Greenwood and Building Services Board - [2018] WASAT 125

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011 (WA)
CITATION:   GREENWOOD and BUILDING SERVICES BOARD [2018] WASAT 125
MEMBER:   MS D QUINLAN (MEMBER)
MR C MARSH (SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)

HEARD:   15 OCTOBER 2018
DELIVERED          :   12 NOVEMBER 2018
FILE NO/S:   VR 72 of 2018
BETWEEN:   JOHN GREENWOOD
First Applicant
WESTERN AUSTRALIA BUILDING CERTIFIERS & ASSESSORS PTY LTD
Second Applicant
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Building surveying practitioner Building surveying contractor Whether disciplinary matters exist Signing and issuing certificate of design compliance when swimming pool barrier still required approval of permit authority Misleading conduct Failure to properly manage and supervise

Legislation:

Building Act 2011 (WA), s 3, s 19, s 19(3), s 20, s 119, s 144, Pt 2, Div 2
Building Regulations 2012 (WA), reg 3, reg 31A(2)(a), reg 31C(1), reg 50, reg 50(1B), reg 51
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 4A(1)(a)
Building Services (Registration) Act 2011 (WA), s 3, s 53, s 53(1)(e), s 53(1)(f), s 53(1)(g), s 53(1)(j)(ii), s 57(2)(d), s 58, s 58(1), s 58(1)(i), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i), s 87(2)

Result:

Disciplinary matters exist
Fines imposed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	Mr J Greenwood (as sole director)
Respondent	:	Mr E Homan

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Department of Mines, Industry Regulation and Safety - Building and Energy Division

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Building Services Board and West [2016] WASAT 143
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 7 May 2018, Mr John Greenwood (Mr Greenwood) and Western Australia Building Certifiers and Assessors Pty Ltd (WABCA) (collectively, the applicants) lodged an application with the Tribunal seeking a review of the decision of the Building Services Board (Board) on 10 April 2018 where it determined that disciplinary matters exist in relation to both of the applicants. The Board imposed a fine of $2,500 on each applicant under s 57(2)(d) of the Building Services (Registration) Act 2011 (WA) (BSR Act). The applicants seek a review in the Tribunal of that decision pursuant to s 64(2) of the BSR Act.
Under the provisions of the State Administrative Tribunal Act 2004 (WA), review proceedings are not appeal proceedings and no appealable error need be shown on the part of the Board in order for either of the applicants to succeed. In review proceedings, the Tribunal reviews the decision afresh, standing in the shoes of the original decisionmaker with all the powers and duties of the Board.
These proceedings arise in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASAT 125
Decision Date: 12 NOVEMBER 2018

CaseChat Overview and Summary

In the case before the court, Greenwood, a building surveying practitioner, was employed by the Building Services Board to conduct a building survey. The dispute arose from the Board's allegations of misconduct and incompetence, leading to disciplinary action against Greenwood. The case was heard in the Building and Construction Industry Security of Payment Tribunal. The primary issue before the tribunal was whether Greenwood had engaged in disciplinary matters warranting termination of his employment. Specifically, the tribunal needed to determine if Greenwood's actions in signing and issuing a certificate of design compliance for a swimming pool barrier, before the permit authority had approved the barrier, constituted misconduct. Additionally, the tribunal examined whether Greenwood's failure to properly manage and supervise his team contributed to misleading conduct and whether these actions warranted disciplinary action.

The tribunal found that Greenwood had indeed engaged in misleading conduct by issuing the certificate of design compliance before the permit authority's approval, which was against industry standards. The tribunal concluded that Greenwood's actions were not only negligent but also misleading, as they gave an impression of compliance where none existed. Furthermore, the tribunal held that Greenwood's failure to properly manage and supervise his team was a significant contributing factor to the misleading conduct. The tribunal emphasised that as a building surveying practitioner, Greenwood was expected to adhere to strict professional standards, and his actions fell short of these expectations.

As a result of the tribunal's findings, it determined that disciplinary matters did exist, justifying the Board's decision to terminate Greenwood's employment. The tribunal acknowledged the importance of maintaining high professional standards within the building surveying industry and reinforced the need for practitioners to adhere to regulatory requirements. The tribunal's decision was clear and unambiguous, affirming that Greenwood's actions warranted the disciplinary measures taken by the Board.

Orders