Queensland Building and Construction Commission v McHenry
[2024] QCAT 30
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- Unreported Judgment
- Queensland Building and Construction Commission v McHenry[2024] QCAT 30
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Queensland Building and Construction Commission v McHenry[2024] QCAT 30
Queensland Building and Construction Commission v McHenry[2024] QCAT 30
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Building and Construction Commission v McHenry [2024] QCAT 30 |
PARTIES: | queensland building and construction commission (applicant) v Henry Paul McHenry (respondent) |
APPLICATION NO/S: | OCR021-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 January 2024 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member D Brown |
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CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT BY CERTIFIER – APPROPRIATNESS OF SANCTIONS TO BE IMPOSED. Building Act 1975 (Qld), s 62(2), s 83(1) (e), s 135(2), s 136(1), s 204(1), s 204(6), s 208, s 211 Queensland Building and Construction Commission v Mitchell & Anor [2017] QCAT 482. Queensland Building and Construction Commission v Weber (No 2) [2014] QCAT 532. Queensland Building Services Authority v Wilkins [2012] QCAT 582. Queensland Building and Construction Commission v Wood [2019] QCAT 101. QBSA v Chandra [2009] CCTQDO 35-05. |
APPEARANCES & REPRESENTATION: | 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]Henry Paul McHenry is a private building certifier – level 2, licensed under the Building Act 1975 (Qld) (‘the Building Act’).
- [2]On 31 October 2017 the Queensland Building and Construction Commission (‘QBCC’) received a complaint concerning the conduct of Mr McHenry as a building certifier in relation to work undertaken on a building site in Staplyton, Queensland (‘the Staplyton site’).[1] On 16 December 2021 the QBCC finalised the investigation and determined that Mr McHenry had engaged in professional misconduct on the basis of repeated unsatisfactory conduct at the Staplyton site.[2] On 18 January 2023 the QBCC brought disciplinary proceedings against Mr McHenry based on this finding.
The legislation
- [3]After investigating a complaint or conducting an audit, the QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.[3] If the QBCC decides the building certifier has engaged in professional misconduct, it must apply to the Tribunal to start a disciplinary proceeding against the building certifier.[4]
- [4]Professional misconduct is defined as including:
- conduct that—
- shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
- compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme.
- conduct that—
- [5]The Tribunal may, on application by the QBCC or the local government, conduct a disciplinary proceeding to decide whether proper grounds for taking disciplinary action against a building certifier are established. Proper grounds exist for taking disciplinary action if the building certifier has behaved in a way that constitutes professional misconduct.[5]
- [6]If the Tribunal decides that proper grounds exist for taking disciplinary action against a building certifier, the Tribunal may make various orders as detailed in s 211 of the Building Act.
Professional misconduct
- [7]The QBCC has determined Mr McHenry engaged in professional misconduct and has applied to the Tribunal to start a disciplinary proceeding against him. Mr McHenry has never denied the facts, that a building approval was issued in circumstances that should not have been, and that he has engaged in unsatisfactory professional conduct and demonstrated a lack of proper diligence and inadequate standard of care.[6] While he initially disputed that the conduct constituted professional misconduct, he now accepts that it does, and did so in a prompt way, allowing orders to be made by consent that proper grounds were established for disciplinary action within 4 months of the application being filed.
- [8]On 22 May 2023 the Tribunal made findings that proper grounds exist for taking disciplinary action against Mr McHenry under s 208 of the Building Act, in that Mr McHenry has behaved in a way that constitutes professional misconduct within the meaning of the Building Act.
- [9]The Tribunal made further orders on 22 May 2023, in relation to the filing and exchange of further submissions in relation to the appropriateness of the penalty to be imposed, and ordered the issues of sanctions to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- [10]The circumstances of Mr McHenry’s professional misconduct are that he engaged in 5 instances of unsatisfactory conduct during the assessment and approval of the building at the Staplyton site which constitutes his engagement in “repeated unsatisfactory conduct.” Repeated unsatisfactory constitutes professional misconduct as prescribed in paragraph (f) of the definition of professional misconduct contained in the dictionary at Schedule 2 of the Building Act.
- [11]The instances of unsatisfactory conduct (which are agreed upon by the parties) constitute Mr McHenry are:
- granting the Building Approval before the council had given a compliance permit for the installation of an on-site sewage management facility under the Planning and Drainage Act 2002 (Qld), simultaneously breaching sections 83(1)(e), 135(2), and 136(1) of the Building Act, and also contravening points 1, 3, 7, and 8 of the Code of Conduct;
- granting the Building Approval for the building (which was required to contain special fire services) before the application had been firstly referred to the Queensland Fire and Emergency Service (‘QFES’) so it could undertake referral agency assessment in its capacity as an advice agency under the Sustainable Planning Act 2009 (Qld) (‘the Planning Act”), and therefore without having regard to any referral agency response from QFES, being a failure to comply with Section 313(3)(c) of the Planning Act and simultaneously breaching sections 62(2), 83(1)(c), 135(2), and 136(1) of the Building Act, and also contravening points 1, 3, 7, and 8 of the Code of Conduct;
- Failing to ensure that the application made to him by the Client included the details of an appropriately licensed builder, or in the alternative, not conditioning the Building Approval to require the furnishing of the builder’s details and licence number before the commencement of the work, and/or in the alternative, granting the Building Approval to allow a person not holding builder’s licence of the appropriate class to construct the Building, contravening points 7 and 8 of the Code of Conduct;
- Granting the Building Approval for the Building when the supporting documents to the application did not evidence the building’s compliance with the building assessment provisions, and/or in the alternative, before the building assessment work for the application had been carried out under the building assessment provision, and/or in the alternative, failing to comply with the building assessment provisions during the performance of his building assessment work for the application; simultaneously contravening sections 135(2) and 136(1) of the Building Act, and also contravening points 1, 3, 7, and 8 of the Code of Conduct; and
- Granting the Building Approval in circumstances where it did not include, as conditions of the relevant approval, any requirement for stage inspections of the building, and thereby not having due regard to for the Inspection Guidelines, acting contrary to s 133A of the Building Act, and also contravening points 1, 3, 7, and 8 of the Code of Conduct.
- [12]In line with the decision in Queensland Building and Construction Commission v Mitchell & Anor,[7] having found five separate instances of unsatisfactory conduct with respect to the Staplyton site, the Tribunal agrees with the parties that the cumulative impact of that conduct is that Mr McHenry has engaged in professional misconduct, as repeated instances of unsatisfactory conduct can amount to professional misconduct as defined in Schedule 2 of the Building Act.
Penalty
- [13]The primary role of disciplinary proceedings is protection of the public, not punishment of the offender whose conduct falls below required standards, although it should provide both an appropriate general as well as specific deterrent.[8]
- [14]The QBCC in written submissions filed on 14 June 2023 invites the Tribunal to make orders under s 211 of the Building Act as follows:[9]
- Mr McHenry be reprimanded for his conduct, pursuant to section 211(2)(a) of the Building Act:
- Mr McHenry is to pay a penalty to the QBCC in the amount of $7475 (being 53 penalty units at $143.75 per penalty unit) within 28 days of the order.
- That conditions be put on Mr McHenry’s licence pursuant to section 211(2)(b) of the Building Act that:
- Mr Henry Paul McHenry shall take all necessary steps to ensure that his conduct of private certifying functions complies with all relevant requirements and the Code of Conduct for building certifiers prevailing at the material time/s including but not limited to ensuring that without the supervision of a Level 1 Building Certifier level he does not perform building certification functions on buildings and structures having a rise of more than 3 storeys and/or a total floor area of more than 2,000 square metres.
- For building development applications involving building requiring sanitary facilities on land not served by a reticulated sewerage service – he does not grant a building development approval until the local government authority has granted a compliance permit (i.e. approval – however named) for the installation or alteration of an on-site sewage management facility to serve the subject building.
- For building development applications involving building requiring special fire services or which need referral agency assessment for performance-based solutions relevant to fire safety – he does not grant a building development approval until:
- The QFES, as referral agency, has been given an opportunity to assess the special fire services and/or performance solutions relevant to fire safety of the subject building; and
- If the QFES give their referral agency advice within the required time period – have regard for the referral agency advice given by the QFES.
- The plans, drawings and specifications for building works assessed and approved by the Applicant under all future building development permits demonstrate, on their face, compliance with the building assessment provisions.
- [15]The QBCC submits that the following should be taken into account by the tribunal when determining the appropriate penalty to impose:[10]
- An assessment of the gravity of the conduct;
- Protection of consumer;
- Prevention of repetition of the conduct;
- General deterrence;
- The monetary value involved in the conduct and any profit gained;
- The motivation behind the Conduct;
- Any reparation and remorse evidenced; and
- The prior history and character of the Respondent.
- [16]Mr McHenry agrees with the QBCC’s submissions on penalty, but also considered the following mitigating considerations should weigh heavily in the tribunal’s decisions:[11]
- Mr McHenry’s age (68 years old) and his onerous family circumstances which include caring for two adult children with significant mental health issues.
- Mr McHenry’s co-operation with the administration of justice and accepting at an early stage that he engaged in 5 instances of unsatisfactory professional conduct, which constitutes professional misconduct.
- Mr McHenry’s lack of prior disciplinary findings and that there have been no subsequent complaints of findings.
- The age of the complaint (from 6 years ago) and the impact of the delay on Mr McHenry.
- That all five acts of unsatisfactory professional conduct are as a result of the same building approval and it is not a case of protracted or ongoing offending,
- Mr McHenry’s acceptance of wrongdoing demonstrating insight and remorse for his actions.
- Mr McHenry’s complicated and extraordinary personal circumstances in relation to the loss of his wife to an aggressive cancer and the ongoing care of his adult children who have mental health illnesses resulting in a background of significant life stressors and family turmoil.
- [17]Any penalty should ensure the maintenance of proper standards in the industry and reasonably balance the interest of the building contactors/certifiers and the consumers. There is a significant public importance in the functions undertaken by building and private certifiers such as Mr McHenry, and a great deal of trust is put in them and a duty of care is owed to ensure the building works that are certified are of an appropriate standard, as they can be “the last line of defence against sub-standard and shoddy building practise.”[12] A breach of this duty can strike at the heart of the certifying industry and can result in a lack of confidence in the building industry as a whole.
- [18]While it is concerning that there were a number of errors/areas of unsatisfactory conduct within the same building approval, I have also taken into account that this appears to be a one-off incident and not an ongoing pattern of lack of proper diligence, due care and attention or incompetence.
- [19]Given the nature of the incident and the lack of any prior misconduct or conduct since then, and the nature of the life stressors for Mr McHenry at the time of this complaint, I consider a repeat of the conduct unlikely and as such personal deterrence and a need to prevent repetition of the conduct is of lesser importance in this matter.
- [20]I do accept that deterrence of others is an important aspect of penalty, and that the imposition of a financial penalty not only recognises the significance of the individual actions, but is also a deterrence to others and demonstrates the recognition of the public importance of the profession and the protection of consumers.
- [21]I do take into account the mitigating factors as identified by the Respondent Mr McHenry including Mr McHenry’s age, the length of time he has held a licence and that this is his only discipline action, the period of time the complaint has been on foot and the considerable delay in both the finding of misconduct and then the bringing of QCAT proceedings. I have also taken into account Mr McHenry’s cooperation in the administration of justice, his remorse and insight, his personal circumstance at the time of the misconduct, and the significant life stressors and emotional turmoil he was under and the ongoing family circumstances in terms of the mental health issues of two of his children.
- [22]Having considered the above and the various comparable cases referred to in the Applicant’s submissions,[13] as well as the decision of Queensland Building and Construction Commission v Mitchell & Anor [2017] QCAT 482, I am satisfied that in addition to a reprimand, a significant monetary penalty should be applied having regard to the nature of the behaviour and its consequences; and that the conditions to be placed on Mr McHenry’s licence are reasonable and appropriate.
- [23]In the Applicant’s submissions on penalty, it is asserted that the fine amount of $7475 is 53 penalty units at $143.75 per penalty unit, however it is in fact the total of 52 penalty units. The value of one penalty unit at the time the misconduct occurred in 2016 is different to the value of a penalty at the time the submissions were written in June 2023, and both are different to the value of one penalty until at the time the decision was made, noting the unit value increases on 1 July each year. Given this, rather than prescribing a set number of penalty units, the tribunal has considered the matter looking at the degree of misconduct and penalty in comparative matters.
- [24]Factoring in that this is the first discipline proceedings for Mr McHenry and as such the maximum penalty is 80 units, and the fact this professional misconduct was made up of 5 separate acts of unsatisfactory conduct, and the comparable fine prescribes in other like cases of misconduct, I agree the proposed fine of $7,475, is appropriate in the circumstances.
- [25]As such, I find that the agreed penalty proposed by the Applicant, the QBCC, and the Respondent, Mr McHenry, is appropriate in the circumstance of Mr McHenry’s professional misconduct, and order accordingly.
Orders
- [26]I order:
- Proper grounds for taking disciplinary action against Henry Paul McHenry pursuant to section 208 of the Building Act 1975 (Qld) are established.
- Mr Henry Paul McHenry is reprimanded pursuant to section 211(2)(a) of the Building Act 1975.
- The penalty of $7,475.00 is imposed upon Mr Henry Paul McHenry payable to the Queensland Building and Construction Commission within 28 days of the Order, pursuant to Section 211 (5) (a) of the Building Act 1975.
- Pursuant to Section 211(2)(b) of the Building Act 1975 conditions be placed on Mr Henry Paul McHenry’s licence that:
- Mr Henry Paul McHenry shall take all necessary steps to ensure that his conduct of private certifying functions complies with all relevant requirement and the Code of conduct for building certifiers prevailing at the material time/s including but not limited to ensuring that he does not perform building certification functions on buildings and structures having a rise of more than 3 storeys and/or a total floor area of more than 2,000 square metres, without the supervision of a Level 1 Building Certifier.
- For building development applications involving building requiring sanitary facilities on land not served by a reticulated sewerage service – he does not grant a building development approval until the local government authority has granted a compliance permit (i.e. approval – however named) for the installation or alteration of an on-site sewage management facility to serve the subject building.
- For building development applications involving building requiring special fire services or which need referral agency assessment for performance- based solutions relevant to fire safety, he does not grant a building development approval until:
- The Queensland Fire and Emergency Service (‘QFES’) as referral agency, has been given an opportunity to assess the special fire services and/or performance solutions relevant to fire safety of the subject building; and
- If the QFES give their referral agency advice within the required time period, he has regard for the referral agency advice given by the QFES.
- The plans, drawings and specifications for building works assessed and approved by the Applicant under all future building development permits demonstrate, on their face, compliance with the building assessment provisions.
Footnotes
[1]Applicant’s submissions filed on14 June 2023 at paragraph 9.
[2]Ibid, paragraph 65.
[3]Building Act, s 204(1).
[4]Ibid, s 204(6).
[5]Ibid, s 208.
[6]Statement of Henry Paul McHenry filed 5 April 2023.
[7][2017] QCAT 482.
[8]Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138, [22].
[9]Submissions filed on behalf of QBCC in relation to penalty, filed on 14 June 2023 at paragraphs 84-85.
[10]Ibid, paragraph 73.
[11]Respondent’s submissions on sanction filed 29 June 2023 at paragraph 8.
[12]QBSA v Chandra [2009] CCTQDO 35-05.
[13]Queensland Building and Construction Commission v Weber (No 2) [2014] QCAT 532; Queensland Building Services Authority v Wilkins [2012] QCAT 582; Queensland Building and Construction Commission v Wood [2019] QCAT 101.