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Marigliano v Queensland Building and Construction Commission & Anor[2025] QCAT 57

Marigliano v Queensland Building and Construction Commission & Anor[2025] QCAT 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Marigliano v Queensland Building and Construction Commission & Anor [2025] QCAT  57

PARTIES:

Joseph David Marigliano

(applicant)

v

queensland building and construction commission

(first respondent)

kelly-marie brearley

(second respondent)

APPLICATION NO:

OCR091-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 February 2025

HEARING DATE:

2 and 3 September 2024

HEARD AT:

Cairns

DECISION OF:

Judicial Member JR McNamara

ORDERS:

The Internal Review Decision of the Queensland Building and Construction Commission is affirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER OCCUPATIONS – pool safety inspector – where a licensed pool safety inspector issued a pool safety certificate – where the Queensland Building and Construction Commission found that the pool safety inspector had incorrectly issued the pool safety certificate – where an internal review of the Queensland Building and Construction Commission decision was affirmed – whether the internal review decision should be affirmed – whether the sanction imposed by the Queensland Building and Construction Commission should be affirmed

Building Act 1975

Queensland Building and Construction Commission Act 1991

Queensland Civil and Administrative Tribunal Act 2009

Drew v Queensland Building and Construction Commission [2015] QCAT 11

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

Neller v Queensland Building and Construction Commission [2016] QCAT 353

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

L Davey, Queensland Building and Construction Commission (In-house legal)

Second Respondent

Self-represented

REASONS FOR DECISION

  1. [1]
    On 2 and 3 September 2024 a hearing was held in Cairns to review a decision of the Queensland Building and Construction Commission (QBCC) under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).  This matter concerns a pool fence. 
  2. [2]
    While the purpose of the hearing was the appeal of a QBCC internal review decision pursuant to s 246CY(1) of the Building Act 1975 (Building Act) and in accordance with s 86(2) of the Queensland Building and Construction Commission Act 1991 (QBCC Act) – the applicant Mr Marigliano’s focus was often directed towards the business and culture of the QBCC. 
  3. [3]
    Mr Marigliano was clearly and demonstrably frustrated with what he considered was ‘the run around’ from various people at various times in various organisations; a lack of appreciation by those same people of the relevance and importance of the issues he was raising; and the inadequate, defensive, and obtuse responses to his reasonable requests for information and attention. 
  4. [4]
    He expressed the view that despite adverse findings against the Pool Safety Inspector (PSI), the internal review was protecting or covering up a corrupt culture.  He expressed the view that his experience with the QBCC highlighted that corrupt culture.  He said that his greatest concern is the safety of children which is at risk due to this culture which allows incompetence and obsolescent behaviour to flourish.  
  5. [5]
    He expressed the view that the treatment of various preliminary issues and applications by the Tribunal leading to the hearing also demonstrates behaviour directed to ‘shut him down’.  These included a challenge to Mr Marigliano’s standing to bring the application, and his application to have a particular Member recused from hearing the matter.  It was properly decided ahead of the hearing that Mr Marigliano did have standing to bring the application. The recusal application was dismissed and is of no consequence. A pre-hearing application by Mr Marigliano to call certain witnesses was mostly dismissed – but was revived and discussed in the hearing.
  6. [6]
    There were over 7000 pages of documentation before the Tribunal.

Background

  1. [7]
    Mr Marigliano purchased the property where the subject pool is located on 1 May 2020. Ms Brearley, a PSI employed by Snappy Pool Inspections, had inspected the property twice in the lead up to the sale. Following the first inspection on 28 February 2020, she issued a nonconformity notice which identified some matters of concern regarding the pool fence. She visited the property again on 4 March 2020 for a re-inspection, at which time she was satisfied the matters of concern had been addressed and a compliant pool safety certificate (PSC) was issued.
  2. [8]
    On 12 May 2020, Mr Marigliano complained to the QBCC that on 4 March 2020 the second respondent, Ms Brearley had incorrectly issued a PSC.
  3. [9]
    Mr Marigliano’s complaint triggered an investigation by the QBCC. QBCC Senior Investigator Susan Crozier decided on 20 January 2021 (Crozier decision) that the 4 March 2020 PSC had been improperly given; that grounds had been established for disciplinary action against Ms Brearley; and that a fine of $400 be issued.  
  4. [10]
    Despite the finding that the PSC had been improperly issued, Mr Marigliano applied for an internal review of the Crozier decision.  The internal review was completed by Mr Ryan Peters of the Internal Review Unit (IRU decision) who on 15 March 2021 upheld the Crozier decision.
  5. [11]
    Mr Marigliano then applied to the Queensland Civil and Administrative Tribunal (QCAT) on 7 April 2021 to review the IRU decision.  On 24 October 2023, QCAT directed that Ms Brearley be joined as a respondent.

The nature of the proceeding

  1. [12]
    This is a review of a decision of the QBCC under s 20 of the QCAT Act. It is not an adversarial proceeding; it is not an inquisition. Adapting the observations of then Deputy President Kingham in Kehl v Board of Engineers of Queensland [2010] QCATA 58 at [12]: 

… QCAT stands in the shoes of (in that case the Board of Engineers, here the QBCC) and is asked to exercise the (QBCC) powers and discretions. There is no presumption that the (QBCC) decision was correct and (Mr Marigliano) need not demonstrate any error in the (QBCC) process for making the decision or the reasons it gave for doing so. QCAT does not have to find a legal or factual error in order to make a different decision. It is enough for QCAT to conclude that another decision is the correct or preferable decision.

  1. [13]
    In the course of the hearing, I asked Mr Marigliano on a number of occasions, during and following the evidence, what he considered should be the correct and preferable decision.  He answered that he did not know and he had not considered that question.[1]  At different times Mr Marigliano said that he did not wish for Ms Brearley, who had been disciplined and fined $400, to be punished further.

Witnesses

The applicant

  1. [14]
    Prior to the hearing an application was made by Mr Marigliano to call a number of witnesses.  The application was heard and determined by Member Oliver. When the application came before Member Oliver, and at the hearing before me, Mr Marigliano was asked if he had spoken with the proposed witnesses, whether he had statements from the proposed witnesses, and (if not) whether he knew what the witnesses might say in evidence.  Mr Marigliano said that he did not expect any of the witnesses would wish to give evidence, nor could he state with certainty what the witnesses might say. However, Mr Marigliano thought that the Cairns Regional Council (CRC) officers he had nominated as witnesses would share his view about the condition of the pool fence. 
  2. [15]
    The condition of the fence in March 2020 (the date relevant to the IRU decision) was clear from the photographic evidence.  The condition of the fence in and around May 2020 (when CRC officers attended the property) was also clear from the extensive photographic evidence.  After attempting to gain a better understanding of the evidence the proposed witnesses might offer, I formed the view that only one of the proposed Council witnesses, Mr Nesbit, the senior officer attending the property, might have been of some assistance in the hearing.
  3. [16]
    There was relevant correspondence from Mr Nesbit included in the hearing material before the Tribunal.  That correspondence was provided by either Mr Marigliano directly or obtained by him through a right to information application, or was correspondence with and between Mr Nesbit and the QBCC. 
  4. [17]
    Having heard from Mr Marigliano I was satisfied that there was sufficient material in evidence from Mr Nesbit in the form of email and other correspondence which made clear to me what his involvement was, and what his view was about certain issues to do with the pool fence relevant to the IRU decision.
  5. [18]
    I was satisfied that if Mr Nesbit was called, his evidence would be consistent with the views he expressed in correspondence.  The respondents did not require him for cross examination.
  6. [19]
    The other proposed witnesses were other Council employees who attended the property with Mr Nesbit.  I formed the view that they would not have further assisted the Tribunal. 
  7. [20]
    The other witnesses Mr Marigliano sought to call were allowed.  They were Mr Mays, a technical support employee at D&D Technologies, who gave evidence in relation to a technical aspect of the pool gate closing mechanism.  He participated by telephone.  His evidence was helpful.  The other, Ms Cieri, a friend of Mr Marigliano who was present during a conversation with the second respondent around 11 May 2020, was also helpful. 

The QBCC

  1. [21]
    The written submissions provided by QBCC on the eve of the hearing set out what the QBCC accept and agree about the facts and circumstances leading up to the review decision and the outcome of the review decision – that is the acknowledgement that the PSC was incorrectly issued on 4 March 2020, that disciplinary action was taken, and that the decision and the penalty was not challenged by Ms Brearley. 
  2. [22]
    The QBCC called only Ms Crozier to give evidence concerning the review she conducted. Ms Brearley did not give sworn evidence and participated in the hearing only to a limited degree.
  3. [23]
    The legal representative for the QBCC was asked why Mr Peters (the officer who made the IRU decision) was not called to give evidence.  The Tribunal was told that Mr Peters did not hold the technical expertise in relation to pool fence safety, and that Ms Crozier could better assist the Tribunal. 
  4. [24]
    I appreciate that Ms Crozier, an experienced QBCC officer and a former carpenter, was well placed to assist the Tribunal on technical and procedural aspects. However, as the investigator and author of the decision under review, Mr Peters should have been available for cross examination. The calling of Mr Peters would not have prevented the QBCC from also calling Ms Crozier.  Having considered whether the omission adversely affected Mr Marigliano’s conduct of the appeal, I came to the view that any perceived unfairness was mitigated by the fact that the IRU decision itself was in evidence, the decision confirmed the decision of Ms Crozier and did not stray from her findings and conclusions, and the concerns Mr Marigliano expressed in relation to the IRU decision were directed more at Ms Crozier than Mr Peters.  The situation does however, whether valid or not, feed Mr Marigliano’s concern about a lack of transparency in the way this matter was handled by the QBCC, and the process and procedures of QBCC investigations. 

Material before the Tribunal

  1. [25]
    I was initially provided with 2 large folders of material, one from Mr Marigliano comprising approximately 350 pages, the other the Statement of Reasons (filed 5 July 2023) from the QBCC, approximately 700 pages. 
  2. [26]
    At the commencement of the hearing the QBCC handed up a further six large lever arch folders of material comprising approximately 6000 pages which included much of the material provided by Mr Marigliano which he obtained through a right to information request filed with the QBCC on 2 June 2023, and granted on 17 August 2023. QBCC had apparently filed the 6 volumes with QCAT in the Cairns registry on or about 28 August 2024 and provided copies of all material to Mr Marigliano.  Mr Marigliano confirmed that he had received the material but “had not looked at it”.
  3. [27]
    Mr Marigliano’s filed 6 sets of material is as follows:
    1. Set 1: Cover sheet refers to the 37 month journey leading to the hearing;
    2. Set 2: Concerns the issue of Mr Marigliano’s standing – which was agreed in a decision of Member Katter ahead of the hearing;
    3. Set 3: Cover sheet refers to certain directions of Member Aughterson of 23 May 2023;
    4. Set 4: Concerns an application for miscellaneous matters including a stay application;
    5. Set 5: Cover sheet refers to Mr Marigliano’s eligibility for a merits review (a review of all aspects of the challenged decision); and
    6. Set 6: Concerns a recusal application concerning Member Aughterson (which was dismissed ahead of the hearing).
  4. [28]
    I was taken to some documents in Mr Marigliano’s folder but in all cases the documents were replicated in material found in the Statement of Reasons or in the 6 additional folders handed up by QBCC at the commencement of the hearing. The six additional folders were hard copies of documents downloaded from a ‘USB’ which had been provided to QBCC and the Tribunal by Mr Marigliano.  The folders also replicate the material in the single folder provided by Mr Marigliano.
  5. [29]
    Despite the less than perfect circumstances leading up to the hearing in Cairns, including the late provision of material, and issues mentioned above concerning the witnesses, I formed the view that I was not prevented from proceeding with the hearing.  My view was influenced by the objects of the QCAT Act, in particular to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; the number of interlocutory applications, hearings and decisions made in readiness for the hearing; the practices and procedures of the tribunal described in Part 2 of the QCAT Act; and, the need for finality.  I considered any prejudice that might be suffered by the parties and concluded that it was in the interests of justice that the matter be heard, and that there was not sufficient reason not to proceed to hear and determine the matter in and at the time the Tribunal had allocated.

Preliminary matters

  1. [30]
    Some matters were dealt with at the commencement of the hearing.  The QBCC sought leave to rely on a 13 August 2024 statement of Ms Crozier regarding certain technical and investigative aspects relevant to the matter.  The QBCC submitted that as there were no statements by Mr Marigliano or the second respondent Ms Brearley, Ms Crozier was the only witness who could speak to those aspects. Mr Marigliano did not object to Ms Crozier giving evidence, but he did restate that as the decision under review was the IRU decision of Mr Peters, that Mr Peters ought to give evidence.  I formed the view that as the statement of Ms Crozier did not introduce evidence not already in the Statement of Reasons or in the bundles of material filed, and as Ms Crozier was available for cross examination, the introduction of the statement of Ms Crozier would cause no prejudice.  The statement of Ms Crozier was tendered.
  2. [31]
    In an interlocutory decision of Member Aughterson made 28 August 2023, having dismissed some elements of a 20 July 2023 application, there remained an issue not determined concerning an application for an order that there be an “on-site investigation” of the pool fence in question.  Member Aughterson referred to s 28 of the QCAT Act, r 478 of the Uniform Civil Procedure Rules and s 97(1) of the QBCC Act, noting that a visit to a site is not part of the evidence but merely serves to enable the Tribunal to better understand the evidence.  Member Aughterson said that if the Member conducting the Tribunal hearing considers it appropriate to conduct a “view” in order to better understand the evidence presented (or to take any other action indicated by s 97 of the QBCC Act), then that is a matter for the Member to consider at that time.
  3. [32]
    The application for an on-site investigation was not specifically resurrected at the hearing.  Regardless, I formed the view that there would be no utility in an on-site inspection in the nature of a “view” or to conduct any of the hearing on-site as a period of four and a half years had passed since the re-inspection of the pool fence leading to the issue of the PSC in question – and the matter of compliance is a ‘point in time’ assessment.  There were a considerable number of photographs from 2020 that were of assistance.  The evidence at the hearing also confirmed that further work had been performed on the pool fence following advice from the CRC.  In his closing written submissions Mr Marigliano repeated his assertion that an on-site inspection or investigation is necessary.

On-site “inspection”

  1. [33]
    Mr Marigliano relies on Neller v Queensland Building and Construction Commission [2016] QCAT 353 (‘Neller’) to demonstrate that on-site inspections can occur years after a PSC is issued, and following a complaint.
  2. [34]
    I accept that an on-site inspection or investigation of a pool fence can be made some time after a PSC is issued. However, an inspection will not be relevant or appropriate if changes have been made to the aspects of the pool being assessed.
  3. [35]
    In Neller, the pool inspector (Mr Neller) issued a PSC at the subject property in September 2011. The subject property was subsequently sold to a new owner, who made a complaint to the Pool Safety Council in January 2014 after a new PSI, Mr Coward, inspected the pool and issued a nonconformity notice in October 2013. Two QBCC employees inspected the pool in February 2014, advised Mr Neller of the complaint in July 2014 and issued an ‘Information Notice’ in January 2015. The QBCC Internal Review Unit then caused an inspection report to be prepared by another QBCC employee who made his report in July 2015 following an inspection of the pool and with regard to reports and submissions from the previous inspectors and Mr Neller.
  4. [36]
    Each inspection identified new defects. Member Paratz acknowledged that the key issue in considering the alleged breaches by Mr Neller was whether the pool fence had been changed in any way between Mr Neller’s 2011 inspection and the subsequent inspections in 2013, 2014 and 2015. If so, the defects identified may not have been existing at the time of Mr Neller’s inspection.
  5. [37]
    Notably, the IRU decision concluded that the complaints about Mr Neller issuing the PSC could not be substantiated because the condition of the pool fence at the time of Mr Neller’s inspection could not be ascertained.
  6. [38]
    However, Member Paratz found that the evidence implied that 5 of the 6 defects identified in the 2013 inspection existed at the time of approval of the PSC by Mr Neller, and that these defects remained in an unchanged state until Mr Coward’s inspection in 2013. Member Paratz was not satisfied that the 6th defect existed at the time of Mr Neller’s inspection.
  7. [39]
    In this case, as described at paragraph [53] below, Mr Marigliano made changes to the pool fence sometime before 2 July 2020 when the CRC wrote to him saying they were satisfied the fence was compliant. An on-site inspection now could not reveal or confirm the existence or extent of the alleged defects at the time that Ms Brearley conducted her inspections.

On-site “investigation”

  1. [40]
    While at no point saying what he considers to be the correct and preferable decision, in closing written submissions Mr Marigliano says he considers it imperative “that the hearing of evidence be reopened”; and that an on-site investigation or “comprehensive on-site investigation” be carried out by the Tribunal or its appointed assessor, with CRC officers and QBCC representatives in attendance.  He says that an on-site investigation would expose “gross malfeasance by QBCC officers at the highest levels” sufficient to warrant a “full criminal investigation” into the matter. 
  2. [41]
    The QCAT Act s 110 says the President may appoint a person (assessor) with relevant knowledge, expertise and experience to give expert evidence in a proceeding or to help the tribunal in relation to a proceeding.  For example, the Tribunal has on occasions appointed an arborist in neighbourhood tree dispute matters. It is not clear the kind of help that Mr Marigliano considers an assessor would provide the Tribunal in its review function, nor the particular knowledge, expertise and experience an assessor should possess. 
  3. [42]
    The way Mr Marigliano expresses his proposal for an on-site investigation suggests that what he considers necessary is a type of commission of inquiry, or a Crime and Corruption Commission investigation into the conduct of QBCC officers as public sector employees. Neither are outcomes I can direct.

The role and relationship of the PSI (Ms Brearley), the CRC and the QBCC

  1. [43]
    Following the issuing of the PSC on 4 March 2020, and after he took ownership of the property in early May 2020, Mr Marigliano contacted the real estate agent who had marketed the property, concerned about the pool fence.  The real estate agent agreed to make arrangements for the PSI, Ms Brearley, to contact Mr Marigliano and to make another visit to the property. Ms Brearley visited the property again on 11 May 2020.
  2. [44]
    Ms Brearley was employed by Snappy Pool Inspections. She was not engaged as an employee of the QBCC or the Council. A PSI can issue a PSC for a regulated pool if they have inspected the pool and are “reasonably satisfied” (not “is satisfied”) the pool is a complying pool.[2] 
  3. [45]
    The QBCC is an independent statutory authority that regulates Queensland’s building and construction industry, including overseeing pool safety laws. The QBCC is responsible for licensing PSIs, investigating complaints, auditing, enforcement action and maintaining a register.
  4. [46]
    The QBCC have a pool safety division which deal with complaints concerning PSIs or inspections.  The powers of the QBCC are found in section 246CY of the Building Act. In particular, the QBCC commissioner must, after investigating a complaint, decide whether a ground for disciplinary action against the PSI is established. If so, the commissioner must notify the PSI and take at least one of the actions described in s 246CY(4) such as reprimanding the PSI, imposing conditions on their licence, requiring the PSI to pay a fine or advising the PSI they do not intend to take further action if they consider the PSI to be generally competent and diligent. The QBCC can also, if it considers it reasonable in the circumstances, suspend the PSI’s licence for over a year or cancel the PSI’s licence.
  5. [47]
    The CRC’s role in pool safety is investigative. It includes enforcing compliance with the pool safety standard, entering properties to inspect pools, issuing fines or prosecuting owners of non-compliant pools, and cancelling pool safety certificates for non-compliant pools.
  6. [48]
    Pursuant to s 246ADA(1)(c) and 245UA the local government’s functions are triggered upon the QBCC commissioner giving the local government notice of its suspicions that a barrier of a regulated pool does not comply with the requirements of the Building Act. Upon receipt of that notice the local government must, as soon as practicable, inspect the pool for compliance with the pool safety standard.  If, after inspection the local government “is satisfied” (not “is reasonably satisfied”) the pool does not comply with the relevant standards, enforcement action must be taken to ensure compliance. The pool safety standard covers the required height and strength of fences, non-climbable zones, gates and self-closing and self-latching requirements, the prevention of direct access from a building to a pool area, and mandatory pool signage. 
  7. [49]
    Both the QBCC and the CRC were engaged in their respective capacities in this matter.  As noted already Mr Marigliano submitted a complaint to the QBCC on 14 May 2020. On 15 May 2020, QBCC officer Mr Mike Cumming requested that the CRC inspect the pool.

Outcomes of the CRC and QBCC investigations  

  1. [50]
    On 19 May 2020, Mr Nesbit, Supervisor in the Planning, Building & Engineering Compliance team at CRC, conducted an inspection of the pool. On 21 May 2020, Mr Nesbit emailed the real estate agent that had engaged Ms Brearley with a list of the items of non-compliance observed during the inspection.[3] These items were:
    1. Trees/plants/stumps within 900mm of the rear pool barrier which can be used as climbable points to access the pool.
    2. The rear timber fencing has short attachments to the palings that achieve the 1200mm height requirement however do not appear adequately secured and therefore would not meet the strength and rigidity required.
    3. There is a security screen door within 900mm of the pool fence which is climbable.
    4. There is a pool gate on the rear patio which can be opened without using the latch and pawl mechanism. The latch mechanism is not adequately attached to the post and not secured to the manufacturer’s application.
  2. [51]
    On 27 May 2020, Mr Nesbit emailed the QBCC and advised that he had received an email from Ms Brearley which provided reasoning for her decisions. On the basis of Ms Brearley’s email, Mr Nesbit said he did not intend to issue a show cause notice for the removal of the PSC, and that he believed the inspector (Ms Brearley) had received different training to him and that they simply had different views.
  3. [52]
    The fact that a PSI and an officer of the council may hold different views does not mean that one or the other falls below the standard of conduct required in the performance of their functions.[4] 
  4. [53]
    On 13 August 2020, Mr Nesbit wrote to Mr Marigliano. In this letter, Mr Nesbit notes that at the inspection on 19 May 2020, Mr Marigliano was given recommendations on how the pool issues could be fixed to achieve compliance. Mr Marigliano and the CRC officers had further discussions at subsequent on-site inspections (on 25 May 2020, 17 June 2020 and 2 July 2020) as a result of ‘alternative remedial works’ that Mr Marigliano wanted to make in order to reduce his costs. On 2 July 2020, CRC noted the following repairs which had been made:
    1. Removal of trees/plants within 900mm on the outside of the rear boundary fence; and
    2. Re-paling of the rear boundary fence with palings installed with no gaps to prevent the Golden Cane Palms on the inside of the pool fence being used as climbable points to access the pool area; and
    3. Alteration to horizontal timber rails to achieve a min 900mm clearance between the rails to prevent any climbable points and toe-holds to access the pool area; and
    4. Extending of the rear boundary fence past the neighbour’s intersecting fence to prevent the pool area being accessed by toe holds on the intersecting fence; and
    5. Shielding of 1x climbable security screen door adjacent to the pool fence with small wire mesh; and
    6. Repairs to the pool gate latch and pawl mechanism to ensure they were secured in place while remaining operable and able to be self-closed from all positions including the rest position.
  5. [54]
    I pause to note that not all the repairs undertaken by Mr Marigliano were in response to the items of non-compliance identified by Mr Nesbit in his 21 May 2020 correspondence. In email correspondence from Mr Marigliano on 11 March 2021 to the Internal Review Unit he says in his view there are in fact 14 non-compliant “sites” – for example there were several locations where trees, plants and stumps were within 900mm of the rear boundary, and the pool gate latch not properly mounted and not locking are listed as two items, not one.  
  6. [55]
    The QBCC Notice of Complaint issued 14 December 2020 concerned the conduct of Ms Brearley in issuing the PSC on 4 March 2020 when the pool barrier at the property was non-compliant with the pool safety standard.  The issues of nonconformity alleged were:

Non-conformity 1

The gate closest to the rear patio with the latching device detached from the post which causes failure to the latching of the gate;

Non-conformity 2

  1. In relation to the security door with grill, when the door is in a closed position the diamond grill is within the Non-Climbable Zone (NCZ);
  2. Images show tree stumps and a tree trunk growing through the barrier between the timber palings, all within the NCZ;
  3. An area of timber barrier where the height when measured from the top of the log on the ground surface adjacent to the outside of the barrier reduced the effective height to less than 1200mm.
  1. [56]
    The delegate Ms Crozier in the 20 January 2021 Information Notice of Decision found in relation to Nonconformity 1:

That there was insufficient evidence to show the latching mechanism was not compliant when Ms Brearley issued the certificate, and insufficient evidence to suggest the strength and rigidity of the latching mechanism attached to the gate was compromised or not secured to the manufacturer’s specifications when the PSC (was) issued. 

  1. [57]
    In relation to Nonconformity 2, the QBCC Notice of Complaint does not specifically raise the item of non-compliance identified by Mr Nesbit on 19 May 2020 regarding the strength and rigidity of attachments to the palings (fence capping). However, it is referred to in the Information Notice of Decision (below).
  2. [58]
    Ms Crozier found:
    1. that Ms Brearley conceded she had incorrectly determined that the security grill was compliant. 
    2. that it was most probable that there were stumps within the NCZ that would have been climbable when the PSC issued.
    3. that it was most probable that the tree trunk growing between the palings was climbable and non-compliant when the PSC issued.
    4. that Ms Brearley’s inspection report indicates that on 4 March 2020 she tested the barrier for strength and rigidity under the pool safety standard and found it to be compliant at that time.   Ms Crozier concluded there was insufficient evidence of non-compliance with the strength and rigidity requirements in relation to the fence capping; and that the Cairns Regional Council provided no evidence to support the assertion that as at 19 May 2020 the fence capping (attachments) in places did not appear adequately secured and would not meet the strength and rigidity required, despite Ms Brearley noting some of the capping were loose on 11 May 2020 when she attended the property.

Outcome of the Internal Review

  1. [59]
    In the 16 March 2021 Decision Notice in respect of alleged Nonconformity 1 the Review Officer Mr Peters found a ground for disciplinary action against Ms Brearley had not been established, and in respect of alleged Nonconformity 2 a ground for disciplinary action against Ms Brearley had been established in respect of the security door grill, some tree stumps, tree trunk and horizontal rail (only).
  2. [60]
    There were no adverse findings regarding the gate latch operation and installation; the fence capping as an appropriate solution in the circumstances; nor the strength and rigidity of the fence capping as at 4 March 2020; nor more generally the application of the Australian Pool Safety Standard.

The hearing 

  1. [61]
    In the absence of a hearing plan; in the context of my introductory comments regarding the hearing; and in the hope of bringing focus to the issues in the hearing, I invited Mr Marigliano to begin proceedings by talking about the events that led to his filing of the application to review the IRU decision, why he thought the IRU decision was wrong, and what he thought the correct and preferable decision was, and why.
  2. [62]
    Emerging from his opening statement a number of matters became the focus of discussion and evidence.  Those matters were: the effectiveness of the gate latching mechanism at the time of the inspection; the “capping” solution to achieve “fence height” compliance; the appropriateness and effectiveness of the fence capping that had been undertaken at the property; the operation, effect and application of Australian Standard AS1926, in particular sections relating to the strength of fencing components, “informative” and “normative” strength and rigidity testing, the “squeeze test” and its application and effectiveness (including the need for regular recalibration of testing equipment) and the consequences for the application of the “informative” standards.

The issues

  1. [63]
    In closing written submissions, the QBCC say the issue for determination is whether Ms Brearley's conduct in issuing a PSC on 4 March 2020 contravened s 246AW of the Building Act as found by Ms Crozier and upheld by the Internal Review Unit.  
  2. [64]
    As stated at [12] above and repeated through the hearing and in these reasons, it is the correctness of the 15 March 2021 IRU decision of Mr Peters which is to be determined.  QCAT stands in the shoes of the QBCC.  There is no presumption that the QBCC decision was correct.  If not correct, what does QCAT say is the correct and preferable decision?
  3. [65]
    The elements of the decision concern whether Ms Brearley could have been reasonably satisfied that the pool in question was a “complying pool”, whether her conduct in issuing the PSC amounts to grounds for disciplinary action, and if so, what penalty should be imposed.
  4. [66]
    The QBCC says the IRU decision is correct and should be affirmed, that Ms Brearley could not have been reasonably satisfied that the pool in question was a complying pool when the PSC was issued on 4 March 2020, that her conduct did amount to grounds for disciplinary action, and the fine of $400 levied was appropriate.
  5. [67]
    Mr Marigliano’s focus was on what he considered to be the failure to address in sufficient detail or at all, other bases upon which he submits the pool was not a complying pool, or the rationale for conclusions reached. He says (in a more derogatory way) the officers were lacking in competence and there is a culture of cover up in the QBCC.
  6. [68]
    In closing written submissions Mr Marigliano says: “2 days of the hearing were wasted in discussion over an obvious broken gate latch and ridiculous paling caps extensions”.  His closing written submissions are made under the following subject headings: Normalisation of tyranny; Further on normalisation of tyranny; Normalisation of cover-ups; Further on normalisation of cover-ups; Neller v QBCC and on-site investigations; Mafia style lawyers – unqualified internal review officer; and, QBCC’s inadequate training course and cover up.
  7. [69]
    The matters canvassed at the hearing as listed at [62] above, relevant to the question whether Ms Brearley should have been satisfied that the pool was a complying pool, are captured under the following headings: The gate latching mechanism; and Fence Capping.  My consideration of the operation, effect and application of the Australian Pool Safety Standard AS1926.1 is interspersed throughout these reasons.

The gate latching mechanism

  1. [70]
    The Australian Pool Safety Standard AS1926.1 is the national standard ruling pool fences.  It establishes guidelines for the design, construction and maintenance of pool safety barriers.  The standard addresses pool fence height, the NCZ, vertical fence gap and ‘bottom of fence’ dimensions, horizontal climbable members and proximity to the NCZ, self-closing and latching (gate) devices, and location, strength and rigidity requirements etc.
  2. [71]
    The QBCC in closing submissions say that at the time of Ms Brearley’s re-inspection on 4 March 2020 she was reasonably satisfied that the latching mechanism was compliant with clause 2.5.4.1 of AS1926.1.
  3. [72]
    Ms Brearley first inspected the pool fence on 28 February 2020 and completed a Pool Safety Inspection report.[5]  The report was a checklist which allowed the inspector to record relevant measurements such as height, distance, and “OK”, “yes” or “no” responses to matters relevant to compliance with AS1926 and pool fence compliance more generally.  While the list is comprehensive, there is space on the report form for additional information or comment.
  4. [73]
    The report form has a heading “Gate” with subheadings including arc, height gate, and height latch.  The subheadings under the heading “Latch” include “resting on latch”, fully open, 45 degrees, and 250N (relevant to the strength test). 
  5. [74]
    In the 28 February 2020 report and in correspondence with the QBCC regarding that inspection Ms Brearley notes that at the time of that inspection both gates were not self-closing or self-latching, and that both did not meet the minimum height requirements. This was detailed in the Nonconformity Notice issued.
  6. [75]
    At the re-inspection on 4 March 2020 Ms Brearley completed another Pool Safety Inspection Report.  Her handwritten notes confirm that at the time of the re-inspection both gates were tested to be self-closing and self-latching from various points in the arc. She noted that the latching mechanisms had been relocated so that they met the minimum height requirement. She says that “after testing the gates and measuring the latching devices (she) deemed these parts of the barrier compliant …”.  There is a photo of the gate latching mechanism (of concern) taken on 4 March 2020 attached to an email from Ms Brearley to QBCC investigator Ms Crozier dated 23 December 2020.    
  7. [76]
    The CRC inspected the pool fence on 19 May 2020 and in an email from Mr Nesbit to the real estate agent, he noted: “There is a pool gate on the rear patio which can be opened without using the latch and pawl mechanism. The latch mechanism is not adequately attached to the post and not secured to the manufacturer’s specifications”.[6]  Again, a photo is attached.
  8. [77]
    The email from the CRC to the real estate agent was forwarded to Ms Brearley who responded: “At the time of my inspection both gates were not functioning in a self-closing or self-latching manner. I re-inspected the gates in March 2020. After testing the gates at full opening, resting position and applying force of 25kg to the gates, the gates self-closed and self-latched each time without bouncing. The latching mechanism was not moving or swinging from side to side and held the gate in the latched position.”
  9. [78]
    Ms Brearley goes on to say in that email that she was happy to engage a contractor to rectify this and the other issues raised by Mr Nesbit “so that the Form 23 is not withdrawn and the client at a disadvantage”.  I mention this here as Mr Marigliano expresses a view that this offer was disingenuous and not acted upon, and his concern that Ms Crozier commented in the hearing that Ms Brearley’s offer to engage a contractor was “commendable”. The offer was made to Mr Nesbit when responding to the issues of concern he raised.  The offer was not taken up. Mr Marigliano said in the hearing that an offer of mediation “to try and resolve these kinds of issues” should have been made to him. While not particularly relevant to my consideration of the issues, and in the context of credit, I do not think this in any way reflects negatively on Ms Brearley.  
  10. [79]
    A schematic diagram is part of a set of attachments to the ‘Notice of Complaint’ which Ms Crozier sent to Ms Brearley on 14 December 2020. The diagram is under the subheading “Alleged Nonconformity 1” in relation to the gate latch. As noted above Ms Brearley responded to the Notice of Complaint on 23 December 2020 with further information about what she found at the property at the time of her inspection and re-inspection, along with photographs of the gate latch, inspection checklists and copies of the communication between herself and the Council officer relevant to the Council inspecting the property. After considering this further information, Ms Crozier’s decision on 20 January 2021 was that there was insufficient evidence to establish that Nonconformity 1 was present when Ms Brearley issued the PSC.
  11. [80]
    Mr Peters’ IRU decision concluded, in relation to the gate latch, that he could not be satisfied on the basis of the available evidence that it is more likely than not that the gate was not operating correctly on 4 March 2020. He says that the evidence demonstrates that there was no additional mounting bracket in place on 4 March 2020 on the gate latch, but that there is no specific requirement in AS1926.1 for there to be an additional bracket. 
  12. [81]
    In the QBCC’s Statement of Reasons, the QBCC concludes that the Commission was satisfied that the pool gate latch mechanism was compliant with AS1926.1 as of 4 March 2020 and in the circumstances, a PSI could be reasonably satisfied the pool was a complying pool insofar as it related to Nonconformity 1. The QBCC says it makes this finding on the basis of the further information provided by Ms Brearley on 23 December 2020.  
  13. [82]
    The point not in dispute appears to be that when the mechanism was raised on the post to achieve the minimum height requirement an additional (top) mounting bracket was not placed to secure the “top pull” section to the post. 
  14. [83]
    Mr Marigliano asserts that this caused the gate to not latch as required, and that this must have been the situation when Ms Brearley conducted her 4 March 2020 inspection.
  15. [84]
    However, in the following exchange at the hearing Mr Marigliano says that when he first moved into the house (May 2020) the gate was latching securely.[7] He went on to say:

MR MARIGLIANO: For a day or two and that – but then, as soon as I banged into it or anything, it moved. The latch moves. It’s not latched – – –

MEMBER: So what that says is that at the time of the inspection it’s fair to assume that it was latching securely in March.

MR MARIGLIANO: It may have been.

MEMBER: And that’s – well – – –

MR MARIGLIANO: But that doesn’t – it has to be stable and now that it – manufacturer’s standard or it won’t – in other words, it’s the same as the caps. They put them caps on. They’re not there. They could fall off the next day. The tree up top, just knock them all off like no prob – – –

  1. [85]
    The position Mr Marigliano was pressing is that the manufacturer’s specification provides that the Magna Latch series 1 requires the top fixing to be correctly installed by a lower and upper mounting bracket braced to the post in accordance with the manufacturer’s specifications.  If mounted only at the bottom it is only a matter of time before it will not work.  He accepts that it may have latched when inspected by Ms Brearley on 4 March 2020, soon after the mechanism was lifted on the post in order to meet the height requirement, but his argument is that without upper bracing it will inevitably fail.   Mr Marigliano himself installed an upper bracket toward the end of May 2020.[8] 
  2. [86]
    In response to Ms Crozier’s evidence that in searching for the manufacturer’s specifications, she was unable to get information from the Magna Latch website to determine the position and type of latch, Mr Marigliano said that according to D&D Technologies, the manufacturer of Magna Latches, each Magna Latch type requires an upper mounting bracket.[9] It was Mr Mays’, D&D Technologies, evidence referred to at [95] below that the Magna Latch series 1 “requires the top fixing”.
  3. [87]
    It was the case when CRC officer Mr Nesbit inspected the fence on 19 May 2020 that the gate in question could be operated without using the latch and pawl mechanism – that is, the gate did not close securely. Ms Brearley accepts that this was also the case when she attended the property on 11 May 2020.  In an email from Ms Brearley to Ms Crozier dated 8 January 2021 Ms Brearley says that when she attended the property in May 2020 and met with Mr Marigliano: “The latching device was loose and the gate not self latching and some of the cappings to the rear fence were also loose. I advised the owner that these items were not in this condition when I last inspected the barrier on 4 March 2020 …”[10]
  4. [88]
    Mr Nesbit in his 21 May 2020 email to the real estate agent made the comment that the latch mechanism was not adequately attached to the post and not secured to the manufacturer’s specifications.  In her report Ms Crozier concludes: “There is insufficient evidence to suggest that the strength and rigidity of the latching mechanism attached to the gate was compromised or that it was not secured to the manufacturer’s specification when you issued the certificate.”[11] (underlining added)
  5. [89]
    In the IRU decision Mr Peters says:

“… it appears that there was no additional mounting bracket in place on 4 March 2020.

However in order to be satisfied that alleged nonconformity 1 existed on 4 March 2020 I would need to be satisfied that it was more likely than not that the gate did not meet the specific requirements of MP 3.4 and AS1926.1-2007 on 4 March 2020. The applicant’s direct evidence is that the gate was tested and was operating correctly on 4 March 2020. The relevant specific requirements outlined in AS1926.1-2007 include:

All gates shall be fitted with a device that will return the gate to the closed position and operate the latching device from any position with a stationary start without the application of a manual force. (2.5.3)

Gates shall be fitted with a latching device that will automatically operate on the closing of the gate and will prevent the gate from being re-opened without being manually released. (2.5.4.1)

There is no specific requirement in AS1926.1-2007 for an additional bracket, only that the latch and gate operate in accordance with the specific requirements outlined. I cannot be satisfied on the basis of the available evidence that it is more likely than not that the gate was not operating correctly on 4 March 2020.”

  1. [90]
    Despite the reference to manufacturer’s specifications concerning the mounting of gate latches by CRC officer Mr Nesbit and by Ms Crozier at [88] above, in closing written submissions the QBCC say at [12]:

“… the Commission rejects the Applicant’s proposition and submits that the latching mechanism was not required to be installed pursuant to manufacturer’s specifications.”

  1. [91]
    The relevance of the manufacturer’s specifications is in Mr Marigliano’s view a significant issue and was canvassed in evidence at the hearing.  It is clearly the view of Mr Marigliano that adherence to manufacturer’s specifications is critical, but to Mr Nesbit and perhaps Ms Crozier, relevant but inconclusive.
  2. [92]
    Mr Marigliano appears to pick up Ms Crozier’s use of the term “inconclusive” and attributes it generally to Ms Crozier conclusions and the QBCC’s findings. He says that “inconclusiveness is what has pervaded most of the conclusions” that the QBCC’s investigators have made and that “the purpose of not having an on-site investigation was to deliberately maintain an inconclusive investigation”. Although Ms Crozier said in her original decision that there was “insufficient evidence” to establish the nonconformity of the gate latch, the QBCC’s Statement of Reasons concludes that the pool gate latch was compliant.
  3. [93]
    It is a reasonable proposition that the “top pull” section of the fixed latch catching mechanism should be secured so as to ensure that it is sufficiently rigid to enable it to “latch” on every occasion.  Manufacturer’s specifications are intended to ensure consistent product quality and performance.  Failure to meet manufacturers specifications might have an impact on any warranty, or possibly liability in the case of product failure.  The consequences of product failure can be catastrophic.
  4. [94]
    A witness called by Mr Marigliano was Mr Mays, a Technical Support Officer at D&D Technologies, Sydney.  D&D Technologies invented the magnetic latching technology.  The first version was developed in 1991.  Mr Mays has been an employee of D&D Technologies for 7 years and has an engineering and trade background.  He is familiar with magnetic latching products used for pool gates. 
  5. [95]
    Mr Marigliano had contacted D&D Technologies regarding the Magna Latch system. There had been an email exchange between Mr Marigliano and Mr Mays about the Magna Latch series 1, the model the subject of the pool fence.  The exchange as read into the transcript was as follows:[12]

Mr Marigliano: Here are three photos, one being the latch, as it’s properly mounted position, but not at the correct height indicated by the tape measure. The other two photos are the position of the latch raised to the correct height, approximately 1.5 metres above the ground level but not attached at the top mount. Obviously, due to the fact the post has not been raised also to accommodate – obviously due to the fact that the post has not been raised also to accommodate the top mount. A complete analysis of technical information regarding the series 1 latch testing development, etcetera, in your opinion of the implications of leaving the latch mounted in its new raised position, new raised state on mounted at the top location would be greatly appreciated.

Mr Mays: Hi Joseph, the latch series is a series 1 Magna Latch which could be up to 30 years old and has long ceased manufacture. The latch is manufactured long before the current pool standards were in force and was never designed to be installed with only a single fixing position on the bottom. The series 1 Magna Latch requires the top fixing to be installed in order to comply with the manufacturer’s guidelines for correct installation. The solution is that the latch needs to be replaced with a later model series 3 Magna Latch, which has the adjustable mounting capability to secure the latch to such a low post. The series 3 Magna Latch can be purchased from any Bunnings, item code 0088707. Regards, Peter.

  1. [96]
    When asked to comment from photographs of the latch in question about compliance with the manufacturer’s specifications, Mr Mays said that with “the top fixing being left out the mechanism would not be considered to (be) installed in accordance with the manufacturer’s specifications”. He said that this particular product has not been made for 20 years.  He said that there was an adaptor “like a clamp” which would have mounted the top fixing to the post “but of course these parts don’t exist anymore”.
  2. [97]
    Mr Mays was asked about sourcing the manufacturer’s specification for the now out of production series 1 Magna Latch.  He said, “you would struggle”.
  3. [98]
    As noted at [77] above Ms Brearley had informed Mr Nesbit that in March 2020 she tested the gates “at full opening, resting position and applying force of 25kg to the gates, the gates self-closed and self-latched each time without bouncing”. She said that “the latching mechanism was not moving or swinging from side to side and held the gate in the latched position.”
  4. [99]
    The QBCC in closing submissions say that the latching mechanism is not required to adhere to the strength requirements of clause 3.3 of AS1926.1. They say clause 3.3 (Rigid components such as panel infills, rails, rods, palings etc) applies to “structural components”, things used to build the walls of a pool barrier.  The same reasoning, they say, applies to clause 3.3.2 (flexible fencing material and components) which is not broad enough to capture a latching mechanism.  More compelling however is the fact that clause 3.4 sets out specific requirements for latching mechanisms. The QBCC says that the purpose of clause 3.4 is to ensure that latching mechanisms automatically latch when subject to specific deflections.  I agree that clause 3.4 is the applicable standard.

Conclusions – gate latching mechanism

  1. [100]
    There is no evidence to contradict the evidence of Ms Brearley that at the time of her inspection in March 2020 the gate in question self-closed and self-latched as required.  In fact, the evidence of Mr Marigliano was that when he first moved into the house in May 2020 the gate was latching securely, although he goes on to say “for a day or two” and in response to my question whether at the time of Ms Brearley’s inspection it was fair to assume that it was latching securely he said: “It may have been.”  When Ms Brearley attended the property on 11 May 2020 it was not latching properly, and when Mr Nesbit attended on 19 May 2020 it was not latching properly.  What caused the gate to fail to latch around 2 months after it had been determined to be secure is subject to speculation.
  2. [101]
    The evidence supports a conclusion that at the time of the March 2020 inspection the “top pull” section was braced in one place only, low, not high.  The evidence of Mr Mays is that a “top fixing” is required to meet manufacturer’s specifications, without direct reference to the specifications and noting that sourcing the specifications now would be a “struggle”. The particular Magna Latch is over 20 years old.  In evidence, in reference to correspondence between Mr Marigliano and Mr Mays, Mr Mays said that more recent models of the Magna Latch have adjustable mounting capability which I understand to mean they can be raised without complete detachment and reattachment to the post.   
  3. [102]
    The AS1926.1 is not “product specific”, that is, it does not dictate a particular brand or model of latching mechanism.  That is unsurprising. The standard is about the function of the latch – Does it automatically latch when subject to specific deflections? It is not about the installation or the aesthetics specifically.  Clearly, the manufacturer’s specifications are important, particularly regarding the component parts, capability, materials, dimensions, and tolerances.  The specifications might also include information regarding product expectations and warranty. An instruction manual might contain the manufactures instructions for installation.  As the AS1926.1 does not specify a particular brand or model of gate latch, it is the choice of the pool owner what mechanism is installed.
  4. [103]
    In this case, on 4 March 2020, the evidence of Ms Brearley is that the necessary standard was met.   Two months later the evidence is that it was no longer conforming.  The nonconformity was rightly reported by Mr Marigliano.
  5. [104]
    I accept that had an upper mounting bracket been in place when the device was raised on the gatepost to achieve the height requirement, it would have provided more stability for the latching mechanism. 
  6. [105]
    I accept the evidence of Ms Brearley that on 4 March 2020 the gate latched as required and the necessary standard was met. 
  7. [106]
    I accept the evidence that a little over 2 months after the 4 March 2020 inspection the gate failed, it was not latching as required by AS1926.1. At that time the fence was non-conforming.
  8. [107]
    The failure in this case is not meeting the requirements of AS1926.1 in early May 2020.  Not having an upper mounting bracket on 4 March 2020 is not failure if, at that time, the gate automatically latched when subject to specific deflections.  
  9. [108]
    I agree with the conclusions in the IRU decision, which confirmed those in the Crozier decision, that on the basis of the available evidence, it is more likely than not that the gate was operating correctly on 4 March 2020.   

Fence capping

  1. [109]
    Some of the following is summarised from paragraphs [50] to [58] above.
  2. [110]
    In a 23 December 2020 email to Ms Crozier,[13] Ms Brearley says: “During my initial inspection of this property on 28 February 2020, it was determined that the height of the rear wooden fence did not meet the minimum height requirements of 1200mm.  This was detailed in the NonConformity notice supplied. It was suggested that extensions could be placed on top of the existing palings to reach minimum height requirements. Upon my reinspection on 4 March 2020, this fence was inspected with the extensions on top. The minimum height requirement was reached and fence tested for strength and rigidity. The barrier passed these tests and thus deemed compliant by me.” 
  3. [111]
    A photograph of the fence at the date of inspection, 4 March 2020, was attached to Ms Brearley’s email.  The photo shows a section of the fence with capping attached.[14]  Mr Marigliano noted in the hearing that this photo shows “one capping actually falling off” at the furthest end of the photo. I accepted that the cap Mr Marigliano pointed to appears to be leaning out from the paling to which it is affixed. I cannot determine from the photograph that the capping pointed to was in fact “falling off” or for that matter was loose on 4 March 2020, nor can Mr Marigliano.  However, by 19 May 2020, some were not adequately secured.

Ms Brearley

  1. [112]
    In Ms Brearley’s 4 March 2020 pool safety inspection report there is a note “height of fence extended with wooden caps to corner now measures 1210”.  On the 2nd page there is a note “wood tops put on OK - squeeze test”, under the heading ‘Strength and rigidity’ the form has 3 ‘tests’ - upright squeeze @150N, Posts @330N, Rails @250N, 33N. To each it says, “tested OK”.

Mr Nesbit

  1. [113]
    When CRC Supervisor Mr Nesbit investigated on 19 May 2020 he observed items of non-compliance, as recorded in his 21 May 2020 email to the real estate agent, including: “The rear timber fencing has short attachments to the palings that achieve the 1200mm height requirement however do not appear adequately secured and therefore wouldn’t meet the strength and rigidity required.”

Mr Marigliano

  1. [114]
    Work undertaken by Mr Marigliano in response to Mr Nesbit’s items of non-compliance included the re-paling of the rear boundary fence.  That is, by 2 July 2020 the palings with cappings had been replaced by 1200mm palings “installed with no gaps” which also served to prevent the Golden Cane Palms on the inside of the pool fence being used as climbable points and toe holds to access the pool area.
  2. [115]
    In his closing written submissions Mr Marigliano said that in response to the Nonconformity notice from the CRC and the suggestion of Mr Nesbit that the entire section of fence be replaced with a 1.8 metre new fence, he decided to keep the existing fence and make the rectifications (that is, replace the capped palings with 1200mm palings) necessary to make it compliant.

Nonconformity 2

  1. [116]
    The QBCC Nonconformity 2 concerning the rear fence was: “tree stumps and a tree trunk growing through the barrier between the timber palings, all within the NCZ” and “an area of timber barrier where the height when measured from the top of the log on the ground surface adjacent to the outside of the barrier reduced the effective height to less than 1200mm”.  The fence capping was not specifically the subject of the QBCC Notice of Complaint concerning the conduct of Ms Brearley, although it is referenced in the findings of Ms Crozier.

Ms Crozier

  1. [117]
    Ms Crozier found that it was most probable that there were stumps within the NCZ that were climbable when the PSC issued, and that it was most probable that the tree trunk growing between the palings was climbable and non-compliant when the PSC was issued.  Although presented as a single nonconformity, it is expressed in the plural and concerns all places where tree roots, limbs or stumps were growing between palings in the rear fence.  Mr Nesbit also dealt with trees/plants/stumps as climbable points collectively, rather than singularly. Mr Marigliano’s list of 14 non-conformities suggest all occurrences of a like kind (e.g. growth between palings) are each non-conformities.  I understand that perspective. However, in my view, there is no error in dealing with them collectively.
  2. [118]
    So, while concerns regarding the fence capping were not separately identified in Nonconformity 2, Ms Crozier made findings regarding the evidence. 
  3. [119]
    In relation to the fence capping, as noted at [58] above, having investigated the matter Ms Crozier found:

that Ms Brearley’s inspection report indicates that on 4 March 2020 she tested the barrier for strength and rigidity under the pool safety standard and found it to be compliant at that time.   Ms Crozier concluded there was insufficient evidence of non-compliance with the strength and rigidity requirements in relation to the fence capping; and that the Cairns Regional Council provided no evidence to support the assertion that as at 19 May 2020 the fence capping (attachments) in places did not appear adequately secured and would not meet the strength and rigidity required, despite Ms Brearley noting some of the capping were loose on 11 May 2020 when she attended the property.

Strength and rigidity

  1. [120]
    As noted already, the 14 December 2020 Notice of Complaint listed four matters of nonconformity under two headings: non-conformity 1 and non-conformity 2.  While the Notice of Complaint did not individually include “strength and rigidity of fence capping” or something similar as an item of nonconformity, concerns about the fence capping were investigated by Ms Crozier and her conclusions are included in her reasons for decision, and this decision was upheld by the Internal Review Unit.
  2. [121]
    At the tribunal hearing, Mr Marigliano said that the CRC officers who came to the property looked at the cappings and said they needed to be more secure.[15]  Referring to photographs Mr Marigliano said “… they’re all falling off. This one is not even screwed on.”  He says the “cappings weren’t secure at any time”.[16]  He agreed that Council looked at the capping about 2 months after Ms Brearley’s inspection.  He said the cappings range between 30 and 50 or 60 mm, and are held in place by two screws, although one might have had only one screw when inspected in May 2020. 
  3. [122]
    To be structurally sound Mr Marigliano says the cappings would have to be twice the length secured by at least four screws. He suggested that the way the cappings had been attached, a tree branch could impact and dislodge the capping.  For this reason, he argued the cappings could not meet the AS1926.1 strength and rigidity test. 
  4. [123]
    This goes to Ms Brearley’s 4 March 2020 inspection report where she concluded the cappings had met the strength and rigidity test.    
  5. [124]
    In evidence Ms Crozier was asked about capping as a solution to fences that are below the required height.  She said that capping was a common solution.  She said that in this case she observed that the cappings were secured with two screws, and that later photographs “look as though some of the screws failed”, but on the date of inspection (4 March 2020) the cappings were suitably attached.

AS1926.1 and the Pool Safety Guideline 2016

  1. [125]
    In the IRU Decision Notice Mr Peters noted Mr Nesbit’s 27 May 2020 letter to Mr Marigliano in reference to the fence cappings. He said: “They are not secure and could be easily broken off. Compliance requires longer palings to be attached to the timber fence rails.”
  2. [126]
    The Decision Notice says:

Strength and rigidity are dealt with in Section 3 of AS1926.1-2007. They outline objective requirements such as the openings in the fencing shall have sufficient strength and rigidity such that a 105mm diameter cone cannot pass through the opening under the application of a 150N force and that a test object shall not pass through any opening in the fencing when tested in accordance with Appendix A which sets out the method of testing.

The direct evidence of the pool safety inspector is that the fence passed the required test. There is no evidence before me that another test was conducted in accordance with Appendix A.

In order to be satisfied that the alleged nonconformity concerning the extension cappings existed when the PSC was issued on 4 March 2020, I would need to be satisfied it was more likely than not that the test referred to above would have failed. I am not satisfied of this based on the evidence available.

  1. [127]
    The test referred to here is, I understand, the “cone test”. However in Ms Crozier’s evidence she said that the Department of Housing and Public Works Pool Safety Guideline 2016 suggests that: “rather than using force meters or pull through cone test methods … the pool safety inspectors have to take ... a reasonable approach to these testing methods, including visual, including applying just a hand force and – and equivalent to the weight of a child.”[17]
  2. [128]
    Ms Crozier went on to describe the “squeeze test”, in contrast to the “cone test”:[18]

Ms Crozier: So rather than using the cone test, which as I mentioned is a – is a – is a round cone, for want of better words. It has got a pull-through system on it and it’s intended to actually ensure that the space between any of the vertical uprights is a minimum – sorry, is a maximum of no more than 105 millimetres. So they actually pull the cone through, they pull it and – but as you can imagine, if it’s a metal fence, if it’s an aluminium fence, if it’s a – a fibreglass panel fence, if it’s a timber fence, they’re all different structures and different requirements. And so the department have said using the less dominant hand, apply a force similar to a handshake – and this is literally the way it’s described in the guideline. Less dominant – less dominant hand with a force applied similar to a – a firm handshake and they’re actually squeezing the material together like that, to see if it – one deflects further than the other – further than 105 millimetres. If it’s greater than 105, then it’s therefore noncompliant.

MEMBER: So that sort of makes sense on a metal fence?

Ms Crozier: ---Yeah.

MEMBER: On a paling fence?

Ms Crozier: ---Not so much on a paling fence and I do question why Ms Brearley may have put it in there, but there may have been other aspects of the fence – I can’t remember for – for sure – in fact, actually, well, there are. There are other aspects of the fence which, in fact, are aluminium - - -

There are, yes?--- - - - very similar to where - - -

There are, yes?--- - - - that gate is. So - - - 

Yes?--- - - - that may be what Ms Brearley was referring to.

  1. [129]
    The question arose about the application of the “squeeze test” where a capping had been added to a paling, as opposed to a metal fence or full-length palings.  Ms Crozier responded:[19]

Member:  - - - whether, I guess, that top section would carry the same level of structural integrity as the rest of it?

Ms Crozier: ---Look, it’s – it’s a – it’s a worthy point and I did consider that through my investigation, but I am not – my role is not to question the decision of the pool safety inspector when they have provided evidence, when they have provided their check sheet, when they have provided, you know, all of the relevant documentation, including the fact that my visual observance was that each of those cappings, for want of better words, was screwed on with two screws. 

  1. [130]
    When questioning Ms Crozier about strength and rigidity testing, Mr Davey said:[20]

So, Ms Crozier, would you agree that in, practically speaking, when you’re attending site and you are testing the loading requirements under Section 3, that it is entirely appropriate to do what I would call a push and pull test, the application of force in either a pushing motion or a pulling motion to what is the standard report that’s actually literally contained in Section 3?‑‑‑Yes, visual assessment and that pushing and pulling motion, more so pushing because the child will be pushing against the barrier in order to actually climb, if that is what they’re doing.

  1. [131]
    This in my view introduced a third form of strength and rigidity test, the “push and pull test”.  The “squeeze test” as it was described in the hearing is about applying force (of a handshake of the inspector’s less dominant hand) by squeezing together vertical members to determine the amount of deflection of one, the other, or both.  The “push and pull” test seems directed to individual palings.
  2. [132]
    Section 3, clause 3.3 of AS1926.1 is headed: “Strength of Fencing Components”.  Subclause 3.3.1 addresses “Rigid components”.  Rigid components include: “… palings, pickets, and the like”. Specifically, components must be capable of sustaining a force of 250 N without any component becoming permanently deformed; and sustaining a force of 330 N (approximately 33 kg) without any component breaking, showing signs of fracture, loosening, or becoming permanently deformed by more than 10 mm over its length.  I understand that 250 N equates to the force of a child.
  3. [133]
    The “Note” to the subclause refers the reader back to the method of testing fencing components in the Appendix.  It is the QBCC’s position that the relevant tests are “informative”, not “normative”, and as I later observe, while the Pool Safety guideline might advocate the use of the “squeeze test”, its application appears relevant to aluminium fences rather than paling fences.  Further, apart from a reference to a “push and pull” test raised in a question from the legal representative for the QBCC, there is no instruction or advice that I was directed to from the QBCC or the State government Pool Safety guideline regarding its application. 

Other items of nonconformity

  1. [134]
    Little time at the hearing was taken up discussing the security door which when closed placed the diamond grill within the NCZ. The evidence demonstrated that to be the case.  Ms Brearley accepted that that was the case. The conclusion of Ms Crozier and upheld by the IRU decision was that there was sufficient evidence that the security door was within the NCZ when Ms Brearley issued the certificate. 
  2. [135]
    I am of the same opinion. Ms Brearley could not have been reasonably satisfied that the pool was a compliant pool when she issued the PSC. This is a breach of s 246AW(1)(b) of the Building Act, and a ground for disciplinary action. 
  3. [136]
    The other bases of nonconformity concerned cut tree stumps outside the back fence, and a tree trunk growing through the barrier between the timber palings, all within the NCZ. Golden Cane Palms have an expanding root system and are invasive.  
  4. [137]
    The QBCC in closing written submissions say Ms Brearley failed to identify the numerous foot and hand holds within the NCZ and on that basis she could not have been reasonably satisfied that the pool was a complying pool when she issued the PSC. The evidence supports this conclusion.  

Conclusions – fence capping

  1. [138]
    The evidence before the Tribunal raises questions about what is the correct, and most effective strength and rigidity form of testing to be undertaken in the course of a pool safety inspection involving paling fences.  The form of test referred to in the Appendix to AS1926.1 was said to be “informative” not “normative”.  It seems that that method of testing which requires the use of “force meter” which needs to be recalibrated with each use, being “informative”, is rarely if ever undertaken.  The “cone test” has also seemingly been abandoned in favour of the “squeeze test”.  Apart from its mention in a question from the legal representative of the QBCC, I was not directed to a source or clear annunciation of the “push and pull” test. 
  2. [139]
    Ms Crozier agreed that the “squeeze test” as provided for in the Pool Safety guideline seems directed at aluminium fences. The photographic evidence would suggest that applying a “squeeze test” to neighbouring vertical metal bars would be less of a “stretch of the hand” than it would be to spaced vertical wooden palings. The wider the actual paling, the less force a person is capable of applying – which would render the test ineffective.
  3. [140]
    I am of the view that the IRU Decision Notice addressed issues concerning the strength and rigidity of fence capping in a deficient manner by accepting the outcome of a test (“cone test”) that appears irrelevant to the issue, and which I was informed is no longer applicable under the Pool Safety guideline. 
  4. [141]
    The issues raised and those which emerged at the hearing concerning the fence capping, while not listed individually as a nonconformity, were taken into account and formed part of the reasons for decision, leading to findings against Ms Brearley and a penalty imposed. Even if a separate nonconformity had been presented, as I say above, Ms Brearley appears to have complied with the State guidelines which interpret the AS1926.1 as they were understood at the time.
  5. [142]
    The only evidence concerning the condition, strength and rigidity of the fence cappings as they were on 4 March 2020 is Ms Brearley’s report, and the correspondence concerning that report.  On 11 May 2020 Ms Brearley noted that some of the cappings were loose.  On 19 May 2020 Mr Nesbit reported that the cappings did not appear adequately secured and would not meet the “strength and rigidity required”. 
  6. [143]
    The growth and movement of tree limbs over and through the palings between March and May 2020 is an explanation for the loosening of the cappings that cannot be discounted – such that by May 2020 some cappings would not meet the necessary strength and rigidity test.  That does not mean they were not secure on 4 March 2020.  At that time they were newly installed.  They were however perhaps vulnerable due to the type and density of vegetation and the likely movement of trunk, branches and fronds over and around the palings.
  7. [144]
    I would comment that the evidence in this matter suggests that there is a lack of clarity, which can lead to inconsistency in application, as to the correct strength and rigidity test to be applied in a case such as this.  This is critically important to the training given to PSIs to equip them to properly do their job, and ultimately to ensure pool safety. Ms Brearley applied the strength and rigidity test as she was trained and as she understood it to be.  The evidence does not support a conclusion that she did not test the fence for strength and rigidity, or that she incorrectly applied the test, it is whether the test was apposite. The test Ms Brearley undertook was, to her knowledge, experience and understanding, the test that met the guidelines.  The form, content and clarity of the guidelines are the responsibility of the Department of Housing and Public Works on the advice of the QBCC and they could benefit from revision.

Outcome

  1. [145]
    I note the outcome of the Internal Review at [59]-[60]. A ground for disciplinary action had not been established in respect of nonconformity 1, but in respect of nonconformity 2 a ground for disciplinary action had been established in respect of the security door grill, some tree stumps, tree trunk and horizontal rail.
  2. [146]
    That in my view is the correct decision.
  3. [147]
    In failing to identify numerous foot and hand holds within the NCZ, including the security door grill, tree trunks growing between the fence palings, and tree stumps that allowed climbing, Ms Brearley ought not to have been reasonably satisfied the pool was a complying pool in contravention of clause 2.1 AS1926.1 when she issued the PSC on 4 March 2020. 
  4. [148]
    This conduct amounted to a ground for disciplinary action and established that Ms Brearley acted below a proper standard of behaviour.  She did not carry out her functions as a PSI properly or reasonably.
  5. [149]
    There is insufficient evidence for me to be satisfied that other issues of possible non-compliance raised at the hearing, including the allegation that fencing failed the required strength and rigidity testing, existed on 4 March 2020.  The non-conformities concerning the plant growth through and near the palings rendering them climbable, were in my view expressed so as to take account of all such instances and did not require separate identification of classification as a nonconformity.
  6. [150]
    As noted at [46] where a ground for disciplinary action against the PSI is established, the QBCC Commissioner must notify the PSI and take at least one of the actions described in s 246CY(4) of the Building Act. In this case a fine of $400 was imposed.  The QBCC submitted that taking account of mitigating factors there should be no change to the decision as to penalty.
  7. [151]
    The mitigating factors were that Ms Brearley was a first time offender, and has not committed any further offences.  I accept that at the hearing Ms Brearley was contrite. She made no submission to contest the decision of the QBCC to discipline and fine her.  Mr Marigliano made no submission on penalty, in fact he said in the hearing that he did not wish for her to be punished further.
  8. [152]
    Having considered the evidence and submissions I am of the view that the fine imposed is appropriate in the circumstances and is the correct decision. 
  9. [153]
    The IRU decision is affirmed.

Footnotes

[1] T1-167 lines 41-46; T1-168 lines 1-25; T2-9 lines 43-49; T2-10 lines 1-8.

[2] Building Act 1975 s 246AW(1).

[3] Statement of Reasons, 304-5.

[4] Drew v Queensland Building and Construction Commission [2015] QCAT 11 [85].

[5] SOR 274-275.

[6] SOR 304.

[7] T2-17 lines 15-28.

[8] T1-44 lines 11-12.

[9] T1-84 lines 31-44.

[10] SOR 327-328.

[11] SOR 412-413.

[12] T2-106 lines 5-16, 32-43.

[13] SOR 279-280.

[14] SOR 120, 632.

[15] T1-82 line 28.

[16] T1-143 line 13.

[17] T1-148 lines 9-14.

[18] T1-149 lines 39-47; T1-150 lines 1-17.

[19] T1-150 lines 22-28.

[20] T2-99 lines 19-26.

Close

Editorial Notes

  • Published Case Name:

    Marigliano v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Marigliano v Queensland Building and Construction Commission & Anor

  • MNC:

    [2025] QCAT 57

  • Court:

    QCAT

  • Judge(s):

    Judicial Member JR McNamara

  • Date:

    05 Feb 2025

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
Drew v Queensland Building and Construction Commission [2015] QCAT 11
2 citations
Jump To
Cite 1 - [2015] QCAT 11
Cite 2 - [2015] QCAT 11
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
Neller v Queensland Building and Construction Commission [2016] QCAT 353
2 citations
Jump To
Cite 1 - [2016] QCAT 353
Cite 2 - [2016] QCAT 353

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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