On 16 May 2019, I heard an application for a stay, brought by the applicant in the course of administrative review proceedings in the Tribunal.
In addition to a stay, the applicant sought an order that the respondent remove notice of its decision and the conditions it placed on the applicant from its website and any other publication within its control, pending determination of the substantive application for review.
On 22 May 2019, I granted the applicant a conditional stay. These are the reasons for that decision.
[2]
Background and submissions
The applicant is a building certifier, who has sought a review of the decision of the respondent made on 3 May 2019 to cancel his accreditation, effective on 31 May 2019, whilst also preventing him from determining or issuing various certificates and carrying out final inspections, with immediate effect.
The review application is yet to be listed for hearing but I was informed by the applicant, and will accept for the purpose of the stay application, that enquiries with the Registry indicate that the matter is likely to take six to nine weeks to reach a hearing.
Each party was represented in the application. The applicant relied upon an affidavit of Mr Bradley Grimshaw, an accountant who consults to Boycebuild Pty Limited, the company Mr Boyce acts for in his certification activities (the company), which was unchallenged, and written and oral submissions. The respondent relied on its oral submissions.
Mr Grimshaw deposed to the following relevant matters:
1. that Mr Boyce is the sole director of and the only person employed by the company who is authorised to act as a principal certifying authority (PCA);
2. Mr Boyce is an A2 accredited certifier and has worked as a building surveyor/certifier since 1967;
3. the period of investigation of the complaints which form the basis of the Decision has been over a period of 750 days;
4. the effect of the Decision is that eight staff will be affected as the operation of the business relies upon Mr Boyce being able to operate as a PCA and work cannot be undertaken in the absence of a stay;
5. in the absence of a stay, it is unlikely that the staff will remain employed as there will be no income or work to be completed;
6. four of the staff are over 50 years of age;
7. there would be a significant financial impost on Mr Boyce if he was forced to make his staff redundant. The entitlements owing to staff are in the order of $140,000.00;
8. Mr Boyce has 2,199 active construction certificate and complying development certificate files;
9. the effect of the decision is that Mr Boyce needs to take steps to transfer the files to other PCAs. This requires an application to be made by each of customers of the company, and payment of a fee, to seek approval for transfer.
Mr Grimshaw also expressed his opinions that the consequences of delays in the issue of certificates to the customers of the company may include:
1. delay in occupation of dwellings which may result in difficulties securing short term housing for families;
2. delay in payments to builders and subcontractors; and/or
3. delay in construction funding payments.
Whilst Mr Grimshaw's qualification to express those opinions was unclear, I accept that the issues in [8(2)] and [8(3)] are likely to be correct, based on commonly accepted building practice.
The essence of the applicant's submissions was that the decision, if not stayed, is likely to cause the company to lose the subject matter of his business and its staff. It was also submitted that the effect of the decision impacts not only on Mr Boyce and the company's staff, but also any customers of the company who wish to progress their building programs without delay. The applicant submitted that the loss would be permanent and irreparable.
The respondent submitted that the case against Mr Boyce was strong and that it involved issues of public safety. In its view, the public interest outweighed the detriment to Mr Boyce if the stay was not granted. It noted that a number of separate complaints had been found to be made out and that its role is a protective one.
If a stay was to be granted, the respondent submitted that it should be conditional. Its preferred condition in that event was that:
Mr Peter Boyce is not authorised to accept any application seeking that he issue a complying development certificate or a construction certificate, other than in relation to any undetermined application received by Mr Boyce on or before 3 May 2019, and any application seeking a modified certificate.
The effect of this condition would be to restrict the applicant to work in hand, pending determination of the review. The applicant says that such a condition would be overly and unnecessarily burdensome.
[3]
Relevant Principles
There was no question that the Tribunal has power to order a stay in the proceedings: s 60(2) of the Administrative Decisions Review Act 1997 (NSW) (ADRA). Nor was there any dispute that the Tribunal has a broad discretion to impose conditions in granting the stay: s 62, ADRA.
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of this Tribunal led by Wright J, summarised the considerations which should be applied when considering a stay in matters such as this as including:
1. whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADRA;
2. whether the order is desirable taking into account:
1. the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADRA, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];
2. any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADRA, Loveday at [10], Re Scott at [4];
3. the public interest: s 60(3)(c), ADRA, Loveday at [10], Re Scott at [4];
4. the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].
The overriding principle in an application for a stay is to ask what the interests of justice require.
[4]
Application of the relevant principles to the facts
[5]
The applicant's prospects of success on review
In the decision, the applicant was found guilty of professional misconduct and unsatisfactory professional conduct, based on five complaints.
The respondent submitted that those complaints related to issues of public safety, a factor which, it says, militates strongly against a stay.
The applicant says that he has identified errors in the approach taken by the respondent in making its findings, which will be agitated on review. He says that his conduct, objectively viewed, does not amount to serious errors of judgment in relation to safety.
The substantive review does not take the form of an internal appeal, reliant on the applicant's ability to identify an error of law or obtaining leave to correct a perceived error of fact. Rather, the Tribunal will reconsider the issues for determination entirely, to come to what it considers to be the "correct and preferable" decision: s 63(1), ADRA. The Tribunal may receive fresh evidence, in addition to or in substitution for the evidence which was initially before the respondent. In that context, and with the limited material available to me, it is difficult to determine the strength of the applicant's case.
I consider the strength of the application to be a neutral matter in determining whether or not to grant the stay.
[6]
The respondent's failure to suspend the applicant during the investigation of the complaints
The parties agree that, under Pt 2, Div 3 of the Building Professionals Act 2005 (NSW), the respondent had a broad power to suspend the applicant's accreditation, or to impose conditions on it, during its investigations.
The applicant's unchallenged evidence was that the period of those investigations ranged between 750 days at the longest and 315 days as the shortest investigation period.
The applicant points to the respondent's failure to act to suspend his accreditation as indicating that the Tribunal may take a level of comfort when weighing the interests of the applicant against the public interest, during what he says will be the relatively short period before the review can be determined.
There is some force in this submission, particularly where there were multiple complaints being investigated.
However, I had no evidence which would allow me to know when the respondent completed its investigations into any particular complaint or reached the view that it was made out. The respondent would open itself to criticism by the applicant if it had acted precipitously in suspending his authority.
In my view this issue is, likewise, neutrally weighted.
[7]
The competing rights and interests to be weighed
The protection of the public is a matter entitled to significant weight on an application for a stay, once it appears that a professional person has acted improperly to a substantial degree: NSW Bar Association v Stevens [2003] NSWCA 95. Self-evidently, the certification of buildings is an issue which may involve the safety of the public.
I accept that a refusal to grant a stay would be likely to have serious and potentially irreversible financial consequences for the applicant. That, in itself, would not outweigh the public interest in maintaining the protection granted by the decision in my view. The public is entitled to have confidence in the certification system and to be protected from the consequences of professional misconduct.
However, there are other competing interests which I should consider, including the effect of the order on the other employees of the company and the inconvenience to its current customers in having to locate and retain another certifier (together with the minimal cost of each transfer), which may be unnecessary if the applicant is successful in maintaining his accreditation on review.
The importance of preventing that inconvenience to customers of the company has another consequence, in that I cannot be satisfied that it would be appropriate for the applicant to take on new work pending the finalisation of the review, so that that inconvenience is not caused to an expanded group if the applicant is unsuccessful in retaining his accreditation.
On balance, the interests of justice require me to grant the application for a stay, subject to the condition sought by the respondent.
In relation to the applicant's request for the removal of any reference to the decision and conditions placed upon his accreditation from the respondent's website and other publications, I am not satisfied that I should impose that condition in granting the stay.
During the hearing, the respondent undertook to ensure that wherever it noted the decision and conditions, it would also note that the decision was subject to review, and would do so within seven days. I was satisfied that in it doing so, an appropriate balance is struck between the right of the current customers of the company to information about the process, without requiring them to transfer their work in order to progress their applications, pending determination of the review.
Given that the stay has been granted, I am satisfied that should also be noted by the respondent in its relevant publications. Rather than order that it do so, given the initial concession it made, I will grant the applicant leave to relist the matter if the respondent fails to make the notations within seven days.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 June 2019