Queensland Building and Construction Commission v Mitchell - [2017] QCAT 482

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

PARTIES:

Queensland Building and Construction Commission

(Applicant)

v

Geoffrey Robert Mitchell GMA Certification Pty Ltd (Respondents)

APPLICATION NUMBER:

OCR035-15 and OCR098-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 May 2017

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

7 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

In OCR035-15:

1.     Geoffrey Robert Mitchell is reprimanded.

2.     Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $9,000.00 within 28 days from the date of this order.

3.     Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of

$7,500.00 within 28 days from the date of this order.

In OCR098-16:

1.     Geoffrey Robert Mitchell is reprimanded.

2.     Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $11,000.00 within 28 days from the date of this order.

3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of

$7,500.00 within 28 days from the date of this order.

CATCHWORDS:
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS –

Certifiers – where building certifier failed to provide Queensland Fire and Rescue Service with required information when issuing interim certificate of classification – where building certifier failed to include an acknowledgement notice as required by the Sustainable Planning Act 2009 (Qld) when sending an application for assessment of a fire engineering brief to the Queensland Fire Rescue Service – where building certifier certified work which did not comply with the Building Code of Australia – whether grounds for disciplinary action

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS –

Certifiers – where building certifier failed to provide Queensland Fire and Rescue Service with required information when issuing interim certificate of classification – where building certifier failed to include an acknowledgement notice as required by the Sustainable Planning Act 2009 (Qld) when sending an application for assessment of a fire engineering brief to the Queensland Fire Rescue Service – where building certifier certified work which did not comply with the Building Code of Australia – whether reprimand an appropriate sanction

Building Act 1975 (Qld), s 14, s 26, s 107,

s 204(7), s 211(5)(a), Schedule 2

Fire and Rescue Service Act 1990 (Qld) Sustainable Planning Act 2009 (Qld), s 267, s 268, s 372

Sustainable Planning Regulation 2009 (Qld), Schedule 26

Medical Board of Australia v Martin [2013] QCAT 376

Pharmacy Board of Australia v Arulogun [2013]

QCAT 685

Queensland Building Services Authority v Chandra [2009] CCT QD035-05

Queensland Building Services Authority v

Chandra [2010] QCAT 451

APPEARANCES:

APPLICANT:

C. Tanzer, Gadens Lawyers

RESPONDENT:

L. Copley, Moray & Agnew

REASONS FOR DECISION

[1]Geoffrey Robert Mitchell is a private building certifier licensed under the Building Act 1975 (Qld) (Building Act), and GMA Certification Pty Ltd (GMA) is a company who employs private certifiers, and…

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: [2017] QCAT 482
Decision Date: 7 July 2017

CaseChat Overview and Summary

The Queensland Building and Construction Commission brought an action against Geoffrey Robert Mitchell, a building certifier, alleging that he failed to comply with statutory obligations and professional standards in his capacity. The primary issues centred around Mitchell's issuance of an interim certificate of classification without providing the Queensland Fire and Rescue Service with necessary information, his omission of an acknowledgement notice as mandated by the Sustainable Planning Act 2009 (Qld) when forwarding an application for a fire engineering brief assessment to the Queensland Fire Rescue Service, and his certification of work that did not meet the Building Code of Australia standards.

The court had to determine whether these actions constituted grounds for disciplinary measures under the Building and Construction Industry Security of Payment Act 1999 (Qld) and the Building Act 1975 (Qld). The key legal issues involved interpreting the statutory obligations imposed on certifiers and assessing the appropriate sanctions for non-compliance. The court examined whether a reprimand, a penalty, and the payment of costs were suitable responses to the breaches.

In reaching its decision, the court found that Mitchell's actions did indeed warrant disciplinary action. The omissions and non-compliance were serious breaches of statutory duties and professional standards. The court concluded that a reprimand was an appropriate sanction, along with a penalty of $9,000.00 in one instance and $11,000.00 in another, to be paid within 28 days. Additionally, Mitchell was ordered to pay the Queensland Building and Construction Commission’s costs, fixed at $7,500.00.

Orders

Orders of the court

In OCR035-15:

1. Geoffrey Robert Mitchell is reprimanded.

2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $9,000.00 within 28 days from the date of this order.

3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of

$7,500.00 within 28 days from the date of this order.

In OCR098-16:

1. Geoffrey Robert Mitchell is reprimanded.

2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $11,000.00 within 28 days from the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Building and Construction Commission v Mitchell & Anor [2017] QCAT 482
PARTIES:	Queensland Building and Construction Commission (Applicant)
v
Geoffrey Robert Mitchell GMA Certification Pty Ltd (Respondents)
APPLICATION NUMBER:	OCR035-15 and OCR098-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	30 May 2017
HEARD AT:	Brisbane
DECISION OF:	Dr Cullen, Member
DELIVERED ON:	7 July 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	In OCR035-15: 1. Geoffrey Robert Mitchell is reprimanded. 2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $9,000.00 within 28 days from the date of this order. 3. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission’s costs, fixed in the sum of $7,500.00 within 28 days from the date of this order. In OCR098-16: 1. Geoffrey Robert Mitchell is reprimanded. 2. Geoffrey Robert Mitchell is to pay the Queensland Building and Construction Commission a penalty of $11,000.00 within 28 days from the date of this order.

Queensland Building Services Authority v Chandra [2010] QCAT 451
APPEARANCES:
APPLICANT:	C. Tanzer, Gadens Lawyers
RESPONDENT:	L. Copley, Moray & Agnew