Queensland Building and Construction Commission v Richardson
[2015] QCATA 85
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- Unreported Judgment
- Queensland Building and Construction Commission v Richardson[2015] QCATA 85
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Queensland Building and Construction Commission v Richardson[2015] QCATA 85
Queensland Building and Construction Commission v Richardson[2015] QCATA 85
CITATION: | Queensland Building and Construction Commission v Richardson [2015] QCATA 85 |
PARTIES: | Queensland Building and Construction Commission (Applicant/Appellant) v Troy Christopher Richardson (Respondent) |
APPLICATION NUMBER: | APL195-14 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard, Presiding Member Member A Fitzpatrick |
DELIVERED ON: | 19 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – whether errors of law – Building Certifier – professional misconduct – construction of words ‘causative of a compromise’ Building Act 1975 (Qld) s 204, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2013] QCAT 113 Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 137 |
APPEARANCES: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). | |
REASONS FOR DECISION
- [1]Mr Richardson is a building certifier. He certified a retaining wall, which eight months later failed catastrophically. Approximately 60 metres of the wall collapsed on and damaged adjacent residential property. The retaining wall was not constructed in accordance with the engineer certified drawings and Form 15.
- [2]The Queensland Building and Construction Commission (QBCC) determined on 6 February 2012 that pursuant to s 204 of the Building Act 1975 (Qld) (Building Act), Mr Richardson had engaged in professional misconduct arising out of his certification of the retaining wall. Mr Richardson applied for the Tribunal to review the QBCC’s decision. The Tribunal set aside the QBCC’s decision and substituted its decision that Mr Richardson had engaged in unsatisfactory conduct.
- [3]The QBCC asserts that the Tribunal erred in law in a decision delivered on 8 April 2014 (the second decision).[1]
- [4]The second decision followed a decision of the Appeal Tribunal, dated 5 November 2013, that the learned Member’s original decision, dated 26 February 2013 (the first decision)[2] be set aside and that the decision be remitted back to the Tribunal pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), at first instance to:
- a)make a finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of professional misconduct; either that the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not;
- b)consider afresh whether the Certifier’s conduct was professional misconduct or unsatisfactory conduct within the meaning of those expressions in the Building Act;
- c)make any further findings of fact or draw any inferences arising from the evidence heard by the Tribunal as may be required.
- a)
- [5]The parties agreed that they interpreted the decision of the Appeal Tribunal as requiring submissions on the law and that no order had been made pursuant to s 146(c)(i) of the QCAT Act for new evidence to be heard.
- [6]The learned Member told the parties that in order to deliver a written decision in the matter he would hear oral submissions, refer to the written submissions filed pursuant to the Directions of the Appeal Tribunal, refer to the evidence on the basis of the transcript of the original hearing and refer to the transcript of the Appeal proceedings.
Findings in the second decision
- [7]The second decision set out the background facts which were uncontentious. The learned Member said that he did so in order to avoid the parties having to refer back to his original decision in order to understand the second decision.
- [8]After setting out the applicable law by reference to the definitions of unsatisfactory conduct the learned Member found that:
- a)there were steps that Mr Richardson did not take, including:
- viewing the wall from the front and in its entirety on the re-examination; and/or
- seeking to obtain and view any photographs taken by the neighbours; and/or
- requiring an updated engineer’s report, as the state of the wall had deteriorated visibly from the description in the engineer’s report of Bruce and Associates, and a significant period of time had elapsed since the date of the report; and/or
- having proper regard to the impact of the GHD report.
- b)Failure to do these things was reckless or careless.
- c)Mr Richardson’s conduct demonstrated a lack of adequate judgment or adequate diligence, or care in performing private certifying functions. Accordingly, unsatisfactory conduct is made out, as defined in sub paragraph (a) of the definition, set out in Schedule 2 of the Building Act.
- d)The steps that Mr Richardson did not take, were steps that a diligent and careful private certifier exercising good judgment would have taken, and which the public or the building certifier’s professional peers might reasonably expect to have been taken. Accordingly, Mr Richardson’s conduct fell below that described in subparagraph (c) of the definition of unsatisfactory conduct.
- e)Mr Richardson’s conduct demonstrated a lack of adequate judgment, or adequate diligence, or care in performing building certifying functions. Accordingly, professional misconduct; is made out as defined in sub paragraph (a)(i) of the definition set out in Schedule 2 of the Building Act.
- f)Mr Richardson’s conduct was contrary to a function under the Act or another Act regulating building certifiers, in particular ‘disregarding relevant and appropriate matters’. Accordingly, paragraph (a)(iii) of the definition of professional misconduct is made out.
- g)Subparagraph (a)(ii) of the definition of professional misconduct is not made out, because the certifier’s conduct was not causative of a compromise to the health and safety of others, because the learned Member could not be reasonably satisfied that it was Mr Richardson’s conduct that was causative of a compromise to the health and safety of others having regard to:
- the reliance that Mr Richardson placed upon the engineering advice which he did have available to him; and
- the failure of two engineers and the Authority (QBCC), to determine there was a compromise to the health and safety of others; and
- the uncertainty as to the outcome of a careful inspection and further investigation being required by Mr Richardson; and
- the context of the history of the matter.
- a)
Grounds of appeal
- [9]The QBCC’s grounds of appeal are:
- a)the learned Member erred in law in construing the term professional misconduct as that term is used in the Building Act, in particular the words compromises health and safety (as used in subparagraph (a)(ii) of the definition).
- b)The learned Member erred in law in determining whether the facts as found fall within the statutory definition of professional misconduct as that term is used in the Building Act, in particular where the facts as found fall within the words compromises health and safety.
- a)
- [10]Written submissions were filed by the parties in relation to the grounds of appeal.
- [11]We accept that the matters raised by the QBCC are potential errors of law, entitling it to appeal without leave.
Submissions by the QBCC and Analysis
- [12]The QBCC submits that the learned Member misconstrued the meaning of professional misconduct insofar as compromising health and safety is concerned. It is submitted that compromise means to endanger or expose to risk. The QBCC submits that the learned Member touched on the meaning offered by the QBCC, but gave no real analysis of the meaning of the words in the context of the definition or application of the findings of fact to the definition.
- [13]It is submitted that to be causative of a compromise, the Tribunal need only be persuaded that the conduct of Mr Richardson endangers or exposes a person’s safety to risk. Further, the QBCC submits that the definition does not require that the conduct of Mr Richardson cause a person to be unsafe or to be unhealthy it merely requires the conduct to endanger or expose to risk the safety or health of a person.
- [14]We note from the second decision at [82]-[85] that the learned Member understood the QBCC’s submissions in this regard. It is true that he does not address the dictionary meaning of compromise and find that any one of its meanings should be utilized in construing the word in the definition of professional misconduct. We do not consider that he is bound to do so. The word bears its meaning, with all its nuances, in its context in the Building Act, in the phrase in which it is used.
- [15]The learned Member expressly rejected Mr Richardson’s contention that the question of causation is ‘Did the Final Inspection Notice cause the wall to fall down’. The learned Member states the question for him as - whether the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not, as required by the Appeal Tribunal’s order.[3] To adopt the QBCC’s submissions, the question the learned Member would be required to address is whether Mr Richardson’s conduct caused an exposure to risk to the health and safety of a person. The QBCC is contending for a low bar in construing the phrase and a narrow field of enquiry.
- [16]We do not think the learned Member was in error in finding that he must look at the conduct of Mr Richardson in its context, which he then proceeded to do and made four specific findings on the evidence.
- [17]The QBCC says that the facts as found in the first decision show Mr Richardson’s conduct was causative of a compromise to the health or safety of a person. It is submitted that the learned Member ignored facts as found in the first decision on issues of risk and safety, which it says should have been applied to definition of compromise.
- [18]The facts said by the QBCC to have been found by the Tribunal and deleted from the second decision, included [26], [30], [40] and [43] of the first decision. The QBCC particularly referred to deletion of the following:
[44] However, Mr Pehrson, who is a Senior Audit and Investigation Officer with the QBSA, and an experienced building certifier, described the wall as a significant construction which should be assessed carefully, having regard to its height, and mass of concrete filled blocks and reinforcing steel, the earth backfill, and the hydrostatic pressures that would come into play, all of which give rise to obvious safety implications.
[45] The eventual fate of the wall, which collapsed on to the neighbour’s property below, as they feared, is evidence of the validity of Mr Pehrson’s comments.
[46] The fact that the neighbours were able to discern movement in the wall, and to have such concerns as to its integrity which led them to commission a report by Engineers, is also testimony to the fact that here was a disaster looming that was evident, and waiting to happen. It was a danger that was readily apparent, and one which Mr Richardson should have apprehended and had regard to, when he made his final inspection.[4]
- [19]The QBCC says that [44] was a finding that there were ‘obvious safety implications’; and at [46] that there was a finding:
… here was a disaster looming that was evident, and waiting to happen. It was a danger that was readily apparent, and one which Mr Richardson should have apprehended and had regard to, when he made his final inspection.
- [20]It is submitted that Mr Richardson’s failure to have regard to the readily apparent ‘looming disaster’ was the conduct of Mr Richardson that was causative of a compromise to the health or safety of a person.
- [21]We recognize the significance of the statement that:
… here was a disaster looming that was evident (our emphasis) and waiting to happen. It was a danger that was readily apparent (our emphasis) and one which Mr Richardson should have apprehended and had regard to when he made his final inspection.
- [22]We also recognize that such a finding appears inconsistent with the finding in the second decision (summarized at [113(c)]), that there was uncertainty of outcomes of a careful inspection and further investigation by Mr Richardson.
- [23]In this regard, we doubt that the statement in the first decision at [46] is a finding of fact. It seems to us to be part of a discussion about Mr Richardson’s conduct without a concluded finding. In particular, the nature of the ‘looming disaster’ is not identified. The discussion follows a reference to the neighbours having discerned movement in the wall, which prompted them to engage an engineer. It is possible that the learned Member was suggesting signs of movement in the wall may have been apparent. It is not clear. Also, even if they were findings, they did not go to the essential question identified by the Tribunal having regard to the remitter, that is whether the certifier’s conduct was causative of a compromise to the health and safety of others, or not. To reiterate, the Appeal Tribunal in its Order, dated 5 November 2013 required the learned Member to ‘consider afresh whether the Certifier’s conduct was professional misconduct…’ and ‘to make any further findings of fact or draw any inferences arising from the evidence.’
- [24]Because of the error found and the Appeal Tribunal’s order to consider the issue afresh, we do not consider that earlier findings are required to be repeated by the learned Member in the new decision. Indeed that would be impossible if a fresh analysis having regard to the proper test resulted in a different finding. The learned Member both identified the test and analysed the evidence in the second decision. His emphasis on causation gave rise to more refined thinking in relation to the available evidence. His finding was that there was in fact no evidence as to what a more careful inspection might reveal as to the fundamental flaw in the wall. This finding is one foundation stone for the conclusion that Mr Richardson did not cause a compromise to the health and safety of others. There is no suggestion in the QBCC’s submissions that there was evidence - as opposed to the asserted finding, to which the learned Member should have had regard. We find that the learned Member looked at the evidence and formed an appropriate conclusion. That is not a conclusion there is any reason to disturb.
- [25]Further to the criticism that the learned Member failed to apply the facts found in the first decision to the statutory expression ‘caused a compromise’, it is said that the learned Member overstated what needs to be shown to demonstrate that there was a compromise to health and safety. The QBCC submits that it is not necessary to show that serious defects could have been detected by Mr Richardson to demonstrate that there was a compromise to health and safety. It is sufficient, in its view, to rely on the findings made in the first decision. By this we take the QBCC to mean that if there was cause for some mere apprehension as to danger or risk then Mr Richardson has caused a compromise to health and safety of others by failing to act on that apprehension. To accept this submission would be to open an allegation of professional misconduct to a broad array of low level risks attendant on people’s health and safety, with unspecified ranges of probability. That is not consistent with the serious consequences of a finding of professional misconduct.
- [26]We do not consider the learned Member is in error in the way in which he has analysed the evidence and applied it to the legislation. We do not think the learned Member has set the bar too high or overstated what is required. The learned Member considered whether it was shown on the evidence that serious defects could have been detected by Mr Richardson, leading to a compromise to the health and safety of others. This consideration was only part of the total enquiry made by the learned Member into the question of causation of a compromise to health and safety of others.
- [27]The QBCC submits that the Tribunal was in error by having regard to the conduct of persons other than Mr Richardson in assessing whether it was Mr Richardson’s conduct which was causative of a compromise to the health and safety of others. It is submitted that the statutory definition makes no allowance for the conduct of others to be taken into account in determining whether Mr Richardson’s conduct compromised health and safety.
- [28]Plainly, it is Mr Richardson’s conduct which is under scrutiny and to whom the allegation of professional misconduct applies. However his conduct is part of a matrix of facts. Where the conduct of others played a role in the ultimate failure of the wall, their role cannot be excluded from a consideration of all the relevant facts. That is not to say that Mr Richardson’s role is to be scrutinized any the less. We do not think there has been any error in the learned Member relying on ‘the context of the history of the matter’ as one of the four bases on which he decided that Mr Richardson’s conduct was not causative of a compromise to the health and safety of others.
- [29]For these reasons, we do not accept the submissions of the QBCC. We find that the grounds of appeal are not made out. Given this finding we do not intend to deal further with the submissions made on behalf of Mr Richardson.
Orders
- [30]It is ordered that:
- The appeal is dismissed.
- The decision of the Tribunal dated 8 April 2014 is confirmed.
- Troy Christopher Richardson must file and serve any application for costs, together with supporting written submissions by: 4:00pm 27 July 2015.
- Queensland Building & Construction Commission must file and serve any written submissions in response by: 4:00pm 10 August 2015.
- Troy Christopher Richardson must file and serve any written submissions in reply by: 4:00pm 24 August 2015.
- Unless otherwise ordered, any application for costs will be determined on the papers without an oral hearing not before 25 August 2015.
Footnotes
[1] Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 137.
[2] Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2013] QCAT 113.
[3] Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 137 at [100] and Order 5 November 2013.
[4] Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2013] QCAT 113 at [44]-[46].