Brooks v Queensland Building and Construction Commission [2023] QCAT 25

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brooks v Queensland Building and Construction Commission [2023] QCAT 25 PARTIES: JEFFREY BROOKS (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: OCR111-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 6 January 2023 HEARING DATE: 22 July 2022 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The decision of the Queensland Building and Construction Commission made on 30 November 2020 that the applicant engaged in professional misconduct with respect to item seven is set aside and substituted with a decision that the applicant engaged in unsatisfactory conduct with respect to item seven. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – BUILDING CERTIFIER – DISCIPLINARY PROCEEDINGS– where certifier signed inspection reports and certified relying on inspections by others – where fire safety requirements not met - whether compromise to health or safety of person or amenity of property – whether unsatisfactory conduct or professional misconduct Building Act 1975 (Qld) s 83(1), s 129, s 190, s 194, s 204, sch 2 Building Regulation 2006 (Qld), s 27, s 29, s 35B(1) Queensland Building and Construction Commission Act 1991 (Qld) s 86E, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 19, s 20, s 21, s 28 Barker v Wingo 407 U.S. 514 (1972) Briginshaw v Briginshaw (1938) 60 CLR 336 -- 1 of 17 -- 2 Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Brown v Dunne (1893) 6 R 67 Brown v Queensland Building and Construction Commission (No. 2) [2016] QCAT 7 Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138 Doolan v Queensland Building and Construction Commission [2017] QCAT 58 Drew v Queensland Building and Construction Commission [2015] QCAT 11 Fitzgerald v Building Professionals Board [2013] NSWADT 299 Kay v Queensland Building and Construction Commission [2014] QCAT 421 Queensland Building and Construction Commission v Richardson [2015] QCATA 85 Queensland Building and Construction Commission v Wood [2019] QCAT 101 Schwede v QBSA [2009] QCCTB 157 Troy Richardson’s Building Approvals & Inspections v QBSA [2013] QCAT 113 Troy Richardson’s Building Approvals and Inspections v Queensland Building and Construction Commission [2014] QCAT 138 Wentworth v New South Wales Bar Association [1992] HCA 24 Van Eyk v Queensland Building and Construction Commission [2020] QCAT 278 APPEARANCES & REPRESENTATION: Applicant: P Jeffrey of Counsel, instructed by Barry Nilsson Solicitors Respondent: S Lee, inhouse Solicitor REASONS FOR DECISION What is this application about? [1] Jeffrey Brooks is a Level 1 accredited building certifier previously employed by the then Caboolture Shire Council (CSC). The Queensland Building and Construction Commission (QBCC) is the authority responsible for certifier licensing, investigating complaints against certifiers and disciplining certifiers. [2] On 15 September 2019 the QBCC received a complaint1 from the body corporate for a townhouse development at Deception Bay about the conduct of Mr Brooks in relation to thirteen items, including, relevantly, alleged non-compliance with fire separating construction requirements for unit four within the development, for which 1 Under section 190(1) of the Building Act 1975 (Qld) (Building Act). -- 2 of 17 -- 3 Mr Brooks had signed “satisfactory” inspection reports and issued a certificate of classification. [3] After investigating the complaint,2 the QBCC decided3 that Mr Brooks had engaged in unsatisfactory conduct in relation to items seven and nine of the complaint, but that he had not engaged in unsatisfactory conduct or professional misconduct in relation to other items that formed part of the complaint. [4] On 30 September 2020 the body corporate applied for an internal review4 of the decision regarding items seven and nine, advocating for a finding of “professional misconduct”. [5] The internal review decision made on 30 November 2020 found that Mr Brooks had engaged professional misconduct with respect to item seven but that he had not engaged in professional misconduct or unsatisfactory conduct with respect to item nine (the IR decision). [6] On 18 December 2020 Mr Brooks applied to the tribunal for a review of the IR decision with respect to item seven. [7] Mr Brooks does not dispute that the following error was made in the certification process per item seven of the complaint: Girder truss passing through firewall. This truss is supposed to be a fire rated wall. Timber penetrating wall will need to be treated. [8] However, with respect to item seven Mr Brooks asks the tribunal to set aside the IR decision and replace it with a finding that the conduct in item seven amounts to unsatisfactory conduct rather than professional misconduct. The QBCC say the IR decision should be affirmed. [9] The following evidence was tendered within the Hearing Brief:5 (a) Affidavit of Stacy Kennedy, architect, surveyor and private certifier dated 22 November 2021, attaching Plus Passive Fire Reports dated 20 August 2020 and 21 September 2021; (b) Affidavit of Jeffrey Brooks dated 23 November 2021; (c) Statement of Wayne Blackman, QBCC dated 22 March 2022; (d) Statement of Reasons dated 1 July 2021, including attachments (SOR); and (e) Application for Review filed 18 December 2020 including its attachments. [10] At the hearing on 22 July 2022, oral evidence was given by: (a) Jeffrey Brooks; and (b) Wayne Blackman (Principal Certification Officer in the employ of the QBCC). 2 Under section 194, ibid. 3 Decision made on 3 September 2020 per section 204, ibid. 4 Under section 86D of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). 5 Filed 19 July 2022. -- 3 of 17 -- 4 [11] The parties also made written submissions filed 19 August 2022 (for the QBCC) and 4 August 2022 and 30 August 2022 (for Mr Brooks). Jurisdiction and nature of the review [12] Under section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) a person affected by a reviewable decision may apply to the tribunal for a review of the decision. [13] A ‘reviewable decision’ includes an internal review decision6 and I am therefore satisfied that the tribunal has jurisdiction to conduct this review. [14] The decision to be made is whether the certification error described in item seven of the complaint amounts to conduct by Mr Brooks that, under section 204(1) of the Building Act is unsatisfactory conduct or professional misconduct. [15] The role of the tribunal in review applications is consider the circumstances afresh and to produce the correct and preferable decision.7 [16] The role of the QBCC is to assist the tribunal in making that decision,8 rather than to take an adversarial role or to defend the decision under review. [17] Although not a formal onus of proof, a practical burden falls upon Mr Brooks as the applicant to adduce evidence in these proceedings sufficient to satisfy the tribunal that the relief sought should be granted.9 [18] The requisite standard of proof is the balance of probabilities, as espoused by Justice Dixon in Briginshaw v Briginshaw:10 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. In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. [19] It is generally accepted that a finding of professional misconduct leads to serious consequences.11 The tribunal therefore must be satisfied to a reasonably high degree that a finding of professional misconduct is grounded. Factual background to the decision under review [20] On 7 September 2004 the CSC issued a Form 6 - Development Application Decision Notice - Development Permit No. B-2003-05538 for Townhouses (being class 1a buildings with carports) under Stage 4 (the Building Approval).12 [21] Condition 11 of the Building Approval required that: 6 Section 86E of the QBCC Act. 7 Section 20 of the QCAT Act. 8 Section 21, ibid. 9 Doolan v Queensland Building and Construction Commission [2017] QCAT 58 at [13] to [14]. 10 (1938) 60 CLR 336 at 362. 11 For example, see Queensland Building and Construction Commission v Richardson [2015] QCATA 85 at [25]. 12 Set out in pages 95-100 of the SOR. -- 4 of 17 -- 5 All buildings shall comply with the fire separation requirements of Part 3.7.1 of the Building Code of Australia, particularly the requirements for external walls. The buildings must be registered as separate allotments under a Building Unit Plan format…or a fire rated external wall must be constructed to achieve a FRL of not less than 60/60/60. The external fire rated walls…must be finished…prior to a certificate of classification or final inspection certificates being issued. No occupation of any building, detached or attached, is permitted until this condition and condition 10 are satisfied. [22] Part 3.7.1.8 of the BCA at the time provided, relevantly, that: 3.7.1.8 Separating walls (a) A wall that separates class 1 dwellings, or separates a Class 1 building from a Class 10A building which is not appurtenant to that Class 1 building must have an FRL of not less than 60/60/60 and - ... (ii) extend - (A) If the building has a non-combustible roof covering, to the underside of the roof covering…; … (c) A separating wall complying with (a)(ii)(A) - (i) must not be crossed by timber or other combustible building elements except for roof battens with dimensions of 75 x 50 millimetres or less, or roof sarking; and (ii) must have any gap between the top of the wall and the underside of the roof covering packed with mineral fibre or other suitable fire-resisting material. [23] Mr Brooks signed Building Inspection Reports for unit four as follows: Date Report No. Stage Outcome 31 March 2005 489813 Frame Unsatisfactory – “fire rate x carport areas”, “[indistinguishable] correctly all firewalls” 4 April 2005 505214 Frame Unsatisfactory – block fire wall to be completed with mortar to joints 5 April 2005 507515 Frame Satisfactory – [but] check fire wall at final. 6 September 2005 452316 Final Satisfactory – including with respect to “Fire Separation” under the “Fire Safety” heading. [24] On 6 September 2005 Mr Brooks signed a Form 11 Certificate of Classification for unit 4. 13 Marked SOR-5. 14 Marked SOR-6. 15 Marked SOR-7. 16 Marked SOR-8. -- 5 of 17 -- 6 [25] It wasn’t until a building inspection took place when unit four was being sold in 2019 that concerns were raised in relation to firewalls, prompting the body corporate to engage Plus Passive Fire to undertake an inspection of the firewalls for unit 4 to comment on the firewalls, leading to the body corporate’s complaint to the QBCC. [26] Mr Brooks does not dispute that unit four was constructed with a timber girder truss with an insufficient fire rating passing through the fire separating wall, which is non- compliant with part 3.7.1.8 of the Building Code 2004 and with condition 11 of the Building Approval. [27] Mr Brooks explains however, that the certification process at CSC at the relevant time was as follows: (a) Mr. Brooks was employed as a Senior Building Surveyor/Coordinator at CSC during a time when paper records were kept. (b) Mr. Brooks does not recall the specific development or project the subject of the complaint that led to the decision under review. (c) Mr Brooks did not undertake the physical act of inspecting buildings in his role. (d) CSC employed persons as building inspectors, who were typically qualified in the United Kingdom but undertaking bridging courses in Australia to have their qualifications recognised here. (e) Mr Brooks was not involved in employing the inspectors or vetting their qualifications, employment history or references. (f) He has no specific recall of the certification that lead to the complaint but believes he would have discussed with each inspector their qualifications and relevant experience and would have seen their resumes on or around their first day of employment upon their arrival to his team. (g) CSC’s policy was that the employed inspectors were not to sign any certificates whilst they were still undertaking bridging courses and that Mr Brooks was to sign all certificates arising from inspections by the employed inspectors. (h) Mr Brooks’ process was to sit down with each inspector and to go through their notes made during their inspections (typically on a yellow form or piece of paper) before signing certificates based on those inspections. He says that under no circumstances did he issue a Certificate of Classification unless he had reviewed adequate records on the building approval files to evidence that there were no issues of non-compliance. (i) CSC was amalgamated into the Moreton Bay Regional Council (MBRC) in 2008 at which time all records of CSC travelled across to MBRC. (j) Records were paper-based only at the time with no electronic or back-up copies kept. Mr Brooks did not retain any records when his employment ended but says the notes of his discussions and reviews with building inspectors ought to have made their way onto the files now kept by MBRC. (k) Mr Brooks has not been given access to the MBRC file relevant to the complaint and it was not submitted in evidence. -- 6 of 17 -- 7 [28] The QBCC did not challenge Mr Brooks on the evidence he gave with respect to this process or the notes he says were kept. Mr Brooks therefore submits that the rule in Brown v Dunne17 requires that his evidence be accepted. The standards as they applied in 2004/2005 [29] Mr Brooks’ conduct must be assessed according to the legislation and codes of conduct that applied at the time the conduct took place. [30] Relevantly, that statutory framework comprised: (a) Integrated Planning Act 1997 (Qld) (reprint 5C, in force as at 4June 2004); (b) Integrated Planning Regulation 1998 (Qld) (reprint 3P, in force as at 9 July 2004); (c) Building Act 1975 (Qld) (reprint 4B, in force as at 14 November 2003); (d) Standard Building Regulation 1993 (Qld) (reprint 3F, in force as at 1 July 2004) (SBR); (e) Building Code of Australia 2004 Volume 2 (adopted 1 May 2004, BCA); (f) Code of Conduct for Building Certifiers (effective 14 November 2003); (g) Guidelines – Inspection of single detached Class1a buildings or Class 10 buildings or structures (effective 14 November 2003); and (h) Guideline for the Assessment of Competent Persons (effective 14 November 2003) (the Guidelines).18 [31] The code of conduct established under section 129 of the Building Act included, at the relevant time, the following standards of conduct and professionalism with which building certifiers must comply: (a) Standard 1: perform building certifying functions in the public interest. (b) Standard 3: comply with legislative requirements. (c) Standard 7: abide by moral and ethical standards expected by the community. (d) Standard 8: take all reasonable steps to obtain all relevant facts when performing building certifying functions. (e) Standard 9: clearly document reasons for building certifying decisions. (f) Standard 10: ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit.19 17 (1893) 6 R 67. 18 Issued under section 258 of the Building Act, to which the certifier must have regard when performing functions per section 133A, ibid. 19 Marked SOR-2. -- 7 of 17 -- 8 [32] It was accepted by Mr Blackman that Mr Brooks was, at the relevant time, entitled to rely on “competent persons” in performing certifying functions, provided that certain conditions were met. His evidence on point was as follows: ..if [Mr Brooks] had relied on certificates of inspection given by others (for example certificates of inspection given by other building certifier’s or appropriately qualified competent persons – as he was permitted by the SBR at the material time), circumstances might be different.20 [33] Section 5 of the SBR defined “competent person” for building work as a person who: (a) is assessed by the building certifier for the work as competent to practise in an aspect of the design, building or inspection of the building work because of the person’s skill and experience in the aspect; and (b) if the chief executive approves guidelines for assessing a person, is assessed by the building certifier according to the guidelines; and (c) is registered or licensed under a law applying in the state to practise in the aspect. [34] The Guidelines also include the following (my emphasis added): Certifiers must ensure the competence of a competent person is appropriate to the extent of certification being provided. For example, a certificate from a competent person may be certifying the structural adequacy of footings and boundary clearance compliance. The competent person must be competent to inspect and certify both aspects of building work and have a thorough knowledge of the relevant requirements of the Building Act. To practice in certain aspects of designing, building or inspecting building works, some practitioners are required to be registered or licensed under various laws applying in Queensland…Although an engineer may provide design certification of an element of a building, a person who is not an engineer may legitimately provide an inspection certificate for the element in certain cases. For example, an accredited building certifier would be competent to inspect and certify that the structural frame of a building complied with the design drawings prepared by an engineer. However, any departure from the design drawings would require certification by an engineer, preferably the design engineer Only a person registered or licensed under a law applying in the state to practise in the aspect of the design, building or inspection of the building work may be assessed as a competent person. Membership of a professional association may be an indication of the competence of a practitioner. Professional associations have individual requirements that need be satisfied, such as, code of ethics, minimum academic and practical requirements in a particular aspect. The building certifier should obtain details of the person’s professional affiliations and enquire with those organisations as to the suitability and appropriateness of a person to undertake specific certification tasks. The building certifier should obtain a resume from the person detailing projects or aspects of building work previously certified of a similar nature to the type of work being certified. For example, an engineer certifying a reinforced 20 Statement made 23 March 2022 (at page 404 of the Hearing Bundle). -- 8 of 17 -- 9 concrete structure, should be able to detail projects he/she has been required to inspect/certify involving reinforced concrete of a similar size and complexity. [35] Section 23(3A) of the SBR required the building certifier to keep a record containing details of the documents or information relied on by the building certifier in deciding the person giving the certificate is a competent person and stating the building certifier’s reasons for considering the person giving the certificate to be a competent person. Unsatisfactory conduct / Professional misconduct [36] Unsatisfactory conduct for a building certifier is defined in Schedule 2 of the Building Act to include conduct that: (a) shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions; or (b) is contrary to a function under the Building Act or another Act regulating building certifiers (including private certifiers for building work), including, for example disregarding relevant and appropriate matters and contravening the code of conduct; or (c) is of a lesser standard that the standard that might reasonably be expected or the building certifier by the public or the building certifier’s professional peers. [37] If the tribunal is satisfied there has been a breach of standard 3 of the code of conduct (comply with legislative requirements), a finding of at least unsatisfactory conduct must almost inevitably follow.21 [38] At common law, the test of professional misconduct tends to require the most serious and deliberate departure from accepted industry practice. [39] That test, summarised as regards certifiers in Schwede v QBSA22 states that: …professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care;…it is corruption in the sense of seeking or taking benefits in return for breaching the regulating act…; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct. …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. [40] In Allison v General Council of Medical Education and Registration23 Lopes LJ expressed the test as: …if it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, 21 Van Eyk v Queensland Building and Construction Commission [2020] QCAT 278 at [26]. 22 [2009] QCCTB 157 at [65] and [69]. 23 [1884] 1 QB 750. -- 9 of 17 -- 10 then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect. [41] In Kennedy v The Council of the Incorporated Law Institute of New South Wales24 Rich J said that professional misconduct by a solicitor: …amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or public. [42] Rich J distinguished such conduct from that which, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards. [43] The tribunal in Gilbert v Valuers Registration Board of Queensland [2016] QCAT 531 endorsed the tests in Allison and Kennedy in disciplinary proceedings concerning valuers. [44] In Psychologists Board of Queensland v Robinson25 the Queensland Court of Appeal said the test to be applied is whether the conduct violated “to a substantial degree” the standards observed by members of the profession of good repute and competency.26 [45] In Pillai v Messiter (No 2)27 Kirby P said:28 The statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards. [46] However, the Building Act defines professional misconduct in Schedule 2 in a way that does not exist in equivalent jurisdictions that rely upon the common law definition (for example, the Valuers Registration Act 1992 (Qld) does not define what is meant by “professional misconduct”). [47] Professional misconduct for a building certifier is defined in Schedule 2 of the Building Act to include conduct that: (a) shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence, or care in performing building certifying functions; and (b) comprises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and (c) is contrary to a function under the Building Act or another Act regulating building certifiers (including private certifiers for building work), including, for example disregarding relevant and appropriate matters and contravening the code of conduct. [48] As an issue of statutory interpretation, schedule 2 uses the word “includes” to describe what amounts to professional misconduct. “Includes” and “including” are terms of 24 (1939) 13 ALJ 563. 25 [2004] QCA 405. 26 Ibid at [23]. 27 (1989) 16 NSW LR 197. 28 Ibid at [200]. -- 10 of 17 -- 11 enlargement and not of limitation, meaning these listed examples may amount to professional misconduct even though they might not otherwise, strictly, have fallen within the common law definition of professional misconduct. [49] In Troy Richardson’s Building Approvals and Inspections v the Queensland Building and Construction Commission29 the building certifier certified a retaining wall, which eight months later failed catastrophically, with approximately sixty meters of the wall collapsing on and damaging adjacent residential property. The wall had not been constructed in accordance with the engineer certified drawings and Form 15. [50] The QBCC found that Mr Richardson had engaged in professional misconduct arising out of his certification of the wall, however the tribunal at first instance set aside that decision and substituted its decision that Mr Richardson had engaged in unsatisfactory conduct, although in doing so, they agreed with the QBCC’s submissions on whether the common law test applied, which were as follows (emphasis added): [35] 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 the definition of professional misconduct is an exclusive definition…: 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 also fall within the traditional meaning because the legislature expressly intends that included conduct alone to comprise professional misconduct. [51] On appeal, the Appeal Tribunal upheld the first instance decision.30 They observed that the learned Member was not in error in finding that he must look at the conduct of Mr Richardson in its context. They also considered that the QBCC’s submission that if there was cause for some mere apprehension as to the danger or risk then a certifier would compromise the health and safety of others by failing to act on that apprehension would “open an allegation of professional misconduct for a broad array of low-level risks attendant on people’s health and safety, with unspecified ranges of probability” which was inconsistent with the serious consequences of a finding of professional misconduct. [52] In responding to the QBCC’s submission that the statutory definition makes no allowance for the conduct of others to be considered in determining whether Mr Richardson’s conduct compromise health and safety, the Appeal Tribunal said:31 Plainly, it is Mr Richardson’s conduct which is under scrutiny and to whom the allegation of professional misconduct applies. However, his conduct is a part is part of a matrix of facts. Where the conduct of others played a role in the 29 [2014] QCAT 138. 30 Queensland Building and Construction Commission v Richardson [2015] QCATA 85. 31 Ibid, at [28]. -- 11 of 17 -- 12 ultimate failure of the wall, the role cannot be excluded from consideration of all relevant facts. [53] In Queensland Building and Construction Commission v Wood32, Mr Wood, then retired, accepted that his earlier certification of 302 houses that had not been built in accordance with BCA fireproofing requirements amounted to professional misconduct, despite there being no suggestion that he was motivated by any improper purpose in relation to the way the certification work was performed. [54] The tribunal noted that: [28] Fire separating walls protect the health and safety of people and property. They inhibit the rapid spread of fire. Mr Wood’s conduct also compromised the health or safety of people or the amenity of their property. [55] Further that: [47] The primary role of disciplinary proceedings is protection of the public,33 not punishment of the offender whose conduct falls below required standards, although it should provide both an appropriate general as well as specific deterrent.34 [56] In Drew v Queensland Building and Construction Commission35 the QBCC found a building certifier to have engaged in unsatisfactory conduct in seven matters in circumstances where the certifier approved the works without a site visit (due to the rural location of the properties and what he felt was the prohibitive cost of doing so) and only based on information provided to him with by the clients. The tribunal’s concern was with conduct, which required an examination of the behaviour of Mr Drew in performing his duties are certifier, and to decide whether he has fallen below the required standard in the instances the subject of that decision. The tribunal found that by relying solely on information given to him by clients, and not exercising any independent judgement, Mr Drew acted in an unsatisfactory way – he could not divest himself of the obligation on him as a certifier to satisfy himself as to the situation by passing all the responsibility on to the applicant, and then seeking to rely on that information. [57] In Kay v Queensland Building and Construction Commission36 the tribunal found that the requirements as to fire resistance of the support of a separating wall between sole occupancy units were not satisfied and considered that the conduct of the certifier amounted to unsatisfactory conduct only. [58] In Brown v Queensland Building and Construction Commission (No. 2)37, the certifier failed to personally inspect the site (a fire safety issue) but the tribunal did not consider it amounted to professional misconduct because it did not satisfy the higher test of professional misconduct set out in Richardson, even though the conduct was found to 32 [2019] QCAT 101. 33 Wentworth v New South Wales Bar Association [1992] HCA 24, [13] (Deane, Dawson, Toohey and Gaudron JJ). 34 Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138, [22]. 35 [2015] QCAT 11. 36 [2014] QCAT 421 37 [2016] QCAT 7. -- 12 of 17 -- 13 be either incompetent or a lack of adequate judgement, integrity, diligence or care in performing building certifying functions, such that it compromise the health or safety of the impacted property owner and the amenity of her property. [59] In New South Wales Fitzgerald v Building Professionals Board,38 the certifier’s culpability in relation to the fire safety issues connected with the issuance of the occupation certificate in respect of the development was found to be high, but the tribunal in that case declined to vary the Board’s per determination of unsatisfactory conduct. The QBCC notes that the legislation in this case was not equivalent. [60] Mr Brooks submits that none of those cases had the feature of the practices and procedures mandated by CSC in his case, nor was there any unchallenged evidence of the certifier relying on building inspectors who are competent persons in undertaking the certification work. Therefore, he says that, compared with those authorities, at the highest, the conduct of Mr Brooks amounted to unsatisfactory conduct. [61] As I see it, as Mr Brooks conceded that the elements of unsatisfactory misconduct are met, the question for the tribunal is whether Mr Brooks engaged in professional misconduct in all the circumstances, including in circumstances where his conduct may have: (a) comprised the health or safety of a person; or (b) compromised the amenity of a person’s property; or (c) significantly conflicted with a local planning scheme. Did the error the subject of item seven compromise the health and safety of a person or the amenity of a person’s property? [62] With respect to the compromise to health and safety, Mr Blackman’s evidence is that it is relevant to consider the circumstances that may arise in the event of a building fire involving unit four or unit five of the building complex. He relevantly stated the following: During a fire scenario involving unit four or five, the structural adequacy of the girder trusses may be compromised also causing the roof and roof framing in the non-fire affected unit/dwelling to fail. Fire may also pass from the fire affected dwelling to the non-fire affected dwelling through unprotected openings formed by the girder truss. In such circumstances, it is accepted that the health and safety of the occupants within the dwelling not the subject of the fire’s initial ignition within the adjoining dwelling, as well as the amenity of their property, is likely to be compromised. Notably, however, the amount of compromise will be directly proportional to the amount of fire involvement of the fire affected dwelling, its severity, location, and the intervention by firefighting operations. Erring on the side of public safety, and the maintenance of appropriate standards in the building certifying industry, it is therefore taken into account the circumstances where the building may be involved in a building fire scenario involving unit four or five, with the likely compromise to the health or safety of the person and/or the amenity of a person’s property. 38 [2013] NSWADT 299 at [118]. -- 13 of 17 -- 14 [63] In Queensland Building and Construction Commission v Wood39 it was acknowledged quite plainly that fire separating walls protect the health and safety of people and property.40 [64] I am satisfied that the error the subject of item seven compromised the health and safety of people and the amenity of property. Did the incorrect certification significantly conflict with a local planning scheme? [65] The QBCC submit that: (a) Mr Brooks failed to ensure compliance with the BCA and contravened or acted contrary to the Building Act, the SPR and the code of conduct in signing the inspection reports and in issuing the certificate of classification. (b) The certification of the building was contrary to condition 11 of the development permit that required, among other things, that the building complies with the fire separation requirements under part 3.7.1 of the BCA. (c) According to the evidence of Mr Blackman:41 The installation of a girder trusses passing through a non-combustible vertical lining is an aspect of the building which should have been readily able to be identified by Mr Brooks during the combined Frame stage and Eave/Roof shielding stage inspections for the building. (d) The building is non-compliant with condition 11 of the development permit and the fire separating arrangement specified on the approved plans means that the building did not satisfy the meaning of being “substantially completed” under the SBR at the material time, being when, among other things “all fire safety installations are installed as required by this regulation and operational”. [66] I am satisfied that the certification the subject of item seven significantly conflicted with a local planning scheme. Did Mr Brooks engage in professional misconduct? [67] Mr Blackman says that Mr Brooks engaged in professional misconduct on the grounds that the three limbs of the definition of professional misconduct (as opposed to unsatisfactory conduct) were met.42 [68] The QBCC submits that it is reasonable for the tribunal to make a professional misconduct finding on that basis.43 No doubt the tribunal could make such a finding, but only in the context of and after a consideration of the whole of the circumstances in which the conduct occurred and of the proceedings before it. [69] In my view, findings that the certification the subject of item seven comprised the health or safety of a person or the amenity of a person’s property, or significantly conflicted with a local planning scheme do not, of themselves, require the tribunal to 39 [2019] QCAT 101. 40 At [28]. 41 At paragraph 66 of his statement dated 23 March 2022. 42 Statement of Mr Blackman dated 23 March 2022 at [80]. 43 Written Hearing Submissions at [155]. -- 14 of 17 -- 15 then conclude that Mr Brooks engaged in professional misconduct, unless the entire circumstances in which those errors occurred justify the finding, bearing in mind: (a) the Briginshaw standard in proceedings in which there are serious consequences to Mr Brooks of an adverse finding against him; and (b) the tribunal’s obligation to deal with matters in a way that is fair44 and to act fairly, according to the substantial merits of each case.45 [70] To do otherwise would, as observed by the Appeal Tribunal in Richardson require findings of professional misconduct for a broad array of low-level risks, inconsistent with the serious consequences of a finding of professional misconduct. [71] There are several defining characteristics that make Mr Brooks’ case somewhat unique: (a) Firstly, there is no evidence that Mr Brooks inspected the property and failed to notice the defects. I accept his evidence that someone else did that. (b) Secondly, there were other persons involved in the contravention. Even Mr Blackman observed this (emphasis added):46 …I consider the processes adopted by the Applicant, his employer and colleagues, was not consistent with the legislative framework for the inspection and certification of the building work at the time. (c) Relying on inspections by others was something Mr Brooks was permitted to do, provided certain requirements were met. (d) According to the Guidelines a building certifier could accept from a competent person certification that an aspect of the stage of building work complies with legislation. However, to do so the certifier must have assessed the person as a competent person for the inspection and must keep a record of the documents or information relied on and reasons for considering the person giving the certificate to be a competent person. (e) There is no evidence that Mr Brooks’ decision not to inspect himself was made recklessly, or negligently, as Drew’s was. He did not rely upon a self-interested property owner as Drew did. He relied upon building inspectors under his immediate supervision. (f) Mr Brooks says in this regard, he was bound to follow the directions of his employer, a large municipality in adopting the procedures that he did, regardless of whether they were, in hindsight, best practice. Whilst his position is understandable, it does not excuse the breach of his professional obligations and Mr Brooks. However, he is not asking that he be excused, but rather than a finding of unsatisfactory conduct be made. (g) Thirdly, Mr Brooks’ case is distinguished from Woods by the fact that the error seems limited to one smaller complex and Mr Brooks did not inspect it for himself but relied on others to inspect for him. Mr Woods on the other hand, personally inspected the 302 units and inexplicably made the certification error. 44 Section 3(b) of the QCAT Act. 45 Section 28(2), ibid. 46 Statement dated 23 March 2022 at [93]. -- 15 of 17 -- 16 Mr Woods also consented to a professional misconduct finding when he was retired, and the finding had little reputational or financial impact upon him. [72] Therefore, whilst the errored certification meets the three statutory limbs of the Schedule 2 definition of professional misconduct, I am not satisfied that Mr Brooks’ conduct in so certifying amounted to professional misconduct in all the circumstances in which the error was made. [73] Finally, and importantly, there has been a significant passage of time between the certification conduct (in 2004 and 2005), when the error was discovered (in 2019), when the reviewable decision was made (in 2020) and when the matter was heard (2022). [74] Speaking generally, delay is a natural enemy of evidence. Over time documentary or electronic evidence may be tampered with, inadvertently deleted, destroyed, or archived as part of normal business operations or personal record-keeping. Similarly, witness memories may weaken, details may become hazy (if in fact witnesses can even be identified and located). Mr Brooks himself has no memory of the development the subject of the complaint and could only speak generally as to his usual practice. [75] In Brisbane South Regional Health Authority v Taylor,47 McHugh J observed that “where there is delay the whole quality of justice deteriorates”, citing a United States Supreme Court decision in Barker v Wingo,48 pointed out “what is been forgotten can rarely be shown”. [76] In this case, the delay was not the fault of any party to the proceeding, or of the original complainant: the defect was latent (other than to the building inspector who should missed it) and lay undiscovered until fourteen years after the error was made. [77] During that passage of time however, other factors outside the control of Mr Brooks have hampered his ability to respond to the charges against him: the amalgamation of Councils, his inability to retain records that properly belong to his former employer and the potential misplacement or destruction of those records (which, at the time were paper-based with no electronic or back up copy made). [78] Mr Brooks presented as a credible and honest witness. Through no fault of his own, he has been unable to adduce documentary evidence to support his written and oral evidence that he met the requirements for relying on competent persons in 2004 and 2005 when the error occurred. This is a significant and unfair disadvantage to him given the QBCC’s evidence is that if Mr Brooks could establish that he properly relied on certificates of inspection given by appropriately qualified competent persons, their position might be different. [79] It would, in my view, be a denial of fairness to Mr Brooks not to consider in the “matrix of facts” relevant to the conduct under review how he has been hampered by the passage of time and these other factors outside of his control from presenting evidence to support his own testimony that his conduct at the time complied with his statutory obligations. It gives rise at least to an element of uncertainty sufficient to preclude a finding that he engaged in professional misconduct. 47 (1986) 186 CLR 541 at page 551. 48 407 U.S. 514 (1972). -- 16 of 17 -- 17 Decision [80] For those reasons, the IR decision regarding item seven of the complaint is set aside and substituted with a decision that the conduct the subject of item seven amounts to unsatisfactory conduct. -- 17 of 17 --