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

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

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.

Continue reading Mannix v Queensland Building Services Authority

Details

AGLC: Mannix v Queensland Building Services Authority [2013] QCAT 105
Case: [2013] QCAT 105
Decision Date

CaseChat Overview and Summary

The applicants, Mr and Mrs Mannix, sought a review of a decision made by the Queensland Building Services Authority (BSA) in relation to a complaint they had made about the conduct of Mr Jamie Hallinan, a building certifier. The applicants alleged that Mr Hallinan had engaged in unsatisfactory or professional misconduct when he certified certain aspects of the building works for their house. The BSA had investigated the complaint and determined that the allegations were not substantiated. The Tribunal was required to review the BSA’s decision to determine whether the complaint was substantiated and whether the BSA’s decision was correct and preferable. The Tribunal had to consider the evidence and arguments presented by both parties and apply the relevant legal standards and principles.

The Tribunal found that the complaint was not substantiated on several grounds. Firstly, the Tribunal was not satisfied that the applicants had provided sufficient evidence to show that Mr Hallinan’s conduct in approving the development application decision notice (DAN) that provided for the installation of a vapour barrier was unsatisfactory or constituted professional misconduct. The Tribunal found that the DAN and the accompanying drawings complied with the Australian Standard and that Mr Hallinan was entitled to rely on the certificates issued by another certifier (Mr Spagnol) in relation to certain aspects of the building works. Secondly, the Tribunal found that there was no requirement under the Building Code of Australia for the fill to be tested for compaction and that Mr Hallinan was not obliged to inspect the works himself. Thirdly, the Tribunal found that it was not necessary for Mr Hallinan to obtain approval from the Mackay Regional Council for a cut-to-fill operation in the circumstances of the case. Finally, the Tribunal found that Mr Hallinan had not made any false or misleading statements to the BSA and that he had responded to the applicants’ issues in a reasonable manner.

The Tribunal concluded that the BSA’s decision was correct and preferable and that the complaint was not substantiated. The Tribunal confirmed the BSA’s decision and dismissed the application. The Tribunal also made some observations about the role and responsibilities of building certifiers and the importance of complying with the relevant laws and standards.

Orders