Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Freixas v Commissioner for Fair Trading, Department of Customer Service (No 2) [2020] NSWCATOD 78 Hearing dates: On the papers Date of orders: 15 July 2020 Decision date: 15 July 2020 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member N Halstead, General Member Decision: (1) the applicant be reprimanded under s 48(b) of the BDC Act; (2) the applicant be required under s 48(c) of the BDC Act to pay to the respondent, as a penalty, $20,000.00 within one month; (3) a condition be imposed on the registration of the applicant as a registered certifier under s 48(d) of the BDC Act that he undertakes the UTS advanced building regulation course within the next 12 months. Catchwords: PROFESSIONAL DISCIPLINE – review of decision of Building Professionals Board to discipline an accredited certifier - unsatisfactory professional conduct – appropriate action Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63 Building and Development Certifiers Act 2018 (NSW), ss 3, 4, Pt 2, ss 48, 49, 50, 121, Scl 1 Building Professionals Act 2005 (NSW), ss19, 34, 77 (repealed) Civil and Administrative Tribunal Act 2013 (NSW), s 50 Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 4 Cases Cited: Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14 Building Professionals Board v Boulle [2008] NSWADT 80 Carroll v Sydney City Council (1989) 15 NSWLR 541 Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 Hallal v Building Professionals Board [2016] NSWCATOD 78 Khosa v Legal Profession Complaints Committee [2017] WASCA 192 Lilli v Building Professionals Board [2019] NSWCATOD 119 Levick v Building Professionals Board [2018] NSWCATOD 125 Murrant v Building Professionals Board [2019] NSWCATOD 130 NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Qiu v Building Professionals Board [2013] NSWADT 289 R v Secretary of State for Home Department; Ex parte Venables [1998] AC 407 Stirling v Legal Services Commissioner [2013] VSCA 374 Treble v Building Professionals Board [2019] NSWCATOD 34 Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 Texts Cited: None cited Category: Principal judgment Parties: Maurice Freixas (Applicant) Commissioner for Fair Trading, Department of Customer Service (Respondent) Representation: Counsel: P Tomasetti SC and J Mack (Applicant) M Fozzard (Respondent) Solicitors: Ristevski & Associates (Applicant) NSW Fair Trading (Respondent) File Number(s): 2019/00063604 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 20 March 2020, we made a decision in these proceedings that the applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW), and made orders for the filing of any further evidence, and submissions including whether an order should be made dispensing with a hearing, on the action to be taken against him: Freixas v Building Professionals Board (No 1) [2020] NSWCATOD 27 (the Tribunal Decision). 2. These reasons for decision should be read with, and use the same abbreviations as in, the Tribunal Decision with the exception that in these reasons for decision the decision made by the Board made on 29 January 2019 is referred to as "the Board Decision". 3. The proceedings have been affected by the Building and Development Certifiers Act 2018 (NSW) (BDC Act), which commenced on 1 July 2020. 4. The applicant tendered his statement dated 29 April 2020 which we have admitted into evidence (ex A6) (the third Freixas statement). 5. The respondent tendered the investigation report for complaint no 136-15 dated 22 January 2016 which we have admitted into evidence (ex R9) (the 22 January 2016 investigation report). 6. The parties provided the following submissions: 1. the applicant's submissions on s 31(4) of the BP Act dated 29 April 2020; 2. the submissions of the respondent dated 14 May 2020; 3. the applicant's reply submissions on s 31(4) of the BP Act dated 26 May 2020. 1. These reasons for decision address the following issues: 1. whether an order should be made dispensing with a hearing; 2. what action should be taken against the applicant. The effect of the BDC Act The applicable statutory provisions 1. The BDC Act includes the following provisions: 1. in Part 1 (ss 1-4) which deals with preliminary matters: 1. section 3 specifies the objects of the BDC Act: 3 Objects of Act The objects of this Act are as follows— (a) to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work, (b) to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest, (c) to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act, (d) to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation, (e) to provide a framework to permit the continuous improvement of the carrying out of certification work. 1. section 4 contains definitions including: 1. "Secretary" means the Commissioner for Fair Trading, Department of Customer Service; 2. "Tribunal" means the Civil and Administrative Tribunal; 1. Part 2 which provides for the registration of certifiers; 2. in Part 4 (ss 45-51) which provides for disciplinary action against certifiers: 1. section 48 deals with disciplinary action that may be taken by the Secretary and provides: 48 Disciplinary action that may be taken by Secretary (1) The Secretary may, if satisfied that one or more of the grounds for taking disciplinary action against a registered certifier has been established, do any one or more of the following— (a) determine to take no further action against the registered certifier, (b) caution or reprimand the registered certifier, (c) make a determination requiring the registered certifier to pay to the Secretary, as a penalty, an amount not exceeding $220,000 (in the case of a body corporate) or $110,000 (in the case of an individual) within a specified time, (d) impose a condition on the registration of the registered certifier, including a condition requiring the registered certifier to undertake specified education or training relating to a particular type of work or business practice within a specified time, (e) suspend or cancel the registration of the registered certifier in accordance with Part 2, (f) disqualify the registered certifier, either temporarily or permanently, from being registered or being registered in a particular class. (2) In determining the disciplinary action to take, the Secretary— (a) must take into account any other disciplinary action taken against the person under this Part, and 1. section 49 deals with a review by the Tribunal and provides: 49 Review by Civil and Administrative Tribunal A person aggrieved by a decision of the Secretary to take disciplinary action under this Part may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. 1. section 50 deals with the and enforcement of monetary penalties and payment of costs, and relevantly provides: 50 Enforcement of monetary penalties and payment of costs (1) When a decision of the Secretary to impose a monetary penalty has taken effect and the amount required to be paid has not been paid to the Secretary— (a) registration held by the person required to pay is taken to be suspended until that amount is paid to the Secretary, and 1. in Part 9 (ss 111-121) which deals with miscellaneous matters, s 121(a) repeals the BP Act; 2. in Schedule 1 which contains savings, transitional and other provisions: 1. clause 3 deals with the saving of existing certificates of accreditation, and relevantly provides: 3 Saving of existing certificates of accreditation (1) Subject to the regulations, an existing certificate of accreditation that is in force immediately before the repeal day— (a) is taken to be registration in the corresponding class (as prescribed by the regulations) granted under this Act, and 1. clause 7 deals with disciplinary action and provides: 7 Disciplinary action (1) Conduct of an accredited certifier occurring before the repeal day that is unsatisfactory professional conduct or professional misconduct under the former Act is a ground for taking disciplinary action under Part 4 of this Act. (2) Any complaint made to the Building Professionals Board under the former Act that has not been finally resolved by the repeal day is taken to be a complaint made to the Secretary under Part 4 of this Act and may be dealt with accordingly. (3) With respect to a matter to which, because of this clause, Part 4 of this Act applies, the Secretary may rely on any step taken by the Building Professionals Board under the former Act as if it were an equivalent step taken by the Secretary under Part 4 of this Act. 1. clause 8(1) provides that the Board is dissolved on the repeal of s 75 of the BP Act. The consequences of the BDC Act on these proceedings 1. We have amended the respondent to be the Commissioner for Fair Trading, Department of Customer Service (the Commissioner) In view of the fact that the Board has been dissolved and pursuant to cl 7(2) of Sch 1 when read with the definition of "Secretary" in s 4(1) of the BDC Act the complaints against the applicant made to the Board are taken to be complaints against the applicant made to the Commissioner. 2. Pursuant to cl 3(1)(a) of Sch 1 of the BDC Act the applicant is taken to be a registered certifier. 3. Pursuant to cl 7(1) of Sch 1 of the BDC Act we have treated our decision that the applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act as a ground for taking disciplinary action under Part 4 of the BDC Act. 4. Pursuant to cl 7(2) of Sch 1 when read with s 49 of the BDC Act we have reviewed the Board Decision and considered the appropriate disciplinary decision under s 48 of the BDC Act. Whether an order should be made dispensing with a hearing 1. The parties made no submission in relation to this issue. 2. We are satisfied that the issues for determination in relation to the action to be taken against the applicant can be adequately determined in the absence of the parties by considering their evidence and submissions. Accordingly, we have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order dispensing with a hearing in relation to the action to be taken against the applicant. What action should be taken against the applicant The approach 1. In considering what is the correct and preferable decision under s 63 of the ADR Act as to the action to be taken against the applicant we have taken the following approach: 1. we have set out the applicable part of the Reasons; 2. we have summarised the evidence of the applicant and the respondent; 3. we have summarised the submissions of the applicant and the respondent; 4. we have identified the applicable legal principles; 5. we have evaluated the factors relevant to the consideration of appropriate action under s 48 of the BDC Act; 6. we have determined the action. The Reasons 1. The Reasons contain the following findings (bold text, underlining and italics in the original): "APPROPRIATE DISCIPLINARY ACTION The Board regards the following matters as relevant to its decision as to the appropriate disciplinary decision that should be made. 1. The objects of the legislation The BP Act establishes a regime for the accreditation of persons to carry out 'certification work'. Certification work, which includes the issuing of Part 4A certificates, CDCs and the inspection of building work, is work that ensures that buildings will conform to acceptable standards, including safety, durability, habitability and sustainability. The promotion and maintenance of the standards of building and subdivision standards is an ·express function of the Board (see-s. 77 BP Act). The BP Act is, in summary, legislation to protect the public. 2. The nature, width and extent of the contraventions There are seven (7) proven matters across three complaints/developments. The complaints involved the assessment of applications for CDCs (two complaints) and CCs (one complaint). 3. The loss or damage and prejudice resulting from the contravention(s) Any CC or CDC that is issued that does not comply with legislative provisions: • potentially compromises the carrying out of development in accordance with acceptable standards • exposes the certificate to challenge or declaration of invalidity, which may delay, or jeopardise, the development being carried out • may expose persons to potentially unsafe situations 4. The circumstances in which the contraventions took place Accredited certifiers issue development certificates to confirm they have determined that the proposed development meets legislative requirements. Mr Freixas as an accredited certifier was assessing applications submitted to him for CDCs and CCs. Complying development is a combined planning and construction approval for development that meets pre-determined development standards and the BCA. Determination of a CDC relies on a code-based assessment. The local council or a private accredited certifier can issue a CDC where the application for complying development meets the specified development standards in the planning instrument. If an applicant proposes work beyond the development standards contained in the planning instrument a CDC cannot be issued viz., they need to lodge a development application with the relevant local council in accordance with the merit-based rules for consideration. A construction certificate (CC) is a certificate, required before building work can commence, to the effect that design and.specifications meet certain criteria specified in the legislation. For instance, in the case of building work, that plans are not inconsistent with the development consent and will comply with the BCA. 5 Whether the accredited certifier has engaged in any similar conduct which has been the subject of a disciplinary finding The certifier has had one previous disciplinary finding by the Board (decision no. 428 - 3 May 2016) which involved his issuing of a CDC under the Codes SEPP on land which complying development may not be carried out (heritage conservation area and a river front area in the relevant LEP). Mr Freixas also imposed and attached conditions to the CDC which did not accord with the Codes SEPP and EP&A Regulations, and also attached a condition that was not specified in an Act, Regulation or environmental planning instrument. Mr Freixas was cautioned. He was also required to undertake the Complying Development Course (CPD), which he subsequently completed on 2 September 2016. 6. The presence of fraudulent or dishonest intent and deliberation on the part of the accredited certifier None was alleged. 7. The extent of carelessness or willfulness of the conduct The Board does not regard the certifier's conduct as being willfully inappropriate, however his actions demonstrate a lack of care, attention and understanding of a certifier's statutory role as a public official in assessing an application for a CDC and a CC. 8. The efforts made to correct the situation, including any measures that have been taken by the accredited certifier An accredited certifier does not have authority to revoke or to modify a CDC or CC that they have issued. In Complaint no. 66/17 (Matter 1), following the Council raising its concerns about the CDC, the applicant surrendered the CDC for the proposed industrial building. 9 The consciousness the accredited certifier had and displayed, of his or her legislative obligations The submissions, documentation and the actions involved in these matters demonstrate that Mr Freixas does not possess a proper appreciation of his statutory role and professional duties under the EP&A Act in assessing an application for a CDC or a CC, nor did he apply these requirements to the extent and in the manner required by the legislation and that expected of a public official carrying out a statutory role. In his submissions in response to complaint no. 66/17, Mr Freixas challenged the Council's right to review a CDC he had issued viz., '… was of the idea that a CDC may not be issued and I questioned why Council's auditing the CDC as he had no delegations to do so'. It is entirely within a Council's role and duties as the local planning and regulatory authority to make enquiries and to review a private certifier issued CDC in regard to the legitimate carrying out of development within its boundaries. 10 Antecedents. e.g. previous findings of unsatisfactory professional conduct or professional misconduct Refer to note 5. above. 11. Attitude of the certifier, his or her certification history and steps taken by the certifier to ensure compliance will be observed in the future (a) Mr Freixas is an A1 accredited certifier (currently and at the time of the conduct in these complaints). He first obtained accreditation as an A1 certifier in October 2015. (b) Mr Freixas provided reasonable assistance to the Investigators during the course of the Board's investigations of these complaints. (c) As referred to in note 5. above, following the Board's disciplinary action on 3 May 2016, Mr Freixas completed the required CDC course on 2 September 2016. The CDC in complaint no. 25/17 was issued on 14 October 2016. The CDC in complaint no. 66/17 was issued on 10 February 2017. It is also noted that the CDC in the Board's previous action was surrendered, c1nd that this has again occurred in regard to the CDC in complaint no. 66/17. (d) In his submissions Mr Freixas has not given any undertaking in regard to his future conduct. 12. The penalty range relating to the particular contraventions Section 31(4) BP Act sets out a wide range of actions that may be taken, ranging from no further action, cautions through to the cancellation of accreditation. Monetary penalties of up to $110,000 may also be imposed. 13 Deterrence - personal and general The Board has become concerned by the continued level of justified complaints that are continuing to be received. The system of certification was introduced under the EP&A Act in 1998. The industry is no longer in its infancy. The Board has been administering the BP Act and the BP Regulations since 1 March 2007. Since then the Board has dealt with a considerable number of disciplinary matters, either exercising its own jurisdiction or by making application to the Administrative Decisions Tribunal and the NSW Civil and Administrative Tribunal (Tribunal) for disciplinary determinations. Despite the sanctions that have been imposed in such disciplinary matters, and the efforts of the Board to raise the skill sets of accredited certifiers through measures such as Continuing Professional Development, Bulletins and advisory reviews, there continues to be an unacceptable level of complaints. In response, the Board has adopted Disciplinary Penalty Guidelines. These Guidelines were published on the Board's website in December 2012 (updated December 2016). In exercising its delegated authority the decision-maker, although retaining its absolute discretion in relation to deciding the appropriate action to take, is required by the Board to have regard to the Guidelines. Administrative reviews by the Tribunal of disciplinary action taken by the Board have recognised the Board's application and use of the Disciplinary Penalty Guidelines to determine penalties. The Guidelines require there to be a categorisation of the infringement (Categories A to F) based upon the degree of seriousness. The Guidelines also provide a non-exhaustive list of examples of conduct which may fall within the various categories. The Guidelines divide infringements into six categories: A. complaints that satisfy the requirements of section 22 of the BP Act for taking no further action or section 23 for dismissal; B. minor infringements identified in legislation as capable of being dealt with by the issue of a Penalty Infringement Notice; C. minor infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of up to $5,000 is appropriate; D. moderate infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of between $5,000 and $20,000 is appropriate; and E. significant infringements that are unsatisfactory professional conduct or professional misconduct where a caution, reprimand or the imposition of conditions and a fine of between $20,000 and $50,000 is appropriate; F. major infringements involving unsatisfactory professional conduct or professional misconduct where a caution, reprimand, the imposition of conditions, suspension, cancellation or disqualification are appropriate together with a fine of $50,000 to $110,000. Category E, Significant infringements includes as examples: … • CDC doesn't comply with the BCA • major visual or material departures from development consent ... • CC inconsistent with development consent ... • CDC doesn't comply with planning instrument (SEPP) … It is considered that the issues in Complaint no. 25/17 (Matter 1 and Additional Matter A), Complaint no. 43/17 (Matter 1 and Additional Matter A) and Complaint no. 66/17 (Matter 1) are similar to the examples in Category E. The penalty imposed in a category E infringement ranges from $20,000 to $50,000. The Guidelines also recognise the Board's power under s.31(4) BP Act to take more than one disciplinary action e.g. imposing reprimands or conditions or a requirement to complete an education course, in addition to a fine. The BP Act is designed to protect the public and accredited certifiers must ensure that their certification work meets acceptable standards. Mr Freixas is an A 1 accredited certifier. The public would have a reasonable expectation that he would perform his functions diligently and with care and that he would have a high level of knowledge of all relevant matters he was required to consider. In this case, the Board is of the view that he did not demonstrate that he possesses these qualities to the expected degree. Mr Freixas lacked the necessary vigilance and attention in dealing with each of the CDC and CC applications submitted to him and the issues arising from them. · This is particularly disturbing in regard to the CDC matters as, per note 5. above, following the Board's disciplinary action on 3 May 2016, Mr Freixas completed the required CDC course on 2 September 2016. It is evident that despite the Board's sanctioning of Mr Freixas' conduct by giving him a caution and requiring his completion of a relevant course, the CDC in complaint no. 25/17 was issued on 14 October 2016, and the CDC in ( ) complaint no. 66/17 was issued on 10 February 2017. It is also noted that again Mr Freixas has failed to apply the correct conditions to a CDC. Having regard to Mr Freixas' conduct and submissions in the matters in this Statement, it is considered warranted to impose a requirement that he be ordered to complete an education course relevant to BCA class 2 to 9 buildings and certification work under the EP&A Act legislation i.e. the Advanced Building Regulation five-day professional development course (class 2-9 buildings) conducted by The University of Technology Sydney (UTS) Centre for Local Government. Having regard to the above, to ensure the objective of public protection and deterrent to certifiers is adequately served, it is also appropriate and warranted that action be taken that includes a reprimand and a monetary fine. Accordingly, in accordance with the Guidelines, a penalty within Category Eis appropriate. Having regard to the matters relevant to its decision as set out above, including that it involves two CDCs and two CCs, and the certifier's disciplinary record, a penalty at the upper range of Category Eis imposed i.e. $50,000. The Board however considers that Mr Freixas be granted a reduction in the fine that might otherwise be imposed in accordance with the Guidelines due to the CDC in complaint 66/17 having been surrendered and that he has been ordered to complete an education course. Mr Freixas is ordered to pay a fine of $30,000." The evidence of the applicant The third Freixas statement 1. In the third Freixas statement, Mr Freixas has addressed some of the 13 factors addressed in the Reasons together with three additional factors and expressed a conclusion. Factor 2 - Nature and extent of failure 1. In respect of each of Complaint no 25/17 - Matter 1, Additional Matter A, Additional Matter B and Additional Matter C in respect of 9 Regent Street, Putney (the Putney development), and Complaint no 66/17 - Matter 1 in respect of 21 Lamb Street, Glendenning (the Glendenning development), Mr Freixas has identified the adverse findings in the Tribunal Decision and the steps he will take in the future to avoid making similar mistakes. In relation to the finding in the Tribunal Decision at [96] he states "I did not endorse plans as my employer did not wish to be warranting their accuracy in any way." Factors 5, 10 - Prior Similar Conduct, Antecedents 1. Mr Freixas has disclosed that he has been the subject of a prior disciplinary decision by the respondent, being Disciplinary Action no 428 decided on 3 May 2016 (Prior DA) arising out of a development in Woolwich (the Woolwich development) in which he was cautioned for unsatisfactory professional conduct and required to undertake the complying development course. In comparison, he believes the failures in the Woolwich development as potentially more serious than the failures in the Putney and Glendenning developments. He did not agree with the Board's disciplinary finding, but did not challenge it as the cost in doing so would have been more expensive than letting it go. He was not aware at the time, that he could have made submissions on 'penalty' in respect of the Board's finding. Factor 11 - Attitude and future compliance 1. The process before the Tribunal has been a "salutary one" for him, particularly in respect of his knowledge and application of the Codes SEPP for CDCs. He is always willing to refresh and update his knowledge of the Codes SEPP and any certifier's work necessary. He is undertaking certification short course for building professionals wishing to become accredited certifiers or renew their accreditation at the University of Technology Sydney (UTS) (the UTS short course). Factor 14 - Effect on me, as certifier 1. The Board published a Summary of Disciplinary Action in respect of the Board Decision in the Certifier Disciplinary Register (DA Summary). He felt stressed, anxious and frustrated when he saw the DA Summary published online which included Complaint no 43/17 - Matter 1 and Additional Matter A in respect of 13-15 Bigge Street and 2 Lachlan Street, Liverpool (the Liverpool development) which he considered as the most significant allegation against him. The DA Summary reflected badly upon him as an A1 accredited certifier, particularly of large and complex developments, such as the Liverpool development, damaging to his reputation and his business. 2. After the Tribunal Decision, the Board published an updated Summary of Disciplinary Action in respect of the Board Decision (Updated DA Summary) which is misleading, as it suggests that the Board Decision against him (of a reprimand, a $30,000 fine and an order to complete "the UTS advanced building regulation course") relates only to the Putney and Glendenning developments. He felt upset and frustrated when he saw the Updated DA Summary published online. 3. The disciplinary action against him by the Board, including the publication of the DA Summary and the Updated DA Summary, has had the following significant negative impacts: 1. the impacts upon him personally include: 1. his health and wellbeing as he feels stressed, anxious and frustrated, he is generally unhappier than he was before the Board Decision, and he is also having trouble sleeping. The legal process in challenging the Board Decision has made him feel pressured, tired and distracted; 2. his financial position as he has a $30,000 fine debt against his name of which as at 20 April 2020, a total of $I0,000 has been paid; 1. the impacts upon him professionally as an A1 accredited certifier include: 1. the guilty finding of unsatisfactory professional conduct colours his professional standing as an A1 accredited certifier. Compounding this is the size of the fine ($30,000), suggesting his unsatisfactory professional conduct was quite significant; 2. his certifier record will affect his future job prospects and how his colleagues view his professional skills and experience as an A1 certifier. The order to undertake the educational course is quite embarrassing, as it suggests that he needs further education to simply do his job; 1. the impacts upon his family include: 1. "guilt, by association"; 2. "diminishment in the eyes of loved ones" as the $30,000 fine and the order to undertake an educational course suggests to them that he has done something very serious and wrong; 1. the impacts upon his employer, Dix Gardner Group Pty Ltd, include: 1. financial costs of this application which are no less than $216,000, and are potentially unrecoverable and have to be borne by the business in which he has an interest as an employee; 2. productivity costs as countless hours have been, and continue to be, lost in dealing with the disciplinary action, particularly in respect of the Liverpool development; 3. COVID-19 and the impact on the construction industry. The volume of certification work (CCs, OCs and CDCs) coming through the Dix Gardner Group has declined by over 90 per cent and, with it, any profits to cover the normal operational expenses, let alone the legal costs to cover the disciplinary action and fine; 4. COVID-19 and the impact at Dix Gardner Group. The COVID-19 impacts include significant cuts to pays and work hours including for him a 40% cut, and a reduction in hours to 3 days per week; 5. COVID-19 and the impact on his own finances. With a 40% cut to my pay, it will be difficult for him to continue paying ongoing commitments towards the mortgage, school fees, child maintenance, utilities and the like. Factor 16 - Nature of the proceeding 1. He was confronted with one decision, one penalty and one right of review to the Tribunal in respect of the Board Decision, even though it concerned three developments. 2. He considers paragraph 12.9 of the Reasons is a judgment by the Board charged with regulating his professional conduct that he acted partially. He has had to defend this allegation and finding for years now. It is difficult for him to conceive of a more serious finding to have been made against his professional integrity by the Board. 3. The Board Decision included a finding that he had engaged in unsatisfactory professional conduct contrary to s 19(1)(b) of the BP Act, namely contravention of s 85(1)(b) of the BP Act. The Board in closing submissions, abandoned this serious allegation, and he is left with feelings of injustice and frustration. Conclusion 1. He feels a mixture of vindication, relief, and regret following the Tribunal Decision: 1. his feeling of vindication relates primarily to the complaint about the Liverpool development and extends to the various findings in relation to Putney and Glendenning developments which were also not sustained in the Tribunal Decision; 2. his feeling of relief relates to the process generally. The process both at the Board level and the Tribunal level has taken its toll on hime personally and professionally. Whatever the Tribunal decides in relation to what action is appropriate, it will mark the end of an intense chapter in his career, and in that sense he is looking forward to having some closure; 3. his feeling of regret relates generally to the set of circumstances which have culminated in the Tribunal Decision and relates specifically to the failures in his conduct identified in the Tribunal Decision., He regrets not taking the action he would have taken if he had known that his conduct failed to comply with an obligation. He hesitates to use the language of 'sorry' and 'remorse' in relation to the failures concerning his conduct "because the failures were not failures where (he) deliberately chose to act contrary to (his) statutory duties but rather they were failures made in the context of (him) genuinely believing they complied with (his) statutory duties". For similar reasons, it is difficult for him to apologise for his conduct. 1. It is also artificial to speak in terms of 'remorse' for his actions as they relate to the system of certification in New South Wales: "I acknowledge that the system of private certification (and certification more generally) depends upon the public's confidence in certification and that certification, is, in turn, underwritten by the competence, diligence and integrity of certifiers. On a broad level, I regret that my failures, as found by the Tribunal, may have contributed to the diminishment of the system of certification in NSW. I understand how central certification is to the broader system of planning, development and construction. I believe the certifying profession is an honourable profession which plays an important role in the health and safety of the public and also an important role in the economy. It saddens me personally that my conduct has now been determined to detract from, rather than add to, the standing of the profession. It is not an outcome I intentionally brought about. It is an outcome I have learned from. It is an outcome I intend to avoid in the future." The evidence of the Board The 22 January 2016 investigation report 1. The following findings were made in the 22 January 2016 investigation report as recorded in the Board's Disciplinary Register (bold text in the original): "Mr Freixas issued a CDC under the General Housing Code within the Codes SEPP, on land which complying development may not be carried out. The site was identified as a heritage conservation area and a river front area in the relevant LEP. Mr Freixas failed to specify the land use zone on the CDC. Mr Freixas imposed and attached conditions to the CDC which did not accord with the Codes SEPP and EP&A Regulations, and also attached a condition that was not specified in an Act, Regulation or environmental planning instrument Disciplinary action. Mr Freixas was cautioned; and required to undertake the Complying Development Course (CPD)." The submissions of the applicant 1. The applicant made the following submissions: 1. none of the aims and objectives of the BP Act are necessarily achieved by simply imposing "penalties" on certifiers or causing them hurt and public embarrassment when they bona fide attempt to carry out their certification work but make errors along the way. Where a certifier acts bona fide, ethically and with impartiality, but makes mistakes, punitive action is generally just not appropriate. Corrective action is appropriate. People should not be discouraged from becoming or practising as certifiers in the construction industry; 2. the disciplinary penalty guidelines are irrelevant and unlawful as they fetter the discretion of the Board and the Tribunal rather than free each body to take appropriate action under s 31(4) of the BP Act, and refers to Pt 3 Div 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) which confers power on the Court of Criminal Appeal to give a guideline judgment to be taken into account by courts sentencing offenders,; 3. the approach of the Board to group together all the conduct of the applicant into a single decision that attempted to aggregate all its findings leaving him unable to determine what action had been taken with respect to any individual matter was erroneous in law; 4. consistency in decision making is in the public interest. Where a certifier has issued CDCs in circumstances where the decision was not infected with any lack of integrity, dishonesty or conduct calculated to give personal gain or deliberately intended to avoid the law, the Board has routinely determined disciplinary action by way of caution and reprimand and without the imposition of a fine; 5. the Tribunal should proceed as follows: 1. set aside the Board Decision. Having regard to the Tribunal's finding inter alia in respect of the Liverpool development, the Board's decision on penalty is not helpful. It imposed a $30,000 fine for all Complaints; 2. examine each matter and take appropriate action with respect to each Complaint; and 3. having regard to the principles of proportionality and totality ensure that the actions taken are appropriate; 1. identifies 16 factors for the determination of appropriate action under s 31(4) of the BP Act, 15 of which are derived from Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 (Cohen) and a further factor being the "nature of proceedings"; 2. addresses factors 2 to 9 in respect of each of the four Complaints in respect of the Putney development and the Complaint in respect of the Glendenning development, and submits that: 1. as to the issue of the CDC for the Putney development without compliance with the requirements of the BCA for balustrades, "It is surprising that a qualified architect would issue drawings without drawing in a required balustrade"; 2. a caution is the is the correct and preferable action in respect of each Complaint; 3. when the findings of the Tribunal made in relation to the four Complaints in respect of the Putney development are viewed together, the conduct of the applicant is deserving of correction but not by fine. This correction can be achieved by imposing a caution for all of the findings. The applicant did nothing to deserve punishment; 1. addresses factors 10 to 16 in respect of the four Complaints in respect of the Putney development and the Complaint in respect of the Glendenning development collectively, and submits that a caution is the is the correct and preferable action for the following reasons: 1. as to prior conduct, the Tribunal should give little or no weight to the disciplinary action in respect of the Woolwich development when determining the correct and preferable decision; 2. as to attitude, the Tribunal should proceed on the basis that the applicant has assisted the Board and participated cooperatively with its investigations; 3. as to future compliance, the Tribunal can infer that the applicant will continue to co-operate with the Board; 4. as to the penalty range, there is no "penalty range" under s 31(4) of the BP Act. To impose a fine for failing to comply with a statutory or other duty is unnatural and extra care must be taken to ensure that a fine is not levied in circumstances where a criminal contravention does not form part of the basis of liability or where the conduct warrants deterrence by fining; 5. as to deterrence, it is wrong and misguided for the Tribunal to have regard to the disciplinary penalty guidelines. A better guide to the type of action which should be taken in relation to the issuing of two CDCs which are defective for reasons associated with the BCA and development standards are past cases involving similar conduct, and in particular Hallal v Building Professionals Board [2016] NSWCATOD 78 (Hallal) where the certifier was fined $10,000 and reprimanded in respect of conduct relating to 16 defective CDCs, 26 findings of unsatisfactory professional conduct and 79 sub-allegations, and subsequently reprimanded in 2019 in respect of conduct relating to 6 defective CDCs; 6. as to the effect on the applicant, in the third Freixas statement the applicant gives evidence of the catastrophic financial situation he and his employer faces as a result of the fine (and other "penalties") in the Board Decision, and particularly so in light of the COVID-19 pandemic. Further, the applicant has also provided references from Ms Bo Ram Choi and Ms Rusbridge, who both have known him for over 10 years, and who attest to his good character and the impact the Tribunal Decision will have on his personal reputation, his company's reputation and impact upon family stress (with his mother currently undergoing cancer treatment); 7. as to proportionality and totality, as the Tribunal has made five disciplinary findings the task of determining the action to be taken in relation to each finding should be carried out, and there then may need to be an adjustment to ensure principles of proportionality and totality are adhered to; 8. as to the nature of the proceedings, there was only one way the applicant could impugn the Board's findings and that was by exercising his one review right of the one decision and one penalty. The conduct of the Board in merging the complaints in relation to the Putney, Liverpool and Glendenning developments into a one decision and one penalty is a relevant factor to the Tribunal's re-exercise of the s 31(4) discretion; 1. the order of the Tribunal should be that the applicant is cautioned and that he undertake the educational course nominated by the Board. The submissions of the respondent 1. The respondent made the following submissions: 1. the Tribunal would consider the appropriate penalty by considering the objective seriousness or gravity of the offending conduct, the prior disciplinary actions against the applicant, the consequence of the applicant's conduct and the call for general and specific deterrence, having regard to the purpose of disciplinary proceedings, the public interest, "safeguarding and protect the community", the promotion and maintenance of building certification standards, and public trust and confidence; 2. the conduct in respect of each of the four Complaints in respect of the Putney development and the Complaint in respect of the Glendenning development falls towards the middle of the range of objective seriousness; 3. the conduct relating to privacy in respect of the Putney development did have or was likely to have had a consequential effect on the amenity of the adjoining neighbour's property as Complaint no 25/17 - Matter arose because of complaints received from the adjoining neighbour; 4. the evidence of the applicant in the third Freixas statement in relation to the finding in the Tribunal Decision at [96], having originally maintained that the endorsement of plans was not required, that he did not endorse plans as his employer did not wish to be warranting their accuracy in any way, raises serious issues as to his credibility; 5. there is similarity between the conduct the subject of the 22 January 2016 investigation report and the conduct constituting the unsatisfactory professional conduct in respect of the Putney development in the following respects: 1. they both involved the interpretation of the Codes SEPP; 2. they both involved the grant of a CDC in circumstances where the applicant relied on an independent town planning report; 3. in each CDC the applicant omitted to include a condition complying with cl 136E of the EPA Regulation; 4. in each CDC the applicant included a condition incorporating the town planning report; 1. the Tribunal would not regard itself as bound by the disciplinary penalty guidelines. The Tribunal would carry out its own review of the circumstances in light of those factors which the parties accept as relevant. The disciplinary penalty guidelines would not be used in that determination, but would be used to inform, so far is necessary, how the Board arrived at the Board Decision; 2. the Tribunal may consider separately as two complaints the four Complaints in respect of the Putney development, and the Complaint in respect of the Glendenning development; 3. the fact that different facts apply and the offending conduct occurred over different time periods, would not support "the application of reduction" under the totality principle; 4. past decisions are not of a great assistance when examining them for parity because while the failures in some of the previous decisions involved a CDC, the decisions do not reflect the same sorts of failures as committed by the applicant; 5. as the applicant has not provided a full, frank or convincing explanation on many counts, the Tribunal would consider the need for specific deterrence, as well as the need for general deterrence; 6. the Tribunal should find that the Board's decision was the correct and preferable one. The applicable legal principles General principles in disciplinary proceedings against professionals 1. It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 (Ziems) at 286. 2. In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 (Craig) at [44]-[48] the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other, was examined: 44 A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law. 45 While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions. 46 In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order. 47 In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest. 48 I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for." 1. The general common law rule that ensures that a court or tribunal stipulates a penalty for each count of charged conduct is an important one and should be applied, where applicable, in disciplinary proceedings. The reasons for this rule include that by sentencing for separate offences, the court makes it clear to the public what the penalty for each offence is, thus assisting in the process of general deterrence. Further, adherence to this rule prevents conduct from one charge being used as an aggravating factor in assessing the penalty for another charge. However, this rule may not apply in all disciplinary proceedings. There are some cases, where the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied: Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) at [72]-[75]. 2. It has been held in the context of disciplinary proceedings against a legal practitioner that the decision of a tribunal to impose a 6 month suspension following a decision of professional misconduct involves the exercise of a discretion. It is necessary for the tribunal, in arriving at the second decision, to evaluate and weigh a broad range of factors, including the findings in its reasons in relation to the first decision and the second decision, the numerous penalty options available to it and the practitioner's personal circumstances. The determination of the appropriate penalty option or options is not a mechanical process. The tribunal has to balance competing considerations and choose between the various penalty options. This entails assessments of fact and degree and the making of a value judgment. There is no unique 'right' answer which is able to be identified by the application of principle: Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [44]. 3. We consider that general principles in disciplinary proceedings against professionals in Ziems at 286, Craig at [44]-[48], Stirling at [72]-[75] and Khosa at [44] apply equally to the determination of action against the applicant under s 31(4) of the BP Act following our finding that he is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act. Principles applied in disciplinary proceedings under the BP Act 1. The system of accreditation and discipline under the BP Act has been established to protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers. The orders to be made in the event of an adverse disciplinary finding must serve those objectives. The personal impact of the order on the offender is a minor consideration: Building Professionals Board v Boulle [2008] NSWADT 80 (Boulle) at [57]. 2. As a function of the Board specified in s 77(b) of the BP Act is "the promotion and maintenance of standards of building and subdivision certification and design in New South Wales", we would add that the system of accreditation and discipline under the BP Act has also been established for this purpose. 3. The purpose of disciplinary proceedings under the BP Act is protection of the public, not to punish the person concerned, in a criminal sense. The public, in the context of disciplinary proceedings against accredited certifiers, is a wide conception, including the local community directly affected by a development and the wider community which has an interest in the general amenity of the community as well as the maintenance of consistent standards across the community. It also includes the present and future clients of accredited certifiers: Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48 at [155]-[156]. 4. In Qiu v Building Professionals Board [2013] NSWADT 289 (Qiu) at [98], drawing on the earlier decision in Cohen at [45], the predecessor of the Tribunal identified factors relevant to consideration of appropriate disciplinary orders under the BP Act: "98. That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant: (a) the nature, width and extent of the contraventions (b) the loss or damage and prejudice in consequence of the contraventions (c) the circumstances in which the contraventions took place (d) whether the licensee has been seen to have engaged in any similar conduct (e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee (f) the extent of carelessness or wilfulness of the conduct (g) the efforts made to correct the situation and what measures have been taken by the licensee (h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners (i) the effect upon the licensee (j) antecedents (k) attitude, building history and future compliance (l) the penalty range." 1. Recent decisions of the Tribunal have been guided by consideration of these factors: Hallal; Levick v Building Professionals Board [2018] NSWCATOD 125; Treble v Building Professionals Board [2019] NSWCATOD 34; Lilli v Building Professionals Board [2019] NSWCATOD 119; Murrant v Building Professionals Board [2019] NSWCATOD 130; Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14. 2. The key consideration in assessing the appropriate action is that of proportionality. The action should be proportional to the nature of the improper conduct viewed as a whole: Cohen at [62]. The evaluation of the factors relevant to the consideration of appropriate action under s 48 of the BDC Act Introduction 1. In reviewing the action of the Board against the applicant under s 48 of the BDC Act we consider that it is appropriate to have regard to the factors in Qiu at [98] as adapted to the BDC Act together with proportionality, and the nature of the proceedings. It is not necessary to consider the presence of a fraudulent or dishonest intent and deliberation on the part of the applicant. 2. We also consider that is appropriate to evaluate our findings made in relation to the four Complaints in respect of the Putney development together as they relate to the issue of the same CDC by the applicant. It would be artificial to separately evaluate these findings when they are each particular aspects of the unsatisfactory professional conduct of the applicant in relation to the same CDC. The objectives of the BDC Act 1. The objectives of the BDC Act are set out s 3 and relevantly include the recognition "that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest", "appropriate scrutiny and review of actions taken by (accredited certifiers), and "a framework to permit the continuous improvement of the carrying out of certification work". The nature, width and extent of the conduct constituting the unsatisfactory professional conduct The extent of carelessness of the conduct What consciousness the applicant had and displayed of its obligations under the relevant statute and to the owners The Putney development 1. The failures of the applicant in the issue of the CDC for the Putney development were extensive as they encompassed: 1. the issue of the CDC without compliance with the privacy requirements for the windows in bedrooms 2 and 5 and the rear balconies, and the size requirements for the rear terraces; 2. the issue of the CDC without compliance with the requirements of the BCA for BCA classification, balustrades, a pool safety barrier, and general BCA compliance; 3. the failure to endorse structural engineer's drawings and stormwater plans, and to include the correct BCA classification; 4. the omission of some conditions and the misstatement of other conditions specified under Division 2A of the EPA Regulation, and the inclusion of an unauthorised condition. 1. In so far as there was no compliance with the requirements of the BCA for balustrades and a pool safety barrier, the applicant in issuing of the CDC compromised the safety of people. 2. We found that each of the failures was an obvious error which a careful accredited certifier would not have made. Further, we found that the applicant did not provide any convincing explanation for his conduct. The fact that the applicant genuinely believed his decision was a correct decision and genuinely believed that he was not issuing a CDC for the swimming pool does not provide an answer for his conduct because, as specified in paragraph (a) of the definition of unsatisfactory professional conduct in s 19(1) of the BP Act, the applicable standard is "the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier". Similarly, expressing surprise that a qualified architect would issue drawings without drawing in a required balustrade does not provide an answer for his conduct. 3. We agree with the Board's findings: 1. the extent and range of the applicant's actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties in assessing an application for a CDC; 2. the conduct demonstrates that the applicant does not possess a proper appreciation of his statutory role and professional duties under the EPA Act in assessing an application for a CDC, nor did he apply these requirements to the extent and in the manner required by the legislation and that expected of a public official carrying out a statutory role. The Glendenning development 1. The failures of the applicant in the issue of the CDC for the Glendenning development were extensive as they encompassed the issue of the CDC without compliance with the requirements of the BCA for structural design, emergency egress, access for people with a disability, fire-fighting equipment and emergency lighting, energy efficiency, the suitability of materials, and health and amenity. 2. We found that each of the failures was an obvious error which a careful accredited certifier would not have made. Further, we found that the applicant did not provide any convincing explanation for his conduct. 3. We agree with the Board's findings: 1. the extent and range of the applicant's actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties in assessing an application for a CDC; 2. the conduct demonstrates that the applicant does not possess a proper appreciation of his statutory role and professional duties under the EPA Act in assessing an application for a CDC, nor did he apply these requirements to the extent and in the manner required by the legislation and that expected of a public official carrying out a statutory role. The loss or damage and prejudice in consequence of the conduct constituting the unsatisfactory professional conduct The Putney development 1. We are satisfied that there was no actual loss, damage or prejudice arising from the conduct of the applicant. The Glendenning development 1. We are satisfied that there was no actual loss, damage or prejudice arising from the conduct of the applicant. The circumstances in which the conduct constituting the unsatisfactory professional conduct took place The Putney development 1. We agree with the Board's characterisation of the circumstances in which the conduct of the applicant took place. The conduct constituting the unsatisfactory professional conduct took place in the course of the applicant carrying out his functions as an accredited certifier. There are no mitigating circumstances which excuse the errors made by the applicant. The Glendenning development 1. We agree with the Board's characterisation of the circumstances in which the conduct of the applicant took place. The conduct constituting the unsatisfactory professional conduct took place in the course of the applicant carrying out his functions as an accredited certifier. There are no mitigating circumstances which excuse the errors made by the applicant. The efforts made to correct the situation and what measures have been taken by the applicant The Putney development 1. We agree with the Board's finding that the applicant could not take any corrective action. The Glendenning development 1. We agree with the Board's finding that the CDC was surrendered following the Council raising its concerns about the CDC. The effect upon the applicant 1. We accept the evidence of the applicant as to the effect of the Board's investigation, the Board Decision, the proceedings and the Tribunal Decision upon him. We do not consider that the impacts upon his family and his employer are matters which should be taken into account in determining the appropriate action under s 48 of the BDC Act. Whether the applicant has been seen to have engaged in any similar conduct Antecedents 1. We have had regard the disciplinary action against the applicant on 3 May 2016 as required by s 48(2)(a) of the BDC Act. We reject the applicant's submission that little or no weight to this disciplinary action. We accept the respondent's submission that there is similarity between the conduct the subject of the 22 January 2016 investigation report and the conduct constituting the unsatisfactory professional conduct in respect of the Putney development. We regard this disciplinary action as significant not only because of its similarity with, but also its temporal proximity to, this conduct in respect of the Putney development. The CDC for the Woolwich development had been issued on 27 November 2015 which was less than 12 months prior to the CDC for the Putney development. Attitude, building history and future compliance 1. We accept that the applicant assisted the Board and participated cooperatively with its investigations. 2. Until the Tribunal Decision the applicant in the first Freixas statement and in giving oral evidence disputed many of the complaints in respect of the Putney development and the Glendenning development. The applicant should have accepted that he made several obvious errors. However, we accept the evidence of the applicant that he has learnt from the Tribunal Decision, particularly in respect of his knowledge and application of the Codes SEPP for CDCs, and that he is currently undertaking the UTS short course. 3. We reject the Board's submission as to the credibility of the applicant based on his evidence about the practice his employer not to endorse plans in the third Freixas statement in relation to the finding in the Tribunal Decision at [96]. The Board did not seek an oral hearing where it could have tested this evidence. The penalty range 1. We accept the applicant's submission that there is no "penalty range" under s 31(4) of the BP Act. However, it is clear that in general terms paragraphs (a) to (l) disclose an increasing severity of action upon an accredited certifier. 2. We have not found the past decisions of the Board and the Tribunal particularly helpful as they all were determined having regard to the particular findings they made. We note that there are instances of fines having been imposed in respect of failures in relation to the issue of CDCs. Deterrence - personal and general 1. We consider that personal and general deterrence are important considerations in these proceedings. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, the applicant has engaged in unsatisfactory professional conduct in issuing a CDC in relation to Putney and Glendenning developments within a period of just over 9 months, and with the period of just over 5 months after completing the Complying Development Course. This demonstrates a failure to alter his practices so as to attain "the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier" specified in s 19(1)(a) of the BP Act. Proportionality 1. We have been conscious of the importance the action to be taken against the applicant under s 31(4) of the BP Act should be proportional to the nature of the improper conduct viewed as a whole. The nature of the proceedings 1. The structure of the Board Decision means that there is no separate finding as to the appropriate action to be taken against the applicant for each of the four Complaints in respect of the Putney development or the four Complaints in respect of the Putney development as a whole, and the Complaint in respect of the Glendenning development. The action to be taken against the applicant Preliminary matters 1. We have considered the following three preliminary matters before determining the action to be taken against the applicant: 1. whether the failure of the Board to decide the action to be taken against the applicant separately in respect of each Complaint constitutes an error; 2. whether the application by the Board of the disciplinary penalty guidelines constitutes an error; 3. the purpose of ordering the payment of an amount of money under s 48(c) of the BDC Act. Whether the failure of the Board to decide the action to be taken against the applicant separately in respect of each Complaint constitutes an error 1. We consider that the failure of the Board to decide the action to be taken against the applicant separately for the four Complaints in respect of the Putney development as a whole, and the Complaint in respect of the Glendenning development, constitutes an error. As made clear in Stirling the general common law rule that ensures that a court or tribunal stipulates a penalty for each count of charged conduct is an important one and should be applied, where applicable, in disciplinary proceedings should have been applied by the Board in deciding what action to be taken against an accredited certifier who is found guilty of unsatisfactory professional conduct or professional misconduct under s 31(4) of the BP Act. In this case this rule should not have been applied to each of the four Complaints in respect of the Putney development because as we have found they arise out of the same CDC. 2. As the action to be taken against the applicant in the Board Decision relates to findings of Board as to his conduct in relation to the Putney, Liverpool and Glendenning developments some of which we have found not to constitute unsatisfactory professional conduct, we have decided to set aside the Board Decision under s 63)(3)(c) of the ADR Act. Whether the application by the Board of the disciplinary penalty guidelines constitutes an error 1. The functions of the Board included under s 77(d) of the BP Act "the taking of disciplinary action against accreditation holders". 2. Policy guidelines promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [54]. In principle, there is no reason why administrative decision-makers cannot develop a general policy in relation its functions: Carroll v Sydney City Council (1989) 15 NSWLR 541 at 550. 3. However, a policy must not be treated as a fetter on the exercise of administrative discretion. The policy must not preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: R v Secretary of State for Home Department; Ex parte Venables [1998] AC 407 at 497, cited in NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [17]. 4. We disagree with the applicant's submission that the Board did not have authority to make the disciplinary penalty guidelines. As an administrative body exercising the function under s 77(d) of the BP Act of "the taking of disciplinary action against accreditation holders" the Board was entitled to develop guidelines for the exercise of its discretion under s 31(4) of the BP Act. The analogy with Pt 3 Div 4 of the CSP Act is inapt as there is no relevant comparison between the Board exercising administrative powers in a disciplinary context and court imposing sentences for criminal offences. 5. We also disagree with the applicant's submission that the Board unlawfully fettered its discretion in applying the disciplinary penalty guidelines. Notwithstanding, its conclusion "in accordance with the Guidelines, a penalty within Category E is appropriate" the Board carefully examined the various factors relevant to the exercise of its discretion under s 31(4) of the BP Act. However, it is unnecessary to consider this matter further as we also accept the submissions of the parties that we are not bound by the disciplinary penalty guidelines. We have not taken them into account other than to understand the Board Decision. The purpose of ordering the payment of an amount of money under s 48(c) of the BDC Act 1. We disagree with the applicant's submissions made in relation to s 31(4)(f) of the BP Act: 1. a fine is to be characterised as "punitive action"; 2. the applicant "did nothing to deserve punishment" in respect of the Putney development; 3. "To impose a fine for failing to comply with a statutory or other duty is unnatural"; 4. "Pecuniary penalisation is a function directed as deliberately non-compliant conduct and not disciplinary proceedings". 1. As indicated in Craig, the protection of the public or the public interest may justify a fine which is intended to bring home to the registered certifier the seriousness of the certifier's departure from professional standards, and intended to deter the certifier from any further departure. A fine may also be intended to emphasise to other registered certifiers, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. Action for unsatisfactory professional conduct in respect of the Putney development 1. We disagree with the applicant's submission that a caution and completion of the UTS advanced building regulation course is the appropriate action to be taken against him. He made obvious errors. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, he engaged in this unsatisfactory professional conduct within a period of just over 5 months, and with the period of just over one month after completing the Complying Development Course. 2. It is appropriate that the applicant be reprimanded, to make a determination requiring him to pay to the Commissioner, as a penalty, $10,000.00 within one month, and to impose a condition on his registration as a registered certifier that he undertakes the UTS advanced building regulation course within the next 12 months. As he has already been cautioned under the BP Act, it is inappropriate that he be cautioned again. Further, it is appropriate that he be required to pay to the Commissioner, as a penalty, $10,000 within one month. This requirement is intended to bring home to him the seriousness of his departure from professional standards, and intended to deter him from any further departure. This requirement is also intended to emphasise to other registered certifiers, or to reassure the public, that the conduct in which he engaged is not acceptable professional conduct. Also as he has clearly lacked an understanding of his obligations as an accredited certifier, it is appropriate that he undertakes the UTS advanced building regulation course within the next 12 months. Action for unsatisfactory professional conduct in respect of the Glendenning development 1. We disagree with the applicant's submission that a caution and completion of the UTS advanced building regulation course is the appropriate action to be taken against him. He made obvious errors. As we have found the applicant made obvious errors. Notwithstanding the disciplinary action against the applicant on 3 May 2016 arising out of the Woolwich development, the applicant engaged in this unsatisfactory professional conduct within a period of just over 9 months, and with the period of just over 5 months after completing the Complying Development Course. 2. It is appropriate that the applicant be reprimanded, to make a determination requiring him to pay to the Commissioner, as a penalty, $10,000.00 within one month, and to impose a condition on his registration as a registered certifier that he undertakes the UTS advanced building regulation course within the next 12 months. As he has already been cautioned under the BP Act, it is inappropriate that he be cautioned again. Further, it is appropriate that he be required to pay to the Commissioner, as a penalty, $10,000 within one month. This requirement is intended to bring home to him the seriousness of his departure from professional standards, and intended to deter him from any further departure. This requirement is also intended to emphasise to other registered certifiers, or to reassure the public, that the conduct in which he engaged is not acceptable professional conduct. Also as he has clearly lacked an understanding of his obligations as an accredited certifier, it is appropriate that he undertakes the UTS advanced building regulation course within the next 12 months. Conclusion 1. We do not consider that it is necessary to reprimand the applicant more than once in respect of our several findings that is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act. Similarly, it is only necessary that he undertakes the UTS advanced building regulation course on one occasion. 2. We do consider that there should be separate penalties of $10,000.00 for each of the Putney and Glendenning developments, and accordingly the applicant should be required to pay to the Commissioner, as a penalty, $20,000.00 within one month. There will no suspension of the registration of the applicant as a certifier under s 50(1)(a) of the BDC Act unless the applicant fails to pay the balance of $10,000.00 within one month. Decision 1. We order that the Commissioner for Fair Trading, Department of Customer Service be substituted as the respondent. 2. We have decided to set aside the Board Decision and in its place the correct and preferable decision is that: 1. the applicant be reprimanded under s 48(b) of the BDC Act; 2. the applicant be required under s 48(c) of the BDC Act to pay to the respondent, as a penalty, $20,000.00 within one month; 3. a condition be imposed on the registration of the applicant as a registered certifier under s 48(d) of the BDC Act that he undertakes the UTS advanced building regulation course within the next 12 months. ********** 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 Amendments 22 July 2020 - [80] Third sentence: "the applicant" removed. [82] Third sentence: "the applicant" removed. 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: 22 July 2020