Mannix v Queensland Building Services Authority

[2013] QCAT 105

CITATION: Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105

PARTIES:	Mr Steven Mannix Mrs Rebecca Mannix (Applicants)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR377-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 14 and 15 March 2013

HEARD AT: Mackay

DECISION OF: Joanne Browne, Member

DELIVERED ON: 2 April 2013

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.

2.     The application GAR377-11 is dismissed.

CATCHWORDS:

Disciplinary proceedings – professional misconduct – building certifier – where complaint made by home owner – whether complaint alleging unsatisfactory or professional misconduct is substantiated

Building Act 1975, s 205
Queensland Civil and Administrative Tribunal Act 2009, ss 17, 24

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Stephen Mannix and Mrs Rebecca Mannix

RESPONDENT: Mr Brendan Cole, Solicitor, Queensland Building Services Authority

REASONS FOR DECISION

1. Mr and Mrs Mannix had a house built for their family in about 2008 at 13 Kew Court, Glenella, Queensland.

2. Prior to construction Mr and Mrs Mannix entered into a standard building contract with a builder. The builder engaged Building Approvals & Consultancy Pty Ltd (BAC) to carry out building certification of the works.

3. Mr Jamie Hallinan, a licensed building certifier (from BAC) certified the Development Application Decision Notice[1] (the DAN) and the foundation stage of the works.

   [1]        Form 6 No. 20081374 dated 8 August 2008, Exhibit “1”, Statement of Reasons, p 94.

4. There were other building certifiers from BAC who were responsible for certifying aspects and other stages of the building works for which Mr Hallinan was not responsible.[2]

   [2]Mr John Rica inspected the slab stage of the building work and issued a Form 16 certificate dated 13 October 2008; and completed and signed an inspection sheet for “slab” aspects of the building works on 13 October 2008. Mr Darren Clarke (certifier) signed the Form 21 final inspection certificate on 24 April 2009 – Mr Clarke initially signed the Form 21 under the name of “Jamie Hallinan”. An amended Form 21 was later prepared, signed and issued by Mr Clarke under his name “Darren Clarke”.

5. Mr Hallinan did not inspect the works prior to signing and issuing a Form 16 inspection certificate for the foundation stage on 10 October 2008.

6. Mr Shane Spagnol (of BAC) did (however) inspect aspects of the building works and he signed an inspection sheet for foundation stages of the building works on 9 October 2008.

7. Mr Hallinan relied on certificates issued by Mr Spagnol prior to certifying the foundation stage of the works on 10 October 2008.[3]

   [3]Form 16 inspection certificate dated 10 October 2008, Exhibit “1”, Statement of Reasons, pp 103-5 refers to “attached inspection sheet” - Form 16 inspection certificate signed by Shane Spagnol dated 10 October 2008 for aspect of building work – “foundation”; and the inspection sheet signed by Shane Spagnol dated 9 October 2008 for “foundation” including: boundary clearance, excavations, reinforcement, cover, pier/stump holes, retaining wall, compaction and cut/fill.

8. In 2009 there was a dispute between Mr and Mrs Mannix and the builder – there was an issue about defective and incomplete works and (amongst other things) termination of the contract. This dispute was finalised following a hearing and decision made by the Tribunal in 2010.[4]

   [4]Chris Neale Constructions Pty Ltd v Mannix [2011] QCAT 68 and Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222. There are proceedings (pending) before the Tribunal in relation to a review of decisions made by the BSA concerning a complaint made against the certifier, Mr Darren Clarke and a review of the BSA’s decision in relation to the scope of works (concerning the builder).

9. On 29 August 2010 Mr and Mrs Mannix made a complaint to the Queensland Building Services Authority (BSA) about Mr Hallinan. They contend that Mr Hallinan when approving, inspecting and certifying work at their house engaged in conduct which constituted unsatisfactory conduct or professional misconduct.

10. Mr and Mrs Mannix did not know at the time of making their complaint (to the BSA) that Mr Hallinan did not inspect the works (personally) and that he had relied upon the certificates (following inspection) completed by Mr Spagnol.

11. The complaint[5] made by Mr and Mrs Mannix refers to 5 items:

    a)    the DAN shows an incomplete vapour barrier and therefore does not comply with the Building Codes of Australia.[6]

    b)    the DAN does not call for a cut-to-fill operation and was not modified prior to certification.

    c)    the cut-to-fill operation has not undergone any compaction in the fill area of the construction and the entire fill has not been controlled or rolled as defined in the Building Codes of Australia,[7] prior to certification.

    d)    prior approval was not obtained from the Mackay Regional Council for a cut of 300mm or more to the construction site.

    e)    Mr Hallinan, in his statement to the BSA, asserts that the construction conforms to the Building Codes of Australia 2008 (vol 2).[8]

    [5]Complaint against building certifier dated 29 August 2010 and received by the BSA on 9 September 2010, Exhibit “1”, Respondent’s Statement of Reasons, attachment “SOR3”.

    [6]The Building Code of Australia “is the edition current at the relevant time” under s 12 of the Building Act 1975 being the Building Codes of Australia 2008 (vol 2) – 3.3.4.5 Damp proof courses – installation Amdt no. 13 and figure 3.3.4.1 Amdt No.11. The relevant sketch that shows the installation of the vapour barrier is drawing 20081374, Exhibit “1”, Statement of Reasons, pp 135-6.

    [7]        2008 (vol 2).

    [8]Complaint item 5 referred to in paragraph “e” relates to a letter (undated) from Building Approvals & Consultancy Pty Ltd to the BSA (received by the BSA on 13 November 2009) marked “G” in the “Applicants’ response submission” filed 24 August 2012.

12. The BSA investigated the complaint and Mr Hallinan provided written responses to the BSA.

13. On 10 November 2011 the BSA notified Mr and Mrs Mannix that Mr Hallinan has not engaged in unsatisfactory or professional conduct.

14. Mr and Mrs Mannix seek a review of the BSA’s decision having filed an application in the Tribunal together with supporting material.[9]

    [9]Section 205 of the Building Act 1975 confers power on the Queensland Civil and Administrative Tribunal (QCAT). QCAT has the power to review the BSA’s decision under s 17 of the Queensland Civil and Administrative Tribunal Act 2009.

Does the Tribunal have the power to review?

1. The Tribunal has the power (in conducting a review) to confirm or amend the decision, set aside the decision and substitute (its own decision); or set aside the decision and return the matter for reconsideration (with directions) to the BSA.[10]

   [10]        Queensland Civil and Administrative Tribunal Act 2009, s 24.

2. In reviewing the BSA’s decision, the Tribunal effectively stands in the shoes of the BSA exercising the same powers under the Building Act 1975 (the Act); and the Tribunal must produce the correct and preferable decision.[11]

   [11]        Queensland Civil and Administrative Tribunal Act 2009, s 24.

3. The Tribunal must hear and decide the review by way of a fresh hearing on the merits. That means that the Tribunal can consider material that was not before the BSA at the time it made its decision.[12]

   [12]        Queensland Civil and Administrative Tribunal Act 2009, s 20.

4. The material to be considered by the Tribunal must be relevant to the complaint made by Mr and Mrs Mannix as it relates to the allegations of misconduct concerning Mr Hallinan – he (Mr Hallinan) must have been given an opportunity to respond to the particulars of the complaint before the BSA (or the Tribunal on review) can determine whether the complaint is substantiated.[13]

   [13]Under s 191 of the Building Act 1975 the BSA must invite the building certifier to make (within a stipulated time) representations to the BSA about the complaint; and the BSA “must have regard to the representations when making the decision” (s 191(3)).

5. The issues identified (at first instance) by the BSA in its decision letter are different to the submissions made (on the BSA’s behalf) at the hearing.[14] The allegations and the relevant material are to be considered by the Tribunal afresh and the Tribunal must make its own findings (on review) in determining the matter.

   [14]Letter from the BSA to Mr Jamie Hallinan dated 10 November 2011, Exhibit “1”, attachment “SOR10”, p 153, see discussion regarding “investigation” in relation to items 2 and 3.

6. The standard of proof to be applied by the Tribunal is the civil standard on the balance of probabilities as set out in the decision of Briginshaw v Briginshaw & Anor[15] and applied in earlier decisions of this Tribunal.

   [15](1938) 60 CLR 336.

What is unsatisfactory or professional misconduct?

1. A finding of misconduct is serious and has ramifications for a building certifier (Mr Hallinan).

2. The BSA (and the Tribunal on review) can decide to reprimand the certifier upon making a finding of misconduct to (amongst others): impose certain conditions appropriate on his/her licence; direct the certifier to complete educational courses, direct the certifier to report on his/her practice at times; and require the certifier to take necessary steps to ensure certification of building work.[16]

   [16]        Building Act 1975, s 204.

3. The meaning of unsatisfactory conduct and professional misconduct is defined in the Act[17] where a contravention of the code of conduct[18] for building certifiers is unsatisfactory conduct and professional misconduct. The code of conduct is a document which “sets out standards of conduct and professionalism expected from building certifiers when performing building certifying functions in Queensland”.[19]

   [17]Building Act 1975, Schedule 2, “unsatisfactory conduct” includes (amongst others): “conduct that shows incompetence, or a lack of adequate knowledge, skill judgment, integrity, diligence or care in performing building or private certifying functions”; and conduct that is “contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including, for example” – disregarding relevant and appropriate matters; and acting outside the scope of the building certifier’s powers, acting outside the scope of the certifier’s competence and contravening the code of conduct; and conduct that is of a lesser standard that “might reasonably be expected of the building certifier by the public or the building certifier’s professional peers”. “Professional misconduct” includes (amongst others): conduct that shows “incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and compromises the health or safety of a person or the amenity of a person’s property…is contrary to a function under this Act” including (for example) disregarding relevant and appropriate matters, acting outside the scope of powers, contravening the code of conduct.

   [18]        Building Act 1975, s 129.

   [19]        Building Act 1975, s 129.

4. The Tribunal is satisfied that Mr Hallinan has had an opportunity to respond to the allegations of misconduct as set out in the complaint. Similarly Mr and Mrs Mannix have been given an opportunity to identify issues and refer the Tribunal to material relevant to the review (and the allegations relating to the complaint).

The vapour barrier issue

1. The issue to be determined by the Tribunal is whether Mr Hallinan in approving the DAN (and the sketch) which provides for the installation of a vapour barrier engaged in conduct that is unsatisfactory or constitutes professional misconduct.

2. The engineer’s drawings[20] for the construction of the slab and footings identify the requirements for the installation of a vapour barrier.

   [20]Sketch 20081374, sheet 2 of 3 and 3 of 3. Exhibit “1”, Statement of Reasons, pp 135-6.

3. Mr and Mrs Mannix were permitted leave at the hearing to adduce expert evidence from Mr Russell Perkins (consulting engineer) in respect of this issue. During his oral evidence Mr Perkins stated the sketch provides for the installation of a vapour barrier terminating at the internal face of external beams and this (the sketch) complies with the Australian Standard.

4. Mr Perkins’ evidence is consistent with the evidence relied upon by the BSA (of Mr Thomas Petzel) that the drawings (sketch no. 20081374) comply with the Australian Standard.[21]

   [21]Australian Standard 2870, clause 5.3.3.3(a) states “…where justified by satisfactory local experience a vapour barrier may be terminated at the internal face of external beams as shown in Figure 5.2(a)”.

5. The Tribunal is satisfied that at the time of approving the DAN there were drawings relating to the construction of the house which provided for the installation of a vapour barrier terminating at the internal face of the external beams and that this (the sketch) complied with the Australian Standard.

6. The Tribunal is not satisfied, based on the evidence before it, that the complaint made as it relates to item 1 is substantiated.

The cut and fill issue

1. The DAN did not provide for a cut-to-fill operation. This was (however) done by the builder at the time of construction.

2. Mr Hallinan did not inspect the works and relied on certificates (following inspection) prepared by Mr Spagnol.

3. The issue to be determined by the Tribunal is whether Mr Hallinan in certifying the DAN (that does not provide for a cut-to fill operation) has engaged in conduct that is unsatisfactory or constitutes professional misconduct.

4. The cut-to-fill operation was an aspect of building work in particular the foundation stage of which Mr Hallinan was responsible as the certifier.

5. The Act provides that certain stages of building work must be inspected prior to certification. This includes “after excavation of foundation material and before the footings for the building are laid”.[22]

   [22]        Building Act 1975, s 24.

6. At the time of inspection (in 2008) Mr Hallinan was permitted by Regulation and certain guidelines[23] to rely on certificates completed by a “competent person” in relation to certain aspects of the work – that it (the aspects) complied with the building development approval.[24]

   [23]Guidelines – inspection of single detached Class 1a buildings or Class 10 buildings or structures effective 14 November 2003, Exhibit “1” Statement of Reasons, p 25. The guidelines provide that “a building certifier may discharge their statutory obligation to insect the building work by accepting a certificate of inspection for the stage (except final stage), from a competent person. Each stage of building work comprises of aspects. The inspection of building work must be the aspects for each particular stage of the work” (p 5).

   [24]Building Regulation 2006, ss 47, 49. Section 21(2)(a) provides that unless a competent person is a building certifier the stage of the work “after excavation of foundation material and before footings for the building or structure are laid” can not be signed by the competent person.

7. The Tribunal is satisfied based on the material before it that Mr Spagnol was for the purposes of the Regulation a person whom Mr Hallinan had deemed to be “competent” to inspect and issue certificates for aspects of building work.[25]

   [25]Building Regulation 2006, s 47. Section 21(2)(a) did not prevent Mr Hallinan from relying on certificates signed by Mr Spagnol for aspects of building work inspected by him (s 49). Exhibit “5”, Statement of Thomas Petzel dated 14 February 2013 attaches a copy of the “competent persons register” (at “TP1”) provided by BAC to the BSA. The register and record of decisions about competency state that Mr Spagnol was deemed competent in March 2005 to give “inspection help” (defined under s 17(1) of the Regulation) for aspects for slab and frame stages. The certifier is required to keep a record of competent persons under s 19 of the Regulations.

8. Notwithstanding the findings made above, there is evidence before the Tribunal to indicate that a cut-to-fill operation would have (in any event) been necessary given the nature of the construction required. The Tribunal accepts the evidence of Mr Thomas Petzel (for the BSA) in relation to the “foundation” - that most building sites require some cutting to reduce the risk of subsidence.[26]

   [26]Statement of Thomas Petzel (Senior audit and investigation officer, BSA) dated 31 July 2012, Exhibit “4”, [35]. Mr Petzel gave oral evidence at the hearing that he is also a qualified building certifier.

9. The Tribunal is not satisfied based on the evidence before it that the complaint made as it relates to item 2 is substantiated.

The compaction issue

1. The issue to be determined by the Tribunal is whether Mr Hallinan has engaged in conduct that is unsatisfactory or constitutes professional misconduct in certifying the cut-to-fill works which have not undergone any compaction in the fill area – the fill has not been controlled or rolled as defined in the Building Code of Australia 2008.

2. The compaction or fill works was an aspect of building work in particular the foundation stage of which Mr Hallinan was responsible as the certifier.

3. Mr Hallinan did not inspect the works and relied on certificates (following inspection) issued by Mr Spagnol. The Tribunal has already made findings that Mr Hallinan was permitted by the relevant Regulations (and guidelines) at the time of certification to rely on the certificates issued by Mr Spagnol.

4. Notwithstanding the findings made by the Tribunal in relation to Mr Hallinan being able to rely on the certificates issued by Mr Spagnol, there is no evidence before the Tribunal to indicate that there was a requirement under the Building Code of Australia that the fill be certified meaning the level of compaction be tested.

5. Mr Perkins gave oral evidence at the hearing on behalf of Mr and Mrs Mannix that during the course of construction the design changed and given the site classification (of “P”) it would have been prudent to have certified the fill. Mr Perkins also stated that there is no requirement under the Australian Standard 2870[27] for the fill to be certified meaning the level of compaction to be tested. He further stated that there was nothing in the design documents (designed by the engineers) requiring that the fill be tested prior to certification.

   [27]        Australian Standard 2870, clause 6.4.2

6. The Tribunal accepts the evidence of Mr Perkins that the Australian Standard does not require the fill (being either controlled or rolled fill) to be tested.

7. The Tribunal is not satisfied based on the evidence before it that the complaint made as it relates to item 3 is substantiated.

The Mackay Regional Council issue

1. The DAN did not provide for a cut-to-fill procedure but rather the application of fill to achieve a flat and level building platform.

2. The builder has during construction reduced the height of the building platform by performing a “cut-to-fill” procedure – the builder has cut approximately 300mm and applied fill.

3. This is an aspect of building work in particular the foundation stage of which Mr Hallinan was responsible as the certifier.[28]

   [28]The slab and height level (during construction) was inspected by Mr John Rica (of BAC) not Mr Hallinan and Mr Rica issued a certificate in relation to the slab stage of the works, see Exhibit “1”, Statement of Reasons, p 106.

4. There was during construction a development permit[29] in place for “building work” and the work undertaken (excavating and filling) was permitted building work for the purposes of the permit.[30]

   [29]        For the purposes of the Integrated Planning Act 1997.

   [30]Integrated Planning Act 1997, s 1.3.5 where “building work” includes “excavating or filling”.

1. Mr Hallinan did not inspect the works but has (as certifier) approved the DAN; and the foundation stage of the works.

2. The issue to be determined by the Tribunal is whether Mr Hallinan engaged in conduct that is unsatisfactory or constitutes professional misconduct in certifying that the foundation stage conformed to the DAN without first obtaining approval from the Mackay Regional Council for a cut of 300mm or more to the construction site.

3. Mr and Mrs Mannix rely upon an email from the Mackay Regional Council dated 3 November 2009 which states that there is no documentation contained on the Council’s record giving permission to cut 300mm or more (at the site).

4. There is also evidence before the Tribunal to indicate that it was not necessary for Mr Hallinan (at the time of construction) to obtain operational works approval from the Council in circumstances where the property requires “approximately 500mm cut and 500mm fill…to create a flat area for the building platform”.[31]

   [31]Email from the Mackay Regional Council (Ms Linda Pearson, Principal Planner) dated 9 November 2009 to Mr Jamie Hallinan, Exhibit “4”, Statement of Thomas Petzel, attachment “TP9”. Ms Pearson (in the email) advises Mr Hallinan that “if the earthworks is in association with a dwelling and forms part of the building application then no Operational Works application is required”.

5. The Tribunal accepts the evidence produced by the BSA in relation to the Council requirements for operational works approval.

6. The Tribunal is not satisfied based on the evidence before it that the complaint made as it relates to item 4 is substantiated.

Statements made by Mr Hallinan to the BSA

1. Mr Hallinan has provided a statement to the BSA in response to a complaint made by Mr and Mrs Mannix about their house.

2. Mr and Mrs Mannix referred the Tribunal (at the hearing) to a letter prepared by Mr Hallinan and Mr Clarke (of BAC)[32] and particular references to statements made by Mr Hallinan to: “no floor waste to laundry”, “insulation not provided to whole of house”, “slab height not 300mm above highest point”; and that “a person must not provide a statement to the BSA that is false or misleading”.

   [32]Applicant’s response to respondent’s submission dated 24 August 2012 (filed 27 August 2012), attachment “G”, letter to the BSA undated and received by the BSA on 13 November 2009.

3. Mr and Mrs Mannix contend that Mr Hallinan in making the assertions (identified in the above paragraph) has engaged in conduct that is unsatisfactory or constitutes professional misconduct in that the statements made are false or misleading.

4. Mr Hallinan has in the relevant document addressed (by way of response) specific issues identified by Mr and Mrs Mannix about the building of their house. Mr Hallinan has not specifically stated that the building work conforms to the approved DAN. Mr Hallinan has (however) responded to the issues with reference to the requirements under the Building Code of Australia and the relevant plans relating to the construction of the house.

5. The Tribunal is not satisfied based on the material before it that Mr Hallinan has “misdirected” the BSA from looking at the DAN and its requirements and that Mr Hallinan has otherwise made misrepresentations to the BSA about the requirements of the DAN and the relevant building regulations, as contended by Mr and Mrs Mannix.

6. The Tribunal is not satisfied that the complaint made as it relates to item 5 is substantiated.

What is the correct and preferable decision?

1. The Tribunal has carefully considered all of the material including the written submissions prepared by both parties and the relevant material referred to in those respective submissions.

2. The Tribunal is not satisfied that the complaint made (as alleged) is substantiated. The appropriate order is that the BSA’s decision made on 10 November 2011 that Mr Jamie Robert Hallinan has not engaged in unsatisfactory or professional misconduct is confirmed; and the application be dismissed.