Troy Richardson's Building Approvals & Inspections v Queensland Building and Construction Commission
[2014] QCAT 138
•8 April 2014
| CITATION: | Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 138 |
| PARTIES: | Mr Troy Christopher Richardson t/a Troy Richardson’s Building Approvals & Inspections (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR070-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 28 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 8 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the QBCC made on 6 February 2012 that Mr Richardson engaged in professional misconduct within the meaning of s 204(1) of the Building Act 1975 is set aside. 2. The decision that Mr Richardson engaged in unsatisfactory conduct within the meaning of s 204(1) of the Building Act 1975 is substituted. |
| CATCHWORDS: | Private certification – whether unsatisfactory conduct – whether professional misconduct – where certification of retaining wall by a building certifying after it was constructed – whether further investigations which should have been required by certifier – whether the traditional meaning of professional misconduct should apply where specific legislation applies – whether the conduct of the building certifier was causative of a compromise to the health or safety of others Building Act 1975 (Qld), s 204(1), s 204(4), s 204(6), s 211, Schedule 2 Briginshaw v Briginshaw (1938) 60 CLR 366 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr G.I.Thomson of Counsel instructed by CBP Lawyers (formerly Hemming & Hart) |
| RESPONDENT: | Dr R.C. Schulte instructed by Queensland Building and Construction Commission |
REASONS FOR DECISION
Mr Troy Richardson is a building certifier. The Queensland Building and Construction Commission (‘QBCC’) gave him a Notice dated 6 February 2012 that it had decided that he had engaged in professional misconduct under s 204(1) of the Building Act 1975 (Qld) (‘the Act’).
He applied to the Tribunal by an application filed on 8 March 2012 for a review of that decision.
I first heard this application on 26 February 2013, and gave a written decision on 7 March 2013. I ordered that the decision that Mr Richardson had engaged in professional misconduct be set aside, and that a decision that he had engaged in unsatisfactory conduct be substituted.[1]
[1]Reported at [2013] QCAT 113.
The QBCC lodged an “Application for leave to appeal or appeal” against my original decision on 5 April 2013. The Appeal was heard and decided on 5 November 2013.[2]
[2]QCAT Case Code: APL152-13.
The Appeal Tribunal made the following order on 5 November 2013:
The decision be remitted back to the Tribunal pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act at first instance to:
(i)To make a finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of “professional misconduct”, either that the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not;
(ii)Consider afresh whether the certifier’s conduct was professional misconduct or unsatisfactory conduct within the meaning of those expressions in the Building Act;
(iii)Make any further findings of fact or draw any inferences arising from the evidence heard by the Tribunal as may be required.
The original application came before me for the remitted hearing on 28 February 2014. The hearing took the form of oral submissions by Counsel. I was also provided with written submissions by each Counsel.
This is my decision on the remitted hearing, in accordance with the orders made by the Appeal Tribunal.
I canvassed the facts of the matter in my original decision. For convenience, and to avoid the parties having to refer back to my original decision in order to understand this decision, I will reproduce those paragraphs of my original decision that relate to the facts only in the following paragraphs.
The facts of the matter
Mr Richardson is a private building certifier practising in Cairns.
In 2005 Mr Richardson was engaged by Finn Master Builders (‘Finn’) to certify a house that was being built at 69 Daphne Drive, Redlynch. He issued the final inspection certificate for the dwelling on 24 March 2006.
Finn also built a concrete block retaining wall on the boundary of the property. It was a significant structure approximately 60 metres long, and up to 3.2 metres high. The slope of the land was cut, and then backfill was placed after the wall was built. Finn did not obtain engineering drawings or Council approval for the wall before constructing it.
It was agreed that construction of the retaining wall was completed sometime in late March 2006.[3]
[3]Agreed Statement of Facts filed on 30 January 2013, Paragraph 11.
Finn engaged Mr Richardson to certify the retaining wall after it was built, and he made his first inspection on 13 October 2008.
After Mr Richardson conducted his first inspection of the retaining wall, he sent a letter dated 21 October 2008 to Finn requesting listed paperwork and information. This included:-
1. Drawings and specifications from a qualified structural engineer including their design certificate.
2. An inspection certificate from a qualified structural engineer to certify the structural integrity of the retaining wall and/or recommend remedial works if required (as the retaining wall was existing, and there appeared to be a slight lean and outwards bow in parts of the Eastern side retaining wall).
A letter was then sent to Finn Builders by Kel Bruce, a structural engineer, dated 20 January 2009, in response to the request by Mr Richardson. Mr Bruce said that the bow, in his opinion, was not detrimental to the structural adequacy of the wall. He issued a Compliance Certificate in Form 15 dated that day, which stated at s 3 that the retaining wall was ‘Certified as structurally adequate in accordance with relevant Australian codes and standards and otherwise in accordance with good engineering practice’.
As time passed, the owners of the adjoining land at 67 Daphne Drive, became increasingly concerned about the wall and commissioned GHD to report on it. In their letter dated 25 August 2010, GHD said that the wall had significant cracks up to 2 mm wide as well as horizontal displacement of the surfaces of some of the cracks, and there was significant tension and shear cracking of the blockwork due to the wall deformation.
GHD summarised their report by saying the durability of the wall was in question and accelerated deterioration of the wall was considered to be likely, and that if the wall continued to rotate and lean over that the extra overturning moments on the wall would continue to increase until the wall became unstable.
GHD recommended that no imposed loads be placed at the top of the wall as those would accelerate the nett destabilising effects on the wall and may lead to further damage or collapse; and that future monitoring should be carried out to ensure the wall remained stable.
The homeowners received a letter from the Council on 20 August 2010, requiring them to have the wall approved or demolished.
Mr Richardson conducted a final inspection on 4 November 2010, and issued a final inspection certificate on 10 November 2010.
Mr Richardson was provided with a copy of the GHD report before he conducted his final inspection of the wall.
In conducting his final inspection, Mr Richardson viewed the wall from one end only, and looked along it. He did not make any attempt to view the wall “face-on”, or inspect the cracking referred to in the GHD report. He explained this by saying that a house had been built below the wall in the interim since his initial inspection.
He did not attempt to gain access through the neighbour’s property to view the wall, or ask to see any photos of it that might be available. It transpired that the neighbour had numerous photos showing the cracking and staining of the wall from water leakage, which would have been of great assistance and information. On 29 June 2011, the wall collapsed catastrophically, falling onto the property below, damaging a shed, caravan, and house.
A report of Colefax Rogers Consulting Engineers dated 7 July 2011, which was prepared after the wall collapsed, noted that the wall as constructed could not perform as a cantilever retaining wall, and that the cause of the collapse was faulty design and structural inadequacy. Specifically they noted:
· The wall was constructed entirely in 190mm masonry, whereas the details on the plans produced by Bruce Associates specified 290mm blockwork off the footing.
· The footing was not wide enough at the base for a wall of the height constructed.
· The starter bars were totally inadequate. The starter bars were closer to the outer face than the fill face of the 190mm masonry. Starter bars should have been located 50mm in from the rear, or fill face, of 290mm masonry.
Mr Richardson had been awaiting payment for his services from Finn between December 2008 and November 2010, and as at November 2010 was still owed in excess of $8,000 for certification services undertaken on his behalf. He also devoted a lot of his time in the period from June 2009 to July 2010 to the wellbeing of his infant son who had serious medical conditions. He also says that the years 2008 and 2009 were the busiest years that his business had experienced.
The applicable law
The expressions “unsatisfactory conduct” and “professional misconduct” are defined in Schedule 2 of the Act.
On a review hearing I stand in the place of the decision maker.[4] If I find that the decision of the QBCC that Mr Richardson engaged in professional misconduct is not made out, but that an alternate finding that he engaged in unsatisfactory conduct is made out, then I can make such finding as the decision maker under s 204(1).
[4]A fresh hearing on the merits (s 20 QCAT Act); and step into the shoes of the decision maker Drake v Minister for Education (1979) FLR 577, Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
The definition of ‘unsatisfactory conduct’ is:
Unsatisfactory conduct for a building certifier or former building certifier, includes the following –
(a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
(b)conduct that is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including for example –
(i)disregarding relevant and appropriate matters; and
(ii)acting outside the scope of the building certifier’s powers; and
(iii)acting beyond the scope of the building certifier’s competence; and
(iv)contravening the code of conduct;
(c)conduct that is of a lesser standard than the standard that might be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
The definition of ‘professional misconduct’ is:-
Professional misconduct for a building certifier or former building certifier, includes the following –
(a)conduct that –
(i)shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
(ii)compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and
(iii)is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including. For example –
(A) disregarding relevant and appropriate matters; and
(B) acting outside the scope of the building certifier’s powers; and
(C) acting beyond the scope of the building certifier’s competence; and
(D) contravening the code of conduct; and
(E) falsely claiming the builder certifier has the qualifications, necessary experience or licence to be engaged as a building certifier
(b)seeking, accepting or agreeing to accept a benefit, whether for the benefit of the building certifier or another person, as a reward or inducement to act in contravention of –
(i)this Act; or
(ii)another Act regulating building certifiers, including private certifiers for building work;
(c)failing to comply with an order of the QBCC or the tribunal;
(d)fraudulent or dishonest behaviour in performing building certifying functions;
(e)other improper or unethical conduct;
(f)repeated unsatisfactory conduct
In my original decision I referred to, and applied the test outlined in, the decision in Schwede v QBSA, Kennedy [2009] QCCTB 157. The nature of professional misconduct by a private certifier was discussed in that matter. The member commented at paragraph 65 that:
Plainly, professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care; it is conduct that compromises the safety of persons using buildings, the amenity of a property or significantly conflicts with local planning laws; it is unlawful conduct – in the sense of conduct contrary to the Acts regulating the functions of private certifiers; it is corruption in the sense of seeking or taking benefits in return for breaching the regulating Act or seeking to corrupt other private certifiers in the same way; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct.
He concluded at paragraph 69, outlining a test, that:
In the context of the Building Act, I am satisfied that professional misconduct is misconduct of a nature and seriousness that a private certifier in good standing would regard as disgraceful or dishonourable and which warrants severe disciplinary action.
It was submitted by Counsel for the Commission that the test in the decision in Schwede, on its own, is not a correct statement of the law. It was argued that the comments, and the test, in that matter are descriptive, and whilst they may reflect what is seen as the “traditional meaning” of the term “professional misconduct”, that in consideration of the Building Act there is a definition of that expression, and regard has to be had firstly to the legislative definition.
The Commission submitted that:[5]
2.The definition of “professional misconduct” is an exclusive definition, with the consequence that matters that might otherwise fall outside the “traditional meaning” are included.
(and that)
3. In short, if conduct falls within the proper construction of the words of subparagraph (a) of the definition of professional misconduct then that conduct is “professional misconduct”. It is not necessary for that “included conduct” to also fall within the “traditional meaning” because the legislature expressly intends for that “included conduct” alone to comprise “professional misconduct”.
[5]Submissions QBCC filed 18 February 2014.
The essence of the Schwede decision is that it imports a categorisation of the conduct as “disgraceful or dishonourable” as a necessary basis for a finding of “professional misconduct”.
However, the definition of “professional misconduct” in Schedule 2 of the Act does not include the words “disgraceful or dishonourable”. I accept that a proper reading of the legislation does not require such a description to be an essential requirement for a finding of “professional misconduct”.
I therefore accept the submissions of Counsel for the Commission as to the proper approach in law as to the necessary requirements to establish “professional misconduct”.
Was Mr Richardson’s conduct “unsatisfactory conduct”
There were steps that I have found that Mr Richardson did not take:
(a) viewing the wall from the front and in its entirety on the re-examination; and/or
(b) seeking to obtain and view any photographs taken by the neighbours; and/or
(c) requiring an updated engineer’s report, as the state of the wall had deteriorated visibly from the description in the engineer’s report of Bruce and Associates, and a significant period of time had elapsed since the date of the report; and/or
(d) having proper regard to the impact of the GHD report.
If Mr Richardson had conducted a full and careful examination of the wall from the front, he would have seen the cracking and deformation that had developed since the engineers report of Bruce and Associates. Similarly, if he had obtained the photographs that were readily available from the neighbours, if access to see the wall was difficult for him, he would have seen the cracking in the photographs.
Once having seen that cracking, that would clearly have called for further examination and consideration, and he should have then made further enquiries.
The further enquiries that Mr Richardson should have reasonably made were firstly to ask for a further report from the engineer. The Commission submit that he should also have had further investigative testing done.
Mr Richardson did not do any of these things – he did not make a careful examination of the wall; he did not ask about any photographs which the neighbours had; he did not ask for a further engineer’s report; he did not ask for any investigative testing; and he did not have proper regard to the GHD report, which clearly raised issues of concern.
As a general description, and using ordinary terminology, the conduct of Mr Richardson by going ahead and issuing a certificate without doing any of these things, is well described as reckless or careless. The question is, how does that fit into the legislative framework?
The definition of “unsatisfactory conduct” in paragraph (a) is:
(a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions.
I do not have material sufficient to show incompetence or a lack of knowledge or skill by Mr Richardson. He may well have had sufficient competence, knowledge and skill to be able to properly assess the significance of the cracking and deformation as a matter of concern, and to seek further advice – he just failed to do so.
There is no suggestion that Mr Richardson showed a lack of integrity in these matters.
I consider that the internal provisions of (a) in the definition of “unsatisfactory conduct” are options, as demonstrated by the use of the word “or” before “a lack of”. The word “or” is implied into each of the words which are separated by commas, so that is to be read in each application as “or a lack of adequate..”.
It is therefore not necessary to show that all the words expressed in (a) are demonstrated. Specifically, I do not consider that the words “incompetence”, “knowledge”, “skill” and “integrity” are necessary elements.
I am satisfied that Mr Richardson’s conduct demonstrated a lack of adequate judgment, or adequate diligence, or care in performing private certifying functions.
I therefore consider that paragraph (a) of the definition of “unsatisfactory conduct” is made out.
Subparagraph (c) of the definition of “unsatisfactory conduct” is as follows:
(c) conduct that is of a lesser standard than the standard that might be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
It would be reasonably expected by the public that a building certifier would properly inspect a retaining wall, and take steps to inquire further if he saw cracking or deformation. The public rely on certifiers to have an understanding of the usual performance of structures such as a retaining wall, and that seeing cracking and deformation in a retaining wall would have significance to a certifier sufficient to prompt him or her to inquire further.
Similarly, a building certifier’s professional peers would reasonably expect one of their cohort to carefully inspect a retaining wall, be aware of the implications of cracking and deformation in a retaining wall, and respond by making further inquiries before issuing a certificate of approval.
I am satisfied that the steps that Mr Richardson did not take, were steps that a diligent and careful private certifier exercising good judgment would have taken, and which the public or the building certifier’s professional peers might reasonably expect to have been taken.
Mr Richardson’s conduct fell below that described in (c), and I therefore consider that paragraph (c) of the definition of “unsatisfactory conduct” is made out.
The definition of “unsatisfactory conduct” refers to the following paragraphs (a), (b) and (c) as “includes”. It is not therefore necessary for each of those paragraphs to be made out. If any of the paragraphs are made out, that is sufficient.
I am satisfied that Mr Richardson’s conduct fell below the standard required by both paragraphs (a) and (c) of the definition of “unsatisfactory conduct”.
The findings that I have made lead clearly to a conclusion that Mr Richardson’s conduct was “unsatisfactory conduct” within the definition in the Act.
The next question is whether Mr Richardson’s conduct was “professional misconduct”.
Was Mr Richardson’s conduct “professional misconduct”
There is no suggestion that the conduct of Mr Richardson was conduct that:
(b)sought, accepted or agreed to accept a benefit as a reward or inducement to act in contravention of the Act or another Act regulating building certifiers,[6] or
(c)that he failed to comply with an order of the QBCC or the tribunal,[7] or
(d)that he engaged in fraudulent or dishonest behaviour in performing certifying building functions,[8] or
(e)other improper or unethical conduct,[9] or
(f)repeated unsatisfactory conduct.[10]
[6]as referred to in (b) of the definition of “professional misconduct”.
[7]as referred to in (c) of the definition of “professional misconduct”.
[8]as referred to in (d) of the definition of “professional misconduct”.
[9]as referred to in (e) of the definition of “professional misconduct”.
[10]as referred to in (f) of the definition of “professional misconduct”.
Those conducts are referred to in paragraphs (b), (c), (d), (e), and (f) of the definition of “professional misconduct”, and are not considerations in this matter. Therefore, the only relevant paragraph of the definition is (a).
Paragraph (a) has three subparagraphs – (i), (ii) and (iii) – which are linked by the word “and”. It is therefore necessary to show that all three subparagraphs apply.
Paragraph (a)(i) of the definition of “professional misconduct” is:-
conduct that –
shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
I do not have material sufficient to show incompetence or a lack of knowledge by Mr Richardson. He may well have had sufficient competence and knowledge to be able to properly assess the significance of the cracking as a matter of concern, and to seek further advice – he just failed to do so.
There is no suggestion that Mr Richardson showed a lack of integrity in these matters.
I consider that the internal provisions of (a)(i) in the definition of “professional misconduct” are options, as demonstrated by the use of the word “or” before “a lack of”. The word “or” is implied into each of the words which are separated by commas, so that is to be read in each application as “or a lack of adequate ...”.
It is therefore not necessary to show that all the words expressed in (a)(i) are demonstrated. Specifically, I do not consider that the words “incompetence”, “knowledge”, “skill” and “integrity” are necessary elements.
I am satisfied, as previously discussed, that Mr Richardson’s conduct demonstrated a lack of adequate judgment, or adequate diligence, or care in performing building certifying functions.
I therefore consider that paragraph (a)(i) of the definition of “professional misconduct” is made out.
Paragraph (a)(iii) of the definition of “professional misconduct” is:-
(iii)is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including. For example –
(A)disregarding relevant and appropriate matters; and
(B)acting outside the scope of the building certifier’s powers; and
(C)acting beyond the scope of the building certifier’s competence; and
(D)contravening the code of conduct; and
(E)falsely claiming the builder certifier has the qualifications, necessary experience or licence to be engaged as a building certifier
Example (A) “disregarding relevant and appropriate matters” is of specific relevance. I consider that relevant and appropriate matters that a building certifier should have regard to in this situation in considering whether to issue a certificate in relation to a retaining wall would include consideration of the current state of the wall, and consideration of contemporary engineering advice.
Mr Richardson disregarded those matters by failing to conduct a proper inspection of the wall on the re-assessment which would have revealed the cracking and deformation, by failing to obtain further engineering reports, and by failing to have proper regard to the GHD report.
I am satisfied that Mr Richardson’s conduct was contrary to a function under the Act or another act regulating building certifiers, in particular example (A) “disregarding relevant and appropriate matters”.
I therefore consider that paragraph (a)(iii) of the definition of “professional misconduct” is made out.
The issue then becomes whether the remaining paragraph, (a)(ii), is made out.
Considerations as to Causation
Paragraph (a)(ii) of the definition of “professional misconduct” is as follows:-
conduct that –
(ii)compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and
The question that has been remitted back to me to consider in this respect is:-
To make a finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of “professional misconduct”, either that the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not;
Counsel for Mr Richardson submitted that it must be shown that it was Mr Richardson’s conduct that compromised health and safety for this paragraph to apply. He said that the point is not that the wall fell down, but the question is whether the conduct of Mr Richardson caused the wall to fall down. He referred to the standard in Brigginshaw and submitted that I have to be satisfied to a high standard, having regard to the consequences.
Mr Richardson’s Counsel made the following points for consideration as to whether it was something that Mr Richardson did that compromised health and safety:
(1)Mr Richardson was not engaged to certify the wall initially, just the house, and approval was not sought for the wall.[11]
[11]Document “J” p74 – Letter Cairns Regional Council to Lim 16 April 2008.
(2)Mr Richardson had confirmed his retainer as a private certifier to assess and carry out inspections of the “proposed building work”, being “Retaining Wall Class 10b”[12] on 21 October 2008, which was after the wall was built.
[12]Document “O” p79 – Letter Richardson to Lim 21 October 2008.
(3)Mr Richardson sought further information from Finn Master Builders on 21 October 2008[13], being:-
[13]Document “P” p80 – Letter Richardson to Finn 21 October 2008.
1.drawings/specifications from a qualified structural engineer;
2.an inspection certificate from a qualified structural engineer;
3.relaxation from the Cairns Regional Council as the wall exceeded 2m in height;
4.drawings or details showing how adequate provisions shall be made for the drainage and retainment of the site.
(4)Mr Richardson received advice from Bruce and Associates Consulting engineers in response to his request.[14]
[14]Document “Q” p81 – Letter Bruce & Assoc to Richardson 20 January 2009.
(5)The report from GHD was dated 25 August 2010, which was 4 years after the wall was built.[15]
(6)Mr Richardson issued a “Development Application Decision Notice” on 5 October 2010. The notice provided that:
“The Development Application for building work for an existing Retaining Wall (Class 10b) at 69 Daphne Drive, Redlynch (lot 87 on SP139626), was assessed and Approved with Conditions. The decision was made by Troy Richardson’s Building Approval and Inspection Services Pty ltd on 5 October 2010.
The Notice was sent by him to Mr Lim under cover of a letter dated 7 October 2010. That letter specifically referred to the GHD report and drew the attention of Mr Lim to the recommendations in the Summary for his consideration.[16]
(7)The Building Services Authority replied to Mr Lim in relation to his complaint about building work in a letter dated 1 November 2010[17]. In that letter the Authority said:-
I have reviewed your complaint and your items of concern. The defects which exist at your property are considered to be category two defects under this policy. Category two defects do not adversely affect the structural integrity or performance of the building, and do not constitute a health or safety issue.
(8)Mr Richardson issued the Final inspection certificate on 10 November 2010.[18] That certificate contained the following certification:-
I certify that an inspection carried out in accordance with best industry practice for the building work was inspected and complies with the building approval or certificates of inspection were accepted from competent persons at the following stages of the construction
Final stage Date of inspection 4 November 2010
Note: Ensure site surface water does not pond against the top of the retaining wall or enter the adjoining allotments and should continue to be directed towards the provided drainage system.
[15]Document “Y” p96 – Report GHD 25 August 2010.
[16]Document “AJ” p129 – Letter Richardson to Lim 7 October 2010.
[17]Document “AM” p130 – Letter Building Services Authority to Lim 1 November 2010.
[18]Document “AO” p146 – Final inspection certificate.
Mr Richardson’s Counsel described the Final Inspection certificate as the centrepiece of the case against him, and as the conduct that is said to be professional misconduct. He argued that “This piece of paper did not make the wall fall down”.
He further argued that there was evidence that it was a wet Christmas period, that the owners were on notice that that the wall needed monitoring, and that they could have engaged someone to fix the wall.
He submitted that I have to be satisfied that Mr Richardson’s conduct was causative of the collapse. He pointed to the actions of the builder as being the genesis of the problems in the wall, and to actions of the engineers, Bruce and Associates, who had based their design on incorrect (and perhaps misrepresented) advice from the builder.
Counsel for the Commission took issue with those submissions on causation and said that it was not a question whether the conduct of Mr Richardson caused the wall to fall down. He described the meaning of “compromises” as meaning only descending into danger, and referred to references in my decision that there were “obvious safety implications” and “matters that Mr Richardson should have had regard to”.
Counsel for the Commission submitted that the question as to conduct is as to performing the inspection leading up to issuing the certificate that compromised health and safety. He said that one option for Mr Richardson would have been to not issue a final certificate, but to issue a “non-compliance notice” under regulation 33 of the Building regulations, and that if nothing was done following that notice, to then issue an enforcement notice under s 48 of the Act.
In his written submissions, Counsel for the Commission made these submissions as to causation:[19]
16.Mr Richardsons actions in issuing the approval and the Form 21 for the retaining wall entitled the public – in particular the adjacent land owners – to believe that the wall was safe. These matters combined: Mr Richardson’s conduct of the inspection and the issue of the approval and Form 21 is the conduct that compromises the safety of a person.
17.More specifically, the risk of the structural inadequacy of the retaining wall making it liable to collapse was a danger to neighbouring persons living in houses below the retaining wall. Such a danger or risk was something that Mr Richardson should have apprehended and had regard to, when he made his final inspection. As such the failure to have regard to the danger or risk to neighbouring persons living in properties below the retaining wall was conduct that “compromises the...safety of a person” and, accordingly satisfies paragraph (a)(ii) of the definition of “professional misconduct”.
[19]Outline of further submissions of Respondent filed 11 December 2013.
Counsel for Mr Richardson in his written submissions in reply made the following submissions:
27.Ultimately, there is simply insufficient evidence to reach a confident conclusion on the question of causation, with the necessary result that subparagraph (a)(ii) of the definition of “professional misconduct” is not satisfied.
28.Causation might be assessed differently if Mr Richardson had been engaged at the outset and (for example) his conduct had the effect of allowing a design error to be carried through into the construction phase. But that was not this case – Mr Richardson was engaged after the event, and whatever defects the ‘as built” wall may have contained, they were not of his making.
29.The submission put on behalf of the Authority at first instance was that it was “plain that a possible failure of the retaining wall is going to compromise health and safety”. Respectfully though, this is not to the point – the question is not whether the collapse of the retaining wall compromised the health and safety of a person, but whether the conduct of Mr Richardson did so.
30.In this case, Mr Richardson had no involvement in the design or construction of the retaining wall and was not retained to certify it in the first instance. There is no evidence that would safely support a finding of the necessary causation, keeping in mind that the Briginshaw standard is applicable.
Briginshaw was a decision of the High Court of Australia.[20] Dixon J made the following comments as to the standard required in a matter that is not a criminal case, but goes beyond a civil case in its ramifications:[21]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists which may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[20]Briginshaw v Briginshaw (1938) 60 CLR 366.
[21]At p 362.
This is a review application, but the effect of it is to determine what level of disciplinary proceedings apply to Mr Richardson.
If a certifier has engaged in “unsatisfactory conduct” then the provisions of s 204(4) of the Act will apply. This gives the Commission a variety of actions that it must take. These range from not taking any further action, to reprimand, conditions on a licence, requirement to complete educational courses, reporting on his or her practice, taking steps to ensure the certification complies, or directing the certifier to take enforcement action.
If a certifier is found to have engaged in professional misconduct then s 204(6) requires the Commission to start a disciplinary proceeding against the building certifier in the Tribunal.
The Tribunal may make a far wider range of orders if it decides that proper grounds exist for taking disciplinary action. These are contained in subsections 211(2) to 211(7) of the Act. These orders include the types of matters the Commission can direct on an “unsatisfactory conduct” finding, but go further to include ordering rectification of the work at the certifier’s cost, or payment for the rectification; imposing a monetary penalty up to 80 penalty units for a first offence; or any other order the Tribunal considers appropriate.
The other significant difference between the two findings is as to the cost that may be occasioned to Mr Richardson. If a finding of “unsatisfactory conduct” is made, then the matter reverts to the Commission to determine as to penalty. However, if a finding of “professional misconduct” is made, then Mr Richardson is necessarily involved in a fresh set of proceedings, being disciplinary proceedings in the Tribunal, which may involve significant cost to him.
The consequences to Mr Richardson of this review are therefore very significant. I accept that the Briginshaw standard of “reasonable satisfaction” is applicable in considering this matter having regard to the consequences which will flow from a particular finding.
Findings as to causation
There were three main actors in the chain of events involving the construction, inspection and approval of the retaining wall. They were the builder, the engineer Mr Bruce, and the certifier Mr Richardson. There were other parties who came into contact with the situation at various stages, being the Building Services Authority and the Cairns Regional Council.
The failure of the wall was a catastrophic event. It doubtless resulted in a great economic cost, when the costs of rebuilding the wall, compensating the neighbours, and paying the various consultants, are included. I do not have material on the issue, but it is likely that the cost of this may have been borne by one of, or a combination of the various private and statutory insurers. It is likely that reimbursement may be sought by whoever bore the final costs from any liable party.
This was doubtless a highly embarrassing and concerning event to the participants, and to some extents to the regulators such as the Building Services Authority and the Local Authority. The system of approval is essentially designed to ensure that events like this do not occur, that building construction is conducted in a proper way, and that public safety is protected.
Predictably, after a catastrophic event, parties may look for someone else to blame, and parties and consultants may display wisdom after the event.
Mr Richardson was part of the chain of approval. He was not part of the chain of construction. He came into the picture late in the proceedings after the wall was built.
I do not consider that the question of causation is as simple as “Did the Final Inspection Notice cause the wall to fall down” as Mr Richardson’s counsel urged me. I consider that it is necessary to look at the conduct of Mr Richardson as a whole, as Counsel for the Commission submitted, as to “Mr Richardson’s conduct of the inspection and the issue of the approval and Form 21”.
The wall collapsed because it was improperly designed and built. The wall in itself posed a danger to the health and safety of the public, of that there can be no doubt.
The question for me to determine is whether the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not.
Mr Richardson relied on the report of Mr Bruce of 20 January 2009, which was issued about a year and 9 months before Mr Richardson issued his Final Certificate. That report was clear in saying that the wall was stable. Mr Bruce stated:[22]
In my opinion the bow is not detrimental to the structural adequacy of the wall and any decision to repair the wall at this stage would be for aesthetic reasons.
[22]Letter Bruce & Assoc to Finn 20 January 2009, para 2.
The report of GHD was dated 25 August 2010, about two and a half months before Mr Richardson issued his Final Certificate. That report did not say that the wall at the time constituted a risk to health and safety, but raised concerns and urged further monitoring, and advised to ensure that no imposed loads were placed at the top of the wall. Specifically, the report raised safety as a future concern:[23]
It is necessary to ensure that the next phase “Limit Mode U2: Rotation – Ultimate Limit State”, Figure 3.1(B) does not occur resulting in failure of the structure and possible safety concerns to residents located at the top of the wall and at the base of the wall should this mode occur.
[23]GHD Report 25 August 2010, para 3.1.
I note that the homeowners had lodged a Complaint Form on 4 October 2010 with the Building Services Authority. The complaint item was shown on page 6 as follows:
Date problem first noticed – 16/4/2008
Room/area of the house the complaint item is located – Retaining Wall
Description of building work complaint item – Not certified. Bulge in wall. Please read attachments.
The Authority determined on 1 November 2010 that the defects in the wall that Mr Lim complained of were Category Two defects which did not adversely affect the structural integrity or performance of the building, and did not constitute a health or safety issue.
That finding of the Authority was only 9 days before Mr Richardson issued his final certificate. I do not have evidence of the process that the Authority undertook in making its determination, and can not draw too clear a conclusion from this finding,[24] but it is salutary that the Authority specifically referred to the question of health and safety and found that it did not arise.
[24]Refer Transcript of Hearing, p 68 line 36-47; p 70, line 17-23.
This all raises the question – if two engineers, and the Authority itself, did not find that the wall constituted a risk to health and safety, then why should it fall onto Mr Richardson, the last person in the chain, and perhaps the least qualified to assess the structural integrity of the wall, to bear the reprobation for compromising the health and safety of others?
Mr Richardson could have taken steps to better perform his duties of inspection and approval. Perhaps a better inspection may have revealed the serious defects in the wall, but that has not actually been established. There is an assumption that a further engineers report and further investigation would have discerned the fundamental flaws in the wall – but what if they had not? What if the next engineer had come to the same conclusion as the two previous engineers and the Authority?
It has to be recognised that the two final engineers, Chas Gianarakis, of C.M.G. Consulting Engineers:[25] and Robert Colefax of Colefax Rodgers Consulting Engineers[26] who conducted the forensic examination after the failure occurred, had the enormous advantage of being able to look directly at the footings in some places, and at the vertical reinforcement bars, and examine the size of the blocks, after the wall collapsed. That sort of examination would not have been readily available to an engineer conducting an external examination when the wall was in situ as a monolithic structure and was backfilled.
[25]C.M.G. Consulting Engineers Report 25 July 2011.
[26]Colefax Rodgers Consulting Engineers Report 7 July 2011.
Mr. Michael Pehrson, a Senior Audit Investigation Officer for the Authority, gave evidence at the hearing. He was asked about what inspection of the wall would have been possible before and after the collapse:[27]
Mr Thomson: And then you refer to the size of the footings, the location of the steel, the size of …?
Mr Pehrson: Yes
Mr Thomson: Now, were those matters, when you say evident at the time, is that evident at the time of the final inspection or did that become evident after the collapse?
Mr Pehrson: No, No. After the collapse. That wouldn’t have been visible at the time of inspection.
[27]Transcript of Hearing p 79 lines 10 – 16.
Whilst it can be conjectured that use of devices such as ground penetrating radar, pulse induction cover meters and wall x-rays, may have disclosed the fundamental flaws in the construction, that has not actually been established by any evidence.
The result then may well have been, that even if Mr Richardson had conducted a careful examination of the wall, and had he called for further engineers reports and investigations which were then conducted, that the result may not have been any different. It has not been established what that alternative scenario would have been, even if Mr Richardson was more careful. The fundamental flaws may not have been detected, and the wall would have collapsed anyway.
This is a complex chain of events involving several parties. Mr Richardson played a part in that chain, but the extent of his involvement, and the ramifications of his involvement have to be put in context in the whole history of the matter, and in context of the significance and effect of the role that he played.
I cannot be reasonably satisfied that it was Mr Richardson’s conduct that was causative of a compromise to the health and safety of others having regard to:
a) the reliance that Mr Richardson placed upon the engineering advice which he did have available to him: and
b) the failure of two engineers and the Authority, to determine there was a compromise to the health and safety of others; and
c) the uncertainty as to the outcome of a careful inspection and further investigation being required by Mr Richardson; and
d) the context of the history of the matter.
I am required “To make a finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of “professional misconduct”, either that the Certifier’s conduct was causative of a compromise to the health and safety of others, or, it was not”
My finding with respect to the issue of causation for the purposes of subparagraph (a)(ii) of the definition of “professional misconduct” is that the Certifier’s conduct was not causative of a compromise to the health and safety of others.
I therefore do not find that Mr Richardson’s conduct was “conduct that compromises the health of safety of a person” as referred to in paragraph (a)(ii) of the definition of “professional misconduct”.
Conclusion
On the basis of my finding as to causation, paragraph (a)(ii) of the definition of “professional misconduct” is not made out.
Paragraph (a)(ii) is a necessary requirement for a finding of “professional misconduct”, and as it is not made out, I find that the conduct of Mr Richardson did not constitute “professional misconduct”.
I find that the conduct of Mr Richardson did constitute “unsatisfactory conduct” and substitute that decision for the decision of the Commission.
I order that:
1. The decision of the QBCC made on 6 February 2012 that Mr Richardson engaged in professional misconduct within the meaning of s 204(1) of the Building Act 1975 is set aside.
2. The decision that Mr Richardson engaged in unsatisfactory conduct within the meaning of s 204(1) of the Building Act 1975 is substituted.
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