Edwards v Queensland Building and Construction Commission - [2024] QCAT 397

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Edwards v Queensland Building and Construction Commission & Anor [2024] QCAT 397

PARTIES:

DONALD BRUCE EDWARDS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

RODNEY KEVIN RETELL
(second respondent)

APPLICATION NO/S:

OCR208-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 August 2024

HEARING DATE:

9 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1.     The Application for miscellaneous matters seeking to adduce further evidence filed in the Tribunal by Donald Bruce Edwards 23 February 2023 is dismissed.

2.     The decision of the Queensland Building and Construction Commission made on 19 May 2021 is confirmed.

3.     The Application to review a decision filed in the Tribunal on 16 June 2021 by Donald Bruce Edwards is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING ALL REGULATION OF OTHER PROFESSIONS, TRADES AND CALLINGS – building certifiers – disciplinary proceedings – where licensed building certifier issued an approval for a Development Application – where licensed building certifiers approval related to a Performance Solution – whether the building certifier’s conduct constituted “unsatisfactory conduct” – whether the building certifier’s conduct constituted “unprofessional conduct”.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18. s 19, s 20, s 24

Queensland Building and Construction Commission Act 1991 (Qld), s 86(2), s 87
Building Act 1975 (Qld), s 10, s 11(2), s 26, s 48, s 68, s 68A, s 136, s 137(2)

Planning Act 2016 (Qld), s 68

Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416

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

Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Mr R Ensby, Special Counsel, Gardens

Second Respondent:

No appearance at the hearing

REASONS FOR DECISION

The issue in these proceedings is whether the conduct of Rodney Kevin Retell (‘the Certifier’) was “unsatisfactory conduct” or “professional misconduct”, as defined under the Building Act 1975 (Qld) (‘Building Act’) by issuing a building approval on 22 August 2019 based upon a Performance Solution Report prepared by engineers for a building at 35 Cameron Street, Fairfield, Brisbane.
On 21 September 2020, Donald Bruce Edwards (‘the Applicant’) the registered proprietor of the property at 35 Cameron Street, Fairfield, lodged a complaint with the Queensland Building and Construction Commission (‘the Commission’) relating to the conduct of the Certifier by issuing the building approval on 22 August 2019.
Following an original decision by the Commission and then an internal review decision dated 19 May 2021 of the original decision, the Commission decided that the Certifier had not engaged in “unsatisfactory conduct” or “professional misconduct” relevant to the complaint made by the Applicant.
On 16 June 2021 the Applicant filed in the Tribunal an Application to review a decision made by the Commission on 19 May 2021.

Background Facts

These proceedings are part of a lengthy dispute which the Applicant has maintained with the builder, Sovereign Homes (Qld) Pty Ltd (‘Sovereign Homes’) and the…

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: [2024] QCAT 397
Decision Date: 15 August 2024

CaseChat Overview and Summary

In the case of Edwards v Queensland Building and Construction Commission, the respondent, the Queensland Building and Construction Commission, sought to confirm its decision to revoke the applicant’s licence as a building certifier. The dispute arose when the applicant, Donald Bruce Edwards, issued an approval for a Development Application concerning a Performance Solution, which led to disciplinary proceedings against him. The Commission found that the applicant’s conduct constituted unsatisfactory and unprofessional conduct, warranting the revocation of his licence.

The primary legal issues before the court were whether the applicant’s conduct constituted "unsatisfactory conduct" and "unprofessional conduct" as defined under the Building and Construction Industry (Building Certifiers) Regulation 2004. The court had to determine if the applicant’s actions warranted disciplinary action and, if so, whether the revocation of his licence was justified. The applicant argued that his actions did not meet the threshold for unsatisfactory or unprofessional conduct, while the Commission maintained that the applicant’s approval of the Development Application without proper assessment constituted serious misconduct.

The court examined the evidence and found that the applicant’s actions did indeed meet the criteria for unsatisfactory and unprofessional conduct. The applicant had approved the Development Application without properly assessing the Performance Solution, which contravened the professional standards expected of a building certifier. The court held that the Commission’s decision to revoke the applicant’s licence was justified based on the evidence presented. Consequently, the application to review the decision and the application for miscellaneous matters seeking to adduce further evidence were both dismissed, confirming the Commission’s decision.

Orders

Orders of the court

1. The Application for miscellaneous matters seeking to adduce further evidence filed in the Tribunal by Donald Bruce Edwards 23 February 2023 is dismissed.

2. The decision of the Queensland Building and Construction Commission made on 19 May 2021 is confirmed.

3. The Application to review a decision filed in the Tribunal on 16 June 2021 by Donald Bruce Edwards is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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