Mannix v Queensland Building and Construction Commission
[2015] QCAT 26
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- Unreported Judgment
- Mannix v Queensland Building and Construction Commission[2015] QCAT 26
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Mannix v Queensland Building and Construction Commission[2015] QCAT 26
Mannix v Queensland Building and Construction Commission[2015] QCAT 26
CITATION: | Mannix v Queensland Building and Construction Commission [2015] QCAT 26 |
PARTIES: | Steven Mannix Mrs Rebecca Mannix (Applicants) |
| v |
| Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR377-11 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 20 January 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
DELIVERED ON: | 29 January 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent’s decision made on 10 November 2011 that Mr Jamie Robert Hallinan has not engaged in unsatisfactory or professional misconduct is confirmed. |
CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – professional misconduct – building certifier – where complaint made by home owners – whether certifier engaged in unsatisfactory or professional misconduct – where findings made and matter to be reconsidered with the hearing of additional evidence Building Act 1975 (Qld) s 205 Building Regulation 2006 (Qld) s 21, s 30, s 31, s 32, s 49 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 24 Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105 Mannix & Anor v Queensland Building Services Authority [2014] QCATA 208; cited Oliver v Pool Safety Council [2014] QCAT 276; cited Queensland Building Services Authority v Nelson [2007] QCCTB 71; cited |
APPEARANCES:
APPLICANTS: | Mr Steven Mannix |
RESPONDENT: | Queensland Building and Construction Commission represented by Ms Maire Guiney, in-house lawyer |
REASONS FOR DECISION
- [1]In about 2008 Mr and Mrs Mannix had a house built for their family at 13 Kew Court, Glenella, Queensland, by a builder, Chris Neale Constructions Pty Ltd.
- [2]On 14 July 2008, the builder engaged the services of Building Approvals & Consultancy Pty Ltd (‘BAC’) to carry out certification work for the building of the house.
- [3]Jamie Hallinan was the licensed certifier for BAC responsible for assessing whether the foundation stage for the house complied with the building development approval.
- [4]Mr Hallinan did not inspect any aspects of the foundation stage. Shane Spagnol, an employee of BAC, did inspect aspects of the foundation stage.
- [5]Mr Spagnol certified that the aspects of the foundation stage subject to the rectification of some minor deficiencies were compliant with the building development approval.
- [6]Mr Hallinan relied on Mr Spagnol’s inspection and the certificates completed by him for certain stages.
- [7]On 10 October 2008, Mr Hallinan certified that the foundation stage of the works complied with the building development approval subject to rectification of some deficiencies outlined by Mr Spagnol in the inspection sheet.
- [8]Mr and Mrs Mannix lodged a complaint with the Building Services Authority (‘BSA’) that is now the Queensland Building and Construction Commission (‘QBCC’)[1] about the conduct of Mr Hallinan and certification of the foundation stage.
- [9]On 10 November 2011, the BSA determined that Mr Hallinan had not engaged in unsatisfactory or professional misconduct. Mr and Mrs Mannix reviewed the decision before the Queensland Civil and Administrative Tribunal.
- [10]On 2 April 2013, the Tribunal determined that the correct and preferable decision was to confirm the decision made by the BSA.[2]
- [11]Mr and Mrs Mannix filed an application to appeal the reasons for decision of the learned Member.
- [12]On 31 July 2013 the Appeal Tribunal considered 4 grounds of appeal and determined that the learned Member erred in respect of the first ground of appeal in concluding that no physical inspection by a building certifier was required by the Regulation.[3]
- [13]The Appeal Tribunal refused the other grounds of appeal (grounds 2- 4) and made final orders: the decision of the Tribunal made on 2 April 2013 is set aside and the application for review of the decision made by the BSA is to be returned to the Tribunal for reconsideration according to law and the findings disclosed in the reasons. The Appeal Tribunal said the following in relation to the orders made:
[77] We have determined that the learned Member erred in concluding that no physical inspection by a building certifier was required by the Regulation. The appellants say the consequence of that conclusion is the tribunal erred in finding that Mr Hallinan did not engage in unsatisfactory conduct or professional misconduct. The error in relation to the regulation is but one factor to consider in this respect. Whilst this issue is ultimately a matter for the tribunal in its reconsideration, we note that Mr Hallinan made the decision not to inspect the foundation in circumstances where the relevant Department, through its guidelines and Newsflash, had, at the very least, created some confusion as to the requirements of physical inspection prior to the issuing of the certificate. No evidence has been called about this issue. Additional evidence is likely to be required.
[78] On that basis, the matter should be remitted to the learned Member, to be reconsidered in accordance with this decision. The parties should be given the opportunity to submit evidence and make submissions on this issue.
[79] On grounds 2 – 4, leave to appeal is refused. The appeal is allowed in respect of the ground which dealt with the interpretation of the legislation and regulations relevant to the inspection of the foundation stage, the decision set aside, and the matter referred back to the tribunal to consider whether, in view of the findings of this tribunal as to the interpretation of the Regulation, Mr Hallinan did engage in unsatisfactory or professional misconduct.
- [14]The reasons of the Appeal Tribunal make it clear that the only issue to be ‘reconsidered’ by the Tribunal is whether Mr Hallinan engaged in unsatisfactory conduct or professional misconduct by failing to personally inspect the foundation stage.
What did the Regulation in 2008 require Mr Hallinan to do?
- [15]The Appeal Tribunal made findings about the relevant Regulation in 2008 being the date that Mr Hallinan certified the foundation stage.
- [16]The Appeal Tribunal determined that in 2008 there was ‘conflict’ between the Regulation, the guidelines and information contained in a ‘Newsflash’ issued by the Department of Local Government, Planning, Sport and Recreation. The Appeal Tribunal said:
[53] At the relevant time there was conflict between the [Building Regulation 2006], the guidelines, and the Newsflash as to whether, for the foundation stage, the physical inspection was required to be conducted by a building certifier, prior to issuing the certificate of inspection.
[54] This confusion appears to have been addressed in subsequent amendments to the Building Regulations. In December 2011, section 31 of the Regulations was amended to provide that a certifier could for all stages except for the final stage accept an aspect inspection certificate for all aspects of the stage instead of inspecting the work.
- [17]The ‘conflict’ was found to have been created by what was required under the Building Regulation 2006 (Qld) that introduced changes to the former Standard Building Regulation 1993. The 2006 Regulation provided that a building certifier must sign a certificate of inspection for certain stages including the foundation stage.[4]
- [18]Prior to the changes to the Regulation in 2006, there were guidelines issued by the Department of Infrastructure and Planning in November 2003. The guidelines were not updated in 2006. This is important because the guidelines were inconsistent with the Regulations - the guidelines said that a building certifier could accept a certificate of inspection from ‘a competent person’. In this case Mr Hallinan determined that Mr Spagnol was a ‘competent person’ and could therefore inspect ‘aspects’ of the building work.[5]
- [19]Further confusion about what was required by a building certifier in 2008 was created by the ‘Newsflash’ that said ‘[a] certifier may rely on the certificates about the aspects from competent persons…’.[6]
- [20]The Appeal Tribunal made findings that Mr Hallinan could not (in 2008) accept and rely on the inspection certificate issued by Mr Spagnol for the foundation stage.[7] The Appeal Tribunal said:
[69] Unlike under the Standard Building Regulation 1993 (Qld), Mr Hallinan could not, at the relevant time, accept and rely on the inspection certificate issued by Mr Spagnol for the foundation stage. Under section 31 of the Regulation as at October 2008, Mr Hallinan was required to personally carry out an inspection of the foundation stage in order to be satisfied that the relevant aspects had been completed and were compliant with the development approval.
[70] The applicants have demonstrated that the Member erred in law: a building certifier at the time Mr Hallinan signed the certificate for the foundation stage must have been satisfied all relevant aspects of the foundation stage had been completed and complied with the development approval; and, in order to meet the requisite satisfaction for that type of stage, a building certifier could not accept and rely on an inspection certificate for aspects of that stage by a competent person (inspections) – unless, of course, that person was a building certifier.
[71] The Members interpretation of the Regulation was incorrect.
- [21]The Appeal Tribunal made findings that Mr Hallinan was required to ‘personally carry out an inspection of the foundation stage’[8] because that is what the Regulation in 2008 required. The Appeal Tribunal in making its findings also referred to the ‘confusion’ about the requirements of physical inspection prior to issuing the certificate and said that additional evidence is ‘likely to be required’.[9] The applicants and the respondent have filed further material in this matter.[10]
What is the new evidence before the Tribunal?
- [22]Mr Mannix relies on a statement identified as ‘submissions’ prepared by the applicants; and the evidence of Russell Perkins who is a professional engineer.
- [23]The respondent relies on the evidence of Mr Hallinan who was required for cross-examination at the hearing. The respondent also relies on the evidence of Stacy Kennedy who is a qualified and licensed architect, builder, private certifier and fire safety professional.
- [24]There is ‘other evidence’[11] included in the applicants’ index of documents that Mr Mannix referred me to at the hearing. I gave Mr Mannix an opportunity to make submissions about why the ‘other evidence’ was relevant. After listening to Mr Mannix’s submissions, I explained that he has raised issues that have already been determined by the Tribunal (at first instance) and those findings (of the Tribunal) are preserved by the Appeal Tribunal in its reasons. I explained that the Appeal Tribunal addressed all of the grounds of appeal and found that it was ‘reasonably open to the [T]ribunal on the evidence’ to make the findings.[12]
- [25]The Appeal Tribunal found that even if there was an error in the Tribunal’s findings it was ‘not convinced’ that this would result in a different outcome to the ultimate finding made that Mr Hallinan had not engaged in unsatisfactory conduct or professional misconduct. The Appeal tribunal said:
[35] It should also be noted with respect to grounds 2, 3 and 4, that, even if we had found an error in the tribunal’s findings, we are not convinced that a different answer to those questions meant that the member’s exercise of discretion in finding Mr Hallinan had not engaged in unsatisfactory conduct or professional misconduct miscarried. No substantial injustice would, in those circumstances, be shown.
[36] For those reasons, leave to appeal on those grounds is refused.
[37] In deciding not to grant leave on those grounds, the ambit of the appeal is restricted to the following questions of law.
- [26]I explained to Mr Mannix at the hearing that his submissions about the ‘other evidence’ also raise new complaints or issues that were not raised by the applicants in the BSA complaint (at first instance); and/or seek to raise new issues about evidence that was given by a witness (not Mr Hallinan) in the hearing at first instance.
- [27]I also explained to Mr Mannix that it would not be fair to Mr Hallinan to ask him questions during cross-examination about issues that have already been considered by the Appeal Tribunal; and/or that raise new contentions that should be addressed in the proper way, that is, by way of a fresh complaint to the QBCC. The Tribunal’s power on review is to determine the correct and preferable decision as it relates to the contentions made by the applicants in the BSA complaint lodged on 29 August 2010. I must, in conducting a proceeding, ‘observe the rules of natural justice’[13] and this includes affording all parties including Mr Hallinan an opportunity to respond to the contentions made by the applicants.
- [28]Mr Mannix did not seek to tender the ‘other material’. He did, however, ask Mr Hallinan questions about his statements and he tendered documents including the certificate signed by Mr Hallinan and the documents signed by Mr Spagnol relevant to the issue of certification of the foundation stage.[14]
What is unsatisfactory conduct or professional misconduct?
- [29]A finding of unsatisfactory conduct or professional misconduct will have serious consequences for Mr Hallinan. Section 204 of the Building Act 1975 (Qld) gives the QBCC the power to investigate a complaint made and ‘decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct’.[15]
- [30]Upon a finding being made that the building certifier has engaged in ‘unsatisfactory conduct’, the QBCC must then decide to ‘do 1 or more’ of the following as set out under s 204(4), including, amongst others (for example) – to reprimand the building certifier or to impose appropriate conditions on the building certifier’s licence.[16]
- [31]If the QBCC decides that the building certifier has engaged in ‘professional misconduct’, then s 204(6) requires the QBCC to ‘apply to the [T]ribunal to start a disciplinary proceeding against the building certifier’.[17]
- [32]The Building Act defines ‘unsatisfactory conduct’ and ‘professional misconduct’.[18] One of the distinguishing features between the two definitions is that a finding of ‘professional misconduct’ requires conduct that ‘compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme.[19]
- [33]Disciplinary proceedings are not ‘punitive’ in nature. That means the imposition of a ‘penalty’ in circumstances where a building certifier has engaged in unsatisfactory conduct or professional misconduct is not intended to ‘punish’ but rather to ‘protect the public and members of the building profession’.[20]
- [34]In an earlier decision of this Tribunal, Oliver v Pool Safety Council,[21] disciplinary proceedings were commenced in circumstances where there had been a failure by a pool safety inspector to ‘adhere to a proper expected standard of behaviour’.[22] In Oliver’s case, the pool safety inspector issued a certificate approving a ‘barrier’ that did not conform with the regulatory provisions. Member Paratz considered whether the pool safety inspector had ‘acted below a proper standard of behaviour’.[23] The Member said:
[23] 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.
[24] 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.
[25] Disciplinary proceedings are not however a forum for the basic adjudication of the interpretation of industry regulatory provisions.
[26] The issue in this Application is not whether Mr Oliver got the interpretation of the relevant regulatory provisions wrong, but whether he acted below a proper standard of behaviour.
- [35]In this case Mr Hallinan has certified the foundation stage for the building work in circumstances where he says he acted in accordance with ‘industry practice [in] 2008’. The issue to be determined by me is not whether Mr Hallinan failed to properly apply the regulation and guidelines but whether in certifying the work (for the foundation stage), he has ‘acted below a proper standard of behaviour’.[24]
What is the evidence relevant to Mr Hallinan’s conduct?
- [36]The Regulation in 2008 did require the building certifier as the ‘inspecting person’ for the purposes of s 31(2) to ‘inspect the work to ensure the person is satisfied all relevant aspects of the stage under the building development approval have been completed and comply with the approval’.[25] Section 31(3) required the inspection to be carried out under ‘best industry practice’.
- [37]Mr Hallinan admits in his statement that he did not personally inspect the foundation stage. Mr Hallinan said that at the time of certification of the foundation stage he ‘interpreted’ the legislation, guidelines and Newsflash ‘to mean’ that he could rely on a ‘competent person’ to inspect the foundation ‘aspect’.[26] Mr Hallinan said:
At the time of certifying the building I interpreted the relevant legislation, guidelines and official information issued by the Department to mean that I could rely on a competent person’s inspection of the foundation ‘aspect’ to provide my certification of the foundation ‘stage’ and that is what I did.[27]
- [38]Mr Hallinan also said that his ‘practice’ of relying on the certificate of a competent person (that was Mr Spagnol), was ‘consistent with industry practice’.[28] Mr Hallinan said:
I consider my practice of relying on the certificate of a competent person when issuing a Form 16 Inspection Certificate was consistent with industry practice in 2008.[29]
- [39]Mr Hallinan was questioned at the hearing about the ‘format’ of the form 16 inspection certificate signed by him[30] and the certificate of inspection dated 10 October 2008 signed by Mr Spagnol.[31] Mr Hallinan was also questioned about whether Mr Spagnol’s certificate was the ‘inspection certificate’ for the purposes of s 32 of the Regulation. Mr Hallinan did not agree. Mr Hallinan said that he signed the form 16 certificate for a ‘stage’ of building work and relied on the certificates of inspection signed by Mr Spagnol who had inspected ‘aspects’ of the work.[32] Mr Hallinan also said that Mr Spagnol had inspected ‘aspects’ of the work as a ‘competent person’ and s 31 of the Regulation only applies if the inspecting person inspects the stage. Mr Hallinan said that he relied on the certificates issued by Mr Spagnol for the ‘aspects’ and he ‘issued’ the certificate for the ‘stage’ stating ‘to comply with that part’.
- [40]Mr Hallinan’s said that he relied on the Newsflash that gave ‘advice’ about how the sections of the Regulation apply. Mr Hallinan agreed (when questioned) that the ‘Newsflash’ refers to the ‘Regulations’ if there is any ‘doubt’ (about the applicability of the legislation).
- [41]Mr Hallinan’s evidence that his practice (in 2008) of relying on the certificate of a ‘competent person’ was consistent with ‘industry practice’ is supported by the evidence of Stacy Kennedy.
- [42]Mr Kennedy is the current President of the Australian Institute of Building Surveyors, QLD/NT Chapter, and Chairperson of the State and Territory Committee.[33] It is Mr Kennedy’s evidence that by 2008 there was ‘conflict’ between the Regulation, the guidelines and the Newsflash as to whether a physical inspection was required for the foundation stage by the building certifier prior to issuing the certificate of inspection for the stage.[34]
- [43]Mr Kennedy said it is his ‘understanding’ that a person has complied with the Building Act 1975 if the person inspected and certified the work ‘as required under the Inspection Guidelines’.[35] Mr Kennedy said that the guidelines placed no restrictions on a certifier ‘accepting’ a certificate of inspection form a competent person.[36] Mr Kennedy said:
The Inspection Guidelines placed no restriction upon a certifier accepting a certificate of inspection from a competent person for all aspects of a footing/foundation stage inspection... The Inspection Guidelines provided- …
“Competent person to carry out inspection of a stage of building work A building certifier may discharge their statutory obligation to inspect the building work by accepting a certificate of inspection for the stage (except final state), from a competent person. Each stage of building work comprises of aspects. The inspection of building work must be of the aspects for each particular stage of the work.”
- [44]Mr Perkins considered the Appeal Tribunal reasons and Mr Kennedy’s report. Mr Perkins is a registered professional engineer and prepared a report about his interpretation of the Building Regulation 2006.[37] Mr Perkins said that the ‘appropriate’ interpretation of the Regulation is that described by the Appeal Tribunal. Mr Perkins said in his report:
Regardless of any real or perceived conflict which may have existed with other documents, the appropriate interpretation of the Building Regulations 2006 is that described by the appeal decision under [paragraph] 52…[38]
- [45]Mr Perkins also considered the consequences of Mr Hallinan’s conduct in failing to ‘comply’ with the requirements of the Regulation. Mr Perkins said the applicants’ house has been certified with ‘serious omissions and non-conformances’.[39] Mr Perkins said:
The building certifier (Hallinan) who signed the stage certificate did not undertake an inspection and nor did he ensure that the foundation stage was inspected by another building certifier. In my opinion Hallinan and BAC in carrying out their work on the Mannix property failed to comply with critical requirements of the Building Regulation which has led to the foundations of the Mannix house being certified with serious omissions and non-conformances.[40]
- [46]I accept Mr Perkins evidence about what was required under the Regulation in 2008 in relation to a building certifier personally inspecting the foundation stage prior to certification. I am not satisfied, however, that Mr Perkins has properly addressed the issue of ‘confusion’ in the industry in 2008 that was created by the Regulation, guidelines and Newsflash.
- [47]Mr Perkins refers to the Appeal Tribunal’s reasons and Mr Kennedy’s statement in his report and has given his ‘opinion of the relevant matters raised in the statement [of Mr Kennedy]’’.[41] Mr Perkins said that the new Building Regulation that commenced in 2006 ‘superseded’ some of the ‘guidance’ provided in the existing 2003 guidelines. Mr Perkins said:
While this statement may described the understanding of Stacey Kennedy it disregards the fact that a new Building Regulation commenced in 2006 which supersede some of the guidance provided in the [November] 2003 guidelines.[42]
- [48]Mr Perkins fails to identify what the ‘November 2003’ guidelines were and how they were ‘superseded’ by the Regulations that commenced in 2006. This is relevant to the issue of the ‘confusion’ in the industry in 2008 that was identified by the Appeal Tribunal and the issue of how the industry responded to the change in the Regulation. This is also relevant to the issue of standards, more importantly the standard expected of a building certifier in 2008.
- [49]I prefer the evidence of Mr Kennedy. I am satisfied that there was conflict in the industry and there were guidelines in place in 2008 that placed no restrictions on a certifier ‘accepting’ a certificate of inspection from a competent person. I also accept Mr Hallinan’s evidence that in certifying the foundation stage for the applicants’ house he was relying on ‘a competent person’s inspection’ of the foundation ‘aspect’ and this was considered by him to be ‘consistent with industry practice’ at the time.
What is the correct and preferable decision?
- [50]Mr Mannix says that I should make a finding for the purposes of Part 6 of the Regulation that there is no ‘certificate of inspection’. Mr Mannix says that Mr Hallinan’s certificate is in the ‘same format’ as Mr Spagnol’s certificate (of inspection) and therefore for the purposes of s 31 of the Regulation there was no one ‘acting as the inspecting person’. Mr Mannix also says that Mr Hallinan’s evidence about there being a difference between the certificate for ‘aspect’ and certificate for ‘stage’ for the building work is new evidence before me.
- [51]I do not agree with Mr Mannix’s submission that the issue about the ‘aspect’ certificate and ‘stage’ certificate is ‘new evidence’; and that the certificates are ‘one in the same’ because they are in the same format.
- [52]The Regulation defines ‘certificate of inspection’ under Schedule 4 as a certificate under s 32. The relevant section states:
Certificate of inspection means a certificate under section 32 that states a stage of assessable building work complies with the building development approval.[43]
- [53]There is a definition of ‘aspect’ under the Regulation that means a ‘component of stage’ of the work as follows:
Aspect, of building work, means a component of stage of the work.[44]
- [54]
- [55]It is Mr Hallinan’s evidence that he signed the form 16 for that ‘stage’ (foundation stage) of the building work as the certifier and relied on Mr Spagnol’s certificates for the ‘aspects’ of that stage being the foundation stage. There is no new evidence before me in relation to the ‘format’ of the certificate of inspection signed by Mr Hallinan and the certificate signed by Mr Spagnol.
- [56]I am satisfied that there was legislation in place in 2008 that required Mr Hallinan as the building certifier to personally ‘carry out an inspection of the foundation stage’ so that he could be satisfied that the relevant aspects had been completed and were therefore compliant with the development approval.[47]
- [57]I also accept that Mr Hallinan was relying on what he thought was ‘industry practice’ in 2008 in issuing the form 16 certificate for the foundation stage.
- [58]I have carefully considered the evidence of Mr Perkins and Mr Kennedy and made findings that I accept Mr Kennedy’s evidence that there was ‘confusion’ in 2008 about what was required by a building certifier in certifying the foundation stage. I also accept that in 2008 there were guidelines that ‘placed no restrictions’ upon a building certifier to rely on a certificate from a competent person.
- [59]I have carefully considered the applicants’ written submissions. The applicants have waited nearly 4.5 years since they made their complaint about Mr Hallinan to the BSA. The applicants say that Mr Hallinan has ‘lied to QCAT about the [cut and fill] levelling of the site’ that was never a part of the development approval.[48] The applicants also say in their written submissions that Mr Hallinan was ‘clearly aware of the discrepancy’ between the legislation and the guidelines and ‘tried to take advantage’. The applicants say that they would like Mr Hallinan to be ‘held accountable for his deliberate actions’.
- [60]There is no evidence before me that Mr Hallinan has been dishonest and that his conduct was ‘deliberate’ in that he was taking ‘advantage’ of the ‘confusion’ in the industry at the time.
- [61]I have also considered Mr Perkins’ evidence about the applicants’ house being certified with ‘serious omissions and non-conformances’. There is no evidence before me that Mr Hallinan’s conduct has resulted in the ‘foundations’ of the applicants’ house being left with ‘serious omissions and non-conformances’ as contended by Mr Perkins. The Appeal Tribunal has preserved the findings made by the Tribunal at first instance in relation to the building works that were completed by the builder and certified by Mr Hallinan.
- [62]I am not satisfied that Mr Hallinan’s conduct in 2008 in failing to personally inspect the foundation stage prior to certification is ‘below a proper standard of behaviour’ expected of a building certifier in 2008. I accept that Mr Hallinan was following what he thought was ‘industry practice’ at the time.
- [63]I am not satisfied that Mr Hallinan’s conduct in failing to inspect the work prior to certifying the foundation stage is unsatisfactory conduct or professional misconduct for the purposes of the Building Act 1975. The correct and preferable decision is to confirm the decision made by the respondent on 10 November 2011 that Mr Jamie Robert Hallinan has not engaged in unsatisfactory or professional misconduct.
Footnotes
[1] See s 5 of the Queensland Building Services Authority Amendment Act 2013 (Qld) which renamed the BSA the Queensland Building and Construction Commission.
[2] Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105.
[3] Mannix & Anor v Queensland Building Services Authority [2014] QCATA 208, [77].
[4] Appeal Tribunal reasons, [43]. See s 21(2) of the Building Regulation 2006 (Qld).
[5] Exhibit ‘4’, [4].
[6] See Appeal Tribunal reasons, [51].
[7] Ibid, [69].
[8] Ibid, [69].
[9] Ibid, [77].
[10] In accordance with directions made on 28 August 2014.
[11] See Index of documents filed by the applicants dated 2 December 2014, Attachments marked ‘AF-04’ to ‘AF-08’.
[12] Appeal Tribunal reasons, [30] to [34].
[13] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
[14] Exhibits ‘5’, ‘6’ and ‘7’.
[15] Building Act 1975 (Qld) s 204(1).
[16] Ibid, s 204(4).
[17] Ibid, s 204(6).
[18] Ibid, Schedule 2.
[19] Ibid.
[20] Queensland Building Services Authority v Nelson [2007] QCCTB 71, [48] and see New South Wales Bar Association v Ebbert (1968) 117 CLR 177.
[21] [2014] QCAT 276.
[22] Ibid, [23].
[23] Ibid, [26].
[24] Ibid, [26].
[25] Building Regulations 2006 (Qld) s 31(2). See s 30(2) that requires the ‘inspecting person’ to inspect the ‘stage’.
[26] Exhibit ‘4’, [9].
[27] Ibid.
[28] Ibid, [10].
[29] Ibid.
[30] Exhibit ‘5’.
[31] Exhibit ‘6’.
[32] Exhibits ‘6’ and ‘7’.
[33] Exhibit ‘3’.
[34] Ibid, [16].
[35] Ibid, [9].
[36] Ibid, [11].
[37] Exhibit ‘2’.
[38] Ibid, attachment ‘A’, p 1, line 13-15.
[39] Ibid, p 3.
[40] Ibid.
[41] Ibid, p 1, line 9.
[42] Ibid.
[43] Building Regulations 2006 (Qld), Schedule 4, s 3.
[44] Ibid.
[45] Exhibit ‘6’.
[46] Exhibit ‘5’.
[47] Building Regulations 2006 (Qld) s 31. See Appeal Tribunal reasons, [69].
[48] Applicants’ written submissions filed 20 January 2015.