O'Brien v Building Professionals Board (No 2) - [2010] NSWADT 250

No judgment structure available for this case.

CITATION: O’Brien v Building Professionals Board (No 2) [2010] NSWADT 250

DIVISION: General Division

PARTIES:
APPLICANT
Russell O’Brien
RESPONDENT
Building Professionals Board

FILE NUMBER: 083129

HEARING DATES: 26, 27 & 28 August 2009

SUBMISSIONS CLOSED: 17 March 2010

DATE OF DECISION:
20 October 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Hayward P - Non-Judicial Member

CATCHWORDS: Unsatisfactory professional conduct - accredited certifier – conduct occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994

CASES CITED: O’Brien v Building Professionals Board [2009] NSWADT 189
Northern Residential Proprietary Ltd v Newcastle City Council [2009] NSWCA 141
McRae v Coulton (1986) 7 NSWLR 645

TEXTS CITED: Judicial Review of Administrative Action, 4th ed Lawbook Co 2009, Aronson et al

REPRESENTATION:
APPLICANT
G McNally SC
RESPONDENT
T Robertson SC

ORDERS: 1. The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside
2. The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.

REASONS FOR DECISION

Introduction

1 The Building Professionals Board (the Board) found Mr Russell O’Brien, who is an accredited certifier, guilty of unsatisfactory professional conduct. The Board reprimanded Mr O’Brien and fined him $11,000. Mr O’Brien applied to the Tribunal for a review of the disciplinary finding and the action taken by the Board: Building Professionals Act 2005 (BP Act), s 33. The Tribunal’s role is to review the Board’s finding and the action taken and decide whether those decisions are the ‘correct and preferable’ decisions having regard to the material now before us: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63(1).

2 In 2000 Mr O'Brien, Mr Bernie Cohen and Mr Richard Moy, were all accredited certifiers and directors of Essential Certifiers Pty Ltd (Essential Certifiers). The proceedings before the Tribunal relate to a construction certificate for a 26 unit residential apartment building in Campbell Street, Northmead (the Northmead project). A construction certificate is an audit of the design against the development consent, the Building Code of Australia (BCA) and the Environmental Planning and Assessment Regulation 1994 (the EPA Regulation 1994). It verifies that a proposed development will comply with those requirements: EPA Regulation 1994, former Cl 79G(1)(b).

3 On 2 November 1999 the Land and Environment Court granted development consent for the Northmead project. On 29 June 2000, Austcorp No 459 Pty Ltd became the registered proprietor of the land. Diab Finianos was the developer and his son Ray Finianos (through Silky Constructions Pty Ltd) was the builder. In early 2000 Mr Diab Finianos engaged Richard Drummond of Drummond & Rosen Pty Ltd, architects, to prepare construction plans for the Northmead project. On 21 August 2000 Silky Construction Pty Ltd applied to Essential Certifiers for a construction certificate to enable building work to begin. Mr Cohen assessed some plans in relation to the Northmead project on or about 21 August 2000 and sent a facsimile to the builders on 1 September 2000 saying that he had assessed the plans for compliance with the BCA and the development consent. In the same facsimile Mr Cohen listed six further items that needed to be provided before the construction certificate could be issued. On 11 September 2000 Mr Cohen went on leave to attend the Olympic Games in Sydney. The following day an administrative employee of Essential Certifiers printed the construction certificate. The certificate named “Essential Certifiers Pty Ltd” as the Certifying Authority and “Bernie Cohen” as the accredited certifier.

4 Some time between 12 September 2000 and 26 September 2000 Mr O’Brien endorsed the construction certificate with following words: ‘B Cohen per ROB’ (his initials). The certificate was released to the builders on 26 September 2000 after the six outstanding items referred to in Mr Cohen’s facsimile of 1 September 2000 had been provided.

5 The Northmead project was completed on 26 October 2001. The owners, Austcorp No 459 Pty Ltd, applied to the Baulkham Hills Shire Council for strata subdivision approval. Council refused that application because the development did not comply with the development consent. Among other things, the project had been built with only one level of car parking instead of two, as shown on the construction plans. Litigation in the Land and Environment Court and the Supreme Court followed. The building was unoccupied for over four years before rectification works were completed.

6 The Board began an investigation into Mr Cohen’s conduct in 2006, some six years after the events had taken place. Two years after that, on 4 March 2008, the Board issued a Statement of Decision to Mr O’Brien: BP Act, s 32. The Board found that Mr O’Brien was guilty of unsatisfactory professional conduct: Environmental Planning and Assessment Act 1979 (now repealed) (EPA Act), s 109R(a). Mr O’Brien submitted that the Tribunal should dismiss the complaint against him because of the delay since the incidents allegedly occurred. Alternatively, he submitted that he was not guilty of unsatisfactory professional conduct. We have decided not to dismiss the complaint for delay but agree with Mr O’Brien that he is not guilty of unsatisfactory professional conduct because he did not perform any functions as a ‘certifying authority’.

Legal framework

7 The now repealed s 109R(a) of the EPA Act defined unsatisfactory professional conduct to mean conduct, whether consisting of an act or omission:

8 The same definition now appears in s 19(a) of the BP Act.

9 The relevant provision of the EPA Regulation 1994 relied on by the Board was Cl 79G which states that:

10 A "certifying authority" is defined in s 4 of the EPA Act to include a person who is authorised to issue Part 4A certificates. Part 4A certificates include construction certificates: EPA Act, s 109C(1)(b). Section 81A(2)(a) provides that the erection of the building cannot be commenced until the construction certificate for the building work has been issued by an accredited certifier. When doing so the accredited certifier is a “certifying authority”. The EPA Regulation 1994 described the functions of a certifier. First, the certifying authority must endorse the application for a construction certificate with the date of its receipt: Cl 79A(2). Next the certifying authority may require any additional information that is essential to the certifying authority’s proper consideration of the application: Cl 79B(1). In this case the construction certificate states that the application was received on 21 August 2000 and the requirement for further information was made within 14 days of receiving the application for the construction certificate: Cl 79B(2).

11 Cl 79D sets out the procedure for determining the construction certificate application. It requires a certifying authority to endorse on the application the date of determination, whether it has been approved or refused and so on. Notice of the determination together with the construction certificate and the plans and specifications in relation to which the construction certificate had been issued are forwarded to Council within seven days: Cl 79D(2).

12 An accredited certifier is different from the principal certifying authority (PCA). The PCA must also be appointed before any building work commences: EPA Act, s 81A(2)(b). It was the practice in Essential Certifiers for the certifier issuing the construction certificate to be appointed as the PCA. Mr Cohen was ultimately appointed as the PCA. Once a PCA had been appointed, he or she had to conduct several inspections under the EP & A Regulations and issue the occupation certificate: s 81A(2)(b).

Alleged conduct

13 The Board identified two acts of Mr O’Brien which it said constituted unsatisfactory professional conduct:

a) The degree of scrutiny and consideration given by Mr O’Brien to the documents which accompanied the application for a construction certificate was far below that required to form the level of satisfaction required under clause 79G(1)(a) of the Regulation for the proper determination of a construction certificate (this matter relates to the issue of Mr O’Brien’s competence and diligence); and

14 We refer to the first alleged act as “lack of scrutiny” and to the second alleged act as “endorsing the construction certificate without authority”. The lack of scrutiny allegation relates to two matters:

(i) Mr O’Brien’s failure to detect inconsistencies between the plans and specifications approved as part of the development consent and those that were submitted with the application to the construction certificate. In particular Mr O'Brien would have been reasonably expected to have identified the major inconsistency of the change of two levels of car parking to one level.
(ii) If Mr O’Brien endorsed the construction certificate before 22 September 2000 he did so before the six outstanding items referred to in Mr Cohen’s facsimile of 1 September 2000, had been provided.

Board’s reasons for decision

15 The findings of the Board, so far as they are relevant to the lack of scrutiny issue, were as follows:

16 The findings of the Board, so far as they are relevant to endorsing the construction certificate without authority, were as follows:

It is evident that . . . these two items (Item 2: Compliance certificates from the hydraulic engineer and structural engineer and Item 6: confirmation that the sound transmission of stack is to be constructed of two layers of 13mm gyprock on metal studs, with seals to openings) remained outstanding as at 20 September 2000.

Item 6 . . . was satisfied by a second fax from Silky Constructions (the builders) dated 22 September 2000.

Item 2 of Mr Cohen’s fax of 1 September 2000 was addressed by the certificate by JDT Design Pty Ltd dated 11 September 2000. The Board concludes from the other correspondence that although this certificate was in existence as at 11 September 2000 it was not provided to Essential Certifiers Pty Ltd until 20 September 2000.

17 In summary, the Board concluded that Mr O’Brien was guilty of unsatisfactory professional conduct because he had issued the certificate as the accredited certifier (rather than as agent for Mr Cohen) on 12 September 2000 and that a number of the requirements were still outstanding as of that date. The Board took the certificate at face value and found that it had been issued on 12 September 2009. It is now common ground that the certificate was not released to the builders until at least 26 September 2000 when the outstanding items had been provided.

Application to amend reasons refused

18 The Board applied to the Tribunal to amend the reasons for decision. The Board submitted that even if Mr O’Brien’s account is accepted, and the construction certificate was not issued on 12 September, he is nevertheless guilty of unsatisfactory professional conduct, not because of the standard of his competence, diligence or integrity but because he is unfit to carry out the duties of an accredited certifier. That submission was based on the assumption that Mr O’Brien was the certifying authority and that he signed and issued the construction certificate before he had received two outstanding compliance certificates (Items 2 and 6 on the 1 September fax). The Tribunal refused an application by the Board to amend its reasons for decision to allege that Mr O’Brien is unfit to carry out the duties of an accredited certifier: O’Brien v Building Professionals Board [2009] NSWADT 189 (21 July 2009). In that decision at [11], the Tribunal said that:

If the Tribunal accepts that, in making the endorsement, Mr O'Brien was not issuing the certificate, or not exercising his function as a certifying authority, then a finding that he engaged in conduct "in connection with the exercise of an accredited certifier’s functions as a certifying authority" cannot be sustained: s 109R(a) of the EPA Act .

1. Should the Tribunal stay or dismiss the proceedings because the matter was heard almost 8 years after the incidents giving rise to the proceedings occurred?
2. If not, is Mr O’Brien guilty of unsatisfactory professional conduct? In determining that issue, the following questions need to be resolved:

a) did Mr O’Brien exercise functions “as a certifying authority” on the Northmead project?

b) if so, did his conduct fall 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?

As we are satisfied that Mr O’Brien did not exercise functions as a certifying authority there is no need to decide the second question.

Should the Tribunal dismiss or stay the proceedings for delay?

19 Mr O’Brien submitted that the Tribunal should dismiss the proceedings because of the prejudice he has experienced due to the delay in the Board’s decision making process. The conduct that underpins the Board’s finding that Mr O’Brien was guilty of unsatisfactory professional conduct occurred in September 2000. The Board found Mr O’Brien guilty of unsatisfactory professional conduct and imposed a reprimand and a fine on 4 March 2008. Mr O’Brien applied to the Tribunal for a review of the disciplinary finding and the action taken by the Board on 18 April 2008.

20 Mr O’Brien relied on two sources of power for the Tribunal to dismiss the proceedings. The first was s 23(g) of the BP Act which provides that:

The Board may dismiss a complaint at any time (including during the investigation of the complaint) for any of the following reasons:
. . .
(g) if the complaint relates to a matter that occurred more than 3 years before the making of the complaint.

21 The second source of power was said to be an implied power to dismiss or permanently stay proceedings for abuse of process. Mr O’Brien’s argument is that the initial ‘proceedings’ brought by the Board are an abuse of process.

22 Despite detailed submissions on this issue both Mr O’Brien’s applications for dismissal must fail for two very straightforward reasons. Section s 23(g) of the BP Act confers power on the Board, not the Tribunal, to dismiss a complaint. Even if the Tribunal has power to dismiss a complaint, there is no complaint before the Tribunal to dismiss. The Tribunal has before it an application from Mr O’Brien to review a disciplinary finding and the action taken by the Board. Secondly, even if we accept that the Tribunal has implied power to dismiss or permanently stay proceedings for abuse of process, such an order is of no use to Mr O’Brien. He is the applicant for review of a disciplinary finding. Staying or dismissing the proceedings would leave intact the Board’s decision.

Was Mr O’Brien exercising functions as a certifying authority on the Northmead project?

. Because the definition of unsatisfactory professional conduct is conduct occurring in connection with the exercise of an accredited certifier’s functions “as a certifying authority”, Mr O’Brien cannot be guilty of unsatisfactory professional conduct unless he was performing functions “as a certifying authority” on the Northmead project. Mr Cohen, not Mr O’Brien, was the certifying authority on the Northmead project and Mr O’Brien did not perform functions as a certifying authority on that project. Those conclusions are based on several findings including the following:

a) Mr Cohen’s name and accreditation number appeared on the certificate;

b) despite the fact that the construction certificate named Essential Certifiers Pty Ltd as the certifying authority, the certifying authority must be an individual who is an accredited certifier;

c) the functions of a certifying authority cannot be delegated nor can another accredited certifier act as agent for a certifying authority;

d) Mr Cohen met with the developer and the architect and told them he could certify the plans;

e) after the builders applied for the construction certificate, Mr Cohen assessed some plans for compliance with the BCA and the development consent and requested six further items to be attended to before the construction certificate could be issued;

f) Mr Cohen did not transfer the file for the Northmead project to Mr O’Brien; and

24 We set out below a summary of the chronology of events and our findings.

25 Construction plans. In early 2000 the developer, Diab Finianos asked the architect, Mr Drummond, if some modification to the plans could be made including having only one level of car parking instead of two. Mr Drummond appointed his draftsman, Trevor Hefren, to prepare the construction plans incorporating the changes they had spoken about and asked Mr Hefren to contact Mr Cohen to obtain a quote from him to be the certifier for the project. Mr Drummond met with Mr Cohen on 25 July 2000 to go through the draft construction certificate plans with the developer, Mr Diab Finianos, and the draftsman, Mr Hefren. He remembers asking Mr Cohen whether he could certify the plans when they showed only one level of car parking, or whether they would have to go back to Council to seek approval for the changes. Mr Drummond says he recalls Mr Cohen saying that he could certify the plans and that anything below the ground would not require an amended development application (DA). Mr Drummond said that Mr Cohen did not say anything to indicate that he was unhappy with the draft construction plans or that he could not issue the construction certificate on the basis of those plans. Mr Hefren corroborated Mr Drummond’s version of what was said at this meeting.

. The developer, Mr Diab Finianos, also recalls Mr Cohen saying at the 25 July meeting that he did not see any problems with the construction plans. In particular, he recalls him saying:

Basically, under the current rules, it is my job to make sure that the construction plans are consistent with the DA plans. That allows us to make changes at the CC stage without having to go to court or council again with a new DA. Looking at the plans now, the only change of any great substance I can see is the change to the car park. . . . [C]hanging the car park won't affect anything above ground. I don't see it as being a problem with the current DA. I could certify the changes at the CC stage. Anything below ground, it doesn't need a new DA. What you have to do is make sure that you have done everything you are supposed to do as a precondition to the issuing of the CC.

27 Mr Cohen’s recollection. Mr Cohen remembers the meeting and admits that he assessed a set of plans. He gave four different answers to questions about his recollection of the plans he looked at the meeting. First he said that the plans that he assessed were the DA plans, not the plans that were subsequently attached to the construction certificate. Next, he said that the plans he looked at in mid-2000 could have been the construction certificate plans, but denied that the plans showed only one level of car parking. His third answer was that he could not give a definitive answer to the question about which plans he was looking at during the meeting in mid-2000. He remembers a reference to “stacked parking”, but not to one level of car parking instead of two. Finally, he said it was possible that if draft construction certificate plans had been prepared before the July meeting, they would have been discussed at the meeting. He denied that he told the developer and the architects that he could certify the plans despite the fact that they did not correspond with the development application drawings because anything below ground did not require any further application to Council.

28 Finding. Mr Cohen’s evidence was comprehensively discredited during cross-examination. We are satisfied on the basis of the consistent evidence of Mr Diab Finianos, Mr Drummond and Mr Hefren and the inconsistent evidence of Mr Cohen, that Mr Cohen looked at the draft construction plans at the meeting and that those plans showed only one level of car parking. We are also satisfied that Mr Cohen told the others at the meeting that he could issue the construction certificate on the basis of those plans without the need to go back to Council or to the court.

. On 21 August 2000 the builders, Silky Construction Pty Ltd, applied to Essential Certifiers Pty Ltd for a construction certificate to enable building work to commence. Mr Cohen agreed that he assessed some plans on or about 21 August. Following that assessment he sent a facsimile to the builders on 1 September 2000 saying that he had assessed the plans for compliance with the BCA and the development consent. He went on to say in that correspondence that before the construction certificate could be issued, he required six further items to be attended to. Those items were:

1. evidence of registration of easement
2. compliance certificates from the hydraulic engineer and structural engineer
3. soil erosion plans
4. bank guarantee in place for conditions 40 7 48 and 71
5. letter of authority under seal
6. confirmation that the sound transmission of stack is to be constructed of two layers of 13mm gyprock on metal studs, with seals to openings.

30 Mr Cohen gave evidence that it was his practice to send a facsimile in relation to outstanding matters. The fact that the facsimile of 1 September was sent suggests to him that he had been through the conditions of the development consent and made an assessment of a set of plans.

31 Finding. Mr Cohen assessed some plans on 21 August 2000 and, on 1 September, he was performing the functions of an accredited certifier in relation to the Northmead project by assessing the plans for compliance with the BCA and the DA consent and sending the builders a facsimile of that date requiring six items to be attended to ‘for us to issue the CC.’

32 Transfer of file to Mr O’Brien? Mr Cohen gave evidence that on 11 September 2000, the day that he went on leave to attend the Olympic Games, Mr O’Brien asked him for more work and he gave him the Northmead project file. According to Mr Cohen, from then on Mr O’Brien was responsible for the project. Mr Cohen said that:

33 In oral evidence Mr Cohen said that he recalls giving Mr O'Brien the file, even though the company was in disarray at the time and he and Mr O’Brien were not on speaking terms. At that time, the relationship between Mr Cohen and Mr O’Brien was acrimonious. Mr Cohen said he transferred the files because Mr O'Brien wanted work, or it may have been because he was going on leave. He said he specifically recalls Mr O'Brien asking for work and recalls handing him the file without any discussion. Mr O’Brien’s evidence was that Mr Cohen did not transfer the Northmead file to him and there was no understanding that he would be the PCA and issue the construction certificate in his own name. He says his version of events is supported by the following facts:

a) Mr Cohen had had meetings with the builders and the architect and was familiar with the project;
b) at this time Mr Cohen and Mr Moy, were negotiating to purchase Mr O’Brien’s share of the company. Given his imminent departure from the company it would not have made sense to transfer projects to him;
c) the development is situated in Northmead, an area normally processed by staff at the Castle Hill office, not the Liverpool officer where he was based.

. We are satisfied that Mr Cohen did not transfer the file to Mr O'Brien and assume that he would become the PCA, because:

1. The relationship between them at the time was acrimonious. Mr O'Brien had commenced proceedings in the Supreme Court to wind up the company. They came to a confidential resolution in relation to that matter. One component of the calculation as to Mr O'Brien's share of the business was the number of clients that he currently had. Mr Cohen knew that the more files Mr O'Brien had in his name, the greater the value of his interest in the firm and the more he would have to be paid out in any settlement. In the midst of such a dispute, Mr Cohen would not have given Mr O’Brien files even if he was going on leave.

2. Mr O'Brien normally dealt with matters on the south side of Parramatta Road. Mr Cohen agreed that it was unusual for Mr O'Brien to be involved in files for properties north of Parramatta Road.
3. Mr Cohen agrees that he did not tell his clients that he was going to hand the file over to Mr O'Brien when he went on leave.

35 Ms Everson’s involvement. During this period, Ms Everson was the office manager of Accredited Certifier’s Liverpool office. She maintained a database which contained the information necessary to produce a construction certificate. When an application for a construction certificate is received, data is entered into the computer by the administration staff. That data is then used to generate documents including the construction certificate. On 12 September, the day after Mr Cohen went on leave, Ms Everson had a telephone conversation with the builder, Ray Finianos. A few minutes after that phone call she sent him a facsimile asking for certain information that would enable the ‘release/printing’ of the construction certificate. In particular she noted that items 2 and 6 of the items listed in Mr Cohen’s 1 September facsimile were still outstanding. Those items were the compliance certificates from the hydraulic engineer and structural engineer and confirmation that the sound transmission of stack is to be constructed of two layers of 13mm gyprock on metal studs, with seals to openings. Ms Everson would have requested that those outstanding matters be provided because they would have been items that had not been logged on to the computer.

. Mr O’Brien agrees that the construction certificate was printed by administration staff on Mr Cohen's instructions. We are satisfied that on 12 September, the same day that Ms Everson sent the facsimile to Mr Finianos, she, or someone else in the office, printed out the construction certificate on Mr Cohen’s instructions. In relation to the date on the construction certificate, 12 September 2000, Mr Cohen agreed that the accredited certifier handling the file would ask the clerical staff to print the construction certificate when it was ready to be issued. As we have said, the certificate named Mr Cohen as the accredited certifier and bore the date of "12/Sep/2000". That date was generated by the computer when the certificate was printed. The attachments to the construction certificate bore Mr Cohen’s stamp which stated, “This is the plan/spec referred to in Essential Certifiers Certificate dated . . . . .Cert. No. . . . . Officer B Cohen Accreditation No 623.” One of the administration staff would have stamped the attachments using Mr Cohen’s stamp and filled in the remaining details. We accept that it was the company's practice for the date stamped on the annexures to be the same date as the date on the construction certificate. That was the situation for the construction certificate in dispute in these proceedings.

37 Issuing of the construction certificate. On 20 September 2000 the architect, Mr Drummond, informed the builders of the outstanding issues that were delaying the issuing of the construction certificate. On 22 September the builder, Ray Finianos, sent a facsimile to Ms Everson with ‘all remaining documents required for the release of the construction certificate.’ The construction certificate was issued (released to the builder) on 26 September 2000.

38 Practice in the office. Ms Everson’s evidence was that it was the practice when a certifier was absent from the office, and the matter was urgent, for another certifier to sign a construction certificate on his behalf. She said that she would provide the available certifier with the file when advising them of the request. Mr Cohen denies giving Mr O'Brien any authority to sign a construction certificate on his behalf. He said there was no practice that another accredited certifier would sign a construction certificate if the person handling the file was not available and was not aware of that ever having happened. The practice when Mr Cohen worked at Council was that other builders would sign off, because Council was the issuing authority. However Mr Cohen denies that in 2000, he thought the company, rather than the individual certifier, was the certifying authority. That answer is not consistent with the fact that Accredited Certifiers was named on the certificate as the certifying authority. Mr Cohen says that the only reason he became the PCA was because his name was on the construction certificate. Mr Cohen denies that the matter became pressing while he was on leave. When asked why he sent the fax of 1 September, he said it may have been because the client was pressing for the construction certificate. He agreed that sometimes clients need the construction certificate urgently.

39 Mr O'Brien said it was not a common practice in the profession for one accredited certifier to sign for another, however, if the construction certificate was ready to be issued and the accredited certifier was not available, someone else could sign. He said he had signed for other accredited certifier’s before, but he can't remember the details.

40 Finding. Despite Mr Cohen’s denials, the fact that Accredited Certifiers was named on the certificate as the certifying authority satisfies us that both Mr Cohen and Mr O'Brien wrongly assumed that the company was, in substance, the certifier and that any of the three accredited certifiers who were directors of the company could sign the construction certificate. While the file in relation to the Northmead project was not in evidence, the documentation that was in evidence reveals that Mr O'Brien did not initiate any correspondence with the builder or architects, nor did he sign any correspondence prepared by Ms Everson. The only place his name appears in any of the documentation is on the certificate itself. This leads us to infer that Ms Everson was the person who attended to the necessary detail and it was she who asked Mr O'Brien to endorse the certificate. We are also satisfied, in accordance with the evidence of Ms Everson and Mr O’Brien, that the practice in the office was for another certifier to sign on behalf of the person whose name was on the certificate if the matter was urgent.

When did Mr O’Brien endorse the construction certificate?

41 Mr O’Brien does not remember exactly when he endorsed the certificate but he agrees that it must have been some time between 12 September, when the certificate was printed, and 26 September when it was issued. If he endorsed it before 22 September, then he did so before the last two remaining items had been provided. However, regardless of whether the endorsement was made before or after 22 September, Mr O’Brien was not performing functions of a certifying authority when he endorsed the certificate.

42 Evidence about capacity in which Mr O’Brien endorsed the construction certificate. Mr O’Brien and Mr Cohen were independent accredited certifiers with different accreditation numbers. Mr Cohen’s accreditation number appeared on the certificate. Mr O’Brien endorsed the construction certificate with Mr Cohen’s name by writing "B Cohen” next to the word ‘signed’ on the Construction Certificate. Underneath the line provided for the signature, Mr O’Brien wrote ‘per ROB’ (Mr O’Brien’s initials). Mr O’Brien says that he wrote those words because he was intending to convey that he was signing on behalf of Mr Cohen. Mr O'Brien said that he was merely performing an administrative task. It was Mr O’Brien’s belief that Mr Cohen was the certifier, and he was not exercising any power under s 79G. He said the function that he performed was checking that Mr Cohen had been satisfied of the matters he needed to be satisfied of. He said he only satisfied himself about the outstanding items in the 1 September fax.

43 Mr O'Brien agreed that there were functions which could only be fulfilled by a certifier which remained incomplete when Mr Cohen took leave. The Board submitted that Mr O’Brien admitted that he issued the certificate and that he exercised independent functions (or permitted Ms Everson to do so) before issuing the certificate.

44 It is common ground that Mr Cohen was not in the office and that no contact was made with him between 12 and at least 26 September 2000. In that time the only certifier associated with the project was Mr O'Brien. According to the Board, Mr O'Brien may have thought he was merely checking what had already been done, but objectively he was completing the process and acting as the certifier. Regardless of his opinion of his role, his actions must be viewed objectively. Mr O'Brien must take responsibility for what occurred between 12 September and 26 September during which time there was no input from Mr Cohen. In those circumstances, the Board submitted that Mr O'Brien was the certifying authority and that the alleged conduct occurred in connection with the exercise of his functions as a certifying authority.

45 Finding. While we accept that during the period from 12 to 26 September, Mr O’Brien performed functions which could only be performed by an accredited certifier, that does not mean that he was performing those functions ‘as a certifying authority’. Mr Cohen was the certifying authority. Mr O’Brien wrongly assumed that the certifying authority could delegate his or her functions and/or that another accredited certifier could act as agent for the certifying authority. Those assumptions were incorrect.

46 Delegation

. Mr O'Brien said that there was power in 2000 to delegate certain functions of an accredited certified to someone else. This would have to be done under supervision, although he conceded that there was no power in the legislation for such a delegation, it was acceptable if the unqualified person was being supervised. It is a common law rule that a person invested with a statutory power must exercise it personally, rather than delegate it to others: Aronson et al Judicial Review of Administrative Action, 4^th ed Lawbook Co 2009, p 337. Mr O'Brien submitted that as there was no prohibition on delegation in the EPA Act it was open to a certifier to delegate functions including the function of certification. The Board said that this was incorrect as a matter of law and relied on Northern Residential Proprietary Ltd v Newcastle City Council [2009] NSWCA 141 (5 June 2009) In that case, Hodgson JA with whom Tobias J A and Simpson J. said at [47]:

47 According to the Board, although this decision related to the function of inspection, the proposition applies equally to certification. We agree. The function of certification is indivisible. The certifier is a private person having a specific qualification. The EPA Act gave that person power to make a decision based on a level of satisfaction reached after consideration of specific matters. Where, as in this case, it is important that the decision maker be accountable, or have a particular status or qualification, the prima facie rule that a statutory power must be exercised personally by the decision maker applies. There was no power in the EPA Act to delegate the certification function and none can be implied.

. In Judicial Review of Administrative Action, 4^th ed Lawbook Co 2009, Aronson et al described at 344-345 the difference between delegates and agents in the following way:

49 A bare agent is a person who is authorised to exercise a function on behalf of the principal without independent discretion.

50 Mr O'Brien's case was that a construction certificate can be signed by an agent on behalf of the certifier and it remains the principal's certificate. That is what he said had occurred in this case. He said that he was acting as agent in endorsing Mr Cohen's name on the construction certificate.

51 The Board agreed that there was a prima facie rule that common law agency is not excluded by a statutory requirement that a document is to be signed by a particular person. However that rule was qualified in McRae v Coulton (1986) 7 NSWLR 645 at 663E in the following terms.

52 The Board sought to distinguish McRae which involved an application by a private person for a licence under the Water Act 1912. The case did not involve the determination of that application or any question concerning a statutory decision made by a person or body other than the repository of the power. The Board also relied on the following passage from Aronson et al in Judicial Review of Administrative Action (4^th ed) at 344 as a correct statement of the law:

The principle that private persons can act through agents is not something generally applicable to repositories of public power. Public law does, however, allow some room per agency although this generally goes under the labels of either the alter ego theory or the Carltona principle, after a case of the same name.

53 Aronson et al then go on to outline the content and application of those principles, neither of which is applicable to the circumstances of this case.

54 The Board submitted that the agency principle in public law only operates at a high level of decision-making within the public service structure. As a private certifier cannot delegate his or her power and the decision to issue the certificate under Cl 79G is indivisible, there is no scope for any agency principle to apply. In our view, the power to issue a construction certificate is not a power that can be exercised by an agent.

Conclusion

55 The Board's decision that Mr O'Brien is guilty of unsatisfactory professional conduct should be set aside. The reason that Mr O'Brien is not guilty of unsatisfactory professional conduct is that he was not exercising functions as a certifying authority in relation to the Northmead project.

The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside.
The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.

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Citations

O'Brien v Building Professionals Board (No 2) [2010] NSWADT 250

Most Recent Citation

O'Brien v Building Professionals Board (No 2) [2011] NSWADT 129

Cases Citing This Decision

1

O'Brien v Building Professionals Board (No 2) [2011] NSWADT 129

Cases Cited

3

Statutory Material Cited

4

O'Brien v Building Professionals Board [2009] NSWADT 189

Northern Residential Pty Ltd v Newcastle City Council [2009] NSWCA 141

Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303

CITATION:	O’Brien v Building Professionals Board (No 2) [2010] NSWADT 250
DIVISION:	General Division
PARTIES:	APPLICANT Russell O’Brien RESPONDENT Building Professionals Board
FILE NUMBER:	083129
HEARING DATES:	26, 27 & 28 August 2009
SUBMISSIONS CLOSED:	17 March 2010
DATE OF DECISION:	20 October 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Hayward P - Non-Judicial Member
CATCHWORDS:	Unsatisfactory professional conduct - accredited certifier – conduct occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994
CASES CITED:	O’Brien v Building Professionals Board [2009] NSWADT 189 Northern Residential Proprietary Ltd v Newcastle City Council [2009] NSWCA 141 McRae v Coulton (1986) 7 NSWLR 645
TEXTS CITED:	Judicial Review of Administrative Action, 4th ed Lawbook Co 2009, Aronson et al
REPRESENTATION:	APPLICANT G McNally SC RESPONDENT T Robertson SC
ORDERS:	1. The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside 2. The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.