Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Storer v Commissioner for Fair Trading [2021] NSWCATOD 222 Hearing dates: 9 November 2021 Date of orders: 9 November 2021 Decision date: 09 November 2021 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: (1) The decision of the respondent dated 26 October 2021 to take disciplinary action against Jason Storer (Accreditation Number BDC0394) is stayed until 16 November 2021 on the following conditions: (i) The stay is only allowed to the extent that it permits the applicant to be replaced on projects which he is currently the Principal Certifier. (ii) The applicant is otherwise not authorised to undertake any other functions as a building certifier. (2) The application for a stay is otherwise dismissed. Catchwords: REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to cancel registration as a certifiers pursuant to section 48 of the Building Professionals Certifiers Act 2018 (NSW) PRACTICE AND PROCEDURE — INTERLOCUTORY ORDER – application for stay— factors relevant to exercise of the power to stay decision under section 60 of the Administrative Decisions Review Act 1997 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 Building and Development Certifiers Act 2018 Building Professionals Act 2005 Environment Planning and Assessment Regulation 2000 Cases Cited: QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Category: Principal judgment Parties: Jason Storer (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: R Lovas (Applicant) M Fozzard (Respondent) Solicitors: Lovegrove & Cotton (Applicant) Legal, Corporate Services, Department of Customer Services (Respondent) File Number(s): 2021/00309916 Publication restriction: None Reasons for Decision 1. On 1 November 2021 the applicant, a building certifier, made an application to the Tribunal for the review of a decision made by the respondent, Commissioner for Fair Trading, on 26 October 2021. 2. In the reasons for decision the respondent found that the applicant had engaged in unsatisfactory professional conduct pursuant to s 19(1)(b) of the Building Professionals Act 2005 (BP Act). The following disciplinary action was to take effect from 2 November 2021: 1. To cancel the Applicant's registration as a certifier (pursuant to s 48(1)(e) of the Building and Development Certifiers Act 2018 (BDC Act)); and 2. To disqualify the Applicant temporarily from being registered for a period of 12 months (pursuant to s 45(f) of the BDC Act). 1. On 1 November 2021 the applicant also made an application to the Tribunal for a stay of the decision of 26 October 2021 pursuant to s 60 of the Administrative Decisions Review Act 1997 (ADR Act). 2. On 2 November 2021, the stay application was listed before me on an urgent basis. The respondent consented to an interim stay of the decision until 9 November 2021, pending a full hearing of the stay application. 3. The applicant seeks an order for a stay to be granted until the final determination of the substantive application or, alternatively, a stay to allow an orderly transition of existing files to a replacement certifier. 4. The respondent opposes the grant of a stay but accepts that a short stay of seven days should be allowed for an orderly transition of existing files to a replacement certifier. 5. The parties provided the following documents and submissions in relation to the application for a stay: Applicant 1. Submissions in support of the stay dated 4 November 2021 together with various cases decisions referred to. 2. Affidavit of Jason Storer dated 4 November 2021 together with annexures. 3. A copy of the notice of decision from the respondent, delegate's reasons for decision and the applicant's response to the notice to show cause. Respondent 1. Submissions in support of the stay dated 8 November 2021 2. Statement of Ms Stephanie Mancell, a solicitor for the respondent, together with annexures dated 8 November.2021. 1. The parties also made oral submissions in regards to the stay at the hearing. Legal principles governing the exercise of the discretion to stay a decision 1. An application for administrative review of a decision does not prevent the decision from taking effect (s 60(1) of the ADR Act). The Tribunal has power to make an order "staying or otherwise affecting the operation of the decision under review" (s 60(2) of the ADR Act). 2. Section 60(3) of the ADR Act empowers the Tribunal to make the order if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. 1. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]); (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act; (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. Submissions 1. I have summarised below the relevant submissions made by the parties in relation to the matters which I must consider in determining whether to grant the order for a stay. Whether the order is desirable 1. The applicant submits that three categories of people would be affected if the stay is not granted. That is the applicant, his employer - AED Consulting Pty Ltd and third parties including his clients and prospective purchasers. Mr Storer annexed to his affidavit a list of the 31 current projects to which he is appointed the Principal Certifier. 2. The applicant submitted that the loss of his registration would have significant impact upon his livelihood, as he is reliant on his registration to be able to be employed. In his affidavit he states that he would no longer be able to undertake mandatory inspections for projects or issue approvals and that would leave him with a significantly reduced role within the company and may lead to the termination of his contract. 3. Mr Storer also states in his affidavit that AED Consulting Pty Ltd is at capacity and would not be able to assist with any change of Registered Certifier. He also states that the reputation of the firm is at risk as, in the 20 years the firm has been operating, no one within the company has had any disciplinary action against them. That negative publicity would result in a loss of work for the company which in turn may lead to having to terminate staff. 4. Mr Storer states that if a stay is not allowed then the current projects in which he is the registered certifier would need to find a registered certifier and that may result in massive delays to the developer, builder and purchasers. Public Interest 1. The applicant submitted that a stay, if granted, would not prejudice the public interest. He submitted that he has not previously had any disciplinary action against him. He also states that the findings made against him by the respondent are not based on a proper analysis of the law or supported by the facts and his work poses no danger. 2. The respondent submitted that given the findings contained in the reasons for the decision to disqualify and cancel the applicant's registration, those are matters which would prejudice public interest. The applicant's prospects of success 1. The applicant challenges many of the findings that were made against him in the reasons for decision and submitted that they were made without supporting evidence and on an incorrect understanding of the facts and the law, in particular in relation to the hoarding and lift shafts. 2. The applicant disputes the finding of unsatisfactory professional conduct. He submitted that even if unsatisfactory professional conduct was established, it was not open to make the orders for disqualification pursuant to s 48(1)(e) and (f) of the BDC Act as there was no finding of Professional Misconduct as defined in s 19(1) of the BPA. The applicant also submitted that, in any case, the penalty is excessive. 3. The respondent submitted that a finding of professional misconduct is not necessary to enable cancellation or disqualification. Consideration 1. Weighing the considerations to exercise the discretion, I have decided not to make the order for a stay until finalisation of the hearing and instead make an order for a stay for 7 days on a conditional basis. I am satisfied that several factors weigh against the exercise of the discretion to stay the operation of the decision pending final determination of the matter. 2. I am not satisfied that a stay is required to secure the effectiveness of the appeal. While I accept that there may be financial loss to the applicant in the period in which he will not be able to work as a building certifier, there is no indication that the applicant could not be recommence working as a building certifier if his application for review is successful. 3. In relation whether the order is desirable, I accept that the applicant's role as a building certifier will be significantly affected in the absence of a stay until the matter is finalised. However, in his affidavit, the applicant states that the reduced role "may" lead to termination of his contract. There is no definitive indication that he will be terminated by the firm. Further, there is no supporting evidence of his financial status or details of any financial impact that the cancelation would have on him. The applicant states that he has had to previously take leave from his current employer due to the impact that this matter has had on his mental health, but there is no further evidence regarding ongoing mental health impacts. 4. The applicant states that AED Consulting Pty Ltd are at capacity and will not be able to assist with any change of Registered certifier. The applicant states that he is "concerned" that his projects will not be able to find an alternative supplier and that there will be "massive" delays. There is otherwise no supporting evidence as to the availability of Principal Certifiers, or enquiries which have been made with the clients which would demonstrate that there will be massive delays in the projects. Further there is no supporting evidence that the disqualification will have long term impacts on the reputation of the firm, especially in circumstances where the applicant alleges the firm is already at capacity in terms of its workload and cannot even take the projects to which he is currently assigned. There is a mechanism in the Environment Planning and Assessment Regulation 2000 (EPA) to replace a principal certifier. Pursuant to cl 162 of the EPA replacement can occur by agreement between the current certifier and a new proposed certifier and a person who is eligible to appoint a principal certifier for the work. 5. I accept that replacing the applicant as a principal certifier on projects will create some inconvenience, and on that basis I will make a stay application for 7 days to facilitate his replacement as Principal Certifier only. 6. I am satisfied that the granting of a stay until finalisation of the proceedings will prejudice the public interest. The applicant has been accredited as a certifier since 2 June 2003. The disciplinary decision relates to the applicant's actions in issuing three Interim Occupation Certificates under the EPA. The development involved the construction of a mixed-use development comprising one 15 storey building and one 17 storey building. The applicant was appointed Principal Certifying Authority for the development on 17 September 2015. 7. On 3 June 2021 the applicant was issued with a Notice to Show Cause which identified 11 instances in which the applicant was alleged to have contravened provisions of the EPA when issuing the three Interim Occupation Certificates. 8. On 8 October 2021 the applicant provided the respondent with a response to the Notice to Show Cause and provided a supplementary response in relation to penalty on 20 October 2021. 9. On 26 October 2021 the delegate for the respondent found that of 11 allegations, eight were found to have been substantiated. 10. Certifiers are a part of the quality assurance process for the construction industry. The issuing of an interim occupation certificates that is not compliant in key respects may have safety consequences. I am satisfied that the public interest in protecting the general community is significant and outweighs the inconvenience caused to the applicant, his employer and clients and prospective purchasers. 11. In relation to the prospects of success, the relevant test is whether the applicant has an arguable case. The Tribunal proceedings are administrative review proceedings, where the Tribunal's power is that conferred by s 63 of the ADR Act. The task of the Tribunal is to decide what is the "correct and preferable decision" having regard to any relevant factual material and the applicable law. 12. While I accept that some of the matters raised by the applicant are arguable, I am not satisfied on a preliminary basis that the grounds as framed support a view that there are strong prospects of success in respect of the review. Although there appear to be some issues raised by the applicant which are arguable, an overall assessment of the evidence presently before me indicates that there is a basis for the same outcome on review of the decision. Parties will have a further opportunity to provide documents and submissions in the substantive application. Balancing the prospects of success against the other factors raised above, in particular the public interest and the effect that the decision will have, I am not satisfied that a stay should be allowed until the outcome of the substantive decision. 13. I make the following orders: 1. The decision of the respondent dated 26 October 2021 to take disciplinary action against Jason Storer (Accreditation Number BDC0394) is stayed until 16 November 2021 on the following conditions: 1. The stay is only allowed to the extent that it permits the applicant to be replaced on projects which he is currently the Principal Certifier. 2. The applicant is otherwise not authorised to undertake any other functions as a building certifier. 1. The application for a stay is otherwise dismissed. ********** 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: 17 February 2023