Queensland Building and Construction Commission v Weber (No 3)
[2014] QCAT 628
•2 December 2014
| CITATION: | Queensland Building and Construction Commission v Weber (No 3) [2014] QCAT 628 |
| PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v | |
| Harald Weber (Respondent) |
| APPLICATION NUMBER: | OCR263-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 2 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application filed on 19 November 2014 to correct the decision of the Tribunal made on 28 October 2014 is dismissed. |
| CATCHWORDS: | ACCIDENTAL SLIP OR OMISSION – application to correct the Tribunal’s decision Building Act 1975 (Qld), s 211 Queensland Building and Construction Commission v Weber [2014] QCAT 448 |
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).
REPRESENTATIVES:
| APPLICANT: | Mr Simon Formby, in-house legal counsel for the Queensland Building and Construction Commission |
| RESPONDENT: | Mr Brett Heath, solicitor of Carter Newell Lawyers |
REASONS FOR DECISION
On 28 October 2014 the Tribunal, having made findings that proper grounds exist for taking disciplinary action, determined that disciplinary action be taken against Mr Weber under s 211 of the Building Act 1975 (Qld).[1]
[1]The Tribunal determined on 9 September 2014 that proper grounds exist for taking disciplinary action under s 208 of the Building Act 1975 (Qld) see Queensland Building and Construction Commission v Weber [2014] QCAT 448.
On 28 October 2014 final orders were made by the Tribunal as follows:
1.Harald Weber is reprimanded.
2.For a period of six (6) months from the date of this order Harald Weber is to provide a monthly list of development approvals to the Queensland Building and Construction Commission for the purpose of auditing.
3.Harald Weber is to pay the Queensland Building and Construction Commission a penalty of $6,600.00 (60 penalty units) within 21 days from the date of this order.
On 19 November 2014 an application was made by Mr Weber’s legal representatives to correct the decision made by the Tribunal on 28 October 2014 under s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).[2] The Queensland Building and Construction Commission (QBCC) consents to the application filed on 19 November 2014 and the proposed order sought by Mr Weber’s legal representatives.[3]
[2]Application for reopening, correction, renewal or amendment filed on 19 November 2014.
[3]Queensland Building and Construction Commission facsimile dated 19 November 2014, attachment marked ‘D’ to the application filed on 19 November 2014.
The Tribunal has the power under s 135(1) of the QCAT Act to correct a decision made by it in a proceeding if the decision contains:
a) a clerical mistake; or
b) an error arising from an accidental slip or omission; or
c) a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or
d) a defect of form.
In the application filed on 29 November 2014 Mr Weber’s legal representatives refer to the value of the penalty units imposed by the Tribunal, in particular the Tribunal’s order made on 28 October 2014 that Mr Weber pay a penalty of $6,600.00 (60 penalty units). Mr Weber’s legal representatives state the following in the application:
…
Pursuant to the decision dated 28 October 2014, Member Browne decided that $6,600 (60 penalty units) was to be paid by the respondent [Mr Weber] to the applicant, Queensland Building and Construction Commission.
We seek that the decision on the value of the penalty unit be corrected to reflect the penalty unit value applicable at the time the misconduct took place, namely September 2010. We cite section 20C(3) of the Acts Interpretation Act 1954 (Qld) as the basis for this (refer to Attachment B).
In September 2010, the penalty unit amount was $100 (refer to Attachment C).
Therefore we seek that the decision be corrected to reflect a payment by the respondent to the applicant of $6000.
In the Tribunal’s reasons dated 28 October 2014 the Tribunal stated the following in relation to the amount of the monetary penalty to be imposed:
[30]I have considered the submissions made by the QBCC and Mr Weber in relation to the appropriateness of the penalty to be imposed. …
…
[32]I am satisfied that a monetary penalty is appropriate in this matter. A monetary penalty will be effective as a deterrent to other building certifiers particularly in relation to the standard that is expected by a certifier and the importance of s 137 of the Building Act that requires a private certifier to not perform a certifying function if in performing the function the certifier has a conflict of interest. The maximum monetary penalty that may be imposed by the Tribunal is equivalent to 80 penalty units under s 211(5) of the Building Act (nn 27. A penalty unit under the Penalties and Sentences Act 1992 as at 1 October 2014 is $110.00). I have considered below some of the relevant authorities where a monetary penalty was imposed by the Tribunal and the former Commercial and Consumer Tribunal.
I have considered the application filed on 19 November 2014 to correct the Tribunal’s decision in relation to the monetary penalty imposed. I am not satisfied there are any grounds under s 135 of the QCAT Act upon which the Tribunal may correct the decision made on 28 October 2014. The decision made by the Tribunal on 28 October 2014 is final. The Tribunal has, in its reasons, considered the oral submissions made by both parties at the hearing on 13 October 2014 and the written submissions filed by both parties in relation to the appropriateness of any penalty to be imposed.
There is no correction that the Tribunal can make under s 135 of the QCAT Act in relation to the monetary penalty imposed by the Tribunal in its decision made on 28 October 2014. The appropriate order is that the application for reopening, correction, renewal or amendment filed on 19 November 2014 be dismissed.
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