Gerhardt v Queensland Building and Construction Commission
[2020] QCAT 370
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- Unreported Judgment
- Gerhardt v Queensland Building and Construction Commission[2020] QCAT 370
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Gerhardt v Queensland Building and Construction Commission[2020] QCAT 370
Gerhardt v Queensland Building and Construction Commission[2020] QCAT 370
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gerhardt v Queensland Building and Construction Commission [2020] QCAT 370 |
PARTIES: | trevor gerhardt (applicant) v Queensland Building and Construction Commission (respondent) |
APPLICATION NO/S: | OCR078-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 25 August 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – where the applicant sought review of a decision made by the respondent that the applicant had engaged in unsatisfactory conduct and professional misconduct – where the applicant applied to stay the decision and applied for non-publication orders and closed hearing – where the effect of the decision under review was that the respondent could apply to the Tribunal to commence disciplinary proceedings against the applicant – where the respondent could continue to act as a certifier – where the balance of convenience favoured the statutory oversight duties of the respondent continuing rather than being stayed - where the applicant bore the onus of showing why the usual principle of open justice should not apply – where the onus not satisfied Building Act 1975 (Qld) s 204(6), s 112 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22, s 66(2), s 90(2) Chandra, S v QBSA [2008] QCCTB 232 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Uysal v Queensland Building and Construction Commission [2016] QCAT 367 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Represented by inhouse legal officer S Nean |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The Queensland Building and Construction Commission (‘QBCC’) issued an Information Notice under s 204 of the Building Act 1975 (Qld) (‘BA’) to the applicant (‘Gerhardt’) on 18 March 2020 advising QBCC had decided Gerhardt, a building certifier, had engaged in unsatisfactory conduct and professional misconduct (‘the misconduct decision’).
- [2]Mr Gerhardt was further advised in the information notice that s 204(6) of the BA required QBCC to make application to the Tribunal to start a disciplinary proceeding against him.
- [3]QBCC had undertaken an audit of Mr Gerhardt’s building certifier work specifically in relation to his certification of a child care centre constructed in Fortitude Valley.
- [4]QBCC has not applied to the Tribunal to start a disciplinary proceeding.
- [5]Mr Gerhardt has applied to the Tribunal for a review of the misconduct decision. He also applied in that review proceeding for a stay of the misconduct decision and for a non-publication order and closed hearing in respect of the current review proceeding.
- [6]I refused those interlocutory applications at a compulsory conference held on 24 June 2020. Mr Gerhardt has asked for written reasons for my decisions and I supply them herewith.
The application for a stay
- [7]The only operative effect of the misconduct decision is that QBCC may apply to the Tribunal to commence a disciplinary proceeding.
- [8]Mr Gerhardt gave his reason for seeking the stay as being he did not consider that he had engaged in unsatisfactory conduct or professional misconduct.
- [9]He attached to the application a copy of an email submission dated 14 June 2018 addressed to QBCC addressing claims made against him concerning his certification of the child care centre.
- [10]That email was considered by QBCC in reaching its misconduct decision.
- [11]By s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the tribunal may make an order staying the operation of a reviewable decision only if the tribunal considers the order is desirable after having regard to the following:
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the tribunal by the decision-maker for the reviewable decision; and
- (c)the public interest.
- (a)
- [12]Section 22 does not exclude from consideration the application of standard curial principles and procedures associated with stay applications. Those standard principles include the prospects of success in the review proceedings, whether the applicant will suffer a disadvantage if the stay is refused and whether the balance of advantage or disadvantage favours a stay.[1]
Prospects of success
- [13]QBCC submits Mr Gerhardt’s prospects of success in the review application are poor.
- [14]Mr Gerhardt refers to his email submission abovementioned and offers three instances where he says he has a reasonable argument to meet the allegations of misconduct.
- [15]He says he relied on s 112 BA which provides for concessional approval of existing buildings.
- [16]According to QBCC however, the building in question was significantly increased in size by extending the front elevation on all four levels across the full width of the building, adding approximately 2/5ths to the square meterage of the building. QBCC maintains s 112 is not available for such an altered building in the circumstances applying.
- [17]Further, s 112(3)(b) relied on by Mr Gerhardt is only available where the safety of people in the building if there is a fire, including their means of egress and the prevention and suppression of fire, will not be compromised.
- [18]Mr Gerhardt also says he was entitled to rely on Forms 15 and 16 issued by competent people for some of the instances of alleged misconduct.
- [19]A certifier is entitled to rely on such issued by competent people. It is unclear on the material before me how many breaches identified by QBCC he seeks to meet with this response.
- [20]Mr Gerhardt also refers to a matter of a fire hose reel incorrectly positioned inside fire isolation stairs. It could only be used inside the building if the fire door was opened, which would compromise the fire isolation purpose of the stairs. Mr Gerhardt says the reel was moved from outside the fire stairs to inside the fire stairs by the building owner after his final inspection.
- [21]There are many other findings of unsatisfactory conduct and professional misconduct not addressed, however. QBCC found nine separate instances of professional misconduct in the performance of his certifying duties. Additionally they identified six separate instances of unsatisfactory conduct. Under the BA, repeated[2] unsatisfactory conduct also constitutes professional misconduct.[3]
- [22]I conclude Mr Gerhardt has limited prospects of successfully refuting all claims by QBCC that his behaviour associated with certification of the child care centre amounted to unsatisfactory conduct or professional misconduct.
Disadvantage if refused
- [23]Refusal of a stay will not prevent Mr Gerhardt continuing to perform his work as a building certifier. The decision here is unlike other disciplinary decisions where the result is a suspension or cancellation of a licence. The misconduct decision will not be noted on the register of building certifiers kept by QBCC.
- [24]The Tribunal has power to do that, but only after disciplinary proceedings are commenced. No such proceedings are currently under way.
- [25]Accordingly I conclude Mr Gerhardt cannot show disadvantage if his application for a stay of the misconduct decision is refused.
Balance of convenience
- [26]QBCC has a number of statutory roles. One of them is monitoring licensee activities and compliance with standards. It is an important function serving the public interest.
- [27]The QBCC statutory focus on compliance activities protects the public and industry and ensures compliance with the law by others and the deterrence of future offending conduct. Its supervisory role should not be hindered unnecessarily.
- [28]The allegations of unsatisfactory conduct and professional misconduct here are serious. Many of the breaches identified concern fire safety access and egress. Such breaches would be of particular concern in a building destined for use as a child care centre.
- [29]The public safety benefit must be balanced against the interests of affected people if a stay is refused. Mr Gerhardt’s ability to continue to perform his building certifier functions will not be affected by refusal of a stay.
- [30]In my opinion the public safety aspect of QBCC statutory duties overrides any disadvantage claimed by Mr Gerhardt if a stay is refused.
- [31]Potentially QBCC may apply to the Tribunal to commence a disciplinary proceeding before the current review is determined. If so the Tribunal may be asked to give directions about an order of hearing or possibly that the matters be heard together. That is a case management matter however and should not displace the public interest factor required to be considered under s 22 of the QCAT Act.
The application for a non-publication order
- [32]Section 66 of the QCAT Act provides for the making of non-publication orders:
- The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
- the contents of a document or other thing produced to the tribunal;
- evidence given before the tribunal;
- information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
- The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
- [33]In Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 Wilson J, the former President of the Tribunal, said:
- [7]The phrase “in the interests of justice” is not defined in the QCAT Act but generally confers a broad discretionary power on the decision-maker . The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers the order is necessary.
- [8]Although QCAT’s discretion to grant a non-publication order is created by statute, the discretion is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts . This principle applies in cases where the information has already been published, or not.
- [9]Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication. The onus is on the applicant to show special circumstances justifying the making of the order .
- [10]Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” is generally not a sufficient reason to prohibit publication, especially if the names have already been published.
- [34]The onus is on Mr Gerhardt to show that special circumstances exist justifying the making of the order where the principle of open justice would otherwise apply.
- [35]He offers as reason for seeking the order simply that the claimed instances of unsatisfactory conduct and professional misconduct are “historical” having occurred in 2015 and the present review application has potential to adversely impact his reputation.
- [36]Neither submission is sufficient to displace the usual principle of open justice that applies as explained in Cutbush.
- [37]Mr Gerhardt refers to other proceedings between him and QBCC conducted in the Tribunal and claims QBCC will supply information to the media. He provides copies of newspaper articles relating to the other proceedings. The articles include one with a heading stating “Building certifier targeted by watchdog QBCC gets his licence back” which would, one would think, be something favourable to Mr Gerhardt.
- [38]The reference in the article to fines issued against him in the Magistrates Court in Brisbane in September 2019 of $30,000 for illegal demolition of two homes before Council had given approval has nothing to do with QBCC or Tribunal proceedings.
- [39]I conclude Mr Gerhardt has not established a basis for departure from the usual principle of open justice applying to the current proceedings.
- [40]Similar principles to those set out in s 66(2) concerning non-publication orders apply to closed hearings.[4] For the same reasons given above Mr Gerhardt’s application for a closed hearing also lacks merit and should be refused.
Footnotes
[1] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [14]; Uysal v Queensland Building and Construction Commission [2016] QCAT 367, [6].
[2] Chandra, S v QBSA [2008] QCCTB 232 at [54]: ‘In this instance (including my findings) there are four instances of unsatisfactory conduct. In accordance of the definition of “professional misconduct” then that, in my view, amounts to “repeated unsatisfactory conduct”, and accordingly, is professional misconduct.’
[3] BA, Schedule 2 (definition of ‘professional misconduct’).
[4] QCAT Act, s 90(2).