Gerhardt v Queensland Building and Construction Commission (No 1)

[2014] QCAT 685

CITATION: Gerhardt v Queensland Building and Construction Commission (No 1) [2014] QCAT 685

PARTIES:	Trevor Gerhardt (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR297-13

MATTER TYPE: General administrative review matters

HEARING DATE: 3 February 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 3 February 2014 (delivered ex tempore)

DELIVERED AT: Brisbane

ORDERS MADE: 1. Application to stay a decision is dismissed.

CATCHWORDS: STAY OF PROCEEDING – where review of a decision that the applicant engaged in unsatisfactory conduct – where prosecution proceeding commenced in the Magistrates Court – where the fact and circumstances of the alleged misconduct are the same as those supporting the prosecution – whether unduly prejudicial to the applicant to grant a stay

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Walsh of counsel instructed by the Queensland Building and Construction Commission.

RESPONDENT: Mr Smith of counsel instructed by Mr Gerhardt.

REASONS FOR DECISION

1. On the 2 August 2013, the Queensland Building Services Authority, as it was then known, and now the Queensland Building and Construction Commission, made a decision that Mr Gerhardt who was a licensed certifier engaged in unsatisfactory conduct. In its decision, it decided to reprimand Mr Gerhardt because of his conduct and his breach of the Code of Conduct of Building Certifiers. It is not necessary to go into the detail of the complaint that was made but it was in relation to the certification of certain building works at 25 Tamworth Street, Annerley. Soon after the decision was made, Mr Gerhardt filed an application to review the decision as he was entitled to under s 86 of the Queensland Building and Construction Commission Act 1991 (Qld).

2. In the usual way, directions were issued to progress the matter in the Tribunal directing the parties to file further material, including the statement of reasons by the Commission. The matter was originally listed for a compulsory conference in Maroochydore on the 25 November 2013. The compulsory conference went ahead on that date, although, the date for compliance with the earlier directions did change. The matter did not resolve, nor was there any agreement about any of the conduct alleged to have occurred by Mr Gerhardt and the matter was listed for a directions hearing in Brisbane on the 4 December 2013. At that directions hearing, the matter was listed for final hearing on the 17 February 2014. The Commission did raise at that hearing that they became aware of a prosecution against Mr Gerhardt by the Brisbane City Council for breaches of the Building Act 1975 (Qld) in relation to his certification of the building work at the Annerley address.

3. There are four particular charges which relate to the same particulars that are referred to in the Commission’s information notice of the 2 August 2013. I am told from the bar table that there is an issue as to whether or not Mr Gerhardt has been served with the Magistrates Court proceedings. It seems, from what I have been told, that there is some contest about that, although, the complaint and summons is listed for mention in the Magistrates Court on the 5 February 2014. What we do know is that that is a mention only and if there is any argument about service, there may be some orders made dealing with that. Or, alternatively, if there is no argument about service, presumably, the matter will be listed for a hearing at some time in the future. What I do not know and what no one can tell me is when it is likely that the Magistrates Court proceedings will be listed for hearing, the length of the hearing and, flowing from that, when it is likely that there will be a decision.

4. The Commission filed an application to stay these proceedings pending the outcome of the Magistrates Court proceeding. It says that the same factual issues will be considered in the review application as in the Magistrates Court proceeding. That is probably correct, although I can say, generally, from what I have read on the file and from what Mr Smith has told me, that there does not appear to be any factual or any serious factual contest between the Commission and Mr Gerhardt about the circumstances which gave rise to the complaint to the Commission. Mr Gerhardt’s statement of evidence and his application place an interpretation on the various sections of the Building Act 1975, the Sustainable Planning Act 2009 and the Queensland Development Code on the unchallenged facts asserted by the Commission. It would seem from the particulars of the complaint and summons that the same argument would apply to those particular charges.

5. Mr Gerhardt opposes the application for the stay, which I should point out the Tribunal has jurisdiction to order under s 22(3) of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) which provides that the Tribunal can stay a decision and, under subsection (4), informs the Tribunal on what it might have regard to which includes the interest of any party whose interest might be affected by the making of an order or the order not being made, any submission made to the Tribunal by the decision maker of the reviewable decision and the public interest. It does not include, specifically, the usual things one would consider in an application for a stay. That is, prospects of success, which are not relevant here because Mr Gerhardt is opposing the stay, or the prejudice to the respondent to the application.

6. A stay is in the nature of an injunction and, therefore, prejudice is a relevant issue. Because of the decision of the Tribunal, Mr Gerhardt’s licence is endorsed with the finding that he engaged in unsatisfactory conduct and the penalty that was imposed was a reprimand. Any person who searches the QBCC website, which I might say is free of charge, can quickly ascertain that the endorsement is there. This is not only prejudicial to Mr Gerhardt, but also it is highly embarrassing for him to have such an endorsement if the endorsement should not have been put there in the first place. That is the purpose of the review application, to consider whether that decision to find he engaged in unsatisfactory conduct is the correct and preferable decision on a fresh hearing on the merits.

7. The QCAT Act requires the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. It’s important that those objects are properly taken into account when dealing with applications to review decisions made which have an impact on the subject of the decision. The matter is listed for hearing on the 17 January 2014. As I said, there is little, if any, factual dispute. The matter can be disposed of quickly in one day and a decision can be made. If a stay was granted, it is difficult to see how that would be in the public interest. The only interest that would be protected in these circumstances would be those of the Commission who might save some costs in not proceeding on the 17th but waiting until the prosecution is completed, probably well into this year and, then, perhaps, raising any conviction, if there was one, as further evidence of unsatisfactory conduct.

8. As was pointed out during submissions, if the Commission’s decision was set aside and such a finding was made by the Magistrates Court, there is nothing to stop the Commission, if it saw fit, to make another finding of unsatisfactory conduct based on the convicting. The granting of a stay is an exercise of discretion. The exercise of discretion must be based upon proper grounds, one of which is prejudice to the applicant. I have been referred to the case of Cullinan v Queensland Building Services Authority[1] as authority for the proposition that the Tribunal must exercise the jurisdiction to grant a stay when there are concurrent Magistrate Court proceedings. I don’t regard that as authority for that proposition because every application must be considered on its merits having regard to the particular circumstances of the case and the exercise of discretion must be discharged in accordance with the relevant principles set out in House v the King.

   [1][2013] QCATA 116.

9. My specific concern, here, as I have reiterated previously, is prejudice to Mr Gerhardt. That can be dealt with by proceeding with the application on the 17 January, particularly in circumstances where the function is to look at the evidence and decide whether the decision should be set aside or confirmed by reference to what is the correct and preferable decision. I have not heard any submission from the Authority which satisfies me that the granting of a stay to wait for the Magistrates Court proceedings for an indefinite period, would outweigh the prejudice to Mr Gerhardt with this endorsement on his certifier’s licence, particularly when there is little issue of fact and the matter is listed for hearing on the 17 January 2014. The matter is ready to proceed and it would be contrary to the objects of the QCAT Act for it not to proceed as it should do. The application filed on the 17 January 2013 is dismissed.