Queensland Building Services Authority v Nunn
[2012] QCAT 589
•28 September 2012
| CITATION: | Queensland Building Services Authority v Nunn [2012] QCAT 589 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Graham Nunn |
| APPLICATION NUMBER: | OCR259-11 |
| MATTER TYPE: | Occupational regulation matters |
| CONFERENCE DATE: | 27 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Adrian Ashman, Member |
| DELIVERED ON: | 28 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 212(1) of the Building Act 1975, proper grounds exist for taking disciplinary action against the Respondent; 2. Pursuant to section 212(7)(b) of the Building Act 1975, the Respondent is disqualified permanently from holding a licence; 3. Pursuant to section 212(5)(c) of the Building Act 1975, the Respondent pay to the Applicant a penalty of Twenty Thousand Dollars ($20,000.00) by a date to be agreed by the parties; and 4. Each party will bear its own costs of, and incidental to, the proceedings. |
| CATCHWORDS: | PROFESSIONAL DISCIPLINARY – Building Services Authority – Licensed Certifier – where the Tribunal found grounds for taking disciplinary action – where the Tribunal prohibited the Certifier from holding a license – where a monetary penalty was imposed on the Certifier – where parties were to bear their own costs in the proceedings Queensland Civil and Administrative Tribunal Act 2009, ss 69, 71, 100 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland Building Services Authority represented by Paul Gordon, Tony Townshend and Crystal Ray |
| RESPONDENT: | Mr Graham Nunn represented by Craig Ray |
REASONS FOR DECISION
Mr Nunn worked in the building industry for over 30 years. From the late-1990s to mid-2007 he was a licensed certifier in the class of building surveyor. Mr Nunn has now been retired for several years.
In or about May 2004, Tangalooma Pty Ltd made a Development Application seeking to expand the residential, commercial, and retail facilities on their Moreton Island property. Mr Nunn was engaged as a private certifier and lodged a Development Permit in regard to this project.
Mr Nunn also issued a certificate of classification outlining the building’s allowed use under the Building Code of Australia, exercising his discretion in relation to that Code.
In May and June 2006, Stevenson Group Investments Pty Ltd lodged two complaints about Mr Nunn’s performance as the building certifier for the project and in accordance with standard procedures.
In his investigative role on behalf of the Authority, Mr Townsend investigated the two complaints between mid-August 2006 and early January 2009. He inspected the site in September 2006. In late January 2009, the Stevenson Group lodged a further complaint against Mr Nunn.
Over 30 issues were raised in the complaints. The Authority eventually pursued only nine. Catchpole Building Services completed an independent investigation and report and this formed one of the bases of Mr Townsend’s investigations.
On 27 January 2011, the Authority issued Mr Nunn with a Notice of Decision After Complaint Investigation Under Section 204 of the Building Act 1975. The Authority asserted that it had determined that Mr Nunn had demonstrated unsatisfactory conduct and professional misconduct on the basis of findings made about those nine matters.
The Authority contended that Mr Nunn had failed to recognise or act to ensure rectification of construction work that did not comply with the Building Code, as summarised below:
a) An unprotected steel beam was used over units 13/16 and 10/15 on the property. The Authority argued that this beam did not have fire resistant qualities in accordance with the relevant standards.
b) Incorrect sheeting material was used on the walls bounding units 10 and 15 and units 13 and 16 in that it was constructed of light-weight fire-rated plasterboard that does not meet the Building Code requirements for fire resistance.
c) Travel distances for safe escape from units 9, 10, 13, and 14 were determined to be in excess of the six metres allowed in the Building Code. Window sill heights of the laundries in units 10 and 14 were below the minimum for safe passage by persons escaping a fire hazard. An exit stairway that was not a fire-isolated stairway led to the first floor podium level in breach of the Building Code. A fire lid was not installed over the exiting non-fire-isolated stairway without seeking advice from the Queensland Fire and Rescue Service. Fire hydrants were not placed in accordance with the Building Code.
d) Mr Nunn failed to consider advice from the Queensland Fire and Rescue Service despite the availability of a fire service on Moreton Island.
e) Warning speakers were not installed outside each sole occupancy unit as prescribed in AS1670.
f) Smoke detection devices were not located in the foyer area of the building following the relocation of doors within that area in accordance with the Building Code.
g) A store room was constructed in the ground floor lobby area without fire rated doors.
h) External stairs at ground level leading east from the southern fire exit stairs do not meet the Building Code requirements for the safe evacuation of building occupants.
i) A central riser shaft was constructed without subducts shown on the plan that were part of the building permit.
The matter was heard at a directions hearing in February 2012 and at a compulsory conference in June 2012, directions were given for the parties to file a statement of agreed facts and submissions to the Tribunal.
Subjective interpretation of the Building Code
[10]Mr Townsend undertook a substantial investigation into the allegations levelled at Mr Nunn. His decisions in each of the matters (a) to (i) above were based on his interpretation of the Building Code. Mr Townsend, like Mr Nunn until his retirement, is a licensed certifier. Mr Townsend went to some lengths to draw upon the requirements of the Building Code in his assessment of the complaints. In all matters he determined that there had been contraventions of the Code.
[11]There is little purpose in reciting the evidence he presented to Mr Nunn and the Tribunal. It is sufficient to say that the Authority made its decision to initiate disciplinary proceedings against Mr Nunn having determined that its case was sound and that evidence was available to substantiate the assertions of unsatisfactory conduct and professional misconduct in regard to each complaint. Such documentation was provided to neither Mr Nunn nor the Tribunal.
[12]Mr Nunn filed a substantive response to the Authority’s allegations late in April 2012, addressing each in turn. He argued that the complaints had no basis in law, or were unreasonable. Mr Nunn systematically challenged each of Mr Townsend’s determinations and provided support for his assertions, arguing that Mr Townsend had misinterpreted the Building Code or had come to unfounded conclusions. In some instances, he stated that Mr Townsend’s interpretation were simply wrong. In summary, Mr Nunn’s submissions on each complaint draw attention to alternative, subjective interpretations of relevant clauses in the Building Code.
[13]Mr Nunn and the Authority contributed to the preparation of Scott Schedules for each of the complaints in response to the directions given in the June Compulsory conference. These Schedules highlight the significant differences in the parties’ views and also a lack of consistency in how the Authority and Mr Nunn addressed the salient issues of each complaint.
A resolution
[14]A compulsory conference was held with the parties on 27 September 2012. This involved an extensive, wide-ranging series of discussions over several hours and periods of intensive negotiation in which each party to the compulsory conference conceded views put by the other.
[15]The Tribunal is satisfied that Mr Nunn was fully aware of the issues in the dispute and questions of fact and law that the Tribunal would decide if the matter was not resolved at the compulsory conference. Both parties considered what weight of evidence would be required to present their case cogently to the Tribunal if the matter proceeded to hearing.
[16]At the conclusion of that conference Mr Nunn and the Authority came to agreement about an acceptable resolution to the dispute. By consent they sought orders of the Tribunal in accordance with that agreement.
[17]Having taken the written evidence into consideration and the concessions made during the compulsory conference the Tribunal finds that grounds exist for taking disciplinary action against Mr Nunn.
[18]The Tribunal is satisfied that Mr Nunn understands and accepts the need for sanctions to deter those working in the building industry who pay less than scrupulous attention to fire safety provisions contained in the Building Code. The Tribunal finds that the sanctions agreed by the parties are of an appropriate deterrent value, namely, a prohibition on holding a license or re-licensing for life and a significant monetary penalty.
[19]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 states that parties must bear their own costs other than as provided under that Act or an enabling Act. The Authority and Mr Nunn conceded that each party should bear its own costs and the Tribunal similarly finds this way.
[20]Orders are made as shown above pursuant to sections 69 and 71 of the Queensland Civil and Administrative Tribunal Act 2009.
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