Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fitzgerald v Building Professionals Board (No 2, Disciplinary Order) [2014] NSWCATOD 51 Hearing dates: 12 March 2014 Decision date: 08 May 2014 Jurisdiction: Occupational Division Before: Acting Judge K. P. O'Connor AM, Deputy President Mr Philip Hayward, Senior Member Decision: The Board's disciplinary orders 1, 3 and 4 are affirmed. The Board's order no 2 is varied from a fine of $36,000 to a fine of $25,000. Catchwords: PROFESSIONAL DISCIPLINE - accredited certifier - review of decision of the Building Professionals Board - review of disciplinary orders further to review of the findings of professional misconduct and unsatisfactory professional conduct by the Board - disciplinary orders varied as to amount of fine. Legislation Cited: Building Professionals Act 2005 Cases Cited: Building Professionals Board v Cohen (No 2) [2010] NSWADT 266 Building Professionals Board v Johnson [2008] NSWADT 60 Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 Fitzgerald v Building Professionals Board [2013] NSWADT 299 Minister for Infrastructure and Planning v Conway (No 3) [2004] NSWADT 290 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qiu v Building Professionals Board [2013] NSWADT 289 Category: Principal judgment Parties: Paul Fitzgerald (Applicant) Building Professionals Board (Respondent) Representation: Mr A Gough, Storey and Gough Lawyers (Applicant) Mr A Grey, Legal Officer, Building Professionals Board (Respondent) File Number(s): 133146 reasons for decision 1On 3 May 2013 the Board notified Mr Paul Fitzgerald, an accredited certifier, of a decision made 15 March 2013, finding him guilty of various allegations in relation to his professional competence connected with four development projects where he had issued certificates in 2011 and 2012. The Board made the following orders: (1)Mr Fitzgerald is reprimanded. (2)Mr Fitzgerald is ordered to pay a fine of $36,000 to the Board within 28 days of the date of receipt of the notice. (3)Mr Fitzgerald's certificate of accreditation is cancelled. (4)Mr Fitzgerald cannot re-apply for accreditation for a period of 5 years. 2Mr Fitzgerald applied to the Tribunal under the Building Professionals Act 2005 (BP Act) for review of the Board's decision. We have given our decision in relation to the merits of the Board's disciplinary findings: Fitzgerald v Building Professionals Board [2013] NSWADT 299. 3We did not deal in that decision with the merits of the Board's disciplinary, accepting that it was desirable that submissions as to that matter be heard once our rulings on the allegations had been considered by the parties. The hearing in relation to disciplinary orders` was conducted on 12 March 2014. Mr Fitzgerald was represented by Mr Gough, solicitor; and the Board (as previously) by Mr Grey, its legal officer. 4Synopsis of Findings as to Merits of Allegations: We did not affirm the Board's one adverse finding in relation to the residential development at Chatswood. We did affirm an allegation common to each of two adjacent residential buildings that formed part of the one development at Bexley (relating to the degree of excavation undertaken on a sloping site to create a basement), but entered a reservation in relation to the difficulty of practical application of the relevant provision. We affirmed the Board's three adverse findings in respect of a commercial development at Mosman (relating to removal of an internal supporting wall and the fire risk caused by leaving exposed penetrations in the ceiling of the ground floor of the commercial development in circumstances where the first floor was occupied as a residence). In the case of the Bexley development and the Mosman development we agreed with the Board that a finding of unsatisfactory professional conduct should be entered in each instance. 5The most wide ranging allegations were made in relation to a residential development at Waverton. The items of complaint related to numerous aspects of a major renovation of a heritage classified residential building divided by a common wall into separate three storey units, a 'duplex' development. The original complaint to the Board specified 53 errors on the part of Mr Fitzgerald. Of these 46 were pressed at the hearing before us. We upheld the Board's case in respect of all of them. There were two further specific allegations as to his conduct. We upheld one in whole and one in part. We made a number of comments in our reasons on the seriousness of Mr Fitzgerald's breaches. We entered, like the Board, a finding of professional misconduct. 6Additional material filed for the disciplinary hearing: The Board filed a further two volumes, made up mainly of records of the disciplinary proceedings against Mr Fitzgerald that have resulted in adverse findings, and submissions. Mr Fitzgerald filed a statement and an outline of submissions. Mr Fitzgerald was cross-examined by Mr Grey and questioned by the Tribunal. 7Primary Submissions: The Board submitted that its original orders, despite the variations entered by us in our decision, should stand. Mr Grey referred in his submissions to the public protection objective of disciplinary orders (citing various statements of the Tribunal to that effect), and commended to the Tribunal that it deal with the matter in line with the Board's Disciplinary Penalty Guidelines, referring to the December 2012 edition. 8The Guidelines categorise infractions according to seriousness. There can be no doubt that the present case goes beyond the description 'moderate matters' (category D) and falls in the range of 'significant matters' (Category E) or the top category ('major matters'). According to the grid, Category D cases might attract a fine in the range $5,000-$20,000; Category E, $20,000-$50,000; and Category F, $50,000 to the maximum, $110,000. In all of these categories it is stated that the full suite of disciplinary sanctions might be used, extending to suspension and cancellation. The final sanction (used here), of imposing a disqualification period before the certifier can re-apply for accreditation is reserved for 'major matters' (Category F). 9In his written statement Mr Fitzgerald advised that he was 51 years old, and had worked as a principal certifying authority (PCA) since 2005 and as a health and building surveyor for the previous 24 years in local government. On 12 February 2014 the company of which he was director, Fitzgerald Building Certifiers, was placed in liquidation. The company held a corporate accreditation and it had not done any accreditation work since May 2013 and he said had not been profitable since July 2012. He said that he had spent recent months assisting clients to ensure a smooth flow of PCA work to a new PCA. 10The Board's material (volume 2) included an email from Mr Fitzgerald dated 11 February 2014 in which he advised that he had started a new business in 'building consultancy' called First Building Consultants. He said that this would allow him to maintain his previous email and phone contact details. He saw this as a positive arrangement which would enable him to deal with inquiries from old clients of Fitzgerald Building Certifiers (now in liquidation), and help them find a new certifier. 11In that email he said, in line with his statement of 28 February 2014 filed in these proceedings, that he has at all times attempted to act in the public interest and if mistakes have occurred they were not intentional. He said that he wished on to move on in his professional life into several new areas, 'which much to the relief of all I'm sure do not involve the administration of the BPB.' These remarks were made in connection with a complaint investigation then taking place. 12He expressed his remorse for his conduct, accepted the seriousness of the observations made in our previous decision as to the seriousness of his misconduct and referred to the financial impact on him of the numerous disciplinary decisions made against him (see further below), and referred to the reparation he had made by way of compensation to clients affected by his professional errors. He also referred to outcomes in relation to the developments under notice that had, in his view, ameliorated or not revised aspects of the developments affected by his conduct. 13He accepted that in the case of the Waverton property the finding of professional misconduct was justified, and accepted that therefore suspension or cancellation may be an appropriate order. 14At hearing he did not actively dispute the Board's orders of reprimand or of cancellation, including the period of the bar on reapplying for accreditation. He advised that he ceased practice and that he does not intend to re-apply for accreditation. He said he intended to find alternative means of employment. 15His principal concern was the severity of the fine. He submitted that the fine was out of line with decisions of the Tribunal involving he submitted similar or worse conduct, and referred to Minister for Infrastructure and Planning v Conway (No 3) [2004] NSWADT 290; and Building Professionals Board v Cohen (No 2) [2010] NSWADT 266. 16Complaints History: The Board's material included Mr Fitzgerald's complaints history. The following disciplinary orders have been made by the Board against either Mr Fitzgerald personally or against Fitzgerald Building Certifiers: reprimand; fine, $2000 (complaints 93/07 and 125/07), 31 July 2008; reprimand; fine, $1,500 (complaint 178/08), 3 December 2009; reprimand, fine, $2000 (complaint 183/08); reprimand, fine, $1000 (complaint 05/10), 28 October 2010; reprimand, fine, $1500 (complaint 20/10), 14 September 2010; reprimand, fine, $2500 (complaint 60/10), 23 June 2011; reprimand, fine, $5000 (complaint 65/10); reprimand, fine, $2000, order to report in relation to office processes as they relate to fire safety schedules (complaint 10/11), reprimand, fine $2000, 25 August 2011; reprimand (complaint 51/11, reprimand, 27 October 2011; reprimand, fine, $1000 (complaint 83/11), 5 April 2012; reprimand, order to undertake and complete a short course in 'Development Control' (complaint 85/11), 8 December 2011; reprimand, fine of $7500 (complaint 87/11), 5 April 2012; reprimand, fine $1000 (complaint 88/11 (8 December 2011); reprimand, fine $5000, order to report on practice within 30 days in relation to steps adopted to ensure full compliance with relevant laws of the certificates he is entitled to issue (complaint 102/11), 24 May 2012; reprimand, suspension of accreditation from 15 July 2012 to 15 May 2013; reprimand, fine, $2000 (complaint 115/11), reprimand, fine, $2000, order to report on practice in relation to steps adopted to ensure full compliance with relevant laws, and methods he employs to ensure that all required information is submitted, 25 May 2012; condition imposed on accreditation removing his authority to issue and complying development certificate or construction certificate during that period; fine, $25000 (complaint 104/11), 28 June 2012; same orders as in complaint 104/11, matter involved adjacent property (complaint 3/12), 28 June 2012; similar orders to complaint 104/11, matter involved different property (complaint 04/12), 28 June 2012; similar orders to complaint 104/11 (complaint 05/12), matter involved a different unit at the same address as 04/12. 17Consideration: There is no dispute between the parties over the basic principles. One, the central object of disciplinary action is the protection of the public: see, for example, Building Professionals Board v Johnson [2008] NSWADT 60 at [49]. Two, permissible considerations relevant to the disciplinary order include those canvassed in Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 at [45]; see further Qiu v Building Professionals Board [2013] NSWADT 289 at [98]. 18The observations of Tobias JA in a medical discipline case, Prakash v Health Care Complaints Commission [2006] NSWCA 153, with appropriate variation for the profession of accredited certification, apply: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. 19Mr Fitzgerald's disciplinary history shows an appalling record of contravention, involving 19 matters in a period of five years. The present case is on top of these matters. Some indication of the scale of operation of Mr Fitzgerald's business, Fitzgerald Building Certifiers, was provided by an organisation chart dated January 2012, included in the Board's material. Mr Fitzgerald headed a group of 28 staff. The list described six of them as accredited certifiers, and one as a trainee certifier. The office structure was divided into streams reflecting the major certificate categories (complying development certificates and construction certificates) plus a support team (reception, accounts, filing). The material also included a revised organisational chart lodged February 2012 which showed 36 staff under Mr Fitzgerald's direction, with five certifiers and one trainee certifier. These documents were furnished in connection with the body corporate application for accreditation for that year. 20In evidence at hearing he said that his business was doing 2,500-3,000 complying development certificates a year, plus occupation certificate and final inspections. In cross-examination, he rejected the suggestion that it was an impossible task for him to individually attend to all of these matters or to have the team of certifiers under his direction achieve that. He referred to business systems he had in place in the office which he believed ensured proper management of each matter, and proper attention to compliance with the relevant requirements. However on re-examination from his lawyer, Mr Gough, he agreed that the volume of work that his business had sought to undertake was 'excessive', and extremely taxing personally. He accepted that he had committed errors by working excessive hours and undertaking too many projects. 21He suggested that the time spent on each certificate application was proportionate to the nature of the case, and said that the firm generally did 'low scale' work, such as pergolas, swimming pools and the like. Mr Grey for the Board pointed out in his submissions that in his most recent renewal application he had given a list of projects that included ones at the high end, itemised as costing $6.8m, $4.0m, and many over $1m. 22We note that in this case the orders were not as rigid as the Board's Guidelines might be seen to decree. The fine is in the Category D area whereas the removal from practice orders are in the Category F area. 23Without exploring the matter in great detail, we consider that the fine should be adjusted downwards to reflect the less severe conclusions we reached in relation to two of the matters (the Chatswood development where we set aside the order, and the Bexley matter where we accepted that there was a breach of professional standards amounting to unsatisfactory professional conduct but acknowledged the practical difficulties that have surrounded basement excavation compliance on sloping residential sites (a matter now being address by new provisions). This is in line with the approach we took in the recent decision of Qiu at [104]. On the other hand we have a grave view of the seriousness of the misconduct revealed by the Waverton case, and the seriousness of the omissions in relation to the Mosman case, especially as concerns the risk of fire spreading through the penetrations in the ceiling of the commercial premises located immediately below residential premises. We refer to our observations in the principal decision, and do not accept the explanations in mitigation made by Mr Fitzgerald in his statement for these proceedings. 24We are not inclined to accept Mr Fitzgerald's description of his conduct as involving mere innocent mistakes on his part. He had a long career in key positions as a council officer. He built a big business very quickly. Plainly a business that employs around 30 staff (albeit some of the work building consulting work as distinct from certification work), to survive needed to handle a lot of business. His span of activity included major projects. Going by the fines imposed in some of the cases, the breaches of professional standards fell at the minor to moderate end of the range applied by the Board. Nonetheless they were repeated, and in its later orders in the disciplinary history the Board is calling for reports from him on his procedures, practices and systems. 25This points in our view to a wilful disregard on Mr Fitzgerald's part for the seriousness of the findings made against him and the seriousness of the need to change his methods. He should have moved to respond at an early point in the history of the complaints. The position should not have been reached where the Board was giving him directions in effect going to the internal management of his activities, personally and via his firm. 26The bare statistics of his level of activity show that the possibility of he giving individual matters the attention they needed was unachievable, a point he ultimately conceded. 27We strongly agree with the order made by the Board cancelling his certificate and denying him the right to reapply for five years. 28As to the issue of the fine, in line with our earlier comments, we are inclined to reduce it, but not significantly, to $25,000. We have had regard to the statements made by Mr Fitzgerald as to the financial impact of the various disciplinary proceedings on him especially the recent ones. We accept that the loss of his business has involved a significant financial blow. 29On the other hand, there needs, as Mr Grey submitted, to be a marker given to the accredited certifier community as to the potential fine that may be imposed in cases of very significant misconduct. We do not see this fine as setting a strict precedent. Its amount is shaped by the amount imposed at Board level, and the fact that Mr Fitzgerald had some success with his review application. 30We acknowledge that our fine on this occasion is out of line with our decision in Building Professionals Board v Cohen (No 2), where the fine was $12,000 and the respondent was disqualified for two years. That was an egregious case of misconduct, we accept. The respondent in that case had a dismal disciplinary history, spread of a longer period of time - 9 cautions, 13 reprimands and 7 fines; and that we made very strong comments in criticism of his conduct, especially at [32], [37] and [58]. However, we agree with the Board, and as reflected in the approach seen in their guidelines, that stronger fines should ordinarily be imposed than was the case in the past. We should not be understood in making these comments to be seen as adopting the Board's guidelines. 31Finally, it was unclear to us what the business, First Business Consulting, to which Mr Fitzgerald referred in his email of 11 February 2014 might involve. At hearing, he referred to him conducting a business called 'Business Central Pty Ltd', and said the firm would provide bushfire consultancy and pre- purchase inspections, we assume in accordance with Rural Fire Service requirements. 32Further, in his submissions Mr Gough asserted that the Board was wrong to in imposing a single disciplinary order in respect of its adverse findings as to the adequacy of Mr Fitzgerald's professional conduct in relation to each of the four developments. He submitted that, in line with practice in the criminal jurisdiction, there should be a separate penalty specified for each separate matter, subject only to the possibility of reducing the overall penalty if just to do so. He cited no authority for this proposition drawn from the context of disciplinary proceedings. It is usual in disciplinary proceedings for single final orders to be entered in respect of multiple orders. Equally we see no difficulty in a disciplinary body segmenting its decisions as to disciplinary orders. Order 33The Board's disciplinary orders 1, 3 and 4 are affirmed. The Board's order no 2 is varied from a fine of $36,000 to a fine of $25,000. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 09 May 2014