Maltby v Queensland Building and Construction Commission - [2019] QCAT 66

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Maltby v Queensland Building and Construction Commission [2019] QCAT 66

PARTIES:

TREVOR FREDERICK MALTBY
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

APPLICATION NO/S:

GAR118-16

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 March 2019

HEARING DATE:

25 and 26 June 2018

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

1.   Trevor Frederick Maltby has engaged in professional misconduct (Count 6);

2.   Trevor Frederick Maltby has engaged in repeated acts of unsatisfactory conduct (Counts 3, 4, 5, 7, 8 and 9) and/or (Counts 13 to 19) to amount to professional misconduct;

3.   The decision of the Queensland Building and Construction Commission made on 15 April 2016 is confirmed;

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – private certifier engaged in professional misconduct and repeated acts of unsatisfactory conduct – fire damaged house removed and relocated whether approval was for base platform and footings for relocated dwelling or for complete renovation - certifier issued final certificate for foundation and excavation – whether final certificate could be issued for a stage of construction – compartmentalised approvals – certifier’s concern for dwelling which he considered structurally inadequate, contained asbestos and should have been demolished – yet failed to advise anyone as not within scope of his engagement – whether building certifying function in the public interest required the reporting of such matters – whether findings of unsatisfactory conduct not the subject of the review can be taken into account as repeated unsatisfactory conduct towards a finding of professional misconduct

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – ‘rebuilding’ and ‘relocatable building’

Building Act 1975 (Qld), s 71, s 94, s 95, s 99(2), s 136,
s 142, s 149, s 204
Building Code of Australia
Building Regulation 2006 (Qld), s 24(3), s 30, s 32
Local Government Act 2009 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 86(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20
Sustainable Planning Act 2006 (Qld), s 13, s 335(1)
Sustainable Planning Regulation (Qld)

Banool Developments Pty Ltd (1973) 129 CLR 138
Bragg v Hurstville Municipal Council (1971) 21 LGRA 292
North Sydney Municipal Council v Stevens (1992) 75 LGRA 337
Schwede v Queensland Building Services Authority [2009] QCCTB 157

APPEARANCES & REPRESENTATION:

Applicant:

G I Thomson of Counsel, instructed by Barry Nilssen Lawyers

Respondent:

R C Schulte instructed by the Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

Mr Shaw purchased a renovated house property on 6 April 2014 for $300,000. It was advertised as ‘Completely renovated to a New Standard - No one has lived in this home, in this location’. It was renovated by owner/builder Peter Ruckman. The house was situated at 15 Starling Crescent, Condon. Hereafter, I will refer to it as the ‘Starling Crescent’ property. Prior to purchasing the house Mr Shaw investigated its history. As part of those investigations he obtained documents from the Burdekin Shire Council (‘BSC’). Those documents…

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: [2019] QCAT 66
Decision Date: 15 March 2019

CaseChat Overview and Summary

The case of Maltby v Queensland Building and Construction Commission involved Mr Maltby, a private certifier, who was employed by the Building Services Commission (BSC) and held a class A private certifier licence. Mr Maltby resigned from the BSC in August 2014, and the events in question occurred prior to that resignation. The dispute centred on Mr Maltby's conduct in certifying the completion of a dwelling, which was subject to a complaint by Mr Shaw, the subsequent homeowner. The complaint alleged that Mr Maltby had engaged in professional misconduct and repeated acts of unsatisfactory conduct.

The legal issues before the court included whether Mr Maltby's issuance of a final certificate for a stage of construction could be considered professional misconduct, whether his concerns about the structural inadequacy of the dwelling and the presence of asbestos should have been reported despite not being within the scope of his engagement, and whether findings of unsatisfactory conduct not directly subject to review could be taken into account as repeated unsatisfactory conduct. Additionally, the court had to interpret the terms "rebuilding" and "relocatable building" under the Building Act 1975 (Qld).

The court found that Mr Maltby's actions in issuing a Final Inspection Certificate, his failure to take appropriate action regarding his concerns about the structural adequacy of the building, his failure to express concerns about asbestos material, his failure to identify and act on the fact that the building approval had lapsed, and his failure to notify relevant parties of his concerns constituted professional misconduct. The court also confirmed that the instances of unsatisfactory conduct amounted to repeated unsatisfactory conduct and, accordingly, professional misconduct. The court concluded that the Commission's decision was correct and confirmed the decision.

The final orders of the court confirmed that Trevor Frederick Maltby had engaged in professional misconduct and repeated acts of unsatisfactory conduct, and the decision of the Queensland Building and Construction Commission made on 15 April 2016 was upheld.

Orders

Orders of the court

1. Trevor Frederick Maltby has engaged in professional misconduct (Count 6);

2. Trevor Frederick Maltby has engaged in repeated acts of unsatisfactory conduct (Counts 3, 4, 5, 7, 8 and 9) and/or (Counts 13 to 19) to amount to professional misconduct;

3. The decision of the Queensland Building and Construction Commission made on 15 April 2016 is confirmed;

Background

Background to the litigation

The experience had a deleterious effect on Mr Shaw’s health, and he suffered an exacerbation of his major depressive illness. At the time of hearing Mr Shaw was not able to occupy the dwelling because of its structural inadequacy nor did he have sufficient means to either demolish it or carry out the extensive rectification it required.Agreed Facts The parties have filed an Agreed Statement of Facts and Issues that greatly assisted me in reaching a decision in this matter. Where appropriate I have indicated in these reasons those facts/issues that are agreed.The Applicant At the time of the events the subject of this review:(a)Mr Maltby was employed by the BSC as a private certifier;(b)He held a private certifier (class A)[1] licence under the Building Act 1975 (Qld); and(c)A licence issued by the Commission in class of building certifier level 2. As from 6 January 2016 the licence has not been renewed.(d)He resigned from the BSC in August 2014. These matters are agreed.[1]Class A licensed private certifiers are empowered to receive and assess building development applications. See ss 9 and 48 of the Building Act 1975 (Qld).The complaint By a letter dated 19 March 2015 Mr Shaw lodged a complaint with the Queensland Building and Construction Commission (‘the Commission’) in relation to Mr Maltby's conduct in certifying the completion of the dwelling. The letter set out in detail particulars of his complaint. Subsequently, the previous homeowner, Peter Ruckman made a complaint about Mr Maltby's conduct in issuing a Form 21 Final Certificate.History of approvals and inspections Mr Peter Ruckman on behalf of the building owners (I H, R & P Ruckman) lodged IDAS Forms 1 and 2 with the BSC. A Form 2 was required for development applications for building works requiring assessment against the Building Act 1975 (Qld). For the proposed nature of the building work Mr Ruckman ticked ‘new building or structure’. He was then referred to Table A which required a ‘Description of new buildings, structures, repairs, alterations and additions’. He inserted in hand writing ‘RELOCATION OF DWELLING’. It is accepted that someone in the office of the BSC, subsequently, changed the entry to read ‘Erect Relocated RELOCATION OF DWELLING’. Other information provided in hand writing included the building classification which was ‘1a’ and the maximum number of storeys as ‘1’. Other entries include the proposed value of the work $25,000. Under proposed construction material, Mr Ruckman had ticked External walls – timber, Frame – timber, Floor – timber and Roof covering – steel. The form was undated but has an electronic imprint of 22/7/2010 and consisted of 24 pages in total.[2] It is agreed that the application had attached:[2]Only extracts of the Form are in evidence.(a)BSA confirmation of insurance for work described as ‘1 x RE-STUMPING AND/OR ASSOCIATED WORK AS PER CONTRACT’. A Notified Contract Value of $25,000 is insured;(b)Cardno Site Classification Investigation Report dated 22 June 2010;(c)Copy of rates notice with hand marked identification of payment; (d)A BERS Pro-Building Energy Rating Certificate dated 20 August 2010;(e)Compliance Certificate for Building design specification dated 28 June 2010 certifying footings and floor slab design; (f)Quote from Ace House Relocators (ACE) dated 26 May 2010. The quoted price was $40,000 and had specific inclusions/exclusions noted;(g)Architectural plans (Noel Steele, June 10- Sheet numbers 1-4);(h)Engineering drawings and design (Northern Consulting Engineers MJ1188)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is submitted on Mr Maltby’s behalf that findings in respect to other properties being the subject of Counts 13 to 19 are irrelevant to the external review application as Mr Maltby did not seek a review of these decisions of the Commission. That is true and I agree that they are not and cannot be the subject of a review by this Tribunal. However, they are decisions of the Commission which Mr Maltby has chosen not to dispute, at least not to the stage of seeking an internal review. Section 204(4) of the Building Act 1975 (Qld) does not prevent the Commission, or indeed this Tribunal, from taking the matters the subject of investigation into consideration at a later time as part of a pattern of conduct that may result in disciplinary proceedings against the certifier.Conclusion I confirm the internal review decision of the Commission that Mr Maltby’s actions in issuing a Final Inspection Certificate, his failure to take an appropriate course of action to resolve his concerns about the structural adequacy of the building, his failure to express to the BSC or TCC his concerns about asbestos material present in the dwelling, his failure to identify and act on the fact that the building approval had lapsed and his failure to notify all relevant parties of his concerns, in writing in an official form constituted professional misconduct. I confirm the unsatisfactory conduct in Counts 3, 4, 5, 7, 8, and 9 to be established. These instances of unsatisfactory conduct amount to repeated unsatisfactory conduct and, accordingly, professional misconduct. The additional undisputed counts of unsatisfactory conduct being counts 13 to 19, alone and or together with Counts 3, 4, 5, 7, 8, and 9 also amount to repeated unsatisfactory conduct and, accordingly, professional misconduct.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Maltby v Queensland Building and Construction Commission [2019] QCAT 66
PARTIES:	TREVOR FREDERICK MALTBY (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR118-16
MATTER TYPE:	General administrative review matters
DELIVERED ON:	15 March 2019
HEARING DATE:	25 and 26 June 2018
HEARD AT:	Brisbane
DECISION OF:	Member King-Scott
ORDERS:	1. Trevor Frederick Maltby has engaged in professional misconduct (Count 6); 2. Trevor Frederick Maltby has engaged in repeated acts of unsatisfactory conduct (Counts 3, 4, 5, 7, 8 and 9) and/or (Counts 13 to 19) to amount to professional misconduct; 3. The decision of the Queensland Building and Construction Commission made on 15 April 2016 is confirmed;
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – private certifier engaged in professional misconduct and repeated acts of unsatisfactory conduct – fire damaged house removed and relocated whether approval was for base platform and footings for relocated dwelling or for complete renovation - certifier issued final certificate for foundation and excavation – whether final certificate could be issued for a stage of construction – compartmentalised approvals – certifier’s concern for dwelling which he considered structurally inadequate, contained asbestos and should have been demolished – yet failed to advise anyone as not within scope of his engagement – whether building certifying function in the public interest required the reporting of such matters – whether findings of unsatisfactory conduct not the subject of the review can be taken into account as repeated unsatisfactory conduct towards a finding of professional misconduct STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – ‘rebuilding’ and ‘relocatable building’ Building Act 1975 (Qld), s 71, s 94, s 95, s 99(2), s 136, s 142, s 149, s 204 Building Code of Australia Building Regulation 2006 (Qld), s 24(3), s 30, s 32 Local Government Act 2009 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 86(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20 Sustainable Planning Act 2006 (Qld), s 13, s 335(1) Sustainable Planning Regulation (Qld) Banool Developments Pty Ltd (1973) 129 CLR 138 Bragg v Hurstville Municipal Council (1971) 21 LGRA 292 North Sydney Municipal Council v Stevens (1992) 75 LGRA 337 Schwede v Queensland Building Services Authority [2009] QCCTB 157
APPEARANCES & REPRESENTATION:
Applicant:	G I Thomson of Counsel, instructed by Barry Nilssen Lawyers
Respondent:	R C Schulte instructed by the Queensland Building and Construction Commission