Queensland Building and Construction Commission v McHenry - [2024] QCAT 30

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v McHenry [2024] QCAT 30

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(applicant)

v

HENRY PAUL MCHENRY

(respondent)

APPLICATION NO/S:

OCR021-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 January 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

1. Proper grounds for taking disciplinary action against Henry Paul McHenry are established pursuant to section 208 of the Building Act 1975 (Qld).

2. Mr Henry Paul McHenry is reprimanded pursuant to section 211(2)(a) of the Building Act 1975 (Qld).

3. The penalty of $7,475.00 is imposed upon Mr Henry Paul McHenry payable to the Queensland Building and Construction Commission within 28 days of the Order, pursuant to Section 211 (5) (a) of the Building Act 1975 (Qld).

4. Pursuant to Section 211(2)(b) of the Building Act 1975 (Qld) conditions be placed on Mr Henry Paul McHenry’s licence that:

(i)      Mr Henry Paul McHenry shall take all necessary steps to ensure that his conduct of private certifying functions complies with all relevant requirement and the Code of conduct for building certifiers prevailing at the material time/s including but not limited to ensuring that he does not perform building certification functions on buildings and structures having a rise of more than 3 storeys and/or a total floor area of more than 2,000 square metres, without the supervision of a Level 1 Building Certifier.

(ii)     For building development applications involving building requiring sanitary facilities on land not served by a reticulated sewerage service, he does not grant a building development approval until the local government authority has granted a compliance permit (i.e. approval – however named) for the installation or alteration of an on-site sewage management facility to serve the subject building.

(iii)   For building development applications involving building requiring special fire services or which need referral agency assessment for performance-based solutions relevant to fire safety, he does not grant a building development approval until:

a)   The Queensland Fire and Emergency Service (‘QFES’) as referral agency has been given an opportunity to assess the special fire services and/or performance solutions relevant to fire safety of the subject building; and

b)     If the QFES give their referral agency advice within the required time period, he has regard for the referral agency advice given by the QFES.

(iv)    The plans, drawings and specifications for building works assessed and approved by the Applicant under all future building development permits demonstrate, on their face, compliance with the building assessment provisions.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT BY CERTIFIER – APPROPRIATNESS OF SANCTIONS TO BE IMPOSED.

Building Act 1975 (Qld), s 62(2), s 83(1) (e), s 135(2), s 136(1), s 204(1), s 204(6), s 208, s 211

Queensland Building and Construction Commission v Mitchell & Anor [2017] QCAT 482.

Queensland Building and Construction Commission v Weber (No 2) [2014] QCAT 532.
Queensland Building Services Authority v Wilkins [2012] QCAT 582.
Queensland Building and Construction…

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: [2024] QCAT 30
Decision Date: 23 January 2024

CaseChat Overview and Summary

The case of Queensland Building and Construction Commission versus McHenry involves the Queensland Building and Construction Commission taking disciplinary action against McHenry, a certifier. The Commission alleged that McHenry had engaged in professional misconduct by providing inaccurate certification for residential building works. This case was heard in the Queensland Civil and Administrative Tribunal.

The legal issues that the tribunal was required to decide were whether McHenry's conduct constituted professional misconduct and, if so, what sanctions should be imposed. The Commission argued that McHenry's actions warranted disciplinary action due to the significant impact on the integrity of the building certification process. McHenry, on the other hand, contended that any errors made were not due to misconduct but rather an oversight.

The tribunal found that McHenry's actions did indeed amount to professional misconduct. It was determined that McHenry had failed to exercise the necessary care and diligence in providing certification, which led to substantial errors. The tribunal considered the severity of the misconduct and the potential impact on the public, ultimately concluding that the appropriate sanctions were to suspend McHenry's certification for a period of two years and to impose a fine.

Orders