Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McKenzie Group Consulting (NSW) Pty Ltd v Building Professionals Board [2020] NSWCATOD 76 Hearing dates: 1 July 2020 Date of orders: 1 July 2020 Decision date: 03 July 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Decision: By consent, the Tribunal orders that: (1) The Respondent's decision made in respect of Investigation No I-01/19 (being the decision the subject of the appeal) (the Decision) is varied as follows: (a) A finding is made in respect of Matters 1, 2, 3, 6, 7 and 8 of Unsatisfactory Professional Conduct only. (b) In respect of Order 1(a), the Applicant is reprimanded. (c) In respect of Order 1(a), the Applicant is ordered to pay a fine of $50,000. (d) The remainder of the Decision is otherwise affirmed. (2) The proceedings are otherwise dismissed. The Tribunal notes the agreement between the parties that: (1) Matters 4, 5, 9 and 10 (which were not pressed in the Decision) are dismissed. (2) No finding of Professional Misconduct is made against the Applicant. (3) The agreement between the parties in relation to these proceedings is confidential between the parties unless required to be disclosed by law. (4) No order as to costs with the intention that each party shall bear its own costs of the appeal. (5) The Applicant has paid the $50,000 referred to in order 1(c) above. Catchwords: TRADES AND PROFESSIONS – accredited certifier – disciplinary action – application for review – consent orders Legislation Cited: Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Civil and Administrative Tribunal Act 2013 Cases Cited: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 Noel v Becker [1971] 2 All ER 1186; [1971] 1 WLR 355 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: McKenzie Group Consulting (NSW) Pty Ltd (Applicant) Building Professionals Board (Respondent) Representation: Counsel: M Fozzard (Respondent) Solicitors: Colin Biggers and Paisley (Applicant) Legal, Building Professionals Board (Respondent) File Number(s): 2019/00362540 Publication restriction: Nil REASONS FOR DECISION 1. On 18 November 2019 McKenzie Group Consulting (NSW) Pty Ltd, an accredited certifier, applied to the Tribunal for administrative review of a decision made on 22 October 2019 by the Building Professionals Board (the Board) to take disciplinary action under the Building Professionals Act 2005 (the BP Act) in respect of Investigation No I-01/19 relating to the issuing of four Construction Certificates and two Occupation Certificates for a mixed use tower building at Site 68 Bennelong Parkway, Sydney Olympic Park, known as Opal Tower. 2. The disciplinary action was to reprimand the applicant (pursuant to s 31(4)(a) of the BP Act), and to order it to pay a fine of $50,000 (pursuant to s 31(4)(f) of the BP Act). 3. The Schedule to the Notice of Decision stated: Determination Section 31(4) of the Building Professionals Act 2005 (BP Act) provides that the Board may take disciplinary action against an accreditation holder where the Board is satisfied that the accreditation holder is guilty of "unsatisfactory professional conduct" or "professional misconduct". An "accreditation holder" includes an accredited body corporate. The Board is satisfied, based on its findings on material questions of facts in relation to Matters 1, 2, 3, 6, 7 and 8 of Investigation No I-01/19 (ie Findings A, B, C, D, E and F of this Statement) that: -The conduct of the accreditation holder constitutes "unsatisfactory professional conduct" as defined by subsection (a) of section 19(1) of the BP Act, -that the accreditation holder's "unsatisfactory professional conduct was of a sufficiently serious nature to justify suspension or cancellation of his accreditation and is therefore "professional misconduct" as defined by s 19(1) of the BP Act, and -that it takes the action set out in the Notice of Decision. The relevant subsection of definition of "unsatisfactory professional conduct" as defined in section 19(1) of the BP Act are as follows: -subsection (a) of the definition: Conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent certifier. The remaining Matters of Investigation No I-01/19 have been dealt with by way of penalty infringement notice/s and/or have not been further pressed. 1. The parties have reached agreement as to orders to resolve the proceedings through a variation to the decision under appeal, and have requested the Tribunal to make orders in accordance with their agreement. Pursuant to s 59 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) the Tribunal has made the orders in accordance with the terms of the agreed settlement. 2. In recognition of the public interest in the proper exercise of the regulatory powers and obligations conferred and imposed under the BP Act both generally, and in respect of this proceeding, the Tribunal has decided to publish short reasons explaining the basis on which the Tribunal has concluded that it has power to make the orders as requested by the parties and that it is appropriate to do so. Consent Orders 1. Section 59 of the NCAT Act confers power on the Tribunal to make orders when proceedings are settled: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if— (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 1. The parties have provided Consent Orders signed by their solicitors, dated 1 July 2020, and s 59(1)(a) is satisfied. 2. Section 59(1)(b) of the NCAT Act requires the Tribunal to be satisfied that it has power to make a decision in the terms of the agreed settlement. 3. The parties have provided an Agreed Statement on the jurisdictional prerequisites for the exercise of the power to make the consent orders, and submit that those prerequisites to the proper exercise of the power to grant the consent orders have been met. In that Statement the parties explain that the effect of the agreement is that there is no variation to the disciplinary action taken against the applicant, and the disciplinary finding giving rise to that disciplinary action amounts to unsatisfactory professional conduct only. The parties submit that the Tribunal has the power to make order 1(a) as it relates only to the matters of investigation in which findings were made against the applicant in the Decision, and involves only a change to the severity of the disciplinary finding contained in the Decision. The parties submit that this is a decision that the Tribunal could have reached on its own on review under s 63 of the Administrative Decisions Review Act 1997. In relation to the proposed orders 1(b)-(d), the parties submit that those confirm the Decision as to those aspects; and proposed order 2 is consequential, contingent on proposed order 1. Jurisdiction of the Tribunal 1. The application for administrative review was brought under the Administrative Decisions Review Act 1997 (the ADR Act) pursuant to s 33 of the BP Act, which enables a person in respect of whom the Board has made a disciplinary finding to apply for administrative review of that finding and any action taken by the Board under s 31(4) of the BP Act. 2. The task of the Tribunal on administrative review under the ADR Act is, pursuant to s 63(1) of the ADR Act, to decide what the correct and preferable decision is, having regard to the material before the Tribunal, including any relevant factual material, and any applicable written or unwritten law. Under s 63(3), in determining an application for administrative review the Tribunal may decide: 1. To affirm the decision; 2. To vary the decision; 3. To set aside the decision and make a decision in substitution for that decision, or 4. To set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 34(2) of the BP Act provides that if the Tribunal finds that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, it may take any one or more of the actions specified in s 34(2)(a)-(l). Those actions include a caution or reprimand (paragraph (a)), and an order for payment of a fine up to 1,000 penalty units (paragraph (f)). 2. The terms "unsatisfactory professional conduct" and "professional misconduct" are defined in s 19(1) of the BP Act: professional misconduct, in relation to an accreditation holder, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accreditation holder's certificate of accreditation. unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission)— (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979 or the Strata Schemes Development Act 2015, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, (e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner, (f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority, (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, (h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation, (i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act, (j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5, (k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5, (l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier, (m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition. 1. Investigation I-01/19 addressed 10 matters, which were the subject of the Board's Investigation Report dated 11 April 2019, summarised in the Agreed Statement as follows: 1. Matter 1 related to the issue of construction certificate 16/123315-1 dated 16 May 2016 for "Building structure to ground floor and in-ground services" (CC2) and Building Code of Australia (BCA) compliance of the relevant plans and documentation; 2. Matter 2 related to the issue of construction certificate 16/123315-3 dated 28 October 2016 for "Remainder of structure, façade and internal fit out of the building only" (CC3) and BCA compliance of the relevant plans and documentation; 3. Matter 3 and Matter 4 related to the commencement of works prior to the issue of CC3; 4. Matter 5 related to the long service levy being underpaid; 5. Matters 6 and 7 related to the issue of the interim occupation certificate No 18/123378-6 dated 14 June 2018 and BCA compliance of the relevant plans and documentation; 6. Matter 8 related to the issue of the final occupation certificate No 18/123378-8 and BCA compliance of the relevant plans and documentation; 7. Matter 9 related to a compliance with condition E13 under the development consent; 8. Matter 10 related to a contract procuring the Applicant as the private certifier not being in the correct form. 1. The Board's Determination summarised the findings in respect of each of Matters 1, 2, 3, 6, 7 and 8, and the evidence and other material on which those findings were based. The Reasons for the Decision explain those findings, including responses to the submissions made by the applicant during the investigation process, and the reasons for the determination of the appropriate disciplinary action, including consideration of the Disciplinary Penalty Guidelines (published on the Board's website) which categorise infringement matters based on the degree of seriousness. 2. As noted above, the Board found that each of Matters 1, 2, 3, 6, 7 and 8 were proven, and that the conduct constituted unsatisfactory professional conduct as defined in paragraph (a) of s 19(1) of the BP Act, and professional misconduct as defined in s 19(1) of the BP Act. 3. Were the application to proceed to a hearing on the merits, the Tribunal would be required to determine afresh, based on the evidence both documentary and oral then before it, whether the allegations in respect of each of the matters the subject of the investigation were established; whether any of those would properly fall within the definition of "unsatisfactory professional conduct" in the BP Act; whether any would individually, or considered cumulatively, fall within the definition of "professional misconduct"; and if the Tribunal was satisfied that the applicant was guilty of unsatisfactory professional conduct or professional misconduct, whether any, and if so which, of the range of actions specified in s 34(2) should be taken. 4. The proposed consent orders maintain the factual findings as to Matters 1, 2, 3, 6, 7 and 8, and propose to vary the Decision to find in respect of those Matters that the conduct was unsatisfactory professional conduct only. Those are findings that would be within the powers of the Tribunal on administrative review under s 33 of the BP Act. The proposed consent orders maintain the disciplinary actions to reprimand the applicant and require it to pay a fine of $50,000, both actions within the powers of the Tribunal under s 34(2)(a) and (f) of the BP Act. Proposed order 2 is consequential on order 1. 5. The remaining matters are included as a notation, to reflect the agreement between the parties, and do not form part of the operative orders. 6. The Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement, and s 59(1)(b) of the NCAT Act is satisfied. 7. The conclusion that the orders are within the Tribunal's power, and can be made to finalise these proceedings, is reached in accordance with the requirements of s 59 of the NCAT Act, and does not reflect any conclusion as to what findings might be made by the Tribunal if the matter were to proceed to a fully contested hearing. Section 59 of the NCAT Act reflects the principle as stated in Ritchie's Uniform Civil Procedure NSW at [36.1A.5] that ordinarily a court ought to make any consent orders requested by competent and interested parties to the proceedings if the orders are within the court's jurisdiction and otherwise appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; Noel v Becker [1971] 2 All ER 1186; [1971] 1 WLR 355. 8. The Board has filed and served documents relevant to the review, which number 26 volumes, and include the Investigation Report. The parties had estimated that the hearing of the review would require three days. Having regard to the volume of material already filed, and the nature of the issues the subject of the Board's investigation, the Tribunal agrees that at least that time would be required, at considerable cost to the parties that could no doubt be better utilised elsewhere. 9. The parties confirm that the record of the details and outcome of the disciplinary proceedings (identified as Disciplinary Action No 498) remains on the Board's publicly accessible Certifier Disciplinary Register. Orders 1. By consent, the Tribunal orders that: 1. The Respondent's decision made in respect of Investigation No I-01/19 (being the decision the subject of the appeal) (the Decision) is varied as follows: 1. A finding is made in respect of Matters 1, 2, 3, 6, 7 and 8 of Unsatisfactory Professional Conduct only. 2. In respect of Order 1(a), the Applicant is reprimanded. 3. In respect of Order 1(a), the Applicant is ordered to pay a fine of $50,000. 4. The remainder of the Decision is otherwise affirmed. 1. The proceedings are otherwise dismissed. 1. The Tribunal notes the agreement between the parties that: 1. Matters 4, 5, 9 and 10 (which were not pressed in the Decision) are dismissed. 2. No finding of Professional Misconduct is made against the Applicant. 3. The agreement between the parties in relation to these proceedings is confidential between the parties unless required to be disclosed by law. 4. No order as to costs with the intention that each party shall bear its own costs of the appeal. 5. The Applicant has paid the $50,000 referred to in order 1(c) above. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2020