McGufficke v Building Professionals Board

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McGufficke v Building Professionals Board [2013] NSWADT 296
Hearing dates:	29 November 2013
Decision date:	20 December 2013
Jurisdiction:	General Division
Before:	Judge K P O'Connor, President P Friedmann, Non-judicial Member
Decision:	The decision of the Board is affirmed.
Catchwords:	PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - Board finding of unsatisfactory professional conduct - those allegations found proven - orders of reprimand and fine - decision of Board affirmed: Building Professionals Act 2005, s 19
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181 Bennett v Building Professionals Board (No 2) [2011] NSWADT 238 Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; (1998) 194 CLR 355
Category:	Principal judgment
Parties:	Scott McGufficke (Applicant) Building Professionals Board (Respondent)
Representation:	Counsel C O'Neill (Applicant) J Callaghan, Lee & Lyons (Applicant) A Grey, Building Professionals Board (Respondent)
File Number(s):	133221

reasons for decision

1. This is a review application brought by Mr Scott McGufficke, an accredited certifier. He holds a Category A2 accreditation, with conditions, registration no BPB 0083. He is director of the business, AcroCert Pty Ltd, based at Maitland NSW.

1. The Building Professionals Board has taken disciplinary action against him pursuant to s 31 of the Building Professionals Act 2005 (the BP Act).

1. On 23 May 2013, the Board found proven all three allegations made against him in relation to the issuance of a construction certificate (the first two allegations) and the issuance of a final occupation certificate (the third allegation). It found him guilty of unsatisfactory professional conduct within the meaning of s 19 of the BP Act, and imposed a reprimand and a fine of $13,000.

1. On 23 July 2013 he applied under s 33 of the BP Act to the Tribunal for review of the determination. The Tribunal's powers are conferred by the Administrative Decisions Tribunal Act 1997 (ADT Act), the primary provision being s 63. It provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in…