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Fernandez v Queensland Building and Construction Commission[2017] QCAT 129

Fernandez v Queensland Building and Construction Commission[2017] QCAT 129

CITATION:

Fernandez v Queensland Building and Construction Commission [2017] QCAT 129

PARTIES:

Joseph Jude Fernandez

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR099-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

24 January 2017

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Queensland Building and Construction Commission is confirmed.
  2. The applications for costs and compensation are dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – CERTIFIERS – Administrative review of decision not to take disciplinary action – where complaint made by owner-builder about conduct of certifier – where no formal engagement of certifier by owner-builder – where certifier requested to inspect by builder’s subcontractor on several occasions – where regulator decided that certifier did not engage in unsatisfactory professional conduct or professional misconduct – whether breach of legislation or Code of Conduct by certifier – whether certifier has engaged in unsatisfactory conduct or professional misconduct

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Costs – where unmeritorious review –  where decision-maker in all reviews seeks to appear through legal representatives – where success on review would not overcome the owner-builder’s building problems – whether in the interests of justice to make a costs order – nature of administrative review of government decisions – where owner-builder self-represented

Building Act 1975 (Qld), s 10, s 136, s 137, s 138, s 143, s 190, s 204

Building Regulation 2006 (Qld), s 21, s 27, s 28, s 30, s 31(2)

Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86C

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 20, s 24(1), s 48, s 100, s 102(3)

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

APPEARANCES:

 

APPLICANT:

Mr Joseph Jude Fernandez appeared on his own behalf

RESPONDENT:

Mr E Tan, in-house lawyer, Queensland Building and Construction Commission appeared for the Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    Mr Jude Fernandez is the owner-builder of a dwelling house on Macleay Island. He complained to the Queensland Building and Construction Commission (QBCC) about a certifier, a Mr Holley.
  2. [2]
    The QBCC investigated the complaint but decided not to take disciplinary action, because it decided that Mr Holley’s conduct was not unsatisfactory conduct or professional misconduct. Mr Fernandez requested internal review of the QBCC’s decision. That internal review resulted in deemed confirmation of the original decision.[1]
  3. [3]
    Mr Fernandez has applied to the Queensland Civil and Administrative Tribunal (QCAT) for external review of the QBCC’s decision. QBCC seeks costs in the sum of $800 in the event that Mr Fernandez’ review application is unsuccessful. Mr Fernandez seeks ‘compensation’[2] and costs from QBCC.
  4. [4]
    In the course of the review, Mr Fernandez alleges inappropriate behaviour of a QBCC representative and delay by the QBCC.  Essentially, on review, the Tribunal stands in the shoes of the decision-maker and (re-)makes the decision anew or afresh.  Therefore, these allegations about QBCC itself are not relevant to the exercise of the Tribunal’s functions on the review. They are not discussed further, except in relation to the applications about costs/compensation.
  5. [5]
    For the reasons explained in the following paragraphs, the decision of the QBCC is confirmed. The applications for costs and compensation are dismissed. 

The legislative framework for the review

  1. [6]
    Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the purpose of the Tribunal’s review is to produce the correct and preferable decision, following a fresh hearing on the merits.[3] The Tribunal considers the matter afresh, making its own decision, based on the evidence before it and according to law.
  2. [7]
    As discussed, in its review jurisdiction, the Tribunal effectively stands in the shoes of the decision-maker for the decision reviewed and makes its own decision. On the review, the tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[4]
  3. [8]
    The Building Act 1975 (Qld) (Building Act) provides that a person may make a complaint against a certifier to the QBCC, if the person believes the certifier has engaged in unsatisfactory conduct or professional misconduct.[5]  The QBCC, after investigating the complaint, must decide whether or not the certifier has engaged in such conduct.[6] (If satisfied of unsatisfactory conduct, the QBCC may discipline the certifier as provided.[7] If QBCC decides that the certifier has engaged in professional misconduct, it must start disciplinary proceedings in QCAT against the certifier.)
  4. [9]
    On review, the Tribunal must decide whether or not the certifier has engaged in unsatisfactory conduct or professional misconduct conduct.

The relevant events

  1. [10]
    The evidence before the Tribunal about the events complained of by Mr Fernandez is provided by him. Mr Holley is not a party to the proceeding and has not responded to the various complaints made. I do not have statements from the various other persons referred to by Mr Fernandez, although I have copies of some emails he refers to.
  2. [11]
    Except where specifically indicated otherwise in these reasons, I generally accept that the events occurred as Mr Fernandez says.
  3. [12]
    Mr Fernandez obtained building development approval (DA) from the Redland City Council (RCC) to build a class 1a dwelling at Macleay Island.  The DA required, among other things, that the builder obtain and provide to the RCC, a cadastral survey for set out of the dwelling.[8]
  4. [13]
    During the preparation of the footings, a Mr Allen, a concreter engaged by Mr Fernandez, suggested that Mr Holley, a certifier, be asked to inspect the footings. Mr Fernandez accepted the suggestion. The concreter contacted Mr Holley and requested inspection.
  5. [14]
    Mr Holley inspected on 14 February 2015. The floor slab formwork was in place and the footings and slab thickening trenches were dug at the time of the inspection. On this occasion, Mr Holley clarified some issues about starter bar placement in the footings. Mr Fernandez says he showed Mr Holley the DA and other relevant documents as well as the engineer’s (a Mr Trewarn) certificates for the footings and slab. Mr Holley said he would contact Mr Trewarn about some details that he considered were unclear on the drawings, but ‘approved’ the work to that point. Mr Fernandez says that Mr Holley asked for photos of the next stage to be emailed to him.
  6. [15]
    Mr Holley next inspected the site on 3 March 2015, once again on the concreter’s request. At this time, the footings and trenches were filled with concrete and bedding sand. Vizqueen and reinforced steel (reo) were in place for the first of three slab pours. Mr Holley is reported to have said, after inspection, that bar chairs needed to be placed under the reo, but otherwise that it looked to be in order.
  7. [16]
    Mr Holley was subsequently requested by the concreter to inspect again. On 17 March 2015, Mr Holley arrived on the Island. Mr Fernandez told him at the ferry terminal that all of the slab pours had been completed. Mr Holley told him that he had wanted to see the reo placement before the pour. Mr Holley is reported by Mr Fernandez’ to then have said he did not need to see the site. According to Mr Fernandez, Mr Holley did not say he ‘disapproved’ of the work. He says that he once again asked Mr Holley to send him invoices and certificates and that Mr Holley agreed to do so. He says they also discussed that Mr Holley was qualified to perform frame inspections.
  8. [17]
    Mr Fernandez says he emailed photographs of the reo details and site progress to Mr Holley and requested invoices for the site visits. He says he had no reply to his emails dated 16 February 2015, 10 March 2015, 17 March 2015, and 20 March 2015.  The email of 16 February, says, in part, ‘I could not find any certificates or correspondence from the surveyor apart from the survey itself’.[9] The emails respectively attach copies of specifications; photographs of the site before the second stage slab pour (recorded by Mr Fernandez as sent at 7.34pm on the day before the pour of the second stage); photographs of what is described as the final stages of the house slab build; and photographs and images of the ‘bottom step of the house slab’ and locations of the ground floor steel posts (which he says in his email that he is contemplating moving).[10]
  9. [18]
    On 15 June 2015, Mr Fernandez telephoned the RCC ‘to check if I was complying with my end of the building approval.’ At that point, he learned that he should have had the RCC perform the inspections, although RCC accepted that Mr Holley was qualified to do them. Mr Fernandez was asked to supply the Form 16 Inspection certificates from Mr Holley.
  10. [19]
    He says that when he phoned Mr Holley’s office on 16 June 2015, Mr Holley informed him that the certificates would have been issued with the invoice by his administrative staff. Upon Mr Fernandez saying that he had received neither, Mr Holley informed him that he would chase it up and come back to him. He tried unsuccessfully to phone Mr Holley again on 18 and 19 June 2015. Mr Fernandez says that Mr Holley did not return his calls on these occasions, (nor, based on evidence given for the first time at the hearing, on several other occasions on which Mr Fernandez left messages, but which he did not record in his diary notes).[11]
  11. [20]
    On 2 July 2015, when he phoned Mr Holley to say he not received an email, Mr Holley again told him that he would attend to it. Mr Holley phoned him within 10 minutes to request details of the property address. It is reasonable to infer from the explanation given by Mr Fernandez, that this occurred because Mr Fernandez name was not in his computer database. Mr Fernandez says that his name and the property address appears on several of his emails to Mr Holley.
  12. [21]
    In July 2015, Mr Fernandez made a complaint (the first QBCC complaint) about Mr Holley to the QBCC. Mr Holley subsequently provided two Form 16 certificates in September 2015, one for the footings stage, and one aspect ‘partial slab’ certificate. The first QBCC complaint was then closed because Mr Fernandez considered it resolved, thanking QBCC in an email for working to achieve a practical result for him.[12]
  13. [22]
    An invoice from Applied Building Approvals for a footing inspection and slab inspection dated 10 March 2015 is said by Mr Fernandez to have been received by him and is endorsed scheduled for payment on 5 August 2015.[13]
  14. [23]
    In an email dated 1 September 2015,[14] addressed to a person at the RCC, Mr Fernandez attached a copy of a cadastral survey, stating that he would send a copy on to Mr Holley, ‘so that he can complete his work.’[15]
  15. [24]
    In an email dated 10 September 2015,[16] to a person at RCC, Mr Fernandez attaches copies of two Form 16s from Mr Holley. The details of the certificates are discussed in the following paragraphs.

Mr Fernandez’ complaints about the certifier’s conduct

  1. [25]
    In October 2015, Mr Fernandez then complained again to QBCC (the second QBCC complaint) that Mr Holley should be disciplined. He says that Mr Holley acted in breach of his obligations as a certifier under the Building Act, the Building Regulation 2006 (Qld) (Building Regulation) and the Code of Conduct applying to certifiers. Mr Fernandez is particularly concerned that Mr Holley has not issued a slab stage completion certificate. Mr Fernandez is prevented from proceeding further with the building works[17] (although it seems he did continue with them until March 2016), without the slab stage completion certificate, because he cannot seek frame stage approval.
  2. [26]
    Mr Fernandez’ material also alleged (in some instances) that he engaged Mr Holley as a certifier and Mr Holley failed to inform the RCC of his engagement as he was required to do under the Building Act.[18] During the hearing, Mr Fernandez conceded that he had not formally engaged Mr Holley in the sense contemplated by the Building Act.[19]
  3. [27]
    For the first time, Mr Fernandez raised at the hearing in a document  entitled ‘Closing Statement[20] (that was handed up to the Tribunal during submissions, after the evidence had concluded and despite having been directed by the Tribunal on three separate occasions before the hearing to file and serve any witness statements upon which he intended to rely at hearing), a further new complaint about Mr Holley’s conduct. This new allegation is to the effect that in inspecting the excavation, Mr Holley did not ‘measure or note the placement of the excavated holes for the footings. These should be located directly below the 22 steel posts that the house frame is founded on.’[21] Mr Fernandez says that five of the footings are incorrectly located. He says that a competent certifier could not ‘approve the slab assuming he would order a sonic survey or examine the photos of the excavation.’[22]
  4. [28]
    The other particular complaints made by Mr Fernandez are expressed as breaches of standards of conduct set out in the Code of Conduct (Code Standards) for Building Certifiers.[23] The Code Standards and a summary of Mr Fernandez allegations against each of them may be summarised as follows:

Code Standard 1: Perform building certifying functions in the public interest

Allegation: Mr Holley did not provide inspection certificates within a reasonable timeframe, compromising Mr Fernandez’ amenity of his property and right to carry out further building works.

Code Standard 2: Maintain satisfactory levels of competence

Allegation: Incompetence demonstrated by Mr Holley in incorrectly identifying the local authority on one of the Form 16 certificates issued; and failing to observe the RCC requirement for a cadastral survey.

Code Standard 3: Comply with legislative requirements

Allegation: Mr Holley failed to give the builder and the RCC the certificates of inspection in a timely manner, as required by s 32 of the Building Regulation and Guidelines for inspection;[24] failed to ensure ‘all relevant aspects of the stage under the DA approval have been completed and comply with the approval’; and in particular, had a duty to point out to Mr Fernandez’, the RCC requirement for a cadastral survey.

Code Standard 4: Not perform building certifying functions where there is potential for conflict of interest

Allegation: Mr Holley had a duty to avoid a potential conflict of interest in that one of the workers employed on the site by the concreter was Mr Holley’s step-son.

Code Standard 7: Abide by moral and ethical standards expected by the community

Allegation: In not replying to Mr Fernandez various emails in February and March 2015 and phone calls of 16 June, 18 and 19 June and 19 July, 2015, Mr Holley has engaged in conduct that tends to bring the profession into disrepute. Further, his ‘evasive and dishonest conduct’ during those events and the second and (aborted/abandoned) third site visits, are contrary to the moral and ethical standards expected by the community.

Code Standard 8: Take all reasonable steps to obtain all relevant facts when performing building certifying functions

Allegation: Mr Holley failed to identify the correct local authority on a Form 16 and failed to observe the requirement for the cadastral survey for set out.

Code Standard 9: Clearly document reasons for building certifying decisions

Allegation: Mr Holley failed to give the builder and the RCC the certificates of inspection in a timely manner required by s 32 of the Building Regulation and Guidelines for inspection; and failed to inform Mr Fernandez of his decision not to issue a certificate for slab stage completion.

Code Standard 10: Ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit

Allegation: Mr Fernandez tasked Mr Allen with arranging inspections at appropriate times; Mr Holley failed to ensure that inspections were carried out at the appropriate times. Mr Holley’s completion of the partial slab stage certificate dated 5 March 2015 precludes further inspections of the slab.

  1. [29]
    Mr Fernandez’ final statement, handed up at the very end of the hearing, further asserts that Mr Holley ‘abused the privilege of his position to act in a calculated malicious manner.’[25]

Did the certifier engage in unsatisfactory conduct or professional misconduct?

  1. [30]
    It is a builder’s obligation to give notice for inspection of assessable building work under the Building Regulation.[26] A builder is prohibited from starting the next stage until he receives a certificate of inspection for a relevant stage.[27]
  2. [31]
    The Building Act provides for a building certifying function.[28] Stages of assessable building work are provided for in the Building Regulation.[29] The Guidelines for inspection of class 1 and 10 buildings and structures provide additional information about what must be checked at each stage.[30] As QBCC submits, certifiers are generally entitled to inspect assessable building work for a class 1a or class 10 building under the Building Regulations[31] and to issue certificates.[32] The inspecting certifier must ensure that ‘all relevant aspects of the stage under the building development approval have been completed and comply with the approval.’[33]  The certifier may perform these tasks irrespective of whether he or she is formally engaged as a certifier for particular works under the Building Act.[34] Unless there is a formal engagement, there is no requirement to notify the local authority.[35]
  3. [32]
    Having regard to these relevant provisions, I am satisfied that Mr Holley was entitled to perform the inspections he did. I am further satisfied that he  could not issue the footings stage certificate until he saw the cadastral survey which was required to comply with the DA. Mr Holley could not issue any certificate relevant to the slab, until the footings stage was properly certified.  
  4. [33]
    Mr Holley issued Form 16 certificates, such as his inspections entitled him to do so, after receiving the cadastral survey from Mr Fernandez, some time from on or after 1 September 2015. He issued them at some time before Mr Fernandez’ email on 10 September 2015  (which attached the Form 16s) to RCC.
  5. [34]
    Mr Fernandez submits that if that is so, then the certificates could not or should not be dated, as they are respectively, for the footings,16 February 2015 and for the aspect partial slab certificate, 5 March 2015. In particular, Mr Fernandez submits that it is apparent from the certificate dated 5 March 2015, that Mr Holley was not prepared to do any further inspections. He argues that if he (Mr Holley) intended to perform further slab stage inspections, there would have been no need for the aspect slab certificate dated 5 March 2015, because there is no requirement for a ‘partial slab’ certificate, only a slab stage completion certificate.
  6. [35]
    Mr Fernandez submits that Mr Holley’s unsatisfactory conduct or professional misconduct includes a failure to issue a slab stage completion certificate.  The QBCC submits that Mr Holley acted properly in refusing to do the requested third inspection because the final two slabs had been poured.  It further submits that he could not, based on his inspections, issue a slab stage completion certificate, only the aspect slab stage certificate issued by him in respect of the first slab. The three-tier slab had been fully poured after his inspection on 5 March 2015 and before he was next asked to inspect on 17 March 2015. Therefore, he could not inspect or issue a Form 16 for the slab stage completion, because he could not see the things he needed to check in order to do so. However, he was entitled to issue an aspect slab certificate for the portion of the slab progress he inspected on 3 March 2015.
  7. [36]
    In respect of Mr Fernandez complaints that Mr Holley should have notified him of the requirement for him to obtain the cadastral survey, QBCC submits that the survey was the builder’s responsibility. Although the certifier sees the documents, it is to ensure that the relevant DA is in place and the requirements of it fulfilled. Accordingly, it says, he could perform the inspection, but not issue the certificates until he sighted the cadastral survey. The QBCC raises no issues in respect of the dates on the certificates: submitting that it would only have been concerned if the certificates had been issued by Mr Holley on the dates appearing on the Form 16s.
  8. [37]
    On the evidence before me, it is reasonable to infer that in the days immediately after his inspections, Mr Holley either, prepared draft certificates or dictated the details, pertaining to his inspections into draft certificates, which he then signed, but did not issue. Given the nature of inspection work, certificates prepared, at least in draft, promptly after the inspections to which they relate might reasonably minimise any possibility of confusion about the state of the works on a particular site at a particular date, which may occur if the task was left until a later time.
  9. [38]
    Complaint was made very belatedly in the conduct of these review proceedings about the alleged incorrect placement of five excavated holes for the footings. The complaint is that five of the 22 holes were incorrectly placed. Mr Fernandez alleges that it is therefore impossible for a competent certifier to approve the slab, ‘assuming he would order a sonic survey or examine the photos of the excavation.’ [36]
  10. [39]
    The QBCC received notice of this issue only at the end of the hearing. However, the QBCC did not seek an adjournment to address the issue. Instead, the QBCC submits that the allegation is irrelevant to the outcome. It submits that the responsibility to supervise tradespersons (and obtain the requisite survey) rested with the builder, not Mr Holley. Although it submits Mr Holley would have taken his own measurements for checking against the survey when it was received. It submits that the certifier’s role was to inspect the works to the particular point it had reached.
  11. [40]
    Although it is not entirely clear, it may be that the belatedly-made allegations about the five incorrectly placed holes relate to holes in tiers 2 and 3 of the slab. It appears this may be so because Mr Fernandez has Mr Holley’s ‘partial slab’ certificate for tier 1, so his concern that he cannot obtain certification for the slab appears to relate to that portion which Mr Holley did not inspect or issue a certificate in respect of. (Also, I observe that Mr Fernandez email dated of 20 March 2015 (that is, after Mr Holley’s inspections had been done) to Mr Holley refers to his contemplation that he might move ‘the second row of posts’. Although it is unclear, the two may be related). In any event, I do not need to make a finding about where the 5 allegedly incorrectly placed holes are in the slab or whether they are incorrectly placed. Even if they are incorrectly placed and are in the slab inspected by Mr Holley, this would not affect the outcome of the proceeding.
  12. [41]
    This is because, as the QBCC says, it was Mr Fernandez’ responsibility to supervise tradespeople on the site and to have the required inspections by a certifier at the appropriate times during the performance of the works. He did not. He blames Mr Holley for these failures, and now also for the 5 allegedly incorrectly placed holes. Further, it was not the certifier’s role to obtain the cadastral survey as Mr Fernandez suggests. Indeed, it would arguably be reasonable to infer (although I do not need to draw the inference to determine the review) from the evidence that Mr Holley asked for the cadastral survey during his first inspection on 14 February 2015, because Mr Fernandez emailed him on 16 February 2015, saying, ‘....I could not find any certificates or correspondence from the Surveyor apart from the survey itself.’[37] 
  13. [42]
    Contrary to Mr Fernandez submission to the contrary, I am satisfied on the evidence that Mr Holley intended to inspect again after 5 March 2015 when requested. He arrived on Macleay Island to do so on 17 March. He declined to inspect only on being told that the 2nd and 3rd stages of the slab had been poured, in effect, telling Mr Fernandez (on Mr Fernandez own report) that inspection was to have occurred before the pouring of the further stages of the slab.
  14. [43]
    In respect of the allegation made about breaches of the Code of Conduct, I address each of the alleged Code Standard breaches identified by Mr Fernandez. At the outset, I observe that, as the QBCC submits, the complaints are often not consistent with the Code’s explanation of the purpose of the item in the Code.

Alleged breach of Code Standard 1: Perform building certifying functions in the public interest

  1. [44]
    From the Explanatory Statements set out in the Code, it is clear that under Code Standard 1, certifiers are required, where appropriate, to take enforcement action regarding building work that does not comply with legislative requirements and must exercise discretion to ensure that health and safety of person/s and amenity to property are not compromised.[38]
  2. [45]
    The allegations made by Mr Fernandez are not in keeping with the Code Standard he seek to invoke against Mr Holley. Mr Fernandez seems to argue that in not providing him with the Form 16 certificates (later given) more promptly and a slab stage completion certificate, Mr Holley failed to act in the interests of Mr Fernandez as a member of the public. Such an argument is misplaced. It is the broader public interest which the standard applies to, not Mr Fernandez personal interest in obtaining certification.
  3. [46]
    In any event, as discussed above, Mr Holley issued the inspection certificates, such as he properly could, within (at most) 10 days of the cadastral survey being made available to him. He was not entitled to issue certificates until he had the cadastral survey. Further, Mr Holley’s failure to issue the slab stage  completion certificate, if anything, appears to demonstrate appropriate professional action in the public interest, broadly speaking, in not certifying works he had been unable to inspect and certify according to the relevant legislative and Guideline requirements.  

Alleged breach of Code Standard 2: Maintain satisfactory levels of competence

  1. [47]
    The Explanatory Notes in the Code, refer to a commitment to continuing education by certifiers about building requirements and relevant legislative changes. Therefore, the complaint made by Mr Fernandez is not in keeping with the Code Standard he relies upon.
  2. [48]
    In any event, Mr Holley did not issue the certificates until the cadastral survey was received by him. Once it was to hand, he issued the certificates promptly. I am not reasonably satisfied on the evidence that Mr Holley failed to observe the requirement for a survey and thereby acted incompetently as Mr Fernandez alleges. On the contrary, it is reasonable to infer from the evidence about Mr Holley’s conduct, that he was aware of the requirement for the survey and the relevant legislative requirements requiring that he be satisfied the DA conditions have been complied with before issuing the footing certificate.
  3. [49]
    Mr Fernandez also alleges that Mr Holley acted incompetently in identifying the Logan City Council rather than the RCC as the local government area on the aspect partial slab certificate. The QBCC submits that this is an administrative slip, and not capable of constituting unsatisfactory conduct, nor professional misconduct.
  4. [50]
    I accept the QBCC’s submission. The reference to the incorrect local authority is not a matter of competence as a certifier, it is an administrative error of a minor nature. I am not satisfied that this administrative slip demonstrates unsatisfactory conduct or professional misconduct.

Alleged breach of Code Standard 3: Comply with legislative requirements

  1. [51]
    The alleged breaches include that the two Form 16 certificates were not given in a timely manner. However, as discussed in relation to Code Standard 1, Mr Holley issued two Form 16s, soon after receiving the cadastral survey. QBCC says that he complied with legislative requirements. I agree for the reasons earlier explained.
  2. [52]
    In relation to the allegation to the effect that he failed to point out to Mr Fernandez that a cadastral survey was required, as I have said, it would arguably be reasonable to infer that Mr Holley did ask for it, based on the contents Mr Fernandez email of 16 February 2015 to Mr Holley. But, I do not need to draw that inference, because irrespective of that, it was not incumbent upon Mr Holley to point out the requirement. Mr Fernandez was obliged, as owner-builder, to comply with the conditions of the DA. One of those conditions was obtaining the cadastral survey for set out. 
  3. [53]
    On the evidence before me, I am not satisfied that the Building Regulation or the Guidelines were breached by Mr Holley as alleged. I am not satisfied that Mr Holley breached the Code Standard relied upon.

Alleged breach of Code Standard 4: Not perform building certifying functions where there is potential for conflict of interest

  1. [54]
    The Building Act prohibits private certifiers acting when they have a conflict of interest.[39] I am not satisfied that Mr Holley’s step-son’s employment as a labourer for the concreter (who was employed by Mr Fernandez), constitutes a conflict of interest on Mr Holley’s part. It does not fall within the areas identified as included in conflicts of interest by the Building Act. Further, (noting that the provision is not exhaustive as to circumstances in which a conflict may arise), I am not satisfied that the allegation reveals, or even suggests the possibility of, a potential conflict of interest on Mr Holley’s part.

Alleged breach of Code Standard 7: Abide by moral and ethical standards expected by the community

  1. [55]
    Mr Fernandez alleges that Mr Holley’s failure to respond to his emails in February and March 2015 and phone calls of 16, 18 and 19 June 2015 and 19 July 2015 was conduct tending to bring the profession into disrepute, and was not to a standard expected by the community. As discussed earlier, during submissions at the hearing, Mr Fernandez further alleged that he made other unreturned phone calls, which were not noted and particularised in his diary.
  2. [56]
    The QBCC submits that the alleged failures do not fall within the Code Standard: it refers to moral and ethical standards such as honesty, integrity and impartiality. I accept QBCC’s submission.
  3. [57]
    It may have been appropriate for Mr Holley to respond to the emails, and telephone messages, although as the QBCC points out, Mr Holley may have thought (at some stage) that he could not speak directly to Mr Fernandez. (After all, Mr Fernandez had neither engaged him, nor arranged for him to attend the inspections.) However, these are possibilities only. The evidence does not reasonably satisfy me that either was the case.
  4. [58]
    That said, even on Mr Fernandez’ version of events, the alleged conduct  on Mr Holley’s part in not responding to a small number of emails and not returning a small number of phone calls (some very close together) more promptly, does not demonstrate a failure by him to act morally or ethically, or without honesty, integrity or impartiality. For completeness, it does not suggest any calculated malicious action by Mr Holley.

Alleged breach of Code Standard 8: Take all reasonable steps to obtain all relevant facts when performing building certifying functions

  1. [59]
    Mr Fernandez alleges that Mr Holley’s failures to identify the correct local authority on one of the Form 16 documents and the requirement of RCC for a cadastral survey demonstrate a failure to take all reasonable steps to obtain relevant facts in performing certifying functions.
  2. [60]
    The QBCC submits that Mr Holley’s actions suggest that he did comply with the Code Standard (in that he did not issue the Form 16, until after he saw the cadastral survey; and did not issue a Form 16 in respect of the 2nd and 3rd tiers of the slab because they had been poured and he could not perform the inspection required if he was to provide a slab stage completion certificate).
  3. [61]
    I do not accept that the administrative slip in entering the incorrect local authority on a Form 16, is a breach of the Code Standard. Further, I accept the QBCC’s submission that Mr Holley’s actions suggest he did comply with the Code Standard raised against him by Mr Fernandez.

Alleged breach of Code Standard 9: Clearly document reasons for building certifying decisions

  1. [62]
    Mr Fernandez alleges a failure by Mr Holley to give him and the RCC his Form 16s in a timely manner as required by s 32 of the Building Regulation and Guidelines, and his failure to inform Mr Fernandez that he had decided not to issue a certificate for slab stage completion, are a breach of the obligation to clearly document reasons for building certifying decisions. The QBCC submits that the Form 16 certificates, to the extent that Mr Holley was entitled to issue them, were provided, once the builder provided the cadastral survey, indicating compliance with the Code Standard.
  2. [63]
    Mr Fernandez’ submissions do not acknowledge the certifier’s obligations not to issue certificates until he had the cadastral survey, nor his obligation as owner-builder to get it. Nor do they acknowledge that Mr Fernandez omitted to organise for the necessary inspections before the pouring of the 2nd and 3rd tiers of the slab. The information before me, does not support the allegations made. I am not satisfied that the Code Standard was breached.

Alleged breach of Code Standard 10: Ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit

  1. [64]
    The allegations made are that Mr Holley failed to ensure inspections were carried out at appropriate times and that completion of the (partial) aspect slab stage certificate on 5 March 2015 precludes further inspections.
  2. [65]
    The obligation to ensure inspections were carried out at appropriate times rested with Mr Fernandez as the builder, not Mr Holley. Mr Holley attended when requested. The Code Standard requires the certifier to ensure that inspections ensure building work comply with the Building Act and the DA. The evidence, in not issuing certificates until he had seen the cadastral survey and only issuing certificates in respect of the stages (including the aspect partial stage certificate) he actually inspected, suggests that Mr Holley complied with the Code Standard.
  3. [66]
    As discussed earlier, I do not accept for the reasons already explained, that the partial aspect slab certificate dated 5 March 2015 precluded the issue of later certificate/s for completion of the slab stage or indicated that Mr Holley was not prepared to perform any further inspections. Further, the Building Regulation contemplates multiple inspections may be necessary to ensure all relevant aspects of a stage are completed and compliant with requirements.[40]
  4. [67]
    I am not satisfied that Mr Holley breached the Code Standard as alleged.
  5. [68]
    Further, for completeness, I am not satisfied on the evidence that Mr Holley engaged in a calculated, malicious manner against Mr Fernandez that might in some other way constitute unsatisfactory conduct or professional misconduct. The evidence does not support that contention.

Conclusions and Orders on the review application

  1. [69]
    I am not reasonably satisfied that Mr Holley engaged in unsatisfactory conduct or professional misconduct. In the circumstances, the correct and preferable decision is to confirm the decision of the QBCC.
  2. [70]
    I make orders accordingly.

The QBCC’s costs application and Mr Fernandez applications for costs and compensation

  1. [71]
    On 1 September 2016, the Tribunal granted leave for the QBCC to appear through an in-house legal representative. The legal representative for the QBCC made helpful submissions at the hearing. QBCC has incurred legal costs in the proceeding.
  2. [72]
    The QBCC submits that it has, on various occasions, suggested possible solutions to the problems Mr Fernandez faces in obtaining slab stage completion certification. QBCC submits that Mr Fernandez did not take those actions, instead proceeding with this review application. It submits that his case on review was weak and should not have proceeded to hearing. It seeks legal costs from Mr Fernandez fixed in the sum of $800.
  3. [73]
    Mr Fernandez appeared to acknowledge at least one such suggestion was made by QBCC, although he says it was unacceptable to the RCC.
  4. [74]
    Although the extent is not entirely clear from the submissions of the parties, at least in part, the QBCC’s submission related to events at the compulsory conference. The discussions in the compulsory conference are inadmissible in the proceeding, subject to limited exceptions, which do not arise here.[41]
  5. [75]
    In response, Mr Fernandez submits that he seeks compensation and costs from the QBCC.[42] As foreshadowed earlier, he makes allegations against a representative of the QBCC about delay and some prior association of the representative with Mr Holley. He further submits that the complaint and appeals process ‘exists to avail individuals like me a low cost accessible means to redress building disputes.’[43] He says that throughout the process of dealing with the complaint, the QBCC did not investigate his complaint, nor demonstrate ‘concern for the stalled building work and damage caused by the further delays.’[44] He also separately complains about the delay caused by ‘QBCC’s insistence’ on proceeding to hearing in QCAT.
  6. [76]
    Subsequently, during the hearing, Mr Fernandez told the Tribunal that he had ‘no objection’ to the $800 costs claim of QBCC, if he is unsuccessful on the review. 
  7. [77]
    In QCAT, parties generally bear their own costs.[45] There is a strong contra-indication in the QCAT Act against an award of costs, which applies unless the enabling Act provides otherwise.[46] The QBCC Act does not modify the usual costs position under the QCAT Act in respect of review proceedings.
  8. [78]
    That said, in the interests of justice, orders for costs may be made under the QCAT Act, requiring a party to pay some or all of the costs of another party.[47] The matters set out in s 102(3) of the QCAT Act may be considered in deciding an application for costs. These include the relative strengths of the parties claims; in a review proceeding, whether the original decision-maker (that is, here, the QBCC) afforded the other party natural justice and whether the party genuinely attempted to enable the decision-maker to make the decision on its merits; the parties’ financial circumstances; and anything else that is relevant.
  9. [79]
    I do not doubt that Mr Fernandez holds a genuine, although misguided, belief that Mr Holley was responsible for his problems. He made a complaint to QBCC. It appears he cooperated in providing what he believed to be relevant information. His material and submissions on the review do not make out a strong case in relation to the issues he alleges against Mr Holley. Further, even if he had succeeded on review, Mr Fernandez practical problems in completing his building works would remain unresolved.
  10. [80]
    Like the QBCC’s representative, I have some sympathy for the unfortunate position in which Mr Fernandez now finds himself. However, these proceedings, contrary to Mr Fernandez submissions to that effect, are not a low cost method for resolving ‘a building dispute.’ This proceeding is not a proceeding to resolve ‘a building dispute,’ rather, it is a proceeding for review of a decision about a disciplinary finding of QBCC about a certifier.
  11. [81]
    Further, the primary source of Mr Fernandez’ problems, based on the evidence before me, is his own failures as an owner-builder.  Mr Holley, in his limited dealings with Mr Fernandez, was entitled to proceed on the basis  that Mr Fernandez was aware of his responsibilities as a builder. His role was to conduct inspections when requested and issue certificates, if (and when) appropriate, following the inspections.
  12. [82]
    The QBCC is a government instrumentality which relies upon public funding to operate. In effect, QBCC’s application for costs would see Mr Fernandez, rather than the people of Queensland, bear some of those legal costs. It has occasioned costs because of Mr Fernandez pursuit of Mr Holley on an unmeritorious review, even though even a positive outcome on review could not place him in a position to complete the stalled building works.
  13. [83]
    I know little of Mr Fernandez’ financial circumstances, other than that he has a part-built premises on Macleay Island and that he raise no objection to a costs order for $800 against him if he is not successful on the review. However, the review does not have a commercial flavour to it and Mr Fernandez represents himself in the proceedings. Mr Fernandez has generally complied with directions of the Tribunal in advancing his review to hearing.
  14. [84]
    Despite Mr Fernandez’ belated statement that he did not object to the costs order in the amount claimed if the review is unsuccessful, and the undesirability of costs being incurred by decision-makers on unmeritorious reviews, the right of individuals to review decisions of the executive government and its instrumentalities is an important aspect of accountability in public administration in Queensland. In determining the review and remaking the decision, the Tribunal exercises the administrative power of the executive government or its instrumentality. The starting position is that each party bears its own costs in the review under the QCAT Act. As I have said, there is a strong-contraindication against a costs order.
  15. [85]
    Mr Fernandez has generally complied with the Tribunal’s directions and advanced his case to hearing in a timely manner. At least in part the argument for costs raised against him relates to matters discussed in the compulsory conference, evidence of which is inadmissible. Although Mr Fernandez review is unmeritorious, I am unpersuaded that the interests of justice require that the QBCC’s costs of $800 as claimed be awarded against Mr Fernandez in this proceeding. 
  16. [86]
    Despite Mr Fernandez claim for costs, he has not incurred any legal costs or other costs which could be recoverable on a costs order. In any event, the interests of justice would not favour an award to him, even if he had done so, given the unmeritorious nature of his review.
  17. [87]
    A claim is made by Mr Fernandez for ‘compensation’.  In context the claim is made pursuant to s 48 of the QCAT Act. The compensation referred to in s 48[48] is an order made under s 102 (that is, awarding, in the interests of justice, reasonable legal costs incurred unnecessarily by a party, because the other party has acted in a manner which unnecessarily disadvantaged the party to whom the costs are awarded). Again, even if I accepted, which I do not, that he had been disadvantaged by QBCC’s actions, he has incurred no costs which could be the subject of such an order.
  18. [88]
    The claims for costs and compensation are dismissed.

Footnotes

[1] This is because it was not completed within the 28 day timeframe provided for in s 86C(2)(a) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), and Mr Fernandez would not agree to an extension of time under s 86C(2)(b): s 86C(3).

[2] The compensation claim is said to be made by him under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.

[4] QCAT Act, s 24(1).

[5] Building Act, s 190.

[6] Building Act, s 204(1).

[7] Building Act, s 204(4).

[8] Exhibit 7, page 4, item 20k.

[9] Exhibit 1, Attachment H, attached email dated 16 February 2015.

[10] Exhibit 1, Attachment H, attached copies of emails.

[11] Evidence given during the hearing on 24 January 2017, from the bar table by Mr Fernandez.

[12] Exhibit 4, item 2 and attachment 2.

[13] Exhibit 4, item 4 on page 1 and copy of invoice attached.

[14] Exhibit 1, Attachment F, final page.

[15] Ibid.

[16] Exhibit 4, item 1 and attached copy of email trail with Alexander Sellentin at RCC.

[17] Building Regulation s 28.

[18] S 143.

[19] In respect of engagement of a private certifier, see Building Act, s 138.

[20] Exhibit 8.

[21] Ibid.

[22] Ibid.

[23] A copy of the Code of Conduct is at Exhibit 5, SOR2, pages 15-23.

[24] The Guidelines for inspection of class 1 and 10 buildings and structures is at Exhibit 6.

[25] Exhibit 8.

[26] Building Regulation, s 27.

[27] Building Regulation, s 28.

[28] Building Act, s 10. 

[29] S 24.

[30] Exhibit 6.

[31] Building Regulation, s 30.

[32] Building Regulation, s 21.

[33] Building Regulation, s 31(2).

[34] See, Building Act, s 136, 138.

[35] See, Building Act, s 143.

[36] Exhibit 8.

[37] Exhibit 1, Attachment H, page 2.

[38] Exhibit 5, page 18, 1.

[39] Building Act, s 137.

[40] Building Regulation, s 31(2).

[41] QCAT Act s 74 and see State of Qld & Anor v Aigner [2013] QCATA 151, at [16-20].

[42] See Exhibits 2 and 8.

[43] Exhibit 8.

[44] Exhibit 8.

[45] QCAT Act, s 100.

[46] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, but see QCAT Act s 6 and s 7 regarding modifying provisions in enabling Acts, which prevail over the QCAT Act.

[47] QCAT Act, s 102(3).

[48] QCAT Act, s 48(2)(c).

Close

Editorial Notes

  • Published Case Name:

    Joseph Jude Fernandez v Queensland Building and Construction Commission

  • Shortened Case Name:

    Fernandez v Queensland Building and Construction Commission

  • MNC:

    [2017] QCAT 129

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    28 Feb 2017

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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