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Hau v Queensland Building and Construction Commission[2024] QCAT 473

Hau v Queensland Building and Construction Commission[2024] QCAT 473

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hau v Queensland Building and Construction Commission [2024] QCAT 473

PARTIES:

Man kit hau

(applicant)

oilam li hau

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR636-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 October 2024

HEARING DATE:

25 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

  1. 1. Oilam Li Hau is joined as an applicant to the proceeding.
  2. 2. The Applications for miscellaneous matters dated 9 May 2024 and 16 May 2024 are dismissed.
  3. 3. The Queensland Building and Construction Commission’s decision dated 26 October 2021, that AB did not engage in unsatisfactory conduct, is set aside.
  4. 4. The Tribunal returns the matter to the Queensland Building and Construction Commission for reconsideration.
  5. 5. The Queensland Building and Construction Commission is directed that its reconsideration must proceed on the basis that:
  1. (a)
    AB engaged in a single count of unsatisfactory conduct, as particularised in the written reasons of the Tribunal accompanying these orders; and
  2. (b)
    It is required to decide sanction under s 204(4) of the Building Act 1975 (Qld); and
  3. (c)
    It must afford AB the opportunity to present written submissions in mitigation prior to deciding sanction.
  1. 6. There be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicants made several complaints to the respondent about the conduct of a private certifier – where the respondent found that the certifier did not engage in unsatisfactory conduct or professional misconduct – where on review the Tribunal found that the certifier engaged in a single count of unsatisfactory conduct – where the Tribunal concluded that the remaining complaints were either de-minimis or unfounded.

Building Act 1975 (Qld), s 8, s 10, s 46, s 204

Building Regulation 2006 (Qld), s 21, s 22, s 30, s 31

Human Rights Act 2019 (Qld), s 58

Queensland Civil and Administrative Act 2009 (Qld), s 3, s 204

Briginshaw v Briginshaw & Anor (1938) CLR 336

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646

PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188

PJB v Melbourne Health [2001] VSC 327

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Formby (Counsel)

REASONS FOR DECISION

  1. [1]
    This is a review of a decision by the Queensland Building and Construction Commission (‘QBCC’), that a private certifier, to whom I have assigned the pseudonym AB, did not commit unsatisfactory conduct or professional misconduct within the meaning of Schedule 2 of the Building Act 1975 (Qld) (‘the Act’)

Background

  1. [2]
    The applicants engaged Brookhaven Homes (‘builder’) to build them a house in Rochedale (‘the work’).
  2. [3]
    The builder engaged AB to assess its building development application for the house and certify its work.
  3. [4]
    On 4 March 2020, AB, approved the development application in full with conditions (‘approval’). The conditions, which were attached to the approval, mandated inspections at various stages of the build. Notably, the conditions required all inspections to be carried out by a ‘competent person’, except the final inspection, which AB was required to personally perform.
  4. [5]
    On 14 October 2020, AB issued a Form 21 – Final inspection certificate (‘Form 21’), certifying that the house was complete and that it complied with the development approval. Section 32(3) of the Building Regulation 2006 (‘Regulation’) requires certifiers to use that form to certify compliance of single detached buildings and class 10 buildings or structures. 
  5. [6]
    On 18 May 2021, the Applicants complained to the QBCC about the certification functions that AB performed. They made five complaints, expressed in their application as follows:

Item 1: Final Certificate Form 21 issued on 14/10/2020 with incomplete work. Capping flashing over garage parapet wall (shown on photo taken 28/11/2020 11.23 am).

Item 2: Issue Form 21 with incorrect owner details (state Builder details) Builder not the owner of the property.

Item 3: Issue Form 21 with incorrect material use for ground floor external wall. Council record Building approval file Name 012836234-CBC.pdf.

Item 4: The approval Drawing show Ground Floor External Wall by Brick Veneer, and also shown on Energy eff. Report B

Item 5: Covenant approval by Estate developer BUT the house built by Hebel panel. Not brick.

  1. [7]
    The applicants’ complaints are poorly worded, but doing my very best to decipher them, I understand their grievances are as follows:
    1. Complaint 1: capping/flashing over the garage parapet wall either did not exist or was not in place at the time AB issued the Form 21 on 14 October 2020.
    2. Complaint 2: AB incorrectly listed the builder as the owner of the home in the Form 21.
    3. Complaint 3 & 4: These complaints are interrelated. The gravamen of the complaints is that AB issued the Form 21 despite the work not complying with the approval, due to the builder substituting brick with Hebel panels.
    4. Complaint 5: The house does not comply with estate covenants that require the house to be constructed with brick rather than Hebel. 
  2. [8]
    On 26 October 2021, Mr John Robert Cooper, who was a Principal Certification Officer at the QBCC, decided that AB had not engaged in ‘unsatisfactory conduct’ or ‘professional misconduct’ as defined in schedule 2 of the Act (‘decision’).
  3. [9]
    On 18 November 2021, the applicant made a timely application to the Tribunal to review the QBCC’s decision.
  4. [10]
    There is no contest about whether the applicants’ complaint was properly made[1] or that AB undertook building and private certifying functions.[2] Therefore, the primary issue the Tribunal must decide in this review is whether AB engaged in ‘unsatisfactory conduct’ or professional misconduct’ whilst performing certification functions. 

A ‘tale’ of two experts

  1. [11]
    The review proceeded to an oral hearing on 23 October 2023 but was further adjourned to 25 March 2024 so a Cantonese interpreter could appear in person.
  2. [12]
    The QBCC called Mr Cooper as their expert witness. Presently Mr Cooper is Acting Manager of the Technical Standards Unit at the QBCC. He has also held the position of Acting Manager of the Certification Unit. Mr Cooper has an active licence with the QBCC in the class of Building Certifier Level 2. Additionally, he holds an active contractor’s license with the QBCC in the class of Builder – Low Rise.
  3. [13]
    The applicants called as their expert witness a retired certifier named Arthur Leung. They purport to rely on Mr Leung’s firsthand observations during the construction of the house. They also purport to rely on his expertise as a former builder and certifier to advance the proposition that AB’s conduct was unsatisfactory, or alternatively that it amounted to professional misconduct.
  4. [14]
    Initially, the QBCC challenged Mr Leung’s competency to give expert evidence due to a large volume of complaints made against him. Mr Leung was a private certifier from 2007 to 2020. During that time, he had 19 certification complaints. He previously held a building licence which the QBCC cancelled in October 2021 after Mr Leung stopped paying his fees.
  5. [15]
    At the conclusion of the hearing the QBCC withdrew their objection.

The Law

  1. [16]
    The following legislation was in force at the time AB performed his certification functions:[3]
    1. Building Act 1975 (Qld) (‘Building Act’), current as at 9 December 2019; and
    2. Building Regulation 2006 (Qld) (‘Regulation’), current as at 18 October 2019.[4]
  2. [17]
    Section 10 of the Building Act provides that a ‘building certifying function’ is doing any of the following:
    1. carrying out building assessment work, other than a part of building assessment work that, under s 46, a referral agency may carry out.
    2. the giving of a certificate (a compliance certificate) in the approved form that, other than for aspects of the building assessment work that under s 46 must be assessed by a referral agency, states building work complies with the building assessment provisions.
    3. for a building development approval – inspecting the building work to decide whether to certify the work.
    4. for building work for a single detached class 1a building or a class 10 building or structure, the giving of:
      1. a certificate in the approved form for the stage of the building work that is after excavation of foundation material and before the footings for the building are laid; and
      2. a certificate (a final inspection certificate) in the approved form for the final stage of the building work.
    5. The giving of a certificate of classification for a building or structure of another class.
  3. [18]
    Upon receiving a notice of inspection, the certifier must ensure that stage is inspected by either themselves or another building certifier,[5] or a competent person (inspections) whom the certifier as decided may carry out the inspection, unless precluded by s 21 of the Regulation.[6] 
  4. [19]
    Concerning inspection procedure, the inspecting person must inspect the work to ensure the person is satisfied all relevant aspects of the stage under the building development approval have been completed and comply with the approval.[7] The inspecting person may accept an aspect inspection certificate, for an aspect of the stage, instead of inspecting the work.[8] However, for a single detached class 1a building, the inspecting person must not accept aspect inspection certificates for all aspects of the final stage.[9]
  5. [20]
    A certificate of inspection means a certificate under s 32 that states a stage of assessable building work complies with the building development approval.[10]
  6. [21]
    Further functions of a private certifier (class A) are set out at s 48 of the Building Act. They are:
    1. receive and assess a building development application; and
    2. decide the building development application, and give a decision notice; and
    3. decide whether enforcement action under the Building Act or the Planning Act ought to be taken for a building development approval granted by –
      1. the private certifier (class A); or
      2. another private certifier (class A) employed by the same private certifier when the decision to take the enforcement action is made.
  7. [22]
    The Building Act defines the term ‘certify’, for building work, to mean certifying under the Act, that the work complies with the building development approval’.

Complaint Item 1

  1. [23]
    The applicants’ first complaint alleges that capping flashing over the garage parapet wall either did not exist or was not in place when AB issued his Form 21 on 14 October 2020.
  2. [24]
    At the hearing Mr Leung said that he provided the applicants with advice and assistance during the construction of their house because they were overseas. Mr Leung attended the property on 28 November 2020 and 14 December 2020. He took the photograph below, which purports to show the absence of capping.[11]

Hau v Queensland Building and Construction Commission [2024] QCAT 473

Photo 1

  1. [25]
    The QBCC submits that the absence of capping is explained by an email that Shuan Neville, who is a Construction Manager for the builder, sent AB on 9 June 2021. In it, Mr Neville states that at an internal quality assurance inspection in early October, the builder noted that the “garage parapet was damaged during scaffolding removal”. Consequently, on 9 November 2020, the builder removed the flashing for replacement but folded the new flashing incorrectly which prevented it from being installed on the day. The builder subsequently installed the correct parapet flashing on 23 November 2020. Below, is a photograph of the capping in situ, which Mr Leung took.[12]

Hau v Queensland Building and Construction Commission [2024] QCAT 473

Photo 2

  1. [26]
    Mr Leung claim that he took photo 1 on 28 November 2020. There is no date stamp on his photo. Mr Leung concedes that he was not present when AB inspected the house on 14 October 2020. Nevertheless, he posits that the capping was not present on that day because:
    1. the builders would not have erected the scaffolding higher than the parapet wall, therefore it could not have damaged the capping during removal; and
    2. he could not see any fixing holes near the top of the wall in the photograph he took on 28 November 2020.
  2. [27]
    The QBCC submits that Mr Leung’s claims are not supported by clear or tangible evidence, and they are simply statements of opinion. I agree. Mr Leung’s assumptions about absence of capping on 14 October 2020 are speculative. He was not present when AB inspected the property. Mr Neville provides a plausible explanation about why the capping is missing. Accordingly, I find that the capping was present when AB inspected the house.
  3. [28]
    In any case, I consider that the applicants’ complaint about the capping is de minimis. Even if AB failed to notice the missing capping at the time of inspection, I do not consider such an error would amount to ‘unsatisfactory conduct’ or ‘professional misconduct’ as defined Schedule 2 of the Act. The law does not concern itself with trifles and neither should this Tribunal.

Complaint Item 2

  1. [29]
    In Complaint Item 2, the applicants aver that AB incorrectly listed the Builder as the owner in the Form 21. In a response to that complaint, AB explained to the QBCC that the development application the builder gave him incorrectly named Brookhaven Homes as the homeowner. AB relied on that information when preparing the Form 21. When AB became aware of the builder’s error, he provided the Brisbane City Council with amended documents stating the correct owner of the house.
  2. [30]
    I do not consider that AB is at fault for putting the builder’s name in the Form 21. He was simply relying on information provided to him by the builder. AB took steps to correct the error as soon as it was brought to his attention. I do not consider his conduct amounts to ‘unsatisfactory conduct’ or ‘professional misconduct’. Further, I also consider the complaint is de minimis.

Complaint 3 & 4

  1. [31]
    The gravamen of these two complaints is that AB issued the Form 21 despite the work not complying with the approval, due to the builder substituting brick with Hebel panels.[13]
  2. [32]
    Section 31(2) of the Regulation provides that the inspecting person (in this case AB) must inspect the work to ensure the person is satisfied all relevant aspects of the stage under the building development approval have been completed and comply with the approval.
  3. [33]
    The QBCC concedes that, insofar as the house was constructed with Hebel rather than brick, it did not comply with the approval (‘builder’s noncompliance’). Nevertheless, QBCC contends that ‘due to the visual similarities between rendered brick and rendered Hebel, it would not have been possible for AB to identify which construction material the builder used’. The QBCC relies on the following evidence of Mr Cooper at the hearing to support that proposition:
    1. he described the difference between Hebel and brick as follows: “Hebel is an aerated concrete product put together in a different yet similar matter to brickwork. It becomes a veneer to the front of the house and is also connected to the house frame”.
    2. it would be very difficult to visually differentiate between Hebel and painted and rendered brickwork.
    3. brickwork and Hebel both have mortar joints.
    4. brick will generally have a larger mortar joint of around 10 millimetres. Hebel appears “almost like it’s glued together”.
    5. both Hebel and brick have damp-proof courses, which is a membrane usually around 300 millimetres wide that is laid at the bottom of the wall.
    6. neither the mortar joins, or damp-proof course are visible when render is applied to either brick or Hebel.
    7. there are no visual differences between Hebel and bricks once render is applied. An invasive search would be required to ascertain which material was used during construction.
  4. [34]
    The QBCC, through Mr Cooper, tendered two photographs of rendered brick walls. (exhibits 2 and 3 respectively). Each wall has windows. The wall in exhibit 2 has three windows, none of which have a windowsill. There is a single window in exhibit 3. It has no windowsill. The QBCC purports to rely on exhibits 2 and 3 to support its contention that windowsills on a brick wall are merely an architectural feature and do not definitively indicate the wall is constructed from brick.
  5. [35]
    Through Mr Cooper, the QBCC also tendered a photograph of a rendered brick wall.[14] There are no weepholes, damp-proof course, or vertical joints evident in the photograph of the wall.
  6. [36]
    The QBCC also submitted that the installation of rendered Hebel in lieu of brick veneer is a contractual matter between the applicants and the builder which did not involve AB.

Mr Leung’s evidence about the builder’s non-compliance

  1. [37]
    At the hearing, Mr Leung contended that Hebel walls have unique visible features which ought to have alerted AB to the builder’s noncompliance, namely:
    1. the absence of damp proof courses and flashing.
    2. the absence of mortar joints.
    3. a Hebel wall is only 75 millimetres wide, whereas a brick wall is 110 millimetres wide. 
    4. Hebel, unlike brick, requires no articulation joints. Articulation joints, which are 10ml wide, are easily distinguishable from Hebel joints, which are only two to three millimetres wide. There are no articulation joints evident in the photograph of the applicants’ Hebel wall located at p 139 of the Hearing Book.
    5. Hebel walls are typically constructed without windowsills, as was the case at the applicants’ house.
  2. [38]
    Under cross examination, however, Mr Leung conceded that once rendered, it is difficult to tell from photos alone whether a wall is constructed from Hebel or brick. He said it would be necessary to be onsite to take measurements and physically tap the walls to conclusively ascertain their composition.
  3. [39]
    Mr Leung also conceded that there was no document before the Tribunal that would have alerted AB to the builder’s use of Hebel. However, he maintained that its use in the construction of the house ought to have been apparent if AB physically inspected the wall.

The ‘Slab’

  1. [40]
    Mr Leung further contended that AB was required to examine the work when the house foundation was excavated and before its footings were laid. Had he done so, Mr Leung submitted that the absence of a sizable step down to the edge beam of the slab should have alerted AB to the builder’s intended use of Hebel. Although the builder would not have yet poured any concrete at the time AB was required to inspect the slab, the wooden formwork would have revealed that the slab was designed for Hebel not brick.
  2. [41]
    Mr Leung directed the Tribunal to the ‘Waffle Slab Typical Details – Sheet 1, of the Approved Plans,[15] which contained an illustration of the slab in its upper left corner. He contended that the illustration depicts a 300-millimetre-thick edge beam (marked EB1) which is designed to support brick veneer. Further, he pointed out a gap between the proposed brick wall and the external timber framing was evident in EB1.
  3. [42]
    Mr Leung referred the Tribunal to photographs of the slab the builder took at the time it was laid (‘slab photographs’).[16] He submitted that the photographs clearly show the absence of an edge beam, or a sizable step down. Mr Leung said that in a house constructed with brick there is typically a 15-millimetre cavity adjacent to the outside frame followed by 110 millimetres. He pointed out that no such cavity is evident in in the slab photographs. Whilst Mr Leung conceded that he did not personally measure the slab, he said that it is obvious from the proportions of the slab in the photographs that it was not designed to support a brick wall.
  4. [43]
    Additionally, Mr Leung disputed the QBCC’s contention that AB could rely on the Form 16 Inspection Certificate prepared by Mr Adrian Wong (‘engineer’s certificate’) to satisfy himself that the slab conformed with relevant building codes and the approval. He submitted that a certifier is entitled to rely on the Engineer’s certificate only in respect of the structural components of the footing and slab, such as examining and confirming the correct placement of waffle pods and reinforcement material. Mr Leung said the certifier “can’t get away with not personally sighting the footing and slab”. When cross examined about this point, Mr Leung maintained that it was necessary for the certifier to visit the worksite and inspect the wooden formwork prior to the builder pouring the slab.
  5. [44]
    The QBCC did not challenge Mr Leung’s contention that the absence of an edge beam, and step-down distances, ought to have alerted the person inspecting the slab about the builder’s intended use of Hebel. Instead, it submitted that AB was entitled to rely on the Engineer’s certificate for the excavation stage of the build.

Issues to be determined for Complaint 3 and 4

  1. [45]
    In my mind, the issues to be determined in respect of complaint 3 and 4 are:
    1. what stages of the building work was AB required to personally inspect?
    2. if AB did not personally inspect the excavation and footing stage of the build, could he rely on Mr Wong’s Engineer’s certificate to satisfy himself that the work complied with the building approval?
    3. if AB was not entitled to rely on the Engineer’s certificate, did his failure to personally inspect the slab amount to unsatisfactory conduct or professional misconduct?

What stages of the building work was AB required to personally inspect?

  1. [46]
    To resolve the above issues, it is apposite to consider what stages of building work are prescribed by Regulation and under the building development approval. Generally, the stages of assessable building work are all stages at which the building development approval states the work must be inspected.[17]
  2. [47]
    In this case, the building development approval mandated inspections at the following stages:[18]
    1. Footing – excavation of foundation material and before footings are laid.
    2. Slab – after placement of formwork and steel for slab and before concrete is poured.
    3. Final – at completion of all aspects of building work.
  3. [48]
    Notably, the development approval only required the final stage to be inspected by a private certifier. All other stages were permitted to be inspected by a competent person, including those related to the footing and slab.
  4. [49]
    In addition to the stages set out in the development approval, s 24(3) of the Regulation provides that, for the construction of a single detached class 1a building, the stages of assessable building work inter alia include:
    1. after excavation of the foundation material and before the footing for the building are laid (‘excavation stage’); and
    2. if the building is to have a slab after the placement of formwork and steel for the slab but before the concrete for the slab is poured (‘slab stage’); and
    3. to the extent the bracing for the frame of the building consists of cladding or linking – after the cladding or lining has been fixed to the frame; and
    4. to the extent the bracing for the frame of the building does not consist of cladding or lining – before the cladding or lining is fixed to the frame; and
    5. if reinforced masonry construction is used for the frame of the building – before the wall cavities are filled; and
    6. at the completion of all aspects of the work
  5. [50]
    The default position under the Regulation is that AB was required to personally inspect the work to satisfy himself that all relevant aspects of the stage under the building approval were completed and complied with the approval.[19] However, s 31(4) of the Regulation permitted AB to accept an aspect inspection certificate, for an aspect of the stage, instead of personally inspecting the work.[20]
  6. [51]
    It would appear AB did not personally inspect the work at either the excavation or slab stage of the build. Instead, he relied on the Mr Wong’s Engineer’s certificate, which is an inspection aspect certificate under s 31(3) of the Regulation. In the engineer’s certificate, Mr Wong uses the words ‘Waffle Slab/footing’ to describe the extent of the work the certificate covers. That description does not neatly align with the stages of work prescribed by the Regulation or the stages stated in the approval, because it fails to specify whether Mr Wong’s inspection relates to the excavation stage or the slab stage of the build.
  7. [52]
    The distinction between those two stages is important because, pursuant to s 21(2) of the Regulation, unless a competent person is a building certifier, the person cannot sign a certificate of inspection for:
    1. the stage of work that is after excavation of foundation material and before footings for the building or structure are laid;[21] or
    2. the final stage of the work.[22]
  8. [53]
    The work that Mr Wong’s Engineer’s certificate purports to cover is broadly stated. In my opinion the words “Waffle Slab/footing” that Mr Wong used to describe the work that the certificate purports to cover causes me to conclude he intended the certificate to encompass all aspects of the construction of the slab, namely:
    1. the excavation of the foundation of the building material before the footings of the house were laid; and
    2. the placement of formwork and steel before the concrete slab is poured.
  9. [54]
    Under s 21(2) of the Regulation, only a building certifier was entitled to sign the engineer’s certificate. Section 8(1) of the Building Act defines a building certifier to mean an individual who, under Chapter 6, Part 3 is licensed as a building certifier.
  10. [55]
    Mr Wong’s name does not appear when a building certifier search is conducted on the QBCC website. An examination of the Cardinal Engineering website indicates that the business is a structural engineering consultancy that Mr Wong founded.[23] There is nothing in the content of the website which indicates that Mr Wong is a licensed certifier. I therefore conclude that Mr Wong is not a certifier, and he was not entitled to issue the Form 16 inspection certificate for the slab. Corollary to that finding, AB was not entitled to rely on Mr Wong’s certificate. I find that AB was required to personally inspect the excavation stage of build.
  11. [56]
    It is significant that the department did not call expert evidence to counter Mr Leung’s contention that visual inspection of the formwork at the excavation stage of the build would have revealed the builder’s noncompliance. In the absence of expert evidence to the contrary, I accept Mr Leung’s evidence about that issue. Accordingly, I find that if AB personally inspected the work at the excavation stage, as he was required to do pursuant to s 31(2) of the Regulation, the builder’s noncompliance would have been revealed in the early stages of the build.
  12. [57]
    QBCC complains that it did not have the opportunity to put Mr Leung’s formwork contentions to its expert. That is because Mr Cooper gave his evidence to the Tribunal before Mr Leung. I am satisfied that QBCC had adequate notice and opportunity to lead expert evidence about the issue. Mr Leung’s contentions are set out in detail in the applicants’ material. It was open to QBCC to lead evidence about those contentions from Mr Cooper during his evidence in chief. Further, it was open to QBCC to recall Mr Cooper for the purpose of rebutting Mr Leung’s evidence. That did not occur. QBCC ought to be bound to the forensic decisions it made at the hearing.
  13. [58]
    A curious aspect of the engineering certificate is that it refers to Architectural Review Committee Approved Plans which bear the job number BH032, rather than the plans AB approved, which were numbered BH034. The BH032 plans were signed by the Chairperson of the Body Corporate for Rochedale Estate on 24 February 2020. Accordingly, I will refer to them as the ‘Body Corporate Plans’.
  14. [59]
    The Body Corporate Plans, at page 11, depict the frontal aspect of the house and contain the typewritten note “render brick to entire house unless otherwise noted”. BH034 also has the same notation on page 11. Curiously however, the Body Corporate Plans contain a handwritten note that states ‘RENDER HEBEL’. It could be inferred that this note on the Body Corporate Plans might account for why Mr Wong failed to identify that the slab did not conform with the approval when he issued his certificate. I infer that the handwritten note on the Body Corporate Plans caused Mr Wong conclude that they had been varied to permit the use of Hebel. In any case, it is a failing on AB’s part that he did not identify that Mr Wong referred to the wrong plans in his certificate.

Complaint 5

  1. [60]
    The applicants contend that the house does not comply with estate covenants prohibiting the use of Hebel as a construction material. I agree with the QBCC’s submission that the estate covenants imposed by the developer do not fall within the scope of the assessment provisions contained in the Building Act or the Regulation and as such, do not form part of the certification functions for assessment of the building work. I can appreciate that the applicants are aggrieved that the use of Hebel in the construction of the house was caused in part by AB’s failure to examine the slab at the excavation stage. However, there is no provision in the Act or the Regulation which requires certifiers to ensure the work conforms with covenant approvals. Accordingly, that is not a matter I am permitted to consider when determining whether AB engaged in unsatisfactory conduct or professional misconduct.

Did AB’s conduct amount to unsatisfactory conduct or professional misconduct?

  1. [61]
    Pursuant to s 204 of the Building Act, upon receiving a complaint, the QBCC must decide whether a building certifier has engaged in unsatisfactory conduct or professional misconduct. On review, this Tribunal steps into the shoes of the decision maker and must therefore do the same. The standard of proof the Tribunal must apply is that set out in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
  2. [62]
    Unsatisfactory conduct, for a building certifier, is defined in Schedule 2 of the Building Act to include the following:
    1. conduct that shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building or private certifying functions;
    2. 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. disregarding relevant and appropriate matters; and
      2. acting outside the scope of the building certifier’s powers; and
      3. acting beyond the scope of the building certifier’s competence; and
      4. contravening the code of conduct;
    3. 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.
  3. [63]
    Professional misconduct, for a building certifier includes:
    1. conduct that-
      1. shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building or private certifying functions; and
      2. 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
      3. is contrary to a function under the Act or another Act regulating building certifiers (including private certifiers for building work), including, for example-
        1. A.disregarding relevant and appropriate matters; and
        2. B.acting outside the scope of the building certifier’s powers; and
        3. C.acting beyond the scope of the building certifier’s competence; and
        4. D.contravening the code of conduct; and
        5. E.falsely claiming the building certifier has the qualifications necessary experience or licence to be engaged as a building certifier;
    2. 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. the Act; or
      2. another Act regulating building certifiers, including private certifiers for building work;
    3. failing to comply with an order of the QBCC or the Tribunal;
    4. fraudulent or dishonest behaviour in performing building certifying functions;
    5. other improper or unethical conduct;
    6. repeated unsatisfactory conduct.
  4. [64]
    The Code of conduct for building certifiers (Effective 1 October 2020) (‘Code’), sets out standards of conduct and professionalism expected from building certifiers when performing building certifying functions. A breach of the Code may constitute unsatisfactory conduct or professional misconduct under the Building Act. One of the purposes of the Code is to provide regulatory and professional bodies with a basis for making decisions about the standards of conduct and professionalism expected from building certifiers.
  5. [65]
    The relevant Standards of conduct and professionalism in the Code require that a certifier must:
    1. perform building certifying functions in the public interest, which includes, where appropriate, taking suitable enforcement action as an enforcement authority in respect of building work that does not comply with legislative requirements.
    2. comply with the legislative requirements that regulate or govern building certifiers in the performance of building certifying functions.
    3. take all reasonable steps to obtain all relevant facts when performing building certifying functions.
    4. must ensure sufficient inspections are carried out during the construction of building work to ensure the work complies with the Building Act and the development permit for the work.

Findings

  1. [66]
    I find that AB committed a single count of unsatisfactory conduct. The particulars of the unsatisfactory conduct are:
    1. he failed to personally inspect the work at the excavation stage, or ensure that it was inspected by another certifier, contrary to s 21(2) and s 31(2) of the Regulation.
    2. consequent to the above failure, AB did not identify that the work did not comply with his approval, because the builder substituted brick with Hebel.
    3. he failed to identify that Mr Wong considered BH032 rather than BH034 when preparing the engineer’s certificate.
  2. [67]
    The conduct above is interconnected and exists on a continuum. Accordingly, due to the contiguous nature of AB’s failings, I consider it appropriate to categorise his conduct as a single count of unsatisfactory conduct rather than three discrete counts.
  3. [68]
    AB’s conduct was unsatisfactory because: 
    1. it evinces a lack of diligence and care in performing certifying functions.
    2. it is contrary to a function of the Building Act, because:
      1. he failed to inspect the work at the excavation stage which is a function that certifiers are required to perform under s 10(c) of the Building Act.
      2. he disregarded relevant and appropriate matters by failing to identify that the slab was unsuitable for brick.
      3. he contravened the Code of Conduct as follows:
        1. A.he did not perform building certifying functions in the public interest because he did not take enforcement against the builder in circumstances where it was appropriate to do so.
        2. B.he did not comply with legislative requirements that regulate or govern building certifiers in the performance of their building certifying functions, namely s 21(2) and 31(2) and of the Regulation, which required him to personally inspect the work at excavation stage or ensure that it was inspected by another certifier.
        3. C.he did not take all reasonable steps to obtain all relevant facts when performing building certifying functions.
        4. D.he did not ensure (sufficient) inspections were carried out during the construction of the building work to ensure the work complied with the development permit for the work.
    3. it falls below that standard that might reasonably be expected of a building certifier by the public or the certifier’s professional peers.
  4. [69]
    Like any other professional endeavour, the performance of certification functions is not a counsel of perfection. Certifiers are only human; they are not machines. Humans are fallible. Humans make mistakes. To err is an intrinsic and unavoidable component of the human condition. To expect otherwise holds certifiers to an impossible and frankly unreasonable standard. Therefore, not every mistake amounts to unsatisfactory conduct. Not every error warrants sanction. In this case however, AB’s mistake was significant, and its unfortunate consequence was that the builder constructed the applicants’ house with materials that were not of their choosing. In my view that is plainly unsatisfactory.

Did AB’s conduct amount to professional misconduct?

  1. [70]
    The applicants do not contend that AB compromised the health or safety of a person, or that he has accepted any inducement, acted dishonestly, committed fraud, or failed to comply with an order of the QBCC or the Tribunal. Nor does the evidence indicate, as I have found above, that he committed repeated acts of unsatisfactory conduct. Therefore, I do not consider that it can be reasonably contended that AB’s conduct amounts to professional misconduct.

Sanction

  1. [71]
    Section 204(4) provides that, if QBCC decides the building certifier has engaged in unsatisfactory conduct, QBCC must decide to do one or more of the following:
    1. reprimand the building certifier.
    2. impose the conditions it considers appropriate on the building certifier’s licence.
    3. direct the building certifier to complete to the satisfaction of the QBCC the educational courses stated by the QBCC.
    4. 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 the QBCC.
    5. require the building certifier to take all necessary steps to ensure the certification of building work:
      1. complies with the Act; or
      2. for other assessable development related to the building work – is not inconsistent with all other necessary development approvals that apply to the work; or
      3. 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.
    6. 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.
    7. 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.
  2. [72]
    In a proceeding for the review of a reviewable decision, the Tribunal stands in the shoes of the decision maker and is asked to exercise the decision maker’s powers and discretions.[24] The Tribunal may:
    1. confirm or amend the decision; or
    2. set aside the decision and substitute its own decision; or
    3. set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  3. [73]
    I consider the appropriate way forward in this review is to set aside QBCC’s decision that AB did not commit unsatisfactory conduct and remit the matter back to the QBCC to decide appropriate sanction pursuant to s 204(4) of the Building Act.
  4. [74]
    My reasons for taking that approach are twofold:
    1. first, it affords AB a measure of natural justice by providing him with the opportunity to make submissions in respect of sanction; and
    2. second, the QBCC is better placed than the Tribunal to make enquiries about AB’s history as a certifier, and the educational opportunities available to him, which are matters that will invariably inform how QBCC decides to proceed under s 204(4) of the Act.

Application of the Human Rights Act 2019 (Qld)

  1. [75]
    The Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’) when reviewing the decisions of a ‘public entity’.[25] QBCC is a public entity. Section 58 of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights[26] or in making a decision, to fail to give proper consideration to a human right relevant to the decision.[27] A decision is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonably justifiable in accordance with s 13 of the HR Act.
  2. [76]
    I have considered whether any of the findings I have made limits the human rights of any person. In my view they do not.

Other matters

  1. [77]
    On 9 May 2024 and 16 May 2024, the applicants filed in the Tribunal several Applications for miscellaneous matters, seeking:
    1. the disclosure of various documents; and 
    2. that certain evidence led by QBCC at the hearing be removed from the record.
  2. [78]
    Those applications articulate no proper basis for the orders sought. Additionally, the applications ought to have been brought prior to the final hearing. I consider that permitting the applicants to bring further applications at this late stage of the proceeding impermissibly prejudices the QBCC and is antithetical to this Tribunal’s mandate to deal with matters in a way that is fair, economical, and quick.[28] Accordingly, I dismiss the applications.

Footnotes

[1] See the requirements for a complaint set out at s 190 of the Building Act 1975 (Qld) (‘Building Act’).

[2] Pursuant to ss 7, 10, 47 and 48 of the Building Act.

[3] When he approved the development application on 4 March 2020.

[4] Now superseded by the Building Regulation 2021 (Qld).

[5] Regulation, s 30(2)(a).

[6] Ibid, s 30(2)(b).

[7] Ibid, s 31(2).

[8] Ibid, s 31(3).

[9] Ibid, s 31(4).

[10] Regulation, Schedule 4 Dictionary.

[11] Hearing Book, Part B, p 30.

[12] Ibid, p 31.

[13] Development Application, Part 5, Item 16(e) and Part 7.

[14] Exhibit 2.

[15] Hearing Book, Part C, p 72.

[16] Hearing Book, Part C, p 293.

[17] Regulation, s 24(2).

[18] Hearing Book, Part C, p 28.

[19] Regulation, s 31(2).

[20] Ibid, s 31(3).

[21] Regulation, s 21(2)(a).

[22] Ibid, s 21(2)(b).

[23] Cardinal Engineering, About Us (web page, online at 22 Oct 2024) <https://cardinaleng.com.au/about-us/about-cardinal-engineering/>.

[24] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 [12].

[25] PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188; Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646, [291]; PJB v Melbourne Health [2011] VSC 327.

[26] HR Act, s 58(1)(a).

[27] Ibid, s 58(1)(b).

[28] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

Close

Editorial Notes

  • Published Case Name:

    Hau v Queensland Building and Construction Commission

  • Shortened Case Name:

    Hau v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 473

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    21 Oct 2024

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw & Anor (1938) CLR 336
1 citation
Jump To
Cite 1 - (1938) CLR 336
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Kracke v Mental Health Review Board & Ors [2009] VCAT 646
2 citations
Jump To
Cite 1 - [2009] VCAT 646
Cite 2 - [2009] VCAT 646
PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188
2 citations
Jump To
Cite 1 - [2020] QCAT 188
Cite 2 - [2020] QCAT 188
PJB v Melbourne Health and Anor (Patrick's case') [2011] VSC 327
1 citation
Jump To
Cite 1 - [2011] VSC 327

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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