Brooks v Queensland Building and Construction Commission - [2023] QCAT 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brooks v Queensland Building and Construction Commission [2023] QCAT 25

PARTIES:

JEFFREY BROOKS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR111-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 January 2023

HEARING DATE:

22 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The decision of the Queensland Building and Construction Commission made on 30 November 2020 that the applicant engaged in professional misconduct with respect to item seven is set aside and substituted with a decision that the applicant engaged in unsatisfactory conduct with respect to item seven.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – BUILDING CERTIFIER – DISCIPLINARY PROCEEDINGS– where certifier signed inspection reports and certified relying on inspections by others – where fire safety requirements not met - whether compromise to health or safety of person or amenity of property – whether unsatisfactory conduct or professional misconduct

Building Act 1975 (Qld) s 83(1), s 129, s 190, s 194, s 204, sch 2

Building Regulation 2006 (Qld), s 27, s 29, s 35B(1)
Queensland Building and Construction Commission Act
1991 (Qld) s 86E, s 87
Queensland Civil and Administrative Tribunal Act 2009

(Qld), s 3, s 19, s 20, s 21, s 28

Barker v Wingo 407 U.S. 514 (1972)

Briginshaw v Briginshaw (1938) 60 CLR 336
Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541
Brown v Dunne (1893) 6 R 67
Brown v Queensland Building and Construction Commission (No. 2) [2016] QCAT 7
Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138
Doolan v Queensland Building and Construction Commission [2017] QCAT 58
Drew v Queensland Building and Construction Commission [2015] QCAT 11
Fitzgerald v Building Professionals Board [2013] NSWADT 299
Kay v Queensland Building and Construction Commission [2014] QCAT 421
Queensland Building and Construction Commission v Richardson [2015] QCATA 85
Queensland Building and Construction Commission v
Wood [2019] QCAT 101
Schwede v QBSA [2009] QCCTB 157
Troy Richardson’s Building Approvals & Inspections v QBSA [2013] QCAT 113
Troy Richardson’s Building Approvals and Inspections v Queensland Building and Construction Commission [2014] QCAT 138
Wentworth v New South Wales Bar Association [1992] HCA 24

Van Eyk v Queensland Building and Construction Commission [2020] QCAT 278

APPEARANCES & REPRESENTATION:

Applicant:

P Jeffrey of Counsel, instructed by Barry Nilsson Solicitors

Respondent:

S Lee, inhouse Solicitor

REASONS FOR DECISION

What is this application about?

Jeffrey Brooks is a Level 1 accredited building certifier previously employed by the then Caboolture Shire Council (CSC). The Queensland Building and Construction Commission (QBCC) is the authority responsible for certifier licensing, investigating complaints against certifiers and disciplining certifiers.
On 15 September 2019 the QBCC received a complaint[1] from the body corporate for a townhouse development at Deception Bay about the conduct of Mr Brooks in relation to thirteen items, including, relevantly, alleged non-compliance with fire separating construction requirements…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 25
Decision Date

CaseChat Overview and Summary

The case involved an application by Jeffrey Brooks, a Level 1 accredited building certifier, to review a decision of the Queensland Building and Construction Commission (QBCC) that he had engaged in professional misconduct in relation to a certification error in a townhouse development at Deception Bay. Brooks sought a substitution of the finding of professional misconduct for a finding of unsatisfactory conduct. The legal issues were whether the certification error amounted to unsatisfactory conduct or professional misconduct under the Building Act 1975 (Qld). The tribunal found that Brooks had engaged in unsatisfactory conduct but not professional misconduct. The tribunal considered the unique circumstances of the case, including Brooks' reliance on building inspectors, the passage of time since the error occurred, and Brooks' inability to produce documentary evidence to support his evidence due to the amalgamation of councils and the destruction of records. The tribunal concluded that the circumstances did not justify a finding of professional misconduct, given the serious consequences of such a finding and the need for fairness in the proceedings. The decision of the QBCC was set aside and substituted with a finding of unsatisfactory conduct.

Orders