Queensland Building and Construction Commission v Respondent M
[2021] QCAT 260
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
- Queensland Building and Construction Commission v Respondent M[2021] QCAT 260
- Add to List
Queensland Building and Construction Commission v Respondent M[2021] QCAT 260
Queensland Building and Construction Commission v Respondent M[2021] QCAT 260
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Building and Construction Commission v Respondent M & Anor [2021] QCAT 260 |
PARTIES: | Queensland building and construction commission (applicant) V Respondent M burdekin shire council (respondents) |
APPLICATION NO/S: | OCR024-16 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 20 April 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – disciplinary proceedings against building certifier and local government – where proceedings lack utility – application dismissed on basis it is lacking in substance Building Act 1975 (Qld), s 212 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Vassilopoulos v Queensland Building and Construction Commission [2017] QCAT 398 |
APPEARANCES & REPRESENTATION: | |
Applicant: | R Shulte of Counsel |
Respondents: | Barry Nilsson Lawyers |
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]On 22 February 2016, the Queensland Building and Construction Commission (‘QBCC’) filed a Form 22: Application or referral – disciplinary proceeding. The named respondents were Respondent M and the Burdekin Shire Council (‘the Council’).
- [2]The QBCC sought orders that:
- (a)Respondent M had engaged in professional misconduct pursuant to s 212(1) of the Building Act 1975 (Qld) (‘the Building Act’); and
- (b)the Council did not take all reasonable steps to ensure that Respondent M did not engage in professional misconduct, pursuant to s 212(6) of the Building Act.
- (a)
- [3]On 3 March 2020, the Council filed a Form 40: Application for miscellaneous matters. The Council sought to have the proceedings dismissed. The basis given for the dismissal was that Respondent M lacks capacity.
- [4]Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) relevantly provides:
- (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2) The tribunal may—
- (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; …
- [5]The following medical evidence was provided by the Council:
- (a)A letter from Dr Darren Oats, general practitioner, dated 28 May 2018. Dr Oats noted that Respondent M was suffering from ‘severe, psychotic depression’ and had engaged in multiple suicide attempts. Treatment included multiple medications and a prolonged course of electroconvulsive therapy. Dr Oats did not believe that Respondent M had testamentary capacity.
- (b)A report from Dr Sarah Beaney, consultant old age psychiatrist, dated 1 June 2018. Dr Beaney referred to a number of assessments, which she stated were consistent with frontotemporal dementia. Combined with Respondent M’s severe treatment resistant depression, Dr Beaney did ‘not think he would be able to meaningfully participate in giving evidence or being cross examined in QCAT proceedings’.
- (c)A further letter from Dr Oats dated 7 June 2018. Dr Oats stated that he did not believe that Respondent M would be able to present evidence in court.
- (d)A letter from Dr Vijay Menon, consultant psychiatrist, dated 22 June 2018. Dr Menon stated that Respondent M ‘lacks capacity and is incapable of physically travelling to Brisbane for the QCAT hearings dated 25-29 June’, and that attending by teleconference would ‘significantly and adversely affect his mental state’.
- (e)A further letter from Dr Oats dated 12 August 2019. Dr Oats stated that he did not believe that Respondent M had the capacity to make ‘any decisions regarding legal matters’.
- (a)
- [6]The Council also submitted that Respondent M’s age (of 68 years), combined with his medical conditions, means that he has no capacity to ever work again. I accept this submission.
- [7]The medical evidence is uncontested, and I find that there is no prospect that the proceedings will be able to proceed to a hearing against Respondent M in the foreseeable future.
- [8]The QBCC submitted that the proceedings should be permanently stayed against Respondent M, rather than dismissed. The reason given is that:
By ordering a dismissal, the Tribunal conveys that it has considered the merits of the matter when it has not.
- [9]It will be apparent to anyone reading these reasons that the Tribunal has not considered the merits of the matter. I therefore cannot see any utility in permanently staying the proceedings against Respondent M. I note in passing that this is consistent with the view that I took in Vassilopoulos v Queensland Building and Construction Commission [2017] QCAT 398.
- [10]Accordingly, I dismiss the proceedings against Respondent M as they are lacking in substance.
- [11]Turning to the proceedings against the Council, I note that s 212(6) of the Building Act provides:
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—
- (a)make an order under subsection (3) or (4) as if the corporation or local government were the building certifier; or
- (b)make an order imposing a penalty on the corporation of not more than—
- for a first time that the corporation did not take all reasonable steps—an amount equivalent to 80 penalty units; or
- for a second time that the corporation did not take all reasonable steps—an amount equivalent to 120 penalty units; or
- for a subsequent time that the corporation did not take all reasonable steps—an amount equivalent to 160 penalty units.
- [12]The QBCC submitted that s 212(6)(b) permitted orders imposing a penalty to be made only against a corporation, and not a local government. It otherwise submitted that there was little utility in pursuing a disciplinary case against the Council, and that it offered no evidence of any damage that might give rise to a compensation order. I accept the QBCC’s submissions.
- [13]Accordingly, I also dismiss the proceedings against the Council as they are lacking in substance.
Non-publication order
- [14]Given the sensitive nature of Respondent M’s mental health conditions extracted in this decision, I order that the publication of the name of the first respondent is prohibited other than to the parties to the proceeding pursuant to s 66(1)(a) of the QCAT Act.