QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd
[2017] QCAT 23
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd[2017] QCAT 23
- Add to List
QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd[2017] QCAT 23
QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd[2017] QCAT 23
CITATION: | QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd [2017] QCAT 23 |
PARTIES: | Queensland Building and Construction Commission (Applicant) v Geoffery Mitchell (First Respondent) GMA Certification Pty Ltd (Second Respondent) |
APPLICATION NUMBER: | OCR035-15; OCR098-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 11 November 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Dr Cullen |
DELIVERED ON: | 19 January 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – where the Queensland Building and Construction Commission has brought disciplinary proceedings against building certifiers – where application to consolidate – where not same facts – whether appropriate to consolidate proceedings Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 54, s 55 Pacific Century Productions P/L v Taylors Contracting Services P/L; Pacific Century Productions P/L v Koppers Timber Preservation P/L [2003] QSC 289 McDonald v Queensland Building Services Authority [2012] QCAT 224 Chiropractic Board of Australia v Zaphir [2014] QCAT 307 Drew v Queensland Building and Construction Commission [2015] QCAT 11 |
REPRESENTATIVES: |
|
APPLICANT: | Simon Formby, in-house counsel for the Queensland Building and Construction Commission |
RESPONDENT: | Liam Copley, instructed by Moray & Agnew |
REASONS FOR DECISION
- [1]The Queensland Building and Construction Commission (QBCC), in separate referral applications, alleges that proper grounds exist for the taking of disciplinary action against Mr Geoffrey Robert Mitchell and GMA Certification Pty Ltd. Mr Mitchell is a private building certifier licenced under the Queensland Building and Construction Commission Act 1991 (QBCC Act), and GMA Certification is a company who employs private certifiers. Mr Mitchell is the managing director of GMA Certification.
Disciplinary Proceedings filed by the QBCC
- [2]In OCR035-15, filed in the Tribunal on 11 March 2015, the QBCC seeks disciplinary orders in relation to the approval, inspection and certification of 514 Brunswick Street, Fortitude Valley, by Mr Mitchell and GMA Certification. Briefly, the QBCC alleges unsatisfactory conduct, and professional misconduct, in relation to certification of the building, in particular the building’s fire safety system.
- [3]In OCR098-16, filed in the Tribunal on 22 July 2016, the QBCC seeks disciplinary orders in relation to the approval, inspection and certification of 27 River Street, Mackay, also by Mr Mitchell and GMA Certification. While the specific facts are different, similar legal issues are raised by the QBCC in OCR098-16, namely allegations of unsatisfactory conduct, and professional misconduct, in relation to certification of the building. In this matter, the QBCC also raises concerns in relation to certification of the building’s fire safety system.
Application to consolidate proceedings
- [4]Mr Mitchell and GMA Certification seek orders that, pursuant to s 54 of the QCAT Act, the proceedings in OCR035-15 and OCR098-16 be consolidated. The QBCC opposes the application to consolidate.
- [5]Section 54 of the QCAT Act provides that:
54 Consolidation
- (1)The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances be consolidated into 1 proceeding.
- (2)The tribunal's power to give a direction under subsection (1) is exercisable only by a legally qualified member or an adjudicator.
- (3)If 2 or more proceedings (each a pre-consolidation proceeding) are consolidated under subsection (1), evidence given in a pre-consolidation proceeding may also be given in the consolidated proceeding in relation to each of the other pre-consolidation proceedings.
- [6]Counsel for Mr Mitchell and GMA Certification concedes that the proceedings do not involve the same facts, but argues that the circumstances are related such that the proceedings can properly fall within the purview of s 54 of the QCAT Act.
Are the Circumstances Related?
- [7]Helpfully, Counsel for Mr Mitchell and GMA Certification has carefully set out the circumstances that are said to be the “same or related”:
- The role and responsibilities of a building certifier pursuant to the applicable building and planning legislation;
- What a reasonable certifier would have done in the same or similar circumstances;
- How Mr Mitchell and GMA Certification conduct business and the systems and procedures in place;
- Consideration of any improvements implemented since the alleged conduct;
- Whether the alleged conduct is part of a pattern of misconduct; and
- Consideration of the conduct alleged, and past conduct in relation to any penalty imposed.
- [8]In its submissions opposing consolidation, the QBCC concedes that “the law and the Building Codes relevant to both matters are the same, excluding the differing requirements for cyclone ratings in each area”. The QBCC focuses on the lack of factual similarities between the two matters, and concerns that the facts admissible in relation to each allegation of misconduct will not be identical.
- [9]It goes without saying that each allegation of misconduct, if found, will need to be supported by admissible evidence. This is so regardless of whether the matters are consolidated or heard separately. In order for a Tribunal Member to ultimately find that grounds exist for the taking of disciplinary action by the QBCC, there must be evidence capable of supporting the conduct alleged.
Law relating to consolidation
- [10]There is limited tribunal or judicial authority in relation to the issue of consolidation pursuant to s 54 of the QCAT Act.
- [11]Mr Mitchell and GMA Certification refer the Tribunal to Pacific Century Productions P/L v Taylors Contracting Services P/L; Pacific Century Productions P/L v Koppers Timber Preservation P/L [2003] QSC 289, and McDonald v Queensland Building Services Authority [2012] QCAT 224.
- [12]In Pacific Century, although the plaintiff’s claims against each defendant were distinct, there was a likelihood that if the plaintiff was successful against either defendant there would be a question of contribution by each to the damages suffered.
- [13]His Honour Justice Ambrose said at [24]:
The object of consolidation of proceeding is to have the one court determine all proceedings. In effect the application by Evergreen Farms recognises the desirability of one court hearing both actions although it seeks to have one heard subsequent to and separately from the other. No authority was cited to support the making of such an order. I am unpersuaded that the making of such an order would achieve the results which an ordinary consolidation order is designed to achieve. It appears that the one judge in determining the subsequent action albeit immediately after the determination of the first action may feel inclined in the second action to make findings consistent with those made in the first action. Of course in the second action the parties would be different and perhaps so would be the evidence called. One of the objects of consolidation is to avoid the possibility of different findings on the same issues of fact canvassed in separate proceedings; such a result of course reflects adversely on the system of the administration of justice – Todd v Jones [1969] VR 169 at 171.
- [14]In McDonald v QBSA, a builder sought review of two QBSA decisions which arose out of exactly the same facts and the same dispute. Member Buxton said at [15] that:
These applications are inextricably linked factually and their determination is likely to involve the same or similar evidence from the same witnesses. In order to dispose of these matters in a way which is economical and quick these applications are consolidated pursuant to section 54 of the QCAT Act.
- [15]Unlike the matters now before the Tribunal, McDonald v QBSA involved resolution of similar factual issues. The Tribunal considered the overall objectives of disposing with matters in an economical and quick way in deciding to consolidate.
- [16]The most closely analogous decision is found in Chiropractic Board of Australia v Zaphir [2014] QCAT 307, an ex tempore decision by the Tribunal’s Former Deputy President, His Honour Judge Horneman-Wren. Zaphir concerned the consolidation of disciplinary proceedings. At paragraph [13], His Honour explained the benefits of consolidating those proceedings:
[13] Because of the way in which the transitional provisions operate, particularly ss 288 and 289 of the National Law, one can readily conceive of circumstances in which disciplinary proceedings arising under the Disciplinary Proceedings Act which are required to be dealt with by the Tribunal as though the Disciplinary Proceedings Act had not been repealed might exist at a time at which there are also matters discovered in the course of investigation which relate to proceedings which would have to be brought under the National Law. To require there to be two separate proceedings seems to be the antithesis of the way in which the Tribunal is to deal with matters under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), particularly bearing in mind the obligations imposed upon the Tribunal pursuant to s 28 of that Act, particularly s 28(3)(d), requiring the Tribunal to act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act, and a proper consideration of the matters before the Tribunal permit. Section 54 of the QCAT Act also permits for the consolidation of two or more proceedings concerning the same or related facts and circumstances.
- [17]Although the situation in Zaphir was a unique one, where transitional provisions would have the effect of requiring different proceedings for conduct arising out of one investigation, His Honour’s observations of the obligations of the Tribunal in conducting proceedings are applicable.
Previous disciplinary matters involving certifiers
- [18]It is worth considering the way that the Tribunal has managed other QBCC disciplinary matters involving private certifiers.
- [19]In Drew v Queensland Building and Construction Commission [2015] QCAT 11, a building certifier sought review of seven separate decisions by the QBCC that he had engaged in “unsatisfactory conduct” pursuant to s 204 of the Building Act 1975 (Qld).
- [20]There was no application for consolidation, rather the seven separate applications were heard together. The case numbers, the date of the QBCC decision and addresses of the relevant properties are as follows:
GAR358-13 | 30 October 2013 | 2 Jasper Court, Branyan (Jasper Court) |
GAR 359-13 | 20 September 2013 | 6 Seahorse Court, Innes Park (Seahorse Court) |
GAR364-13 | 23 September 2013 | 39 Palm View Drive, Moore Park Beach (Palm View Drive) |
GAR372-13 | 23 September 2013 | 22 Blain Street, Bargara (Blain Street) |
GAR373-13 | 23 September 2013 | 87 Commodore Drive, South Bingera (Commodore Drive) |
GAR378-13 | 30 October 2013 | 54 Grahams Road, Sharon (Grahams Road) |
OCR241-13 | 28 August 2013 | 17 Clipper Court, Innes Park (Clipper Court) |
- [21]Member Paratz made separate findings in relation to each of the applications. It is the Tribunal’s view that the matters now before it should be handled in similar fashion.
These proceedings should be heard together
- [22]Section 54 of the QCAT Act refers to proceedings involving the “same or related facts and circumstances”. In these matters, I accept that the manner in which Mr Mitchell and GMA Certification understood the role and responsibilities of a building certifier, what a reasonable building certifier would have done in the same situation, and how they understood and applied the same Building Codes, are all related circumstances which involve the application of the same legal principles. It is understandable that Mr Mitchell and GMA Certification, who are privately funded litigants resisting disciplinary proceedings, would make an application to consolidate. At this juncture, it is not possible to quantify the legal costs of running each proceeding, but it is likely that running separate proceedings will come with increased legal costs. Section 54 of the QCAT Act does not, however, provide a basis for the Tribunal to consider costs as a reason in support of consolidation.
- [23]Section 55 of the QCAT Act provides that proceedings may be sequenced, and permits the Tribunal to order that proceedings remain separate, but be heard and decided together. This is sensible, in that it highlights the need for evidence to be drawn in relation to each separate proceeding, but achieves economies of scale in hearing the matters together.
- [24]Consolidating the proceedings would result in significant work for the QBCC in that it would be necessary for the referral to the Tribunal to be re-engrossed into one referral application, as the point of consolidation is to make two proceedings become one. With an order to sequence the proceedings, there is no need to do this; rather both proceedings need to be timetabled to be ready for hearing at the same time.
- [25]There is, in my view, obvious benefit to sequencing these proceedings. There will likely be reduced costs to both parties occasioned by hearing the matters together. Further, there will also be reduced costs to the Tribunal, which is a relevant factor that the Tribunal should always consider in managing proceedings before it. The Tribunal will allocate one Member to hear and determine the common legal issues raised in both OCR035-15 and OCR098-16. Whilst parties may only consider the workload of the Tribunal in terms of hearing days, there is significant time taken “behind the scenes” by Members in coming to grips with the legal principles raised in applications. It only makes sense to list both applications for determination before the same Member, in turn.
- [26]In addition to Member time, sequencing is likely to shorten the number of days of hearing, which also reduces staff time occasioned by setting up and managing hearing rooms. Potentially, both parties will benefit from decreased expert witness costs, and associated travel time.
- [27]It will be necessary for directions to be made that have the effect of “catching up” OCR098-16 to OCR035-15. This can be readily achieved, as neither proceeding appears to be ready for hearing. At the hearing of this interlocutory application, the Tribunal made a direction that there be a compulsory conference in OCR098-16 on 2 February 2017. As the Tribunal considers that it is appropriate to sequence these proceedings, the compulsory conference will now be in relation to both OCR098-16 and OCR035-15, which will enable the Member with conduct of the compulsory conference to, with input from the parties, make directions about the filing of further evidence and other steps on the path to hearing.
Orders:
- [28]The proceedings in OCR035-15 and OCR098-16 are to remain as separate proceedings, but be heard and decided together.
- [29]Both OCR035-15 and OCR098-16 are listed for a Compulsory Conference in Brisbane on 2 February 2017 at 1.30 pm.