Hallal v Building Professionals Board [2016] NSWCATOD 78

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hallal v Building Professionals Board [2016] NSWCATOD 78 Hearing dates: 11 May 2016 Date of orders: 21 June 2016 Decision date: 21 June 2016 Jurisdiction: Occupational Division Before: D Fairlie, Senior Member S Boyce, General Member Decision: The decision of the Building Professionals Board dated 26 November 2015 is affirmed Catchwords: Accredited Certifier – findings of unsatisfactory professional conduct in respect of multiple complying development certificates – appropriate penalty Legislation Cited: Administrative Decisions Review Act 1997 Building Professionals Act 2005 State Environmental Planning Policy ( Exempt and Complying Development Codes) 2008 Cases Cited: Department of Planning v Dallas [2006] NSW ADT 231 McGufficke v Building Professionals Board [2013] NSW ADT 296 MuGufficke v Building Professionals Board [2013] NSW ADT 307 Qiu v Building Professionals Board [2013] NSW ADT 289 Raco v Building Professionals Board [2015] NSWCAT OD 102 Category: Principal judgment Parties: Joseph Hallal (Applicant) Building Professionals Board (Respondent) Representation: Counsel: D Essey (Applicant)

Solicitors: Essey Legal (Applicant) Building Professionals Board (Respondent in person) File Number(s): 1520267

REASONS FOR DECISION 1. This is an application for a review of a disciplinary decision of the Building Professionals Board ("the Board") against Mr Joseph Hallal, an accredited certifier. 2. On 26 November 2015 the Board determined, following an investigation by its investigative staff, that Mr Hallal's conduct in relation to the matters before it constituted unsatisfactory professional conduct and that as consequence he was reprimanded and fined $10,000. 3. Section 19 of the Building Professionals Act 2006 ("the BP Act") contains an extensive definition of unsatisfactory professional conduct. 4. The relevant subsections in s19, which the Board referred to in its decision were: (a) conduct….that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of … the Environmental Planning and Assessment Act….by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, and (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in an accreditation scheme. 1. Mr Hallal has made an application to this Tribunal under s33 of the BP Act for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act") of the Board's disciplinary decision against him. Pursuant to s63 of the ADR Act, the Tribunal may affirm or vary the original decision, or set it aside and make its own decision, or set it aside and remit the matter to the Board. 2. In his Grounds for Review filed on 22 December 2015, Mr Hallal submitted that the Board had failed to consider all the relevant circumstances in making the findings of unsatisfactory professional conduct against him, and that the findings should be reviewed. He also submitted in the alternative, that the penalties imposed were too harsh and that the Board failed to consider or attach appropriate weight to certain factual matters which were put before to the Board. 3. Just before the hearing, a submission was filed by Mr Hallal's solicitor, in which Mr Hallal accepted the findings of unsatisfactory professional conduct made by the Board. Thus the only issue before us was the question of penalty.