Queensland Building Services Authority v Chandra
[2010] QCAT 451
•5 August 2010
| CITATION: | Queensland Building Services Authority v Chandra [2010] QCAT 451 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Suresh Chandra |
| APPLICATION NUMBER: | OCR083-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos |
| DELIVERED ON: | 5 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That Mr Suresh Chandra’s licence number A81718 be cancelled; 2. That Mr Suresh Chandra be disqualified from obtaining a license in the class of Building Surveyor; Assistant Building Surveyor; and/or Building Surveying Technician for a period of not less than two years and three months (2 1/4) years; 3. That Mr Suresh Chandra pay a penalty to the QBSA in the amount of $12,000.00 within 60-days of this Order; and 4. That the parties bear their own costs of and incidental to the proceedings. |
| CATCHWORDS : | DISCIPLINARY PROCEEDINGS - Decision by Queensland Building Services Authority that private certifier had engaged in “professional misconduct” and “unsatisfactory conduct” in terms of the Building Act 1975 (Qld). Appropriate penalty where extensive previous disciplinary history – license cancelled; 2 ¼-year period of license disqualification; maximum monetary penalty of $12,000.00. Building Act 1975 (Qld), sections 204(6), 208, 211 Chandra, S. v Queensland Building Services Authority [2008] QCCTB 232 Queensland Building Services Authority v Chandra [2009] QCCTB 203 Barakat v Building Professionals Board [2009] NSWADT 5 Building Professionals Board v Duffy [2008] NSWADT 117 Building Professionals Board v Cotten [2008] NSWADT 118 Building Professionals Board v Boulle [2009] NSWADT 9 Queensland Building Services Authority v Nelson, J. H. [2007] QCCTB 71 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland Building Services Authority, represented by Ms Mardee Campbell |
| RESPONDENT: | Mr Suresh Chandra, represented by Mr G.R. Troedson of Porta Lawyers |
REASONS FOR DECISION
History of the Matter
This disciplinary proceeding was referred to the Queensland Civil and Administrative Tribunal (“QCAT”) by the Queensland Building Services Authority (“QBSA”), in its capacity as the industry regulator pursuant to s204(6) of the Building Act 1975 (Qld)(“Building Act”), on 9 April 2010.
The former Commercial and Consumer Tribunal (“CCT”) upheld the QBSA’s decision that the respondent, Mr Suresh Chandra, in his capacity as a building certifier, engaged in unsatisfactory conduct, within the meaning of that term as contained within Schedule 2 to the Building Act, and that, as a result of such conduct, a penalty should be imposed: Chandra, S. v Queensland Building Services Authority [2008] QCCTB 232 (Chandra 2008). As such, there is no doubt that proper grounds exist pursuant to s208 of the Building Act for the QBSA’s taking of disciplinary action against Mr Chandra, and the proceedings now before QCAT relate to issues of penalty and costs only.
What Led to the Current findings of Misconduct:
These disciplinary proceedings arise out of a complaint made to the QBSA by Mr Russell and Mrs Claire Bach, in relation to the approval and certification of a swimming pool constructed at their 33 Hipwood Avenue, Coorparoo property. The QBSA determined (on 15 January 2008), and the CCT confirmed (in Chandra 2008, 10 November 2008), that Mr Chandra had engaged in four counts of unsatisfactory conduct, and as such had engaged in behaviour which constituted professional misconduct under the provisions of the Building Act.
The factors that led to the CCT’s finding that Mr Chandra had engaged in unsatisfactory conduct are set out in some detail in then Member Lohrish’s decision in Chandra 2008 and I do not intend to repeat them here, save for to say that I have considered the matters raised in making my decision about penalty and costs. The four counts of unsatisfactory conduct are:
1.Issuing an inspection certificate not in the format that was required by Section 32(3) of the Standard Building Regulation 2006;
2. Failing to take sufficient action to remedy the builder’s breach of s70 of the Building Act;
3.The contravention of legislative requirements under s88 of the Building Act when giving approval documentation;
4. Failing to ensure that engagement with the client was in writing.
Penalty parameters
Section 211 of the Building Act provides that:
Orders relating to current building certifier
(1) If the tribunal decides that proper grounds exist for taking disciplinary action against a building certifier who is licensed at the time of the decision, the tribunal may make 1 or more of the orders mentioned in subsections (2) to (7).
(2) The tribunal may make an order--(a) reprimanding the building certifier; or
(b) imposing conditions it considers appropriate on the building certifier's licence; or
(c) directing the building certifier to complete the educational courses stated in the order; or
(d) directing the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated in the order; or
(e) suspending the building certifier's licence for the term the tribunal considers appropriate; or
(f) cancelling the building certifier's licence; or
(g) disqualifying, indefinitely or for a stated period, the building certifier from obtaining a licence as a building certifier from BSA.
(3) The tribunal may make an order requiring the building certifier--
(a) to ensure the certification of building work complies with, for example--
(i) this or another Act; or
(ii) any relevant development approval; or
(iii) a local planning instrument; or
(b) to direct necessary enforcement action be taken under this or another Act, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building works or owner of the building.
(4) The tribunal may, in relation to building work that is defective or incomplete as a result of the professional misconduct, make an order that the building certifier--
(a) at the building certifier's cost, have the work rectified or completed by a person who is appropriately licensed; or
(b) pay the complainant or another person an amount sufficient to rectify or complete the work.
(5) The tribunal may make an order imposing a penalty on the building certifier of not more than--
(a) for a first finding of professional misconduct--an amount equivalent to 80 penalty units; or
(b) for a second finding of professional misconduct--an amount equivalent to 120 penalty units; or
(c) for a subsequent finding of professional misconduct--an amount equivalent to 160 penalty units.
(6) If a corporation or local government employed the building certifier to perform building certification work and the corporation or local government did not take all reasonable steps to ensure the building certifier did not engage in professional misconduct, the tribunal may--
(a) make an order under subsection (3) or (4) as if the corporation or local government were the building certifier; or
(b) make an order imposing a penalty on the corporation of not more than--(i) for a first time that the corporation did not take all reasonable steps--an amount equivalent to 80 penalty units; or
(ii) for a second time that the corporation did not take all reasonable steps--an amount equivalent to 120 penalty units; or
(iii) for a subsequent time that the corporation did not take all reasonable steps--an amount equivalent to 160 penalty units.
(7) The tribunal may make any other order it considers appropriate.
(8) If the tribunal makes an order under subsection (5) or (6)(b), the tribunal must order that the amount be paid to the person bringing the disciplinary proceedings.
(9) The tribunal may make an order under subsection (6) or, if the order affects the corporation or local government, under subsection (7), only if the corporation or local government has been joined as a party to the proceeding.
In this case, the QBSA seeks that:
- Mr Chandra’s Building Surveyor Licence be cancelled;
- Mr Chandra be disqualified from applying for a licence for a period of not less than (3) years, or such greater time as may be determined by QCAT; and
- That Mr Chandra pay a penalty in the amount of $12,000.00 (Maximum penalty units = 120 @ $100.00 per unit); and
- That Mr Chandra pay the QBSA’s costs of and incidental to the proceedings in the amount of $1,500.00.
Previous History of Misconduct
Mr Chandra has an extensive disciplinary history with the QBSA. The QBSA has provided QCAT with a copy of Mr Chandra’s “License Search – Certifier”.[1] That search, conducted in respect of Mr Suresh Chandra, Licence Number: A81718, Trading Name as ‘Building Approval and Inspections Consultants” indicates a total of six license complaints which are outlined below:
[1] “SUB-1” appended to the QBSA’s Submissions for the Applicant on Penalty and Costs, filed in QCAT on 23 July 2010.
1.Case ID 81718_19: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 04 June 2004)
2.Case ID 81818_21: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 21 June 2005)
3.Case ID: 81718_37: Engaged in Unsatisfactory Conduct. Direction was given resulting in an Enforcement Action. (Finalised 12 April 2006)
4.Case ID: 81718_41: Engaged in Professional Misconduct as well as Unsatisfactory Misconduct. Reprimand was given. (Finalised 15 January 2008)
5.Case ID: 81718_22: Engaged in Professional Misconduct and underwent an Educational Course, Report on Practise, Suspension of License, an Order pursuant to s 45(4) of the Building Act 1975 that the Respondent at his own cost, have the work found to be defective rectified by a person appropriately licensed. In addition, a Monetary Penalty was ordered to be paid in the sum of $7,500.00. (Finalised 11 September 2009)
6.Case ID: 81718_45: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 28 April 2010)
At the time of hearing, I was advised by the QBSA’s solicitor, Ms Mardee Campbell (“Ms Campbell”), that a seventh count of unsatisfactory conduct had issued against Mr Chandra on 30 July 2010. I conducted an updated licence search using the details above, and determined that the particulars of the seventh count were as follows:
7.Case ID: 81718_44 Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised: 30 July 2010)
Comparable Cases
In determining the appropriateness of the range of penalties sought by the QBSA, I have considered both comparable cases, as well as the evidence given by Mr Chandra on his own behalf at the time of hearing, below.
License Cancellation
The QBSA has sought that Mr Chandra’s Building Surveyor Licence be cancelled.
10. As indicated above, Mr Chandra’s license is presently suspended, following a finding by then Member Lohrish in Queensland Building Services Authority v Chandra [2009] QCCTB 203 (10 September 2009)(“Chandra 2009”) that Mr Chandra had engaged in professional misconduct in relation to 6 Coolibah Place, Narangba; 8 Coolibah Place, Narangba; and 81 Buckland Road, Everton Hills. It is relevant that Mr Chandra was ordered to undertake, during his 8-month suspension, an educational instruction program of at least 20-hours, to be approved, monitored and certified in writing by the Authority.
11. The reason that this is relevant is that Mr Chandra, at the hearing of the matter, argued that he had taken steps to educate himself following the misconduct charges that led to the instant case. During the hearing, Mr Chandra offered an enrolment advice from Central Queensland University, confirming that he is enrolled in a course entitled “Inspection Procedures”.[2]
[2] Hearing Exhibit 2.
12. Ms Campbell, on behalf of the QBSA, submitted that Mr Chandra was undertaking the course as part of the disciplinary process, not because he recognised of his own volition that additional training would be of benefit. I accept Ms Campbell’s submissions that Mr Chandra was undertaking the coursework for the reason that he had been ordered to. Although Mr Chandra asserted that he did sufficient coursework to comply with continuing professional development requirements, there was no evidence that he had undertaken any work above and beyond baseline requirements.
13. In Barakat v Building Professionals Board [2009] NSWADT 5 (“Barakat”), the Administrative Decisions Tribunal of New South Wales cancelled Mr Barakat’s accreditation as an accredited certifier. The Tribunal determined that a continued pattern of behaviour over a course of months, inconsistent with the standards that would be expected of a competent certifier, constituted grounds for cancellation. However, in Barakat, there was a level of fraudulent conduct that does not exist in Mr Chandra’s case. In Barakat, the Tribunal found a:
“profound lack of judgement on the part of Mr Barakat. On the heels of obtaining his licence corruptly, he allowed himself to be used in a scheme to overcome a fundamental omission in circumstances that led him to engage in a series of deceptions and non-disclosures to the home warranty insurer.”
14. On this basis, Mr Barakat’s license was cancelled to ensure protection against re-offending and for the general community.
15. There are similarities between Barakat and Mr Chandra’s case, namely that Mr Chandra also exhibits a history of behaviour that is inconsistent with the standards that would be expected of a competent certifier. Mr Chandra has already had his license suspended based on his history and it is to remain suspended until he complies with the orders contained within the cancellation decision (Chandra 2009).
16. The QBSA submits that based on Mr Chandra’s present license suspension, QCAT should go one step further and cancel his license entirely. This is allowed under the provisions of section 211(2)(f) of the Building Act. I agree with the QBSA that this is an appropriate step to take in Mr Chandra’s circumstances, given his extensive disciplinary history. In the years spanning 2004 – 2010, it was only in 2007 that Mr Chandra did not have a disciplinary finding made against him. This is a telling, and significant, factor suggesting that Mr Chandra’s behaviour is a pattern of conduct, as opposed to a “one-off” mistake.
License Disqualification
17. As the QBSA notes in its 23 July 2010 submissions, if QCAT cancels Mr Chandra’s license (as it now has), there are no provisions in the Building Act which would prevent Mr Chandra from making a fresh application to the QBSA for a new license immediately following the cancellation. QCAT may, pursuant to the provisions of s211(2)(g) of the Building Act, disqualify Mr Chandra, indefinitely or for a stated period, from applying for a license. The QBSA seeks Orders that Mr Chandra be disqualified from obtaining a license in the class of Building Surveyor; Assistant Building Surveyor; and/or Building Surveying Technician for a period of not less than (3) years, or such greater time as may be determined by QCAT.
18. There have not been, to my knowledge, any Queensland Tribunal decisions where a building certifier has been disqualified from making application for a license following cancellation. Some guidance can be taken from decisions made by QCAT’s New South Wales counterpart, the Administrative Decisions Tribunal of New South Wales:
- Building Professionals Board v Duffy [2008] NSWADT 117 (“Duffy”); Mr Duffy (a private certifier) was found guilty of professional misconduct for failure to lodge appropriate documents and subsequently issuing an approval inconsistent with the original building approval. At the time of the investigation into his conduct, Mr Duffy had allowed his license to lapse. Mr Duffy was found guilty of professional misconduct and was ordered not to reapply for a license for a period of two years.
- Building Professionals Board v Cotten [2008] NSWADT 118 (“Cotton”); Mr Cotton (an accredited certifier) was found to have engaged in “unsatisfactory professional conduct” and “professional misconduct”. At the time of the investigation into his conduct, Mr Cotten had allowed his license to lapse. The circumstances leading to the findings are analogous to Mr Chandra’s case, in that they were in the nature of non-compliance with various standards. Mr Cotton was ordered to pay a fine of $5,500.00, had his license cancelled and was prohibited from license reapplication for a period of two years.
- Building Professionals Board v Boulle [2009] NSWADT 9 (“Boulle”); in this case Mr Boulle’s license was current at the time of the Tribunal’s finding that he had engaged in professional misconduct. The Tribunal subsequently ordered license cancellation and disqualification from reapplication for a period of nine months. In making its decision, the Tribunal took into consideration Mr Boulle’s personal history (a marriage breakdown with three young children, leading to depression); the fact that it was Mr Boulle’s fifth time in the disciplinary system; his business practices; and the length of time that it took Mr Boulle to acknowledge his behaviour. The Tribunal also considered the fact that Mr Boulle had practiced as a sole practitioner:
Consequently, he is not in a peer environment that might assist in minimising the possibility of incompetent performance or other serious error.
The Tribunal found that:
On this occasion too, we have the sense that Mr Boulle has not fully come to terms with the difficulties that have now led to him being the subject of adverse disciplinary outcomes on five occasions. Two were regulatory breaches (payment of levies). Three have concerned competence issues. This case is mainly about integrity but there is a competence element (the misidentification of the size of the building for the purpose of his accreditation). Professional standards can be divided broadly into ones relating to competence, diligence or integrity. It will be seen that Mr Boulle has now offended in all three areas.
Further consideration was given by the Tribunal in Boulle to the purpose of disciplinary orders as “protective not punitive”, and seeking to:
“protect the community by imposing a sanction on the practitioner. The sanction also serves the objectives of general deterrence – it operates as a marker for other practitioners, and specific deterrence – to prevent or discourage a repetition of the conduct by the particular practitioner.” Boulle at paragraph 31.
Monetary Penalty
19. Section 211(5) of the Building Act provides that QCAT may Order that Mr Chandra pay a penalty of an amount equivalent to 120 penalty units, presently valued at $100.00 per penalty unit, making the maximum penalty $12,000.00.
20. In Queensland Building Services Authority v Nelson, J. H. [2007] QCCTB 71, Member Butler (as he was then) ordered that Mr Nelson pay a penalty of $2,000.00 for a first time misconduct offence, where there was only one substantiated count of misconduct. As has been discussed in some detail, Mr Chandra is not a first time offender.
21. Mr Chandra was ordered to pay $7,500.00 following the misconduct proceedings that led to his license suspension (Chandra 2009). As such, the QBSA suggests that the maximum penalty should now be imposed. Certainly I can see no rationale argument justifying a penalty of less than $7,500.00 for a subsequent offence.
Mitigating circumstances in Mr Chandra’s case
22. Mr Chandra filed submissions[3] in support of his argument that QCAT should impose a penalty on the lesser end of the penalty spectrum.
[3] Submissions of Mr Suresh Chandra, filed in QCAT on 9 July 2010.
23. Most of Mr Chandra’s submissions seek to re-ventilate the CCT’s finding in Chandra 2008 that he had engaged in the unsatisfactory conduct which led to the finding of misconduct. For example, he continues to argue that:
“Though the Legislature calls for an approved format to be used does not diminish the fact that an actual inspection was in fact carried out and the findings recorded and relayed when asked. I would also state that the Standard Building Regulation and the introduction of the standard format in reporting were introduced in September 2006. In view of the completion of paper work for the project, my inspection certificate is the only existent record of the events of 21 September 2006. In my view the letter of the legislation has probably not been adhered to but the SPIRIT and the mandatory requirements of the legislation have been satisfied.”
24. Mr Chandra also submits that although he recognises he was in breach of Section 70 of the Building Act, that he took steps to notify the builder immediately upon becoming aware of the breach. He then places the blame for not following up back on to the builder and owners, stating that:
“As the obligation was passed onto the builder to rectify the breach, who took almost one year to provide the required documentation and in this time the dispute between the owners and the builder had deepened and I was disengaged from the project. Despite being disengaged, I did lodge this documentation to the council in order to address the breach thus demonstrating a genuine attempt to comply with the legislation.”
25. Mr Chandra’s continual efforts to shift the blame for his actions, as demonstrated in the passages above, suggest that his submission that he is “remorseful” is perhaps limited in depth. It is my impression that Mr Chandra is concerned that QCAT’s decision will impact upon his ability to earn a living, but has not accepted that he bears personal responsibility for the factors that led to these misconduct proceedings.
26. Although Mr Chandra submits that he has taken steps to familiarise himself with the legislation and his obligations, there is no evidence other than his own assertions, to this effect. As I have indicated above, I accept that Mr Chandra’s coursework at Central Queensland University is only in response to the disciplinary proceedings that led to his suspension.
27. I questioned Mr Chandra extensively in the hearing, endeavouring to uncover any mitigating circumstances that may cause QCAT to look more favourably upon his case. Mr Chandra explained that:
- He has taken steps to ensure that he is using the appropriate forms;
- Has engaged a lawyer to prepare stand-alone client agreements;
- He is now utilising electronic lodgement; and
- Has hired additional staff consisting of an engineer and private certifier.
28. Additionally, Mr Chandra’s wife, Mrs Jaswanti Chandra, gave evidence that the couple have an ill relative in Dallas for whom they have financial responsibilities.
29. The steps that Mr Chandra has taken are, in my view, most accurately seen as reactive steps, rather than pro-active steps. There is nothing to suggest that he has gone beyond the baseline expectations of his profession.
30. Of more concern to QCAT are Mr Chandra’s oral submissions that these were “paper offences”. Whilst the offences may have related to paperwork, the consequences for the affected homeowners are not of a paperwork nature. The consequences for Mr and Mrs Bach, as they framed them in their complaint to the QBSA,[4] are that: “Suresh Chandra has failed to protect us from the poor building practice conducted by Majestic Pools and Landscapes,” by failing in his duty as a certifier.
[4] Exhibit WB-2 to the Affidavit of Wayne John Blackman, sworn to on 8 April 2010.
Decision on Penalty
31. Mr Chandra’s disciplinary history is more extensive than that in Duffy, Cotton, or Boulle. Further, unlike in Boulle, there are no significant mitigating personal circumstances that would cause QCAT to see Mr Chandra’s conduct in a more sympathetic light. Quite bluntly, he has been the architect of his own downfall, by repeatedly engaging in conduct that is lesser than that which the public should expect from a licensed building certifier.
32. Further, as I have suggested above, it is my view that Mr Chandra has not accepted full responsibility for the conduct that led to the findings of unsatisfactory conduct and professional misconduct, in that he continues to suggest reasons that others are partly to blame, at a stage when the only matters in issue are penalty and costs. Considering that Mr Chandra, as was the case in Boulle, manages his own practice, there is not likely to be a positive flow-on effect from other practitioners familiar with all of the professional requirements that apply to building certifiers. In view of Mr Chandra’s viewing these offences as “paper offences” for which he still suggests blame can be shifted elsewhere, I consider him to be at risk of making similarly poor decisions about his own practice in future.
33. I accept that any period of cancellation and/or disqualification will impose a financial hardship on Mr Chandra and the family he supports. It will also be difficult for Mr Chandra, who is an older gentleman, to requalify in a new field.
34. For these reasons, I consider that the following Orders are appropriate in Mr Chandra’s present circumstances:
Orders
That Mr Suresh Chandra’s licence number A81718 be cancelled;
That Mr Suresh Chandra be disqualified from obtaining a license in the class of Building Surveyor; Assistant Building Surveyor; and/or Building Surveying Technician for a period of not less than two years and three months (2 1/4) years;
That Mr Suresh Chandra pay a penalty to the QBSA in the amount of $12,000.00 within 60-days of this Order; and
That the parties bear their own costs of and incidental to the proceedings.
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