Minister for Infrastructure and Planning v Conway

[2004] NSWADT 68

CITATION:	Minister for Infrastructure and Planning -v- Conway [2004] NSWADT 68
DIVISION:	General Division
PARTIES:	APPLICANT Minister for Infrastructure and Planning RESPONDENT Bradley Conway
FILE NUMBER:	033215
HEARING DATES:	25/02/2004
SUBMISSIONS CLOSED:	03/19/2004
DATE OF DECISION:	04/08/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Wren G - Non Judicial Member
APPLICATION:	Bias - Costs - Jurisdiction
MATTER FOR DECISION:	Preliminary mattters
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Veterinary Surgeons Act 1986
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Gelderman -v- Veterinary Surgeons Investigating Committee (VSIC) (GD) [2001] NSWADTAP 27 Burton v Anderson, unreported (Court of Appeal, CA 40030/92, 28 October 1994) Vakauta v Kelly (1988) 13 NSWLR 502 R v Lilydale Deputy Presidents' Court, ex party Ciccone [1073] VR 122 Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy (No. 2) [2000] NSWADT 4 Bank of NSW v Commonwealth (1948) 76 CLR 1 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 36 Mills v Meeking (1990) 91 ALR 16 Murray v Legal Services Commissioner [1999] 46 NSWLR 224
REPRESENTATION:	APPLICANT M Leeming, barrister RESPONDENT P McEwen SC with J Whyte, barristers
ORDERS:	1. Application for disqualification on ground of apprehended bias is dismissed; 2. Application for costs by Minister for Infrastructure and Planning is dismissed; 3. Both Mr Conway's applications in relation to restrictions on the Tribunal's jurisdiction are dismissed.

REASONS FOR DECISION

Introduction

1 This is an application by Bradley Conway, the respondent in the substantive proceedings, for me to disqualify the presiding member, Deputy President Nancy Hennessy, from hearing this case on the ground of apprehended bias. As Mr Conway’s legal representatives also raised two jurisdictional issues, the parties agreed that if the bias application was dismissed the Tribunal should go on to determine the jurisdictional issues “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

2 Under s 109Z(3) of the Environmental Planning and Assessment Act 1979 (the EP & A Act) the Minster for Infrastructure and Planning (the Minister) has instituted proceedings against Mr Conway with respect to a complaint made against him in his capacity as an accredited certifier. If the Tribunal finds that Mr Conway is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make one or more disciplinary orders against him. The terms “unsatisfactory professional conduct” and “professional misconduct” are defined in 109R. Professional misconduct is unsatisfactory professional conduct, which is serious enough to justify suspension or withdrawal of the accredited certifier’s accreditation.

Evidence of apprehended bias

3 Mr Conway gave evidence that in September or October 2003, he attended a Directions Hearing with his then solicitor, Mr Kim Lovegrove. Mr Conway said that he recalled that Mr Lovegrove was addressing the Bench about a case involving the Immigration Department on the issue of procedural fairness. He then recalls that I said words to the effect of:

We want to run the case. It is a test case and we don’t want any behind the scenes deals being made.
4 Mr Conway said that he recalled being very concerned that there was not going to be a fair trial because the Tribunal seemed intent on proceeding with the case, irrespective of the representations that might be put before them by either party. The directions hearing was not recorded.

5 Ms Julie Burton, a solicitor employed by the Crown Solicitor who is acting for the Minister, swore an affidavit which attached a copy of two sets of notes made at the Directions Hearing - one prepared by Raoul Salpeter, the solicitor who formerly had carriage of the matter, and one from Madeleine Thomas, legal officer with the Department of Infrastructure, Planning and Natural Resources (the Department). Relevantly, in Mr Saltpeter’s notes, the following appears:

KL: Plea. Then just hearing on penalty

NH: open to discussion extent reg can agree with AC. ADT must make determination. No longer up to Conway.

KL: 1996 Northern Territory Building Surveyor. Admit guilt and hearing goes to penalty.

NH: amend reply and then only question will be penalty – open to AC to amend reply.

6 KL is a reference to Kim Lovegrove and NH a reference to Deputy President Nancy Hennessy. AC is short for “accredited certifier” and ADT refers to the Administrative Decisions Tribunal.

Findings in relation to what was said

7 The only evidence in support of the assertion that Deputy President Hennessy said words to the effect of those stated in Mr Conway’s affidavit is the affidavit itself. Neither Mr Saltpeter’s notes, nor Ms Thomas’ notes record the statement attributed to the Deputy President by Mr Conway. Mr Saltpeter’s notes state that she said, “ADT must make determination.” The Minister submitted that Mr Conway’s evidence is not the best evidence because as a lay person he is not familiar with the processes of the Tribunal, his evidence was vague and it was given five months after the event. In addition, no evidence was adduced from Mr Lovegrove. On those grounds the Minister submitted that I should find that no such statement was made.

8 Five months after the event, Mr Conway cannot be expected to recall word for word what was said in a Tribunal Directions Hearing. While the notes prepared by Ms Thomas and Mr Saltpeter do not record the words attributed to Deputy President Hennessy by Mr Conway, they are not inconsistent with such a comment having being made. Mr Saltpeter’s notes record that there was a discussion about Mr Conway entering a plea and the hearing proceeding on the basis of penalty only. Mr Saltpeter also recorded that Deputy President Hennessy said words to the effect that the extent to which the Regulator could agree with the accredited certifier was open to discussion. Finally, Mr Saltpeter recorded that Deputy President Hennessy said words to the effect that the Tribunal must make the determination. On the basis of all the evidence we find that in the context of a discussion about Mr Conway coming to an agreement with the Minister about the extent of his culpability, Deputy President Hennessy said the words attributed to her by Mr Conway. We also find, in accordance with Mr Saltpeter’s notes, that she said words to the effect that Mr Conway could amend his reply and then the only question for the Tribunal would be penalty.

Test for disqualification for bias

9 The High Court recently restated the test for disqualification for apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277. Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6] and [8]:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement, which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

...

The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." [citations omitted]

10 On the basis of this authority, three questions arise:

· what is it that might lead the Tribunal to decide the case other than on its legal and factual merits;

· is there a logical connection between the matter and the feared deviation from the course of deciding the case on its merits;

· has the failure to take objection for bias at an early time waived any right to rely on an allegation of apprehended bias?

11 Mr Conway’s submission was that by saying the words attributed to it, the Tribunal exhibited a keenness or desire to see the prosecution continue for both unsatisfactory professional conduct and professional misconduct. This was despite the fact that it was open to the Minister and Mr Conway to agree that a plea to the lesser matter was acceptable. According to Mr Conway’s representative, that keenness or desire allows the Tribunal to be seen to be getting into the arena, and taking over part of the role of the Minister as applicant and prosecutor, rather than staying aloof and remote from the arena.

12 The “keenness” or “desire” referred to by Mr Conway’s representative relates to the determination of the question of whether Mr Conway is guilty of unsatisfactory professional conduct or professional misconduct. Such a keenness or desire cannot lead the Tribunal to decide the case other than on its legal and factual merits because it is the Tribunal’s statutory responsibility to determine that question. Section 109ZA(1) of the EP & A Act states that:

If an application is made to the Tribunal under section 109Z or 118Q for a disciplinary finding in relation to an accredited certifier, the Tribunal is to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct.
13 In this case an application was made under s 109Z. The responsibilities of an accrediting body following investigation of a complaint are set out in that section. The accrediting body has a discretion to apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier. If the accrediting body is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct, it must apply to the Tribunal for a disciplinary finding against an accredited certifier. However, in circumstances where the accrediting body is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the accreditation body has a discretion not to refer the matter to the Tribunal but to administer its own disciplinary penalty, with the consent of the accredited certifier.

14 In this case, the Minister’s application to the Tribunal requested that the Tribunal make a finding of unsatisfactory professional conduct or professional misconduct in respect of certain specified matters. The submission by Mr Conway’s representative that it is open to the Minister and Mr Conway to agree that a plea to the lesser matter was acceptable is not correct. After the Minister has instituted proceedings in the Tribunal pursuant to s 109Z, he or she cannot come to an agreement with the respondent that the conduct is not serious enough to amount to professional misconduct. The legislation described above makes it clear that once the Tribunal is seized of the matter, it is up to the Tribunal, and not the parties, to determine whether the alleged conduct amounts to unsatisfactory professional conduct or professional misconduct

15 The Appeal Panel dealt with an analogous situation in Gelderman -v- Veterinary Surgeons Investigating Committee (VSIC) (GD) [2001] NSWADTAP 27. In that case the parties made joint submissions as to the recommended penalty in disciplinary proceedings against a veterinarian. The parties recommended a fine of $5000 in addition to the payment of the VSIC's costs. The parties nevertheless acknowledged that the recommendation could not bind the Tribunal in the discharge of its function under the Veterinary Surgeons Act 1986. Similarly, in Burton v Anderson, unreported (Court of Appeal, CA 40030/92, 28 October 1994) Priestly JA (with whom Handley JA agreed) noted that even where orders in relation to penalty had been agreed between the parties, “It is this court which will have decided the matter and implemented the orders suggested by the parties because this court thinks they are appropriate.”

16 It is open to Mr Conway to agree with the Minister that he is guilty of unsatisfactory professional conduct, but not professional misconduct. That could be done by amending his Reply. But unless the Minister withdraws the application in its entirety, the Tribunal is bound to determine whether the alleged conduct occurred and if so, whether that conduct amounts to unsatisfactory professional conduct or professional misconduct. The Tribunal must then go on to determine the appropriate penalty, if any.

17 Consequently, any “desire” or “keenness” exhibited by the Tribunal is merely a desire or keenness to exercise its jurisdiction and could not lead it to decide the case other than on its legal and factual merits. In those circumstances there is no logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Consequently the application for disqualification on the grounds of apprehended bias is dismissed.

Waiver

18 The Minister’s alternative submission was that Mr Conway has waived any right he might once have had to complain of something said at a Directions Hearing. We will deal with this submission in case our findings in relation to apprehended bias are found to be wrong.

19 The circumstances of this case are that Mr Conway had the benefit of legal advice and representation at all material times, yet he did not bring the application for disqualification on the ground of apprehended bias for five months after the Directions Hearing. The application was made on the first day of the hearing which had previously been adjourned on his application. Two further adjournment applications had been made, one of which was successful, the other unsuccessful.

20 The principle in relation to waiver is set out in Vakauta v Kelly (1988) 13 NSWLR 502 where McHugh JA said at 528 that:

If, with knowledge of the circumstances and his right to object, a party or his legal representative permits the case to continue for a period before taking objection, he may be held to have waived his right to have the case determined by an impartial adjudicator. Whether or not a party who has delayed in making an objection has waived his right will depend on all the circumstances of the case. They will include the nature of the disqualifying factor, the extent of any financial or other prejudice to the other party if the hearing is terminated, the reason for delaying the objection, and the period for which the hearing has continued since the objecting party became aware of his right to object.
21 Another relevant case is R v Lilydale Deputy Presidents’ Court, ex party Ciccone [1973] VR 122 where the party concerned failed to immediately raise an objection to a Deputy President sharing a car with one party’s counsel on the way to a view. The Supreme Court of Victoria (McInerney J) held that as the party raising the objection had subsequently taken an active part in the proceedings, he had waived his right to object.

22 Mr Conway’s representative submitted that the waiver principle only applies where the basis for seeking the disqualification is known to the party or his legal representative, but the matter proceeds to a decision without the point having been made. According to Mr Conway’s representative, since the Tribunal has not made a decision on the substantive issues, it cannot be said that the matter had been allowed to proceed to a decision.

23 This submission does not accord with the comments of McHugh JA set out above. All the circumstances of the case must be taken into account in determining whether any right to object on the ground of apprehended bias has been waived. In this case the nature of the disqualifying factor, according to Mr Conway, is a “keenness” or “desire” to hear the case and taking over part of the role of the Minister. There would be no prejudice to the Minister if the hearing is terminated, because another Tribunal Member could hear the case. The reason for not making the objection immediately was that Mr Conway did not tell his current solicitors about the Tribunal’s comments until the afternoon before the first hearing date.

24 As Mr Conway was legally represented at the Directions Hearing, we find that Mr Lovegrove had knowledge of the comments made by the Tribunal Member. As a qualified legal practitioner we find that he knew of his right to object if he considered it appropriate. If Mr Conway was “very concerned” about the comments, as reported in his affidavit, then he could have raised the matter with his solicitor at the time.

25 The final factor mentioned by McHugh JA is the period for which the hearing has continued since the objecting party became aware of his right to object. In this case there has been a delay of five months. During that period Mr Conway’s new lawyers have objected to a summons to produce certain documents and have applied on two occasions for the hearing to be adjourned. Even if Mr Conway only raised the matter with his new solicitors on the afternoon prior to the first hearing date, that does not explain Mr Lovegrove’s failure to object or Mr Conway’s failure to raise the matter with either Mr Lovegrove or his present solicitors during the five months since the Directions Hearing. Taking into account all the relevant circumstances, I agree with the Minister’s submission that Mr Conway has waived any right he might once have had to complain of something said at a Directions Hearing on 16 September 2003.

Costs application

26 The Minister applied for costs in relation to Mr Conway’s application for the Tribunal to disqualify itself on the grounds of apprehended bias. Under s 109ZB of the E P & A Act, the Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) in respect of proceedings commenced by an application made under Part 4B Division 3 of that Act. Under s 88 of the ADT Act, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

27 The Minister submitted that there were two special circumstances in this case. The first was the failure of Mr Conway to give any warning of the application to the Tribunal or the applicant before making the application. The second was the failure of Mr Conway to provide any evidentiary basis for the application leading to an application to adjourn the application in a futile attempt to determine whether a transcript was available. According to the Minister that inquiry should have been made prior to the application.

28 The “normal” rule in relation to costs of Tribunal proceedings is that parties meet their own costs. (Mangoplah Pastoral Company Pty Ltd -v- Great Southern Energy (No. 2) [2000] NSWADT 4 at [5]). Unlike the usual costs rule in courts, a successful outcome does not warrant an award of costs.

29 The failure of Mr Conway to give any warning of the application to the Tribunal or the applicant, while not the ideal situation, did not mean that the Minister suffered a costs penalty. If the Minister had been given notice of the application, his representative would have been in a position to prepare oral or written submissions prior to that application being heard. Because the Minister did not have notice of the application, those submissions had to be prepared after the application was made. Either way, the Minister’s costs would have been similar, if not the same.

30 In relation to the Minister’s second point, Mr Conway did provide an evidentiary basis for his application, namely an affidavit setting out the words he attributed to Deputy President Hennessy. While it is true that the proceedings were adjourned in an attempt to obtain a written transcript, which it was ultimately found did not exist, the proceedings would have been adjourned anyway, in order for the Minister to make written submissions.

31 In our view neither of the matters put forward by the Minister’s representative constitute special circumstances justifying an award of costs, and the application for costs is dismissed.

Jurisdiction

32 The applications in relation to jurisdiction have two limbs. The first is that the complaint which is the basis for the application to the Tribunal is confined to the issuing of an Occupation Certificate by Mr Conway. According to Mr Conway’s representative, the Tribunal’s jurisdiction does not encompass the issuing of a Construction Certificate some months earlier. The second limb of Mr Conway’s application was that the Tribunal’s jurisdiction is limited to making a finding of unsatisfactory professional conduct.

Scope of the complaint

33 Section 109ZA of the E P & A Act gives the Tribunal power to determine whether or not an accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct after an application has been made to it for a disciplinary finding. In this case, an accreditation body made such an application pursuant to s 109Z after it had completed an investigation into a complaint against Mr Conway. Section 109Z(1) provides that:

After an accreditation body has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section. (Emphasis added)
34 Section 109Z(2) allows the accredited body to “. . . apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier.” (Emphasis added.) According to Mr Conway’s representative, the springboard for any investigation and then institution of proceedings in the Tribunal is an initial complaint or complaints. In this case that complaint is allegedly the letter written to the Australian Institute of Building Surveyors by Mr John Kass, Director, City Development with Sydney City Council on 15 February 2001. Because that letter lodged a complaint under s 109V of the E P & A Act against Mr Conway “in relation to the issue of an Occupation Certificate dated 1 December 2000 . . .” the submission is that the Tribunal is confined to considering that matter alone.

35 The Minister argued firstly that the complaint was not just the original letter but all the material attached to that letter, and forwarded to Mr Conway on 15 February 2001. Secondly, the words “with respect to” in s 109Z(2) mean that the complaint comprises all the material that is relevant to or connected with the complaint. The Minister quoted constitutional law cases where the phrase “with respect to” in s 51 of The Constitution has been given a broad interpretation. (Bank of NSW V Commonwealth (1948) 76 CLR 1 at 186, per Latham CJ; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 36 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ.) Using the interpretation of “with respect to” in these cases as an analogy, the Minister submitted that the power under s 109Z(2) is very broad and that all that is required is a relevance to or connection with the complaint.

36 The facts are not in dispute. The letter of complaint dated 15 February 2001 states that “This complaint is lodged in relation to the issue of an Occupation Certificate dated 1 December 2000 by Bradley Conway of Advanced BCA Solutions (BSAP No 6062) for the subject address.” The letter goes on to note that “A Statutory Declaration and supporting documents are attached in support of this complaint.” The declaration, sworn by Trevor Dartnell, a Specialist Building Surveyor, refers to the fact that a Construction Certificate was issued by Mr Conway on 19 October 2000. The declaration records that “No alternative solutions were attached to the Construction Certificate.” We understand Mr Dartnell to be referring to alternative solutions in relation to fire safety. Both the Construction Certificate and the Occupation Certificate were attached to the statutory declaration.

37 On 26 February 2001 the accreditation body wrote to Mr Conway advising him of the complaint. That letter stated, among other things, that:

The Building Surveyors and Allied Professions Accreditation Board Inc is in receipt of a Statutory Declaration under the New South Wales Oaths Act 1990 that provides details of a complaint against you in regard to development undertaken at 16-18 Quay Street . . .
38 The letter enclosed a copy of the statutory declaration and the supporting documents and invited Mr Conway to make representations in writing in respect of the “complaints raised”. When Mr Conway responded on 16 March 2001 he characterised the complaint as “non-compliance with Condition 17 of the Development Consent . . .” His response concluded that “In summary, we agree with Council that we have not complied with Council’s development consent.”

39 On 9 August 2002 Lee Miller of Planning NSW completed an Interim Report in which he described the complaint as follows:

The complaint is based on the allegation that the conditions attached to the development consent had not been complied with at the time that the occupation certificate was issued.
40 Similarly, when Alan Horst from the Department wrote to Mr Conway on 25 September 2002, he noted that the complaint concerned “your conduct in relation to the issue of an occupation certificate on 1 December 2000.”

41 On 14 October 2002, Mr Conway wrote to the Department noting that:

Since the issue of the Construction Certificate (October 2000), DUAP/Planning NSW have issued correspondence advising accredited certifiers that s 96(q)(a) amendment had to be issued for these sort of condition variation of which I have now taken on board and abide by.
42 In the report by the Complaints Review Committee dated 17 October 2002 the nature of the complaint is described as follows:
City of Sydney Council submitted a letter and accompanying statutory declaration both dated 15 February 2001 making a complaint in relation to the issue of an occupation certificate dated 1 December 2000 by Bradley Conway . . .
43 The body of the report deals in detail with an accredited certifier’s obligations when issuing a construction certificate and an occupation certificate. Two of the conclusions in that report are that Mr Conway:
Issued a construction certificate for a building the design and construction of which were inconsistent with the development consent, due to non-compliance with condition 17 of that consent;

Issued an occupation certificate when construction was not consistent with development consent;

44 The final Recommendation Report to the State Assessment Committee dated 5 March 2003, described the complaint in a similar way and came to the same conclusions as those set out above. The “essence of the allegation” against Mr Conway is described in this report as “that he issued a construction certificate and an occupation certificate although a condition of the development consent had not been satisfied.”

Tribunal’s reasoning and conclusion on scope of the complaint.

45 The question for the Tribunal is one of statutory construction. What does the word “complaint” mean in the context in which it appears in s 109Z(1) and (2)? “Complaint” is defined in the Macquarie Dictionary 2nd ed, Macquarie Library, to mean “an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding” or “Law (in certain jurisdictions) the means by which various civil matters are initiated.” Those definitions are not particularly helpful in the context of this case.

46 Section 33 of the Interpretation Act 1987 obliges the Appeal Panel to take a purposive approach to statutory interpretation. Section 33 provides that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
47 We must consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction that is consistent with the purpose of the legislation should be preferred. ( Mills v Meeking (1990) 91 ALR 16 at 30-31.)

48 The objects of the E P & A Act are set out in s 5. They include:

the promotion and co-ordination of the orderly and economic use and development of land
49 Part 4B of Division 3 of the E P & A Act makes provision for disciplinary action to be taken against accredited certifiers in relation to unsatisfactory professional conduct or professional misconduct. The Division requires the accreditation body to inform the accredited certifier of the nature of the complaint and give him or her the opportunity to respond to the complaint. (s 109V(4)) With certain qualifications, that Division requires the accreditation body to investigate each complaint made to it. (s 109W(1)).

50 The Division also allows the accreditation body to deal with a matter in its investigation if it appears that another complaint could have been made about that matter. Section 109W(3) states that:

If during an investigation of any one or more complaints it appears to an accreditation body that there is matter in respect of which another complaint could have been made against the accredited certifier concerned, the accreditation body may deal with the matter in its investigation as if a complaint had been made about it under section 109V.
51 Under s 109W(2) the accreditation body may deal with one or more complaints about an accredited certifier in an investigation.

52 The purpose of the disciplinary provisions in the E P & A Act is to protect the public against the consequences of unsatisfactory professional conduct (which includes professional misconduct) on the part of accredited certifiers. That purpose suggests that the word “complaint” should be interpreted broadly, rather than narrowly, subject to procedural fairness requirements. In this case the procedural fairness requirements were met by the accreditation body. It provided both the letter of complaint and the accompanying statutory declaration to Mr Conway. The statutory declaration noted that “No alternative solutions were attached to the Construction Certificate.” Mr Conway responded to the complaint including to the assertion that the issuing of the Construction Certificate was not consistent with the development consent. Mr Conway was on notice that there were problems with the issuing of the Construction Certificate. He was not denied procedural fairness in relation to that matter. (Cf Murray v Legal Services Commissioner [1999] 46 NSWLR 224.)

53 In our view, given the context in which the word “complaint” appears, the purpose of the legislation and the plain and ordinary meaning of the word “complaint”, the Tribunal should interpret that word to include the material in the statutory declaration accompanying the letter. Consequently, the Tribunal has jurisdiction to determine whether Mr Conway has engaged in unsatisfactory professional conduct (which includes professional misconduct) in relation to the issuing of both the Construction Certificate and the Occupation Certificate. Even if this is not correct and the initial complaint was confined to the issuing of the Occupation Certificate, the accreditation body dealt with the Construction Certificate as if a complaint had been made about it under section 109V. (See s 109W(3))

Extent of the inquiry

54 The final issue is whether the Tribunal is limited to a finding of unsatisfactory professional conduct or whether it is entitled to make a finding of professional misconduct. The Minister’s application to the Tribunal states that:

Pursuant to sections 109Z(2) and 109Z(3) of the E P & A Act the Minister for Infrastructure and Planning makes application for a disciplinary finding against Bradley Conway, being a finding of unsatisfactory professional conduct or professional misconduct, in respect of the above matters.”
55 On 31 July 2003, the Minister approved a recommendation:
That the Minister determine, to his satisfaction, that there is a reasonable likelihood that Mr Conway will be found guilty by the ADT of unsatisfactory professional conduct.
56 On the basis of the approval of this recommendation, Mr Conway’s representative submitted that the proceedings, which were instituted by the Minister, are confined to a finding of unsatisfactory professional conduct. Alternatively, it was submitted that where the Minister has not been satisfied of a reasonable likelihood of a finding of professional misconduct, then there is no source for the necessary satisfaction under s 109Z(3) to ground an application and hence no basis for the Tribunal having jurisdiction to find professional misconduct.

57 According to the Minister’s representative, this submission is incorrect in fact and law. As to the facts, the recommendation to the Minister expressly refers to s 109Z(4):

Under s 109Z(4) there are several options open to the Minister, instead of commencing proceedings. These options, however, may not be appropriate in light of the alleged conduct of Mr Conway.
58 The Minister’s representative interpreted this passage as a recommendation that the Minister should find that Mr Conway was not a person who should be dealt with by a consensual caution, reprimand or direction pursuant to s 109Z(4) because the Minister could not be satisfied the he would be found guilty of unsatisfactory professional conduct (but not professional misconduct). The Minister’s approval of the memorandum is inconsistent with his having decided that only unsatisfactory professional conduct was open to be found. We agree with this submission.

59 Secondly, as the Minister’s representative submitted, “unsatisfactory professional conduct is defined in s 109R as including professional misconduct. That section states that:

"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.
60 We agree with the submission that an application for findings of unsatisfactory professional conduct necessarily includes an application for findings of that subcategory of unsatisfactory professional conduct that amounts to professional misconduct. Furthermore, it is for the Tribunal to determine the nature of the conduct under s 109ZA(1). That statutory obligation cannot be fettered by the form in which the Minister’s decision is expressed. For these reasons we reject Mr Conway’s application that the Tribunal’s jurisdiction is limited.