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  • Unreported Judgment

Priddle v Queensland Building and Construction Commission

 

[2016] QCAT 280

CITATION:

Priddle v Queensland Building and Construction Commission [2016] QCAT 280

PARTIES:

Jenni Priddle

(Applicant)

 

v

 

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR149-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

21 July 2016

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

28 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Queensland Building Construction Commission dated 11 November 2015 that grounds for disciplinary action against Jenni Priddle had been established, and to impose a penalty, is set aside.
  2. The Tribunal substitutes its own decision that a ground for disciplinary action against Jenni Priddle is not established.

CATCHWORDS:

OCCUPATIONAL REGULATION - DISCIPLINARY PROCEEDINGS – ADMINISTRATIVE REVIEW – whether issuing pool safety certificate was ‘ground for disciplinary action’ – whether inspector’s interpretations of regulatory requirements were reasonable and can be validly argued – where Queensland Building and Construction Commission inspection found climbable access points – where nothing to suggest that inspector did not properly measure or view wires or did not act with due care when conducting inspection – where Commission did not identify wires as concern in original decision or amended original decision, suggesting whether wires were issue of non-compliance was open to differing views – where adopting different view does not meet threshold to establish ‘ground for disciplinary action’ – where it is not Tribunal’s role in disciplinary proceedings to determine applicability of relevant regulatory requirements to pool or its ostensible barrier – where evidence showed that application of requirements is open to differing interpretations - where Commission and complainant inspector did not previously identify rail ends as concern – where interpreting regulatory requirements can be highly technical exercise whereby even experienced industry participants may differ – where inspector performed evidence-based and rational assessment – where inspector considered relevant and appropriate standards – where inspector could have been ‘reasonably satisfied’ that pool was ‘complying pool’ – where performance of functions as Pool Safety Inspector was not a ‘ground for disciplinary action’

Building Act 1975 (Qld), s 246AW, Schedule 2

Queensland Building and Construction Commission Act 1991 (Qld), s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28, s 100, s 102

Drew v Queensland Building and Construction Commission [2015] QCAT 11

O’Brien v Gladstone Regional Council [2015] QCATA 82

Oliver v Pool Safety Council [2014] QCAT 276

Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Urguhart v Partington [2013] QCAT 133

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Clinton Priddle appeared for Mrs Jenni Priddle

RESPONDENT:

Mr Simon Formby, in-house lawyer instructed by Ms Jessie Jagger, solicitor appeared for the Queensland Building and Construction Commission

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Five people conducted no fewer than four separate pool safety inspections of a property. They made differing, but sometimes overlapping, findings.
  2. [2]
    Mrs Jenny Priddle is a licensed Pool Safety Inspector who conducted the second inspection and ultimately issued a pool safety certificate.
  3. [3]
    Following a complaint by Mr Steven Horton, a licensed Pool Safety Inspector who conducted the first inspection, and a third inspection – this time by the local council - the Queensland Building and Construction Commission investigated and decided that Mrs Priddle could not have been reasonably satisfied that the pool was a complying pool and fined her $100.00.[1]
  4. [4]
    Mrs Priddle applied to the Tribunal to review the Commission’s decision. The Commission then conducted its own – fourth - inspection, withdrew its earlier decision and again decided that Mrs Priddle could not have been reasonably satisfied that the pool was a complying pool and fined her $100.00.[2] However, the Commission based this decision on issues that differed from its first decision.
  5. [5]
    The Tribunal earlier directed that this new decision by the Commission is substituted as the decision under review in these proceedings.[3]

Preliminary matter

  1. [6]
    Mrs Priddle requested that the Commission review its procedures to ensure that natural justice is provided in future investigations. The Tribunal does not have jurisdiction to make an order in these terms.
  2. [7]
    Moreover, Mrs Priddle does not need to prove the Commission did not provide her with natural justice or prove any other error by the Commission in its decision – the Commission’s decision is not presumed correct.[4]
  3. [8]
    The Tribunal is, of course, required to observe natural justice in these review proceedings.[5]

What does the Tribunal do?

  1. [9]
    The Tribunal’s role in a review application is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[6] The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or return the matter for reconsideration by the Commission.[7]

How can Mrs Priddle’s issuing of a Pool Safety Certificate on 3 February 2015 be a ‘ground for disciplinary action’?

  1. [10]
    The Commission submitted that there is a ‘ground for disciplinary action’ because Mrs Priddle contravened the Code of Conduct. More specifically, the Commission submitted that her conduct showed a lack of adequate skill or judgement, “potentially” compromised the health and safety of a person, disregarded a relevant and appropriate matter and was of a lesser standard than might reasonably be expected by her professional peers.[8]
  2. [11]
    The Code of Conduct relevantly provides that an inspector must comply with legislative requirements that regulate or govern inspectors in the performance of pool safety inspection functions.[9]
  3. [12]
    The relevant function here was Mrs Priddle issuing a pool safety certificate. The legislative requirements are that Mrs Priddle may only give a pool safety certificate if she inspected the pool and is ‘reasonably satisfied’ that the pool is a complying pool.[10]
  4. [13]
    The crux of the Commission’s case was that because four other persons identified issues with the pool, Mrs Priddle could not have been ‘reasonably satisfied’ that the pool was a ‘complying pool’ when she conducted her inspection.
  5. [14]
    However, I am not satisfied that an inspector who simply forms a different view from another inspector about whether a pool is a complying pool breaches the Code of Conduct:

A pool inspector who makes a decision about the compliance of a barrier that another inspector or authority disagrees with, as an incorrect interpretation of the legislative requirements, will not breach the Code of Conduct simply because the inspector is regarded as not having properly applied the legislative requirements. An incorrect decision is not in itself a breach of the Code of Conduct.

The Code of Conduct is concerned with Pool Inspectors being also aware of the potential impact of other legislation other than the Act, and having regard to that other legislation where appropriate, as well. That intent is clearly shown by the examples cited in s 3 of the Code of Conduct.[11]

  1. [15]
    A ‘ground for disciplinary action’ includes conduct that shows incompetence, lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing pool safety functions, compromises the health or safety of a person, and conduct that is of a lesser standard than might reasonably be expected of the pool safety inspector by the public or professional peers.[12]
  2. [16]
    The Commission submitted that Mrs Priddle showed a lack of skill and judgement by making clear errors of interpretation and disregarding matters that were or should have been patently obvious. The issue for me to determine is not whether Mrs Priddle’s interpretations are correct, but whether they are reasonable and can be validly argued.[13]

Did Mrs Priddle act reasonably in arriving at her conclusions?

  1. [17]
    Following an inspection some eight months after Mrs Priddle’s inspection, the Commission found that Mrs Priddle should have identified these issues at the time of her inspection: wires along a balustrade near the gate, a timber rail along the balustrade near the gate and a timber rail near the retaining wall, and a space between the shielding on the outside of the pool barrier exposing timber rail ends. The Commission’s concern was that these provide climbable access points for children.
  2. [18]
    In essence, the Commission’s case was that by not identifying these issues, Mrs Priddle could not have been ‘reasonably satisfied’ that the pool was a complying pool.

Is it reasonable for Mrs Priddle to not identify the wires as a reason not to issue a pool safety certificate?

  1. [19]
    Mr Phillip Denman, Manager of Plumbing and Pools with the Commission and Ms Susan Crozier, a Senior Pools Investigator with the Commission inspected the pool on 18 September 2015. Mr Denman said that in his opinion, the wires were climbable. Ms Crozier considered that the diameter of the wires, twisted fabrication and spacing would provide an easily climbable surface.[14] Ms Crozier estimated the wires at 3.5mm thick and the space between the wires and shield behind them at 8mm, although she conceded during the hearing that she did not measure the wires and spacing but instead used her experience and deduction.
  2. [20]
    Conversely, Mrs Priddle considered that the wires were not climbable because they measured only 2.77mm thick and projected no more than 3mm from the shielding.[15] Mrs Priddle disagreed that the wires could be used for climbing because in her view, it would be difficult for a child to acquire a toe-hold as the wires were thin and sat tightly against the plastic shielding.
  3. [21]
    The Commission submitted that the Tribunal should prefer Ms Crozier’s evidence of thickness and that Mrs Priddle’s interpretation does not accord with the aim and spirit of the standards to ensure that young children cannot access pools.
  4. [22]
    However, disciplinary proceedings are not a forum to adjudicate on the interpretation of the relevant regulatory provisions and standards.[16] The issue in these proceedings is not whether Mrs Priddle’s finding is incorrect, but whether she acted below a proper standard of behaviour.[17]
  5. [23]
    Based on her measurements and interpretation of the standards, Mrs Priddle did not believe the wires breached the standard. Whether her belief was correct does not mean she was incompetent, lacking in judgement or that she compromised the safety of a person. Nothing suggests that Mrs Priddle did not properly measure or view the wires or give due consideration to the wires during her inspection.
  6. [24]
    The Commission did not identify the wires as a concern in its original decision[18] or amended original decision.[19] This suggests that whether the wires were an issue of non-compliance was open to differing views. Adopting a different view does not meet the requisite threshold to establish a ‘ground for disciplinary action’.
  7. [25]
    If the Commission is of the view that Mrs Priddle’s interpretation did not accord with the policy intent of the standards or regulatory requirements, then the solution is to clarify them by amendment.[20]

Is it reasonable for Mrs Priddle to not identify the timber rails along the balustrade and near the retaining wall as a reason not to issue a pool safety certificate?

  1. [26]
    The Commission submitted that the Tribunal may find that the top timber rail on its own is not permissible in accordance with the Queensland Development Code. Specifically, the Commission submitted that the timber rail was an object that reduced the height of the timber fence at the point of intersection with the metal fence.
  2. [27]
    The Commission also submitted that the presence of the wires and slats with the timber rails reduced the effective height of the pool to less than 1200mm so that it was non-compliant.
  3. [28]
    It is not the Tribunal’s role in disciplinary proceedings to determine the applicability of the relevant regulatory requirements to the pool or its ostensible barrier. Moreover, the evidence showed that the application of the requirements is open to differing interpretations.
  4. [29]
    During the hearing, Mr Denman from the Commission said that he had applied a “common sense test” and referred to a “broad scope” rather than specific regulatory requirements, based on the policy intent to prevent access by a child. However, he also accepted that the timber rail near the gate may be permissible within the ‘additional clear area’ and noted that the Commission has relaxed its application of the requirement to intersecting fences.[21]
  5. [30]
    Mr Duncan Haynes, Development Compliance Officer with the Moreton Bay Regional Council and Ms Crosier from the Commission said that the timber fence was less than the required 1200mm in height. However, both Mr Haynes and Ms Crosier measured the height from the deck to the top, while Mrs Priddle measured from the ground to the top. Mr Haynes conceded that if measured from the ground, the height would comply.
  6. [31]
    The Commission appeared to suggest that despite Mrs Priddle’s interpretation, it is still open for the Tribunal to make findings of non-compliance based on other interpretations. That might be so. However, even if it is open to interpret the requirements and make findings as suggested by the Commission, it is not sufficient to establish a disciplinary ground against Mrs Priddle on the basis that her behaviour falls below the expected standard:

Issues will regularly arise as to the proper interpretation of the regulatory provisions. Disciplinary proceedings are justified where a properly founded allegation arises that a practitioner has failed to adhere to a proper expected standard of behaviour. That standard may be found in specific legislation or by application of established principles in common law.

In considering whether a proper standard of behaviour has been achieved, it will probably be necessary to look at the various regulatory provisions and consider whether due regard has been had to them.[22]

  1. [32]
    The Commission submitted that an inspector acting reasonably would have adopted a purposive interpretation to measure height from the deck to the top. However, Mr Haynes accepted during his evidence that there can be several interpretations whether an item is climbable or non-climbable and another reasonable interpretation of the requirement was to measure from the ground.
  2. [33]
    Mrs Priddle had tried to find the best matching diagram to the pool. Mr Denman and Ms Crosier themselves differed on which diagram was most applicable.
  3. [34]
    Within this context, I do not accept Mrs Priddle’s interpretation as unreasonable. Her behaviour in adopting that interpretation therefore could not have fallen below the requisite standard.

Is it reasonable for Mrs Priddle to not identify the timber rail ends as a reason not to issue a pool safety certificate?

  1. [35]
    The Commission submitted that the rail ends protrude more than 10mm from the post in breach of the relevant standard and provide a climbable ladder.
  2. [36]
    On Mrs Priddle’s interpretation of the regulatory requirements including the Queensland Development Code, the rail ends were outside the ‘non-climbable zone’. On Ms Crosier’s interpretation, both the ‘non-climbable zone’ and ‘additional clear area’ are considered together when determining whether an item is climbable. Mr Haynes considered that the rail ends were within the ‘non-climbable zone’ but would have complied if within the ‘additional clear area’.
  3. [37]
    This again shows differing interpretations of the regulatory requirements. Even Ms Crosier and Mr Haynes had differing views. If the Commission is of the view that Mrs Priddle’s interpretation is too permissive or relaxed, then the solution is to clarify by amendment.
  4. [38]
    The Commission did not identify the rail ends as a concern in its original decision[23] or amended original decision.[24] Similarly, Mr Horton, the first Pool Safety Inspector who complained to the Commission about Ms Priddle, did not identify the rail ends when issuing his Pool safety nonconformity notice.
  5. [39]
    Interpreting the regulatory requirements can be a highly technical exercise whereby even experienced participants in the industry may differ,[25] as has occurred here. It does not mean that the view adopted by Mrs Priddle - or Mr Horton - is a ‘ground for disciplinary action’, provided it has a reasonable basis. Mrs Priddle did not approve a barrier that was ‘patently absurd’[26] or ‘could not be defended on any common-sense interpretation of the regulatory provisions’:[27] she cited relevant materials and provided a rational analysis to support her finding - correct or not.
  6. [40]
    Again, if the Commission is of the view that Mrs Priddle’s interpretation did not accord with the policy intent of the standards or regulatory requirements, then the solution is to clarify them by amendment.[28]

Could Mrs Priddle have been ‘reasonably satisfied’ that the pool was a ‘complying pool’?

  1. [41]
    The Commission submitted that the test for whether Mrs Priddle acted reasonably is objective and must therefore satisfy the peer test. However, her peers’ assessments themselves at times diverged in their reasoning.
  2. [42]
    Mrs Priddle had performed around 200 other inspections at the time of her inspection. Mrs Priddle physically inspected the pool area, measured the wires, looked for climbable objects, measured height according to her interpretation of the regulatory requirements, used a check list to take notes and applied her thoughts and processes to the regulatory requirements. She performed her functions reasonably.
  3. [43]
    Issuing a Pool Safety Certificate in these circumstances is not a ‘ground for disciplinary action’ - regardless of whether Mrs Priddle’s assessment was ultimately “correct” or accorded with the conclusion of non-compliance in other assessments. The Commission submitted that this rewards “diligent incompetence”. However, disagreeing or adopting a different view from other inspectors is not necessarily incompetence:

A certifier who acts properly and responsibly may make a decision which another expert would disagree with, without falling below the standard of conduct required.[29]

  1. [44]
    Because Mrs Priddle performed an evidence-based and rational assessment within her demonstrated understanding of the regulatory framework, I consider that she could have been ‘reasonably satisfied’ that the pool was a ‘complying pool’. She considered relevant and appropriate standards. Assessing a pool for compliance is not a ‘clear cut’ process, as is evidenced by the differing assessments made over many months by different inspectors with considerable industry experience.
  2. [45]
    Mrs Priddle’s performance of her functions as a Pool Safety Inspector is not a ‘ground for disciplinary action’.

Should the Commission pay Mrs Priddle’s costs?

  1. [46]
    Although Mrs Priddle sought an award of costs against the Commission, she did not quantify the costs she was seeking. She was not legally represented and therefore it would appear that the only costs she could recover would be her filing fee of $305.00.
  2. [47]
    Regardless, costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs,[30] unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[31] There is therefore a strong indicator against awarding costs.[32]
  3. [48]
    In deciding this, I may regard prescribe circumstances. Importantly, they are not mandatory and some of these may be more apposite in a particular case:

… although the applicant relies on s 102 and the matters to be taken into account in that section, which are always helpful general principles to apply with respect to costs any award of costs is discretionary.[33]

  1. [49]
    Although Mrs Priddle has succeeded in her application to review the Commission’s decision, it was not unreasonable for the Commission to bring disciplinary proceedings given that it is charged with maintaining proper standards in the industry.[34] Nothing in the Commission’s conduct or in the nature of the proceedings displaces the usual ‘no costs’ position.
  2. [50]
    I do not consider that the interests of justice require the Commission to pay Mrs Priddle’s costs.

What is the ‘correct and preferable’ decision?

  1. [51]
    Because Mrs Priddle could be ‘reasonably satisfied’ that the pool was a complying pool, the ‘correct and preferable’ decision is:
    1. The decision of the Queensland Building and Construction Commission dated 11 November 2015 that grounds for disciplinary action against Jenni Priddle had been established, and to impose a penalty, is set aside.
    2. The Tribunal substitutes its own decision that a ground for disciplinary action against Jenni Priddle is not established.

Footnotes

[1] Decision of Phillip Denman, Manager Plumbing and Pools, Queensland Building and Construction Commission dated 24 July 2015.

[2] Decision of Phillip Denman, Manager Plumbing and Pools, Queensland Building and Construction Commission dated 11 November 2015.

[3] Directions dated 29 October 2015.

[4] O’Brien v Gladstone Regional Council [2015] QCATA 82 at [18].

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a).

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.

[8] Building Act 1975 (Qld), Schedule 2 definition of ‘ground for disciplinary action’.

[9] Code of Conduct for Pool Safety Inspectors, s 3.

[10] Building Act 1975 (Qld) s 246AW(1).

[11] Oliver v Pool Safety Council [2014] QCAT 276 at [37] – [38].

[12] Building Act 1975, Schedule 2 definition of ‘ground for disciplinary action’.

[13] Oliver v Pool Safety Council [2014] QCAT 276 at [58].

[14] Affidavit of Susan Crozier sworn 29 April 2016 at [17].

[15] Declaration of Jenni Priddle dated 13 July 2016 at [6] and [9].

[16] Oliver v Pool Safety Council [2014] QCAT 276 at [25].

[17] Oliver v Pool Safety Council [2014] QCAT 276 at [26].

[18] Information Notice dated 8 July 2015.

[19] Amended Information Notice dated 24 July 2015.

[20] Oliver v Pool Safety Council [2014] QCAT 276 at [73].

[21] Affidavit of Phillip Denman sworn 29 April 2016 at [28].

[22] Oliver v Pool Safety Council [2014] QCAT 276 at [23] to [24].

[23] Information Notice dated 8 July 2015.

[24] Amended Information Notice dated 24 July 2015.

[25] Oliver v Pool Safety Council [2014] QCAT 276 at [68] to [70].

[26] Oliver v Pool Safety Council [2014] QCAT 276 at [72].

[27] Oliver v Pool Safety Council [2014] QCAT 276 at [72].

[28] Oliver v Pool Safety Council [2014] QCAT 276 at [73].

[29] Drew v Queensland Building and Construction Commission [2015] QCAT 11 at [85].

[30] Queensland Civil and Administrative Tribunal Act 2009 (Qld, s 100.

[31] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102.

[32] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].

[33] Urguhart v Partington [2013] QCAT 133 at [106].

[34] Queensland Building and Construction Commission Act 1991 (Qld) s 3.

Close

Editorial Notes

  • Published Case Name:

    Priddle v Queensland Building and Construction Commission

  • Shortened Case Name:

    Priddle v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 280

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    28 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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