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Vassilopoulos v Queensland Building and Construction Commission[2017] QCAT 398

Vassilopoulos v Queensland Building and Construction Commission[2017] QCAT 398

CITATION:

Vassilopoulos v Queensland Building and Construction Commission & Anor [2017] QCAT 398

PARTIES:

Gerasimos Vassilopoulos

(Applicant)

v

Queensland Building and Construction Commission

(First Respondent)

 

Clifford Rix
(Second Respondent)

APPLICATION NUMBERS:

GAR150-16, GAR304-16

MATTER TYPE:

Building matters

HEARING DATE:

30 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

23 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The applications are dismissed.
  2. Paragraphs 3 - 6 of the directions made on 30 October 2017 are vacated.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – complaints against building certifier – where proceedings lack utility – application dismissed on basis it is lacking in substance

Building Act 1975 (Qld), s 190, s 204, s 205, s 212, Schedule 2

Queensland Civil and Administrative Act 2009 (Qld), s 47

APPEARANCES:

APPLICANT:

Mr Vassilopolous appeared for himself

FIRST RESPONDENT:

Ms Durocher represented the Queensland Building and Construction Commission

SECOND RESPONDENT:

Mr Rix was excused from attendance

REASONS FOR DECISION

  1. [1]
    These proceedings concern the review of two decisions made by the Queensland Building and Construction Commission (QBCC): 
  • In the first decision, made on 10 June 2016 and reviewed internally on 8 March 2016, the QBCC found that Mr Rix, a building certifier, had not engaged in unsatisfactory conduct or professional misconduct.
  • In the second decision, made on 16 November 2016, the QBCC found that Mr Rix had engaged in unsatisfactory conduct in relation to some grounds but not others, and reprimanded Mr Rix.
  1. [2]
    The complaints against Mr Rix were made by Mr Vassilopolous.  Mr Vassilopolous lives at 293 Stanley Terrace, Taringa.  Mr Rix was the building certifier for a house built at 295 Stanley Terrace.  Mr Vassilopolous is unhappy in a number of respects with the neighbouring house.
  2. [3]
    The Tribunal has heard the applications for review of the QBCC decisions made by Mr Vassilopolous together.

Statutory framework

  1. [4]
    Pursuant to s 190 of the Building Act 1975 (Qld) (the Building Act), a person may make a complaint to the QBCC about the conduct of a building certifier. If it is not a matter recommended for mediation the QBCC must investigate the complaint.
  2. [5]
    After investigating the complaint, the QBCC must pursuant to s 204(1) decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.  If the certifier or complainant is dissatisfied with the decision by the QBCC in relation to whether the certifier has engaged in unsatisfactory conduct or professional misconduct or what the appropriate sanction should be, the certifier or complainant may apply to the Tribunal for a review of the decision.[1]
  3. [6]
    The definition of ‘unsatisfactory conduct’ is:

Unsatisfactory conduct for a building certifier or former building certifier, includes the following –

  1. (a)
    conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
  1. (b)
    conduct that is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including for example –
  1. (i)
    disregarding relevant and appropriate matters; and
  1. (ii)
    acting outside the scope of the building certifier’s powers; and
  1. (iii)
    acting beyond the scope of the building certifier’s competence; and
  1. (iv)
    contravening the code of conduct;
  1. (c)
    conduct that is of a lesser standard than the standard that might be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.[2]
  1. [7]
    The definition of ‘professional misconduct’ is:-

Professional misconduct for a building certifier or former building certifier, includes the following –

  1. (a)
    conduct that –
  1. (i)
    shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
  1. (ii)
    compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and
  1. (iii)
    is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including. For example –
  1. (a)
    disregarding relevant and appropriate matters; and
  1. (b)
    acting outside the scope of the building certifier’s powers; and
  1. (c)
    acting beyond the scope of the building certifier’s competence; and
  1. (d)
    contravening the code of conduct; and
  1. (e)
    falsely claiming the builder certifier has the qualifications, necessary experience or licence to be engaged as a building certifier
  1. (b)
    seeking, accepting or agreeing to accept a benefit, whether for the benefit of the building certifier or another person, as a reward or inducement to act in contravention of –
  1. (i)
    this Act; or
  1. (ii)
    another Act regulating building certifiers, including private certifiers for building work;
  1. (c)
    failing to comply with an order of the QBCC or the tribunal;
  1. (d)
    fraudulent or dishonest behaviour in performing building certifying functions;
  1. (e)
    other improper or unethical conduct;
  1. (f)
    repeated unsatisfactory conduct.[3]
  1. [8]
    If the QBCC makes a finding of unsatisfactory conduct, it must decide to do one or more of the things listed in s 204(4):
  1. (a)
    reprimand the building certifier;
  1. (b)
    impose the conditions it considers appropriate on the building certifier's licence;
  1. (c)
    direct the building certifier to complete to the satisfaction of QBCC the educational courses stated by QBCC;
  1. (d)
    direct the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated by QBCC;
  1. (e)
    require the building certifier to take all necessary steps to ensure the certification of building work—
  1. (i)
    complies with this Act; or
  1. (ii)
    for other assessable development related to the building work—is not inconsistent with all other necessary development approvals that apply to the work; or
  1. (iii)
    for accepted development that may affect the position, height or form of building work—is not inconsistent with the requirements for the self-assessable development;
  1. (f)
    direct the building certifier to take necessary enforcement action under this or another Act, including, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building work or owner of the building;
  1. (g)
    if QBCC is satisfied the building certifier is generally competent and diligent—advise the building certifier it does not intend to take any further action.
  1. [9]
    If the QBCC makes a finding of professional misconduct, it must apply to the Tribunal to start a disciplinary proceeding against the building certifier.[4]  In the event that a finding were to be made by the Tribunal in the future that proper grounds exist for taking disciplinary action, the orders available would depend on whether the building certifier is licensed at the time of the decision.  Relevantly, in relation to former building certifiers, the orders which may be made are set out in s 212(3)-(8):
  1. (3)
    The tribunal may make an order requiring the former building certifier to—
  1. (a)
    have another person who is appropriately licensed take all necessary steps to ensure the certification of building work complies with—
  1. (i)
    this or another Act; or
  1. (ii)
    any relevant development approval; or
  1. (iii)
    a local planning instrument; or
  1. (b)
    pay the complainant or another person an amount sufficient to complete the certification work.
  1. (4)
    The tribunal may, in relation to building work carried out that is defective or incomplete as a result of the professional misconduct, make an order that the former building certifier—
  1. (a)
    at the building certifier's cost, have the work rectified or completed by a person who is appropriately licensed; or
  1. (b)
    pay the complainant or another person an amount sufficient to rectify or complete the work.
  1. (5)
    The tribunal may make an order imposing a penalty on the former building certifier of not more than—
  1. (a)
    for a first finding of professional misconduct—an amount equivalent to 80 penalty units; or
  1. (b)
    for a second finding of professional misconduct—an amount equivalent to 120 penalty units; or
  1. (c)
    for a subsequent finding of professional misconduct—an amount equivalent to 160 penalty units.
  1. (6)
    If a corporation or local government employed the former building certifier to perform building certification work and the corporation or local government did not take all reasonable steps to ensure the former building certifier did not engage in professional misconduct, the tribunal may—
  1. (a)
    make an order under subsection (3) or (4) as if the corporation or local government were the building certifier; or
  1. (b)
    make an order imposing a penalty on the corporation of not more than—
  1. (i)
    for a first time that the corporation did not take all reasonable steps—an amount equivalent to 80 penalty units; or
  1. (ii)
    for a second time that the corporation did not take all reasonable steps—an amount equivalent to 120 penalty units; or
  1. (iii)
    for a subsequent time that the corporation did not take all reasonable steps—an amount equivalent to 160 penalty units.
  1. (7)
    The tribunal may make an order that the former building certifier must—
  1. (a)
    not be licensed or re-licensed by QBCC for the period stated in the order; or
  1. (b)
    never be licensed or re-licensed by QBCC.
  1. (8)
    The tribunal may make any other order it considers appropriate.

Mr Rix’s medical condition

  1. [10]
    Mr Rix provided a medical certificate from Dr Aniceto Madronio dated 13 October 2017.  The medical certificate records Mr Rix as having been born on 28 November 1933, which is to say he was 83 years of age as at the date of the hearing.  The contents of that certificate are as follows:

This is to certify that Mr Clifford Rix is suffering and being treated for the following medical conditions:

Current Problems:

Ischaemic Heart Disease.

Chronic congestive heart failure (LV function 20%)

Atrial Fibrillation

Chronic pressure sores, left buttock

Chronic kidney disease

Bronchiectasis of the lungs

Myopathy

It is my opinion that Mr Rix will not be able to physically tolerate attending court proceedings for any length of time.

  1. [11]
    The medical certificate was accompanied by the following email from Mr Rix:

On Friday 13th October 2017, I mentioned to my attending Physician that I was attending QCAT on 30 and 31st October. He did not like the situation as I am constantly on medication and have a device in the house which monitors my implanted device for my heart and reports back to a central unit for action.

I have my carer ready to bring me to court, but after talking with my physician, I realise that there are a number of barriers, that will make my attendance awkward. At the moment I have numerous coughing fits, because of the Mucous in my Bronchial tubes; these cause me to involuntarily have a bowel function. I will then need to leave court to change and be cleaned up by my carer, to be able to return to court.

I am also being booked into John Flynn Hospital, for four weeks to remove an excess of Mucous from my lungs and to try and improve my mobility. The decision for this is being made at the moment, with consultation between my Physician; Physio and my Cardiologist and my Lung Specialist and he does not want it delayed. I have attached a short letter from him. I therefore respectively request, my attendance at court be exempt.

  1. [12]
    In response to this correspondence, the Tribunal made directions on 17 October 2017 that Mr Rix have leave to attend the hearing on 30 October 2017 by telephone.
  2. [13]
    I spoke to Mr Rix at the commencement of the hearing on 30 October 2017.  Mr Rix told me that he has not been a building certifier since January 2017.  The QBCC subsequently tendered a licence search in relation to Mr Rix,[5] which confirmed that he ceased to be licenced on from 25 January 2017.  Mr Rix also stated that he did not intend to be a building certifier in the future.
  3. [14]
    I offered to adjourn the hearing to a time when Mr Rix’s medical condition might have improved.  Mr Rix stated that his medical condition would not improve, and that he had essentially been sent home to die.  He is spending as much time with his family as possible.
  4. [15]
    Mr Rix presented over the telephone with a shortness of breath and spoke slowly and hesitantly.
  5. [16]
    Based on the medical certificate from Dr Madronio, along with Mr Rix’s letter and his presentation over the telephone, I was not satisfied that Mr Rix was able to participate in the hearing (either by telephone or in person) due to his medical conditions.  I was also not satisfied that Mr Rix would be able to participate in a hearing in the foreseeable future if an adjournment was granted.  I therefore excused Mr Rix from attendance. 

Remedies sought by Mr Vassilopolous

  1. [17]
    I repeatedly pressed Mr Vassilopolous as to what remedies he was seeking from the Tribunal.  He initially responded by saying that he wanted the Tribunal to determine the matter.  At the conclusion of the hearing, after hearing his submissions on the substantive issues, Mr Vassilopolous indicated that he wanted a finding of professional misconduct against Mr Rix.  He also stated that it would be wrong to penalise Mr Rix financially.
  2. [18]
    I noted that given Mr Rix was no longer a building certifier, it may be the case that there were no actions I could take under s 204(4) beyond the reprimand already issued by the QBCC.  I also queried the utility of any subsequent disciplinary proceedings in the event of a finding of professional misconduct.  I raised whether there was any utility in the current proceedings, and invited written submissions from Mr Vassilopolous and the QBCC in relation to why the proceedings should not be dismissed as being lacking in substance.

The dismissal power

  1. [19]
    The Tribunal’s power to dismiss a proceeding is found in s 47 of the  Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act), which relevantly provides:

47 Dismissing, striking out or deciding if unjustified proceeding or part 

  1. (1)
    This section applies if the tribunal considers a proceeding or a part of a proceeding is—
  1. (a)
    frivolous, vexatious or misconceived; or
  1. (b)
    lacking in substance; or
  1. (c)
    otherwise an abuse of process.
  1. (2)
    The tribunal may—
  1. (a)
    if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out;

…

  1. (3)
    The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal's own initiative.
  1. [20]
    The QBCC made the following written submissions on the exercise of the dismissal power:

The Applicant has not asserted that there is any practical utility in the Tribunal conducting a merits review of the Review Decision or the second Decision.  Rather, the Applicant simply maintains his rights to review seemingly with the view to having the Tribunal assess whether his position that the Commission ought to have made more findings of unsatisfactory conduct or found professional misconduct is correct.

The Commission asserts and respectively submits that there is no utility in the Tribunal hearing and determining the Applicant’s merit review applications for the reasons set out below.

The Second Respondent is not licenced and will not be licenced in the future due to his current medical condition.  As a consequence, in the Commission’s submission there is no action which can be taken under section 204(4) of the Building Act such as to give practical utility to a finding of unsatisfactory conduct.  In the absence of any practical utility, the Commission submits the proceedings are lacking in substance and should be dismissed.

  1. [21]
    Mr Vassilopolous lodged written submissions in response which did not touch on the exercise of the dismissal power.  His made the following comment in response to the paragraphs from the QBCC submissions quoted above:

We were given the right to have the QBCC’s decisions reviewed by QCAT and we have exercised that right and paid a large sum for it.

  1. [22]
    Based on the licence search tendered by the QBCC at the hearing, I find that Mr Rix is not currently licenced as a building certifier.  He is therefore a “former building certifier” as defined in Schedule 2 of the Building Act.
  2. [23]
    I will turn to considering what remedies are available against Mr Rix in these circumstances.
  3. [24]
    If I were to find that Mr Rix has engaged in unsatisfactory conduct, I must take one of the actions set out in s 204(4).  There is effectively only one action under this subsection that is capable of being taken against a former building certifier.  Pursuant to paragraph (a), I could reprimand the building certifier.  This has already been done by the QBCC in its decision of 16 November 2016.  I will address each of the remaining actions mentioned in s 204(4)(b)-(f) in turn:
    1. Paragraph (b) enables me to impose such conditions as I consider appropriate on the building certifier’s licence.  If the individual does not hold a current licence, it is not possible to impose conditions on a licence. 
    2. Paragraph (c) enables me to direct the building certifier to complete certain educational courses.  It would be inappropriate to direct that educational courses relevant to the occupation of building certifier be completed by an individual who is no longer a building certifier.
    3. Paragraph (d) enables me to direct the building certifier to report on certain aspects his or her practice as a building certifier.  If the individual is not practicing as a building certifier, it is not possible to report on his or her practice.
    4. Paragraph (e) enables me to require the building certifier undertake certain steps in relation to the certification of building work.  If the individual is not currently licenced as a building certifier, it would be inappropriate to require him or her to undertake such steps.
    5. Paragraph (f) enables me to direct the building certifier to take necessary enforcement action, including the issuing of enforcement notices.  If the individual is not licenced as a building certifier, it is not possible for the individual to take enforcement action.
    6. Paragraph (g) enables me to take no further action.
  4. [25]
    In summary, there are effectively no actions I could take following a finding of unsatisfactory conduct that have not already been taken by the QBCC. 
  5. [26]
    If I were to find that Mr Rix has engaged in professional misconduct, the QBCC must start a disciplinary proceeding against him.  I note that any disciplinary proceeding would face the same issues in relation to Mr Rix’s medical conditions as have been faced in the proceedings before me.  Given my findings relating to Mr Rix’s inability to participate in a hearing in these proceedings in the foreseeable future, I consider that there is no more than a remote prospect of any future disciplinary proceeding against Mr Rix being able to proceed to a hearing (and thereafter to a decision).  I see no utility in a finding of professional misconduct in these circumstances. 
  6. [27]
    While not forming part of my reasoning, it is perhaps worth observing for the benefit of Mr Vassilopolous that Mr Rix’s advanced age and medical conditions mean that there is little prospect that he will ever again be licenced as a building certifier.  Mr Rix has also stated his intention not to apply to be so licenced. 
  7. [28]
    For the reasons set out above, I consider that the proceedings before me are lacking in substance.  I dismiss the applications.  In order to avoid any doubt, I also vacate paragraphs 3 - 6 of the directions made on 30 October 2017.

Footnotes

[1]Building Act, s 204, s 205.

[2]Building Act, Schedule 2.

[3]Building Act, Schedule 2.

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

[5]Exhibit 1.

Close

Editorial Notes

  • Published Case Name:

    Vassilopoulos v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Vassilopoulos v Queensland Building and Construction Commission

  • MNC:

    [2017] QCAT 398

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    23 Nov 2017

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Queensland Building and Construction Commission v Respondent M [2021] QCAT 2602 citations
1

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