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Queensland Building and Construction Commission v Mitchell[2017] QCAT 482

Queensland Building and Construction Commission v Mitchell[2017] QCAT 482

CITATION:

Queensland Building and Construction Commission v Mitchell & Anor [2017] QCAT 482

PARTIES:

Queensland Building and Construction Commission

(Applicant)

v

Geoffrey Robert Mitchell GMA Certification Pty Ltd

(Respondents)

APPLICATION NUMBER:

OCR035-15 and OCR098-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 May 2017

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

7 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

In OCR035-15:

  1. Geoffrey Robert Mitchell is reprimanded.
  2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $9,000.00 within 28 days from the date of this order.
  3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum $7,500.00 within 28 days from the date of this order. of

In OCR098-16:

  1. Geoffrey Robert Mitchell is reprimanded.
  2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $11,000.00 within 28 days from the date of this order.
  3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of $7,500.00 within 28 days from the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Certifiers – where building certifier failed to provide Queensland Fire and Rescue Service with required information when issuing interim certificate of classification – where building certifier failed to include an acknowledgement notice as required by the Sustainable Planning Act 2009 (Qld) when sending an application for assessment of a fire engineering brief to the Queensland Fire Rescue Service – where building certifier certified work which did not comply with the Building Code of Australia – whether grounds for disciplinary action

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Certifiers – where building certifier failed to provide Queensland Fire and Rescue Service with required information when issuing interim certificate of classification – where building certifier failed to include an acknowledgement notice as required by the Sustainable Planning Act 2009 (Qld) when sending an application for assessment of a fire engineering brief to the Queensland Fire Rescue Service – where building certifier certified work which did not comply with the Building Code of Australia – whether reprimand an appropriate sanction

Building Act 1975 (Qld), s 14, s 26, s 107, s 204(7), s 211(5)(a), Schedule 2

Fire and Rescue Service Act 1990 (Qld)

Sustainable Planning Act  2009  (Qld),  s 267, s 268, s 372

Sustainable Planning Regulation 2009 (Qld), Schedule 26

Medical Board of Australia v Martin [2013] QCAT 376

Pharmacy Board of Australia v Arulogun [2013] QCAT 685

Queensland Building Services Authority v Chandra [2009] CCT QD035-05

Queensland Building Services Authority v Chandra [2010] QCAT 451

APPEARANCES:

 

APPLICANT:

C. Tanzer, Gadens Lawyers

RESPONDENT:

L. Copley, Moray & Agnew

REASONS FOR DECISION

  1. [1]
    Geoffrey Robert Mitchell is a private building certifier licensed under the Building Act 1975 (Qld) (Building Act), and GMA Certification Pty Ltd (GMA) is a company who employs private certifiers, and for whom Mr Mitchell is the Managing Director.
  1. [2]
    The Queensland Building and Construction Commission (QBCC) has brought disciplinary proceedings against Mr Mitchell and GMA in two separate proceedings, OCR035-15 (involving the certification of a building located at Brunswick Street, Fortitude Valley) and OCR098-16 (involving certification of a property located at River Street, Mackay). Helpfully, the lawyers acting for the QBCC, Mr Mitchell, and GMA have worked collaboratively to produce a Statement of Agreed Facts and Documents,[1]as well as Joint Submissions on Sanction in both matters.
  1. [3]
    The Tribunal’s role in OCR035-15 and OCR098-16 is two-fold:
  1. Firstly, the Tribunal must determine whether there are grounds for the QBCC to take disciplinary action against Mr Mitchell and GMA; and
  1. Secondly, if the Tribunal is satisfied that grounds exist, to then determine what penalty should be imposed with respect to the conduct.

Decision in OCR035-15

  1. [4]
    This matter relates to the certification by Mr Mitchell and GMA of a multi- storey building located at 514 Brunswick Street, Fortitude Valley.
  1. [5]
    In particular, this matter concerns the “special fire services” and “fire safety system” required for the building. The meaning of “special fire service” is contained in Schedule 2 of the Building Act:

special fire service means any of the following—

  1. (a)
    fire mains (other than fire mains that connect only fire hose reels);
  1. (b)
    fire hydrants;
  1. (c)
    sprinklers (including wall-wetting sprinklers);
  1. (d)
    special automatic fire suppression systems (including foam, deluge and gas flooding systems);
  1. (e)
    fire detection and alarm systems (other than stand-alone smoke alarms not required to be interconnected or connected to a fire indicator panel);
  1. (f)
    fire control centres;
  1. (g)
    stairwell pressurisation systems;
  1. (h)
    air-handling systems used for smoke control;
  1. (i)
    smoke and heat venting systems;
  1. (j)
    smoke exhaust systems;
  1. (k)
    emergency warning and intercommunication systems;
  1. (l)
    emergency lifts;
  1. (m)
    vehicular access for large isolated buildings;
  1. (n)
    services provided under conditions imposed under section 79;
  1. (o)
    services required under the BCA, clause E1.10.
  1. [6]
    The meaning of “fire safety system” is contained in the Dictionary located within Schedule 26 of the Sustainable Planning Regulation 2009 (Qld), which in turn adopts the definition contained in the Building Code of Australia (BCA), Volume 1, Part A1:

Fire safety system means one or any combination of the methods used in a building to —

  1. (a)
    warn people of an emergency; or
  1. (b)
    provide for safe evacuation; or
  1. (c)
    restrict the spread of fire; or
  1. (d)
    extinguish a fire,

and includes both active and passive systems.

  1. [7]
    The facts traversed in the following paragraphs have been agreed by the parties.
  1. [8]
    On or about 3 May 2012, the Queensland Fire and Rescue Service (QFRS) inspected the Brunswick Street site, in particular, the “special fire services” at the site. That same day, QFRS gave a notice to the building owner, Dixonbuilt, that there were several areas where the special fire services were not compliant.
  1. [9]
    On 18 May 2012, GMA issued a “Final Site Advice” for the Brunswick Street building.
  1. [10]
    On 23 July 2012, Olsson Fire and Risk Consulting Engineers (Olsson) wrote to Mr Neil Dixon of Dixonbuilt regarding a preliminary analysis it had undertaken while preparing a fire engineering brief for QFRS. Olsson identified concerns with the fire services in the building, particularly with respect to areas in the residential spaces where there was a reduced fire hydrant pressure and flow. Olsson suggested some options to alleviate these concerns, but commented that none had a “high likelihood of success” of being approved by QFRS.
  1. [11]
    On 10 August 2012, Mr Mitchell sent the Olsson fire engineering brief to QFRS. In that brief, an alternative solution to compliance was proposed.
  1. [12]
    On 13 August 2012, on instruction from Dixonbuilt, Mr Mitchell lodged, with the QFRS, an application form entitled ‘Community Safety Operations Request for Comment on Fire Engineering Brief’. The QFRS application form was a standardised form utilised by QFRS, but was not a regulated form, and included a statement at the top of the form which said:

This form is ONLY for requests for the QFRS’ preliminary input and comment on a Fire Engineering Brief (FEB) where a meeting to discuss the Fire Engineering Brief has not been requested. If you require a meeting to discuss the Fire Engineering Brief, please use the request for meeting Form.

A copy of the Fire Engineering Brief, specifications for proposed alternative solution and drawings must be provided. Please note that this form does not constitute a formal application for assessment and therefore no referral agency assessment period applies.

  1. [13]
    That same day, QFRS confirmed that it had received the application, and advised that it was suitable for processing. The development application made by Dixonbuilt was provided to QFRS with the initial application dated 21 September 2010.
  1. [14]
    On 5 September 2012, Mr Mitchell forwarded email correspondence to the QFRS informing that the QFRS response period as prescribed under the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act) had expired, and therefore GMA would progress the assessment on the basis that QFRS had no comment with respect to the fire engineering brief.
  • [15]
    On 12 September 2012, the QFRS responded and advised Mr Mitchell that:

QFRS does not support the proposed alternate solution on the grounds that the pressures and flow proposed do not meet the MINIMUM requirements of AS2419.1 2005 nor does it meet the operational requirements of QFRS.

  1. [16]
    On 31 October 2012, Mr Mitchell issued an interim certificate of classification for the Brunswick Street building, which stated that it would expire on 31 December 2013. Several items were not provided to QFRS at the time Mr Mitchell issued the interim certificate of classification, including:
  1. A copy of the interim certificate of classification;
  2. A copy of the plans and specifications showing the aspects of the completed building work;
  3. A list of all fire safety installations installed in the building; and
  4. Drawings showing the location of fire safety installations.
  1. [17]
    The parties agree that Mr Mitchell had, at the time he issued the interim certificate of classification, received the report from the QFRS following its inspection of the building dated 3 May 2012. In other words, Mr Mitchell was aware, or should have been aware, that QFRS had identified several areas where the special fire services were not compliant.
  1. [18]
    On 19 November 2012, Mr Mitchell issued an amended building development approval, granting approval for the Brunswick Street building to have an alternative solution for the fire hydrant system.
  1. [19]
    On 26 November 2012, Mr Mitchell issued a certificate of classification for the Brunswick Street building, which:
  1. Caused the earlier interim certificate of classification to expire upon its receipt by the building owner; and
  2. Contained no restrictions applying to the use of occupation of the building.
  1. [20]
    On 30 November 2012, Mr Mitchell issued another certificate of classification, replacing the earlier certificate of classification, and then placing a restriction on the use or occupation of the building by requiring ‘the fire alarm and detection system in the common areas to be connected to the Fire Brigade’, and which provided information about the alternative solution concerning the fire hydrant system which stated:

The Building has an Alternative Solution to Clause E 1.3 in particular the removal of the requirement for a fire pump under AS2419.1 using Performance requirement EP 1.3. the Fire Engineering Report of Olssen [sic] Fire forms an integral part of this assessment[.] The [a]t work pressure in the upper level of the building is 20 l/sec @250 kPA until boosted by the brigade appliance.

  1. [21]
    On 3 December 2012, the QBCC received a complaint from Mr Michael Albrow of the QFRS regarding Mr Mitchell’s issuing of an Interim Certificate of Classification for the building. The complaint raised concerns that Mr Mitchell, as certifier, allowed occupation of a potentially unsafe building. The complaint asserted that Mr Mitchell had engaged in ‘unsatisfactory conduct and professional misconduct and in so doing placed the public and firefighters well being and lives at risk.’
  1. [22]
    On 25 January 2013, the QFRS served a Notice by Commissioner given under the Fire and Rescue Service Act 1990 (Qld) (QRFS Act) upon

Dixonbuilt, as the owner of the building. The notice set out matters of non- compliance concerning fire safety installations within the building, including, but not limited to, non-compliance concerning the fire hydrant system and fire detection and alarm systems.

The Tribunal agrees that disciplinary action is warranted

  1. [23]
    The QBCC and Mr Mitchell agree that proper grounds exist for taking disciplinary action against Mr Mitchell. They submit that the Tribunal should make a finding that Mr Mitchell has engaged in one count of professional misconduct with respect to the certification of the Brunswick Street site.
  1. [24]
    The Tribunal must consider the definitions of professional misconduct and unsatisfactory conduct applicable here, which are found in Schedule 2 of the Building Act:

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

Example of significantly conflicts with a local planning scheme—

The approved building work compromises the outcomes sought by the planning scheme.

  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 building 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.

…

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 reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
  1. [25]
    Section 204(7) of the Building Act provides that the QBCC may, in considering whether there has been a pattern of conduct in a disciplinary proceeding, taken into consideration earlier findings of unsatisfactory conduct made against a building certifier. That is relevant here, as there are several other episodes of relevant conduct, the terms of which the parties agree to:

On 18 April 2012, the First Respondent was found by the Commission to have engaged in unsatisfactory conduct for having failed to refer proposed building work which may affect special fire services at the Mt Isa Hotel to the QFRS and failed to provide written notice of the decision to the QFRS for that proposed building work.

On 31 July 2013, the First Respondent was found by the Commission to have engaged in unsatisfactory conduct for having issued a building development approval for works at One Mile in the State of Queensland without first ensuring that all other development permits were in place under the legislation.

On 29 August 2014, the First Respondent was found by the Commission to have engaged in unsatisfactory conduct with respect to the issue of a building development approval for building works including 4 swimming pools on a property in Runaway Bay in the State of Queensland without having proper regard to the relevant provisions of the Building Act and subordinate legislation with respect to swimming pool fences.

On 16 June 2016, the First Respondent was found by the Commission to have engaged in unsatisfactory conduct with respect to the issue of a certificate of classification for a building located at Mornington in the State of Queensland when the building had not:

  1. (a)
    been completed in compliance with the requirements of its building development approval or the building assessment provisions in the terms of the installation of a compliant fire hydrant system; and
  1. (b)
    met the meaning of being substantially completed under the Building Act.[2]

What was the nature of the misconduct?

  1. [26]
    Section 101(1)(e) of the Building Act provides that a building is not substantially complete until all fire safety installations are operational and installed as required under the building assessment provisions. This would include any approved “alternative solutions” as defined by the Building Act and the BCA.
  1. [27]
    Section 102(3) of the Building Act prohibits the giving of a certificate of classification by a building certifier until any requirement for an inspection of the building by a referral agency (here, the QFRS) has been complied with or has ceased to apply.
  1. [28]
    Section 107 of the Building Act provides that:

107 Building certifier’s obligation to give referral agency certificate and other documents

  1. (1)
    This section applies if—
  1. (a)
    under a building development approval a referral agency must be given a notice to inspect a building; and
  1. (b)
    a building certifier gives a certificate of classification for the building.
  1. (2)
    The building certifier must, within 10 business days after giving the certificate, give the referral agency—
  1. (a)
    a copy of the certificate; and
  1. (b)
    a copy of plans and specifications showing the aspects of the completed building work within the agency’s jurisdiction other than plans and specifications given to the agency under the Planning Act, section 336(b); and
  1. (c)
    if the agency is QFES—
  1. (i)
    a list of all fire safety installations installed in the building; and
  1. (ii)
    drawings showing the location of the fire safety installations.

Maximum penalty—40 penalty units.

Finding 1 – Unsatisfactory Conduct

  1. [29]
    In issuing an interim certificate of classification for the building works at the site, and in failing to provide QFRS with:
  1. A copy of the certificate;
  1. A copy of plans and specifications showing the aspects of the completed building works;
  1. A list of all fire safety installations installed in the building; and
  1. Drawings showing the location of fire safety installations;

Mr Mitchell’s conduct was in contravention of s 107 of the Building Act, and amounts to unsatisfactory conduct.

Finding 2 – Unsatisfactory Conduct

  1. [30]
    Additionally, Mr Mitchell did not comply with s 267, s 268, and s 372 of the Sustainable Planning Act. Those sections provide:

267 Notice about properly made application

  1. (1)
    This section applies if the application is a properly made application.
  1. (2)
    The assessment manager must give the applicant a notice (the acknowledgement notice) unless—
  1. (a)
    the application relates to development that requires code assessment only; and
  1. (b)
    there are no referral agencies, or all referral agencies have stated in writing that they do not require the application to be referred to them under the information and referral stage.
  1. (3)
    The acknowledgement notice must be given to the applicant within 10 business days after the assessment manager receives the properly made application (the acknowledgement period).

268 Content of acknowledgement notice

The acknowledgement notice must state the following—

  1. (a)
    the type of approval applied for;
  1. (b)
    which of the following aspects of development the application seeks a development approval for—
  1. (i)
    carrying out building work;
  1. (ii)
    carrying out plumbing or drainage work;
  1. (iii)
    carrying out operational work;
  1. (iv)
    reconfiguring a lot;
  1. (v)
    making a material change of use of premises;
  1. (c)
    whether an aspect of the development applied for requires code assessment, and if so, the names of all the codes the assessment manager considers to be applicable codes for the development;
  1. (d)
    whether an aspect of the development applied for requires impact assessment, and if so, the public notification requirements;
  1. (e)
    the name and address of each referral agency for the application, and whether the referral agency is an advice or concurrence agency;
  1. (f)
    if the assessment manager does not intend to make an information request under section 276—the assessment manager does not intend to make an information request;
  1. (g)
    if there are referral agencies for the application—the application will lapse unless the applicant gives to each referral agency the referral agency material within the period mentioned in section 272(2).

372 Copy of request to be given to particular entities

  1. (1)
    When the person makes the request, the person must give a copy of the request to the following—
  1. (a)
    if the responsible entity is a concurrence agency—
  1. (i)
    the assessment manager for the application to which the development approval applies (the original application); and
  1. (ii)
    any other concurrence agencies for the original application;
  1. (b)
    if the responsible entity is the Minister or the court—the assessment manager and any concurrence agencies for the original application;
  1. (c)
    if the responsible entity is the assessment manager—any concurrence agencies for the original application;
  1. (d)
    another entity prescribed under a regulation.
  1. (2)
    Despite subsection (1), the person need not give a copy of the request to an entity that has given the person a pre-request response notice for the request.
  1. [31]
    Mr Mitchell failed, at the time he sent the application for assessment of the fire engineering brief to the QFRS on 13 August 2012, to include an acknowledgement notice as required by these sections, and in this respect his conduct is unsatisfactory.

Finding 3 – Unsatisfactory Conduct

  1. [32]
    Additionally, the Tribunal agrees with the parties that Mr Mitchell’s conduct was unsatisfactory in that, when issuing an interim certificate of classification for building works at the Brunswick Street site, he allowed occupation of the building at a time when not all of the fire safety installations were operational, as required under the building assessment provisions.

Finding 4 – Repeated Unsatisfactory Conduct is Professional Misconduct

  1. [33]
    The Tribunal considers that Mr Mitchell’s conduct, in having engaged in three separate instances of unsatisfactory conduct in relation to the Brunswick Street building certification, in conjunction with the previous instances of unsatisfactory conduct by Mr Mitchell, detailed above in paragraph [25], together amount to professional misconduct as defined in the Building Act. Having made this determination, the Tribunal must now consider the penalty applicable.

What is the appropriate penalty?

  1. [34]
    The parties submit that, in these circumstances, the Tribunal should make an order reprimanding Mr Mitchell. A reprimand is within the scope of penalty decisions that the Tribunal can make when it is satisfied that proper grounds exist for the taking of the disciplinary action, as is the case here.[3]
  2. [35]
    Section 211(5)(a) of the Building Act provides that the Tribunal can make an order imposing a financial penalty on a building certifier of not more than 80 penalty units for a first finding of professional misconduct. Although Mr Mitchell has been found to have engaged in unsatisfactory conduct previously, he has not been found to have engaged in professional misconduct on any prior occasions. As the value of a penalty unit is presently $121.90, the maximum penalty the Tribunal could impose for a first finding of professional misconduct is $9,752.00 ($121.90 x 80).
  1. [36]
    The QBCC and Mr Mitchell agree that appropriate financial penalty in these circumstances is $9,000.00. The Tribunal agrees that this reflects the appropriate penalty for the level of conduct, having regard to the decision of the Honourable JB Thomas AM QC in Pharmacy Board of Australia v Arulogun,[4]wherein His Honour said:

The parties to this litigation are agreed upon the orders which they submit this Tribunal should make in this case. However an independent discretion must always be exercised by this Tribunal. The exercise of its powers are for the protection of the public and the maintenance of professional standards. Consent orders concerning sanctions and the final disposition of such disciplinary applications are not binding in this jurisdiction, although of course parties are encouraged to try to reach agreement at all stages, including during the compulsory conference.

  1. [37]
    As the proposed sanction agreed between the parties does not fall outside the permissible range, the Tribunal agrees that it would not be justified in departing from the proposal. The justification for this position has been adopted on many prior occasions by the Tribunal, and was articulated by the then Deputy President of QCAT, His Honour Judge Horneman-Wren, in Medical Board of Australia v Martin.[5] In that decision, His Honour Judge Horneman-Wren noted (citations omitted):

In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission, Burchett and Kiefel JJ referred to the important public policy involved in a court (or tribunal) not departing from agreed sanctions which are within a permissible range in all the circumstances of the case. That public policy identified was in not jeopardising the beneficial consequences of potentially lengthy and complex litigation being concluded with an acknowledgement of wrong doing and agreement as to an appropriate sanction for the conduct. Their Honours observed that such beneficial consequences could be jeopardised if parties “…were to conclude that proper settlements were clouded by unpredictable risks”.

Whilst those observations were made in the conduct of a consumer protection litigation, they are, in my opinion, apposite to disciplinary proceedings such as these. It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession. [6]

  1. [38]
    The most analogous Tribunal decision involving a first finding of professional misconduct with respect to a private certifier is found in the decision of Queensland Building Services Authority v Chandra.[7] In Chandra, the former Commercial and Consumer Tribunal imposed a penalty of $7,500.00 on Mr Chandra for repeated unsatisfactory conduct.
  1. [39]
    Along with the penalty of $9,000.00, it is appropriate that Mr Mitchell pay the QBCC’s costs of this proceeding. The parties have agreed that costs should be fixed in the sum of $7,500.00, and the Tribunal will make an order accordingly.

Orders in OCR035-15

  1. Geoffrey Robert Mitchell is reprimanded.
  2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $9,000.00 within 28 days from the date of this order.
  3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of $7,500.00 within 28 days from the date of this order.

Decision in OCR098-16

  1. [40]
    The facts following have been agreed by the parties. This matter relates to the conduct of Mr Mitchell and GMA in certifying a building located at 27 River Street, Mackay. The Mackay site consists of an 11-storey commercial and residential development, containing a ground-floor restaurant, 43 residential units and corresponding car parking.
  1. [41]
    On or about 10 August 2005, the Mackay Regional Council issued a decision notice for the development application filed in relation to the Mackay site, DA-2004-117.
  1. [42]
    Thereafter, on or about 25 November 2005, the Mackay Regional Council issued a negotiated decision notice for the Mackay site. The negotiated decision notice was issued with attached plans depicting the approved building works, which provided that level 11 of the Mackay site was not to be enclosed. The negotiated decision notice provided for level 11 to be an open rooftop terrace, without any internal areas.
  1. [43]
    On or about 2 January 2008, the owner of the Mackay site, GMW Group, signed a construction contract with T&T Building Pty Ltd to commence construction.
  1. [44]
    On or about 17 July 2008, Holmes Fire and Safety Pty Ltd (Holmes) prepared a Fire Engineered Alternative Solution report. Shortly thereafter,on 22 August 2008, Holmes prepared a version B of the Fire Engineered Alternative Solution report, requiring the following:[8]
  1. (a)
    -/120/30 self-closing doorsets being installed in the carpark and fitted with ambient, medium and hot (intumescent) smoke seals;
  1. (b)
    lift to be fitted with an automatic smoke curtain at the basement level;
  1. (c)
    the switchboard within the central passageway to be sealed with a fire rated door or hatch and be provided with ambient, medium and hot (intumescent) smoke seals;
  1. (d)
    fire rating between the ground floor fire-isolated central passageway and the reception room;
  1. (e)
    -/120/30 self-closing doorset being installed between the ground floor fire- isolated central passageway and the reception room; and
  1. (f)
    installation of a fire rated glass window panel in the required fire rated wall separating the ground floor fire-isolated passageway and the reception room.
  1. [45]
    On 28 August 2008, Mr Mitchell issued a decision notice for building application 20085985, with respect to the building to be constructed on the Mackay site.
  1. [46]
    On or about 2 December 2009, T&T Building Pty Ltd was removed from the Mackay site and work continued with a new contractor, J&CG Constructions Pty Ltd.
  1. [47]
    Mr Mitchell conducted his first inspection of the building at the Mackay site on or around 2 March 2010. On 4 March 2010, he issued a Form 11 interim certificate of classification for the building, which did not contain any restrictions on the use or occupation of the building.
  1. [48]
    During August and September of 2010, building work was carried out to level 11 at the Mackay site, which included installation of sliding glass doors, windows and partitions. This was problematic, as the negotiated decision notice provided for level 11 to be open, as mentioned above.
  1. [49]
    On 15 October 2010, Mr Mitchell issued a Form 16 inspection certificate, certifying that the final stage for the ‘new construction restaurant’, ‘new construction 43 unit apartment building’, and ‘new construction car park’ had been completed in accordance with the approved plans issued with the negotiated decision notice. That same day, Mr Mitchell issued a Form 11 certification of classification with respect to this construction.
  1. [50]
    On or about 21 April 2011, the QBCC received a complaint from the Body Corporate for the Crown Community Titles Scheme 41282 regarding Mr Mitchell’s certification of the building at the Mackay site.

What was the nature of the misconduct?

  1. [51]
    Section 14 of the Building Act provides that building work complies with the BCA if it complies with all relevant performance requirements of the BCA or is built in accordance with an alternative solution, which either complies with the performance requirement or is equivalent to the performance requirement under the BCA.

Finding 1 – Unsatisfactory Conduct

  1. [52]
    The Tribunal agrees with the parties that Mr Mitchell’s conduct, in failing to note on the Form 15 and Form 16 in October 2010 that those certifications were given pursuant to the March 2010 final inspection, was unsatisfactory.
  1. [53]
    As a consequence of the building work performed at the Mackay site, the fire sprinkler system did not extend to level 11 as required, and there were insufficient fire exits servicing level 11. Certifying the Mackay site in these circumstances contravened the Building Act.

Finding 2 – UnsatisfactoryConduct

  1. [54]
    The Tribunal agrees with the parties that Mr Mitchell failed to identify, at the final inspection of the Mackay site, that the building works did not comply with version B of the Holmes Fire Engineered Alternative Solution report, detailed in paragraph 44 above. In this respect, Mr Mitchell’s conduct was unsatisfactory, and in contravention of the Building Act.

Finding 3 – UnsatisfactoryConduct

  1. [55]
    The Tribunal agrees with the parties that the building work did not comply with the BCA in the following respects:[9]
  1. (a)
    the window identified as “W12” located with the wall bounding the reception room on the ground floor which abuts the fire-isolated central passageway was not fire rated and causes persons evacuating from the building via this evacuation route to pass a non-fire rated window in contravention of Performance Requirements DP5 and EP2.2 and Specification D1.7 of the BCA;
  1. (b)
    a self-closing fire exit doorset, identified as door “FD2” (on ground floor plan in grid 1D exit to car park), with an RFL of at least 4120/30 was not installed between the ground floor fire-isolated passageway and the reception room, with a non-fire rated doorset installed in its place in contravention of Performance requirement DP5 and EP2.2 and Specification 03.4 of the BCA;
  1. (c)
    a non-fire rated glass window panel had been installed in the required fire rated wall separating the ground floor fire-isolated passageway and the reception room in contravention of Performance Requirement DP5 and EP2.2 and Specification C3.4 of the BCA;
  1. (d)
    construction between the fire control room and the reception office via fibre cement panel forming spandrel of stair was not fire rated in contravention of Part C1.1 and Specification C1.1 of the BCA;
  1. (e)
    handrails have not been installed along any the flight of stairs [sic] within all the fire-isolated passageways in contravention of Part D2.17 of the BCA;
  1. (f)
    a number of goings and risers were inconsistent within the fire stairs 1 & 2 of the building in contravention of Part D2.13 of the BCA;
  1. (g)
    the head height above the line of nosings in the stair flight located in the fire-isolated passageway leading to the open space adjacent to the restaurant balcony was insufficient in contravention of Part D1.6 of the BCA.
  1. [56]
    In failing to ensure that the building work complied with the BCA, Mr Mitchell’s conduct was unsatisfactory.

Finding 4 – Repeated Unsatisfactory Conduct is Professional Misconduct

  1. [57]
    Having found three separate instances of unsatisfactory conduct with respect to the Mackay site, the Tribunal agrees with the parties that the cumulative impact of that conduct is that Mr Mitchell has engaged in professional misconduct. As was explained above, with respect to OCR035-15, repeated instances of unsatisfactory conduct can amount to professional misconduct as defined in Schedule 2 of the Building Act.

What is the appropriate penalty?

  1. [58]
    The parties submit that, in these circumstances, the Tribunal should find that Mr Mitchell has engaged in one count of professional misconduct with respect to the Mackay site.
  1. [59]
    The parties submit, and the Tribunal agrees, that Mr Mitchell should be reprimanded in relation to the professional misconduct.
  1. [60]
    With respect to the appropriate financial penalty, the maximum penalty the Tribunal may impose with respect to a second finding of professional misconduct is 120 penalty units, or $14,628.00 ($121.90 x 120). Here, the parties submit that given the nature of the conduct, and it being the second finding of professional misconduct, that the penalty should be $11,000.00.
  1. [61]
    Having traversed the authorities above in relation to the Tribunal’s acceptance of a proposed agreed sanction, so long as it falls within the permissible range, the Tribunal will not repeat that discussion here.
  1. [62]
    The Tribunal notes that the proposed penalty of $11,000.00 is within the permissible parameters. The Tribunal has had regard to the most comparable previous decision of the Tribunal in Queensland Building Services Authority v Chandra.[10]In that matter, the Tribunal fined Mr Chandra, also a certifier who engaged in a second instance of professional misconduct, a fine of $12,000.00.
  1. [63]
    At the hearing of this matter, Mr Mitchell filed two affidavits, marked by the Tribunal as Hearing Exhibits 1 and 2. Exhibit 1 is an affidavit from Mr Mitchell setting out the personal circumstances that he says resulted in his unfortunate professional misconduct. Exhibit 2 is also an affidavit from Mr Mitchell, filed on behalf of GMA. The Tribunal notes that the QBCC does not seek that any penalty be imposed with respect to GMA.
  1. [64]
    Mr Mitchell explains that his career has spanned approximately 40 years, and he acknowledges that with the benefit of retrospect, it is now clear to him that his other professional activities have impacted upon his ability to give full attention to his certification duties. Mr Mitchell has, over many years, held a number of respected positions, including work as a Board Member of the Australian Institute of Building Surveyors between the years of 1998 and 2011, and as a Member of the International Code Council in the United States amongst other professional committee roles.
  1. [65]
    It is clear to the Tribunal that Mr Mitchell has generously given his own time to his profession. Mr Mitchell explains that he has taken steps to reduce his own workload, to enable him to spend more time on each certification job, and has surrounded himself with very senior practitioners with whom he can discuss certification issues. He has explained that he is disappointed in himself, and regrets all the instances where he did not give proper consideration or regard to the strict requirements of regulations.
  1. [66]
    It is clear to the Tribunal that these findings will have a personal impact on Mr Mitchell, and by extension, on those surrounding him who are affected by these circumstances. Whilst this is not a factor that the Tribunal can consider in making a decision about penalty, the Tribunal accepts that Mr Mitchell is genuinely disappointed in himself, and that he has taken this matter seriously.
  1. [67]
    Mr Mitchell has provided several references from his professional colleagues whom are aware of the circumstances that led to these disciplinary proceedings before the Tribunal. These referees, despite their awareness of these circumstances, continue to consider Mr Mitchell to be a person they would continue to work with as a lecturer, and a person who, despite having some lapses in his judgment, is of good character and repute.

Mr Mitchell should pay the QBCC’s costs

  1. [68]
    As with OCR035-15, the Tribunal considers it appropriate that Mr Mitchell pay the QBCC’s costs of the proceedings. The parties agree that costs should be fixed in the sum of $7,500.00.

Orders in OCR098-16

  1. Geoffrey Robert Mitchell is reprimanded.
  2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $11,000.00 within 28 days from the date of this order.
  3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of $7,500.00 within 28 days from the date of this order.

Footnotes

[1] Filed in the Tribunal on 25 May 2017 in both matters.

[2] Statement of agreed facts in OCR035-15, paras [29]-[32].

[3] Building Act, s 211(2).

[4] [2013] QCAT 685, at [15].

[5] [2013] QCAT 376.

[6]Medical Board of Australia v Martin [2013] QCAT 376, at [92] – [93].

[7][2009] CCT QD035-05.

[8]Statement of agreed facts in OCR098-16, para [11].

[9]Statement of agreed facts in OCR098-16, para [23].

[10][2010] QCAT 451.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v Geoffrey Robert Mitchell and GMA Certification Pty Ltd

  • Shortened Case Name:

    Queensland Building and Construction Commission v Mitchell

  • MNC:

    [2017] QCAT 482

  • Court:

    QCAT

  • Judge(s):

    Member Cullen

  • Date:

    07 Jul 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

Case NameFull CitationFrequency
Medical Board of Australia v Martin [2013] QCAT 376
3 citations
Jump To
Cite 1 - [2013] QCAT 376
Cite 2 - [2013] QCAT 376
Cite 3 - [2013] QCAT 376
Pharmacy Board of Australia v Arulogun [2013] QCAT 685
2 citations
Jump To
Cite 1 - [2013] QCAT 685
Cite 2 - [2013] QCAT 685
Queensland Building Services Authority v Chandra [2010] QCAT 451
2 citations
Jump To
Cite 1 - [2010] QCAT 451
Cite 2 - [2010] QCAT 451
Queensland Building Services Authority v Chandra [2009] CCT QD0 35-05
2 citations
Jump To
Cite 1 - [2009] CCT QD0 35-05
Cite 2 - [2009] CCT QD0 35-05

Cases Citing

Case NameFull CitationFrequency
Queensland Building and Construction Commission v McHenry [2024] QCAT 303 citations
Queensland College of Teachers v PTV [2025] QCAT 3131 citation
1

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