Smith v Pool Safety Council - [2013] QCAT 629

CITATION:

Smith v Pool Safety Council [2013] QCAT 629

PARTIES:	Brent Donald Smith (Applicant)
v
Pool Safety Council (Respondent)

APPLICATION NUMBER:

OCR111-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

18 July 2013

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

20 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to waive penalties is dismissed.

2. The penalties imposed by the Pool Safety Council against Brent Donald Smith pursuant to two decisions made on 16 August 2012 are confirmed save in respect of the decision by the Pool Safety Council to take disciplinary action in relation to the late submission of four nonconformity notices to the Logan City Council the monetary penalty only is set aside and a penalty of $500 substituted in lieu.

3. Payment of monetary penalties is to be made by 7 March 2014.

CATCHWORDS:

Pool Safety Council – regulated pools – nonconformity notices – advices to local government - penalties – comparable penalties

Building Act 1975 ss 232, 246AB(2(d), 246AC(4), 246CY(4)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Brent Donald Smith appeared on his own behalf

RESPONDENT:

The Pool Safety Council was represented by Mr Hart, Legal Officer

REASONS FOR DECISION

Mr Smith seeks Tribunal review of two decisions of the Pool Safety Council (PSC) made on 16 August 2012 imposing monetary penalties upon him and imposing other disciplinary orders.
He contests the monetary penalties imposed by the decisions. He wants them waived, and he also wants the non-monetary penalties limited to a letter of reprimand.

Background

By s 232 of the Building Act 1975 (BA) an owner of a regulated pool must ensure the pool complies with certain safety standards.
Swimming pool safety inspectors are appointed under the BA. By s 246AB of the BA, if a swimming pool safety inspector inspects a pool and concludes the pool isn’t compliant with the requirements of the Act, he must, within 2 business days, give the owner a nonconformity notice stating how the pool doesn’t comply.
By s 246AB(2)(d) the owner may ask the inspector to reinspect the pool within three months after being given the nonconformity notice (the reinspection period).
By s 246AC(4) if an owner fails to ask the Inspector to reinspect within the three month reinspection period, the inspector is obliged within 5 business days after that to notify the local government of the failure, and to give the local government a copy of the nonconformity notice.
A nonconformity notice must state how a pool is not a complying pool – s 246AB(2)(b).

Logan City Council

Mr Smith is a swimming pool safety inspector. He was engaged by real estate agents to inspect and approve regulated pools at four rental properties. All were within the Logan City Council jurisdictional area.
Mr Smith issued nonconformity notices after each of the four inspections. The inspections occurred in January and February 2011.
The reinspection periods of all four pools expired without reinspection. Mr Smith did not advise the Logan City Council within 5 days of that as required. The period of delay ranged from 59 days to 96 days.
When he did advise the Logan City Council, none of the copy nonconformity notices he provided to the Council contained details as to how the pools were noncompliant.
When queried by Logan City Council, Mr Smith responded that the nonconformity information was his intellectual property and he would only provide it on payment of a fee of $220.
Logan City Council complained to the Pool Safety Council (the PSC). The PSC has supervisory duties in respect of inspectors. The PSC determined Mr Smith’s failure to give the Logan City Council copies of the nonconformity notices within 5 business days after the end of the reinspection period constituted a breach of section 246AC(4) of the BA and contravened section 1 and 3 of the Code of Conduct applying to Pool Safety Inspectors by failing to perform pool safety inspection functions in the public interest and failing to comply with legislative requirements.
Contravening the Code of Conduct for Pool Safety Inspectors is a ground for disciplinary action[1]. The Pool Safety Council allocated two demerit points to Mr Smith for that breach and imposed a monetary penalty of $1,600. That decision was reconsidered and amended on 16 August 2012 and the monetary penalty reduced to $800 payable within four months but leaving the imposition of the 2 demerit points unchanged. The PSC reduced the penalty after taking his personal circumstances into account and written submissions made by him.
[1] BA Schedule 2.

The Real Estate Agent

A separate complaint was made against Mr Smith by the real estate agent who engaged him to inspect and approve the four pools. All four properties were rental properties.
Mr Smith contacted the agent after the expiry of the reinspection period by email dated 9 July 2011 to confirm his advices to her that the pool owners were obliged to obtain a pool safety certificate from him within 90 days of the nonconformity notice being given, but that he had granted an extension to the owners under the “flood rule”.
In truth, after the expiry of the reinspection period, the agents were not obliged to re-engage Mr Smith.
By s 301 of the BA an exemption period to make rental pools (only) compliant was granted from 8 January 2011 to 8 July 2011. This was introduced to help with recovery following naturally occurring disasters in early 2011.
Mr Smith misinterpreted the exemption granted and took it to also to allow him to permit an extension of the reinspection period provided for in s 246AB(2)(d) of the Building Act. It did not. He was also in error in thinking, as he did, that it applied to pools at premises other than rental premises.
The complaint from the agent was also about Mr Smith’s behaviour. She said he was rude and bullying. She provided to the PSC a written statement from a tenant of one of the inspected rental properties in which the tenant also accused Mr Smith of being rude and arrogant.
The PSC determined that with respect to this complaint his conduct contravened section 7 of the Code of Conduct applying to Pool Safety Inspectors by failing to abide by professional, moral and ethical standards expected of inspectors by the community. Accordingly the PSC determined Mr Smith should be reprimanded for a breach of the Code of Conduct and a monetary penalty of $1,600 imposed. That decision was also reconsidered and amended on 16 August 2012 and the penalty reduced to $800 but leaving the reprimand unchanged. The PSC reduced the penalty after taking his personal circumstances into account and written submissions made by him.

Mr Smith's Submissions

Mr Smith says the decision of the PSC on penalties is excessive. He does not believe all the circumstances are been reviewed correctly and the decision-makers have not taken all the evidence into account. He feels investigating officers from the PSC have hunted for evidence of breaches against him instead of dealing directly with the original complaints.
He doesn’t feel he has been treated fairly. There has been no consideration given to his genuine attempts to perform his duties as a Pool Safety Inspector. He had no opportunity to state his side of the story before the decisions were made by the PSC. He believes the PSC has handed down a standard fine with no consideration of the circumstances. The penalties are based on revenue earning considerations.
His mistakes were honest. The pool safety inspection industry is new and the legislation and rules difficult to interpret. Rather than take a disciplinary stance, the PSC should take an educative view of things. In all the circumstances he believes the fines should be withdrawn and a letter of reprimand sent explaining exactly what he had done wrong so that he could improve his operations and not make the same mistakes in the future.

Consideration

The legislation concerned involves important steps taken to safeguard children with respect to pools. The legislation extends to cover most single dwelling and residential circumstances where pools are found. One particularly important step under the legislation is to ensure that pools are inspected to ensure they comply with prescribed standards of safety, and pools that do not are monitored and forced to comply by local governments.
I accept the PSC’s submission that Mr Smith’s failure to advise the Logan City Council within the time prescribed by the legislation of the failure of the four pools to be reinspected for compliance was a serious failing on his part.
Mr Smith maintains when all is said and done nobody was hurt by his omission. If the pool owners had complied with these recommendations no paper work would have been required for submission to the Logan City Council.
After hearing Mr Smith give evidence I conclude he shows little remorse for his mistakes and has probably learned very little from the breaches by the PSC.
What Mr Smith fails to understand is that delay on his part in notifying the Logan City Council may well have resulted in a tragedy. A consideration of the compliance report he prepared in respect of one of the properties, Ginko Street, shows he observed a retaining wall extending more than 10 mm which could provide a toehold for children to climb the fence and get into the pool area. Further, there were rail spacings in one area less than 900 mm apart and the rails could easily be climbed from the neighbour’s property into the pool area. Additionally the gate would not close correctly and a different latch was recommended. I note in the email he sent to the real estate agent responsible for this property that he considered compliance requirements were matters of life and death and he took his responsibility very seriously.
Mr Smith failed to advise the Logan City Council until 59 days after expiry of the reinspection period with respect to two of the properties concerned, 66 days with respect to the third and 96 days with respect to Ginko Street.
The maximum monetary penalty able to be imposed on a pool safety Inspector prior to 21 August 2012 in respect of disciplinary action under s 246CY(4) was 60 penalty units. At that time each penalty unit had a value of $100. After 21 August 2012 the value of the penalty unit increased to $110.
Having said that, a perusal of many comparable penalties imposed by the PSC indicates a very consistent approach by the PSC of imposing a $100 penalty for each offence associated with the failure to advise a local government within the requisite five day requisite period.
It would appear the only circumstance which takes this matter somewhat beyond those other comparable decisions is Mr Smith’s demand for payment from the local government. I consider that demand for payment a circumstance of aggravation which should be appropriately factored into the penalty. Mr Smith was not told he could charge the local governments by any officer of the PSC, even if one were to accept incorrect advice was given to him about what was required to be submitted to the local government, as he stated in his evidence.
There is no evidence that Mr Smith had less opportunity than other pool safety inspectors to be trained in the requirements of the legislation. He attended the required courses.
In the circumstances, and taking into account comparable penalty decisions, an appropriate monetary penalty with respect to the late notices to the Logan City Council and the demand for payment before he would provide details to the Council about noncompliance is $500.
With respect to the complaint by the real estate agent, Mr Smith’s behaviour is far from acceptable. In the email dated 9 July 2011 he wrote to the agent and advised her that if she chose to take the further compliance assessment work from him, that is did not use his services, he would look to enforce his legal entitlements in relation to the “rule”. A person could naturally read the threat entailed in that correspondence to mean that if he was not called back it might well expose the pool owners to a fine of $5,000.
In the email he also suggested the agent had a poor attitude, she was whining and incompetent. He said that he resented her remarks that he was arrogant and that his response to that was “it takes one to know one”. The email was without doubt rude, unprofessional and uncalled for.
In the letter of complaint from the agent she said Mr Smith had been abusive to both her and a colleague. Additionally, in a letter from a tenant of one of the properties the tenant complained that Mr Smith was rude and arrogant to her in her own home.
The most serious aspect concerning this complaint was the threat contained in the email of 9 July 2011 that there was a potential penalty of up to $5,000 to be imposed if Mr Smith’s services were not utilised. That suggestion was clearly wrong and without any basis.
The PSC viewed the statement by Mr Smith that his services were required to be utilised to achieve a pool safety certificate as a cynical attempt to misrepresent the legislation to obtain further business. I concur.
A comparable decision in complaint reference F13/748 based on an incorrect statement by a Pool Safety Inspector that pools required inspection every 2 years resulted in the imposition of a monitory penalty of $600.
In my opinion the statements made by Mr Smith were more serious than that and the penalty imposed by the PSC of $800 appropriately reflected the objectionable nature of the inaccurate statements made and the unprofessional conduct of a pool safety inspector towards a member of the public.
I do not accept that Mr Smith was refused natural justice before the PSC. He made submissions in writing. They were taken into account[2]. He also gave records of interview. He has been treated fairly.
[2] Exhibits 5 and 6, amended Information Notices.