Minister for Infrastructure and Planning v Conway (No 3) [2004] NSWADT 290

CITATION: Minister for Infrastructure and Planning v Conway (No 3) [2004] NSWADT 290 DIVISION: General Division APPLICANT PARTIES: Minister for Infrastructure and Planning RESPONDENT Bradley Conway FILE NUMBER: 033215 HEARING DATES: 18/11/2004 SUBMISSIONS CLOSED: 11/18/2004 DATE OF DECISION: 12/17/2004

BEFORE: Hennessy N - Magistrate (Deputy President); Wren G - Non Judicial Member APPLICATION: Accredited Certifier - professional misconduct - Environmental Planning and Assessment Act - Accredited Certifier - professional misconduct MATTER FOR DECISION: Penalty LEGISLATION CITED : Environmental Planning and Assessment Act 1979 CASES CITED: Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138 Wentworth v New South Wales Bar Association (1992) 176 CLR 239 APPLICANT REPRESENTATION: M Leeming, counsel RESPONDENT J Whyte, counsel ORDERS: 1.The Tribunal reprimands Mr Conway for his conduct; 2.The Tribunal orders Mr Conway to pay a fine of $5,000 within 3 months of the date of this decision with liberty to apply for an extension of time.

REASONS FOR DECISION 1 Mr Conway has been an accredited certifier since 23 June 1999. Part of his job was to issue Construction Certificates and Occupation Certificates in relation to developments. Those certificates were an assurance to the public that the development was not inconsistent with the conditions in the Development Consent and complied with the relevant requirements of the Building Code of Australia. In late 2000 Mr Conway issued certificates in relation to proposed backpacker accommodation in the Sydney CBD. The City of Sydney Council complained to the accreditation body that Mr Conway had issued the certificates in circumstances where, among other things, some of the conditions in the Development Consent relating to fire safety had not been complied with. 2 After hearing this matter we found that Mr Conway was guilty of professional misconduct. Professional misconduct is defined in s 109R of the Environmental Planning and Assessment Act 1979 as unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension or withdrawal of the accredited certifier's accreditation. The Tribunal may make any one or more of the decisions set out in s 109ZA of the Environmental Planning and Assessment Act ranging from issuing a caution or reprimand to withdrawing the person's accreditation. The Minister for Infrastructure and Planning submitted that Mr Conway's accreditation should be withdrawn for a period of 3 years and that he should be fined. Mr Conway said that he had voluntarily withdrawn from practising as an accredited certifier by not re-applying for certification when his accreditation expired in November 2003. In those circumstances, he said that there was no accreditation that could be withdrawn. He also submitted that no fine should be imposed or that if a fine was imposed it should be in the lower range. Issues 3 The broad issue for the Tribunal is what penalty, if any, should be imposed on Mr Conway. In determining that issue, the following questions arise: - Does the Tribunal have the power to withdraw or suspend Mr Conway's accreditation, when he is not currently accredited? - If not, what penalty if any, should be imposed? Tribunal's power to withdraw or suspend Mr Conway's accreditation 4 Introduction. Because professional misconduct is defined as conduct which is sufficiently serious to justify withdrawal or suspension, we have impliedly found that that is the penalty that should be imposed. Because Mr Conway is not currently accredited there is no accreditation to suspend or withdraw. The Minister submitted that the Tribunal should nevertheless make an order withdrawing Mr Conway's accreditation and order that he cannot re-apply for accreditation for three years. Under s 109ZA(4), the Tribunal's power to prevent re-application for a specified period is conditional on an order being made withdrawing an accredited certifier's accreditation. The Minister submitted that the power to prevent re-application must still be available where the applicant has chosen not to renew his or her accreditation, otherwise it would be possible to evade the order by voluntarily surrendering the accreditation. 5 As a creature of statute, the Tribunal is confined to making orders which the relevant legislation gives it power to make. The Environmental Planning and Assessment Act does not give the Tribunal power to make an order preventing re-application for a specified period unless an order has been made withdrawing the accreditation. We cannot withdraw something that Mr Conway does not have. In those circumstances the pre-condition to preventing Mr Conway from re-applying cannot be met and the Tribunal does not have the power to make an order preventing Mr Conway from re-applying for accreditation for a specified period. Attitude to re-accreditation 6 Introduction. Despite the fact that Mr Conway is not currently accredited, it is important to give the parties an indication of our attitude towards any re-application for accreditation that Mr Conway may make. In undertaking that task, we need to take into account the kind of conduct in which Mr Conway engaged and whether or not he is now competent to perform the functions of an accredited certifier. 7 Findings in relation to Mr Conway's conduct. In our decision on liability, we found that the level of fire safety for the premises was significantly less than it would have been had the design and construction complied with the Development Consent. In those circumstances, the interests of the public were potentially compromised by Mr Conway's conduct. We also found that Mr Conway was not competent to undertake the work of determining whether a construction certificate should be issued for the premises in question. That was partly because of his inability to identify the number of storeys in the premises. On the basis of our findings, we were comfortably satisfied that Mr Conway's conduct fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent accredited certifier. However, we did not find that Mr Conway acted dishonestly, was motivated by profit or that he wilfully disregarded matters to which he was required to have regard in exercising his functions. 8 Current fitness. Whether or not Mr Conway is now competent to exercise the functions of an accredited certifier depends on whether he understands those functions and is capable of performing them. It was held in Law Society of New South Wales -v- Andreone [1999] NSWADT 14 that an order for suspension will only be appropriate in very limited circumstances, because the professional must be fit to practise at the end of it. Mr Conway conceded during the hearing on liability that he should have advised the owners of the premises that they needed to seek an amendment to the Development Consent before he issued the Construction Certificate. In hindsight, he also acknowledged that it may have been prudent for him to contact Council at the time in relation to his interpretation of the Development Consent and he regretted not having done so. We rejected Mr Conway's submission that he had a considerable degree of discretion in relation to the conditions in the Consent. At the time of the hearing he still believed that accredited certifiers have a significant degree of discretion with respect to development consent conditions. Having participated in the hearing on liability and read our reasons for that decision, we are confident that he now understands his obligations and is capable of performing the functions to a standard that the public is entitled to expect of a reasonably competent accredited certifier. 9 Conclusion. Given that we regard Mr Conway as fit to perform the functions of an accredited certifier, and that he has already endured a 12 month period of self-imposed "suspension", we consider that he should be able to re-apply for accreditation. Reprimand 10 As we have not made a formal order for the suspension or withdrawal of Mr Conway's accreditation, we consider it appropriate to reprimand Mr Conway for his conduct. Fine 11 The next question is whether the Tribunal should also impose a fine on Mr Conway in addition to a reprimand. The primary concern of professional disciplinary proceedings is protection of the public, not punishment of the practitioner (Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251). However deterrence is also a legitimate objective when considering the penalty or combination of penalties to impose: Council of the Queensland Law Society Inc v Cummings; ex parte A-G (Qld) & Minister for Justice [2004] QCA 138. In this case, the public has been protected by the fact that Mr Conway voluntarily withdrew from practicing as an accredited certifier. He is now fit to practise. The only effect of a fine would be to punish Mr Conway and to deter others from engaging in similar conduct. In our view it is appropriate to impose a fine on Mr Conway in order to give a strong message to other accredited certifiers that his conduct is unacceptable. 12 Amount of the fine. Although the Environmental Planning and Protection Act has now been amended, the maximum penalty that the Tribunal can impose on Mr Conway in relation to his conduct is $33,000. The Minister submitted that a fine at the mid to high end of the range should be imposed because of the seriousness of Mr Conway's conduct and the fact that he has still not been able to give an adequate explanation for it. We do not agree with that submission. While Mr Conway's conduct was serious, it can be explained by the fact that he did not adequately understand his role. There was no suggestion that his behaviour was dishonest or that he was motivated by profit. He acknowledges in hindsight that he should have behaved differently and now appears to understand his responsibilities. In those circumstances a fine in the lower range is appropriate. A fine in the lower range is also consistent with Mr Conway's evidence about his financial situation. In deference to his financial situation, we give Mr Conway three months to pay, with liberty to apply for an extension of time to pay. Orders 1. The Tribunal reprimands Mr Conway for his conduct. 2. The Tribunal orders Mr Conway to pay a fine of $5,000 within 3 months of the date of this decision with liberty to apply for an extension of time.