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austlii:qld/QBT/1998/100
respondent. The determination of the Tribunal dated 26 June 1998 is confirmed. An amended order was made extending the date for payment of penalties until 23 October 1998.
The Queensland Building Tribunal refused to reduce penalties it had imposed on a builder for Fair Trading Act breaches, even though the builder had subsequently been fined for the same offences in the Magistrates Court. The Tribunal explained that its power to reconsider decisions is very limited—it can only correct clerical mistakes or factual errors based on evidence from the original hearing. Because the Magistrates Court case happened after the Tribunal's decision, it couldn't be considered. The Tribunal noted that the builder should have raised the double jeopardy issue in the Magistrates Court instead. However, the Tribunal did grant an extension of time to pay the penalties, taking into account that the builder's licence had been cancelled.
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The application for reconsideration relates to one part only of the decision, namely the penalty imposed upon the Respondents for breaches of the Fair Trading Act in relation to the Abberton site.
1 cited instrument linked from this judgment.
The solicitors for the Respondents submit that the penalty imposed by the Tribunal upon Mr Festa and Maintenance Exteriors Pty Ltd should be reduced because of subsequent proceedings in which Mr Festa was also charged with the same offences under the Fair Trading Act in the Magistrates Court at Roma.
The solicitors for the Respondents base the application for reconsideration on the following considerations arising out of the decision:
"On pages 12 and 13 of your decision you formed the view of potential for double jeopardy sufficient to support the conclusion that the Tribunal ought not to consider the matter further where steps has been taken by the office of Fair Trading in the Department of Consumer Affairs.
On pages 34 of your decision orders were made with respect to the breaches of the Fair Trading Act. The breaches of the Fair Trading Act referred to by the Building Services Authority involved breaches of Sections 61(1)(g), 61(d) and 75(a) of the Fair Trading Act.
On the 30 June 1998 Mr Festa appeared at the Roma Magistrates Court to face charges made against him. Enclosed is a copy of the complaints and Summons against Mr Festa.
On that date Mr Festa was fined $500.00 with respect to those charges.
On that basis the penalty imposed against Mr Festa and Maintenance Exteriors on page 34(iii) would therefore be a double penalty."
I note from the outset that whilst the Tribunal received a copy of the summons issued to the First Respondent in relation to breaches of ss.61(1)(g), 61(1)(d) and 75(a) of the Fair Trading Act, the Tribunal did not receive a copy of any order of the Magistrates Court imposing the fine of $500.00. Further, the summons did not form part of the evidence during the hearing before the Tribunal.
"(1) The Tribunal may, on the application of a party to a proceeding, reconsider a determination given in the proceeding.
(2) Section 87(1) does not apply to a reconsideration under subsection (1).
(a) may be made by the member of the Tribunal who made the determination, the chairperson or another member of the Tribunal; and
(b) must be made only on the evidence placed before the Tribunal at the hearing of the proceeding.
(a) must be made within 14 days after the making of the determination; and
(b) must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
(5) On an application under this section the Tribunal may confirm, vary or reverse its determination, and give consequential orders and directions.
(6) However, the making of the application does not, of itself, stop the determination from taking effect according to its terms."
There can be no dispute that the application for reconsideration has been brought within the 14 day period specified in s.92 (4)(a).
The threshold issue to determine is whether the application is based upon a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
I have not been referred to a clerical mistake in the findings. Thus it is necessary to assess whether the issue raised by the solicitors for the Respondents in their letter dated 8 July 1998 is one relating to a factual error.
Whilst I accept that on the submissions made by the solicitors for the Respondent it seems that the First Respondent has been penalized for offences under the Fair Trading Act in both the Tribunal and the Magistrates Court, I am unable to accept that a factual error in the Tribunal's findings has been raised.
The decision of the Tribunal is based on the evidence before the Tribunal at the time of the hearing: s.92(3)(b). At the time of the hearing and at the time the decision was published there were no facts which supported the notion that the imposition of a penalty in relation to the Abberton site would amount to double jeopardy.
There is no power under the Act to reagitate any arguments already considered by the Tribunal nor is there any power to reconsider the Tribunal's decision other than on the basis set out in s.92 (4)(b) of the Act.
The summons before the Magistrates Court was dealt with at a date subsequent to the publication of the decision of the Tribunal. In the circumstances, it was open to the First Respondent to raise the issue of double jeopardy before the Magistrates Court.
I am bound by the limited powers of the Tribunal on the application for reconsideration prescribed by s.92 of the Act.
In the present circumstances, the Respondents have raised neither a clerical error nor factual error of sufficient significance to influence the outcome of the proceeding.
Accordingly, the determination of the Tribunal dated 26 June 1998 is confirmed.
The solicitors for the Respondents have requested an extension of time in which the Respondents are to make payment of the penalties imposed in the Tribunal's decision dated 26 June 1998.
I have taken into account the First Respondent's circumstances. In particular I have taken into account that the First Respondent's licence has been cancelled thus affecting his livelihood. I have further taken into account the conditions placed upon the licence of the Second Respondent.
An amended order is enclosed extending the date for payment of the penalties imposed under until 23 October 1998.
................................................
APPLICANT: QUEENSLAND BUILDING SERVICES AUTHORITY
SECOND RESPONDENT: MAINTENANCE EXTERIORS PTY LTD
An application for reconsideration pursuant to S.92 of the Queensland Building Services Authority Act 1991 ("the Act") has been made to the Tribunal by the First and Second Respondents. The application for reconsideration dated 8 July 1998 seeks a reconsideration of the decision of the Tribunal dated 26 June 1998.
The application for reconsideration relates to one part only of the decision, namely the penalty imposed upon the Respondents for breaches of the Fair Trading Act in relation to the Abberton site.
The solicitors for the Respondents submit that the penalty imposed by the Tribunal upon Mr Festa and Maintenance Exteriors Pty Ltd should be reduced because of subsequent proceedings in which Mr Festa was also charged with the same offences under the Fair Trading Act in the Magistrates Court at Roma.
The solicitors for the Respondents base the application for reconsideration on the following considerations arising out of the decision:
"On pages 12 and 13 of your decision you formed the view of potential for double jeopardy sufficient to support the conclusion that the Tribunal ought not to consider the matter further where steps has been taken by the office of Fair Trading in the Department of Consumer Affairs.
On pages 34 of your decision orders were made with respect to the breaches of the Fair Trading Act. The breaches of the Fair Trading Act referred to by the Building Services Authority involved breaches of Sections 61(1)(g), 61(d) and 75(a) of the Fair Trading Act.
On the 30 June 1998 Mr Festa appeared at the Roma Magistrates Court to face charges made against him. Enclosed is a copy of the complaints and Summons against Mr Festa.
On that date Mr Festa was fined $500.00 with respect to those charges.
On that basis the penalty imposed against Mr Festa and Maintenance Exteriors on page 34(iii) would therefore be a double penalty."
I note from the outset that whilst the Tribunal received a copy of the summons issued to the First Respondent in relation to breaches of ss.61(1)(g), 61(1)(d) and 75(a) of the Fair Trading Act, the Tribunal did not receive a copy of any order of the Magistrates Court imposing the fine of $500.00. Further, the summons did not form part of the evidence during the hearing before the Tribunal.
"(1) The Tribunal may, on the application of a party to a proceeding, reconsider a determination given in the proceeding.
(2) Section 87(1) does not apply to a reconsideration under subsection (1).
(a) may be made by the member of the Tribunal who made the determination, the chairperson or another member of the Tribunal; and
(b) must be made only on the evidence placed before the Tribunal at the hearing of the proceeding.
(a) must be made within 14 days after the making of the determination; and
(b) must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
(5) On an application under this section the Tribunal may confirm, vary or reverse its determination, and give consequential orders and directions.
(6) However, the making of the application does not, of itself, stop the determination from taking effect according to its terms."
There can be no dispute that the application for reconsideration has been brought within the 14 day period specified in s.92 (4)(a).
The threshold issue to determine is whether the application is based upon a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
I have not been referred to a clerical mistake in the findings. Thus it is necessary to assess whether the issue raised by the solicitors for the Respondents in their letter dated 8 July 1998 is one relating to a factual error.
Whilst I accept that on the submissions made by the solicitors for the Respondent it seems that the First Respondent has been penalized for offences under the Fair Trading Act in both the Tribunal and the Magistrates Court, I am unable to accept that a factual error in the Tribunal's findings has been raised.
The decision of the Tribunal is based on the evidence before the Tribunal at the time of the hearing: s.92(3)(b). At the time of the hearing and at the time the decision was published there were no facts which supported the notion that the imposition of a penalty in relation to the Abberton site would amount to double jeopardy.
There is no power under the Act to reagitate any arguments already considered by the Tribunal nor is there any power to reconsider the Tribunal's decision other than on the basis set out in s.92 (4)(b) of the Act.
The summons before the Magistrates Court was dealt with at a date subsequent to the publication of the decision of the Tribunal. In the circumstances, it was open to the First Respondent to raise the issue of double jeopardy before the Magistrates Court.
I am bound by the limited powers of the Tribunal on the application for reconsideration prescribed by s.92 of the Act.
In the present circumstances, the Respondents have raised neither a clerical error nor factual error of sufficient significance to influence the outcome of the proceeding.
Accordingly, the determination of the Tribunal dated 26 June 1998 is confirmed.
The solicitors for the Respondents have requested an extension of time in which the Respondents are to make payment of the penalties imposed in the Tribunal's decision dated 26 June 1998.
I have taken into account the First Respondent's circumstances. In particular I have taken into account that the First Respondent's licence has been cancelled thus affecting his livelihood. I have further taken into account the conditions placed upon the licence of the Second Respondent.
An amended order is enclosed extending the date for payment of the penalties imposed under until 23 October 1998.
................................................
APPLICANT: QUEENSLAND BUILDING SERVICES AUTHORITY
SECOND RESPONDENT: MAINTENANCE EXTERIORS PTY LTD
An application for reconsideration pursuant to S.92 of the Queensland Building Services Authority Act 1991 ("the Act") has been made to the Tribunal by the First and Second Respondents. The application for reconsideration dated 8 July 1998 seeks a reconsideration of the decision of the Tribunal dated 26 June 1998.
The application for reconsideration relates to one part only of the decision, namely the penalty imposed upon the Respondents for breaches of the Fair Trading Act in relation to the Abberton site.
The solicitors for the Respondents submit that the penalty imposed by the Tribunal upon Mr Festa and Maintenance Exteriors Pty Ltd should be reduced because of subsequent proceedings in which Mr Festa was also charged with the same offences under the Fair Trading Act in the Magistrates Court at Roma.
The solicitors for the Respondents base the application for reconsideration on the following considerations arising out of the decision:
"On pages 12 and 13 of your decision you formed the view of potential for double jeopardy sufficient to support the conclusion that the Tribunal ought not to consider the matter further where steps has been taken by the office of Fair Trading in the Department of Consumer Affairs.
On pages 34 of your decision orders were made with respect to the breaches of the Fair Trading Act. The breaches of the Fair Trading Act referred to by the Building Services Authority involved breaches of Sections 61(1)(g), 61(d) and 75(a) of the Fair Trading Act.
On the 30 June 1998 Mr Festa appeared at the Roma Magistrates Court to face charges made against him. Enclosed is a copy of the complaints and Summons against Mr Festa.
On that date Mr Festa was fined $500.00 with respect to those charges.
On that basis the penalty imposed against Mr Festa and Maintenance Exteriors on page 34(iii) would therefore be a double penalty."
I note from the outset that whilst the Tribunal received a copy of the summons issued to the First Respondent in relation to breaches of ss.61(1)(g), 61(1)(d) and 75(a) of the Fair Trading Act, the Tribunal did not receive a copy of any order of the Magistrates Court imposing the fine of $500.00. Further, the summons did not form part of the evidence during the hearing before the Tribunal.
"(1) The Tribunal may, on the application of a party to a proceeding, reconsider a determination given in the proceeding.
(2) Section 87(1) does not apply to a reconsideration under subsection (1).
(a) may be made by the member of the Tribunal who made the determination, the chairperson or another member of the Tribunal; and
(b) must be made only on the evidence placed before the Tribunal at the hearing of the proceeding.
(a) must be made within 14 days after the making of the determination; and
(b) must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
(5) On an application under this section the Tribunal may confirm, vary or reverse its determination, and give consequential orders and directions.
(6) However, the making of the application does not, of itself, stop the determination from taking effect according to its terms."
There can be no dispute that the application for reconsideration has been brought within the 14 day period specified in s.92 (4)(a).
The threshold issue to determine is whether the application is based upon a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.
I have not been referred to a clerical mistake in the findings. Thus it is necessary to assess whether the issue raised by the solicitors for the Respondents in their letter dated 8 July 1998 is one relating to a factual error.
Whilst I accept that on the submissions made by the solicitors for the Respondent it seems that the First Respondent has been penalized for offences under the Fair Trading Act in both the Tribunal and the Magistrates Court, I am unable to accept that a factual error in the Tribunal's findings has been raised.
The decision of the Tribunal is based on the evidence before the Tribunal at the time of the hearing: s.92(3)(b). At the time of the hearing and at the time the decision was published there were no facts which supported the notion that the imposition of a penalty in relation to the Abberton site would amount to double jeopardy.
There is no power under the Act to reagitate any arguments already considered by the Tribunal nor is there any power to reconsider the Tribunal's decision other than on the basis set out in s.92 (4)(b) of the Act.
The summons before the Magistrates Court was dealt with at a date subsequent to the publication of the decision of the Tribunal. In the circumstances, it was open to the First Respondent to raise the issue of double jeopardy before the Magistrates Court.
I am bound by the limited powers of the Tribunal on the application for reconsideration prescribed by s.92 of the Act.
In the present circumstances, the Respondents have raised neither a clerical error nor factual error of sufficient significance to influence the outcome of the proceeding.
Accordingly, the determination of the Tribunal dated 26 June 1998 is confirmed.
The solicitors for the Respondents have requested an extension of time in which the Respondents are to make payment of the penalties imposed in the Tribunal's decision dated 26 June 1998.
I have taken into account the First Respondent's circumstances. In particular I have taken into account that the First Respondent's licence has been cancelled thus affecting his livelihood. I have further taken into account the conditions placed upon the licence of the Second Respondent.
An amended order is enclosed extending the date for payment of the penalties imposed under until 23 October 1998.
................................................
Queensland Building Services Authority
Festa Antonio D254-97 [1998] QBT 100
The determination of the Tribunal dated 26 June 1998 is confirmed. An amended order was made extending the date for payment of penalties until 23 October 1998.