Director, Building Professionals Branch, Department of Planning v Dwyer

The matter before the Civil and Administrative Tribunal was a dispute involving a building certifier, Mr. Dwyer, who was accused of issuing a construction certificate in contravention of the Environmental Planning and Assessment Act. The Director, Building Professionals Branch, Department of Planning, brought the proceedings against Mr. Dwyer, alleging professional misconduct and unsatisfactory professional conduct. The Tribunal was required to determine whether Mr. Dwyer had indeed engaged in professional misconduct and unsatisfactory professional conduct, and if so, what penalties should be imposed.

The primary legal issue before the Tribunal was whether Mr. Dwyer's actions constituted unsatisfactory professional conduct, as defined in the Building Professionals Registration Act. The Tribunal considered whether Mr. Dwyer's issuance of a construction certificate before the commencement of development consent and in excess of a condition of the development consent demonstrated a deficiency in his professional competence, reliability, or diligence, or involved a breach of a relevant building law. The Tribunal also examined whether Mr. Dwyer's conduct constituted professional misconduct, which is defined as unsatisfactory professional conduct that is of a higher degree of seriousness.

The Tribunal found that Mr. Dwyer's actions did constitute unsatisfactory professional conduct. In reaching this conclusion, the Tribunal noted that Mr. Dwyer had issued the construction certificate without ensuring that all conditions of the development consent had been met, and without verifying that the relevant building work was in compliance with the relevant building laws. The Tribunal found that this conduct demonstrated a deficiency in Mr. Dwyer's professional competence, reliability, and diligence. However, the Tribunal did not find that Mr. Dwyer's conduct constituted professional misconduct, as it did not reach the higher degree of seriousness required for that offence. The Tribunal ordered that Mr. Dwyer be reprimanded and fined $5000.