Suresh Chandra v Queensland Building and Construction Commission [2017] QCA 4

In a recent case concerning professional misconduct and unsatisfactory conduct of a licensed building certifier, the Court of Appeal has overturned a decision of the QCAT Appeal Tribunal.  

The Queensland Building and Construction Commission (QBCC) had commenced professional disciplinary proceedings against a building certifier. The certifier had certified conversion of a garage into two bedrooms but water leaked into the bedrooms and they were affected by termites.
It was the fourth time that a complaint had been made against the certifier, three earlier complaints having resulted in a finding of unsatisfactory conduct.

At first instance the Queensland Civil and Administrative Tribunal (QCAT)  imposed a lifetime ban and a $10,000 penalty. The QCAT Appeal Tribunal overturned the $10,000 penalty but upheld the lifetime ban awarded by QCAT on the basis of sufficient and appropriate protection of the public.

The certifier applied to the Court of Appeal for leave to appeal.  The QBCC filed a notice of cross-appeal seeking to reinstate the $10,000 penalty. (The QBCC ought to have filed and served an application for leave to appeal rather than a cross-appeal but no point was taken – at [9]).

Decision of QCAT overturned

The Court of Appeal overturned the decision of the Appeal Tribunal as it was decided that it was inappropriate to impose the most severe penalty of a permanent ban when a less severe penalty also would have supplied protection to the public, particularly in circumstances where retraining was available.

As to the permanent ban, Fraser JA, of whom Margaret McMurdo P and Daubney J agreed, said [23]:

“In every case of professional misconduct it might be said that a permanent ban supplied the best protection for the public, but that is not a justification for a permanent ban where a less severe order is appropriate to meet the legislative purposes. In Watts v Legal Services Commissioner [[2016] QCA 224 at [33] and [45]-[52]] Gotterson JA cited and followed the decision in Prothonotary of the Supreme Court of New South Wales v P [[2003] NSWCA 320 at [17]1] that an order striking a legal practitioner off the roll should only be made when the probability is that the practitioner is permanently unfit to practice.”

QBCC also have mixed success.  The Court of Appeal found (at [42]) that the decision to set aside the penalty of $10,000 amounted to an error of law because it was inconsistent with the submissions of both parties and was unsupported by any evidence.

Outcome

  • The Court of Appeal imposed a 5 year ban instead.
  • The Court of Appeal also reinstated the $10,000 penalty.
  • There were mixed orders about costs because both the certifier and the QBCC had succeeded.
[1] Citing Prothonotary Richard NSWCA 31 July 1987 per McHugh JA and NSW Bar Association v Maddocks NSWCA 23 August 1988), followed in Legal Profession Complaints Committee v Love [2014] WASC 389 at [16] (Beech, Kenneth, Martin and Edelman JJ).

 

Legislation and catchwords

  • Professional disciplinary proceedings against Building Certifier
  • Queensland Building and Construction Commission (QBCC)
  • Queensland Civil and Administrative Tribunal Act 2009
  • Appealing proceedings from QCAT Appeal Tribunal.
  • Leave to appeal decision of QCAT Appeal Tribunal.
  • Mixed costs orders.
  • Queensland Civil and Administrative Tribunal Act 2009
  • Building Act 1975 (Qld)

Janelle Payne is a proud member of Burnett Lane Chambers.
For more information about her areas of practice or a copy of her CV, please visit
http://www.burnettlanechambers.com.au/barrister/janelle-payne