Supreme Court New South Wales Medium Neutral Citation: Dix v Building Professionals Board [2011] NSWSC 926 Hearing dates: 15 August 2011 Decision date: 15 August 2011 Jurisdiction: Common Law Before: Adams J Decision: 1. The orders of the Board are void. 2. The decision as to the plaintiff's guilt of professional misconduct is quashed. 3. The matter is remitted to the Board to be determined according to law. 4. If the Board considers that the interests of fairness so dictate it may allow the plaintiff to make further submissions on its findings of fact in relation to the complaints. 5. The defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW - Building Professionals Board - investigator appointed to investigate complaints against certifier - finding by Board of professional misconduct on part of certifier based on investigator's report - investigator did not seek response from certifier concerning material allegations contained in report - Board did not afford certifier reasonable opportunity to be heard on whether conduct constituted unsatisfactory professional conduct or professional misconduct or the appropriate disciplinary orders - denial of procedural fairness. Legislation Cited: Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Category: Interlocutory applications Parties: Lyall Ernest Dix (Plaintiff) Building Professionals Board (Defendant) Representation: Counsel R. De Meyrick (Plaintiff) J. Clark (Defendant) Solicitors Lovegrove Solicitors (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2011/262859 Judgment 1This is a summons by an accredited certifier who has been the subject of adverse findings by the Building Professionals Board ('the Board'). Accreditation as a certifier is governed by the Building Professionals Act 2005, which deals with the regulation of accredited certifiers, the making of complaints against and the investigation and disciplining of such certifiers by the Board. The Board, following a process which I will come to shortly, resolved on 5 August 2011 to reprimand the plaintiff and suspend him for a period of six months from 5 August 2011 and fine him the sum of $10,000 to be paid within 28 days of that date. Amongst other reasons given for this decision, the Board found that the plaintiff "wilfully disregarded matters to which he is required to regard in exercising his function as a certifying authority." 2The summons seeks a declaration that the plaintiff was not afforded procedural fairness by the Board in various respects and consequential relief. In answer to the summons counsel appearing for the Board put two contentions. The first is that under the Administrative Decisions Tribunal Act 1997 relief from a decision of the Board such as was given in this case could be obtained, including a stay if the interests of justice so required from the Administrative Decisions Tribunal, and, accordingly, this Court ought not to exercise its supervisory jurisdiction in this case; and secondly, at all events, procedural fairness was afforded to the plaintiff. 3So far as the first of these submissions is concerned, in the circumstances of this case I am not minded to defer a decision, the matter being before me and for reasons which will become clear, is capable of being shortly disposed of. Were it the case that a significant review of the facts and the relevant building code or regulations was required, the contention put forward on the Board's behalf would have significant weight. However, as I have come to a clear view about the substantive issue in the case, which is substantially a question of law, and I am seized with the arguments on both sides, it does not seem to me that the further cost and inconvenience of requiring an application to the Administrative Decisions Tribunal is justified. 4It is necessary to briefly deal with the chronology of events. In May 2010 the plaintiff was advised that a number of complaints were being investigated by the Board in relation to him, and on various dates responses were made by him providing further information, the sense of which was to either explain how non-compliance occurred or that matters said to amount to non-compliance in fact were not. On 5 July 2011 the Board informed the plaintiff of the findings of its investigator in a document called a Complaint Investigation Report ('the Report'). The Report takes the course of articulating a complaint, identifying the plaintiff's response, if any, to the complaint, giving a summary of the evidence collected by the investigator and then providing an assessment as to whether the available evidence supported or did not support the allegation. Although the Report states a number of matters as factual findings, it does not purport to be a final determination of any complaint. 5Amongst the matters mentioned in the Report and considered by the investigator was a complaint that the plaintiff had made false statements in submissions to the Board in respect of one of the allegations. It is not altogether clear whether the complaint is that the falsity was deliberate or mistaken but the thrust of the language suggests that its gist is the former. The investigator did not seek any response from the plaintiff in respect of this complaint, indeed, the plaintiff was only advised of it on the same date as the Report was provided. The investigator found that the available evidence supported this complaint. 6The Board, when it sent the Report to the plaintiff, asked for his response to any matters contained in the Report including of course the matter of which he had only just received notice, and in respect of which the investigator had not sought any response from him. A time limit of twenty-one days was imposed. Regrettably, the letter from the Board which forwarded the Report dealt with the additional matter somewhat ambiguously, suggesting on one reading that an investigation was yet to be completed in respect of it and implicitly that the plaintiff would have an opportunity to give a response to the investigator. However this may be, the plaintiff was requested to provide, if he so wished, a response to all complaints for consideration by the Board. 7The plaintiff engaged a solicitor to prepare a submission responding to the Report and sought an extension of time for a period of two weeks from 25 July 2011. However, it appears that this request was only made on that date. This delay has not been explained. An employee of the plaintiff's solicitor was informed, on making a telephone enquiry on 26 July of the investigator, that the complaints would be considered by the Board on 28 July and he could not grant an extension. On 27 July a further telephone call did not result in a change although the investigator informed the plaintiff's solicitor that if they desired to make a late submission a formal request in writing should be made for consideration at the meeting of 28 July 2011. That request was in substance refused. The plaintiff was informed that the Board would meet on 28 July 2011 to determine the complaints. On 28 July the plaintiff's solicitors made a submission in writing which did not deal with any particular factual issue except by way of contending that, having regard to the relevant building regime, there had been no failure on the part of the plaintiff to adequately perform his duties as a certifier. 8I note in passing that there is nothing in the statement of decision given by the Board that suggests the submission made by the plaintiff's solicitor was actually considered, although it was certainly available to the Board at the time of its meeting. As I understand it, it is said (and I accept) that it was considered. However, the points made on the plaintiff's behalf were not mentioned in the Board's statement. It is not satisfactory for the Board to omit giving at least some explanation for rejecting a submission, either of fact or law, made by a person under investigation. 9It is not controversial that procedural fairness must be afforded to parties such as the plaintiff in proceedings before the Board. What that will entail in any particular case will depend upon the circumstances. However, the fundamental requirement is that a fair opportunity is given to a party to be heard in respect of issues affecting that party. 10Though clearly connected, there are three areas of potential controversy requiring consideration and determination. The first is whether any particular complaint is made out; secondly, if a complaint was made out, whether it amounted to unprofessional conduct or professional misconduct; and thirdly, what should be the consequence of such conclusions. The distinctions between what was done by the certifier, how it should be characterised and what should happen to the certifier are, although obviously connected, very significant. Thus, whether proved conduct is unsatisfactory professional conduct or misconduct is very much a matter of degree that will depend, amongst other things, on the character of what was done and the explanation for it. It follows that a reasonable opportunity must be afforded for submissions to be made or evidence to be provided before a determination is made. So far as consequences are concerned, there may be any number of reasons that might excuse some failure or other or make it less serious than on the face of it might appear or repetition unlikely. For example, whether something was done deliberately or corruptly to flout the relevant requirements is very different from something that occurred by oversight and was corrected as soon as the matter was brought to the certifier's attention. There are many other circumstances which could well reflect on the gravity of the non-compliance and also the nature of the disciplinary outcome which is appropriate to the particular case. Here, again, a reasonable opportunity for evidence or submissions must be given before this issue is decided. In the circumstances here, the Board made the decision as to whether the complaint was proved and then moved directly to characterise the conduct and determine the consequences without seeking any further submission or material from the plaintiff. 11It is submitted on behalf of the Board that the general invitation issued to the plaintiff at the time that the Report was provided to him, "to make submissions in relation to the actions that would be appropriate for the Board to make in the event that a finding of unsatisfactory professional conduct or professional misconduct is made" afforded the plaintiff a reasonable opportunity to be heard on the appropriate consequential orders. This did not allow him to be heard on the characterisation of the wrongful conduct. At all events the invitation to the plaintiff required him to suppose what might be the findings in respect of any particular complaint and then, depending on the various almost infinite number of permutations of unsatisfactory professional conduct or professional misconduct, make a submission as to what action the Board should take. I do not see how inviting him to undertake such a course of action could amount to providing him with a reasonable opportunity to respond to any adverse decision on the complaints themselves. 12Furthermore, the letter from the Board forwarding the Report does not inform the plaintiff that it proposed to determine these matters at the one meeting. On one reading of the letter it suggests that the findings on the complaints would be made on a separate occasion to the categorisation of any adverse decision and suggests that it would "move to determine what disciplinary action it will take" after first giving him an opportunity to be heard in relation to that matter. 13To summarise the position as I see it, it is necessary that the Board give the subject of a complaint the opportunity, firstly, to be heard on whether a complaint is or is not made out. It must then inform the subject of the findings in that regard and give an opportunity for the subject to make submissions or provide relevant information in respect of; first, whether those findings amount to unsatisfactory professional conduct on the one hand or professional misconduct on the other and secondly, in respect of those matters, what appropriate orders should be made. 14The collapsing of the process that occurred in this case effectively denied the plaintiff procedural fairness. It follows that the determination as to whether any particular complaint found to be proved was unsatisfactory professional conduct or professional misconduct cannot stand and these findings and the consequential orders must be quashed. 15It seems to me also that the decision concerning the complaint of making a false submission to the Board cannot stand. It did not specify whether it was said to be deliberate or unintentional and no real opportunity to respond to the complaint was afforded. 16As I have said I am not setting aside all findings of the Board. It is a matter for the Board whether it wishes to provide an opportunity to the plaintiff to make submissions on the substance of any one complaint. I leave this to its own sense of what fairness requires in the circumstances. ********** 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: 23 August 2011