McGufficke v Building Professionals Board [2013] NSWADT 307

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McGufficke v Building Professionals Board [2013] NSWADT 307 Hearing dates: 2 December 2013 Decision date: 31 December 2013 Before: Judge K P O'Connor, President P Friedmann, Non-judicial Member Decision: Board's findings and orders affirmed Catchwords: PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - three allegations found proven - Board finding of unsatisfactory professional conduct -- orders of reprimand and fine - decision of Board affirmed: Building Professionals Act 2005, s 19 Legislation Cited: Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: McGufficke v Building Professionals Board [2013] NSWADT 296 Re Peat Resources of Australia Pty Ltd; ex p Pollock [2004] WASCA 122 Schmidt v District Council of Mt Barker [2001] SAERDC 30 Category: Principal judgment Parties: Scott McGufficke (Applicant) Building Professionals Board (Respondent) Representation: Counsel D A Lloyd (Applicant) J Callaghan, Lee & Lyons (Applicant) A Grey, Building Professionals Board (Respondent File Number(s): 133175

reasons for decision 1The applicant, Mr Scott McGufficke, an accredited certifier, has applied for review of a disciplinary determination made by the Building Professionals Board under s 31 of the Building Professionals Act 2005 (BP Act). He holds a Category A2 accreditation, with conditions, registration no BPB 0083. He is director of the business, AcroCert Pty Ltd, based at Maitland NSW. 2By decision made 28 February 2013 the Board found him guilty of unsatisfactory professional conduct in relation to the issuance of a construction certificate and a final occupation certificate for a development at Lot 100, Headlam Road, Moss Vale, described as an 'equine agistment facility', with an estimated building cost of $5.4m. In summary, Mr McGufficke was found, one, to have issued a construction certificate which gave the development the wrong classification; two, to have repeated the error in relation to the occupation certificate; and three, to have issued the occupation certificate when a pre-condition of the development consent relating to waste management had not been complied with. 3The Board made the following disciplinary orders: A. Mr McGufficke is reprimanded. B. Mr McGufficke is ordered to pay a fine of ten thousand dollars ($10,000) to be paid to the Board within 28 days of the date of the decision on the complaint. C. Mr McGufficke undertake in 2013, successfully complete, and provide suitable evidence to the Board upon successful completion of the following course:Advanced Building Regulation, offered by UTS Centre for Local Government. 4The Tribunal's review jurisdiction is conferred by s 33 of the BP Act. The review goes to the merits of the decision, both in respect of the primary finding of unsatisfactory professional conduct and the disciplinary orders. The Tribunal's powers are conferred by the Administrative Decisions Tribunal Act 1997 (ADT Act), the primary provision being s 63. It provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 5Mr McGufficke lodged the review application on 31 May 2013. The Board filed all relevant material, including its investigation report. The report was prepared by Mr Ron Rodgers of the Board. The investigation arose from a complaint by Mr Les Pawlak, Manager, Development and Building Services, Environmental Assessment Branch, Wingecarribee Shire Council. 6In the application itself, Mr McGufficke submitted that the Board's decision was not the correct and preferable one in the circumstances. He contested the Board's findings against him in respect of each of the three allegations found proven (a fourth allegation was found not proven). If the Tribunal disagreed, and upheld the Board's decision, he submitted in the alternative that the fine was wrong. He did not contest the educational order. Generally as to penalty, he submitted that greater regard should have been given to the fact that one of the four allegations was not proven. 7Mr McGufficke filed submissions and other material. The Board provided submissions in support of its decision. 8The Tribunal heard the application on 2 December 2013, and, as is usual in this class of case, the Tribunal was constituted by a presidential member and a non-judicial member with expertise in accredited certification (Mr Peter Friedmann, a registered surveyor of standing, and an accredited certifier). Mr D A Lloyd appeared for Mr McGufficke, and Mr A Grey for the Board. Mr McGufficke did not give evidence. He relied on the submissions as to interpretation made by Mr Lloyd.