Morley v QBCC

DISTRICT COURT OF QUEENSLAND

CITATION:	Morley v QBCC [2017] QDC 95
PARTIES:	WADE FRANCIS MORLEY (appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (QBCC) (respondent)
FILE NO:	155/16
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	27 April 2017
DELIVERED AT:	Southport
HEARING DATE:	27 February 2017
JUDGE:	Kent QC DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – where the Magistrate found the advertised, trade work constituted “building work” as defined under the Queensland Building and Construction Commission Act 1991 (Qld) – where the advertised, trade work involved the removal, and replacement, of an anode of a hot water system – where the advertised, trade work required the interruption of the water supply from the water main to the house – whether the advertised, trade work constituted “building work” – whether the Magistrate erred in finding the advertised, trade work constituted “building work” CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – where the appellant contends the Magistrate made a mistake in finding the appellant pretended to be a licensed contractor – where the appellant contends the Magistrate made a mistake in finding the appellant intended to make use of another person’s licence to perform building work in Queensland – whether the Magistrate erred in making the two aforementioned findings of fact CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant disputed the proclamation of the Queensland Building and Construction Commission Act 1991 (Qld), which prescribed the offences committed by the appellant – whether the relevant legislation had been properly proclaimed and was thus valid law Evidence Act 1977 (Qld), s 46A, s 47, s 48 Justices Act 1886 (Qld), s 222, s 223 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 42, s 51, s 53C, s 56, item 11 of sch 1AA Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, cited O’Connell v Cullery [1927] VLR 502, cited Shambayati v Commissioner of Police [2013] QCA 57, cited Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, cited Zuvela v Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29; [1996] HCA 30, cited
COUNSEL:	The appellant appeared on his own behalf A C Freeman for the respondent
SOLICITORS:	The appellant appeared on his own behalf The respondent appeared on its own behalf

Nature of the appeal

1. The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the findings of guilt by a Magistrate at the Magistrates Court, Southport on 10 May 2016. It is submitted on three separate grounds that the findings of guilt were in error, and the appellant in effect seeks that the convictions be quashed.

2. Pursuant to s 223(1) of the Justices Act 1886, an appeal under s 222 is by way of rehearing of the original evidence given in the proceeding at first instance before the Magistrate. The nature of this process means that this court “must, of necessity, observe the ‘natural limitations’ that exist” in such a procedure, such as the handicaps in evaluating witness credibility and not having heard, or been directed to, the whole of the evidence.[1] This case does not, however, turn to any significant degree on findings of credibility.

   [1]Fox v Percy (2003) 214 CLR 118, [23].

3. My task is to review the evidence, weigh any conflicting evidence and draw my own conclusions, while affording respect to the decision of the Magistrate.[2] It is for the appellant to establish a legal, factual or discretionary error.[3] In reviewing the matter I am, of course, not entitled (or obliged) to merely substitute my own conclusions for those of the Magistrate, in the absence of identified error.[4] As will become clear, this case turns on questions of construction of legislation.

   [2]Mbuzi v Torcetti (2008) 50 MVR 451, 454; [2008] QCA 231, [17].

   [3]Shambayati v Commissioner of Police [2013] QCA 57, [23] (Margaret Wilson J) and the cases there referred to.

   [4]Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506; Zuvela v Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29, 31.

Background

4. The respondent commenced prosecutions against the appellant for breaches of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”) in Brisbane in 2015 and in Coolangatta in 2016. These matters were consolidated and tried together before the Magistrate on two days in Coolangatta and Southport Magistrates Courts. The charges fell into three categories:

(a) Section 42(1) QBCC Act – unlawfully carrying out building work: one charge.

(b) Section 53C QBCC Act – publishing an advertisement that did not state the value of work the appellant was entitled to carry out without having a licence: five charges.

(c) Section 51(2) QBCC Act – making use of another licensee’s licence to pretend to be a licensee: one charge.

5. The prosecution withdrew the first charge on the original complaint during the trial and the appellant was found not guilty of charge one on the Coolangatta complaint.  He was found guilty of the five charges of publishing an advertisement and also the one charge of making use of a licence. The advertisements were for the replacement of anodes (an internal part to prevent electrolysis of the system) in hot water systems.

“Building work”?

6. He appeals against these findings on three broad bases: firstly, that the Magistrate made a mistake of fact when he found that the work advertised was within defined “building work” in that the removal, and replacement, of an anode of a hot water system requires the interruption of the water supply from the water main to the house. He submits that in truth it does not involve such an interruption, with the effect that the activity is within the exclusion provided for in item 11, Schedule 1AA to the QBCC Act. Thus, it is not within the meaning of “building work” in the Act and therefore the offence creating provisions are not engaged.

7. Item 11 provides for an exemption for “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”. The appellant argues that this applies to what he was advertising to do.

8. The Magistrate discussed item 11 at some length and, in paragraph [119], observed, “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.”  Later at para [122] his Honour continued that the work under discussion in the present case “would effect 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.”  Therefore, his Honour concluded, it was not excluded work, rather it was building work that was being performed.

Discussion

9. One way of analysing this is to note, as the appellant submits, that the repair to the anode did not require water to be turned off at the mains, rather there is a valve at the hot water system itself.  Thus, the supply of water to the house (at least cold water) is not interrupted.  However, the rejoinder, of course, is that in any case the supply of hot water was indeed interrupted, as his Honour observed.  Mr Denman, a plumber called by the respondent, gave evidence that the water supply must be isolated to the hot water heater and the heater depressurised before removing the anode.  The water systems are under mains pressure.  The mains services the property and then within the property is the water service, which then feeds back inside the house.  The hot water system is pressurised due to the heating of the water.  The anode is an integral part of a hot water heater.  It sits within the water in the system.[5]

   [5]See generally T1-69-75.

10. I accept, as submitted by the respondent, that the evidence available to the Magistrate as to replacing an anode was that the water inlet to the hot water system must be turned off; the system depressurised; this procedure isolates the hot water system from the mains pressure; and the hot water system is a separate water circuit within a dwelling drawing generally on mains pressure water.  These matters support the finding made in paragraph [122] of his Honour’s judgment.  The work of replacing an anode in a hot water system is work to a subsystem, which if interrupted, dismantled and reassembled in the process of maintaining or repairing it, prevents the flow of water from the mains to the building within that subsystem.  Therefore it does not fall within the exemption in Item 11. 

11. The respondent also submits, and I accept, that “plumbing” is not defined in the QBCC Act or Regulations because plumbing is governed by the separate Plumbing and Drainage Act. That Act defines “plumbing”, “premises”, and “apparatus for supplying water to premises, includes a water meter.” Thus, the QBCC Act scheme is that plumbing services concerning the supply of water from the service provider’s infrastructure to a premises or building is to be regulated by the need for a licence, but works to do with the construction, extension or repair of the actual infrastructure is not. The infrastructure is owned by local authorities and utilities operators, as opposed to premises owned by, for example, home owners who need a licenced plumber. The QBCC Act and Regulations are designed to cover relationships between licensees and the public, not the local authorities. Section 3 of the Act sets out its objects, and they are concerned with the relationship between the building industry and consumers, particularly for domestic building contracts. Item 11 may be seen as exempting from this scheme the situation where a local authority is constructing the overall infrastructure or headworks; this is not such a case.

12. The work, or advertised work, which was the subject of the charges, involved the removal and replacement of a part of a domestic hot water system that formed an integral part of the plumbing system that connects a building to the water mains system.  Thus, the advertised work did not fall within the scope of the exclusion from item 11.

13. In any case, the respondent now makes a further submission to the effect that the conclusion of the Magistrate can be supported on an alternative basis.  What is pointed out is that the Magistrate may have proceeded wrongly on the basis that, in terms of item 11, what was being dealt with was a “water reticulation system”.  It was submitted that, although that term is not defined, it should be regarded as the system of plumbing installed by public authorities to deliver water to individual properties, rather than the plumbing, which is internal to the properties.  Some support was gained for this proposition from the Australia New/Zealand Standard for Plumbing and Drainage, 2003, which defines “reticulation made” as “a network of pipes to be service pipes of individual properties are connected”.  Seen this way, it is submitted that the works in this case did not touch either a water reticulation system, sewerage system or storm water drain, thus the exemption cannot apply.

14. In my view, the appellant cannot demonstrate either, the analysis of the Magistrate was incorrect, nor that the alternative explanation contended for by the respondent cannot be made out.  In my view, the plumbing work to be performed is not excluded from the description of “building work” and the convictions are not challengeable on that basis.

15. Before leaving this aspect of the matter, I note the Magistrate was critical of the complexity of these provisions. I share his concerns and if they can be simplified both the tradespeople working under them and the conduct of future prosecutions would be aided.

Pretending to be licensed

16. In relation to ground 2, the appellant complains that the Magistrate made a mistake of fact in finding that the appellant (a) pretended to be a licensed contractor and (b) intended to make use of Mr Beutel’s licence to perform building work in Queensland.

17. On this ground, the appellant submits that the arrangement was a verbal one between he and Beutel allowing the appellant to state Beutel’s licence number in his advertisements.  Further, the arrangement was that any work arising from the advertisements for replacement of anodes in Queensland was referred to Beutel, who did the work himself and was paid separately for it on his (Beutel’s) invoice; in other words, the anode work, in Queensland, was separate from the appellant’s activities.  Thus, so the appellant submits, there was not sufficient evidence to prove beyond reasonable doubt that the appellant engaged in a deliberate pretence to be a licensed contractor in Queensland.

18. The evidence presented on this topic includes the advertisements placed by the appellant advertising his business, “Gold and Tweed Coast Anodes”.[6] This shows a copy of the advertisement for Gold and Tweed Coast Anodes containing the QBCC number belonging to Mr Beutel. Ms Dixon also approves a copy of an email from the appellant to Newscorp stating:

“mate I’m OK to use my mate’s licence number QBCC its 1195281. So let’s get the old ad running again on the Gold Coast. Call me if you have any questions.”

19. The Magistrate dealt with this matter at paras [144] to [162] of the judgment. His Honour found that the attachment of Beutel’s licence number to the advertisement was, in terms of s 51 of the Act, making use of the licensee’s licence to pretend to be a licensee (which the appellant was not at the time).

20. What his Honour found on this topic was that, on the evidence of Mr Beutel, the appellant was not given authority to use Beutel’s licence number by holding it out as the defendant’s.  The advertisement published by the appellant via his trading name put forward a false appearance that the licence number was his.  He found that the appellant deliberately feigned ownership of the licence owned by Beutel in order to deceive consumers. “Pretend” in this context includes holding out or putting oneself forward as having a qualification or registration that is not the case.[7] This finding was clearly open.

    [7]See O’Connell v Cullery [1927] VLR 502, 508.

21. It is true that the appellant did not himself pretend to be Beutel nor did he do the work in Queensland, and Beutel apparently charged under his own name. However, the respondent points out that these matters fall in the context of a statutory framework including s 56 of the Act, which in subsection (1)(c) provides, “any advertisement published in relation to the business carried on, or to be carried on, under the licence must state the name under which the licence contractor is licensed and conform with any requirements imposed by regulation.” The advertisement certainly did not refer to Beutel, and thus did not state the name under which the contractor was licensed. This provision does give context to the charge under s 51. In all the circumstances in my view the conclusion formed by the Magistrate was clearly open on the evidence and there is no basis to disturb it.

Act not proclaimed

22. The appellant finally submitted that the case against him was fatally flawed because it was not established that the QBCC Act was properly proclaimed and therefore it was not established that it was valid law.

23. These submissions were apparently based on the circumstance that s 2 of the original QBCC Act, as passed, had been removed in later reprints of amended legislation.

24. The offence provisions, s 51 and s 53C were inserted into the Act in their current form by amendments in 2007. That legislation was proclaimed by the governor on 13 December 2007 and the commencement date was 21 December 2007.

25. In relation to the commencement dates of the earlier legislation, the respondent points to s 46A(1)(b) of the Evidence Act 1977 providing that an official copy of Queensland legislation, is, in the absence of evidence to the contrary, taken to correctly show, for a reprint, in law in force included in the reprint as at the relevant date. The offence provisions are, of course, in the current version of the legislation as at the trial. Reliance is also placed on ss 47 and 48 of the Evidence Act.  Further, the original Act, Act no. 98 of 1991, was assented to on 17 December 1991 and, as originally provided in s 2 of the Act, was to commence partially on 1 January 1992 and, as to the balance, by proclamation.  A copy of the relevant proclamation of 28 May 1992 was produced showing that the balance of the Act commenced on either 1 June or 1 July 1992.

26. Thus there is no doubt as to the Act having been properly assented to and commenced, nor is there any doubt that the relevant legislation including the offence creating provisions, were in force at all relevant times.  It follows that the third ground of appeal is without merit.

Conclusion

27. The grounds of appeal have not been made out. The order will be that the appeal is dismissed. I will hear the parties as to further orders if any.