CONSTRUCTION OCCUPATIONS REGISTRAR & FEKETE (Occupational Discipline) - [2013] ACAT 20

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONSTRUCTION OCCUPATIONS REGISTRAR & FEKETE
(Occupational Discipline) [2013] ACAT 20

OR 12/30
Catchwords: OCCUPATIONAL DISCIPLINE – CONSTRUCTION OCCUPATION – building certifier – issuing building approvals which did not comply with statutory requirements: admission of breaches - criteria for occupational discipline – whether prior contraventions should be taken into account – flaws in respondent’s office management - impact of contravention - integrity of the building certification process: public confidence in regulatory system – purpose of occupational discipline: protection of public, not punishment - penalty

List of legislation: ACT Civil and Administrative Tribunal Act 2008

,

ss. 65 and 66

Building Act 2004, ss. 18, 19, 25A, 26, 28, 29, and 30
Planning and Development Act 2007, ss 46, 47, 50, 51, 54, 55, 116, 133, 133 and 296
Construction Occupation (Licensing) Act 2004, ss 7, 9, 9, 9, 16, 55, 56 and 57

List of Regulations: Planning and Development Regulation 2008, s. 20, schedule 1.100
ACT Civil and Administrative Tribunal Regulation 2009, reg.4

List of cases: Construction Occupations Registrar v Fekete (Occupational Discipline) [2012] ACAT 50
Council of the Law Society of the ACT v Legal Practitioner X

(Occupational Discipline)
(2012) ACAT 60
Deakin Residents Association v Commissioner for Land & Planning [2001] ACTAAT 34
Harb & Anor v Commissioner for Fair Trading NSW Office of Fair Trading [2007] NSWADT 175
Hopkins and Construction Occupations Registrar [2008] ACTAAT 28
Joseph Fekete and Chief Executive of ACT Department of Urban Services [2003] ACTAAT 6
Kalantzis vCommissioner for Fair Trading, NSW Office ofFair Trading[2008] NSWADT 236
The Construction Occupations Registrar and Mark Rawson (AT 09/20) & Rawson Homes Pty Ltd (AT 09/22) (Occupational Discipline) [2010] ACAT 86
The New South Wales Bar Association and Evatt [1968] HCA 20; [1968] 117 CLR 177

Tribunal: Ms E. Symons, Presidential Member

Date of Orders:  12 April 2013
Date of Reasons for Decision:         12 April 2013
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 12/30

BETWEEN:

CONSTRUCTION OCCUPATIONS REGISTRAR

Applicant

AND:

JOSEPH FEKETE

Respondent

TRIBUNAL: Ms E. Symons, Presidential Member

DATE:12 April 2013
ORDERS

The Tribunal orders that:

1. The Respondent be reprimanded.
2. The Respondent pay the amount of $1,000 to the Territory within 28 days of the date of this order.

3. The Respondent’s licence be suspended for a period of one month commencing 28 days from the date of this decision.

………………………………..
Ms E. Symons

Presidential Member

REASONS FOR DECISION

This is an application by the Construction Occupations Registrar (‘the Applicant’) for disciplinary action under section 56(1)(a) of the Construction Occupation (Licensing) Act 2004 (‘the COL Act’).

Joseph Fekete, who is the Respondent in these proceedings, is the holder of a Principal Building Surveyors Licence, being Licence number 200016267 issued pursuant to the COL Act and which expires on 28 September 2013. Mr Fekete is the sole director of and a nominee for Canberra Region Building Certifiers Pty Ltd (‘CBRC Pty Ltd’), which is the holder of a Principal Building Surveyors Licence, being Licence number 2011278.

It is common ground that on 28 June 2010 Mr Fekete (‘the Respondent’) was engaged by Ivan Pirjac of National Build Pty Limited to carry out building certification services at Block 6 and Block 7 Section 33 Deakin (‘the properties’). The Applicant received two complaints (‘the complaints’) in January 2011 in relation to the Respondent issuing building approvals contrary to the lease conditions, and where development approval was required.

Mr Sam Bond, an inspector and compliance auditor within the Utilities, Land and Lease Regulation Section of the Environment and Sustainable Development Directorate, undertook an audit of the building approval in relation to the properties and identified difficulties with the building approval.

On 1 June 2012, following further investigation by the Applicant, the Applicant notified the Respondent by letter of the complaints and allegations and sought submissions by 4 pm, 8 June 2012. The Respondent provided a response to the Applicant’s letter on 6 July 2012.

The application for occupational discipline arises out of these circumstances.

The Applicant’s Contentions

In the application lodged on 24 October 2012, the Applicant alleged that four grounds for occupational discipline existed, namely:

·that on or about 30 June 2010, the Respondent contravened section 30(1)(a) of the Building Act 2004 (‘Building Act’) by issuing building approvals for Blocks 6 and 7 Section 33 Deakin, for development which would result in the contravention of Rule 31 of the Single Dwelling Housing Development Code (‘SDHDC’) because of the design and siting of the building, and was thus not exempt from development approval pursuant to Schedule 1, Section 1.100 of the Planning and Development Regulation 2008 (‘Regulation’) ; and

·that on or about 30 June 2010, the Respondent contravened section 30(1)(a) of the Building Act by issuing building approvals for Blocks 6 and 7 Section 33 Deakin, for development contrary to condition 2(b) of the Crown Lease and the National Capital Plan Development Control Plan No. 171/6/0003, and thus not exempt from development approval pursuant to Schedule 1, Section 1.100 of the Regulation ; and

·that on or about 14 October 2010, the Respondent contravened section 30(1)(a) of the Building Act by issuing an amended building approval for Block 7 Section 33 Deakin, for development which would result in the contravention of Rule 31 of the SDHDC because of the design and siting of the building, and was thus not exempt from development approval pursuant to Schedule 1, Section 1.100 of the Regulation; and

·that on or about 19 November 2010, the Respondent contravened section 30(1)(a) of the Building Act by issuing an amended building approval for Block 6 Section 33 Deakin, for development which would result in the contravention of Rule 31 of the SDHDC because of the design and siting of the building, and was thus not exempt from development approval pursuant to Schedule 1, Section 1.100 of the Regulation.

The Applicant contends:-

·that the Respondent certified that the dwellings at the Deakin properties were exempt from development approval (DA) under the Regulation; and
·that he issued building approvals and amended building approvals without obtaining development approval in contravention of clause 2(b) of the Crown Lease and in contravention of SDHDC; and
·that if these breaches are established, there may be grounds for occupational discipline under section 55 or 56 of the COL Act.

The Respondent’s Contentions

The Tribunal noted that the Respondent expressed his deep regret and apologised “to all concerned that the Errors occurred” [1]. He acknowledged that he should have been more vigilant when submitting plans to the ACT Planning and Land Authority (‘ACTPLA’) given the departure from the SDHDA Rule 31 requirements and that he should have sought an exemption under Schedule 1, Section 1.100A of the Regulation.
[1] Statement of Joseph Fekete dated 21 January 2013, paragraph 38

The Respondent said there were unusual circumstances in this matter in that he was taking over from a previous certifier, John Bates, who was unable to continue providing those services and that the plans were referred to in the Crown Lease of the Properties.

The Respondent said that he was unaware that the properties were originally part of Block 2, Section 33 Deakin, which had been subdivided with the creation of 20 individual blocks (‘the Development’) and that the Development was the subject of a Development Approval (‘DA’) and the decision of the Administrative Appeals Tribunal of the ACT in Deakin Residents Association and Commissioner for Land & Planning [2] .

[2] [2001] ACTAAT 34

He was also unaware that new crown leases were issued for the subdivided land of the Development including in respect of the properties. He did not have the Crown Lease for the Properties before him when he gave approval.[3]

The Hearing

[3] Statement of Joseph Fekete dated 21 January 2013, paragraph 27

The Applicant was represented by Mr Archer of Counsel and the Respondent was represented by Mr Walker of Counsel. Evidence was given for the Applicant by Mr Samuel Bond and for the Respondent by Mr Fekete. Mr Bond’s Witness Statement dated 31 August 2012 was admitted into evidence (Exhibit A1) and Mr Fekete’s Witness Statement dated 20 February 2013 was admitted into evidence (Exhibit R1).

At the commencement of the hearing, Counsel informed the Tribunal that they had reached agreement in relation to the following facts:

·The Respondent approved three lots of plans for the properties in June 2010, September/October 2010 and in November 2010.
·These approvals were for plans which did not conform with the plans annexed to the Crown Lease (Clause 2b).
·The Respondent admits that he did not comply with Clause 2b of the Crown Lease.
·The Respondent admits he did not conform with SDHDA in relation to side setbacks.
·The Respondent did not comply with 1.100 of the Regulation.
·The variations between the plans and the Lease and the plans which Mr Fekete would approve were not significant; he would be entitled to have the variations approved under clause 2(b) by ACTPLA had he applied for them.
·Mr Fekete did not get approval under the Lease.
·No DA would have been issued at the time the Respondent gave Building Approval.
·The amendments would not normally require public notification; the amendments that have been approved involved a finding that there was no adverse impact on the amenity of the neighbours.

Towards the end of the hearing Mr Archer informed the Tribunal that a Certificate of Compliance had issued pursuant to section 296 of the Planning and Development Act 2007 in respect of each property. Counsel agreed that the Certificates were not conditional.
At the conclusion of the hearing the Tribunal reserved its decision.

Applicable Law

The application to the Tribunal for an occupational discipline order is brought under section 66 of the ACT Civil and Administrative Tribunal Act 2008 (‘the ACAT Act’). Pursuant to subsection 66(2)(e) of the ACAT Act, such an order can be made if the Tribunal is satisfied under sub-section 65(2) of that Act that a ground for occupational discipline exists against the person.

The application is also made under section 56 of the COL Act. That section provides as follows:
(1) If the registrar believes on reasonable grounds that a ground for
occupational discipline exists in relation to a licensee, the registrar
may —
(a) apply to the ACAT for an occupational discipline order in
relation to the licensee; ...
When a party has applied for an occupational discipline order, the Tribunal is obliged to consider the factors under section 57 of the COL Act and section 65 of the ACAT Act before making such an order. These provisions are set out in full below.

COL Act
57 Considerations before making occupational discipline orders

(1) This section applies if the ACAT is considering an application for an occupational discipline order in relation to a licensee.
(2) Without limiting the matters the ACAT must consider in relation to a
licensee, the ACAT must consider the following:

(a) the degree of responsibility of the licensee for the act or omission that made up the ground for occupational discipline;
(b) the number of people detrimentally affected by the doing of something, or not doing something, that made up the ground for occupational discipline;
(c) the extent to which it is necessary to discourage the licensee and others from doing something, or not doing something, that made up the ground for occupational discipline;
(d) whether, and the extent to which, it is necessary to protect the public from the licensee;
(e) the desirability of making the licensee responsible for the consequences of the licensee’s acts or omissions;
(f) the desirability of maintaining public confidence in the regulatory system set up by this Act;
(g) the licensee’s regard, or disregard, for public safety and protection of the environment when doing something, or not doing something, that made up the ground for occupational discipline.
ACAT Act
65 Considerations before making orders on application for occupational discipline
(1) This section applies if the tribunal is considering an application for
occupational discipline against a person (the subject person).

(2) The tribunal may make an order for occupational discipline in
subject person if satisfied that a ground for occupational discipline exists against the person.
(3) In considering what occupational discipline to use against the
subject person, the tribunal must consider the following:

(a) whether the person took reasonable steps to avoid the action (the
     contravention) that is the ground for occupational discipline;
(b) whether occupational discipline has previously been used against the
     person for a similar act;
(c) whether the person has taken steps to mitigate the effect of the
     contravention;
(d) the impact of the contravention on any other person;
(e) the likelihood that the person will act in a way that is a ground for
     occupational discipline in the future;
(f) whether the entity bringing the application has applied for particular
     occupational discipline to be used and, if so, the kind of occupational
     discipline applied for.
(4) The tribunal may consider any other relevant matter.

The Tribunal notes, in passing, that the Construction Occupations Registrar has independent powers under section 56 of the COL Act to take various forms of disciplinary action such as reprimanding the licensee; requiring the licensee to complete a stated course of training or imposing a condition on the licence or amending an existing condition.

Section 55(1) of the COL Act identifies grounds for occupational discipline for persons holding licences under the COL Act. Relevantly, in these proceedings the Applicant relies on section 55(1)(a) – that the licensee, or a nominee or employee of the licensee, contravened an operational Act. The term ‘operational Act’ is defined by section 16 of the COL Act to include the Building Act 2004 (‘the Building Act’) and the Planning and Development Act 2007 (‘the PD Act’).

The Applicant alleges that Mr Fekete contravened section 30(1)(a) of the Building Act. This section provides that a certifier must not issue a building approval if carrying out the work to which the application for the approval relates would result in the contravention of this Act or any other law in force in the ACT because of the design or siting of a proposed building.

Mr Bond’s evidence

Mr Bond told the Tribunal that he was a Building Inspector under the Building Act, a Compliance Auditor under the COL Act and an Inspector under the PD Act. He had been assigned the complaints in this matter and had undertaken an audit of the development approval (DA20006243) and the associated plans.

In January 2011, he had undertaken a review of the Crown Leases for Blocks 5 to 25 of Section 33 Deakin, and ascertained that clause 2(b) of the Crown Leases required that the dwellings be built in accordance with the specified plans consistent with the approved plans in DA20006243. In cross examination he conceded that it was not common for a Lease to require construction in accordance with a nominated set of plans; he had not seen such a Lease before. He had also undertaken a review of the Building Approval (‘BA’) and associated plans.

He identified that the Respondent issued the BA on 30 June 2010 for the construction of single class 1(a) residential dwellings; on 13 September 2010 the Respondent approved an amendment to the BA which altered the plans to represent those required under the Crown Lease; and on 19 November 2010 the Respondent issued a second amendment to the BA which appeared to show a variation of the original BA approved plans, incorporating the first amendment. He said [4]that the second amendment appeared to change the plans to incorporate the requirement of the NCA DCP (National Capital Authority Development Control Plan).

[4] Statement of Samuel Bond 31 August 2012, para 9

He had carried out a physical inspection of the premises with Mr Josh Turk on 6 May 2011 and found that the building work was being conducted in accordance with the approved plans. These plans did not strictly comply with the plans stipulated in the Crown Lease. The Respondent had approved the plans as exempt from development approval and they did not comply with Rule 31 (side setbacks) of the SDHDC.

Mr Bond told the Tribunal that part of the reason for the delay between receiving the complaints on 25 January 2011 and 6 May 2011 when the inspection of the subject property was conducted was the particular issue of working out how one would get the matter regularized under the Lease. He also told the Tribunal a Certificate of Occupancy had been issued.

Mr Fekete’s evidence

Mr Fekete told the Tribunal that, apart from the provision in clause 2(b) of the Crown Leases for the Deakin properties for which he was the certifier from 30 June 2010, he had not seen any equivalent provision to clause 2(b) in any other Crown Lease.

He acknowledged that he had faced an application for occupational discipline in the Tribunal in 2012 which related to an approval which occurred around the same time, in 2010, as the approval the subject of the current application. At the time of these approvals he had two part time employees – Paul Thomas who was working three days a week and studying at TAFE, and Julie Siemen, an administrative assistant, who was also working three days a week.

In early 2011, Mr Thomas commenced working full time and Ms Siemen increased her work to four days a week. Mr Fekete and Mr Thomas presently share certifying activities for jobs up to 2,000 m². Mr Fekete said he does the certifying for jobs over 2,000m². If he was suspended for two months, as sought by the applicant, he said he would “have to let that work (over 2,000 m²) go to someone else because we – we wouldn’t be able to carry out the function”. He also said, while his business was presently generating $100,000 a month from his and Mr Thomas’ efforts, if he was unable to practice for a month the business income would reduce by half, if not more.

In cross examination Mr Fekete said prior to Mr Thomas being registered in 2011 he, Mr Fekete, had to lodge everything. Mr Thomas and Ms Siemen gave him a hand in relation to the work preparatory to lodgment. He had a check list which did not have a lot on it, which he placed in the client’s files and used for getting “clearance checks and forms and maybe insurances and things like that. Pretty basic stuff”[5]. He said that he established a check list procedure after the previous Tribunal hearing. In June 2010, he did not have a detailed check list for single dwellings that had to comply with the SDHDC; his check list then only alerted him to check ‘compliance’ with SDHDC.

[5] Transcript, page 28 lines 35 - 37

Mr Fekete said that he had spent four weeks overseas in May/June 2010. He had an arrangement with John Bates, another certifier, whereby one would do the other’s work if one was not available. After his return from overseas it was quite a busy period for a couple of weeks. By September 2010, things had returned to normal.

Mr Fekete told the Tribunal he was contacted by Ben Green, from the Applicant’s office, in August 2010 and called to a meeting at the ACTPLA office. He met with Ben Green and another male person from the Applicant’s office in September 2010 and left that meeting having agreed to issue a Stop Work Notice to the builder immediately as there was a DA on the project which he had approved as DA exempt. He also had to inform the Registrar of the issue of the Stop Work Notice and resolve the issues by getting the builder to re-lodge plans that matched the DA.

Within a week or so of the meeting with Ben Green, he met with the architect, builder and the owners of the subject properties at the owners’ solicitor’s office. He said that he was told at that meeting that there was a Crown Lease and approved plans and the plans were going to be amended to reflect what was on the original DA.

He also said that he resolved the issues by having an amendment done which had the original DA on it and on the amendment he had written “This approval supersedes the previous approval. There’s a DA on this application”[6].

[6] Transcript, page 31 lines 26-27

In his letter dated 6 July 2012, in response to the show cause letter from the Deputy Construction Occupations Registrar, Mr Fekete stated:
“I understood that the reasons that these plans were submitted was because Mr Milin’s client was not the original lessee when the DA was obtained and was perhaps unsure whether he was able to use the plans referred to in the DA. I further understand Mr Milin, had drawn these plans to match the original plans as much as possible following extensive consultation between Mr Milin and ACTPLA”.

Mr Fekete also stated in this letter of 6 July 2012 that he has altered the administrative practices and procedures and that he would be delighted to meet and have the Construction Occupations Registrar’s input on his revised administrative practices and procedures.

In cross examination Mr Fekete was asked about how he had satisfied himself that the plans were in accordance with the SDHDC. He referred to his earlier evidence and told the Tribunal, in response to a further question, that he could not produce his checklist. He then said he relied on the ACTPLA checklist. Mr Fekete conceded that notwithstanding his evidence that he had relied on the ACTPLA checklist he had filed documents which were not in accordance with the SDHDC for all four blocks including the two blocks the subject of this application and that this was his error.

Mr Fekete said, in cross examination, that he had not known anything about the DA on the two properties he had approved as DA exempt until the meeting with Ben Green. When he spoke to the builder after this meeting the builder confirmed the DA. Mr Fekete said he knew variations to the DA had to be approved by ACTPLA.

Notwithstanding that he knew that ACTPLA had to approve variations he said he got the applicant and the designer to draw some new plans to make them comply and he approved the amendments without getting ACTPLA approval as “Minor variations to the DA we’re allowed to approve”[7]. In doing so, he conceded he “… made an error in judgment”[8].

[7] Transcript, page 40 line 39

[8] Transcript, page 40 line 31

Mr Fekete also conceded in cross examination that, after he had issued the Stop Work Notice he wanted to get the project on the road again. He agreed that he was prepared to cut corners as there were a lot of issues at the time – the Stop Work Notice had been a big inconvenience to his clients and work had stopped on these projects for a couple of months.

Mr Fekete was asked, in cross examination, about the process of actual certification in a typical job. The following exchange took place[9]:

Mr Archer: “… in a typical job … there is an information gathering phase, there may be an inspection phase in relation to some of the jobs, and at the end of the process you sit down and work through the paperwork that you’ve got, applying that to the relevant law and you make a determination as to whether or not a building approval is going to be given Is that the way it works?
Mr Fekete: Yes.
Mr Archer: So the substantial body of the effort is in collecting the information?
Mr Fekete: Getting information first.”

[9] Transcript, page 22 lines 39 – 45 Page 23 lines1 - 2

Mr Fekete said if he was suspended from being a certifier that would not prevent him from doing the office work; he could institute the same sort of arrangements he had with Mr Bates in May/June 2010, with Mr Thomas who worked in his business, or, if need be, with another certifier.

Consideration

The Application asks for final orders that the Tribunal reprimand the Respondent pursuant to section 66(2)(a) of the ACAT Act; that the Respondent pay $1,000 to the Territory pursuant to section 66(2)(h) of the ACAT Act; and that the Respondent’s licence be suspended for a period of two months pursuant to section 66(2)(e) of the ACAT Act.

Before considering the penalty sought by the applicant it is appropriate that the Tribunal note that Mr Fekete has had two prior matters of this nature, one in 2002 before President Peedom in the ACT Administrative Appeals Tribunal and the other, more recently, before me in this Tribunal in 2012. President Peedom’s decision involved a finding of wilful blindness in relation to accepting a particular document and Mr Fekete was suspended for four months, as sought in the application. The occupational discipline matter in 2012 related to an allegation that on 16 August 2010 Mr Fekete erroneously certified a particular aspect of a DA in relation to plot ratios.

The matter currently before the Tribunal alleges that Mr Fekete contravened section 30(1)(a) of the Building Act on 30 June 2010, and on 13 September, 14 October and in November 2010. Clearly these allegations straddle the allegation which I dealt with in 2012. The Tribunal, however, notes that the facts giving rise to the present case occurred before the application for the earlier occupational discipline proceedings commenced on 5 June 2012. This will be a relevant consideration when considering penalty. The Tribunal will return to this later in the Decision.

Mr Walker submitted to the Tribunal that an “unusual set of circumstances gave rise to these infringements”[10]. He identified these circumstances as:
·the Tribunal proceedings which led to a DA being granted over this block occurred in 2001 under a different piece of legislation and under a different Territory plan;
·when the plan came to Mr Fekete in June 2010 it had a DA from 2001; and
·the set of plans were embedded in the Crown Lease and required the construction to be in accordance with the plans.

[10] Transcript page 55 lines 37-38

Both Mr Bond and Mr Fekete gave evidence that, in their individual experience, to have plans embedded in a Crown Lease was unknown. Mr Bond’s evidence was that, notwithstanding construction was continuing and the complaint was carefully drawn, it had taken from 25 January 2011 to 6 May 2011, when a site inspection occurred, to work out how one got territory approval for a variation of the plans under the lease. Mr Fekete’s evidence was that he did not know what the lease and development requirements were until September 2010. Mr Walker submitted, given the unusual circumstances identified above, “...there is no particular reason why he should have called for the lease …”[11].
[11] Transcript, page 56 lines 26-27

In addition to the unusual set of circumstances referred to above, Mr Walker also submitted that there were further unusual factors which the Tribunal should take note of, namely:

·in the meeting with Mr Green, Mr Fekete was told that the DA in respect of the plans was active, notwithstanding section 251 of the now repealed Land (Planning and Environment) Act 1991 under which the DA was originally given, indicated that subject to permission to the contrary, DA approvals ordinarily expire after two years; and
·the DA did not seem to have any special permission in relation to expiration.

Mr Walker submitted that these factors invite questions such as if one looks at that legislation how could Mr Green have provided the advice that the DA was active to Mr Fekete and could there be errors other than those made by Mr Fekete; and “when Mr Fekete has expressed some uncertainty about the circumstances prevailing here it’s not uncertainty that only attends his role in the proceedings. It attended, no disrespect, Mr Bond working out how would you get approval under the plan, it attended Mr Green it seems in relation to suggesting a nine-year-old DA was still active” [12].

[12] Transcript, page 58 lines 7-11

Mr Walker invited the Tribunal to consider the unusual factors and circumstances of this case when considering the criteria in section 57 of the COL Act.

Mr Fekete returned from one month overseas in June 2010. His evidence was that the work had built up while he was overseas for a month and he was quite busy with the pent up demand until around September by which time his workload had returned to normal. The contravention on 30 June 2010 fell in this ‘pent up demand’ period. The contravention the subject of the 2012 proceedings also fell in this period.

For the September allegation it is clear from the evidence that, by then, Mr Fekete’s work pressure had returned to normal. However, in September 2012 he attended a meeting with Ben Green and, as directed, issued a Stop Work Notice on the building sites for the subject properties. It was clear from his evidence that this was a matter of significance to him as it prevented any work being done. He conceded that this was a source of pressure for him. He agreed he had started to cut corners by approving amended plans without obtaining ACTPLA approval even though he knew that the plans needed ACTPLA approval.

It was submitted by Mr Archer [13]that the Stop Work Notice and the associated pressures led Mr Fekete to do things that he thought he might get away with and not to exercise appropriate judgments according to the discipline that he was engaged in under the relevant legislation. This is a concern because it was clear from the evidence that the amended plans would have been approved by ACTPLA as the amendments were not significant, yet Mr Fekete appears to have ignored following the ACTPLA approval requirements and complying with his statutory obligations as a certifier.

[13] Transcript, page 48 lines 9 - 12

ACTPLA relies on certifiers to comply with their legal obligations and to use their skill and expertise to make the scheme work. In the 2012 decision, the Tribunal described this role as a gate keeping role. This requires that certifiers act with integrity and that they carefully and diligently exercise their responsibilities when certifying so that the public can have confidence in this regulatory system.

Mr Archer submitted – in relation to the complexity of the Crown Lease, while not an issue that appears to arise in the usual course of events, was a real issue by the time Mr Fekete issued the Stop Work Notice and met with the owners, architects and builder. Mr Archer highlighted that Mr Fekete’s evidence at the hearing that he relied ‘on the construction of the lease condition that he could do approvals if the variances were not significant’ had not been consistently advanced by him. He had also given evidence that he knew before the final plans were submitted in November that there was an obligation on him to go to ACTPLA in writing in relation to the variances, which he did not do.

Mr Archer urged the Tribunal to take Mr Fekete at his word. He was under pressure from the Stop Work Notice and the fact that no work had been done for some months. The owners and builders wanted the matter resolved. He agreed he cut corners and approved the variances himself rather than making the appropriate written application to ACTPLA.

Mr Walker urged the Tribunal to consider Mr Fekete’s evidence in relation to cutting corners cautiously, noting that Mr Archer’s submission was put in the alternative – either he did not look or he did look and he ignored what he found. The evidence does not enable the Tribunal to be satisfied that Mr Fekete made a conscious decision to close his eyes when cutting corners; nevertheless, the Tribunal is comfortably satisfied, from Mr Fekete’s own admission, that he did cut corners and at that time he was under pressure from the owners and the builders.

The second issue related to Mr Fekete’s failure to comply with the code, i.e SDHDC. The Tribunal accepts Mr Archer’s submissions that “…there is a more substantial issue – it was absolutely commonplace and mainstream and the applications didn’t comply with the Code.”[14] Mr Archer highlighted that “...there’s simply no explanation that’s been offered as to why the variances between the plan and the requirements of the code weren’t identified and something done in relation to it”[15].

[14] Transcript, page 64 lines 40-41

[15] Transcript, page 49 lines 24-26

Mr Fekete was unable to satisfactorily explain how or why he had failed to identify the issues with complying with the code other than to acknowledge he made an error. The question for the Tribunal is the failure of Mr Fekete to not discharge his obligations as a certifier under the Act.

The Tribunal noted that, fortunately, the impact of the errors did not lead to the buildings having to be pulled down and there is no issue in relation to the direct effect on neighbours in this case.

Mr Archer submitted[16]

“…what is at issue here is the integrity of a process and the integrity of a certification process which has a public protection element in it but there’s an inevitable tension between effectively a public responsibility under an Act and the reality that those who certify also make money out of the process of certification.
It is the inevitable tension and in this case we say that there are signs of that tension forming an inappropriate balance, there wasn’t balance, and that is that there was too much attention on money, his or other peoples, rather than doing what was required of him according to the obligations cast upon him under the Act”.

[16] Transcript, page 49 lines 43 – 45; page 50 lines 1-8

The Tribunal has considered the criteria under section 57 of the COL Act. The criterion in section 57(2)(a) requires the Tribunal to consider the degree of responsibility of the licensee for the act or omission that made up the ground for occupational discipline. Consideration of this criterion raises the related considerations set out in section 57(2)(e) of the COL Act – the desirability of making the licensee responsible for the consequences of the licensee’s acts or omissions. Mr Fekete accepted full responsibility for the acts and omissions which constitute breaches of the Building Act and the COL Act. He offered his apologies; he did not oppose or defend the allegations against him.

Section 57(2)(b) of the COL Act - the number of people detrimentally affected by the doing of something, or not doing something, that made up the ground of occupational discipline - is not applicable in this case.

The Tribunal must consider, under section 57(2)(c), the extent to which it is necessary to discourage the licensee and others doing something, or not doing something, that made up the ground for occupational discipline. Mr Archer submitted that protection of the public (section 57(2)(d)) can involve reflection on the question of specific and general deterrence as punishment can form part of protecting the public[17] and provide the deterrence.

[17] Council of the Law Society of the ACT v Legal PractitionerX (Occupational Discipline) (2012) ACAT 60

The criterion in section 57(2)(f), i.e. the desirability of maintaining public confidence in the regulatory system set up by the COL Act, is important since lessees must have faith that all participants in the construction process are fully aware of and will act to fulfill their statutory responsibilities. These responsibilities are not negotiable. Mr Archer submitted that if there is no accountability and omissions which are waved through to the keeper, the public is likely to lose confidence in the system. He urged the Tribunal to “be seen to be calling people to account in relation to infractions of the system that is in place”[18].

[18] Transcript, page 51 lines 32-33

Section 57(2)(g), which requires the Tribunal to consider whether the licensee has disregarded public safety or the protection of the environment, is not applicable as Mr Fekete’s breaches do not raise either of these issues.

In considering the ACAT Act, the first consideration under section 65(3)(a) is whether the person took reasonable steps to avoid the action that is the ground for occupational discipline. Mr Archer invited the Tribunal to find that Mr Fekete did not and moreover as he said in his evidence, he was cutting corners at this time in relation to his processes. The Tribunal concurs.

The Tribunal must consider whether occupational discipline has previously been used against the person under section 65(3)(b) of the ACAT Act. In 2002, the Respondent was the subject of previous disciplinary action before the Administrative Appeals Tribunal General Division (see Joseph Fekete and Chief Executive of ACT Department of Urban Services [2003] ACTAAT 6) in relation to the Respondent’s conduct as a certifier in 2001.

Mr Fekete had given assurances at the 2002 hearing and President Peedom had stated at paragraph 18:-

“The applicant said that no other disciplinary action had ever been taken against him and that he had learnt a lot from his experience in dealing with the certification of the building project. He had learnt that he should not trust people in business and about being open with and trusting people. He believed he had been too trusting in this instance.”

Mr Fekete was the subject of occupational discipline proceedings before me in this Tribunal in 2012 in relation to his conduct as a certifier on 16 August 2010. This Tribunal cannot take into account the 2012 decision because the events the subject of the present proceedings, all of which occurred in 2010, predated the 2012 hearing and decision.

In the 2012 hearing, Mr Fekete gave evidence of the work pressures and a clearly inadequate or non-existent office management system with the necessary professional checks and balances for approval processes, which had existed when he returned from overseas in June 2010. He essentially repeated this evidence in the present proceedings. He also told the Tribunal he had complied with the 2012 orders and had submitted a list of his current professional checks and balances to the Applicant for comment and was awaiting their response. However, there was no evidence which would enable the Tribunal to be satisfied that Mr Fekete has been actively pursuing a response, something the Tribunal would have reasonably expected him to follow up.
In considering whether the person has taken steps to mitigate the effect of the contravention under section 65(3)(c) and the impact of the contravention of any person under section 65(3)(d), it is apparent that the impact is not direct. Mr Archer submits that “the impact of the contravention is reflected in the damage to the public’s perception of the integrity of the system”[19]. The Tribunal agrees.

[19] Transcript page 54 lines 28-29

In considering section 65(3)(e) – the likelihood the person will act in a way that is ground for occupational discipline in the future, Mr Archer urged the Tribunal that notwithstanding that the Tribunal had, in 2012, been satisfied that there was little likelihood that Mr Fekete will act in a way that is a ground for occupational discipline in the future, to take into consideration what Mr Fekete said he was doing at the time, namely corner cutting. He submitted that the Tribunal’s judgment, in relation to this subsection, should this time be significantly different.

Mr Archer also submitted, when looking at Mr Fekete’s “record” his conduct the subject of these proceedings more approximated what President Peedom saw in 2002 and that this Tribunal would now have less confidence that an element of deterrence is not necessary to ensure Mr Fekete will not act like this in the future.

Penalty

The purpose of the exercise of disciplinary powers is to protect the public and not to punish (see NSW Bar Association v Evatt)[20].
[20] [1968] HCA 20; (1968) 117 CLR 177

The Application asks for the Respondent to be reprimanded pursuant to section 66(2)(a) of the ACAT Act; fined $1,000 being the maximum payable by an individual pursuant to section 66(2)(h) of the ACAT Act; and that his licence be suspended for two months pursuant to section 66(2)(e) of the ACAT Act and section 66(2)(e) of the COL Act.

The Tribunal notes that section 66 (Notice of inquiry) of the COL Act appeared in Division 5.3 of that Act. This section including Divisions 5.3 (Disciplinary inquiries) and 5.4 were omitted by ACT Civil and Administrative Tribunal Legislation Amendment Act 2008. This amendment (the 2008 amendment) became effective from the commencement of the ACAT Act. The 2008 amendment also inserted section 56 in the COL Act which provides for an occupational discipline application to be able to be made to the ACAT. Before the amendment, the disciplinary inquiries were conducted by the registrar under the COL Act.

Mr Archer noted the maximum financial penalty of $1,000 and submitted it was ‘ridiculously small’ given that Mr Fekete had given evidence that he was ‘bringing in about $100,000 a month’. He urged the Tribunal to suspend Mr Fekete for the period of two months as sought in the application submitting that this is an appropriate outcome because of the elements of punishment and general and specific deterrence that need to be addressed in the circumstances of this particular case.

Mr Walker reminded the Tribunal when considering the submissions about the inadequacy of the financial penalty, the evidence was silent as to the net income of the business as no evidence had been led of business expenses incurred to generate a monthly income of $100,000.

Mr Walker concurred that it is necessary to protect the public from the licensee submitting “…there can be no argument that the protection of the public is the almost the sine qua non of professional disciplinary cases”[21].

[21] Transcript page 62 lines 16-18

Mr Archer also submitted that the Tribunal consider subsection 66(3)(c) pursuant to which a person may be required to complete a stated course of training to the satisfaction of the regulatory body or another stated person. He submitted that “It was not a matter that struck one in the face that in the witness box he (Mr Fekete) was a person that put statutory formulations into the forefront of how he went about his business…..” and “it may be that one of the matters that the Tribunal considers is whether or not it is desirable in the circumstances to return Mr Fekete to first principles and get him to undertake a program of training that’s available”[22].

[22] Transcript page 53 lines 36-38 and lines 41-44

Mr Walker referred to the paucity of the evidence before the Tribunal in relation to proposed training for Mr Fekete to undertake. The Tribunal has considered whether the Tribunal’s decision should include a “retraining or re-education component.” There was no evidence of what, if any, professional training a certifier has to periodically complete to retain their certification. If a course is available then the Tribunal would hope that Mr Fekete would attend it voluntarily to ensure that he keeps abreast of professional requirements as well as, in his particular circumstances, using it as a tool to refresh the existing requirements that are incumbent on certifiers to meet. The public is entitled to expect this.

Conclusion

The Tribunal must ask ‘what about the role the Respondent plays in ensuring that the Territory and the public are protected when he is certifying building work?’ Certifiers are the gate keepers who police developments under the Building Act. Building approval is an important role which, until January 1999, was handled by government officials. Since then, appropriately qualified and skilled persons have been responsible for looking after the public interests when building plans are approved and homes are being built or renovated. Certifiers are required to take a professional approach and to carry out their certification correctly and properly.
The Tribunal is satisfied, and comfortably so, having considered all of the available evidence, that each of the grounds for occupational discipline in the Application for Disciplinary Action has been made out.

For the reasons stated above the Tribunal considers that an order for occupational discipline should be made in relation to the Respondent . Such orders are made under section 66 of the ACAT Act.

The Tribunal has considered Tribunal case law where similar orders for occupational discipline have been made in the construction industry. In The Construction Occupations Registrar and Mark Rawson (AT 09/20) & Rawson Homes Pty Ltd (AT 09/22)[23], the Tribunal took into consideration that Rawson Homes accepted full responsibility for the acts and omissions which constituted breaches of the Building Act and the COL Act and Mr Rawson admitted liability to the breach of section 31 of the COL Act. The Tribunal stated, at paragraph 38, “…it is desirable that the licensee be made responsible for these acts or omissions since there were clearly flaws in the management of statutory compliance in the company’s Canberra office. This incident has exposed these flaws and new procedures have been put in place as a consequence.” The Tribunal reprimanded the respondents and ordered that Mark Rawson pay $500 and Rawson Homes Pty Ltd pay $2,500 which amounts were, respectively, half of the maximum penalties.

[23] [2010] ACAT 86

In the ACT AAT decision in 2008 of Hopkins and Construction Occupations Registrar [24], President Peedom noted that the applicant asserted he had relied on others for his failure to discharge his statutory obligations and at paragraph 50 stated:
“The applicant’s further acknowledgement ….that he was influenced in the course he decided to take by pressure applied to him by the builder raises a serious question as to the applicant’s preparedness to discharge the duties of a building certifier.”

[24] [2008] ACTAAT 28 [48]

The Tribunal has already noted, above, the comments made by President Peedom in 2003 in Mr Fekete’s prior occupation discipline matter in relation to dealing with people. The Tribunal has concerns about Mr Fekete’s ability to deal with stress and pressure. The first breach occurred shortly after Mr Fekete had returned after a month overseas and work had piled up; office management procedure and work checklists were virtually nonexistent and this was a stressful time which continued until about September.
The Tribunal was surprised that Mr Fekete had not contacted the previous certifier, when he took over on 30 June 2010, to ascertain whether there were any particular issues he should be aware of. Mr Fekete said the previous certifier was Mr Bates whom he had had minding his own practice while he was overseas in May/June 2010. Instead, he appears to have taken on a new request to be a certifier notwithstanding that his work had piled up while he was overseas and it was a stressful time. He conceded he certified the plans without properly discharging his duties as a building certifier.
The Tribunal would have thought a prudent, professional certifier would make it their business to be aware of the types of leases that relate to each job they are asked to be the certifier for; and in this case, the Tribunal also would have thought that Mr Fekete would have had an appropriate discussion with the builder and the owner in order to obtain all relevant information concerning the job. In his letter to the Deputy Construction Occupations Registrar dated 6 July 2012, referred to above, Mr Fekete refers to his ‘understanding’ that Mr Milin had drawn these plans to match the original plans as much as possible. Mr Fekete should have confirmed this for himself.

The subsequent contraventions cannot be explained by the same stress factors which existed in June 2010. The issue of the Stop Work Notice clearly had a stressful impact on Mr Fekete as work was held up for months. He readily conceded he was under pressure and cut corners. It appeared to the Tribunal that he was personally ill equipped to withstand pressure. He knew he had to seek ACTPLA approval yet did not seek it. His decision to not seek ACTPLA approval is further evidence that he failed to carry out the certification correctly and properly, as the public and the Territory are entitled to expect him to do. Mr Fekete must understand that, as a certifier, he has to act professionally as he is policing projects under the Building Act and the public and the Territory are entitled to be confident that a competent person is properly carrying out these responsibilities and the public is protected.
The Tribunal has also considered, as a comparison, Harb & Anor v Commissioner for Fair Trading NSW Office of Fair Trading[25] where the applicant builders were found guilty of improper conduct in breaching the implied statutory warranty in section 18B(a) of the Home Building Act 1989 (NSW) for a significant number of minor defects which could be readily rectified. The builders had had prior occupational discipline orders made against them in relation to a matter which had post dated the work which was the subject of the present proceedings. The Administrative Decisions Tribunal issued reprimands to Steven Harb and Peter Harb and imposed a penalty of $2,000, out of a maximum $11,000[26] penalty on Peter Harb.

[25] [2007] NSWADT 175

[26] Section 62(c), Home Building Act 1989 (NSW)

In Kalantzis vCommissioner for Fair Trading, NSW Office ofFair Trading[27],

that Tribunal noted, in particular, the comments made by Peter Stubbs, Principal Building Inspector of the NSW Office ofFair Tradingon 7 March 2007 in an internal memorandum that the majority of the items are minor in nature but “go to show a lack of adequate supervision on the part of Con Kalantzis”. Further, in the first report prepared by Phillips Building Consultants and Inspectors Pty Ltd dated 31 January 2003 it was stated that there had been a lack of adequate attention to correct building practices and correct building codes along with adequate attention to details. There was no evidence before that Tribunal that the Applicant had engaged in any similar conduct. The Tribunal set aside the decision made by the Commissioner on 15 August 2007 imposing a monetary penalty and substituted that decision with a determination that the Applicant be reprimanded under section 62(c) in respect of improper conduct under section 51(c) of the Home Building Act 1989 (NSW) when he breached statutory warranty under section 18B(a) of the Home BuildingAct 1989 (NSW).

[27] [2008] NSWADT 236

The Applicant seeks that Mr Fekete be reprimanded, pay a $1,000 penalty and be suspended for a period of two months. Mr Walker submitted that the Tribunal should adopt the same penalty as the Tribunal determined in the 2012 decision, namely a reprimand and the imposition of a $1,000 penalty.

The Tribunal considers in this case that a reprimand is appropriate under section 66(2)(a) and notes that this reprimand will stay on his record.

The amount that the Tribunal may require a person to pay under section 66(2)(h) of the ACAT Act is not more than the amount prescribed by regulation. Regulation 4 of the ACT Civil and Administrative Tribunal Regulation 2009 states that the maximum amount for an individual is $1,000. In assessing a monetary penalty the Tribunal must take into account the factors set out above. The Tribunal has considered the limited evidence of the Respondent’s financial position and is satisfied for the above reasons that he should pay the penalty of $1,000 to the Territory and the payment will not cause him undue hardship.

In considering whether a period of suspension should also be imposed the Tribunal has carefully weighed up the evidence.

Mr Fekete had a prior disciplinary matter before President Peedom who, in January 2003, imposed a four month period of suspension. President Peedom referred[28] to the fact that Mr Fekete failed in such a serious manner to discharge his responsibility to exercise care in certifying the application that it gave rise to concern as to his fitness to perform the duties of a certifier. In cross examination Mr Fekete had acknowledged that he had turned a blind eye to an obviously fraudulent document. At paragraph 51 President Peedom said:

“51. I have taken account of the financial loss that the applicant would suffer by being prevented from performing his duties as a certifier. The period of suspension which I consider is appropriate to better ensure against repetition of the failures which have occurred in this case and to give greater confidence to the public that such matters are to be regarded seriously, will have a significant financial impact on the applicant but not, having regard to the extent of his remuneration as a certifier, such as to cause undue hardship. Were the Tribunal not to accept the applicant's assurance that he will take proper steps to ensure that his responsibilities for the future will be discharged with a proper standard of care a more serious penalty would be justified.”
[28] Fekete and Chief Executive of ACT Department of Urban Services [2003] ACTAAT 6 [ 50]

Mr Fekete acknowledged in cross examination in the present matter he had cut corners. While the Tribunal was not satisfied from the evidence in the present matter that Mr Fekete had turned a blind eye, nevertheless Mr Fekete frankly conceded in cross examination that he had cut corners as he was under pressure from the impact of the Stop Work Notice on the owner and builder. He approved an amended plan without first obtaining ACTPLA approval, which he also acknowledged he was required to obtain.
In his statement dated 21 January 2013, Mr Fekete stated that a suspension of his licence will have a serious impact on his business and adversely affect the interests of a great many third parties, including builders, home owners and employees. He claimed the volume of projects can only be accommodated by two surveyors. His company has about 500 active projects. He has been personally appointed as certifier of approximately 60 of these projects. There are approximately another 100 awaiting building approval.
A period of suspension would, in the Tribunal’s opinion, give greater confidence to the public that when building plans are approved and homes are being built or renovated, certifiers are required to take a professional approach and to carry out their certification correctly and properly. While there was evidence that the Applicant was at all times cooperative with authorities when the breaches were brought to his attention and he rectified them and that the buildings did not have to be pulled down and that the set back issue fell by way of concession into the category of ‘not significant matters’, the Tribunal accepts the Applicant’s submission that the central issue is the integrity of the certification process which has a public protection element in it.

Mr Archer referred the Tribunal to the recent decision of the Tribunal in Council of the Law Society of the ACT v Legal Practitioner X [29]where the point was made that the protection of the public can have a component of punishment involved. He submitted “Punishment can be a significant consideration both generally and …specifically under section 57(2)(c) because it is punishment that provides the deterrence”[30].

[29] [2012] ACAT 60

[30] Transcript, page 51 lines 18-20

In weighing the public interest the Tribunal is satisfied for the reasons set out above that a suspension of one month should be imposed. There is no retribution aspect to this penalty. The Tribunal is imposing this penalty in the interests of protecting the public.

The Tribunal noted when Mr Fekete took one month holidays in May/June 2010 Mr Thomas was working part time and Mr Fekete arranged for Mr John Bates to look after his practice. He agreed there was no reason why a similar arrangement could not be implemented if his licence was suspended; he acknowledged that he could attend to the relevant paperwork in the office during a period of suspension. Mr Thomas is now a full time employee who is able to undertake General Building Surveying up to 2000 m². For the duration of the suspension Mr Fekete may have to call upon another certifier, to assist if the work so requires.
The Tribunal accepts that Mr Fekete will suffer a financial loss by being prevented from performing his duties as a certifier, but not such as to cause him undue hardship.
The Tribunal is satisfied that a period of suspension for one month will better ensure that Mr Fekete carries out his duties and responsibilities as a certifier in a proper, professional and responsible manner. The suspension will give greater confidence to the public that these matters are taken seriously.

For these reasons, the Tribunal makes the following orders:

1. The Respondent be reprimanded.
2. The Respondent pay the amount of $1,000 to the Territory within 28 days of the date of this order.

3. The Respondent’s licence be suspended for a period of one month commencing 28 days from the date of this decision.
………………………………..
Ms E. Symons

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

PART A

FILE NUMBER:	OR 12/30
PARTIES, APPLICANT:	CONSTRUCTION OCCUPATIONS REGISTRAR
PARTIES, RESPONDENT:	JOSEPH FEKETE
COUNSEL APPEARING, APPLICANT	Mr K. Archer
COUNSEL APPEARING, RESPONDENT	Mr P. Walker
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Trinity Law
TRIBUNAL MEMBERS:	Ms E. Symons, Presidential Member
DATE OF HEARING:	20 February 2013
PLACE OF HEARING:	Canberra

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Citations

CONSTRUCTION OCCUPATIONS REGISTRAR & FEKETE (Occupational Discipline) [2013] ACAT 20

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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New South Wales Bar Association v Evatt [1968] HCA 20

Wentworth v New South Wales Bar Association [1992] HCA 24