolve the dispute and when that did not occur the Authority issued a Direction to Rectify (DTR) under s 72 of the Queensland Building Services Authority Act (1991)^[3]. That form referred to the defects identified in the expert’s report, and was addressed to the respondent^[4]. It required the respondent to cause the rectification detailed in it to be undertaken^[5].

The Magistrate’s Reasons

6. [6]
   The Magistrate dismissed the complaint because:

Grounds of Appeal

7. [7]
   This appeal is limited to the finding that the respondent failed to comply with the DTR issued on 12 April 2000, as required by s 72.

8. [8]
   The grounds of appeal are that the Magistrate erred in three respects: firstly, in finding the form of DTR was inadequate; secondly, in finding that the words “carry out” in s 72 required the prosecution to prove beyond reasonable doubt that the defendant was the person who “carried out the building work”; and, third, because she misdirected herself in considering the need to examine the factual background underlying the original basis for the DTR.

Form of DTR

9. [9]
   Neither the Act nor Regulations specify a form for a DTR under s 72. A form issued pursuant to that section would, having regard to its terms, appropriately direct the person who carried out the building works to rectify them, within a reasonable period. The heading on the form, which disturbed the Magistrate, and the absence of formal warnings^[11] do not appear as requirements within s 72 and their absence would not render the form invalid.

10. [10]
    Otherwise, the Magistrate was concerned about the form of the direction because it does not stipulate exactly what the recipient must do. At the same time, she acknowledged that the Authority cannot tell a contractor, or other person, how to rectify, but must specify what needs to be done^[12]. In this case three specific defects were listed in the DTR. They identified, I find, the nature of the work which was to be undertaken and were sufficiently specific for the recipient to understand what had to be done. The Authority must be careful not to intrude into the actual meanings of rectification^[13]. The respondent did not, in the proceedings before the Magistrate, assert that he did not understand the nature of the complaints. For these reasons I am satisfied the form was sufficient and appropriate, for the purposes of s 72, and the learned Magistrate was in error.

The Effect of “Carry Out” in s 72

11. [11]
    Under s 72(1)(d) a person is deemed to have “carried out” building work if that person performed the work “for profit or reward”. The earlier parts of s 72(2) contemplate building contractors and subcontractors of contractors, in descending order. S 72(2)(d) is the last in the contractual chain of work. The legislation creates no nexus between the performance of work and the contractual relationship between the principal, and the worker. If that was intended words other than “profit or reward” might have been used: e.g. “as contractor”. There is nothing to suggest the words “profit or reward” should be given anything other than their usual meaning. It follows, then, that for the purposes of s 72(1) reference to persons who carried out building work can include individual persons who performed work at the building site.

12. [12]
    This construction is not discordant with other parts of s 72. S 72(4) and (8) show that an unlicensed person who receives a direction must have it carried out by a licensed contractor; and, for the purposes of s 72(2)(d) a person carries out building work whether that person carries it out personally, or directly or indirectly causes it to be carried out: s 72(8).

The Circumstances in which the Work was carried out

13. [13]
    The Magistrate identified the correct test under the legislation, i.e. that the Authority did not have to prove actual technical fault by the respondent^[14] but misapplied that test, and found that the complainant had to prove the respondent actually performed the building work, as a central element of a breach of s 72(7)^[15]. The learned Magistrate’s concerns are not surprising but it is clear, with respect, that her anxiety to avoid any injustice to the respondent over-rode a proper appreciation of the legislation.

14. [14]
    The scheme of that legislation is clear. The Authority issued a DTR, as s 72 empowered it to do. The respondent was, whether a simple employee or not, a proper recipient of that notice: s 72(2)(d). If he was unhappy, he was entitled to submit a review application under s 99. A failure to do so effectively constitutes an acknowledgement of the DTR, and is an offence of strict liability^[16].

15. [15]
    The purpose of the prosecution under s 72 was to establish and, if appropriate, punish the respondent for his failure to comply with the DTR, not for his alleged poor performance of the work, or involvement in its poor performance at the hands of others. S 72 provides the Authority with a remedy which balances the completing interests of the disadvantaged consumer of building services, and the respondent. Had the respondent informed the Authority within the statutory time frame of the matters raised at his trial, a DTR could have issued to his employer and the Authority might have been able to attend more swiftly to resolving the consumer’s complaint. Clearly, s 72 and prosecutions under it are directed to this mischief.

16. [16]
    I am satisfied the Magistrate was, with respect, in error in her construction of s 72 in that she allowed her concerns arising from the circumstances behind the charge to colour the exercise of interpreting it.

Orders

17. [17]
    The appeal should be allowed, and a fine of $150.00 imposed upon the respondent^[17].