1. Subject to order 2, the decisions of the respondent made on 16 July 2018 are affirmed.

2. The second decision is amended to delete any reference to ground 6 being established, and to adjust the combined penalty for grounds 3 and 6 such that the financial penalty is $750.00 (with respect to ground 3), and the applicant is directed to take the action specified in relation to ground 3 only.

3. The Tribunal's order is to come into effect on 22 December 2021.

1 Mr Peter Rontogiannis is a Building Surveyor, registered in the category of Building Surveyor (Unlimited). He was first registered on 11 June 2003.

2 At all material times, Mr Rontogiannis has carried on business as a private building surveyor. He had a company named 'Absolute Building Permits Pty Ltd', but after that company went into liquidation in 2016 Mr Rontogiannis established a new company, 'Absolute Permits Pty Ltd'.

3 On 20 July 2018 Mr Rontogiannis applied to VCAT for review of two decisions made on 16 July 2018 by the Victorian Building Authority (VBA) under the Building Act 1993 (Vic) (Building Act).

4 The VBA's decisions contained relevant findings and imposed various penalties: see below.

5 Prior to making the decisions, the VBA issued notices to show cause under section 182 of the Building Act. In January 2018 the VBA issued a show cause notice (the first show cause notice) that stated that it had formed a reasonable belief that grounds existed to take disciplinary action in relation to building work at three named sites. (There was an additional ground that is no longer relevant). In May 2018 the VBA issued a second show cause notice (the second show cause notice) that stated that it had formed a reasonable belief that further grounds existed to take disciplinary action in relation to building work at three additional named sites.

6 Mr Rontogiannis responded to the show cause notices in June 2018.

7 As the VBA's submissions describe the position, the VBA originally proposed that in addition to certain other penalties there be two whole suspensions of the Mr Rontogiannis' registration - one for 90 days and one for 180 days (a total of 270 days). However, taking into account the submissions he made during the show cause process, the VBA decided to make the suspensions partial and concurrent. The suspensions were made partial in the sense that Mr Rontogiannis would still be permitted to perform functions in respect of existing appointments as building surveyor. The suspensions were made concurrent so that there would be an actual period of 180 days of partial suspension rather than 270 days.

8 The VBA's decisions were stayed pending the outcome of the review.[1]

9 In his application for review, Mr Rontogiannis indicated that he disputed the findings of guilt 'on some allegations'. He did not specify which ones. And he contended that the penalty imposed was 'extremely excessive' and would mean he would 'close up the business', his only source of income.

10 In March 2021, following a hearing on 15 February 2021, VCAT made a decision in connection with an application the VBA made (but ultimately did not pursue) under section 78 of the Victorian Civil and Administrative Tribunal Act 1998 to strike out or dismiss Mr Rontogiannis' application for review: see Rontogiannis v Victorian Building Authority (Costs) [2021] VCAT 192 (the Costs decision).

11 In the Costs decision Member Tang noted the following important history.

12 There was considerable delay in the case proceeding to a compulsory conference as a result of Mr Rontogiannis making numerous adjournment requests, most of which were consented to by the VBA. On 28 October 2020, following the (last) compulsory conference, the Tribunal set the matter down for a three-day hearing commencing on 15 February 2021 and, among other things, directed Mr Rontogiannis to file particulars and evidence regarding his challenge to relevant findings and disciplinary measures. The deadline was 14 December 2020. Mr Rontogiannis failed to comply, and so it was that the VBA applied to have his application struck out or dismissed. In January 2021 the Tribunal made further orders for the 'strike out' hearing to proceed on 15 February. Mr Rontogiannis was directed to file and serve his material by 12 February.

[8] On 11 February 2021, Mr Rontogiannis' solicitors filed his material. Subsequently, on Friday 12 February 2021, at 5:51pm, Mr Rontogiannis sent a letter to the VBA advising:

We advise that the Applicant will only be challenging the penalty at the final hearing - namely the partial suspension of his registration. Accordingly, our client has now complied with all of the Tribunal's Orders.

[9] At the hearing of the Strike Out Application, Mr Schwarz (who represented Mr Rontogiannis) clarified a number of matters that were not clear from the correspondence of 12 February 2021, including that:

• his client no longer challenged any of the findings made by the VBA as part of the Reviewable Decisions;
• his client only challenged the disciplinary action which the VBA determined to take in so far as it related to the partial suspension of Mr Rontogiannis' registration as a building surveyor. As such, Mr Rontogiannis did not seek to challenge the Reviewable Decisions in so far as the VBA imposed financial penalties, conditions related to compulsory professional development and directions to notify certain matters to councils and other parties; and
• the only additional material proposed to be filed by Mr Rontogiannis was:
  • - an updated version of a report from Mr Rontogiannis' accountant as to the financial impact of the partial suspension (and possible alternatives) ...; and
  • - personal and professional references from a small number of parties.

14 In the above circumstances, at the strike out hearing VCAT amended the application for review 'so as to limit the grounds for review to the partial suspension of the applicant's registration for a period of 90 days in relation to allegations 1, 4, 5, 6 and 7 of the decision made by the respondent on 16 July 2018 (VBA references 7/2441, 7/2310, 7/2494 and 7/2683) [(the first decision)] and the partial suspension of the applicant's registration for a period of 180 days in relation to allegations 2 and 4 of the decision made by the respondent on 16 July 2018 (VBA references 7/2766, 7/2777 and 7/2775) [(the second decision)]'. The order noted that at the strike out hearing Mr Rontogiannis confirmed that he no longer challenged:

• that each of the allegations forming the grounds for disciplinary action in the respondent's decisions has been established; or
• the disciplinary action proposed to be taken by the respondent in relation to the remaining allegations.

Summary of relevant determinations in the first decision

15 Mr Schwarz (solicitor for Mr Rontogiannis) acknowledged that Mr Rontogiannis accepted the 'narrative' in the summaries of the determinations as they appeared in the VBA's outline of submissions. For convenience, in the following paragraphs in this section and the next section of my reasons for decision, I reproduce those summaries (including the footnotes, renumbered as required where they follow footnotes in this decision record).

16 By the first decision, the respondent determined that grounds 1 to 7 were substantiated. Although the respondent found that ground 8 (relating to not paying a penalty imposed by the Building Practitioners Board in relation to another disciplinary matter), the respondent determined not to take disciplinary action in respect of that ground. The applicant had subsequently brought himself into compliance.

17 In respect of grounds 1 to 7, the respondent determined that the following grounds existed to take disciplinary action against the applicant:[2]

Ground 1: On 22 April 2015, the applicant did not comply with s 24(1)(b) and (c) of the Building Act when issuing a building permit in respect of building work at [Site A] because he couldn't have been satisfied that the consent of the reporting authority had been obtained and that the relevant planning permit had been obtained.

Ground 2: Between 8 March 2010 and 28 November 2016, the applicant did not comply with s 30(1) of the Building Act because he failed to provide copies of the approved drawings to the relevant council within 7 days of issuing the stage one building permit with respect to building work at [Site B].

Ground 3: Between 8 July 2011 and 28 November 2016, the applicant did not comply with s 30(1) of the Building Act because he failed to provide copies of the approved drawings to the relevant council within 7 days of issuing the stage two building permit with respect to building work at [Site B].

Ground 4: Between 1 March 2010 and 1 July 2011, the applicant contravened regulation 1502(a) of the Building Regulations 2006 by failing to carry out his work as a building practitioner in a competent manner and to a professional standard because he issued stage one and stage two building permits for building work at with a combined cost of $500,000 when the cost of the works was substantially higher than the amount of $500,000 specified in the permit application. In respect of ground 4, the respondent found that it should have been evident that the reasonable value of the building works, which was for a warehouse, grossly exceeded the amount which was specified in the permit application, that the applicant had a positive obligation to ensure that the stated value of the works on the permit was a reasonably accurate estimate, and that the applicant's failure to comply with this positive obligation fell short of the standard expected to be observed by members of the profession of good repute and competency.[3]

Ground 5: On 1 July 2011, the applicant did not comply with s 24(1)(a) of the Building Act when issuing a building permit in respect of building work at [Site B] because he couldn't have been satisfied that the permit would comply with regulations 313(3)(a) and 315 of the Building Regulations 2006 which concerned the mandatory time requirements for the commencement and completion of building works.

Ground 6: From 30 August 2015, the applicant contravened regulation 1502(a) of the Building Regulations 2006 (and subsequently regulation 1502(a) of the Building Interim Regulations 2017 and subsequently regulation 265(a) of the Building Regulations 2018) by failing to carry out his work as a building practitioner in a competent manner and to a professional standard because, as the relevant building surveyor at [Site B], the applicant failed to take enforcement action in a timely manner. In respect of ground 6, the respondent found that the applicant was on notice that the building at [Site B] was being occupied in circumstances where the applicant was aware no occupancy permit had been issued and that an enclosed canopy had been constructed over the driveway as well as an internal mezzanine floor, both of which were not authorised by the building permit he had previously issued. Although the applicant had issued a building notice on 30 July 2015 in respect of these issues, the applicant had produced no evidence to the respondent (including in response to the first notice to show cause) showing that he either cancelled the building notice or that he had taken enforcement action, in circumstances where the applicant was aware that the existing structure posed continuing fire-safety deficiencies at the site. The respondent further found the applicant's failure was an ongoing breach by him.[4]

Ground 7: From 18 April 2016, the applicant contravened regulation 1502(a) of the Building Regulations 2006 (and subsequently regulation 1502(a) of the Building Interim Regulations 2017 and subsequently regulation 265(a) of the Building Regulations 2018) by failing to carry out his work as a building practitioner in a competent manner and to a professional standard because, as the relevant building surveyor for [Site C], the applicant failed to take enforcement action with respect to non-compliant building works. In respect of ground 7, the respondent found that the applicant was on notice via an Inspection Report produced by the respondent that the building work at the site, for which the applicant was responsible, was defective and created a risk injury to persons and/or property. On 19 May 2016, the applicant informed the respondent that he would issue a building order for minor works in respect of the non-compliant works, yet he had failed to do so and he failed to take any enforcement action under the Building Act to deal with the non-compliance. The respondent further found the applicant's failure was an ongoing breach by him.[5]

18 In respect of grounds 1, 4, 5, 6 and 7 the respondent determined to impose lesser disciplinary action than that which was proposed in the first notice to show cause. The respondent determined:[6]

(a) to impose reprimands for each of the five grounds pursuant to s 178(a) of the Building Act;

(b) to require the applicant to complete training course(s) equivalent to a minimum of 60 hours/points of AIBS Type A and/or Type B CPD Activity within 12 months of the date of issue of the notice of decision pursuant to s 178(c) of the Building Act and to direct the applicant to provide a copy of his certificates of attainment for these matters within 12 months of the date of issue of the notice of decision pursuant to s 178(b)(i) of the Building Act;

(c) to partially suspend the applicant's registration in the category of Building Surveyor (Unlimited) pursuant to s 178(f) of the Building Act, being a suspension of his functions under Part 6 of the Building Act to accept new appointments as relevant building surveyor and to issue building permits under section 76(a) of the Building Act (save for any existing appointments) for a period of 90 days, commencing 30 days from the date of issue of the first decision.[7]

19 The first decision also made plain that the partial suspension would run concurrently with the partial suspension of 180 calendar days imposed by the second decision.[8] The respondent noted that, in deciding to make the suspension periods concurrent, it had regard to the applicant's personal circumstances so that, in practical terms, the applicant would be partially suspended for a total of 180 days instead of 270 days (180 days plus 90 days).[9]

20 In respect of grounds 2 and 3, the respondent determined to impose a reprimand (s 178(a) of the Building Act), a penalty of $1,500 (s 178(d)) and to direct the applicant to provide the relevant council with the approved documents within his control, relevant to the permits he issued, and thereafter to advise the respondent once he has done so (s 178(b)(i)).

Summary of relevant determinations in the second decision

21 By the second decision, the respondent determined that each of the grounds referred to in the second notice to show cause, namely grounds 1 to 7, existed to take disciplinary action against the applicant:[10]

Ground 1: Between 6 February 2015 and 1 August 2015, the applicant did not comply with s 80 of the Building Act because he failed to notify the relevant council in writing of his appointment as the relevant building surveyor and of the building work in respect of works at the [Site C] in which he was appointed within 7 days after accepting his appointment.

Ground 2: On 2 February 2015, the applicant did not comply with s 24(1)(a) of the Building Act when issuing a building permit in respect of building work (namely, repairs to a fire damaged warehouse) at [Site C] because he couldn't have been satisfied that the permit would comply with the Building Act and the Building Regulations 2006. In respect of ground 2, the respondent found that the applicant could not have been relevantly satisfied because, firstly, the approved permit documents didn't include architectural drawings, mechanical drawings, electrical drawings, sanitary details, specifications or an Essential Safety Measure installation reports and, secondly, given the type of permit application submitted, the applicant couldn't have been satisfied that all building practitioners engaged in the building work were registered under Part 11 of the Building Act as required by s 24A(1)(a).[11]

Ground 3: From 9 February 2015, the applicant did not comply with s 30(1) of the Building Act because he failed to provide a copy of the building permit and any other plans and documents lodged with the application for the permit within 7 days of issuing the building permit for the [Site C] works.

Ground 4: From 2 March 2015, the applicant contravened regulation 1204 of the Building Regulations 2006 (and subsequently regulation 1204 of the Building Interim Regulations 2017 and subsequently regulation 215 of the Building Regulations 2018) by failing to determine the maintenance requirements of the essential safety measures as required by regulation 1204(1) of the regulations and failed to provide a written determination as to those essential safety measures as required by regulation 1204(2). The respondent found this breach to be continuing.[12]

Ground 5: Between 13 March 2015 and 1 August 2016, the applicant did not comply with regulation 1012 of the Building Regulations 2006 because he failed to give to the relevant council a copy of the certificate of final inspection and the inspection approval dates for the mandatory notification stages within 7 days after issuing the certificate of final inspection for the [Site C] works.

Ground 6: From 5 March 2016, the applicant did not comply with s 30(1) of the Building Act because he failed to provide a copy of any plans and documents lodged with the application for the permit within 7 days of issuing the building permit for [Site E].

Ground 7: From 3 July 2017, the applicant contravened regulation 1502(a) of the Building Regulations 2006 (and subsequently regulation 1502(a) of the Building Interim Regulations 2017 and subsequently regulation 265(a) of the Building Regulations 2018) by failing to carry out his work as a building practitioner in a competent manner and to a professional standard because, as the relevant building surveyor for [Site F], the applicant failed in a timely manner to take all steps reasonable and necessary to enable him to issue a Certificate of Final Inspection as required under s 38(1) of the Building Act having conduced the final inspection.

22 In respect of ground 2 the respondent determined to impose lesser disciplinary action than that which was proposed in the second notice to show cause. The respondent determined:[13]

(a) to impose a reprimand pursuant to s 178(a) of the Building Act;

(b) to partially suspend the applicant's registration in the category of Building Surveyor (Unlimited) pursuant to s 178(f) of the Building Act, being a suspension of his functions under Part 6 of the Building Act to accept new appointments as relevant building surveyor and to issue building permits under section 76(a) of the Building Act (save for any existing appointments) for a period of 180 days, commencing 30 days from the date of issue of the first decision.[14]

23 In respect of ground 4 the respondent also determined to impose lesser disciplinary action than that which was proposed in the second notice to show cause. The respondent determined:[15]

(a) to impose a reprimand pursuant to s 178(a) of the Building Act;

(b) to direct the applicant pursuant to s 178(b)(i) of the Building Act, in his capacity as the relevant building surveyor for the [Site C] works, to, within 7 calendar days of the date of issue of the second decision and at no charge or cost to the owner:

(i) determine the appropriate essential safety maintenance requirements in accordance with regulation 215 of the Building Regulations 2018, including the level of performance required to enable the essential safety measure to fulfill its purpose and the frequency and type of maintenance required and issue same as a written determination (ESM maintenance determination);

(ii) issue a copy of the ESM maintenance determination to the owner of [Site C];

(iii) provide a copy of the [ESM] maintenance determination to the relevant council; and

(iv) thereafter to advise the respondent that these directions have been complied with;

(c) to partially suspend the applicant's registration in the category of Building Surveyor (Unlimited) pursuant to s 178(f) of the Building Act, being a suspension of his functions under Part 6 of the Building Act to accept new appointments as relevant building surveyor and to issue building permits under section 76(a) of the Building Act (save for any existing appointments) for a period of 180 days, commencing 30 days from the date of issue of the first decision.[16]

24 The second decision also made plain that the partial suspension imposed by grounds 2 and 4 would run concurrently with the partial suspension of 90 calendar days imposed by the first decision.[17] The respondent noted that, in deciding to make the suspension periods concurrent, it had regard to the applicant's personal circumstances so that in practical terms the applicant would be partially suspended for a total of 180 days instead of 270 days (180 days plus 90 days).[18]

25 In respect of ground 1, the respondent determined to impose a penalty of $250 (s 178(d) of the Building Act).

26 In respect of grounds 3 and 6, the respondent determined to impose one reprimand pursuant to s 178(a) of the Building Act, a penalty of $1,500 (s 178(d)) and to direct the applicant to provide the relevant councils with the approved documents for the building permits he issued within 14 days of the second decision and thereafter to advise the respondent once he has done so (s 178(b)(i)).

27 (Ground 6 is no longer contested. Concerning ground 6, the VBA's submissions state:

The respondent no longer presses any finding in relation to ground 6 on the basis of subsequent information received by the relevant council on 20 November 2020 after the second decision was issued. In light of this, the respondent considers that the second decision ought to be amended pursuant to s 187(1)(b) of the Building Act, to a minor extent only, to remove reference to ground 6 being established. There should also be a consequential variation to the financial penalty which attaches to grounds 3 and 6, to remove any penalty in respect of ground 6. The respondent submits that the appropriate financial penalty for ground 3 would be $750 instead of $1,500. There should also be a deletion of the requirement for the applicant to provide information to the relevant council and to advise the respondent after having done so, in relation to ground 6).

28 In respect of ground 5, the respondent determined to impose a reprimand (s 178(a) of the Building Act) and a penalty of $1,000 (s 178(d)).

29 In respect of ground 7, the respondent determined to impose a reprimand (s 178(a) of the Building Act), to direct the applicant to do things to enable him to issue a certificate of final completion and to thereafter inform the respondent (s 178(b)(i)) and to impose a penalty of $3,000 (s 178(d)).

30 On the basis of the evidence in the Tribunal Book (which includes the VBA's briefs of evidence) and the admissions that Mr Rontogiannis has made, I am comfortably satisfied that the allegations set out in the first decision and the allegations set out in the second decision are established[19].

Consideration of the nature and seriousness of the contraventions

31 There were certain statements that Mr Schwarz made about the grounds for decision. I note that Mr Rontogiannis did not give oral evidence to support the statements. For instance, in relation to ground 6 in the first decision, Mr Schwarz took issue with the VBA saying that there was 'an ongoing breach' and asserted that the building had (since) been brought into compliance. (As there was no challenge to the VBA's findings as part of the reviewable decisions, there was no challenge that there was an ongoing breach as at the date of the decisions).

32 More broadly, Mr Schwartz submitted that while the breaches may be serious if viewed cumulatively - because there were repeated breaches -each breach viewed individually was 'not at the top end' of the range. In this regard, Mr Schwarz made special mention of a crossover on a plan that Mr Rontogiannis 'missed' which, Mr Schwarz submitted, is easy to do.

33 Mr Schwarz emphasised the significance of the amendment to ground 6 in the second decision, describing it as 'not a small matter'. In response, Mr Bruno (counsel for the VBA) submitted that the penalty in relation to ground 6 involved only a fine and did not relate to the partial suspension.

34 Mr Schwarz expressly stated that he did not make light of Mr Rontogiannis' acts or omissions, but he argued that this is not a case where there had been injury, loss of life or damage to property yet the penalty imposed was at the top of the range.

35 Further in relation to ground 6 in the first decision, Mr Schwartz conceded that there was a structure that posed continuing fire-safety deficiencies at the site, but he pointed out that the breach did not relate to a house but to a canopy constructed over a driveway.

36 As pointed out by Mr Bruno, the VBA's position in relation to the seriousness of the breaches is summarised in the show cause notices.

37 I refer to the notices, bearing in mind that the grounds for review have been narrowed.

38 In relation to grounds 1, 4 and 5 in the first decision, it is said in the first show cause notice that there were 'multiple failings of one of the most fundamental professional responsibilities conferred on a building surveyor under the Act', to ensure that a building permit must not be issued unless the proposed works, the application and the permit will fully comply with the Act and Regulations. This had potentially very serious consequences. In relation to grounds 2 and 3, it is said that while the contraventions may ordinarily be regarded as less serious breaches of an administrative nature, Mr Rontogiannis' failures to provide documents 'in spite of the multiple requests by the relevant council' elevated the seriousness of his conduct. In relation to grounds 6 and 7 (which includes the fire-safety issues regarding the canopy mentioned earlier) it is said that the breaches were 'extremely serious' demonstrating a 'wilful neglect' of Mr Rontogiannis' responsibilities. Mr Rontogiannis had an ongoing obligation to take appropriate enforcement action where non-compliance had occurred. There were 'multiple and ongoing ... breaches in spite of requests made by the VBA and relevant council to take enforcement action'. The VBA noted a 'potential (and ongoing) threat to life and safety'.

39 In relation to grounds 1, 3 and 5 and 6 in the second decision, it is said in the second show cause notice that there were breaches of an administrative nature, though some were ongoing. In relation to ground 2 it is said that there was an extremely serious breach: Mr Rontogiannis issued a building permit despite the permit application 'apparently being deficient in multiple respects and despite the obvious fire safety issues at the site which should have heightened [his] diligence and reviewing the ... application'. Further, Mr Rontogiannis issued a permit that nominated an unregistered person to be engaged in (non-domestic) building works as an owner-builder, 'rendering a layperson responsible for carrying out the works as builder'. It is further said that 'the potential for serious risk to human life and safety should have been evident'. In relation to ground 4, there is a similar comment made about the risk to human life and safety in a building 'with a history of fire damage'. In relation to ground 7, it is said that the contravention was a 'mid-range' example.

40 Some of the contraventions now under particular scrutiny may reasonably be described as minor or 'mid-range', but a significant number of them are serious. Especially when viewed cumulatively, the contraventions are of a very serious nature, in my view. Focussing on risk to life and safety (as opposed to risk of property damage or of construction deficiencies), there may not have been actual injury or loss of life resulting from Mr Rontogiannis' acts and omissions, but there was the potential for that.

Mr Rontogiannis' responses to the show cause notices

41 Mr Rontogiannis responded separately to each of the grounds in the show cause notices. In some instances, he acknowledged and apologised for oversights. In other instances, he maintained that there actually had been compliance or at least that remedial action was taken where required. In one particular instance, where he said that owners made changes to the build that he became aware of only later on, he said that the project 'should have been handled in a more professional manner' and he accepted responsibility for that. In another particular instance, he apologised 'if' he had taken the 'wrong approach' in failing to include a list of essential safety measures as part of a final certificate issued for works (on the basis that the permit was for reinstatement of fire damaged parts of a building and the essential safety measures already existed and formed part of the existing occupancy permit). He described that as 'purely an oversight and possibly a misunderstanding' on his part.

42 Mr Rontogiannis described how his business systems had been improved to address the acknowledged issues (by moving from a manual system - which, he said, made it 'not easy to track the progress of each job' to a software-based system).

43 Addressing a number of grounds collectively, Mr Rontogiannis said that he was 'extremely embarrassed and disappointed' with himself to be in the position where the VBA was again proposing disciplinary action. He said he took his role very seriously and he understood its importance. He referred to circumstances that he said were mostly beyond his control that resulted in his 'previous business' going into voluntary liquidation in 2016. He referred to personal and financial difficulties as 'many prospective clients' were turned away from the business. Mr Rontogiannis said that it had taken a long time to find his feet again, and that suspension would be 'a major setback that would most likely destroy [his] business'.

44 For convenience, I reproduce in the next paragraph the summary of Mr Rontogiannis' disciplinary history that appeared in the VBA's outline of submissions (including the (renumbered) footnotes).

45 The applicant has a significant disciplinary history having been before the Building Practitioners Board on 29 August 2012,[20] 17 June 2014[21] and 19 December 2016.[22] He has previously been found guilty of breaches of s 24(1) of the Building Act and regulation 1502(a) of the Building Regulations 2006. Relevantly, the conduct in grounds 1, 6 and 7 (of the first decision) and grounds 2 and 4 (of the second decision) occurred after the Board's decisions in 2012 and 2014. Notably, in 2014, the Board decided to impose a fine in the maximum amount permissible under the Building Act for a range of breaches including breaches of s 24(1) and regulation 1502(a) of the Building Regulations 2006.

46 The Tribunal Book includes the relevant notices of decision.

The VBA's concerns about Mr Rontogiannis' workload

47 In its submissions, the VBA referred to the concerns it has had about Mr Rontogiannis' work practices going back several years, in particular that he was undertaking 'far too much work beyond his capacity'.

48 The submissions note that in 2012 the Building Practitioners Board informed Mr Rontogiannis of its concerns, including about him failing to identify building works that did not comply with approved plans, and issuing an occupancy permit when a dwelling was not suitable for occupation.

49 Mr Rontogiannis informed the Board in 2012 that he had, by the date of its inquiry, made improvements to his practices following feedback from the Board about the large number of permits he had issued in the prior 12 months.

50 Mr Rontogiannis was informed by the Board that issuing 440 building permits within 12 months was untenable for one building surveyor. Mr Rontogiannis however issued 610 building permits during 2020, according to an affidavit by Stephen Harris affirmed on 12 March 2021[23]. (Mr Harris is Team Leader for a team within VBA that 'specialises in data analysis and extraction of data from the VBA's data systems.' Mr Harris was available for cross-examination but was not cross-examined).

51 Ms Rachael Marszalek, Mr Rontogiannis' accountant for over 20 years, made a written report, gave oral evidence and was cross-examined. The report, which has been revised and updated over time, was given the title Business Review of Domestic Building Permits required to keep Absolute Permits Pty Ltd Operational.

52 The version of the report considered at the hearing was dated 22 February 2021. The report was essentially directed to measuring the impact of the partial suspension on the viability of Mr Rontogiannis' company and to provide a 'financial analysis' of any alternatives to partial suspension. The report indicates that Ms Marszalek reviewed 'relevant financial reports' with Mr Rontogiannis and discussed the business operations 'at length'. In order to give an opinion about the impact of the partial suspension, Ms Marszalek reviewed the 'Building Permit Levy Returns' for the prior 12 months. She noted the importance of considering both the number and type of permits issued, because different types attracted 'vastly different' fees for the business.

53 Ms Marszalek projected that EBIT (earnings before interest and tax), expressed as a percentage of total revenue, would be a negative figure (- 32.2%) in the 2020-2021 year (compared with figures that ranged from 14.2% to over 40% in the period from 2016-2017 to the first quarter of 2020-2021).

54 Ms Marszalek wrote that the figures and ratios she presented 'confirm that the business viability would be questionable should the concurrent suspensions be imposed'. She said, further, that beyond the significant loss in the period for which the penalty was imposed, she believed Mr Rontogiannis would lose existing/long term clients, as they would be forced to go elsewhere and 'may or may not' return at the end of the suspension period. Ms Marszalek said this would consequently impact the business 'for years to come' and 'almost without doubt' make the business unviable 'as more than two years of significant losses would render the company insolvent'.

55 The imposition of a cap on permits was put forward as an alternative to the partial suspensions. Ms Marszalek presented data to demonstrate that a reduction of (up to) a 26% in permits (applied pro-rata across all permit types) in one financial year would impact on operating profit and EBIT yet still enable the business to stay afloat. (The report included a table showing permit types and actual numbers). Ms Marszalek's working assumptions were noted - including that the number and types of permits, and their pricing, would remain constant.

56 Cross-examination of Ms Marszalek identified a number of problems about her report. I mention some of the more important ones.

57 The underlying financial information or 'raw data' (whether for the company or for Mr Rontogiannis personally) was not in evidence. Ms Marszalek said she understood that the information could not be kept private and confidential if it was submitted to the Tribunal. This notion was misconceived, of course.

58 Ms Marszalek also said she used 'ratios' rather than set out the dollar values of projected income, expenses, assets and liabilities because she would be concerned if competitors could see how Mr Rontogiannis ran his business.

59 There was discussion during the hearing about the parties' respective understanding as to whether Ms Marszalek would be required to give oral evidence, and as to whether production of the financial documents would be required. Ultimately, the Board did not seek an order compelling production of the documents, but Mr Bruno made submissions about the weight the report should be given. He submitted in effect that it would have been more useful to have information about matters such as the amount of income expected to be received in the suspension period, and the anticipated expenses.

60 A key assumption that Ms Marszalek made was that if Mr Rontogiannis could not take on new work, he would run out of existing work after three months. That assumption was based on his discussions with her. The -32.2% figure assumed there would then be no income for three months, and that Mr Rontogiannis would not immediately generate income when the partial suspension ended.

61 Ms Marszalek acknowledged that no one could predict how long it would take for work to run out or for work to resume, but she said she was 'well qualified' to make her projections as she knew the history of the business. Later in her evidence, Ms Maszalek said that as she did not know what appointments Mr Rontogiannis had at any one time, she had used an 'averaging method'.

62 Ms Marszalek confirmed that she was not saying that partial suspension for 180 days would automatically make the business unviable. Rather, she was predicting that in future it would become unviable. She said Mr Rontogiannis may or may not lose existing long-term clients. She also said was sure he would lose some of them. She agreed that this would depend on the efforts he made to maintain and retain his client base. She said he would not be able to keep all of his builder clients who, she believed, were his main clients. In response to the proposition that Mr Rontogiannis could take on extra work at the end of the period (to make up for lost earnings), Ms Marszalek said it was fair to assume that his clients may or may not return.

63 There was discussion of measures Mr Rontogiannis might take, as director of the company, to reduce expenditure. Ms Marszalek said that the main cost items (such as rent, vehicles and wages) were ones that he could not control. Ms Marszalek also said in effect that if Mr Rontogiannis sold vehicles or had his staff work only part time, in six months he would have no income and significantly reduced assets.

64 I mention that Ms Marszalek's evidence indicated that approximately one third of the projected wages for 2020-2021 were to be payable to Mr Rontogiannis. Further, Mr Rontogiannis' wife is an employee of the company. Company dividends are paid to Mr Rontogiannis and his wife.

65 The challenge there would be for Mr Rontogiannis to maintain or re-establish a viable client base if the concurrent partial suspensions were imposed is not to be underestimated. Responding to the VBA in 2018, Mr Rontogiannis wrote about the long time it took him to 'find [his] feet again and to start to earn the trust and respect of clients in general' after his former company went into voluntary liquidation and clients moved their business and prospective clients were turned away. The point is that, in time, Mr Rontogiannis was able to recover from so serious a setback as the liquidation of his company.

66 Significantly, Ms Marszalek acknowledged that anticipated business losses during the actual suspension period would not result in the business failing. Ms Marszalek's view about what would happen beyond that time was somewhat speculative.

67 I am not persuaded that the impact on the company would be as severe as Ms Marszalek's modelling suggests or that Mr Rontogiannis, as company director, would be unable to mitigate the losses reasonably.

68 I am not persuaded, either, that the imposition of a cap on permits would be an appropriate determination in substitution for partial suspension.

69 There is more that I will say about the relevant principles concerning determinations, and how they apply in Mr Rontogiannis' case. For the present, I express my view about the proposed cap on permits in this way. It is plain from Mr Harris' affidavit that Mr Rontogiannis engages in a variety of work. There is no controversy that some of a building surveyor's work generates more income than other work. To the extent that any building surveyor could influence matters by prioritising appointments that involve a greater amount of work for the surveyor and generate more income, the effectiveness of a cap on permits as a penalty (from the point of view of specific deterrence and general deterrence and, ultimately, the protection of the public) would be reduced. Mr Schwarz described it as 'wishful thinking' that Mr Rontogiannis would be able to do that. Whatever may be the extent to which Mr Rontogiannis could influence the impact of the penalty, I have to consider not only specific deterrence but also general deterrence. I must therefore consider the possibility that he or other building surveyors subject to disciplinary action could do that.

70 There is the further important point to note that Mr Bruno emphasised. The financial impact on the company is one matter. The financial impact on Mr Rontogiannis personally is another matter and, there was a lack of evidence about that.

71 The concurrent partial suspensions are substantially less severe than the suspensions proposed in the show cause notices. For reasons I will expand on, I consider that the concurrent partial suspensions are appropriate, having regard to all the circumstances, including the matters Mr Rontogiannis told the VBA about in 2018 and the matters put forward on his behalf in the review. The impact on Mr Rontogiannis is still likely to be significant. The imposition of a cap on permits as an alternative, however, would likely be an insufficient penalty.

72 The submissions for the VBA referred to a number of authorities concerning the principles relating to determinations. Mr Rontogiannis did not contest the VBA's submissions in that regard.

73 The VBA cited Mattiske v Victorian Building Authority [2019] VCAT 1620 at [13] where VCAT noted that, in cases such as the present, it stands in the shoes of the primary decision-maker and re-makes the decision, exercising all relevant powers of the decision-maker.

74 As noted in that case, the purposes and objectives of the Building Act include regulating building work and building standards, regulating building practitioners, and protecting the safety and health of people who use buildings[24]. As further noted, the main purpose of disciplinary proceedings under the Act is to ensure that registered building practitioners 'adhere to the high standards expected of them, primarily for the protection of the public and the reputation of the building industry itself'.[25]

75 The VBA also cited Victorian Legal Services Commissioner v Mingos [2016] VCAT 918 where VCAT cited the Court of Appeal judgment in Quinn v Law Institute of Victoria [2007] VSCA 122. (Those cases concerned legal practitioners). VCAT said at [25] that the objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public, and added that the focus of the Tribunal will be on protection, not punishment. Then the Tribunal said -

[25] With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.

[26] Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.

[30] ...the phrase 'not so much to punish as to protect' underlines the fact that the Tribunal's disciplinary orders are punitive as well as protective. The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

[31] Critically for present purposes, however, the Tribunal's protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the tribunal will choose that sanction which maximises the protection of the public.

77 I do not repeat what I have already said about the nature and seriousness of the contraventions. Especially when the contraventions are viewed cumulatively, and when regard is had to the potential consequences of some of them, the contraventions were very serious.

78 Mr Rontogiannis made full admissions, though that was at a very late stage in the proceeding. Mr Bruno submitted that Mr Rontogiannis has little insight, and that he has displayed little remorse. Mr Bruno pointed out that Mr Rontogiannis contested most of the allegations during the 'show cause process' and it was not until February this year (about two and a half years after he made his application for review) that he opted not to challenge the existence of the grounds for taking disciplinary action.

79 Mr Schwarz submitted in effect that Mr Rontogiannis' responses to the show cause notices indicate that he did show insight and remorse. I have referred to parts of the responses that support that submission - to the extent that Mr Rontogiannis acknowledged contraventions. Mr Schwarz further submitted that it is not uncommon for an applicant's position to crystalise once there's been a compulsory conference and he or she has seen all the evidence.

80 Mr Rontogiannis did not give oral evidence, so I am able to consider his insight and remorse only on the basis of the documentary evidence and the submissions made on his behalf.

81 The compulsory conferences in this case were held in June and October 2020. At the beginning of this decision record, I set out further relevant aspects of the procedural history. While Mr Rontogiannis did make statements to the VBA that were consistent with him having some insight and remorse, his conduct of the VCAT proceeding, including the emphasis he gave to the impact of partial suspensions on his business rather than to the seriousness of his conduct and the potential consequences for other persons, indicate that his insight and remorse is inadequate.

82 That state of affairs is of particular concern given Mr Rontogiannis' disciplinary history for, as Mr Bruno pointed out, the history includes prior contraventions of the same provisions that Mr Rontogiannis contravened in the present case. The significant penalties imposed especially in 2014 evidently did not deter Mr Rontogiannis from further contraventions.

83 For these reasons specific deterrence is important. General deterrence is also important, given the nature and seriousness of the contraventions. There must be a message given to other building surveyors that serious adverse consequences will follow contraventions of the kind there were in this case, so as to deter them from the same conduct, in the interests of maintaining proper standards in the building industry and maintaining public confidence.

84 I have provided reasons for rejecting the proposed penalty of a cap on permits, given the importance of specific and general deterrence.

85 There were character references submitted on behalf of Mr Rontogiannis. One, which was undated, was by a lawyer and builder, Mr Haas Kaplan. Mr Kaplan wrote that he had met Mr Rontogiannis 'over 10 years ago'. Without elaboration, Mr Kaplan said that he was 'aware of the orders made by the VBA against' Mr Rontogiannis. Mr Kaplan said in effect that he had engaged Mr Rontogiannis for all but a handful of his jobs. He had found Mr Rontogiannis to be very professional and focussed on his job. Mr Rontogiannis had become his friend. Mr Kaplan said he believed that restricting Mr Rontogiannis 'from issuing building permits' would have a significant impact on his livelihood and wellbeing and that Mr Rontogiannis would be 'devastated' if the VBA's decision were upheld.

86 The other reference was by Dr Jim Georgiou, architect. Dr Georgiou wrote in 2018 that he had known Mr Rontogiannis professionally since 2011. Dr Georgiou said Mr Rontogiannis had always displayed technical competence and conducted himself ethically and in a very professional manner. The letter does not indicate what if any knowledge Dr Georgiou had about Mr Rontogiannis' disciplinary history.

87 The character references are of limited assistance, especially in view of the whole disciplinary history.

88 There was also submitted an unsigned undated later evidently written on behalf of a software company. The document stated that Mr Rontogiannis' company began using the software (called 'PermAssist') in November 2020. (That was not the same software that Mr Rontogiannis referred to when he responded to the show cause notices in 2019). The letter described the software as a 'fully automated system which is compliant with VBA regulations (sic).' For building surveyors, the relevant module was said to enable them and their administrative staff 'to manage and maintain all information related to the building permit process'.

89 It is to be expected that the transition from the former manual system to a software-based system, and then to the system Mr Rontogiannis has now, would bring administrative benefits to the business. Mr Bruno agreed that the software might assist Mr Rontogiannis, but he submitted that, like any system, it would only be as good as the person using it. The evidence indicates that had Mr Rontogiannis had the software sooner, that may have helped him avoid some of the contraventions, but only some of them.

90 At least to some extent the new software should help Mr Rontogiannis improve his operations. More significantly, it is mentioned in Ms Marszalek's report that the company may employ a mentor who 'would be a qualified building surveyor able to assist [Mr Rontogiannis] in running the business, site inspections and compliance matters.' There may be more that Mr Rontogiannis can do to ensure future compliance, including maintaining a manageable workload, for it is reasonable to consider that having an excessive workload at times may have contributed to his contraventions.

91 For now, I have to consider the appropriate determinations with respect to the relevant contraventions.

92 I repeat what VCAT said in Mattiske - that the main purpose of disciplinary proceedings under the Building Act is to ensure that registered building practitioners adhere to the high standards expected of them, primarily for the protection of the public and the reputation of the building industry. I also repeat what Maxell P noted in Quinn - that VCAT's protective function is paramount, so that where there is a choice of sanctions, it is to be expected that VCAT will choose that sanction that maximises the protection of the public.

93 Having regard to all relevant considerations, I consider that the concurrent partial suspensions are proportionate and appropriate. I consider that the concurrent partial suspensions will maximise the protection of the public.

95 Mr Schwarz requested that if the Tribunal affirmed the partial suspensions there be an order for the suspensions to commence two months from the Tribunal's decision so as to minimise inconvenience to Mr Rontogiannis' clients. Mr Bruno did not make any submission opposing that, though he observed that existing clients would not be impacted because Mr Rontogiannis would be able to keep working under current appointments.

96 Given especially that the duration of the concurrent partial suspensions is substantial, I consider that it would be reasonable to make the order sought. To achieve that, as the decisions under review already provide that they are to come into effect 30 days from the date of issue of the decisions, I will order that the Tribunal's decision come into effect 30 days after today.

97 I will also amend the second decision insofar as it relates to ground 6, as proposed in the VBA's submissions.

[1] By operation of section 187(3) of the Building Act and an order of VCAT made in 2018.

[2] First decision, [15] (Volume 1, Tab 7, pp 51 to 52).

[7] Paragraph 19 of the first decision made plain that the prohibition on issuing building permits under the partial suspension does not apply to existing appointments as relevant building surveyor, including staged building permits and pending applications for building permits already received as at the date the partial suspension takes effect providing that a section 80 notice of appointment has already been sent to the relevant council for those building works before the date partial suspension takes effect.

[10] Second decision, [12] (Volume 2, Tab 7, pp 49 -50).

[14] Paragraph 18 of the second decision made plain that the prohibition on issuing building permits under the partial suspension does not apply to existing appointments as relevant building surveyor, including staged building permits and pending applications for building permits already received as at the date the partial suspension takes effect providing that a section 80 notice of appointment has already been sent to the relevant council for those building works before the date partial suspension takes effect.

[16] Paragraph 18 of the second decision made plain that the prohibition of issuing building permits under the partial suspension does not apply to existing appointments as relevant building surveyor, including staged building permits and pending applications for building permits already received as at the date the partial suspension takes effect providing that a section 80 notice of appointment has already been sent to the relevant council for those building works before the date partial suspension takes effect.

[19] See Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 at [37].

[20] Supplementary s 49 material, Tab 4, pp 45-54.

[21] Supplementary s 49 material, Tab 5, pp 55-70.

[22] Supplementary s 49 material, Tab 6, pp 71-90.

[23] The summary Mr Harris gave disclosed that in 2012 Mr Rontogiannis issued 225 building permits. In the following years there were these figures: 2013 (446 permits); 2014 (532); 2015 (491); 2016 (490); 2017 (453); 2018 (350); 2019 (371); 2020 (610); and 2021 (51 so far). Mr Harris deposed that the majority of permits were Class 1 (domestic or residential) or Class 10 (non-habitable constructions, such as sheds, garages and fences) as defined in the Building Code of Australia.

[24] At [15], referring to sections 1 and 4 of the Building Act.

[25] Mattiske at [20] referring to the comments of Hollingworth J in Rodwell v Building Practitioners Board [2009] VSC 146, [36].