O'Malley v Director of the Building Professionals Board, Department of Planning (GD) [2006] NSWADTAP 52

Appeal Panel - Internal

CITATION: O'Malley v Director of the Building Professionals Board, Department of Planning (GD) [2006] NSWADTAP 52

APPELLANT PARTIES: Michael David O'Malley RESPONDENT Director of the Building Professionals Board, Department of Planning

FILE NUMBER: 069031

HEARING DATES: 9/08/2006

SUBMISSIONS CLOSED: 08/09/2006

DATE OF DECISION: 09/29/2006

BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Hayward P - Non Judicial Member

CATCHWORDS: leave to appeal interlocutory decision

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 053397

DATE OF DECISION UNDER APPEAL: 05/22/2006

Administrative Decisions Tribunal (Interim) Rules 1998 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Environmental Planning and Assessment Act 1997

CASES CITED: New South Wales Bar Association v Sahade [2004] NSWADT 151

APPELLANT T Howard of counsel instructed by D Thomas, solicitor, Hones Lawyers REPRESENTATION: RESPONDENT A Grey, solicitor, Department of Planning

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 The Environmental Planning and Assessment Act 1997 (EP&A Act) requires a complaint about the conduct of an accredited certifier to be the subject of an investigation by the 'accreditation body' and gives power to the accreditation body to take disciplinary action or to apply for orders to be made by the Tribunal. The 'accreditation body' has varied over the years since the office of accredited certifier was established, and is now Mr Neil Cocks, Director, Building Professionals Branch, Department of Infrastructure and Planning. 2 Mr Cocks has brought proceedings in that capacity against the appellant, an accredited certifier. The appellant has objected to the Tribunal exercising jurisdiction on the basis that they have been brought out of time, and time should not be extended because of the long delay in bringing the proceedings. The appellant says that Mr Cocks was entitled to bring proceedings as from 21 May 2004 and did not do so until 11 November 2005. The respondent's position is that it did not bring the proceedings out of time. 3 The General Division of the Tribunal rejected the appellant's objection, giving rise to this appeal. The appeal is an interlocutory appeal, and consequently leave is required for the appeal to proceed (see Administrative Decisions Tribunal Act 1997 (ADT Act), s 24A read in conjunction with s 113(2A)). The leave application involved a full hearing of the submissions of the appellant and the respondent. For the reasons which follow leave is denied and the appeal is dismissed. Original Decisions Jurisdiction 4 The making of a disciplinary application of the present kind to the Tribunal constitutes an application for an 'original decision' within the meaning of the ADT Act. By s 42(b) of the ADT Act the application is to be 'made in the manner and within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made)'. 5 The rules of the Tribunal (see Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, Schedule 1 and Administrative Decisions Tribunal (Interim) Rules 1998) at rule 14(3) provide relevantly: ' 14 Applications for original decisions (3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application.' 6 There is a discretion to extend time given by s 44 of the ADT Act: ' 44 Late applications to Tribunal (1) Despite section 42 (b), the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for an original decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).' Entitlement to Make Application 7 The question here is when, for the purposes of rule 14(3) did the accreditation body become 'entitled' to make the application. The appellant says that, properly construed, the EP&A Act 'entitles' the accreditation body to make the application once the investigation of the complaint is completed. 8 The EP&A Act at s 109W confers authority on the accreditation body to investigate a complaint. Section 109X gives various powers to the accreditation body in connection with its investigation. Section 109Y provides: ' 109Y Investigation into complaint to be conducted expeditiously An investigation by an accreditation body is to be conducted as expeditiously as possible.' 9 The investigation was undertaken by the State Accreditation Committee (SAC), a body established under Ministerial Guidelines relating to the investigation of complaints against accredited certifiers. The SAC made its recommendation to the accreditation body in this case on 21 May 2004. 10 Section 109Z provides: ' 109Z Decision after investigation of complaint (1) After an accreditation body has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section. (2) The accreditation body may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier. (3) Subject to subsection (4), the accreditation body must institute proceedings in the Tribunal with respect to the complaint against the accredited certifier if satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (4) If the accreditation body is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the accreditation body may instead: (a) with the consent of the accredited certifier do any one or more of the following: (i) caution or reprimand the accredited certifier, (ii) direct that such conditions as it considers appropriate be imposed on the accredited certifier's accreditation to practise as an accredited certifier, (iii) order that the accredited certifier complete such educational courses as are specified by the accreditation body, (iv) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the accreditation body, or (b) dismiss the complaint if satisfied that the accredited certifier is generally competent and diligent and that no other material complaints have been made against the accredited certifier. (5) The accreditation body is to dismiss the complaint against the accredited certifier if satisfied that there is no reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.' 11 The appellant's contention is that the date the SAC made its report, 21 May 2004, was the day that the respondent, as the accreditation body, became entitled to lay a complaint in the Tribunal, having regard, in particular, to the words of sub-s (2) of s 109Z. 12 The respondent, on the other hand, contends that it only 'became entitled under the enactment to make the application' when he had completed the various requirements for consideration of the SAC report set out in s 109Z. This argument focuses on the final words of s 109Z(1): 'the complaint is to be dealt with in accordance with this section'. 13 The respondent refers to his records, and submits that they show that he proceeded, upon receipt of the investigation report, to deal with the complaint in accordance with the section. Having done that he made the decision, at the first opportunity, either on 14 or 17 October 2005 and, using either date as the basis, the application was made within 28 days when it was lodged on 11 November 2005. 14 The Tribunal focused in its reasons, on arguments put by the appellant, relating to the word 'After', the first word in s 109Z(1). The Tribunal concluded: '14 The consequences of interpreting the word "after" as meaning "at the close of" are that an accreditation body would have only 28 days from the completion of an investigation to commence proceedings in the Tribunal. Even if an investigation is complete when the SAC makes its recommendations, that body is merely an advisory body to the applicant. The applicant is not bound by those recommendations and must determine, for him or herself, whether or not to institute proceedings in the Tribunal. Twenty-eight days is a relatively short period of time in which to lodge an application given that the applicant may need to consider extensive documentation, obtain legal advice and prepare the application together with supporting evidence as to jurisdiction.' 15 In our view, the word 'after' is used in the legislation merely in a discursive way. As we read s 109Z(1), no special significance can be attached to the word 'after'. 16 The appellant's main point is not that the word 'after' was determinative, but rather that, having regard to the entirety of the statutory scheme (including the Ministerial Guidelines issued pursuant to the regulations), the inference is inescapable that, for the purposes of rule 14(3) the time when the accreditation body becomes entitled to file the application is the date of the recommendation that completed the investigative process. The submission is that this is the point that the power to apply to the Tribunal under s 109Z(2) crystallised. 17 There are good reasons, founded in considerations of fair play, that support the appellant's position. The Parliament makes plain by s 109Y the importance which it attaches to expedition. It is reasonable therefore to conclude that the Parliament would have expected expedition in the process of acting on the outcome of the investigation process. 18 The appellant submits that an 'entitlement', within the meaning of rule 14(3), to apply to the Tribunal may arise before, or independently from, the 'decision' to apply. The submission is that 'putting aside erroneous or aberrant behaviour, the entitlement to do something will, as a matter of logic, ordinarily precede the decision to do it'. 19 The heading to s 109Z is 'Decision after investigation of complaint'. This is an indication, in our view, that the entirety of the provision seeks to address the process of decision-making that is to be engaged in by the respondent after receipt of the investigation report. This interpretation is supported by the closing words of sub-section (1). 20 The accreditation body must first turn its mind to the matter dealt with by sub-section (5), i.e. whether it should 'dismiss the complaint against the accredited certifier if satisfied that there is no reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct'. 21 Sub-section (3) imposes a duty on the accreditation body to refer cases where there is a 'reasonable likelihood' of a finding of guilt of professional misconduct or unsatisfactory professional conduct to the Tribunal. But that duty is qualified in the instance where the reasonable likelihood is confined only to a finding of guilt of unsatisfactory professional conduct in the manner set out sub-section (4). In this way the scheme, like many disciplinary schemes, allows for internal disposal of cases that fall at the lower end of the spectrum of professional misconduct. 22 In our view, the accreditation body can only bring the matter to the Tribunal once it is 'satisfied' in the requisite sense under sub-s (3). Were the accreditation body to file in the Tribunal, purportedly exercising the power given by sub-s (2), and it had not gone through the steps contemplated by sub-ss (3) to (5), there would, we think, be an immediate objection to jurisdiction by the respondent accredited certifier. 23 The 'entitlement' arises at the point of time at which the applicant can properly commence proceedings in the Tribunal. In the present instance, in our view an applicant accreditation body is not entitled to proceed to the Tribunal until it has addressed the complaint in terms of sub-sections (5), (4) and (3). Returning to the appellant's distinction between the entitlement and the decision to apply, here the 'entitlement' was conferred on 14 or 17 October and the 'decision' to apply was made on 11 November. They are, we agree, two distinct events; but we do not agree that the point of entitlement arose on receipt of the investigation report. 24 Sometimes, as Mr Grey for the respondent noted, the accreditation body might move quickly on receipt of the report to bring the matter to the Tribunal. The case may be an overwhelming one, and there may be reasons of urgency to take action very quickly. It may be possible to reach a conclusion in terms of sub-section (3) very quickly. 25 We agree with Mr Grey that his approach, which we prefer, is consistent with that taken by the Legal Services Division of the Tribunal in New South Wales Bar Association v Sahade [2004] NSWADT 151 (Deputy President Nader ADCJ, Barrister Member Norton QC, Non Judicial Member O'Neill). The provision under notice there was s 155 of the Legal Profession Act 1987, which provides: '155 Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner, or (b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or the successful mediation of the consumer dispute before the decision takes effect. (6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection.' 26 In Sahade the Tribunal was dealing with the question of whether the application had been lodged in time. The resolution to refer the matter to the Tribunal was made on 31 July 2003. The lodgment of the application in the Tribunal occurred on 5 November 2003. The Tribunal was of the view that the 'entitlement' arose on 31 July 2003 when the relevant body reached the requisite state of satisfaction (sub-s (2) of s 155). The one difference of importance between s 155 and s 109Z is that there is no equivalent to sub-s (2) of s 109Z. For the reasons given, we do not think that this is a critical difference. 27 In this instance the accreditation body did not make up its mind to apply until 16 months after receiving the investigation report. Such a delay in making up its mind may well be explained, at least in some cases, by ongoing deliberation and the consideration of representations by the parties. It may be explained by administrative pressures affecting the accreditation body. In our view the application was filed in time. 28 This conclusion does, however, we think, draw attention to a problem with the statutory scheme. There should, we think, be some consideration given to placing time limits on how long the accreditation body can spend pondering on a report before it applies to the Tribunal. Order 29 Appeal dismissed.