Armstrong v Plumbing Industry Council (No 3) [2014] QCATA 41

CITATION: Armstrong v Plumbing Industry Council (No 3) [2014] QCATA 41 PARTIES: Gary Armstrong (Appellant) v Plumbing Industry Council (Respondent) APPLICATION NUMBER: APL509 -13 MATTER TYPE: Appeals HEARING DATE: 4 February 2014, 10 March 2014 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM Member Roney DELIVERED ON: 12 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – where applicant fined for breaches of plumbing regulation – where applicant ordered to rectify defective work – where applicant applied to review fine – where fine reduced and applicant given time to pay – where tribunal ordered suspension of licence if applicant failed to pay fine – where applicant failed to pay fine – where applicant applied to reopen or renew tribunal decision – where application to reopen or renew refused – where applicant appealed the refusal to reopen or renew – whether grounds for leave to appeal TRIBUNAL PROCEDURE – where application to reopen or renew – where applicant could not pay fine because of financial difficulties – whether it was not possible for the tribunal’s decision to be complied with Queensland Civil and Administrative Tribunal -- 1 of 5 -- 2 Act 2009 (Qld) s 133(1)(a), Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr G Armstrong RESPONDENT: Mr S Hart for the Plumbing Industry Council REASONS FOR DECISION [1] This proceeding has its origins in a decision of the Plumbing Industry Council on 20 November 2012 to fine Mr Armstrong $6,600 and suspend his plumbing licence for 12 months. [2] Mr Armstrong applied to review that decision. On 10 May 2013, a Member of the tribunal set aside the fine of $6,600 and imposed a fine of $3,300. He ordered Mr Armstrong’s licence be reinstated, in part, so that he could carry out rectification work. Finally, the learned Member ordered that, if the fine was not paid by 31 July 2013, or the rectification work not finalised by 31 October 2013, Mr Armstrong’s licence would be suspended for 12 months. [3] Mr Armstrong did not pay his fine by 31 July 2013. On 19 August 2013, he filed an application for reopening, correction, renewal or amendment. He wanted 12 months to pay his fine and he wanted the Council to comply with the learned Member’s order of 10 May 2013 to provide a list of non- compliant work. The learned Member dismissed Mr Armstrong’s application. [4] Mr Armstrong wants to appeal that decision. The grounds of the appeal are: The QCAT member has not acknowledged vital facts in my evidence relating to my situation regarding my ability to pay a fine on an installment (sic) basis, he has used information supplied by the PIC to from an onion that is incorrect, and the subsequent order/decision given on the day is based on that incorrect information. [5] Mr Armstrong has expanded his grounds for appeal in his submissions. He says that the Plumbing Industry Council has not complied with [51] of the learned Member’s decision of 10 May 2013. He says that the Plumbing Industry Council presented material that he was a bankrupt and not licensed by the QBSA (as it then was). He says these facts diverted the learned Member’s attention away from the Council’s non-compliance. He says the learned Member ignored Mr Armstrong’s submission that bankruptcy did not prevent him from working in the industry and that he did not need a BSA licence. He says the learned Member’s view that Mr Armstrong had not reasonable prospect of being able to pay the fine by instalments was not supported by the evidence. -- 2 of 5 -- 3 [6] Because this is an appeal on fact and law, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. [7] If Mr Armstrong’s application was an application to reopen, the appeals tribunal has no jurisdiction because no appeal can lie from such a decision2. An application for renewal is only available3 if it is not possible for the tribunal’s final decision to be complied with or there are problems interpreting, implementing or enforcing the tribunal’s decision. [8] Paragraph [51] is part of the learned Member’s reasons for decision, it is not one of his orders. Therefore, Mr Armstrong has no basis to argue that there are problems with interpreting, implementing or enforcing [51]. The operative part of the learned Member’s order about rectification is that Mr Armstrong rectify all non-compliant work listed in the attached show cause notices. The Council has done all that was required of it. The order is plain. Mr Armstrong has no basis to seek a renewal of that order. [9] Mr Armstrong does not explicitly say that he cannot comply with the order that he pay his fine by 31 July 2013 but that was the effect of his application. [10] The tribunal has no enforcement powers4. It would be an odd result if the tribunal had no power to enforce a decision but could waive compliance with a decision simply because a person could not pay a money judgment. There is no equivalent provision in the Uniform Civil Procedure, the Victorian Civil and Administrative Tribunal or the State Administrative Tribunal of Western Australia. The Parliamentary debate of the Bill before it was passed does not assist. The only logical conclusion is that the power to renew an order of the tribunal was included because of the special nature of tribunal proceedings and the orders that might issue. If Mr Armstrong could not apply for the renewal of a money judgment in the Magistrate Court, we see no reason why the courtesy should be extended in the tribunal. [11] The learned Member was right to refuse Mr Armstrong’s application for renewal. [12] During the course of the appeal hearing, it became clear that Mr Armstrong really wanted to appeal the learned Member’s decision of 1 [2005] QCA 294 at [3]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5). 3 QCAT Act s 133(1). 4 See ss 131, 132. -- 3 of 5 -- 4 May 2013. The basis of that application is that the learned Member did not hear submissions from Mr Armstrong about his ability to pay the fine. [13] Mr Armstrong’s application could only occur if the appeals tribunal granted an extension of time in which to file the application. The Council urged us to refuse to extend time. It says that Mr Armstrong had no reasonable explanation for the delay. It accepts that Mr Armstrong may have misconceived his rights but it points out that Mr Armstrong is no stranger to the tribunal. [14] That is correct. Mr Armstrong has already been granted an extension of time for leave to appeal in another, related matter. He has filed multiple applications since August 2013 but he has not explained why he did not appeal the learned Member’s decision. [15] The Council also points out that Mr Armstrong has already received the tribunal’s indulgence. A fine that was originally payable through a decision in October 2012 is still outstanding. [16] The question of whether Mr Armstrong could pay a fine was certainly raised at the initial hearing5. Mr Armstrong told the learned Member he couldn’t pay an earlier fine because he wasn’t able to financially6. The Council raised Mr Armstrong’s capacity to pay a fine7. Mr Armstrong repeated that the financial burden of the fine presented a problem8. He told the learned Member about his plans to apprentice his son9 and how the restrictions were narrowing the type of work he was able to do10. He told the learned Member he wanted the opportunity to continue work, feed his family and ensure his son had a future11. Inexplicably, he did not ask the learned Member for an instalment plan. [17] Further to that, to this time no amount of the fine has been paid. Mr Armstrong continues to assert that the absence of an instalment plan is the only barrier to payment. He has, by virtue of these proceeding had an instalment plan. To begin with the Learned Member provided the applicant with some 2 ½ months to pay, from 10 May 2013 to 31 July 2013. On general principles, the terms of payment of a fine or debt are within the discretion of the decision maker. [18] The appeals tribunal asked Mr Armstrong to provide a draft instalment plan on 4 February 2014. At the resumed hearing on 10 March 2014, Mr Armstrong had still not done so. He instead referred to a proposal in material filed in the Tribunal in another application in August 2013. He said that material referred to payment over a 12 month period. Then, in statements from the bar table, Mr Armstrong appeared to resile from the 5 Transcript page 1-75, line 13 to page 1-76, line 26. 6 Transcript page 1-86, lines 19-20. 7 Transcript page 1-85, line 11. 8 Transcript page 1-85, lines 18-21. 9 Transcript page 1-85, line 28. 10 Transcript page 1-85, lines 30-32. 11 Transcript page 1-86, lines 16-18. -- 4 of 5 -- 5 notion that he could pay the fine in 12 months. The Tribunal was left, objectively, to doubt his bona fides, both in relation to capacity and intention to pay the latest fine. [19] To the extent the learned Member was in error in not hearing from Mr Armstrong about a payment plan, and we doubt that such an error exists, Mr Armstrong had that opportunity in his application for renewal or reopening. Mr Armstrong asked that he be able to pay off the fine in 12 months but he provided no evidence that would help the learned Member make that decision. Mr Armstrong wants to us to rely on an affidavit of Benjamen Armstrong sworn 13 December 2013. There are two problems with this affidavit. Firstly, it was filed in a different matter well after the learned Member refused the application for reopening or renewal. Secondly, it does not assist Mr Armstrong because it simply says that he has capacity to pay the fine. [20] Any error that may have afflicted the decision of 10 May 2013 to order payment without hearing from Mr Armstrong has been corrected in the passage of time since that decision. These proceedings in themselves have provided a de facto extension of time to pay and even now, some 7 months after the date for payment (31 July 2013) there has been no payment of any amount. [21] Mr Armstrong has not been disadvantaged by any action the learned Member took, or any findings he made, in May 2013. [22] One final ground of appeal emerged at the hearing on 10 March 2014. Mr Armstrong says that his 12-month suspension is excessive, given the tribunal’s decision in Pinto v Plumbing Industry Council12. Mr Armstrong misunderstands the nature of a comparative decision. Mr Pinto wanted to review a fine of $6,000 OR a three month suspension. The learned Member reduced the penalty to $3,000 or, in default, a one month suspension. Mr Armstrong was reviewing a penalty of $6,000 AND a 12- month suspension. Like in Pinto, the learned Member made the penalties in the alternative. We can find no compelling reason to come to a different view. [23] Leave to appeal is refused. 12 [2012] QCAT 249. -- 5 of 5 --