Executive Director of the Office of the Director General of the Department of Infrastructure, Planning and Natural Resources v Walters

[2005] NSWADT 144

CITATION:	Executive Director of the Office of the Director General of the Department of Infrastructure, Planning and Natural Resources v Walters [2005] NSWADT 144
DIVISION:	General Division
PARTIES:	APPLICANT Executive Director of the Office of the Director General of the Department of Infrastructure, Planning and Natural Resources RESPONDENT Glen Walters
FILE NUMBER:	053181 & 053193
HEARING DATES:	24/06/2005
SUBMISSIONS CLOSED:	06/24/2005
DATE OF DECISION:	06/29/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Environmental Planning and Assessment Act - Accredited Certifier - professional misconduct - Environmental Planning and Assessment Act - Accredited Certifier - unsatisfactory professional conduct
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Legal Profession Act 1987
CASES CITED:	New South Wales Bar Association v LI [2005] NSWADT 15 Veterinary Surgeons Investigating Committee -v- Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [ 2004] NSWADT 208
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT No appearance
ORDERS:	1. That the respondent’s accreditation as an accredited certifier be withdrawn on 1 November 2005; 2. The respondent cannot re-apply for accreditation by any accreditation body within a period of three years from 1 November 2005.

1 The Department of Infrastructure, Planning and Natural Resources filed two applications in the Tribunal against Mr Walters, an accredited certifier. Those applications sought disciplinary findings against Mr Walters pursuant to s 109ZA of the Environmental Planning and Assessment Act 1979 (the Act). Before those applications were listed before the Tribunal, the Department requested that the Tribunal make consent orders under s 86(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The agreed orders were:

That the respondent’s accreditation as an accredited certifier be withdrawn on 1 November 2005.

The respondent cannot re-apply for accreditation by any accreditation body within a period of three years from 1 November 2005.

2 Mr Grey, representing the Department, explained that the reason the withdrawal does not commence until 1 November 2005 is that Mr Walters’ current accreditation expires on that date. The Department has already imposed conditions on Mr Walters’ accreditation which prevent him from entering into any new contracts for the provision of services as an accredited certifier and restrict his activities to completing his current commitments in relation to single dwellings. The conditions also prevent him from continuing to act as an accredited certifier in relation to properties including shops, factories and apartments.

3 When the Tribunal received the request to make these orders, the Registrar raised some concerns with the Department about the Tribunal’s power to do so. At a case conference to deal with that issue Mr Grey provided some helpful submissions which expressed the view that the Tribunal did have power to make the consent orders sought by the parties. Mr Walters did not attend but wrote to the Tribunal asking to be excused.

Issue

4 The issue is whether the Tribunal has jurisdiction to make the consent orders set out at in [1] above. If the Tribunal does have jurisdiction, should it make the orders sought?

Background

5 The Department received complaints from two separate Councils stating that Mr Walters was guilty of unsatisfactory professional conduct or professional misconduct. Under s 109V(1) of the Act, the Department is required to conduct an investigation into each complaint made to it. An investigation was conducted into each of the complaints and the Department subsequently applied to the Tribunal for disciplinary findings against Mr Walters: s 109Z(1) and (2). Section 109ZA requires the Tribunal to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct. If either finding is made, the Tribunal may make certain decisions including cautioning or reprimanding the accredited certifier or withdrawing the accredited certifier’s accreditation. If the Tribunal withdraws the accreditation it may also order that he or she cannot re-apply for accreditation within a specified period: s 109ZA.

Section 86

6 The parties have asked the Tribunal to make consent orders under s 86 of the ADT Act. That section states that:

(1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:
(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement, and

(c) the Tribunal is satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Tribunal to be paramount.

(2) The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that:
(a) it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement, or

(b) the agreed settlement is in the best interests of the person whose interests it considers paramount.

(3) Nothing in this section affects:
(a) the power of the Tribunal, a member or an assessor to make a determination under section 74 to which the parties to the proceedings concerned agree, or

(b) the power of the Tribunal to make any order under section 105 giving effect to any agreement or arrangement arising out of a mediation session under Part 4.

7 According to Mr Grey, each of the requirements in s 86 has been complied with in this case. The terms of the agreed settlement have been reduced to writing and have been signed by each of the parties. Mr Grey says that the Tribunal has the power to make a decision in terms of the agreed settlement because the withdrawal of accreditation and the order preventing Mr Walters from re-applying for 3 years, are both matters about which the Tribunal can make a decision under s 109ZA(2) of the Act. In a contested hearing it would be necessary for the Tribunal to first make a finding of unsatisfactory professional conduct or professional misconduct. Mr Grey submitted that where the parties consent, the Tribunal may make a decision to give effect to their agreement without having made such a finding. I agree with that proposition.

8 The situation in this case can be contrasted with two other cases involving an agreement between the parties in professional discipline cases. In the first matter, Veterinary Surgeons Investigating Committee -v- Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [ 2004] NSWADT 208, the parties came to an agreement about the penalty that should be imposed on Dr Lloyd following the Tribunal’s finding that he was guilty of professional misconduct. The applicant in that case recommended that Dr Lloyd be reprimanded and that his practice be subject to certain conditions. Dr Lloyd agreed with that recommendation. The Tribunal indicated that it was not comfortable with that course and instead suspended Dr Lloyd from practice for nine months.

9 In the second case, New South Wales Bar Association v LI [2005] NSWADT 15 the Tribunal, the New South Wales Bar Association had filed an information in which it claimed that the respondent, a barrister, was guilty of unsatisfactory professional conduct. Subsequently, the Bar Association applied for the information to be withdrawn and the proceedings dismissed by consent. Since the filing of the information the Bar Association had reconsidered the matter and decided that the appropriate way of dealing with the barrister’s conduct was by way of reprimand by the President of the Council of the NSW Bar Association and the barrister tendering a written apology to the complainants. They were not orders that the Tribunal could make so the Bar Association applied for the information to be withdrawn. The Tribunal concluded that the ADT Act does not give a right to the Bar Association to withdraw an information that has been laid pursuant to the obligations set out in s 155(2) of the Legal Profession Act 1987. In neither of these cases did the parties make an application under s 86 of the Act and the decisions in those cases can be distinguished on that basis.

10 All that remains is that the Tribunal be satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Tribunal to be paramount: s 86(1)(c). This provision prevents parties from agreeing to orders which, for example, are not in the best interests of a child or a person with a disability, where that person’s interests are paramount. In this case, the paramount interest is the public interest and the Tribunal must be satisfied that the consent orders are in the best interests of the public. I have reviewed the complaints against Mr Walters and am satisfied that the consent orders are in the public interest.

Orders

1. That the respondent’s accreditation as an accredited certifier be withdrawn on 1 November 2005.

2. The respondent cannot re-apply for accreditation by any accreditation body within a period of three years from 1 November 2005.