Mannix v Queensland Building and Construction Commission - [2015] QCAT 26

CITATION:

Mannix v Queensland Building and Construction Commission [2015] QCAT 26

PARTIES:	Steven Mannix Mrs Rebecca Mannix (Applicants)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR377-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

20 January 2015

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

29 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent’s decision made on 10 November 2011 that Mr Jamie Robert Hallinan has not engaged in unsatisfactory or professional misconduct is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – professional misconduct – building certifier – where complaint made by home owners – whether certifier engaged in unsatisfactory or professional misconduct – where findings made and matter to be reconsidered with the hearing of additional evidence

Building Act 1975 (Qld) s 205
Building Regulation 2006 (Qld) s 21, s 30, s 31, s 32, s 49
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 24

Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105
Mannix & Anor v Queensland Building Services Authority [2014] QCATA 208; cited
Oliver v Pool Safety Council [2014] QCAT 276; cited
Queensland Building Services Authority v Nelson [2007] QCCTB 71; cited

APPEARANCES:

APPLICANTS:

Mr Steven Mannix

RESPONDENT:

Queensland Building and Construction Commission represented by Ms Maire Guiney, in-house lawyer

REASONS FOR DECISION

In about 2008 Mr and Mrs Mannix had a house built for their family at 13 Kew Court, Glenella, Queensland, by a builder, Chris Neale Constructions Pty Ltd.
On 14 July 2008, the builder engaged the services of Building Approvals & Consultancy Pty Ltd (‘BAC’) to carry out certification work for the building of the house.
Jamie Hallinan was the licensed certifier for BAC responsible for assessing whether the foundation stage for the house complied with the building development approval.
Mr Hallinan did not inspect any aspects of the foundation stage. Shane Spagnol, an employee of BAC, did inspect aspects of the foundation stage.
Mr Spagnol certified that the aspects of the foundation stage subject to the rectification of some minor deficiencies were compliant with the building development approval.
Mr Hallinan relied on Mr Spagnol’s inspection and the certificates completed by him for certain stages.
On 10 October 2008, Mr Hallinan certified that the foundation stage of the works complied with the building development approval subject to rectification of some deficiencies outlined by Mr Spagnol in the inspection sheet.
Mr and Mrs Mannix lodged a complaint with the Building Services Authority (‘BSA’) that is now the Queensland Building and Construction Commission (‘QBCC’)[1] about the conduct of Mr Hallinan and certification of the foundation stage.
[1]See s 5 of the Queensland Building Services Authority Amendment Act 2013 (Qld) which renamed the BSA the Queensland Building and Construction Commission.
On 10 November 2011, the BSA determined that Mr Hallinan had not engaged in unsatisfactory or professional misconduct. Mr and Mrs Mannix reviewed the decision before the Queensland Civil and Administrative Tribunal.
On 2 April 2013, the Tribunal determined that the correct and preferable…

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: [2015] QCAT 26
Decision Date: 29 January 2015

CaseChat Overview and Summary

The case of Mannix versus the Queensland Building and Construction Commission involves a complaint made by homeowners regarding a building certifier. The Commission, acting under the Building and Construction Industry Improvement Act 2005, found that the certifier, Mr Jamie Robert Hallinan, had not engaged in unsatisfactory or professional misconduct. The complainants, Mannix, sought to appeal this decision, arguing that the certifier had indeed engaged in misconduct. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues at the heart of the case pertain to the interpretation and application of the Building and Construction Industry Improvement Act 2005. Specifically, the court had to determine whether the Commission’s decision was justified, and whether the findings of no misconduct were in error. This required an examination of the evidence presented and the statutory criteria under which the Commission made its determination.

In its decision, the Tribunal examined the evidence provided and found that the Commission had appropriately applied the statutory criteria in reaching its conclusion. The Tribunal noted that the evidence did not substantiate the allegations of misconduct and that the decision was therefore correct. The Tribunal concluded that the Commission's decision was legally sound and confirmed it. The Tribunal also made an order that the Commission reconsider the matter with the hearing of additional evidence, should any new evidence come to light that could alter the outcome.

The final order of the Tribunal was to confirm the decision of the Queensland Building and Construction Commission that Mr Jamie Robert Hallinan had not engaged in unsatisfactory or professional misconduct. The Tribunal also mandated that the Commission should reconsider the matter if additional evidence was presented that could impact the decision.

Orders

Orders of the court

1. The respondent’s decision made on 10 November 2011 that Mr Jamie Robert Hallinan has not engaged in unsatisfactory or professional misconduct is confirmed.

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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