Commandeur v Building Professionals Board

The Board's Guidelines

1. The Board has adopted Disciplinary Penalty Guidelines ("the Guidelines") which are published on its website. These Guidelines are taken into account to determine penalties when considering disciplinary action. The Guidelines categorize infringement based upon the degree of seriousness. Infringements are divided into six categories: A. complaints that satisfy the requirements of section 22 of the BP Act for taking no further action or section 23 for dismissal; B. minor infringements identified in legislation as capable of being dealt with by the issue of a Penalty Infringement Notice; C. minor infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of up to $5,000 is appropriate; D. moderate infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of between $5,000 and $20,000 is appropriate; and E. significant infringements that are unsatisfactory professional conduct or professional misconduct where a caution, reprimand or the imposition of conditions and a fine of between $20,000 and $50,000 is appropriate; F. major infringements involving unsatisfactory professional conduct or professional misconduct where a caution, reprimand, the imposition of conditions, suspension, cancellation or disqualification are appropriate together with a fine of $50,000 to $110,000.
2. The Board considers that the infringements that are the subject of this application are "moderate" and therefore would fall within category D of the Guidelines.

Background

1. The Applicant has been an accredited certifier since 2 August 2017 when he obtained E1 accreditation under mutual recognition. This was based on accreditation that he held in Queensland. He had not been required to complete an approved Accredited Certifier Swimming Pool Certification course as part of the Mutual Recognition process.
2. In April 2018 the Board received a complaint from an officer at Sutherland Shire Council about conduct of the Applicant. The complaint was that the Applicant was alleged to have approaching property owners and had advised the owners that he was doing pool inspections because the Council was busy. As a result, some property owners gained the impression that the Applicant was working with the Council. The complaint to the Board also included a copy of an email that had been sent by the Applicant to the personal email address of a property owner. In the email the Applicant advised that he intended to carry out an inspection of the property owner's pool at a specified time. Attached to the email was a contract for the owner to engage the Applicant for carrying out services under the Act.
3. If an owner has not requested an inspection from an E1 certifier and not entered into a contract for certification work, there is no authority for the E1 Certifier to enter the property and carry out an inspection.
4. The Board also considered a number of additional matters.
5. The additional matters concern the Applicant's failure to comply with the requirements imposed by the SP Act in respect of properties that he had inspected and found that the requirements for the issue of a certificate of compliance had not been met. The alleged failures are that he failed to produce a certificate of non-compliance; failed to immediately forward a copy of the notice to the local authority; issued notices that did not contain the required information under the SP Act and that he failed to forward a copy of each notice to the local authority.
6. The Board found contraventions in regard to five additional matters. These are referred to as Additional Matter 1, 2, 3, 4 and 5.
7. The Board identified Additional Matter 1 as: In exercising the functions of an E1 accredited certifier in relation to each swimming pool situated at the subject properties listed … Mr Commandeur failed to assess and require compliance of the child-resistant barrier pursuant to the applicable requirements of Part 2 of the Swimming Pools Act 1992 (SP Act).
8. The Additional Matter 1 list identified 15 properties which were said to be relevant to this issue. The Board found that the Applicant: "failed to assess and require compliance of the child-resistant barrier pursuant to the applicable requirements of Part 2 of the SP Act viz., each Notice issued to the owner requiring rectification work referred to AS1926.1-1986 and not AS1926.1-2012".
9. Additional Matter 2 was identified as: In exercising the functions of an E1 accredited certifier in relation to each swimming pool situated at the subject properties listed …, after carrying out an inspection under section 22C of the SP Act that found the requirements for the issue of a certificate of compliance had not been met, Mr Commandeur failed to produce a certificate of non-compliance.
10. The Additional Matter 2 list identified 9 properties which were said to be relevant to this issue. The Board found that the Applicant failed to produce a certificate of non-compliance via the Pool Register within the 7 day statutorily required period.
11. Additional Matter 3 was identified as: In exercising the functions of an E1 accredited certifier in relation to a pool at … Penshurst, upon issuing a notice of non-compliance Mr Commandeur failed to immediately forward a copy of the notice to the local authority.
12. The Applicant undertook an inspection of the pool at the identified property and on 22 February 2018 he issued a notice of non-compliance which identified that: There is no pool fence at all between the property and the pool area. As per New South Wales legislative requirements, there is to be a barrier between the pool area and the residential area.
13. He produced a certificate of non-compliance which stated: The swimming pool poses a significant risk to public safety
14. The Board found that the Applicant did not immediately forward to the local council a copy of the Notice when it was issued by him on 22 February 2018. Therefore, the Applicant contravened section 22E(4)(a) of the SP Act.
15. Additional Matter 4 was identified as: In exercising the functions of an E1 accredited certifier in relation to each pool referred to in Additional Matters 1 and 2, Mr Commandeur issued a notice that did not contain the required information under the SP Act.
16. The Board found that twenty-four notices of non-compliance did not contain all of the information required to be set out in the Notice pursuant to section 22E(3)(e) of the SP Act viz., whether the accredited certifier is of the opinion that the swimming pool poses a significant risk to public safety.
17. Additional Matter 5 was identified as: In exercising the functions of an E1 accredited certifier in relation to various pools, Mr Commandeur failed to forward to the local authority a copy of each notice subject to section 22E(4)(b) of the SP Act.
18. Sections 22E(3)(f)(ii) and 22E(4)(b) of the Act require the Applicant certifier to forward to the local council a copy of a notice of non-compliance if a certificate of compliance has not been issued within six weeks. The copy of the Notice must be forwarded to the council within five days of the expiration of the six weeks period.
19. The Board found that on 21 March 2018 the Applicant issued a Notice in regard to a pool in Forrest Road, Sutherland. The six weeks period expired on 8 June 2018 and no certificate of compliance had been issued. The Applicant failed to forward a copy of the Notice to the council. He issued a certificate of compliance on 29 June 2018.
20. The Board found that on 15 February 2018 the Applicant issued a Notice in regard to a pool in Parkwood Drive, Menai. The six weeks period expired on 29 March 2018 and no certificate of compliance had been issued. The Applicant failed to forward a copy of the Notice to the council. The Board found that no certificate of compliance has been issued for the pool.
21. In both instances the Applicant contravened section 22E(4)(b) of the Act.
22. in regard to other additional matters the Board advised: The certifier is advised to ensure that they are keeping the list required per 60(1) of the BP Act and clause 8(1A)(a) of Building Professionals Regulation 2007 (BP Regulation), and that it be kept in a readily accessible format to promptly meet any request made by the Board per section 60(2) of the BP Act.
23. Following its investigation the Board determined: 1. Pursuant to section 31(4)(a) of the Act, I reprimand the Accreditation Holder. 2. Pursuant to section 31(4)(c) of the Act, I order the Accreditation Holder to complete (and provide documentary evidence suitable to the Board) within a period of three (3) months from the date on which this Notice is deemed to be served on the Accreditation Holder, the following educational course viz., the E1-Accredited Certifier Swimming Pool Certification course from one of the providers specified on the Board's website. 3. Pursuant to section 31(4)(f) of the Act, I order the Accreditation Holder to pay to the Board a fine in the amount of $15,000 within a period of 28 days from the date on which this Notice is deemed to be served on the Accreditation Holder.

The Parties' positions

1. The Applicant does not deny the findings that the Board has made. At issue is whether the Applicant's conduct was of a sufficiently serious nature to justify the Board's determination. The Board argues it was. The Applicant asks the Tribunal to dismiss the disciplinary action and the $15,000 fine imposed.
2. Mr Coss, solicitor for the Board, argues that the Applicant has demonstrated that he does not understand his role under the Act and that his conduct falls well short of what is expected by a member of the public. He submits that a member of the public is entitled to expect that an accredited certifier would comply with the obligations set out in section 22E of the SP Act. He argues that conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier falls within 'unsatisfactory professional conduct' as defined in subsection (a) of section 19(1) of the Act.
3. The Applicant does not challenge the Board's finding of 'unsatisfactory professional conduct'. He accepted that mistakes were made.
4. In regard to the issue of his contact with property owners in a manner that left the owners with the impression that he was working with the Council, the Applicant advised that he understands that his approach was wrong and that he has changed his systems and processes to ensure that the same mistake will not be repeated. As a result of these changes he will no longer make first contact with property owners.
5. The Applicant also accepts that he failed to comply with his statutory duties in regard to the drafting and issuing of notices/certificates of compliance/non-compliance, and not notifying the council within the required timeframes and in the required manner.

Consideration

1. In light of the evidence before us and the fact that the Applicant has not disputed the Board's finding regarding the conduct, we are satisfied that the Applicant is guilty of unsatisfactory professional conduct as defined in section 19(1)(a) of the Act. He may also be guilty of unsatisfactory professional conduct as defined in other provisions, such as section 19(1)(d) of the Act.
2. The evidence shows that the Applicant commenced exercising the functions of an E1 certifier under section 22C(2) of the SP Act in circumstances where no request for an inspection had been made to him by the property owner. He also failed in multiple instances to comply with his statutory duties in regard to the drafting and issuing of notices/certificates of compliance/non-compliance, and he had not notified the council within the required timeframes and in the required manner. That being the case, the Tribunal may take any one or more of the actions specified in section 31(4) of the Act.
3. In Building Professionals Board v Cogo [2008] NSWADT 119 the Administrative Decisions Tribunal stated at paragraph [85]: 85 The Tribunal has indicated in the various cases that the objective gravity of the conduct should be the focus when considering where the conduct might fall on the spectrum set by the legislation …
4. In Qiu v Building Professionals Board [2013] NSWADT 289 the Administrative Decisions Tribunal discussed relevant considerations in disciplinary proceedings and stated at paragraphs [97] - [98]: 97. Mr Grey for the Board made detailed written and oral submissions on the question of the appropriate further orders. Mr Grey organised his principal submissions by reference to the list of the factors reflected in the Board's disciplinary penalty guidelines, and drawn from Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 at [45] per K P O'Connor DCJ, Chairperson (also the presiding member on this occasion). 98. That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant: (a) the nature, width and extent of the contraventions (b) the loss or damage and prejudice in consequence of the contraventions (c) the circumstances in which the contraventions took place (d) whether the licensee has been seen to have engaged in any similar conduct (e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee (f) the extent of carelessness or wilfulness of the conduct (g) the efforts made to correct the situation and what measures have been taken by the licensee (h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners (i) the effect upon the licensee (j) antecedents (k) attitude, building history and future compliance (l) the penalty range.
5. Qiu v Building Professionals Board was recently followed in this Tribunal in the matter of in Lilli v Building Professionals Board [2019] NSWCATOD 119, The Tribunal noted at paragraph [58]: More recent decisions of this Tribunal, including Hallal v Building Professionals Board [2016] NSWCATOD 78, Levick v Building Professionals Board [2018] NSWCATOD 125, and Treble v Building Professionals Board [2019] NSWCATOD 34, have been guided by consideration of those factors. …
6. In the circumstances of this case, relevant factors include: the circumstances in which the contraventions took place; the nature and extent of the conduct; the Applicant's previous disciplinary history; the extent of carelessness or wilfulness of his conduct; any loss or damage or prejudice; and what measures have been put in place to ensure future compliance and the effect upon the Applicant.

The circumstances in which the contraventions took place

1. The Applicant obtained his accreditation as a certifier under mutual recognition of his Queensland accreditation. As a consequence he was not subject to the requirement that he complete an approved course. He was not aware of the significant differences between the applicable requirements in NSW and those in Queensland. His failure to familiarise himself with the NSW requirements was a significant contributing factor to his conduct in failing to comply with the NSW requirements.
2. He approached property owners, without being solicited, and gave the impression that he was associated with the local authority. He failed to meet his obligations in regard to drafting and issuing of notices/certificates of compliance/non-compliance, and failed to notify the relevant council within the required timeframes and manner.
3. These contraventions are the result of the Applicant's failure to have regard to and apply the statutory requirements. It appears that this was because he did not understand his role and obligations under the Act and the SP Act.
4. In our view, there is an obligation on the Applicant as an accredited certifier to ensure that he is able to carry out his role in accordance with the legislative requirements. The Act is designed to protect the public and accredited certifiers must ensure that their certification work meets acceptable standards.

The nature and extent of the conduct

1. The Board's decision identified numerous failures to comply with the requirements of section 22E of the SP Act. The Applicant has attempted to play down the seriousness of these contraventions. We do not agree with this view. Pool safety is a significant public issue. There is the potential for harm if the appropriate standards are not met and compliance with the certification and notice requirements are an integral component of the regulatory scheme as they provide a mechanism for monitoring compliance. The potential for harm is exacerbated if the requirements of section 22E of the SP Act are not followed. It is fortuitous that the contraventions identified in this matter did not result in serious consequences.

The Applicant's previous disciplinary history

1. The Applicant has had no other disciplinary findings by the Board. However, he has had two findings of 'unsatisfactory conduct' by the Queensland Building and Construction Commission (Pool Safety Council). The Tribunal has been given a copy of those findings and the associated decisions. The first of those decisions was as follows: On 12 March 2014, the Pool Safety Council (PSC) decided pursuant to: 1.1. section 246CY(1) of the BA that grounds for disciplinary action against Mr Commandeur had been established; and 1.2. section 246CY(4) of the BA and section 16G of the BR that Mr Commandeur pay a total of $3200 to the PSC within eight months of receiving this Information Notice for the following breaches: 1.2.1. pay $2200 to the PSC within eight months of the date of receiving this Information Notice for two breaches of section 246AW(1) of the BA and contravention of section 3 of the code of conduct; and 1.2.2. pay $1000 to the PSC within eight months of the date of receiving this Information Notice for two breaches of section 246AY of the BA and contravention of sections 3 and 4 of the code of conduct; and 1.2.3. be reprimanded and allocated two demerit points under section 16G of the BR for a breach of section 246AB(2) of the BA.
2. The second decision was as follows: 1. On 6 June 2014, the Pool Safety Council (PSC) decided pursuant to: 1.1. section 246CY(1) of the BA that grounds for disciplinary action against Mr Commandeur had been established; and 1.2. section 246CY(4) of the BA to: 1.2.1. suspend Mr Commandeur's pool safety inspector (PSI) licence for a period of six months; and 1.2.2. direct Mr Commandeur to complete to the satisfaction of the PSC the following educational course - Course in Swimming Pool Safety Inspections (31005QLD) within six months of receiving the Information Notice. The PSC will not be satisfied if the course is completed through the Recognised Prior Learning framework.
3. Clearly these are serious decisions and we give them significant weight in determining whether the Board's disciplinary action is appropriate.

The extent of carelessness or wilfulness of his conduct

1. There is no suggestion that the contraventions were the result of wilful conduct. However, the Applicant failed to ensure that he had the appropriate level of knowledge to be able to perform his role as a certifier properly. This consideration is to be given reasonable weight.

Any loss or damage or prejudice

1. There is no suggestion that individual property owners have suffered any loss, damage or prejudice as a result of the contraventions. However if works were undertaken to the wrong version of the Swimming Pool Standard AS1926 - additional costs to meet the current (correct) version of the standard could occur for the property owners.

Measures that have been put in place to ensure future compliance

1. The Applicant has accepted responsibility for the contraventions however he has attributed the failure to meet his obligations in regard to issuing notices to a changeover in staff and programs. He stated that he is mindful of the significance of notices and he has undertaken to ensure that all timeframes will be met in the future. He has completed the E1 Accredited Certifiers - Swimming Pool Certification Course and stated that he is now fully aware of all administrative procedures that must be followed.
2. In contrast to the Applicant's assurances, Mr Coss advised that inquiries undertaken by the Board in March 2019 revealed that the Applicant had failed to forward the required notices to the local authority for several identified properties. Mr Coss submitted that the conduct outlined in 'Additional Matter 5' has continued despite the Applicant's assurances that his conduct has changed.
3. This consideration is to be given significant weight.

The effect upon the Applicant.

1. The Applicant has stated that the returns available to him as a certifier are minimal and his resources are very limited. As a consequence, he is unable to pay the fine and that he will be forced into bankruptcy.

Penalty

1. As noted above, we regard the Applicant's unsatisfactory professional conduct as serious. He should not have made the errors he did. He must have been aware that he was the subject of disciplinary action in Queensland. He was both fined and suspended. He was also required to undertake an education course. These decisions should have alerted him to the importance of meeting his obligations as a certifier. His failure to take steps to ensure that he understood his obligations once he commenced operating in NSW is a significant failure.
2. We do not consider his financial circumstances should be given more than minimal weight in determining the level of penalty. We accept that there are no aggravating features such as harm or loss to others. Similarly, there is no evidence that he acted dishonestly or in a partial manner.
3. We note that the Applicant has already undertaken the Accredited Certifier Swimming Pool Certification course that the Board determined should be completed.
4. We consider that the Applicant's conduct falls within category D of the Board's Guidelines. We do not consider that the penalty imposed is excessive in the circumstances. Given the seriousness of the conduct and the fact that he has been the subject of disciplinary action in Queensland, we consider that a reprimand and a fine at the upper end of the range in the Guidelines are appropriate. We therefore agree that the Board's order that the Applicant pay the sum of $15,000 was appropriate. This amount should be paid within 60 days of this decision or as otherwise agreed between the parties.

Orders 1. The decision of the Respondent is affirmed.

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: 02 October 2019