Gary John Holley t/as Applied Building Approvals v Queensland Building Services Authority
[2013] QCAT 506
| CITATION: | Gary John Holley t/as Applied Building Approvals v Queensland Building Services Authority [2013] QCAT 506 |
| PARTIES: | Gary John Holley t/as Applied Building Approvals (Applicant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR308-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the respondent that the applicant has engaged in professional misconduct is set aside and instead there be a decision that the applicant has engaged in unsatisfactory conduct. 2. The respondent must file and give to the applicant any submissions on sanction by 4:00pm on 25 October 2013. 3. The applicant file and give to the respondent any submissions in reply by 22 November 2013. 4. Unless otherwise objected to in writing by either party within 14 days of the receipt of this decision the question of sanction will be determined on the papers without an oral hearing. |
| CATCHWORDS: | Certifiers – where a Form 16 Final Stage Framing certificate issued to the homeowner in error – where framing stage not complete – where complaint to the respondent – where Form 16 signed by the certifier but issued without his knowledge – whether the issuing of the Form 16 was professional misconduct or unsatisfactory conduct. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr K Flehr of Kim Flehr Lawyers |
| RESPONDENT: | Represented by Mr Bird of the Respondent. |
REASONS FOR DECISION
Mr Holley is the principal of Applied Building Approvals. He entered into a contract with Natasha and Ian Hayes to provide building certification services for building work they intended to carry out at their residential premises at Sandgate.
Once engaged, Mr Holley approved the development work which involved raising and renovating the house. During the course of the renovation work, Applied Building prematurely issued a Form 16 final certificate for the Frame Stage. The effect of the Form 16 certifies that the Frame Stage of the renovation work was complete and complied with the Building Code of Australia. The Form 16 was dated 3 March 2011 and was given to the Hayes on 25 March 2011. Mr Holley says that he was unaware that the Form 16 had been issued and on being told by the builder, Mr Williams, that it had, he immediately wrote to Mr Williams and to the Hayes to say that the internal cladding of the renovation could not be completed until a “form 16 had been issued”. Mr Holley says that the Form 16 was issued due to an administrative error in his office.
Because the Form 16 was issued when the Frame Stage was quite obviously not complete, the Hayes made a complaint to the Queensland Building Services Authority. After investigation of the complaint the Authority made a decision on 3 August 2012 that Mr Holley had engaged in professional misconduct because he had not complied with section 26 of the Building Regulation 2006.
On 31 August 2012 Mr Holley filed an application to review the Authority’s decision. The function of the Tribunal on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] The Tribunal can confirm, amend the decision or set aside the decision and substitute its own decision. It can also refer the matter back to the decision maker for further consideration.[2]
[1] QCAT Act s 20.
[2] QCAT Act s 24.
Further background
After being contacted by the Hayes, Mr Holley provided a quote for the certification work to be carried out by him for the proposed works. The Hayes accepted the quote and a Decision Notice issued in respect of the proposed works on 15 June 2010 approving the development. The Decision Notice provided for mandatory inspections, which included a footing inspection by an ABA certifier, slab inspection by an RPEQ[3] Engineer and a frame inspection by an RPEQ Engineer. The final inspection was to be carried out by a certifier, Mr Holley.
[3] Registered Professional Engineer Queensland.
The works were commenced by Mr Williams. The existing house was lifted and the area downstairs was built in on a concrete slab. The works got to a point where the downstairs area was framed up but with no external cladding. The Hayes wanted to move in to the downstairs area so renovation work could then be carried out to the upper floor but to do this, obviously, the external cladding had to be applied to the downstairs frame as constructed.
On 23 February 2011 Mr Williams wrote to Mrs Hayes asking for a frame inspection, as he wanted to start the sheeting of the external wall that week. He offered an alternative that he could photograph the internal framing for certification purposes, presumably, if an inspection could not be arranged. As a consequence Mr Holley inspected the frame on 24 February 2011. His onsite inspection report notes “completion of frame OK lower ground floor”.[4] At the onsite inspection Mr Williams[5] says Mr Holley authorised him to proceed to put the external cladding only on the ground floor of the structure which left the internal frame exposed for further inspection.
[4] Exhibit 1 – GJH – 10.
[5] Exhibit 3 – paragraph 6.
Then, on 25 March 2011, Mrs Hayes emailed Sarah Kerry, an employee of Mr Holley’s and made the following request:-
“Hi Sarah, as discussed could you please provide copies of the Footing and Frame inspection documents for our property at 27 Seaview Street, Brighton. I need them quite urgently so ASAP would be greatly appreciated. Thanks heaps.”
Later that day at 4:34pm Sarah Kerry sent an email to Mrs Hayes enclosing the Form 16 Footing Inspection Certificate and the Form 16 Frame Inspection Certificate to Mrs Hayes. The Form 16 Footing Certificate is dated 29 June 2010 and signed by G Holley and the form 16 Frame Certificate is dated 3 March 2011 and signed G Holley. Both documents have Mr Holley’s electronic signature attached to them and that is conceded.
Mrs Hayes gave the frame certificate to Mr Williams at the end of March. Mr Williams’ evidence is that he told Mrs Hayes that the certificate was not correct because Mr Holley had not inspected the entire frame because it was “far from finished”. He then contacted Mr Holley and told him about the Form 16. Mr Williams’ records that Mr Holley appeared “surprised and extremely upset”. At an onsite inspection on 11 April 2011 Mr Holley confirmed that the certificate had been issued without his authority and he then sent a letter to Mr Williams on 15 April 2011, copied to the Hayes, in the following terms:-
“A site visit on 11 April 2011 has found that not all frames were inspected, the upper floor has had the internal cladding removed and windows replaced. A final frame inspection is required for the upper floor frame with all tie downs installed. The internal cladding cannot be installed until a final frame inspection has been done and a Form 16 has been issued.”
There is no evidence of any further discussion between Mr Holley and the Hayes however, as I indicated, a complaint was lodged with the Queensland Building Services Authority on 13 July 2011. The complaint is dated 2 July 2011. Part of the complaint is that Mr Holley would not withdraw the Form 16 certificate. Mr Holley says, and I accept, that once it is issued it cannot be withdrawn and that’s why he sent the letter of qualification to Mr Williams and Mrs Hayes after the meeting on 11 April 2011.
The Authority sent the complaint to Mr Holley for a response. He wrote to the Authority on 15 September 2011 and set out the history of his inspections, which are confirmed by his inspection reports and notes on the plan. With respect to the inspection carried out on 24 February 2011 Mr Holley set out what occurred on that day indicating that he only inspected the lower floor as there was no access to the upper floor. He records that an email was received from Natasha Hayes requesting the footing and frame inspection documents but does not address how or why an email was sent to Mrs Hayes enclosing the certificates.
He then dealt with the onsite inspection on 15 April and the letter about the outstanding issues. He does not address, in the letter, how or why the Form 16 issued from his office. Even so, in its letter of decision, the Authority recognises that the “issuing of this Form 16 for the whole of the dwellings frame stage may have been an administrative error on the part of the certifier, but the builder has continued with the construction covering portions of the frame”. The mistake may have been that the certificate should have been for an “Aspect” as opposed to the frame stage.
I should say something about the difference between a “stage” and “aspect” for the purposes of certification. In the Guidelines for Inspection of Class 1 and 10 Buildings and Structures,[6] the frame stage is divided into various aspects. The various aspects include: sub-floor framing, lower floor wall framing, upper floor wall framing, floor framing and flooring, insulation for energy efficiency requirements, structural walls and roof and ceiling framing. Mr Holley’s evidence is that the certifier may be required to inspect each aspect for the particular structure and only when all aspects of the particular structure are compliant, will a Form 16 Frame Stage final certificate issue.
[6] Exhibit 5 – page 13.
Why did the certificate issue
Mr Holley says he did not authorise the issuing of the Form 16 to Mrs Hayes on 25 March 2013. The inference I am asked to draw from these events is, that Ms Kerry issued the Form 16 without Mr Holley’s express authority. Ms Kerry has provided a statement and was called for cross examination. Her evidence is that she had been working in Mr Holley’s practice for some years. One of her primary tasks was the preparation of inspection certificates based on the instructions from Mr Holley. She says that part of her express instructions were that certificates once prepared, had to go to Mr Holley for approval before they were sent out. Furthermore, stage certificates could only be sent to the builder.
She said she recalled having a number of discussions with Mrs Hayes about the project although she has no direct recollection of the email from Mrs Hayes. On seeing the email and her response, she accepts that it must have been sent by her but does not recall it. However, she says in her statement she “will not take responsibility for any administrative error as I would have not issued any certificates without Gary’s approval.”[7] She also says that she wasn’t aware that the final frame certificate had to be endorsed by a registered engineer.
[7] Exhibit 2 – paragraph 11.
There is no evidence from either Ms Kerry or Mr Holley that there was any discussion between them on 25 March 2011 about the issuing of the Form 16. Ms Hayes was not asked and does not attest to any such conversation. Mr Holley does not make reference to any conversation in his statement, and was not asked during cross-examination if there was any such discussion. Simply put there is no evidence of what or what might not have transpired between Ms Kerry and Mr Holley that day. Ms Kerry does make the observation that if the certificates were emailed to Mrs Hayes without having been authorised by Mr Holley that would have been an administrative error and contrary to the procedure that Mr Holley had directed to be utilised in the office.
It seems to me that the only inference one can draw from the known facts is that by reference to the inspection report after the footing was inspected on 25 June 2010 a certificate was prepared on the template with Mr Holley’s electronic signature attached and not printed or published. It must have been “saved” in the computer system. Similarly, after the inspection on 24 February 2011 a stage certificate for the frame was prepared again using the template with Mr Holley’s signature on 3 March 2011 and saved in the system.
In the absence of any evidence to the contrary, or evidence of discussions between Ms Kerry and Mr Holley on 25 March 2011, it seems that on receiving the request from Mrs Hayes, Ms Kerry must have retrieved the pre-prepared certificates from the system and then attached them to an email and emailed them to Mrs Hayes. The evidence as it presently stands simply does not permit me to make a finding that Mr Holley authorised the issuing of the stage certificate to Mrs Hayes in circumstances where: the frame of the building was far from complete; the request for the inspection was with respect to sheeting the outside of the downstairs area only; Mr Holley had no means of inspecting the upstairs area; the final stage certificate had to be issued by a registered engineer and finally, there is simply no motive as to why Mr Holley would issue a frame stage final certificate at this point in the construction.
What emerges from the known facts is that the system operating in Mr Holley’s office allowed for a completed final certificate to be prepared and remain in the computer system which could be printed and sent to either a home owner or a builder at any time by any staff member. I appreciate that the instruction was not to send out a Form 16 unless approved by Mr Holley however, the fact that it was prepared and remained in the system and sent without his express approval with an electronic signature attached is somewhat troubling. It leads to a situation where, as here, a staff member seeing the signature attached may think that it has been approved by Mr Holley.
The Authority has referred me to a number of decisions where a professional person has been held accountable for the conduct of an employee particularly, in disciplinary proceedings. In Legal Services Commissioner v Baker [2005] LPT 002 it was held that a legal practitioners duties to a client are not avoided simply by “delivering that client into the care of an employee, whether or not that employee is legally qualified.” The notion that a professional person would be vicariously liable for the conduct of staff in so far as it would impact on a client is unremarkable.[8]
[8] Law Society of New South Wales v Foreman (1991) 24 NSWLR 238; re Mayes and the Legal Practitioners Act [1971] 1 NSWLR 19.
I accept that the issuing of a final stage certificate is a serious matter because it certifies that the building structure complies with the Australian Standards and the Building Code of Australia. It seems a little unusual that Mrs Hayes, having asked for the final certificate and upon it being issued when she knew full well that the framing stage had not been completed, more or less acting in the role of owner builder, then complained to the Authority. Be that as it may. Mr Holley should not have had a system in place where a certificate could be supplied to a homeowner or builder without his specific knowledge.
Is the conduct misconduct?
I have been provided with a copy of the code of conduct for building certifiers which identifies what conduct might constitute unsatisfactory conduct or professional misconduct under the Building Act. It states that:
“There is a distinction between offences of a basic administrative nature defined as “unsatisfactory conduct”, and more serious offences such as significant technical breaches that may compromise the safety of people in buildings, defined as “professional misconduct.”
Examples of what might be regarded as professional misconduct include:
§Incompetence, or lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building certifying functions.
§Compromising the health or safety or a person or the amenity of a person’s property
§Seeking, accepting or agreeing to accept a benefit, whether for the benefit of the building certifier or another person, as a reward or inducement to act in contravention of the legislation.
§Failing to comply with an order of the Building Services Authority or the commercial tribunal.
§Assessing building work as complying with the legislation which significantly conflicts with a local planning scheme.
§Repeated unsatisfactory conduct.
The code also sets out examples of unsatisfactory conduct which is as follows:
§Shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building certifying functions.
§Is contrary to a function under the Building Act 1975 or another Act regulating building certifiers (including private certifiers for building work).
For example:
§ Disregarding relevant and appropriate matters
§ Acting outside the scope of the building certifier’s powers or competence.
§ Contravening the code of conduct.
§ Is of a lesser standard than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
I am urged by the applicant that his conduct does not fall into either category. He says that he did have systems in place, acknowledged by Ms Kerry, that no certification should leave his office without his specific approval. Therefore, he submits, he has discharged his responsibility and should not be found to have engaged in either professional misconduct or unsatisfactory conduct. I do not find the argument persuasive, the very fact that such an important document could be prepared, left in the computer system (presumably in a file relating to the Hayes’ job) and sent to a client without Mr Holley’s knowledge, means that the system was not working and to that extent, that has been acknowledged because his electronic signature is not used on the templates subsequent to this event.
I am not satisfied that the conduct falls within the definition of professional misconduct. It seems clear that the document was sent by mistake and it was a system failure rather than any intentional conduct or action on Mr Holley’s part. This conduct comfortably falls within unsatisfactory as being conduct of a lesser standard than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers. I am therefore satisfied that Mr Holley’s conduct amounts to unsatisfactory conduct.
I propose to set aside the decision of the Authority and substitute it with a decision that Mr Holley has engaged in unsatisfactory conduct. I will make directions as to the filing of submissions on sanction and for the question of sanction to be determined on the papers unless otherwise objected to by either party.
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