QBCC v Morley[2016] QMC 8

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   This trial commenced at Coolangatta on 11 September 2015 and concluded at Southport on 27 October 2015.

2. [2]
   There were 2 Complaints which the parties called the Brisbane Complaint and the Coolangatta Complaint, which originally contained a total of 8 charges (4 on each complaint). On day 2 of the trial charge 1 on the Brisbane complaint was discontinued by the prosecutor.

3. [3]
   All of the seven remaining charges were laid under the Queensland Building Construction Commission Act 1991 (QBCC Act) and/or the Queensland Building Services Authority Act 1991 (QBSA Act).  The QBCC Act was formerly known as the QBSA Act.  The amending Act and transitions made no changes to text or applicability of the relevant sections.  Therefore, for convenience, I will refer in this judgment to the QBCC Act only. 

4. [4]
   The seven remaining charges fall into three classifications:

1. Section 42(1): Unlawfully carrying out building work without holding a Contractor’s Licence of the appropriate class. (Charge 1 on the Coolangatta Complaint).

2. Section 53C:  Publishing an advertisement that did not state the value of the work which Wade Francis Morley was entitled to carry out without a licence. (Charges 2 and 3 of the Coolangatta Complaint and Charges 2, 3 and 4 of the Brisbane Complaint.)

3. Section 51(2):  Making use of a Licensee’s Licence to pretend to be a Licensee.  (Charge 4 of the Coolangatta Complaint.)

Unlawfully carrying out building work without holding a contractor’s licence of the appropriate class:  s. 42(1) QBCC Act.

5. [5]
   The particulars for the single charge in this classification, which are not in dispute and which were proved beyond reasonable doubt by the evidence, are as follows:

1. From 23 April 2004 to 2 November 2012, WADE FRANCIS MORLEY (“Morley”) held a licence, number 638342, with the Queensland Building Services Authority (QBSA) in the classes of ‘Plumbing and Drainage’ and ‘Gasfitting’.

2. On 2 November 2012, the Authority cancelled Morley’s “Plumbing and Drainage” licence.  By letter dated 2 November 2012, the QBSA informed Mr Morley of the decision to cancel the licence.

3. Between 22 September 2014 and 25 September 2014, Mr Morley, trading as Mooses Plumbing & Gasfitting Services, carried out work at 1 Joanna Court, Currumbin Valley in the State of Queensland.

4. The issue is whether that work was “Building Work”.

Evidence and the Work Done

6. [6]
   The evidence by Ms Evelyn McQuaigie was that on 24 September 2014 at Currumbin Valley she hired W&P Morley trading as Mooses Plumbing and Gas Fitting Services. Exhibit 7 shows the Remittance Advice and Tax Invoice rendered to Ms McQuaigie “for callout to reported water leak at property. Leak located and repaired. Machine Dig to remove roots etc. stuck in pipes to stormwater drain.”

7. [7]
   Ms McQuaigie gave evidence about contracting Mr Morley and that a backhoe came and dug a large hole 2’ x 2’ x 15” and that a pipe was put in the ground. She said her complaint was about leaking storm water because the Council told her that her consumption had increased. She said Morley had “no business” touching the stormwater because of this and that her roof water watered the garden.

8. [8]
   I note the invoice (exhibit 7) purports Morley trading as Mooses is “Fully Licenced: Plumber, Drainer, Gasfitters and Roofing Contractor” and there is no licence number stated.

9. [9]
   Mr Morley knew he was not licensed under either Act. However, he is not charged with false advertising.

10. [10]
    There was no other evidence on this issue. The defendant elected to exercise his lawful right to silence.

Consideration

11. [11]
    To determine whether that work was “building work” the starting point is the relevant legislation.

12. [12]
    As noted earlier, and so far as is relevant to this charge which was actually laid under the QBSA Act, despite amendments to the QBSA Act 1991 which also renamed the Act to the QBCC Act 1991, s.40(1) remained the same. For all intents and purposes a reference to the QBSA Act is also a reference to the QBCC Act and vice versa as none of the material provisions and definitions have changed.

The Appropriate Classes of Licence

13. [13]
    The appropriate classes of contractor’s licenses are set out in the regulation pursuant to section 30 of the Act, in Part 3 – (Licensing). Section 30 provides:

30   Classes of contractors’ licences

1. (1)
   A licence (a contractor’s licence) may be issued authorising the licensee—

1. (a)
   to carry out all classes of building work; or

2. (b)
   to carry out building work of 1 or more classes specified in the licence.

3. (2)
   Contractors’ licences are to be divided into classes by regulation—

1. (a)
   according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and

2. (b)
   if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.

3. (3)
   A contractor’s licence may be issued for any class of licence.

3. (4)
   However, a regulation may specify a class of licence to be a class that may be held and renewed by a person who held that class immediately before the commencement of the regulation specifying the class but may not, after the commencement of that regulation, be applied for by, or issued to, another person.

14. [14]
    Section 14 of the QBCC Regulation provides:

14 Classes of contractor’s licence – Act, s 30 (2)

Contractors’ licences are divided into the classes specified in schedule 2.

15. [15]
    The classes of contractor’s licenses relevant to this case are set out as follows in schedule 2 of the Regulation:

Part 18 Plumbing and drainage licence

1 Licence class

Plumbing and drainage.

2 Scope of work

1. (1)
       Installing, commissioning, maintaining and testing plumbing and drainage services in all classes of buildings and premises, including, but not limited to, the following—

1. (a)
   compressed air, heating, steam, vacuum or ventilation systems;

2. (b)
   irrigation;

3. (c)
   metal fascia’s and gutters;

4. (d)
   on-site domestic waste water management systems;

5. (e)
   roof and wall cladding;

6. (f)
   skylights;

7. (g)
   fire hydrants, with or without pumps;

8. (h)
   fire hose reels, with or without pumps.

2. (2)
       Prepare plans and specifications for plumbing and drainage work if the plans and specifications are—

1. (a)
   for the licensee’s personal use; or

2. (b)
   for use in plumbing and drainage work to be performed by the licensee personally.

3. (3)
      Incidental work of another class.

3 Technical qualifications

Possession of a plumber’s licence and a drainer’s licence issued by the Plumbing Industry Council.

4 Managerial qualifications

An approved managerial qualification.

5 Financial requirements

The relevant financial requirements in the board’s policies.

Part 19  Drainage licence

1 Licence class

Drainage.

2 Scope of work

3. (1)
   Installing, commissioning, maintaining and testing above and below ground waste water, stormwater and sanitary drainage systems, including on-site domestic waste water management systems.

3. (2)
   Prepare plans and specifications for drainage work if the plans and specifications are—

1. (a)
   for the licensee’s personal use; or

2. (b)
   for use in drainage work to be performed by the licensee personally.

3. (3)
   Incidental work of another class.

3 Technical qualifications

Possession of a drainers licence issued by the Plumbing Industry Council.

4 Managerial qualifications

An approved managerial qualification.

5 Financial requirements

The relevant financial requirements in the board’s policies.

16. [16]
    The term “plumbing”, “drainage” and “plumbing and drainage services” are not defined anywhere in the QBCC Act.  However some of those terms are defined in the Plumbing and Drainage Act 2001.  The Preamble to the Plumbing and Drainage Act states that it is:

“An Act about plumbing and drainage, the licensing of plumbers and drainers, and for other purposes.”

17. [17]
    Section 3 of the Plumbing and Drainage Act provides:

“3 Definitions

The dictionary in the schedule defines particular words used in this Act.”

18. [18]
    The definitions are therefore expressed to be given for words used in the Plumbing and Drainage Act itself.  They are not given for words used in the QBCC Act.

19. [19]
    The prosecution conceded that the QBCC Act does not say anywhere that “plumbing work” is “building work”. However, the prosecution submitted the definitions in the Plumbing and Drainage Act must be read together with the QBCC Act by necessary implication.

20. [20]
    I find this is a correct interpretation given the scheme of each Act and that they are each a part of a package of Acts which control builders, tradesmen and workers in the building industry via the overarching powers and functions of the Queensland Building and Construction Commission (QBC Commission).

21. [21]
    For example, section 7 of the QBCC Act provides:

7 Functions

The commission has the following functions –

1. (a)
   To administer this Act and further its objects;

2. (b)
   Any function given to it under another Act.

(my underlining)

22. [22]
    Also, sections 5 and 6 of the Plumbing and Drainage Act set out the jurisdictions of the QBC Board and QBC Commissioner for plumbing and drainage, including the administration of licensing system under Part 3 of the Plumbing and Drainage Act.

23. [23]
    This raises the question why Morley was not charged with committing an offence by a person not holding an appropriate licence under section 119, or an offence of directing or supervising unlicensed work under section 120, of the Plumbing and Drainage Act.

24. [24]
    Be that as it may, I also see no reason why a more general “parent” Act cannot also require persons to hold a contractor’s licence, especially if the more specific Act, like the Plumbing and Drainage Act, covers different or narrower ranging, or specialised activities.

25. [25]
    This approach is consistent with adopting a purposive interpretation of the QBCC Act as required by section 14A of the Acts Interpretation Act 1954.

26. [26]
    The approach is also consistent with giving effect to the Objects of the QBCC Act as set out in section 3:

3 Objects of Act

The objects of this Act are—

1. (a)
   to regulate the building industry—

1. (i)
   to ensure the maintenance of proper standards in the industry; and

2. (ii)
   to achieve a reasonable balance between the interests of building contractors and consumers; and

2. (b)
   to provide remedies for defective building work; and

3. (c)
   to provide support, education and advice for those who undertake building work and consumers; and

4. (d)
   to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners.

27. [27]
    Therefore, it is relevant to have regard to the following definitions in the Plumbing and Drainage Act:

drainage means—

1. (a)
   an apparatus, fitting or pipe, either above or below ground level, that carries -

1. (i)
   sewerage to a sewer, or to, within or from an on-site sewerage facility; or

Examples—

• a pipe carrying effluent to an on-site sewerage treatment plant on premises

• a pipe carrying treated effluent from an on-site sewerage treatment plant off the premises on which the plant is installed to a system of common effluent drainage or a holding tank for collection

2. (ii)
   greywater from a greywater treatment plant or greywater diversion device; or

2. (b)
   an on-site sewerage facility.

drainage work includes—

1. (a)
   installing, changing, extending, disconnecting, taking away and maintaining drainage; and

2. (b)
   on-site sewerage work.

plumbing means—

1. (a)
   for water—an apparatus, fitting or pipe for supplying water to premises from a service provider’s infrastructure or a water storage tank and for carrying water within premises; or
2. (b)
   for sewerage—an apparatus, fitting, fixture or pipe, above ground level, that carries sewerage on premises to drainage; or
3. (c)
   a greywater treatment plant or greywater diversion device.

plumbing work includes—

1. (a)
   installing, changing, extending, disconnecting, taking away and maintaining plumbing; and b) installing a water meter as part of a service provider’s
2. (b)
   infrastructure for the purpose of measuring the volume of water supplied to premises from the infrastructure.

premises means—

1. (a)
   a building or other structure; or
2. (b)
   land (whether or not a building or other structure is situated on the land).

28. [28]
    In Part 3 of the QBCC Act, section 42 provides:

42 Unlawful carrying out of building work

3. (1)
   A person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.

Maximum penalty—250 penalty units.

3. (2)
   However, subsection (1) does not apply to a person to the extent that the person is exempt under schedule 1A.

3. (3)
   Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.

3. (4)
   A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—

1. (a)
   is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and

2. (b)
   does not include allowance for any of the following—

1. (i)
   the supply of the person’s own labour;

2. (ii)
   the making of a profit by the person for carrying out the building work;

3. (iii)
   costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and

3. (c)
   is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and

4. (d)
   does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.  (my underlining)

29. [29]
    A plain English reading of section 42 requires that the Court must first be satisfied that Morley carried out “building work” and, if he did so, then secondly that Morley was not a person who is exempt under schedule 1A of the QBCC Act.  Thirdly, if he is not exempt and if the work is “building work” the prosecution must satisfy the court that any such work carried out by Morley was not work of a kind excluded by the QBCC Regulation from the ambit of the definition of “building work”.

First issue:

Was the work “building work”?

30. [30]
    Schedule 2 of the Act defines ‘building work’ exhaustively:

“building work means—

1. (a)
   the erection or construction of a building; or

2. (b)
   the renovation, alteration, extension, improvement or repair of a building; or

3. (c)
   the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or

5. (e)
   any site work (including the construction of retaining structures) related to work of a kind referred to above; or

6. (f)
   the preparation of plans or specifications for the performance of building work; or

6. (fa)
   contract administration carried out by a person in relation to the construction of a building designed by the person; or

7. (g)
   fire protection work; or

8. (h)
   carrying out site testing and classification in preparation for the erection or construction of a building on the site; or

1. (i)
   carrying out a completed building inspection; or

10. (j)
    the inspection or investigation of a building, and the provision of advice or a report, for the following—

1. (i)
   termite management systems for the building;

1. (ii)
   termite infestation in the building;

but does not include work of a kind excluded by regulation from the ambit of this definition.”(my underlining)

31. [31]
    The prosecution relied on paragraph (c) of that definition namely: “the provision of drainage in connection with a building”.

32. [32]
    Pursuant to schedule 2 of the QBCC Act, ‘carry out’, for building work means any of the following –

1. (a)
   Carry out the work personally;

2. (b)
   Directly or indirectly cause the work to be carried out;

3. (c)
   Provide building work services for the work.

33. [33]
    It is clear from the evidence by Ms McQuaigie and from Morley’s own invoicing that whether he did the work himself or caused it to be done Morley was “carrying out” the work.

34. [34]
    Before one needs to turn to the exclusions by the Regulation from the ambit of the above definition in schedule 2 of the Act, I have to determine whether the work done by Mr Morley was ‘the provision of drainage in connection with a building.

35. [35]
    The defence submission was that the definition of Building Work” is such that a licence is only required for new work, i.e. for the provision of new drainage or water supply or stormwater services to a building.

36. [36]
    However, Mr Ohlsen conceded that the defendant did some repair to the stormwater pipe and did repair a mains water supply as shown in photographs in Exhibit 8, but he argued that the work was done as an adjunct to the removal of a tree’s root ball, requiring repairs to a small zone of a drainage pipe. He submitted that was not “building work” because it was not the provision of new works.

37. [37]
    Mr Ohlsen (for the Defendant) relied upon the appeal decision in Morley v See [2015] QCATA 127.  At [10] to [19] the members went virtually straight to the exclusions from the definition of “building work” as they were contained in section 5 of the Regulation (QBCC Reg 2003) schedule 1AA, Item 11, before considering whether the relevant work actually came within the meaning of “building work” under the Act.  They stated:

38. [38]
    I disagree, with respect, with the approach in Morley v See [2015] QCATA 127.

39. [39]
    That approach and mine may in some cases lead to the same result, but there must also be cases where the question of exclusion simply does not arise where the work simply does not fit the definition of ‘building work’ to start with. The approach in Morley v See (above) is apt to lead to error, with respect, because it can lead to the exclusion of activities before obtaining a proper understanding of the nature of ‘building work’ targeted by the Act.  An Act should be interpreted before its subordinate regulation.

40. [40]
    Indeed, the QBCC Act, Schedule 2 exhaustive definition of “building work” quoted above ends with the words “but does not include work of a kind excluded by regulation from the ambit of this definition”.

41. [41]
    In other words, the Regulation may exclude from the ambit of the definition work of a kind which, but for the Regulation, would be included in the definition. It is therefore necessary to see if the work does otherwise fall within the ambit of the definition of “building work”. If it does not, then there is no need to consider the exclusions in the regulation.

42. [42]
    It is clear from the evidence that the defendant did work for Ms McQuaigie which can be described as maintaining plumbing and drainage services because he repaired a leak, removed roots from and underground pipe carrying water within the premises, and as maintaining stormwater because he removed roots blocking the stormwater drain.

43. [43]
    According to the Scope of Works set out in Schedule 2 of the QBCC Regulation the appropriate classes of licences required by Morley were Plumbing and Drainage (under Part 18) and Drainage (under Part 19).

44. [44]
    The next issue is whether the work came also within the definition of building work, namely “the provision of drainage in connection with a building”.

45. [45]
    There were submissions by both the prosecution and defence about the meaning of “provision of” and whether it is meant to only mean new work as opposed to subsequent repairs.  My reading of the definition, giving it a plain English meaning, taken in the context of the whole Act, is that it is not meant to be so restrictive.  The words “provision of” are not used as a noun (as in a clause in a legal instrument) or as in the provision being a thing such as food or pipes, or other needs.  The words are used as a verb as in the supply or installation of the thing which meets a need such as the need for drainage. 

46. [46]
    Therefore “provision of drainage” can include the installation of an original new system of drainage or replacement or maintenance or repair of all or parts of it.

47. [47]
    However, and most importantly, the prosecution case relies on taking the meaning of “drainage”, by necessary implication, from the meaning assigned to it in the Plumbing and Drainage Act.

48. [48]
    This definition of “drainage” is not inclusory. It is exhaustive, and it means, in short, either:

1. (a)
   An apparatus, fitting or pipe, either above or below ground level, that carries sewerage or grey water; or

2. (b)
   An on-site sewerage facility.

49. [49]
    The work performed by the defendant at Currumbin Valley for Ms McQuaigie was not alleged to have anything to do with sewerage or graywater.

50. [50]
    Therefore, the work is not “building work”.

Second issue:

Is Morley a person who is exempt under schedule 1A?

51. [51]
    Despite the finding that the work is not “building work”, I will just make a few observations about the second issue.

52. [52]
    For section 42(2) of the Act, Schedule 1A (Exemptions from requirement to hold contractor’s licence) provides that the following unlicensed persons are exempted:

1. Employees of a licensed employer;

2. Subcontractors to a licensed trade contractor;

3. Partnerships:  if one partner is licensed to carry out building work.

4. Owner – Builders who hold and Owner – Builder permit;

5. Design work by landscape architects;

6. Consumers who engage a licensed contractor;

7. Holder of either a nominee supervisor’s licence, a site supervisor’s licence, or a fire protection occupational licence, who only does something permitted under the licence;

8. A person who enters into a head contract to carry out building work with a licensed person;

9. A person who submits a tender or offer for work to be carried out by a licensed person;

10. Certain Public-Private Partnerships;

11. Certain Prescribed government projects.

53. [53]
    The exemptions have nothing to do with identifying the appropriate classes of contractors’ licenses.

54. [54]
    There was no suggestion Morley came within any one of the stated exemptions and there is no evidence to suggest he was exempt on any of these grounds.

Third issue:

Is the work excluded from the ambit of the definition of “Building work” by item 11 in Schedule 1AA of the Regulation?

55. [55]
    It is clearly unnecessary to consider the third element outlined above as to whether the work is excluded from the ambit of the definition of “building work” by item 11 in Schedule 1AA of the Regulation, because the work was not “building work” anyway.  However, see my further observations below about the correct interpretation, in my opinion, of item 11.

Conclusion

56. [56]
    Because the prosecution has failed to satisfy me beyond reasonable doubt that the work is “building work” I find the defendant not guilty of charge 1 on the Coolangatta complaint.

Other observations

57. [57]
    I would also observe however, that the legislative framework is far too complex when a tradesman needs to go to two Acts, a regulation, and several Schedules to know whether he or she can go out and quote for a job, let alone do the work, or to know whether he or she needs to be licenced to do the work or which class of licence he or she needs to obtain, if any.

58. [58]
    I concur, with respect, with the remarks by Her Honour Justice Dalton is Moosawi v Massey [2015] QSC 169 at [26] (where the Act considered was the Health Ombudsman Act 2013 (Qld). I find the remarks largely applicable to the laws I have to interpret and the method of drafting them in this case.  Her Honour said:

“[26] The Act is poorly drafted. It eschews the use of ordinary English words and instead defines terms which are so bland that they have no precise meaning. The cumulative effect is to render the provisions of the Act incomprehensible without the mental gymnastics required to look up, and then remember, the various definitions so that, upon returning to the section of interest, one can translate it. Inevitably, because words are not chosen as apt for the particular circumstances dealt with by any particular section, their meaning (after translation) is not as precise as it could be. This style of drafting renders the law meaningless to those without the ability or training to perform the requisite mental gymnastics. For lawyers it produces concepts so imprecise that they do not fit sensibly into established legal paradigms. I suspect this style of drafting is to blame for the ambiguity in s 228(3). The words “give information”, construed at their most general include a whole spectrum of behaviour, from writing a letter to attending to answer questions. Indeed, they include transmission by semaphore signals. But general and ambiguous words will not be interpreted in a vacuum.”

Publishing an advertisement that did not state the value of the work Wade Francis Morley was entitled to carry out without a licence: s 53C of the QBSA or QBCC Acts.

59. [59]
    Under this second classification there are five charges (charges 2 and 3 on the Coolangatta complaint and charges 2, 3 and 4 on the Brisbane complaint.)

60. [60]
    For these five charges, most of the alleged particulars are not in dispute and were proved beyond reasonable doubt by the evidence.  Those are:

1. Pursuant to section 53C(1), (2) of the QBSA Act, and of the QBCC Act as of 1 December 2013, a person who does not hold a contract’s licence must not publish an advertisement that the person is available to carry out “building work” unless the advertisement states the value of the work the person is entitled to carry out without a licence.

2. Pursuant to the Macquarie Australian dictionary, the term “publish” includes “to make publicly or generally known”. I also note that the second edition of the Oxford Dictionary of English states the verb “publish” includes to “prepare and issue (a book, journal, or piece of music) for public sale and to “print (something) in a book or journal so as to make it generally known” or to “formally announce or read”.

3. From 23 April 2004 to 2 November 2012, Mr Morley held a licence, number 638342, with the Authority in the classes of ‘Plumbing and Drainage’ and ‘Gasfitting’.

4. On 2 November 2012, the Authority cancelled Mr Morley’s ‘Plumbing and Drainage’ licence.  By letter dated 2 November 2012, the Authority informed Mr Morley of the decision to cancel the above licence.

5. The ‘Sun’ newspaper is a weekly publication.

6. The senior Queensland is a monthly publication.

7. Notwithstanding the licence cancellation, between 22 January 2013 and 15 March 2014, Mr Morley, trading as ‘Gold & Tweed Coast Anodes’, published as advertisement in the Sun that Mr Morley (trading as Fold and Tweed Coast Anodes) was available to carry out work.  The advertisement was published in the Upper North Sun, Northern Sun, Central Sun, Southern Sun, and Tween Sun publications. (Charge 2 – Coolangatta Complaint)

8. Notwithstanding the licence cancellation, between 21 May 2014 and 18 July 2014, Mr Morley, trading as Gold & Tweed Coast Anodes’, published as advertisement in the Sun that Mr Morley (trading as Fold and Tweed Coast Anodes) was available to carry out work.  The advertisement was published in the Upper North Sun, Northern Sun, Central Sun, Southern Sun, and Tween Sun publications. (Charge 3 – Coolangatta Complaint)

9. Notwithstanding the licence cancellation, between 30 November 2012 and 1 July 2013, Mr Morley, trading as Aussie Anodes’, published as advertisement in the Senior Queensland that Mr Morley (trading as Aussie Anodes) was available to carry out work.  The advertisement appeared in the December 2012 to June 2013 editions of the Senior Queensland. (Charge 2 – Brisbane Complaint)

10. Notwithstanding the licence cancellation, between 29 May 2013 and 1 July 2014, Mr Morley, trading as Aussie Anodes’, published as advertisement in the Senior Queensland that Mr Morley (trading as Aussie Anodes) was available to carry out work.  The advertisement appeared in the July 2013 to June 2014 editions of the Senior Queensland. (Charge 3 – Brisbane Complaint)

11. Notwithstanding the licence cancellation, between 6 May 2014 and 1 January 2015, Mr Morley, trading as Aussie Anodes’, published as advertisement in the Senior Queensland that Mr Morley (trading as Aussie Anodes) was available to carry out work.  The advertisement appeared in the July 2014 to December 2014 editions of the Senior Queensland. (Charge 4 – Brisbane Complaint)

12. Work of any value within the scope of work of a ‘Plumbing and drainage’ class of licence is building work under the Queensland Building Services Authority Regulation 2003 and also, as at 1 December 2013, the Queensland Building and Construction Commission Regulation 2003.

13. The advertisement published by Morley in the Sun and The Senior newspapers did not state the value of the work Morley, trading as either Gold and Tweed Coast Anodes or Aussie Anodes was entitled to carry out without a licence.

61. [61]
    Both section 42 (unlawful carrying out of building work without holding a construction licence) dealt with above, and section 53C are in Part 3 of the QBCC Act.

62. [62]
    Part 3 contains Division 10 (Miscellaneous) in which section 54 (Advertisements) deals with the requirements imposed on a licensee who publishes advertisements. However, section 53C deals with the requirements of advertising published by persons who do not hold a contractor’s licence.

63. [63]
    Section 53C provides:

“53C Advertising by unlicensed person

1. (1)
   A person who does not hold a contractor’s licence must not publish an advertisement that the person is available to carry out building work unless the advertisement complies with this section.
2. (2)
   The advertisement must state the value of the work the person is entitled to carry out without a licence.  Maximum penalty—100 penalty units.
3. (3)
   A regulation may prescribe the following for an advertisement under this section—

   1. (a)
      the way the advertisement is to be presented;

   2. (b)
      the words to be included in the advertisement.
4. (4)
   In this section—

building work includes building work of any value, despite any regulation excluding building work of a stated value from the definition building work for this Act.” (my underlining)

64. [64]
    The definition of building work for section 53C is inclusive.  Therefore the term building work is capable of broader meaning than it would have if the definition had been an exhaustive definition.

65. [65]
    However, it is not clear whether the definition of “building work” for this section is still dependant on the meaning of “building work” which I dealt with above or if it is only meant to convey that advertisements for building work of any value, despite exclusions stated in the regulation, are required to comply with this section.

66. [66]
    If the latter meaning was meant to be conveyed, the drafter would surely have used the word “means” instead of “includes”. Therefore, I take the primary meaning of “building work” to be as defined in Schedule 2 (quoted in full above), which means, among other things, the provision of water supply, sewerage or drainage in connection with a building.

67. [67]
    To determine this further problem with the drafting of this legislation, it may (or not) help to consider the related provisions, again setting out exceptions and an exception to the exception in a regulation, and in a Schedule to the regulation.

68. [68]
    The Queensland Building and Construction Commission Regulation 2003, (Part 2 Interpretation), in section 5, provides:

5 Work that is not building work

3. (1)
   For the Act, schedule 2, definition building work, work stated in schedule 1AA is not building work.

3. (2)
   To remove any doubt, it is declared that subsection (1) does not cease to apply to any work stated in schedule 1AA merely because the work is carried out in combination with other work stated in schedule 1AA. 

69. [69]
    For section 5 of the Regulation, Schedule 1AA provides for work that is not building work.  Specifically, item 2 states:

2 Work of a value of $3300 or less

Work of a value of $3300 or less, unless—

1. (a)
   subject to section 33(2) of this schedule, the work is within the scope of work of a fire protection licence; or

2. (b)
   the work is within the scope of work of a licence provided for in schedule 2, part 11–14, 18, 19, 33, 48 or 52; or

3. (c)
   the work is within the scope of work of another licence provided for in schedule 2, and is carried out by a licensee as part of a contract for building work of which the total value is more than $3300; or

4. (d)
   the work is within the scope of work of a licence provided for in schedule 2, part 35 and the value of the work is more than $1100. 

70. [70]
    Also, item 11 specifically and relevantly states:

11 Work for a water reticulation system, sewerage system or stormwater drain

3. (1)
   Construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, other than works connecting a particular building to a main of the system or drain.

3. (2)
   In this section—

building includes a proposed building.

71. [71]
    Again, this legislative scheme enjoys the tortured use of a definition in the parent Act, an exception to the definition in a regulation and then an exception to the exception in the Schedule to the regulation. As Justice Dalton said (above), the style of drafting can render a law meaningless for persons without training and expertise.

72. [72]
    My professional experience of 36 years includes policy development and drafting legislation for several years. Even I find the drafting in this package so tortured that I think some tradesmen and women may need to seek legal advice each time they are asked to quote for, or to do, work.

The Evidence

73. [73]
    The prosecution did not call any consumer who read and acted on the advertisements. The defendant did not give or call evidence, thereby exercising his lawful right to silence. Besides the unchallenged evidence about the placement and publication of the relevant advertisement, which was, by consent, admitted into evidence in the form of witness statements, I heard evidence from two witnesses in court.

74. [74]
    However, before summarising their evidence, it is important to note the nature and content of the proven advertisements. Exhibits 1, 3 and 4 (the statements by Paula Dixon and Joseph Fazzari (from Newscorp Australia and Fairfax Media Group respectively) in turn exhibited the relevant advertisements. They are colour reproductions of the actual classifieds pages for relevant dates showing 25 advertisements published at the relevant times.

75. [75]
    For the defendant, Mr Ohlson submitted that the prosecution failed to prove Mr Morley’s trading name for “Gold and Tweed Coast Anodes”.

76. [76]
    However, the unchallenged statements by Dixon, Exhibit 1 para [9], Schedule 3 para [2], [3] and the attachments with correspondence from Morley for the placement and removal of the advertisement, prove beyond reasonable doubt that Morley placed the advertisement. This fact was not challenged.

77. [77]
    The advertisements are each almost identical. Each one contains an illustration of the vertical cross – section of a Hot Water System / Tank showing a sacrificial anode centred vertically in it.

78. [78]
    The text of the advertisements reads:

79. [79]
    The advertisement places the words REMEMBER YOUR CAN’T LOSE, NO ANODE REPLACMENT NO CHARGE in quotation marks as if the advertiser is speaking to the reader.

80. [80]
    The advertisement clearly holds out that if the anode needs replacing it will be charged for and that it will carry a 5 year warranty.

81. [81]
    The advertisements in The Senior contains the same text and phone number but refer to “Aussie Anodes” instead of “Gold & Tween Coast Anodes” for the business name.

82. [82]
    The Senior newspaper advertisement also states, after the “5 year warranty”:

“Make your hot water system last for up to 30 years without replacement.”

83. [83]
    All of the advertisements make the offer “For a limited time”, even though they ran from 30 November 2012 to 1 January 2015, in total, with overlapping periods and therefore without a gap in coverage of the offer for 25 months.

84. [84]
    One advertisement, exhibits 3, in the Sun Classifieds (which is also relevant to Charge 4 of the Brisbane Complaint) also contains the text “QBCC# 1195281”, a licence number. The fact Morley purports to cite a QBCC licence number is also some evidence from which it can be inferred that Morley himself was aware of the need for him to be licensed under the QBCC Act.

85. [85]
    That licence number is in fact a contractor’s licence number held by one Brett Victor Beutel.

86. [86]
    Beutel gave evidence before me that he knew Wade Morley since having previously sub-contracted to Morley nine years ago. Beutel said he had a verbal agreement with Morley which allowed Morley to state Beutel’s licence number in Morley’s’ anode advertisements and any work arising from the inspections of anodes for the replacement of the anodes in Queensland was supposed to be referred to Beutel. Beutel was supposed to do the replacement and be paid for it.

87. [87]
    Beutel confirmed his own business name is Beutels’ Plumbing Services and that he did not trade as Aussie Anodes.

88. [88]
    He also explained the anode inspection process. He said the water in the hot water system is under mains pressure. To inspect the anode one has to reduce the pressure, turn off the power so as not to burn out the element if the water is drained – for example, due to corrosion, and if the anode is found to be in good condition he will ask the householder to “keep us in mind” and gives householder a rough estimate of when the anode may need to be replaced. If the anode needed replacement he would give a price to the owner and if they agreed he would carry out the work to replace the anode.

89. [89]
    Mr Denman also gave evidence. He is employed by the QBCC as the Manager, Plumbing and Pools. He is qualified as a plumber, drainer and gasfitter. He explained the role of a sacrificial anode. He explained that the anode is “less noble”. That is, it is more corrosive. The electrolysis process causes the anode to be corroded ahead of the tank. The anode is sacrificed so that the tank liner is saved from corrosion and consequential leaks.

90. [90]
    Denman stated the work involved to inspect an anode (i.e. the same service as advertised by Morley) involves turning off the power, reducing the water pressure, releasing a bolt and pulling out the anode. The procedure was simply the opposite, in reverse, to re-instate or replace an anode. If the water is soft water, it will help to determine whether to use a stainless steel, instead of a magnesium, anode. He emphasised that the water pressure must initially be released to avoid scalding, because water volume expands when water is heated.

91. [91]
    Beutal also explained that a hot water system runs directly off mains water and reticulates the hot water throughout the house.

92. [92]
    He also gave, specifically without objection, an opinion that the replacement of an anode is regulated “plumbing work”.

93. [93]
    I can only suppose there was no objection because under cross-examination Beutal was asked why replacing an anode is regulated work. He said:

1. Under the Plumbers and Drainers Act “apparatus” includes a hot water heater, and

2. “Plumbing work” includes work to an apparatus; and

3. An anode is an integral part of a hot water heater.

94. [94]
    He agreed that an anode does not supply water.

95. [95]
    He also agreed that to change an element in a hot water system is electrical work, and not plumbing work. The electrical element is not a plumbing component. It is an electrical component and a person may obtain a restricted licence to replace it. On this point I note that the scope of work for Part 18 and 19 Plumbing Licences and Drainage Licences includes “incidental work of another class.”

96. [96]
    Despite the lack of objection the witness cannot swear to the issue. The issue is one for the court to determine.

97. [97]
    I must ignore his opinion so far as it relates to the issue of whether, by advertising for the inspection and replacement of anodes, Morley held himself out as being available to carry out “building work”.

Consideration

98. [98]
    I find that the inspection and/or replacement of an anode is “building work” under the definitions in schedule 2 of the QBCC Act because if involves the provision of water supply in connection with a building.

99. [99]
    Subject to exclusion under item 11 in Schedule 1AA, if an anode breaks down and the tank liner is corroded and leaks, the provision of a water supply is impeded or interrupted.

100. [100]
     Also, the work and procedure for inspecting or replacing an anode itself requires an interruption to, and re-provisioning of the water supply to the building via the hot water system.

101. [101]
     Clearly, when it comes to advertising, section 53C (4) stipulates that the exclusion for “building work” of a value of $3,300 or less under item 2 of Schedule 1AA does not apply. The exclusion is excluded for the purpose of advertising ones availability to do any building work.

102. [102]
     Mr Ohlsen, for the defendant, submitted section 53C does not apply to Morley because the advertised inspection of anodes is done free of charge. It had zero value.

103. [103]
     I do not agree. Firstly, the advertisements clearly make an offer to inspect for free but also makes an implicit offer to replace the anode, if necessary, for a fee.  The wording of the advertisement makes it clear the service is free only if the anode does not need replacing. Secondly, the submission would only be relevant if item 2 applies to Morley, but it is excluded.  Thirdly, section 53C simply requires that if a person holds out an availability to carry out building work of any kind, or value, then, if he does not hold a contractor’s licence, he must state in the advertisement the value of work he is entitled to carry out without the licence.  Fourthly, there is no requirement that the work offered must be for a fee.  Fifthly, even work done for free has intrinsic value to both the contractor and the consumer.  For the consumer there is the peace of mind that the anode is in good working order.  There is a saving of the dollar value someone else may charge for the same service.  For the contractor there is the opportunity for further business when the anode needs replacement, then or later.

104. [104]
     The real issue again is whether the work advertised (inspection and replacement of anodes) is “building work”.

105. [105]
     The prosecutor conceded that the most difficult issue for the prosecution was item 11 in schedule 1AA quoted above.

106. [106]
     If the inspection and / or replacement of an anode in a hot water system falls within item 11 it is not “building work” and section 53C would not apply to the defendant, and the defendant would then have to be found not guilty of each of the five charges under section 53C.

107. [107]
     I have had regard to the members appeal decision in Morley v See [2015] QCATA 127.  The members concluded that under item 11 of schedule 2 the repair of a stormwater drain is excluded from the definition of “building work” and said that their conclusion is consistent with:

“ … the general tenor of the licensing scheme under the QBCC Act in relation to plumbing and drainage.  The licensing scheme draws a distinction between the installation of a stormwater system in connection with a building which requires a licence, and its repair, which does not.”

108. [108]
     Are the considerations the same for the advertising provisions of the licensing scheme?

109. [109]
     The prosecution invites me to decline to agree with the conclusion or reasoning in Morley v See (above).

110. [110]
     The prosecution submits the outcome will depend on whether the word “works” in item 11 is used as a verb or as a noun.

111. [111]
     The prosecution submitted that if “works” is used as a verb then it would refer only to the initial installation.  If it is used as a noun then it would refer to a thing, and something which connects two things such as a water main and a house.  The QBCC argues that the work advertised by Morley (inspecting, removing or replacing an anode in a hot water system) is work on a part of the connection to a water main.  Mr Formby for the QBCC submitted that if the prosecution submission is wrong then “any cowboy” can do the maintenance and repair to a system, whereas the QBCC Act is designed to protect the public where work is potentially dangerous, by requiring correctly qualified and licensed contractors to do the work.

112. [112]
     Mr Formby therefore submits that if the word “works” is used as a noun, item 11 in Schedule 2 could be read as if it said:

“Works for the construction, extension, repair or maintenance of that part of a water reticulation system, sewerage system or stormwater drain which does not connect a building to a main is not building work.”

113. [113]
     Read this way, it was submitted, handymen and other unlicensed operators would be allowed to, for example, change a shower head.

114. [114]
     Mr Formby stated the prosecution offered no evidence to (withdrew) Charge 1 on the Brisbane complaint because they had to concede the evidence established that the works which were worked on were works connecting a stormwater drain to a gutter and not connecting a building to a main of the system.

115. [115]
     However, the addition of the words “Works for the” before the word “construction” only adds to the confusion. It confuses the use of the words “work” with “works”

116. [116]
     I note also, the heading to item 11 is “Work for a water reticulation system, sewerage system or stormwater drain”. Item 11(1) then simply states (before the exception to this exception): “Construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain,”. This means construction work, extension work, repair work or replacement work to either a water reticulation system, sewerage system or stormwater drain.  Then, Item 11(1) goes on with the exception to the exception: “other than works connecting a particular building to a main of the system or drain.”.

117. [117]
     On my reading of item 11, the word “works” is indeed used as a noun. The word “works” is clearly used as a short form or catch-all noun for the preceding reference to three different types of water works:

1. A water reticulation system, or
2. A sewerage system, or
3. A stormwater drain.

118. [118]
     The works addressed by item 11 is “construction, extension, repair or replacement” of only these three types of water works.

119. [119]
     Therefore, in my opinion it is not building work if the work performed or advertised is a construction, extension, repair or replacement of a sub-genre of the three water works – those which do not connect a building to a main of the works. In other words, it is not building work if the work is to a sub-system or part of a works which, if stopped, interrupted, dismantled and reassembled in the process of maintaining or repairing it, will not prevent the flow of water from the mains to the building.

120. [120]
     Therefore, any handyman or other unlicensed person could lawfully change a shower head, a washer in a tap, even install a garden irrigation system if it is connected to an external garden tap.

121. [121]
     Errors in the interpretation of item 11 can be easily avoided by the simple insertion of one word in item 11. It obviously should be read as if instead of “other than works” it said “other than to works”.

122. [122]
     Here, the work advertised (removal, inspection, and replacement of the anode) would affect a repair of that part (the hot water system) of the works (a water reticulation system) and would necessarily interrupt the supply of water from the main to the house.

123. [123]
     Therefore it was not excluded work.  It is building work.

124. [124]
     I should pause to add that while the insertion of the word ‘to’ makes the section clear to me, the drafting method is still too obtuse and tortured for lay persons. It is apt to produce injustice if tradespeople cannot readily see whether they need to be licensed or whether they are allowed to advertise.

125. [125]
     Instead of having a definition in the Act to which there is an exception in the Regulation and then an exception to the exception in the Schedule to the Regulation, I would recommend that item 11 be replaced with a section in the Act itself, or that at the very least item 11 be replaced with an Item that could read as follows:

11. Work to part of a works is not building work if the work does not disconnect a building to a main of the works.

In this section –

“Building” includes a proposed building;

“Disconnect” includes to interrupt, hinder, impede or prevent the connection.

“Work” includes construction, extension, maintenance, repair and replacement work;

“Works” means –

1. (a)
   A water reticulation system; or

2. (b)
   A sewerage system; or

3. (c)
   A stormwater drain.

126. [126]
     Two other cases were referred to in submissions besides Morley v See.  For completeness I will refer to them here.  However, neither of them provide any assistance.

127. [127]
     In Walton Construction (Qld) P/L v Plumber by Trade P/L & Ors [2012] QSC 264 the Court was concerned with the validity of a payment claim under the Building and Construction Industry Payments Act 2004, and with the validity of an adjudication decision.  The claim and the decision were found to be void because the subcontractor was a partnership, two corporate trustees, neither of which was licensed under the QBSA Act.  At [26] her honour M Wilson J stated:

“[26] In the present case the work the subject of the payment claim was “building work” for which either a “Plumbing and Drainage” or a “Drainage” class licence under the QBSAAct and Regulation was required.  Neither of the corporate trustees held such a licence.  The payment provisions in the subcontract were thus not enforceable by the first respondent.”

128. [128]
     The works were hydraulic works at an equestrian centre. There was no analysis of the meaning of “building work” or of the QBCC Act. There was simply the statement of fact at paragraph [26].

129. [129]
     The only other case referred to was Goldfield Project Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552.  In that case QCAT was concerned with a challenge to the jurisdiction of the Commission to direct the rectification of plumbing work that is building work.  Interim orders were sought that the Tribunal should confirm that the Commission was not entitled to require the builder to rectify “plumbing work inside a building”.  Secondly, the builder sought an “interim” decision that it was unfair for the Commission to issue a direction to rectify where the plumbing works had been inspected and passed by the local government.  The builder claimed the defective plumbing work could well be a maintenance issue.

130. [130]
     QCAT member Howe found that the interim orders sought would in reality be final orders. The relief sought was to set aside the direction to rectify. That would finally dispose of the litigation if the orders were made. Member Howe also found that those matters would also appropriately be the subject of evidence and submissions at hearing. The application for interim orders was in truth an application for summary judgment, and there was no provision for that in the QCAT Act.

131. [131]
     Finally, at [31] and [32] Member Howe stated:

“[31] As to the argument that plumbing work is not building work for the purposes of s 72, the exclusion from the concept of reviewable building work of “construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain” cannot be read in isolation from the following rider to those words “other than work connecting a particular building to a main of the system or drain.”  That seems to clearly stipulate that headworks may not be building work but the work typically done by plumbers connecting water services and toilets in a home to the reticulation and sewerage systems respectively enjoys no such exclusion.

[32] The matter may be more fully argued by the builder at hearing, but prima facie and for the purpose of these “interim” applications that argument cannot succeed.”

132. [132]
     Member Howe was concerned with section 72 of the QBCC Act (Power to require rectification of building works and remediation of consequential drainage). Member Howe’s decision was not a final decision but indicative so far as Schedule 1AA, item 11 exclusions are concerned. Besides the fact that QCAT decisions are not binding in the Magistrates Court, Member Howe has misquoted item 11, at [31], where instead of “…other than works connecting…” Member Howe wrote “ … other than work connecting …”.

133. [133]
     However, given my approach to the interpretation of item 11 in Schedule 1AA above, I agree with Member Howes’ conclusion that

“The work typically done by plumbers connecting water services and toilets in a home to the reticulation and sewerage systems respectively enjoys no such exclusion.” 

134. [134]
     The consequence of these findings is that Morley was not entitled or authorised to place any advertisement at all, let alone one which stated the value of work he could do without a licence. However, he did place an advertisement, therefore he had to comply with section 53C.

135. [135]
     At the very least, as he did publish advertisements, the advertisements should have stated words to the effect that because the advertiser does not hold a QBCC contractor’s licence, the service offered is a free inspection and referral service.

136. [136]
     Instead of breaching section 53C, it was also open to Morley to run a joint advertisement and work in partnership with Beutel or to simply sub-contract to Beutel.

137. [137]
     Mr Ohlsen also submitted that the charges are worded incorrectly because they only refer to words used in subsection (2) of section 53C and not to “being available to carry out building work” as referred to in subsection (1).

138. [138]
     The offence provision is subsection (2). Therefore it is not necessary to repeat in each charge all of the words in subsection (1). The particulars alleged and made known to the defendant in the complaints, explicitly allege that Morley advertised he “was available to carry out building work”. These particulars were not challenged for inaccuracy and have been proved, also without challenge, by the witness statements by Dixon and Fazzari.

139. [139]
     Again the drafting of section 53C is open to criticism. Subsection (1) does not follow the common practice of establishing when the section applies. In effect it provides two out of three elements of the offence but then sets out the offence provision in subsection (2) with the third of the elements of the offence.

140. [140]
     Subsection (1) states that a person who does not hold a contractors’ licence must not advertise his or her availability to carry out building work unless the advertisement complies “with this section”. In fact, to comply with the section the advertiser may need to comply with subsection (2) and/or (3).

141. [141]
     The way section 53C is set out, the maximum penalty of 100 penalty units may only apply to failure to comply with subsection (2). What section 53C actually means is that if –

1. (a)
   A person does not hold a contractor’s licence, and

2. (b)
   The person publishes an advertisement that the person is available to carry out building work, and

3. (c)
   The person does not –

1. (i)
   State the value of work the person is entitled to carry out without a licence, or

2. (ii)
   State that the person is not entitled to or does not, charge for the work (which would also cover charity work); or

3. (iii)
   Comply with a regulation prescribing the way the advertisement may be presented or the words it must include in it; 

the person commits an offence against the QBCC Act.

142. [142]
     Having made the above findings, I am satisfied the prosecution has proved beyond reasonable doubt that –

1. (a)
   Morley did not hold a contractor’s licence when he; and

2. (b)
   he published each advertisement; and

3. (c)
   he represented that that he was available to carry out building work; and

4. (d)
   he did not state in the advertisement the value of work he was entitled to carry out without a licence (namely zero).

143. [143]
     Therefore, I find the defendant guilty of charges 2 and 3 on the Coolangatta complaint and charges 2, 3 and 4 on the Brisbane complaint.

Making use of licensee’s licence to pretend to be a licensee: s.51 (2) of QBCC Act; Charge 4 on the Coolangatta complaint. 

144. [144]
     The particulars for the single charge in this classification, which are not in dispute and which were proved beyond reasonable doubt by the evidence, are as follows:

1. Pursuant to section 51(2) of the QBCC Act it is an offence for a person who is not a licensee to make use of a licensee’s licence to pretend to be a licensee.

2. In section 51 of the QBCC Act “make use of” a licensee’s licence means “make use of the number of the licensee’s licence or the licensee’s licence card, licence certificate or PIN.”

3. From 23 April 2004 to 2 November 2012, Morley held a licence, number 638342, with the Authority in the classes of ‘Plumbing and Drainage’ and ‘Gasfitting’.

4. On 2 November 2012, the Authority cancelled Mr Morley’s ‘Plumbing and Drainage’ licence.  By letter dated 2 November 2012, the authority informed Mr Morley of the decision to cancel the above licence.

5. The ‘Sun’ newspaper is a weekly publication.

6. Between 21 May 2014 and 18 July 2014, Mr Morley, trading as ‘Gold & Tweed Coast Anodes’, published an advertisement in the Sun that Mr Morley (trading as Gold & Tweed Coast Anodes) was available to carry out building work.  The advertisement was published in the Upper North Sun, Northern Sun, Central Sun, Southern Sun, and Tweed Sun publications.

7. The advertisement was published bearing the text: “QBCC#1195281”.

8. The licence register maintained by the Commission records that licence number 1195281 is held by ‘Brett Victor Beutel’ of 1/39 Cabarita Avenue, Tugan in the State of Queensland.

9. At the time the advertisement was published, Mr Morley:

1. (a)
   Did not hold a contractor’s licence of the appropriate class;

2. (b)
   Was not a licensee;

145. [145]
     The issue in dispute is whether Morley made use of Beutel’s licence to pretend to be a licensee.

146. [146]
     Section 51 provides:

51 Improper use of a licence card, certificate, number or PIN

3. (1)
   A licensee must not allow another person to make use of the licensee’s licence if the licensee knows, or aught reasonably to know, that the other person intends to make use of the licence –

 (a) if the other person in not also a licensee – to pretend to be a licensee; or

 (b) if the other person is also a licensee – to pretend to be the holder of a licence authorising the doing of something the other person is not authorised to do.

 Maximum penalty – 250 penalty units.

3. (2)
   A person who is not a licensee must not make use of a licensee’s licence to pretend to be a licensee.

 Maximum penalty – 250 penalty units.

3. (3)
   A licensee (the first licensee) must not make use of another licensee’s licence to pretend to be the holder of a licence authorising the doing of something the first licensee is not authorised to do.

Maximum penalty – 250 penalty units.

3. (4)
   In this section –

make use of, a licensee’s licence, means make use of the number of the licensee’s licence or the licensee’s licence card, licence certificate or PIN.

(my underlining)

147. [147]
     This charge is laid under subsection (2).

148. [148]
     The prosecution must prove beyond reasonable doubt:

1. That Morley was not a licensee; and

2. That Beutel was a licensee, and

3. That Morley made use of Beutel’s licence; and

4. Morley made use of it to pretend to be a licensee himself.

149. [149]
     The first and second elements were not challenged and are proved by documentary evidemnce. The unchallenged evidence of Dixon and Exhibit 3 also prove the third element.

150. [150]
     Did Morley make use of Beutel’s license number in the Sun Classified advertisement to pretend to be licenced?

151. [151]
     Beutel’s contractor’s licence number is stated in the advertisement. It is therefore made use of.

152. [152]
     The only reference in the text of the advertisement to the licence and number is: “QBCC#1195281”.

153. [153]
     There is no declaration that QBCC #1195281” is a licence number, but I am satisfied beyond reasonable doubt that any half-informed consumer seeking a hot water system repair or inspection who reads the advertisement would be able to learn and understand that “QBCC” means the Queensland Building and Construction Commission, and that the number following the hash symbol is a licence number because the hash is a standard and universally recognised numerical sign.

154. [154]
     I am equally satisfied beyond reasonable doubt that Morley intended it to be taken that way. In placing the advertisement with this text and this number Morley knew people would assume it was for some official licence or authority to do the work he offered.

155. [155]
     There is also no declaration in the advertisement that the licence number belongs to someone other than “Gold and Tweed Coast Anodes”.

156. [156]
     There can be no excuse in this case that you can’t put everything in an advertisement in a newspaper. This advertisement is one of the largest on the page with only two of the remaining 29 advertisements on that page competing for size. In terms of square centimetres it is actually the largest on the page and only 1 other advertisement is of the same size.

157. [157]
     The defendant also knew that he was no longer licenced himself, and had not been licenced since 5 October 2012.

158. [158]
     The evidence of Beutel also clearly establishes beyond doubt that the defendant was not given authority to use Beutels’ licence number to hold it out as the defendant’s own licence number

159. [159]
     The word “pretend” is not defined in the QBCC Act. The Australian Macquarie Dictionary, 3^rd Edition, defines “pretend”:

Pretend /pre’tend/ verb (t)1. To put forward a false appearance of; feign: to pretend illness. 2. To venture or attempt falsely (to do something).  3. To allege or profess, especially insincerely or falsely.  – verb (i)4. To make believe.  – adjective5. Imaginary; make-believe; pretend money.  – phrase6. pretend to, a. to lay claim to.  b. to make pretensions to.  c. to aspire to, as a suitor or candidate.  [ME pretende(n), from L praetenders stretch forth, put forward, pretend]

160. [160]
     In the absence of the disclaimers or declarations like those I refer to above, the advertisement published by Morley via a trading name puts forward a false appearance that the licence number quoted is his; it is insincere and false, it makes a pretension to lay a claim to ownership of the licence number.

161. [161]
     In the absence of Morley being given lawful authority and in the absence of appropriate declarations or disclaimers, knowing that he was not licenced, knowing that in invoices under another trading name he purported to be fully licensed when he was not, the only reasonable conclusion is that he deliberately feigned ownership of the licence owned by Beutel in order to deceive consumers to hire him directly to both inspect and replace anodes. There is no other reasonable hypothesis consistent with innocence.

162. [162]
     The prosecution has proved beyond reasonable doubt each element of this charge.

163. [163]
     Therefore, I find the defendant guilty of charge 4 on the Coolangatta complaint.

ORDERS

In relation to the Coolangatta Complaint:

Charge 1:  The defendant is found Not Guilty.

Charges 2, 3 and 4: The defendant is found Guilty of each offence.

In relation to the Brisbane Complaint:

Charge 1: The prosecution offered no further evidence.  The defendant was discharged.  The charge was dismissed.

Charges 2, 3 and 4:  The Defendant is found Guilty of each offence.

J J Costanzo

Magistrate

Southport