Queensland Building and Construction Commission v Ruhland

CITATION:

Queensland Building and Construction Commission v Ruhland [2017] QCAT 63

PARTIES:	Queensland Building and Construction Commission (Applicant)
v
Fredericus Bartholomeus Ruhland (Respondent)

APPLICATION NUMBER:

OCR153-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

23 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Proper grounds exist for taking disciplinary action against Fredericus Bartholomeus Ruhland pursuant to section 208 of the Building Act 1975 (Qld).

2. Fredericus Bartholomeus Ruhland is not to be licensed by the Queensland Building and Construction Commission for a period of three years.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – BUILDING CERTIFIER – DISCIPLINARY PROCEEDINGS – where certifier incorrectly certified dwelling from roadside boundary – where compromised health or safety of person or amenity of property - where professional misconduct – where substantial mitigating factors – where joint submission on sanction – where honest mistake in otherwise extensive and unblemished record as certifier – where period of disqualification sufficient to protect public

Building Act 1975 (Qld), s 204, s 211, s 212 Schedule 2

Building Professionals Board v. Duffy [2008] NSWADT 117
Holley v. Queensland Building and Construction Commission [2015] QCAT 177
Queensland Building Services Authority v. Chandra [2010] QCAT 451

Queensland Building Services Authority v. Chandra [2013] QCAT 628

Queensland Building and Construction Commission v. Weber (No. 2) [2014] QCAT 532
Valuers Registration Board of Queensland v. Peterson [2014] QCAT 565

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

What is this Application about?

Frederick Ruhland was a building certifier who incorrectly certified a dwelling to be built with at least six metres setback from the roadside boundary as required by the Queensland Development Code.
Because the Queensland Building and Construction Commission decided this was ‘professional misconduct, it applied to the Tribunal to start a disciplinary proceeding against Mr Ruhland.[1]
[1] Building Act 1975 (Qld), s 204(6).

Are there grounds for disciplinary action against Mr Ruhland?

Mr Ruhland accepts that proper grounds exist for disciplinary action.[2]
[2] Joint Submissions On Sanction dated 29 November 2016 at [18]; Proposed Consent
Orders dated 29 November 2016.
‘Professional misconduct’ relevantly requires a lack of judgement that compromises the health or safety of a person or the amenity of a property, contrary to the functions of a building certifier.[3]
[3] Building Act 1975 (Qld), Schedule 2 definition of ‘professional misconduct’.
Because Mr Ruhland did not properly apply the requirements of the Code, the dwelling was built too close to the roadside boundary, bringing it closer to traffic and affecting its amenity.[4] The dwelling had to be partly demolished and rebuilt.[5]
[4] Annotated Site Photographs.
[5] Joint Submissions On Sanction dated 29 November 2016 at [14] – [15].
I am satisfied based on this evidence that Mr Ruhland engaged in ‘professional misconduct’ and grounds for disciplinary action exist.[6]
[6]Pursuant to the Queensland Building and Construction Commission Act 1991 (Qld), s 89(j).

What is the appropriate penalty?

The Tribunal must then determine penalty.[7]
[7] Building Act 1975 (Qld), s 211, s 212.
Both the Commission and Mr Ruhland agreed that the Mr Ruhland should not be licensed for a period of three years.[8]
[8] Joint Submissions On Sanction dated 29 November 2016 at [24]; Proposed Consent
Orders dated 29 November 2016.
The Tribunal’s power in disciplinary proceedings and in exercising the power under section 211 of the Building Act 1975 (Qld) are not punitive but to protect the public.[9] It is also relevant to consider the harm caused to others.[10] The Tribunal is satisfied that Mr Ruhland’s conduct harmed the home owners by reducing the amenity of the property and potentially affecting safety by having the house built too close to the road.
[9] Queensland Building and Construction Commission v. Weber (No. 2) [2014] QCAT 532
at [22].
[10] Holley v. Queensland Building and Construction Commission [2015] QCAT 177;
Valuers Registration Board of Queensland v. Peterson [2014] QCAT 565.
Previous authorities relating to ‘professional misconduct’ by certifiers usually impose a fine or reprimand and period of disqualification.[11] However, they each had one or more aggravating factors not evident here: previous disciplinary history,[12] lack of insight into conduct,[13] and a “cavalier attitude”.[14]
[11]        Queensland Building Services Authority v. Chandra [2010] QCAT 451; Queensland
Building Services Authority v. Chandra [2013 QCAT 628; Queensland Building and Construction Commission v. Weber (No. 2) [2014] QCAT 532.
[12]        Queensland Building Services Authority v. Chandra [2010] QCAT 451; Queensland
Building and Construction Commission v. Weber (No. 2) [2014] QCAT 532; Queensland Building Services Authority v. Chandra [2013] QCAT 628.
[13]        Queensland Building Services Authority v. Chandra [2010] QCAT 451.
[14]        Queensland Building Services Authority v. Chandra [2013] QCAT 628 at [52].
Unlike those authorities, these factors mitigate penalty:
(a)Mr Ruhland entered into a Settlement Agreement that fairly compensated the home owners;
(b)The dwelling has been rebuilt and certified;
(c)Almost eight years has lapsed since the conduct;
(d)Mr Ruhland is 68 years old and retired as a certifier in July 2013;
(e)The incident was isolated; and
(f)Mr Ruhland has no history of any other complaints.
Importantly, Mr Ruhland could have done little more to “right his wrong” and redress the home owners for the harm resulting from his conduct. He has co-operated with the Commission and its investigation. He agreed that his conduct amounted to grounds for disciplinary action and agreed to joint submissions on sanction, thereby saving the Tribunal considerable resources.
Mr Ruhland appears to have made an honest mistake in an otherwise extensive and unblemished record as a certifier. He simply did not fully appreciate the requirements of the Code for the particular development.
The most apposite authority is Building Professionals Board v. Duffy.[15] In Duffy, a private certifier was ordered not to reapply for a licence for two years after lodging an approval inconsistent with the original building approval. Like Duffy, Mr Ruhland has allowed his licence to lapse. However, I consider Mr Ruhland’s conduct more serious because of the hazard presented by the proximity of the house to the road.
[15] [2008] NSWADT 117.
I am satisfied that a period of disqualification of three years is sufficient to protect the public. It is not necessary or in the interests of justice to reprimand Mr Ruhland or impose a fine.

What are the appropriate Orders?

The appropriate Orders are:
1. Proper grounds exist for taking disciplinary action against Fredericus Bartholomeus Ruhland pursuant to section 208 of the Building Act 1975 (Qld).
2. Fredericus Bartholomeus Ruhland is not to be licensed by the Queensland Building and Construction Commission for a period of three years.

In the matter of Queensland Building and Construction Commission v Ruhland, the Queensland Civil and Administrative Tribunal was tasked with assessing disciplinary action against Fredericus Bartholomeus Ruhland, a building certifier. The dispute centred on Ruhland’s certification of a dwelling, where he incorrectly determined the boundary from the roadside, thereby compromising the health or safety of a person or the amenity of the property. The Commission alleged professional misconduct on Ruhland’s part, seeking a disqualification from holding a licence as a building certifier. Ruhland submitted that his actions were due to an honest mistake and that he had an otherwise unblemished record, with substantial mitigating factors.

The primary legal issue for the Tribunal was whether Ruhland’s actions constituted professional misconduct warranting disciplinary action. The Tribunal considered whether the error was a significant departure from the professional standards expected of a certifier and whether the mistake had a substantial impact on the health or safety of individuals or property. Additionally, the Tribunal examined the mitigating factors presented, including Ruhland’s otherwise unblemished record and the joint submission on sanction.

The Tribunal found that Ruhland’s mistake was indeed a significant departure from professional standards, given the importance of accurately determining property boundaries. However, the Tribunal also acknowledged the substantial mitigating factors, including Ruhland’s otherwise extensive and unblemished career, and the joint submission on sanction. The Tribunal concluded that the period of disqualification needed to be sufficient to protect the public, but not overly punitive given the mitigating factors. Therefore, the Tribunal determined that a disqualification of three years was appropriate to balance the need for public protection with the mitigating circumstances.

The Tribunal issued an order confirming that there were proper grounds for disciplinary action against Ruhland and that he should be disqualified from holding a licence as a building certifier for a period of three years. This outcome reflects the Tribunal’s consideration of both the severity of the misconduct and the mitigating factors presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established