Oliver v Pool Safety Council

CITATION: Oliver v Pool Safety Council [2014] QCAT 276

PARTIES:	Grant Oliver (Applicant)
v
Pool Safety Council (Respondent)

APPLICATION NUMBER: OCR180-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: 31 March 2014

HEARD AT: Brisbane

DECISION OF: Member Paratz

DELIVERED ON: 11 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The decision of the Pool Safety Council made on 6 June 2013 that grounds for disciplinary action against Grant Oliver had been established, and a penalty imposed, is set aside.

2.    A decision is substituted that a ground for disciplinary action against Grant Oliver is not established.

CATCHWORDS:

Where disciplinary decision made against pool safety inspector – whether grounds for disciplinary action – where a pool safety inspector adopted an innovative solution – where internal corralling was approved – whether an incorrect interpretation of regulatory provisions is grounds for disciplinary action –whether pool safety inspector acted below a proper standard of conduct – where pool safety inspector was found to have acted with care and diligence

Building Act 1975 (Qld), s 246AZ, s 246CY, s 246CZ, Schedule 2

Skomba & Ors v Maroochy Shire Council [2005] QPEC 001

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Grant Oliver represented by Michael Maynard (by leave)

RESPONDENT: The Pool Safety Council represented by Simon Hart (by leave)

REASONS FOR DECISION

1. Disciplinary proceedings were brought against Mr Grant Oliver, who is a pool safety inspector. A decision was made by the Pool Safety Council on 6 June 2013 that grounds for disciplinary action against Mr Oliver had been established, and he was required to pay $1,000 to the Pool Safety Council within three months.

2. Mr Oliver has applied to this Tribunal to review that decision of the Pool Safety Council.

3. Mr Oliver is employed by Solutions in Engineering. That company was engaged on about 23 April 2012 to inspect a block of units at 2a McIlwraith Street, Moffat Beach, and to advise as to, and to approve suitable pool safety fencing.

4. The premises were an older block of units with an existing swimming pool that had been built before new pool fence safety provisions came into force on 1 December 2010.

5. One of the units, which was on the ground floor, had an external door which led into the enclosed communal swimming pool fenced area.

6. Mr Oliver inspected the premises on 23 April 2012. A “Swimming pool inspection” report was provided to the body corporate by Solutions in Engineering, enclosing a Pool Safety Nonconformity Notice dated 24 April 2012.

7. The Notice identified nine areas of defect and action that was required. The relevant defect for these proceedings was in regard to the ground floor unit door, and was described as follows:

   Inspection Criteria

   Was all access to the enclosure through an approved gate only?

   Inspector’s comment

   Location: Unit door.

   Defect: The pool area is accessible from the building via a unit door. Access to an outdoor pool area may only be via a gate that complies with QDC MP 3.4  

   Action: Please ensure that a corral…