Johnson v Building Professionals Board

[2008] NSWADT 61

CITATION:	Johnson v Building Professionals Board [2008] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Barry Johnson RESPONDENT Building Professionals Board
FILE NUMBER:	073215
HEARING DATES:	3 December 2007
SUBMISSIONS CLOSED:	3 December 2007
DATE OF DECISION:	25 February 2008
BEFORE:	O'Connor K - DCJ (President); Wren G - Non Judicial Member
CATCHWORDS:	Review of disciplinary finding and action
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997; Building Professionals Act 2005; Building Professionals Regulation 2007;Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000
CASES CITED:	Building Professionals Board v Johnson [2008] NSWADT 60; Building Professionals Branch, Department of Planning v Dwyer [2007] NSWADT 53; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
REPRESENTATION:	APPLICANT In person RESPONDENT Building Professionals Board
ORDERS:	1. Application for review dismissed. 2. Finding of unsatisfactory professional conduct affirmed. 3. Order that the Applicant be reprimanded affirmed. 4. Order that the applicant pay a fine of $7,500 within one month of receiving the notice of decision affirmed.

REASONS FOR DECISION

1 The Sydney City Council complained under the legislation then in force to the accreditation body in 2006 over the final occupation certificate issued in August 2003 by Mr Johnson as accredited certifier for a residential and commercial development at 128 Chippendale Street, Sydney. The legislation now in force is the Building Professionals Act 2005 (BP Act). The Building Professionals Board (the Board) is responsible for continuing to deal with complaints that were open before the accreditation body when the new scheme commenced: BP Act, Sch 2 cl 3. Exercising the powers conferred the BP Act, s 31(4), the Board dealt with the complaint on 8 June 2007. It found Mr Johnson guilty of unsatisfactory professional conduct and imposed a reprimand and a fine of $7,500.

2 Mr Johnson has now applied under s 33 of the BP Act to the Tribunal for review of the disciplinary finding and orders. In his application for review filed 12 July 2007 Mr Johnson contested both the finding of guilt and, if not successful on that ground, the fine (but not the reprimand).

3 The Tribunal heard the application on 3 December 2007. The Tribunal, as constituted, includes a non-judicial member knowledgeable as to the work of accredited certifiers, Mr Wren, a registered surveyor of standing.

4 The function of the Tribunal on review is to ascertain what the correct and preferable decision is in the circumstances, having regard to all relevant information: see, generally, Administrative Decisions Tribunal Act 1997, s 63. The Tribunal’s consideration is not limited to the material that was before the primary decision-maker. It may have regard to any material that is relevant at the time of the review. Further material can be introduced which was not before the primary decision-maker. See generally, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

5 Where, as in this case, the conduct under notice occurred prior to 1 March 2007, the conduct is to be assessed having regard to the definitions of ‘professional misconduct’ and ‘unsatisfactory professional conduct’ in force immediately before the repeal of the Environmental Planning and Assessment Act 1979 provisions: Building Professionals Regulation 2007 (BPR), Sch 4, cl 4.

6 The EP & Act, s 109R provided:

‘ professional misconduct , in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission):

(a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority 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, or

(b) by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited, or

(ii) any other Act or law prescribed by the regulations, or

(e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.’

7 The accreditation body undertook an inspection of the premises following receipt of the complaint. The inspector, Mr Kuman, now with the Board, was satisfied, like the Council inspector also present, that there had been no fire hose reels or portable fire extinguishers installed at the building when Mr Johnson issued the final occupation certificate. They took numerous photographs. The matter, under the procedures then in force, proceeded to the State Assessment Committee for further consideration. Mr Johnson was given the opportunity to appear. The State Assessment Committee formed the view that the allegation relating to non-installation of portable fire extinguishers was not proven, as they could have been installed at the time and since removed. Mr Johnson had asserted that he had a file note from that time recording the presence of portable fire extinguishers. The Committee found the allegation in relation to non-installation of fire hose reels established, and was of the view that Mr Johnson’s conduct might be found to amount to unsatisfactory professional conduct. Accordingly it referred the matter, giving rise to the Boards finding and order now under review.

8 Material parts of the Board’s determination follow:

‘ Allegation

Issued an occupation certificate in respect of a building, which was not fit for occupation or use in accordance with its classification under the Building Code of Australia.

Findings on material questions of fact

Mr Johnson issued Final Occupation Certificate No. BJA/OC/0314 dated 19 August 2003 in respect to a development at 128 Cleveland Street, Chippendale.

At the time of issuing the Final Occupation Certificate the building was not suitable for occupation in accordance with its classification under the BCA [Building Code of Australia] in the following respect:

- Fire hose reels had not been installed.

The Board found this allegation proven.

Evidence/other material on which the findings were based

Complaint Investigation Report prepared by Robert Kuman, Departmental investigator.

Letter from Mr Johnson dated 16 October 2006.

Minutes of the meeting of the SAC [State Assessment Committee] held on 20 October 2006.

Letter from Mr Johnson dated 26 April 2007.

Reasons for the decision

1. The Board considers that as a result of Mr Johnson's conduct there was a reduction in the available fire fighting facilities and that the safety of the occupants and users of the building would have also been reduced.

2. The Board regards Mr Johnson's failure to ensure that fire hose reels were installed by means of a proper inspection as a serious matter.

3. The Board is satisfied based on its findings on the material facts that Mr Johnson's conduct in relation to the Allegation is unsatisfactory professional conduct as defined by s.109R of the EP & A Act in that it was conduct:

occurring in connection with the exercise of his functions as a certifying authority 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 ;
and which he contravened the EP & A Act.

4. In the circumstances the Board has determined to deal with the matter under s 31(4) of the Building Professionals Act and that Mr Johnson should be:

‘Reprimanded; and

Ordered to pay a fine of $7,500 to the Board within 1 month of receiving notice of the decision.’

Tribunal Hearing

9 Mr Johnson appeared before the Tribunal without representation. Mr Matthew Wunsch, Team Leader, Complaints, at the Board gave evidence and was cross-examined. Mr Johnson gave evidence and was cross-examined. Mr Wunsch’s affidavit attached a folder of 199 pages (the Folder).

10 The Board tendered a statement that had not been presented at the disciplinary hearing: from the strata manager of the building, Peter Sawell, sworn 27 November 2007 stating that fire hose reels had not been installed as at 9 October 2003 and that they were installed in the latter part of 2006, as a result of intervention by the Sydney City Council.

11 Mr Johnson tendered a statement, unsworn and to the opposite effect, dated 27 November 2007 from Mr Chris Xistouris, Dangar Penrith Pty Ltd. Mr Xistouris said that to the best of his knowledge fire hose reels were installed prior to the issuance of the certificate of occupation on 19 August 2003. Mr Xistouris expressed the opinion that theft is a major issue in the area due to the development’s proximity to Eveleigh Street, Redfern (plainly an allusion to the Aboriginal community that lives in the ‘Block’ at Redfern). He added: ‘This is one of many theft issues we suffered in the construction process. In saying this the plumbing contract from memory did allow for the hydrant/hose reel installation.’

12 At the conclusion of the hearing the Tribunal made the following orders:

1. Finding of unsatisfactory professional conduct affirmed.

2. Order that the Applicant be reprimanded affirmed.

3. Decision reserved in respect of the order that the applicant pay a fine of $7,500 within 1 month of receiving the notice of decision.

13 These reasons for decision explain the first conclusion, and provide the decision in relation to question that was reserved.

14 Mr Wunsch at hearing took the Tribunal in detail through the Folder. The construction certificate was issued by the Sydney City Council on 27 June 2002. It attached a Schedule of Essential Fire Safety Measures. The measures listed were: automatic fire detection and alarm system; emergency lighting; exit signs; fire doors; fire hydrant systems; hose reel system; portable fire extinguishers. The minimum standards required are specified. In the instance of hose reel systems they are AS 1221, AS 1441. The builder was required to furnish to the Council on completion a Fire Safety Certificate in relation to each of the items, complying with the requirements for certificates set out in the Environmental Planning and Assessment Regulation 2000. As the principal certifying authority for the final occupation certificate, Mr Johnson issued that certificate on 19 August 2003, and attached a final Fire Safety Certificate dated 11 August 2003 which stated against the measure ‘fire hose reel system’ that the standard of performance was ‘BCA E 1.4, AS 2441 – 1998’.

15 The body corporate, as is required, appointed a qualified firm, Promaster, to undertake annual inspections to satisfy the requirement for an annual report to made to Council in relation to compliance with fire safety measures. The second annual inspection report (inspection conducted 3 May 2005) referred to the absence of hose reels. On 5 July 2005 Promaster advised the Council of the omission. It noted that its first inspection report issued at the end of the first year of occupation had been incorrect when it had recorded compliance in respect of this item.

16 The Council inspected the premises and found no hose reels installed or any portable fire extinguishers. It notified Mr Johnson of its concern by telephone on 9 September 2005 (see Folder, p 150). Mr Johnson advised he would attend to the matter, but it was not rectified promptly.

17 At hearing Mr Johnson advised that, after receiving the notice from the Council, he had pressed Mr K. Ruse to rectify the fire hose reel problem, but he had been slow to respond, and had also blamed the illness of a plumber for delay. (Mr K. Ruse was a partner of Mr Xistouris, previously mentioned. Mr Xistouris’s company, Dangar Pty Ltd, received the construction certificate and the occupation certificate. Mr Chris Xistouris, on behalf of Dangar Trust Pty Ltd, had signed the initial fire safety certificate on 11 August 2003. This certificate incorrectly stated that the fire hose reel system had been installed.)

18 On 24 April 2006 the Council lodged its complaint with the accreditation body. On 2 June 2006, as previously noted, the accreditation body conducted an inspection. Also in attendance were Mr Johnson and a Council inspector. The inspectors took measurements and took photographs (Folder 158-174). By this time a hose reel system was in place.

19 The photographic evidence clearly establishes that the fire hose reels were retro-fitted. Ordinarily the required pipe-work would emerge from under the wall render. In this instance, it is apparent that breaks have been made in smooth surfaces and piping installed on the facing side of the wall to make a best connection with pre-existing pipe work. The work depicted is quite rough and shoddy. There is damage to mortar and signs of burn marks (of the kind typical of welding).

20 The Promaster report of 2005 notes nothing to support any suggestion of theft. The photographs taken at the inspection in June 2006 point to there having been undamaged walls prior to the retro-fitting.

21 Under cross-examination, Mr Johnson acknowledged that he had no independent record to corroborate those contents of his certificate, such as the taking of photographs at the time. He said he now follows that procedure. In evidence he used the phrase ‘to the best of my knowledge’ to qualify a number of his answers. Under cross examination he said he could not remember ‘100 percent’ whether hose reels were present. He acknowledged that when he went back to the site to inspect it after receiving the complaint he saw no evidence of any damage consistent with thievery of the hose reel system. He was shown the statement from the body corporate manager, Mr Sawell, and said he could not contradict it.

22 In our view there can be no doubt that the issuance by an accredited certifier of an occupation certificate for a residential development without fire hose reels (where their provision is required) involves a serious omission. We agree with the Board’s view. The omission is one that falls short of the standard reasonably to be expected of a competent accredited certifier. In our view, Mr Johnson was fortunate to avoid a finding of professional misconduct.

23 Nonetheless Mr Johnson submitted that he had been harshly treated, as compared to the accredited certifier who was the respondent in Director, Building Professionals Branch, Department of Planning v Dwyer [2007] NSWADT 53. In that case the Tribunal found the accredited certifier guilty of unsatisfactory professional conduct, by issuing a construction certificate prior to the commencement of development consent and in excess of a condition of the development consent. He was reprimanded; and ordered to pay a fine of $5000.

24 The Tribunal in Dwyer noted that the certifier had an adverse disciplinary history, having been found guilty by the accreditation body of unsatisfactory professional conduct in relation to fire safety matters (certificate issued when insufficient fire hydrants at a commercial development, year 2000; certificate issued when fire safety measures inadequate, year 2002). In dealing with the question of penalty, the Tribunal noted that the respondent pleaded guilty and admitted all particulars. The Tribunal’s assessment of the matters the subject of charge was that they were relatively minor. In both instances the admitted errors gave rise to no actual harm. The Tribunal’s conclusions in that regard, and its view that it was unlikely that any harm could have resulted from the conduct, is explained at paras [5] to [18] of the reasons. The orders ultimately made were more severe than they otherwise might have been because of Mr Dwyer’s disciplinary history.

25 While Mr Johnson’s disciplinary history is not extensive (there is one other matter, the subject of a hearing on 28 November 2007: see Building Professionals Board v Johnson [2008] NSWADT 60), this case calls for a stronger order, we believe, than that made in Dwyer.

26 A failure to ensure that fire hose reels are in place, as required, is a significant one. The residents of the development, and other users of the premises, were because of the omission, left without protection for almost three years.

27 Moreover, Mr Johnson’s conduct in this matter has been unhelpful. He should, in our view, have acknowledged at an early stage that he had made an omission. He should not have persisted in raising as a possibility thievery when there was nothing by way of objective evidence to support such a proposition. There was, in our view, no reason to doubt the annual inspection report of May 2005.

28 In our view, Mr Johnson was being disingenuous in the extreme in maintaining after the inspection at which he was present that the hose reel system was, to the best of his recollection, in place when he issued the occupation certificate (see proceedings before State Assessment Committee p 179). He maintained this position also before the Tribunal. Mr Johnson’s hypothesis, supported by the developer that theft may have led to the removal of an installed system was equally disingenuous. The developer’s explanation included a gratuitous stigmatising statement directed at the Aboriginal community in Redfern. The presentation of that statement to the Tribunal reflects little credit on Mr Johnson.

29 The fine ($7,500) was at the lower end of a range with a maximum of $110,000. While it was higher than the fine in Dwyer, we have explained the factors there that led to the fine being set at $5000. The conduct in issue there was not as objectively grave as the omission here. There was, however, a greater adverse disciplinary history. In that case the respondent assisted the proceedings by pleading guilty.

30 In our view, the fine imposed by the Board was not excessive, and fell at an appropriate point in the range.

31 We are satisfied that the decision was the correct and preferable one.

Order

1. Application for review dismissed.

2. Finding of unsatisfactory professional conduct affirmed.

3. Order that the Applicant be reprimanded affirmed.

4. Order that the applicant pay a fine of $7,500 within one month of receiving the notice of decision affirmed.