Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155 Hearing dates: 20 October 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: 1. The decision disqualifying Mr Gearin from being registered as a registered certifier for a period of 6 years, is stayed. 2. Paul Gearin's Certificate of Registration Number BDC0132, for all purposes is treated as on foot from 21 September 2023 (including the conditions that were already in place prior to the cancellation of the registration) until the final determination of the substantive application by the Tribunal in these proceedings on additional condition that: (a) Paul Gearin will not enter into any new contracts for any certification work. (b) Local Certification Services Pty Ltd (will not enter into any new contracts for any certification work for any new class 2-9 buildings which involve any National Construction Code fire safety performance/alternative solutions. (c) Paul Gearin is permitted to continue with: (i) critical stage inspections for class 1a 10a and 10b and class 2-9 buildings, under the supervision of Stuart Barnes (Building Surveyor unrestricted Reg No. BDC3233 currently employed by the Company) or other registered certifier who holds certification that permits supervision of that type of critical stage inspection; (ii) issuing occupation certificates for the existing contracted class 2-9 buildings but under supervision in the form of an internal written report prepared before any sign off of an OC confirming that all requirements have been met for the issuing of that OC (available on request to the Department) prepared by Stuart Barnes or other registered certifier who holds certification that permits supervision of that type of critical stage inspection, and (iii) issuing occupation certificates for the existing contracted class 1a and 10a and 10b buildings but under supervision in the form of an internal written report prepared before any sign off of an OC confirming that all requirements have been met for the issuing of that OC (available on request to the Department) prepared by Stuart Barnes or other registered certifier who holds certification that permits supervision of that type of critical stage inspection. Catchwords: ADMINISTRATIVE LAW - 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 – interim decision — factors relevant to exercise of the power to make the interim decision under section 60 of the Administrative Decisions Review Act 1997 (NSW) — interlocutory decision to take effect retrospectively — stay. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Building and Development Certifiers Act 2018 Building Professionals Act 2005 (NSW) Environment Planning and Assessment Regulation 2000 (NSW) Cases Cited: QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Texts Cited: None cited Category: Procedural rulings Parties: Paul Gearin (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel J Reid (Applicant) M Fozzard (Respondent)