NSW Architects Registration Board v Cserhalmi

[2006] NSWADT 110

CITATION:	NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110
DIVISION:	General Division
PARTIES:	APPLICANT NSW Architects Registration Board RESPONDENT Otto Cserhalmi
FILE NUMBER:	053399
HEARING DATES:	14/02/06
SUBMISSIONS CLOSED:	03/29/2006
DATE OF DECISION:	04/13/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Architects Regulation 2004 Interpretation Act 1987 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2 Briginshaw v Briginshaw (1938) 60 CLR 336 Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Tasker v Fullwood [1978] 1 NSWLR 20
REPRESENTATION:	APPLICANT P Griffin, barrister RESPONDENT J Griffiths, SC
ORDERS:	1. The Respondent’s objection to jurisdiction is upheld; 2. The Application for a disciplinary finding against the Respondent is dismissed; 3. The Respondent is to file and serve any submissions in support of its application for costs within 28 days of the date of this decision. The Applicant will have a further 28 days in which to file and serve its submissions. The Respondent must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.

Introduction

1 The issue dealt with in this judgment is whether non-compliance with either of two requirements that are stipulated, or apparently stipulated, in the Architects Act 2003 (‘the Act’) deprives the Tribunal of jurisdiction to hear and determine a disciplinary application brought under the Act by the NSW Architects Registration Board (‘the Board’) against a registered architect. This is the first disciplinary application under the Act to be filed in the Tribunal.

2 The application was filed on 14 November 2005, together with an affidavit as to jurisdiction sworn on the same day by Ms Kate Doyle, the Registrar of the Board. The application named Mr Otto Cserhalmi, an architect registered under the Act, as the Respondent. It sought findings of professional misconduct and/or unsatisfactory professional conduct against Mr Cserhalmi. As outlined in Ms Doyle’s affidavit, the application stemmed from a complaint against Mr Cserhalmi that had been submitted to the Board on 6 August 2004 by Mrs Marcia Osterberg-Olsen.

3 In his reply, filed on 24 November 2005, and in letters dated 8 February 2006 sent to the Registrar of the Tribunal and to the Board, Mr Cserhalmi put forward three grounds of opposition to the Board’s application. He denied the allegations of professional misconduct and unsatisfactory professional conduct, he submitted that the application should be dismissed on the ground that it had been filed out of time and he contended that the Tribunal did not have jurisdiction to hear and determine the application, since certain pre-requisites set out in the Act had not been satisfied.

4 The present judgment is concerned with the third of these objections. On the basis that Mr Cserhalmi was seeking an order for summary dismissal of the Board’s application, his objection was set down for hearing by a single judicial member of the General Division, pursuant to an assignment by the President under subparagraphs (1)(h) and (2)(b) of s 24A of the Administrative Decisions Tribunal Act 1997.

5 Mr Cserhalmi’s objection to jurisdiction is based on non-compliance with two requirements alleged to be imposed by the Act. In summary, they are that, at the time when the Board resolved to file its application to the Tribunal, (a) it had not satisfied itself that he had been guilty of either professional misconduct or unsatisfactory professional conduct and (b) the complaint had not been verified by statutory declaration.

Relevant provisions of the Act

6 The disciplinary regime under which these proceedings were instituted is established in Part 4 of the Act. As in other professional disciplinary regimes with which this Tribunal is familiar – for example, those governing legal practitioners and veterinary surgeons – the underlying principle is one of co-regulation.

7 Under this regime, the Board, being the relevant professional association, has the functions of receiving, making on its own account and investigating complaints against registered architects. Having conducted an investigation, the Board may itself make a finding of unsatisfactory professional conduct – this being the less serious of the two disciplinary ‘offences’ – and may impose one or more sanctions appropriate to that finding.

8 The role of the Tribunal is to determine applications instituted by the Board for a disciplinary finding. Only the Tribunal may make a finding of professional misconduct and impose a sanction appropriate to such a finding.

9 The following provisions within Part 4 of the Act and the Architects Regulation 2004 (‘the Regulations’) are of immediate relevance for this decision.

10 Section 32 of the Act appears in Division 1, which is headed ‘Interpretation’. It defines the two disciplinary ‘offences’ as follows:-

professional misconduct means:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect’s registration, or

(b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act.

unsatisfactory professional conduct means any of the following:

(a) any contravention by the architect of the conditions of the architect’s registration,

(b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7,

(c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court,

(d) any failure without reasonable excuse by the architect to properly supervise the provision of architectural services by an architect corporation or architect firm while the architect is a nominated architect responsible for the provision of those services,

(e) any failure by the architect to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures )Act 2002,

(f) any contravention by the architect of this Act or the regulations,

(g) any conduct of the architect that demonstrates that the architect is not a fit and proper person to be registered as an architect,

(h) any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture,

(i) any other improper or unethical conduct of the architect in the course of the practice of architecture,

(j) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act.

11 Clause 8 of the Regulations states: ‘Conduct of an architect that involves a substantial or consistent failure to reach reasonable standards of competence and diligence for an architect is declared to be professional misconduct for the purposes of the Act.’

12 Sections 34 to 45 constitute Division 2 of Part 4 of the Act. This Division is headed ‘Complaints’.

13 Under s 34, any person, including the Board itself, may make a complaint against an architect in respect of his or her conduct as an architect. Except in the case of a complaint by the Board, the complainant must lodge the complaint with the Registrar of the Board.

14 Section 36 includes the following provisions governing the form of a complaint:

(1) A complaint must be in writing, must identify the complainant and must contain particulars of the allegations on which it is founded.

(2) A complaint must be verified by statutory declaration unless the complaint is made by:

(a) the Board, or

(b) a judicial officer within the meaning of the Judicial Officers Act 1986, or

(c) the Minister, or

(d) the Director-General of the Department of Commerce, or

(e) the Consumer, Trader and Tenancy Tribunal (or a member of that Tribunal), or

(f) a person or body (or a person or body belonging to a class of persons or bodies) prescribed by the regulations.

(3) The Board may consider and investigate a complaint even if it does not comply with the requirements of this section (except the requirement that it identify the complainant) but must not proceed to deal with the complaint under this Part until they are complied with.

15 Under the heading ‘Persons who may verify complaints made under Part 4 of the Act’, clause 12(1) of the Regulations states:-

(1) The following classes of persons are prescribed for the purposes of section 36(2)(f) of the Act:
(a) architects who have been registered as architects for a continuous period of at least 5 years,

(b) barristers or solicitors within the meaning of the Legal Profession Act 1987 who have held practising certificates under that Act for a continuous period of at least 5 years.

16 Under s 37, the Board may dismiss a complaint, whether or not it has conducted an investigation, if it is satisfied that the complaint is frivolous or vexatious or otherwise lacking in merit, or is trivial, or relates to a matter that has already been dealt with as a complaint.

17 The Board’s duty to investigate complaints is spelt out in s 39. Subsections (1) and (5) should be quoted: -

(1) The Board must, subject to this Part, conduct an investigation into each complaint made under this Part.

(5) The Board may dismiss any complaint without investigation if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Board.

18 Sections 40 – 42 deal with the Board’s powers in conducting an investigation. These include powers (a) to require the architect to whom the complaint relates to furnish relevant information and documents and otherwise to assist and co-operate with the investigation; (b) to summon witnesses to appear before it; (c) to take evidence on oath or affirmation; and (d) to require the production of documents.

19 Section 43 is as follows: -

43 Decision after investigation of complaint

(1) After the Board has completed an investigation into a complaint against an architect, the complaint is to be dealt with in accordance with this section.

(2) The Board may apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4).

(3) However, the Board must apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of professional misconduct.

(4) If the Board is satisfied that the architect is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions:

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect’s practice of architecture as it considers appropriate be imposed on the architect’s registration,

(d) order that the person complete any educational course or courses specified by the Board,

(e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 15 penalty units.

(5) Action is not to be taken under subsection (4) unless the Board:
(a) has caused notice of the proposed action to be given to the architect, and

(b) has given the architect at least 28 days within which to make written submissions to the Board in relation to the proposed action, and

(c) has taken any such submissions into consideration.

(6) The Board is to dismiss the complaint against the architect if it is satisfied that the architect is not guilty of either unsatisfactory professional conduct or professional misconduct.

(7) The Board may decline to deal with a complaint if the complainant fails to provide further particulars (including documents and other information) required by the Board.

(8) The Board is to notify the architect of any action taken by the Board under this section.

20 Division 3, headed ‘Applications to Tribunal for disciplinary findings’, comprises ss 46 – 48. Section 46 states: -

46 Board may apply to Tribunal for disciplinary finding

The Board may apply to the Tribunal for a disciplinary finding under this Division against an architect with respect to any complaint against the architect.

21 Under s 47(1), when such an application is made, the Tribunal is to determine whether or not the architect concerned is guilty of unsatisfactory professional conduct or of professional misconduct. If it makes the former finding, it may make any one or more of the orders of the type listed in s 43(4), subject to the variation that the upper limit of any fine imposed is set at 200, not 15, penalty units (s 47(2)). If it makes the latter finding, s 47(3) authorises it to order suspension or cancellation of the architect’s registration, and may also make any one or more of the orders set out in s 47(2). Under s 47(4), the Tribunal must dismiss an application if it finds that the architect is not guilty of unsatisfactory professional conduct or professional misconduct.

Relevant facts

22 The facts relating to the issue of jurisdiction were not disputed. The following outline is chiefly derived from written submissions handed up by Mr Griffiths SC, counsel for Mr Cserhalmi at the hearing.

23 As mentioned earlier, Mrs Osterberg-Olsen was the complainant. She is a barrister within the meaning of the Legal Profession Act 2004 (and formerly the Legal Profession Act 1987), who has held a practising certificate as a barrister continuously since 1998. She submitted her complaint (‘the Complaint’) to the Board on 6 August 2004. After both she and Mr Cserhalmi had provided particulars and Mr Cserhalmi had made submissions, the Board resolved on 28 April 2005 that it would investigate the Complaint after it had been amended. It received an amended version (‘the Amended Complaint’) on 5 May 2005. Mr Cserhalmi filed a response to the Amended Complaint on 27 June 2005.

24 In cross-examination at the hearing, Ms Doyle testified that neither the Complaint nor the Amended Complaint had been verified by a statutory declaration. She did in fact request verification of the Complaint, and of any further information supplied in relation to it, in a letter that she wrote to Mrs Osterberg-Olsen on 5 November 2004.

25 The steps by way of investigation that the Board took were confined to seeking and receiving further communications from Mrs Osterberg-Olsen and Mr Cserhalmi. It did not hold any hearing, nor did it receive evidence on oath or affirmation.

26 At a meeting on 31 August 2005, the Board passed the following resolution: -

That in accordance with the provisions of the Architects Act 2003 the complainant is to apply to the Administrative Decisions Tribunal for a disciplinary finding against the architect under Division 3 of the Act.

27 According to the minutes of this meeting, the Board had noted the requirement in the Act that the applicant in such proceedings should be the Board itself. But it was also informed that advice would be sought from the Tribunal ‘about the mechanisms that may be utilised so that the complainant takes the role of applicant to the Tribunal’.

28 In a letter sent to both parties on 9 September 2005, the Board wrote that it had determined on 31 August that ‘the complaint against the Architect should be heard and determined by’ the Tribunal. The letter continued: -

The Act requires the Board to apply to the Tribunal for a disciplinary finding against the Architect. For a number of public policy reasons, it is the Board’s preference that it should not take an active part in the proceedings before the Tribunal. However, it appears the Act requires it to be the applicant in the Tribunal proceedings.

29 In a letter to the Board dated 13 September 2005, Norman Waterhouse, Lawyers, who were acting for Mr Cserhalmi, requested the Board to provide reasons for its decision to refer the matter to the Tribunal, and to indicate whether this decision had been made under s 43(2) or s 43(3) of the Act.

30 At a meeting on 28 September 2005, the Board noted that the Act required it to be the applicant in any disciplinary matter referred to the Tribunal. It accordingly endorsed the following ‘new motion of decision’ on this matter: -

That in accordance with the provisions of the Architects Act 2003 the Board is to apply to the Administrative Decisions Tribunal for a disciplinary finding against the architect under Division 3 of the Act.

31 In a letter dated 30 September 2005 to Norman Waterhouse, the Board advised that it had referred the complaint pursuant to s 43(3) of the Act. It then set out its reasons for the referral in the following terms: -

1. The Board has examined all the documentary material filed with the Board and in particular the Amended Complaint from the Complainant dated 5 May 2005 and the Response from the Respondent dated 27 June 2005.

2. The Amended Complaint raises a number of issues the most serious of which concerns allegations that the Respondent colluded with others to the disadvantage of the Complainant.

3. The Board expresses no opinion as to the merit of these allegations.

4. The Board is satisfied that if the allegation of collusion is established, it would most likely result in a finding of professional misconduct rather than unsatisfactory professional conduct.

5. The Board is satisfied that if the other allegations are established they would probably result in a finding of unsatisfactory professional conduct.

6. The Board has the power to impose a range of protective orders upon an architect as outlined in section 43(4) of the Act. The Board’s power does not include the right to suspend or cancel registration. These protective orders are to be exercised by the Tribunal pursuant to section 47(3).

7. In these circumstances, where the appropriate protective orders may include suspension or cancellation of registration, the Board is required, pursuant to section 43(3) of the Architects Act 2003, to refer the Complaint to the ADT for determination.

32 In a section of the form of its application to the Tribunal, prefaced by the words ‘Disciplinary findings sought’, the Board repeated its assertion that the complaint was being referred pursuant to s 43(3) of the Act. It then reproduced, without numbering, paragraphs 1, 2 and 4 to 7 inclusive of this statement of reasons. It continued as follows:

The Board expresses no opinion as to what findings the Tribunal should make. Any such finding will depend upon which parts, if any, of the complaint are established.

33 The parties’ submissions. Mr Griffin, who appeared as counsel for the Board, properly conceded that the Board, before resolving on 28 September 2005 to apply to the Tribunal for a disciplinary finding against Mr Cserhalmi, did not satisfy itself that he was guilty of either professional misconduct or unsatisfactory professional conduct.

34 In Mr Griffiths’ submission, it therefore followed that the application, which was expressed to be made under s 43(3) of the Act, was incompetent because this was an essential requirement that had not been fulfilled. Its status as a pre-requisite to the exercise of jurisdiction by the Tribunal was, he said, based on the combined effect of the following statutory provisions and legal principles:-

(a) the statement, in s 39(1) of the Act, that ‘subject to this Part’, the Board ‘must’ investigate any complaint made under this Part;

(b) the conferral of investigatory powers on the Board by ss 40 – 42;

(c) the statement in s 43(1) that after completion of the Board’s investigation of a complaint, the complaint ‘is to be dealt with in accordance with this section’;

(d) the express requirement in s 43(2) and s 43(3) that, if an application for a disciplinary finding is to be made to the Tribunal, the Board must be ‘satisfied that the architect is guilty’ of the relevant disciplinary offence – i.e., unsatisfactory professional conduct (if the application is made in exercise of the power conferred by s 43(2)) or professional misconduct (if it is made in discharge of the duty imposed by s 43(3)); and

(e) principles established in case-law having the effect that, irrespective of whether the requirement that the Board be satisfied of the architect’s guilt of one or other of the disciplinary offences is to be characterised as (i) a ‘condition precedent or jurisdictional fact’ or (ii) as a procedural requirement, non-compliance with it necessarily deprives the Tribunal of jurisdiction.

35 Among the authorities on which Mr Griffiths relied, it is sufficient to refer to three. In different ways, they relate to the consequences of non-compliance with a statutory requirement that may operate as a precondition of jurisdiction.

36 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391, McHugh, Gummow, Kirby and Hayne JJ held in a joint judgment that a distinction drawn in earlier cases between ‘mandatory’ and ‘directory’ requirements was not useful in resolving this issue. They said that a ‘better test’ was ‘to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’. They added: ‘In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”’. (This last phrase was drawn from Tasker v Fullwood [1978] 1 NSWLR 20 at 24.)

37 The High Court case of Barwick v Law Society of New South Wales [2000] HCA 2 concerned the validity of disciplinary proceedings in the Legal Services Tribunal brought against a solicitor under Part 10 of the now-repealed Legal Profession Act 1987 (hereafter ‘the LP Act 1987’). In accordance with Part 10, the Council of the Law Society had made a determination under s 155(2) of this Act, following which it had instituted proceedings under s 167(1). For present purposes, the relevant provisions of these two sections were as follows: -

155 Decision after investigation of complaint

(1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section.

(2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.

(3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead:

(a) reprimand the legal practitioner if the legal practitioner consents to the reprimand, or

(b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner.

(4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.

167 Institution of proceedings and hearings

(1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part.

38 The solicitor sought an order of prohibition against the Tribunal. He claimed that it lacked jurisdiction on the ground, inter alia, that although the LP Act 1987 required that complaints should be investigated under Division 5 of Part 10 by an appropriate authority, such as the Council of the Law Society, before proceedings were instituted, this had not occurred with respect to two complaints made against him. Division 5 included provisions to the effect that a Council must conduct an investigation into each complaint referred to it by the Legal Services Commissioner or initiated by the Council (s 148) and that the Commissioner was to ‘monitor’ investigations conducted by a Council (s 149).

39 In upholding the solicitor’s argument, Gleeson CJ, Gaudron and McHugh JJ referred in their joint judgment (at [49]) to the Court’s rejection in the Blue Sky case of the distinction between ‘mandatory” and ‘directory’ provisions. Having described as ‘important’ the Commissioner’s duty under s 149 to monitor investigations conducted by a Council, they said, at [53]: -

Not every departure from the procedures laid down by Pt 10, and, in particular, Div 5, will result in a lack of jurisdiction under s 167. However, one of the purpose of the legislation is to bring about the result that, before a matter comes to the Tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under s 155.

40 At [60 – 61], their Honours pointed out that a Council might properly take steps by way of investigation of a legal practitioner’s conduct both before and after the ‘investigative stage’ required by Division 5 – that is, before it initiated the relevant complaint and also after it had resolved under s 155 (having ‘completed’ its investigation under Division 5) to institute proceedings in the Tribunal. But the ‘focus of attention’ should be, they said, whether ‘there was an investigative stage which permitted the requirements of Div 5 to be satisfied, and the legislative purpose of the Division to be satisfied’. This stage might in some cases be brief, but it must be ‘such as to permit monitoring by the Commissioner’.

41 Having found, at [62], that nothing that could be described as the investigative stage required by Division 5 had occurred, their Honours reached the following conclusion at [63]: -

It would be inconsistent with the legislative purpose to conclude that the Tribunal has jurisdiction to deal with a matter brought before it in circumstances where the procedures established by Div 5 have been substantially bypassed… [There] was such a departure from the requirements of Div 5 as to deprive the Tribunal of jurisdiction.

42 In Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273, this Tribunal found a barrister to be guilty of professional misconduct under the LP Act 1987 on the basis of two complaints referred to it by the Council of the NSW Bar Association. One of these complaints had previously been accepted by the Legal Services Commissioner under a power conferred by s 138(2) of this Act. Under this provision, where a complaint alleging professional misconduct was made more than three years after the alleged conduct occurred it could only be accepted if the Commissioner was satisfied that ‘it was necessary in the public interest to investigate the complaint’. The second complaint with which the Tribunal dealt was added to the Bar Council’s application during the proceedings, pursuant to a power of amendment in s 167A of the LP Act 1987. It also related to conduct allegedly occurring more than years earlier, but it had not been accepted by the Commissioner under s 138(2).

43 On appeal by the barrister, the Court of Appeal set aside the Tribunal’s orders on the ground that it had had no jurisdiction to deal with the second complaint. As explained by Spigelman CJ at [115 – 116], [150] and [166 – 167], the Tribunal’s jurisdiction was confined to complaints with respect to which prior requirements in Part 10 of the LP Act 1987 – including that of acceptance of a complaint by the Commissioner under s 138(2), where this was required – had been satisfied. As his Honour said at [167], ‘the Tribunal could not give itself jurisdiction by purporting to vary the information under s 167A’.

44 In his written submissions, Mr Griffiths argued that the regime created by Part 4 of the Act endeavoured to provide ‘an appropriate balance between consumer protectionism on the one hand’ and ‘recognising an architect’s individual rights and interests on the other hand’. The Board, he maintained, was not simply ‘a vehicle by which a complaint against an architect is referred or passed to the [Tribunal] for a disciplinary finding’. Instead, this regime ‘obliges the Board to carry out its various statutory functions and responsibilities, including having to determine in the light of all the relevant material collected by it as a result of its investigation whether the Board is satisfied that the architect is guilty of unsatisfactory professional conduct or professional misconduct’. Since in this case it ‘held neither of the requisite satisfactions’, it had no authority to institute the proceedings and the Tribunal had no jurisdiction to entertain them.

45 On behalf of the Board, Mr Griffin argued that this analysis took no account of s 46 of the Act. This section, he contended, acted as a form of ‘safety-valve’, dealing with situations where, following an investigation, the Board was unable to be satisfied of any of the matters set out in subsections (2), (3) or (6). It was possible that the Board might not be able to reach any conclusion one way or the other as to the alleged guilt of the architect. In these circumstances, it evidently could not act as provided by subsections (2) or (3). But equally it could not dismiss the complaint under subsection (6) because it would not be ‘satisfied that the architect is not guilty of either professional misconduct or unsatisfactory professional conduct’.

46 Another situation in which, in Mr Griffin’s submission, s 46 might be applicable was where an architect of his or her own accord disclosed conduct amounting to professional misconduct. The section, he suggested, would permit the Board, having presumably formulated its own complaint, to apply directly to the Tribunal without conducting or completing an investigation.

47 Mr Griffin acknowledged that his interpretation of ss 43 and 46 appeared to be in conflict with the statement in s 43(1) that after the completion of the Board’s investigation into a complaint, ‘the complaint is to be dealt with in accordance with this section’. But it had the advantages, he said, of (a) not requiring the Board, which had limited financial resources, to conduct sufficiently thorough investigations in every case to enable it to be satisfied either of ‘guilt’ or of absence of ‘guilt’, and (b) eliminating any insistence under the Act that before any finding of professional misconduct could be made against an architect, both the Board and the Tribunal must be affirmatively satisfied of his/her ‘guilt’.

48 In response to this submission based on s 46, Mr Griffiths suggested that the purpose of the section seemed solely to be that of providing a starting-point for Division 3, in which the provisions dealing with Tribunal proceedings were contained. If it had any further role, it would be in cases, such as that suggested by Mr Griffin, where no investigation was conducted or completed. But the Board could not, he claimed, rely in this case on s 46 because it had expressly filed its application against Mr Cserhalmi under s 43(3).

49 The Tribunal’s conclusions. It should be said at the outset that on account of defects in the drafting of the relevant provisions the issue posed for determination is not straightforward. Neither of the interpretations urged by the parties is clearly established by the legislation and neither of them seems entirely satisfactory from a policy point of view.

50 The line of reasoning put forward by Mr Griffiths, which is summarised above at [34], conforms with important elements of the drafting of Part 4 of the Act and with what appears to be a consistent policy underlying this Part.

51 Mr Griffiths’ argument has a firm basis in the Act’s insistence that an application to the Tribunal for a disciplinary offence must be preceded by, first, a complaint (as s 46, amongst other provisions, makes clear) and, secondly, an investigation by the Board (subject to certain exceptions, such as those specified in s 37). It is consistent too with the Board being granted wide powers of investigation, so that with the additional benefit of its expertise in the discipline of architecture it can satisfy itself properly as to whether or not the architect is guilty of a disciplinary offence.

52 Mr Griffiths’ argument also gives full weight to what appears to be an unambiguous and unqualified statement in s 43(1). This is that after the investigation is completed the Board may only ‘deal with’ the complaint according to the requirements in subsections (2), (3) and (6) of s 43. Under each of these three subsections, the Board must be ‘satisfied’ of the matters indicated in the subsection.

53 The apparent policy throughout is that under the regime created by Division 2 of Part 4 no case should reach the Tribunal unless and until the Board has performed its important role in filtering out all complaints that do not have sufficient evidentiary weight to warrant a Tribunal hearing. If s 46 were interpreted as claimed by Mr Griffin, this policy would be significantly undermined. In an unspecified range of circumstances, the Board would be permitted to file an application in the Tribunal even though the evidence obtained in its investigation did not even amount to a prima facie case that a disciplinary offence had been committed.

54 If the ‘legislative intention’ is indeed as Mr Griffiths submitted, the principles stated in cases such as Barwick and Mitry, relating as they do to a professional disciplinary regime having similar features and based similarly on a principle of co-regulation, are of direct relevance. They compel the conclusion that the Board’s failure in this case to observe the requirement of ‘satisfaction’ stipulated in s 43(3) invalidates these proceedings, which it has instituted in purported reliance on that subsection.

55 There are, however, significant counter-arguments. The most troublesome aspect of the reasoning advanced by Mr Griffiths is its failure to take account of the fact that s 43 seemingly fails to provide for all the possible outcomes of an investigation by the Board. In this section, the relevant subsections deal respectively with the situations where Board is satisfied that the architect ‘is guilty of’ unsatisfactory professional misconduct (subsection (2), to which subsection (4) is linked), or ‘is guilty of’ professional misconduct (subsection (3)), or ‘is not guilty of’ either of these disciplinary offences (subsection (6)). But the section provides no express guidance in a case where the Board concludes that the architect might be guilty of either professional misconduct or unsatisfactory professional conduct.

56 In this ‘twilight zone’ (as it was described during the hearing), the Board, being not ‘satisfied’ of guilt or of absence of guilt, receives no direction from s 43 as to how the complaint should be ‘dealt with’. If, as Mr Griffiths submitted, the proper course for the Board in this situation is to take no further action because it is not appropriately ‘satisfied’, it may be urged that the ‘filter’ established in Division 2 of Part 4 of the Act is an unduly fine one. Cases that should reach the Tribunal because there is a significant possibility of guilt are being kept away from it. This argument is all the stronger if, in accordance with the established approach in professional disciplinary proceedings, the Board is bound to apply a relatively high standard of proof – i.e., if it must be ‘comfortably satisfied’ of the architect’s guilt of the relevant disciplinary offence, in line with principles stemming from Briginshaw v Briginshaw (1938) 60 CLR 336.

57 An associated disadvantage of Mr Griffiths’ argument is that if under subsections (2) and (3) the Board must be ‘satisfied’ of the architect’s guilt of one or other of the disciplinary offences, the Tribunal, in every case brought to it, will simply be retrying a set of allegations with respect to which the Board has already made findings adverse to the architect. If the suggestion just made with regard to standard of proof is correct, the Tribunal will, moreover, be applying the same criterion as to standard of proof.

58 These considerations give support to Mr Griffin’s submission that s 46 was enacted as a ‘safety valve’. According to its natural meaning, it confers a broad discretion on the Board to make an application to the Tribunal for a disciplinary finding with respect to a complaint in any case whether it considers this appropriate. Unlike the equivalent provision in the LP Act 1987 (i.e., s 167), s 46 does not require that the application be made ‘in accordance with’ the relevant Part of the Architects Act.

59 Notwithstanding these counter-arguments, the Tribunal’s conclusion is that subsections (2) and (3) of s 43 are intended to define exhaustively the circumstances in which the Board may make an application to the Tribunal under s 46. The alternative approach gives too much leeway to the Board to avoid the responsibilities of investigation and determination imposed on it by ss 39 – 43 of the Act. Having imposed these responsibilities by enacting these sections, with a view to ensuring that cases lacking a sufficient evidentiary basis should not reach the Tribunal, the legislature cannot have intended that s 46 should confer on the Board a wholly independent power to apply to the Tribunal. Instead, the function of s 46 would appear to be that of making it clear that the Board alone has standing to make a disciplinary application to the Tribunal.

60 The Tribunal further concludes that, in accordance with the principles laid down in Barwick v Law Society of New South Wales [2000] HCA 2, it was the legislative intention of Part 4 that if an application is made to the Tribunal in breach of the conditions stipulated in s 43(2) and s 43(3), the application should be deemed invalid and the Tribunal should lack jurisdiction to entertain it. The legislature cannot have intended that these conditions should be able to be bypassed by the simple expedient of invoking s 46 as a ‘stand-alone provision’.

61 One final argument put by Mr Griffiths was that, even if s 46 did authorise the Board to file its application against Mr Cserhalmi, the Board could not rely on this section, as it expressly based the application on s 43(3). In the circumstances, it is not necessary to determine this question.

62 It seems to the Tribunal that if there is any mode of interpreting s 43 that would resolve, at least to some extent, the deficiencies in the section outlined above at [55 – 58], it must be along the following lines. The phrase ‘is satisfied that…’, where used in subsections (2), (3) and (6), should not be construed as requiring ‘comfortable satisfaction’ on the Board’s part, in line with Briginshaw v Briginshaw. Instead, it should be taken to mean ‘considers, on the balance of probabilities, that…’

63 This approach, while arguably departing from the literal meaning of the phrase, does appear to eliminate, or at least substantially reduce, any ‘twilight zone’. It provides an acceptable basis for referring a case to the Tribunal under subsection (2) or (3) because the Tribunal, in contrast to the Board, will apply Briginshaw principles. It authorises dismissal of a complaint under subsection (6) in an appropriate range of cases – i.e., not merely where the Board is affirmatively satisfied that the architect is not guilty of a disciplinary offence, but also where it considers it likely, on the balance of probabilities, that no offence was committed.

64 This tentative suggestion does not apply to the phrase ‘is satisfied that…’ where it appears in subsection (4). Under this provision, the Board may impose sanctions. If it is not comfortably satisfied that the architect was guilty of unsatisfactory professional conduct, but considers this likely, on the balance of probabilities, it may refer the case to the Tribunal under subsection (2).

65 It is far from satisfactory that the Board and the Tribunal should have to consider relying on interpretative measures such as this in order to deal with the problems created by the drafting of Part 4 of the Act. If the disciplinary regime created by Part 4 is not to be bedevilled by these problems, appropriate amendments should be enacted as soon as possible. Guidance might be obtained from s 155 of the LP Act 1987 (see [37] above), or indeed from the legislation governing committal proceedings

66 This suggested interpretation of the phrase ‘is satisfied that’ does not solve the difficulty created by the approach that the Board adopted in this case. As indicated in the evidence on this matter (see above at [31 – 32]), the Board made no finding, even on the balance of probabilities, that Mr Cserhalmi was guilty of either professional misconduct or unsatisfactory professional conduct. Both in its letter to Norman Waterhouse dated 30 September 2005 and in the application to the Tribunal, it stated that ‘it expresses no opinion’ as to the merits of the allegations contained in the Amended Complaint. It nonetheless purported to ‘deal with’ the complaint pursuant to s 43(3).

67 The outcome of this consideration of the arguments regarding ss 43 and 46 is that the first of Mr Cserhalmi’s two objections to jurisdiction must be upheld. This may not, however, prevent the Board filing a subsequent disciplinary application based on the Amended Complaint, provided that all the statutory pre-requisites have been fulfilled. The Tribunal makes no ruling on this issue.

The failure of the complainant to verify the complaint

68 At the hearing, the representatives of the parties and the Tribunal were unaware of the existence of clause 12(1) of the Regulations. But for this clause, it would appear that the failure of Mrs Osterberg-Olsen to verify either the Complaint or the Amended Complaint by statutory declaration would provide a further ground for holding that the Board’s application to the Tribunal was incompetent. The following reasoning produces this result.

69 Section 36(2) of the Act requires that, subject to specified exceptions, a complaint must be verified. Section 36(3) provides that, while the Board may investigate an unverified complaint, it ‘must not proceed to deal with the complaint under this Part’ until the foregoing requirements of the section, including that of verification, are complied with. The only other provision of Part 4 that uses the phrase ‘dealt with’ is s 43(1). This states, as has already been indicated, that after investigation a complaint must be ‘dealt with’ in accordance with s 43. The present application to the Tribunal, expressed to be pursuant to s 43(3), accordingly constituted a purported mode of ‘dealing with’ the complaint even though the complaint had not been verified under s 36(2).

70 At the hearing, Mr Griffiths argued that the reasoning just outlined was sufficient to dispose of the issue. He submitted that the requirement of verification had been included in the Act on account of a legislative concern to protect architects from unjustified complaints, and should be held to constitute an essential condition for the assumption of jurisdiction by the Tribunal.

71 Mr Griffin’s response was to contend that due regard must be paid to the categories of person exempted by s 36(2) from the requirement to verify. These included persons, such as judicial officers and the responsible Minister, who would evidently be expected not to make frivolous complaints. The Tribunal, he submitted, should therefore not treat the requirement of verification as an essential condition in any case where the complainant, although not within any of the exempted categories, could similarly be expected not to make frivolous complaints. Having regard to the professional and ethical duties to which barristers are subject, this was, he said, the case with Mrs Osterberg-Olsen.

72 This argument, which Mr Griffin did not press strongly, has many difficulties. It is sufficient to say that it effectively involves writing a further set of exempt categories into s 36(2). On this general question of the effect of non-compliance with the requirement of verification imposed by s 36(2), Mr Griffiths’ argument is to be preferred.

73 The existence of clause 12(1) of the Regulations came to the attention of the Tribunal and the parties after the hearing had concluded. The parties were invited to file supplementary evidence and submissions regarding its potential impact on these proceedings.

74 In the Board’s submission, filed on 23 March 2006 by Mr Griffin, it was stated that, as indicated above, Mrs Osterberg-Olsen had held a practising certificate as a barrister continuously since 1998. Mr Griffin argued that she was accordingly exempt under clause 12(1) of the Regulations and s 36(2)(f) of the Act (being the provision under which clause 12 was promulgated) from the requirement to verify her complaint, and that the objection to jurisdiction based on her failure to verify must therefore be dismissed. It may be added that the Regulations commenced on 30 June 2004, shortly before the filing of the Complaint on 6 August 2004.

75 In written submissions, filed for Mr Cserhalmi on 20 March and 27 March 2006, Mr Malcolm Davies, of Norman Waterhouse, Lawyers, did not dispute that Mrs Osterberg-Olsen had held a practising certificate since 1998. It was argued, however, that the exemption granted to architects, barristers and solicitors by clause 12(1) only applied to complaints made ‘in an official capacity’. Accordingly, when a barrister made a complaint ‘in a private capacity’, as Mrs Osterberg-Olsen had done, he or she could not claim the benefit of the exemption.

76 In developing this argument, Mr Davies submitted that a restriction of this nature must be inferred from the legislation because it was only when barristers acted in an official capacity that they were bound by the provisions of the Legal Profession Act 2004 (hereafter ‘the LP Act 2004’) relating to professional discipline. They could not be held guilty of professional misconduct or unsatisfactory professional conduct (as defined in ss 496 and 497 of the LP Act 2004), or in breach of the NSW Barristers Rules, when they acted in a purely private capacity. A similar principle applied to solicitors and to registered architects. A judicial officer, the Minister or the Director General (being the persons exempted under s 36(2)(b), (c) and (d) of the Act) would likewise only be exempted when they made a complaint in their official capacity.

77 The opposing submission put by Mr Griffin relied on the existence of the phrase ‘whether occurring in connection with the practice of law or otherwise than in connection with the practice of law’ in the non-exhaustive definition of professional misconduct in s 497(1) of the LP Act 2004. This clearly showed, he wrote, that conduct by barristers or solicitors outside the scope of legal practice could constitute professional misconduct. The reason why they obtained an exemption under clause 12(1) of the Regulations if they had held a practising certificate for at least five years was that they would have a clear understanding that complaints should not be made unless they were reasonably based. Furthermore, barristers had overriding ethical duties to courts and tribunals under the Barristers Rules.

78 In the Tribunal’s opinion, the submissions of Mr Davies on this issue must be rejected, for the following three reasons.

79 First, nothing in the language of s 36(2) of the Act or clause 12 of the Regulations provides any support for it. The exemption is granted in unqualified terms to anyone falling within any of the exempted categories.

80 Secondly, while a restriction to complaints made in an official capacity may be inferred from the legislation with regard to some of the exempted categories – notably the Board and the Minister – it is difficult to see how a judicial officer or a member of the Consumer, Trading and Tenancy Tribunal would be called on to make a complaint in such a capacity. It seems unlikely that their official functions would ever extend to an activity of this nature. There is, furthermore, a clear distinction between the ‘official capacity’ in which the Board would make a complaint and the so-called ‘official capacity’ – better described as a ‘professional capacity’ – in which a barrister or solicitor might do so, pursuant to instructions from a client. For these reasons, no coherent policy whereby the exemptions conferred by s 36(2) and clause 12 might be limited to complaints made in some sort of official or professional capacity may be discerned.

81 Thirdly, as Mr Davies in fact conceded in his submission of 27 March 2006, it is simply not correct to say that it is only when barristers act in an ‘official capacity’ that they are bound by the provisions of the LP Act 2004 relating to professional discipline.

82 Accordingly, in the Tribunal’s opinion, Mrs Osterberg-Olsen fell within the scope of clause 12(1) of the Regulations at the times when she filed the Complaint and the Amended Complaint with the Board. The requirement of verification by a complainant imposed by s 36(2) therefore did not apply to her. For this reason, the second ground of objection to jurisdiction raised by Mr Cserhalmi must be rejected.

83 The Tribunal notes further that this question of interpretation is yet another issue of doubt within the legislation regulating architects that should be resolved by appropriate amendment of the Act.

84 It would also be useful to redraft the misleading heading to clause 12, which reads: ‘Persons who may verify complaints made under Part 4 of the Act.’ Section 36(2)(f) of the Act, under which this clause is made, is not concerned with the range of persons who may verify complaints, but with the range of persons who are exempt from the requirement to verify. It should perhaps be added that the meaning of the clause is not in any way affected by this heading, since under the Interpretation Act 1987, s 35(2), the heading forms no part of the Regulations.

The orders to be made

85 The Tribunal upholds the Respondent’s objection to its jurisdiction and accordingly dismisses the disciplinary application filed by the Applicant.

86 The Respondent’s written submissions included an application for the costs of these proceedings, pursuant to s 88 of the Administrative Decisions Tribunal Act 1997, ‘as engaged by’ s 48 of the Architects Act. The Tribunal makes the following directions with respect to this application.

1. Any submissions in support of it must be filed and served within 28 days of the date of this decision.

2. The Applicant Board will have a further 28 days in which to file and serve its submissions.

3. The Respondent must file and serve any submissions in reply within a further 7 days.

4. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.