Queensland Building and Construction Commission v Richardson - [2015] QCATA 85

CITATION:

Queensland Building and Construction Commission v Richardson [2015] QCATA 85

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Troy Christopher Richardson (Respondent)

APPLICATION NUMBER:

APL195-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard, Presiding Member
Member A Fitzpatrick

DELIVERED ON:

19 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is dismissed.

2. The decision of the Tribunal dated 8 April 2014 is confirmed.

3. Troy Christopher Richardson must file and serve any application for costs, together with supporting written submissions by: 4:00pm 27 July 2015.

4. Queensland Building & Construction Commission must file and serve any written submissions in response by: 4:00pm 10 August 2015.

5. Troy Christopher Richardson must file and serve any written submissions in reply by: 4:00pm 24 August 2015.

6. Unless otherwise ordered, any application for costs will be determined on the papers without an oral hearing not before 25 August 2015.

CATCHWORDS:

APPEAL – whether errors of law - Building Certifier – professional misconduct – construction of words ‘causative of a compromise’
Building Act 1975 (Qld) s 204, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146

Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2013] QCAT 113
Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 137

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr Richardson is a building certifier. He certified a retaining wall, which eight months later failed catastrophically. Approximately 60 metres of the wall collapsed on and damaged adjacent residential property. The retaining wall was not constructed in accordance with the engineer certified drawings and Form 15.
The Queensland Building and Construction Commission (QBCC) determined on 6 February 2012 that pursuant to s 204 of the Building Act 1975 (Qld) (Building Act), Mr Richardson had engaged in professional misconduct arising out of his certification of the retaining wall. Mr Richardson applied for the Tribunal to review the QBCC’s decision. The Tribunal set aside the QBCC’s decision and substituted its decision that Mr Richardson had engaged in unsatisfactory conduct.
The QBCC asserts that the Tribunal erred in law in a decision delivered on 8 April 2014 (the second decision).[1]
[1]Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 137.
The second decision followed a decision of the Appeal Tribunal, dated 5 November 2013, that the learned Member’s original decision, dated 26 February 2013 (the first decision)[2] be set aside and that the decision be remitted back to the Tribunal pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), at first instance to:
a) make a finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of professional misconduct; either that the Certifier’s conduct…

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: [2015] QCATA 85
Decision Date: 19 June 2015

CaseChat Overview and Summary

Richardson appealed a decision by the Queensland Building and Construction Commission Tribunal that he had engaged in professional misconduct as a building certifier. The Commission had found that Richardson had failed to exercise the skill and care of a reasonably competent building certifier and that his conduct was causative of a compromise of the integrity of a building. Richardson's appeal focused on whether the Tribunal had erred in its construction of the words "causative of a compromise" and whether it had applied the correct legal principles in finding him guilty of professional misconduct. The Court of Appeal was required to determine whether the Tribunal had made any errors of law in its decision and whether the appeal should be dismissed or allowed. In dismissing the appeal, the Court found that the Tribunal had correctly interpreted the phrase "causative of a compromise" and had applied the correct legal principles in finding Richardson guilty of professional misconduct. The Court held that the Tribunal had considered all relevant evidence and had made a decision that was open on the evidence. The Court also found that there was no error of law in the Tribunal's decision and that the appeal should be dismissed. The Court confirmed the decision of the Tribunal dated 8 April 2014. Richardson was required to file and serve any application for costs, together with supporting written submissions by 4:00pm on 27 July 2015. The Queensland Building and Construction Commission was required to file and serve any written submissions in response by 4:00pm on 10 August 2015. Richardson was required to file and serve any written submissions in reply by 4:00pm on 24 August 2015. Unless otherwise ordered, any application for costs would be determined on the papers without an oral hearing not before 25 August 2015.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Tribunal dated 8 April 2014 is confirmed.

3. Troy Christopher Richardson must file and serve any application for costs, together with supporting written submissions by: 4:00pm 27 July 2015.

4. Queensland Building & Construction Commission must file and serve any written submissions in response by: 4:00pm 10 August 2015.

5. Troy Christopher Richardson must file and serve any written submissions in reply by: 4:00pm 24 August 2015.

6. Unless otherwise ordered, any application for costs will be determined on the papers without an oral hearing not before 25 August 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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