Gary John Holley t/as Applied Building Approvals v Queensland Building Services Authority (No 2)

[2013] QCAT 666

CITATION: Gary John Holley t/as Applied Building Approvals v Queensland Building Services Authority (No 2) [2013] QCAT 666

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: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 11 December 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The applicant is reprimanded

CATCHWORDS:

Sanction – where finding the applicant engaged in unsatisfactory conduct – where no adverse consequences as a result of the conduct.

Building Act 1975 s 204

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 9 September 2013 I made a decision that the applicant had engaged in unsatisfactory conduct as a building certifier.[1]  The parties have now filed submissions on what sanction should be imposed.

   [1]        Gary Holley t/as Applied Building Approvals v Queensland Building Services Authority [2013] QCAT 282.

2. The Commission contends that because the finding of unsatisfactory conduct was as a result of a system failure within the applicant’s business it would be appropriate, and in the public interest, for there to be an audit performed to ensure that the applicant has now put in place proper mechanisms to prevent further certificates issuing in error.  For that reason it seeks an order that the applicant provides a list of properties for which he has issued final inspection certificates in the last 12 months so they can be audited by the Commission’s senior audit and investigation officer.

3. The applicant on the other hand contends, consistent with the reasons for my decision, that the systems failure resulting in the issuing of the Certificate has now been corrected and was done so within a very short time after it came to his attention.  He has produced copies of certificates that have been issued subsequently and which do not have an electronic signature attached. 

4. He also says that because the allegation was made that he engaged in professional misconduct he has been put to considerable time and expense in reviewing that decision. He has incurred significant legal costs in excess of $16,000.00 and this ought to be a sufficient penalty. He says that in any event the section which permits the imposition of a sanction, s 204(4) of the Building Act 1975 only relates to what sanction the Commission can impose. However, on a review application the Tribunal stands in the shoes of the Commission and therefore, can impose the sanctions provided for in that section.

5. I have considered the submissions of both parties, and I am not satisfied that this case warrants the type of sanction suggested by the Commission that there should be a full audit of inspections carried out by Mr Holley for the past 12 months.  I do so, because in the absence of any evidence to the contrary, I’m satisfied that his systems have been corrected, and there has been no adverse consequence to the owners of property subsequent to these events.  Even here, it was always going to be the owner’s responsibility to have a registered professional engineer of Queensland issue a final frame certificate. 

6. However, the availability of an electronic signature to the staff to attach to important documents such as inspection certificates, carried with it the potential for misuse, inadvertent or otherwise.  This ought to have been obvious to Mr Holley. In the circumstances of this case and the confusion created by the issuing of the Certificate prematurely, I am satisfied that a reprimand is appropriate and that will be the order of the Tribunal.