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

Significance

In disciplinary proceedings where the protection of the public is the dominant legislative purpose, a lifetime ban will be improper if a less severe order would sufficiently and appropriately achieve that purpose.

Facts

Between 1999 and 2010, Suresh Chandra (certifier) was the subject of findings of professional misconduct and unsatisfactory conduct and consequent reprimands by the Queensland Building Services Authority (QBSA).

In 2006, the certifier provided retrospective certification in his capacity as a licensed building certifier under the Building Act 1975 (Qld) for renovations carried out in 2004.

In 2009, following substantial damage caused by water ingress through the walls, which cost approximately $45,000 to repair, the subsequent purchasers of the home lodged a complaint with the QBSA.

On 4 April 2011, the QBSA determined that the certifier had engaged in professional misconduct by certifying the renovations, which involved him acting in a way which was grossly negligent and incompetent, and commenced disciplinary proceedings.

On 22 November 2013, in disciplinary proceedings before the Queensland Civil and Administrative Tribunal (QCAT), the certifier was found guilty of professional misconduct. QCAT imposed a permanent ban on him acting as a building certifier, a monetary penalty of $10,000, and ordered the certifier to pay compensation to the property owners.

Upon appeal on 22 February 2016, the Appeal Tribunal of QCAT affirmed the licensing prohibition, however, set aside the pecuniary penalty.

The certifier appealed the affirmation of the licensing prohibition to the Queensland Court of Appeal, and the QBSA (now the Queensland Building and Construction Commission (QBCC) cross-appealed the setting aside of the pecuniary penalty.

Decision

Fraser JA gave the lead judgement, allowing both applications for leave to appeal and both appeals.

The court considered the purpose of disciplinary proceedings, being the protection of the public and upholding proper professional standards. The court found that the Appeal Tribunal erred in law because the dominant legislative purpose, the protection of the public, could have been assured by a less onerous order than a permanent ban. The court found that absent a finding that the certifier would likely ‘remain unfit to be licensed for the rest of his working life’, a permanent ban was unjustified.

The court set aside the decision of the Appeal Tribunal and substituted it for its own decision that the certifier should be banned from applying to the QBCC for re-registration for a further period of 5 years.

The court also held that the Appeal Tribunal erred in law by vacating the penalty, and that it served the public interest to restore it.