Under section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, the decision made by the Architects Registration Board of Victoria (Board) on 9 April 2013 in respect of Mr Shalit's complaint is set aside and the matter is remitted to the Board for re-consideration having regard to these Reasons.

1. Mr Shalit has applied for review of a decision made by the Architects Board of Victoria (Board). On 9 April 2013, the Board decided not to refer a complaint Mr Shalit had made to an inquiry to be conducted by a Tribunal established under the Architects Act 1991. Mr Shalit's complaint concerned the professional conduct of Mr Ian Perkins of Perkins Architects Pty Ltd (Perkins) in the context of the design of a proposed synagogue to be built for the Kehilat Nitzan Community (KNC).
2. In essence, Mr Shalit says that Mr Perkins breached his copyright in an earlier design of the proposed synagogue and that, by doing so, Mr Perkins breached the Act because his conduct was not professional and he did not act to a professional standard.
3. After the Board decided not to refer the complaint to an inquiry, Mr Shalit made his application to the Victorian Civil and Administrative Tribunal (VCAT). He asks that VCAT set aside the Board's 9 April 2013 decision and substitute it with an order that an inquiry be held into the fitness to practise or professional conduct of Mr Perkins.
4. The Board submits that an Architects Tribunal is an inappropriate forum to resolve whether or not there was a breach of copyright. In these circumstances, the Board says that it is not in the public interest for the complaint to be referred to an inquiry.
5. When hearing Mr Shalit's application, under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), VCAT has all of the powers of the Board. Under section 51(2) VCAT may decide to affirm, vary or set aside the decision under review. If the decision is set aside, VCAT may substitute its own decision or remit the matter for re-consideration in accordance with any directions or recommendation of VCAT.
6. I have decided, under section 51(2)(d) of the VCAT Act, to set aside the Board's 9 April 2013 and remit the matter back to the Board for re-consideration. These are the reasons for that decision.
7. I will first refer to the relevant provisions of the Architects Act 1991 and then I will turn to Mr Shalit's complaint and the Board's decision.

The Architects Act 1991

1. The main purposes of the Architects Act 1991 (the Act) include providing for the registration of architects, regulating the professional conduct of architects, providing a procedure for handling complaints about architects and establishing the Board.[1]
2. Section 45 of the Act establishes the Board. The powers and duties of the Board are set out in section 46. They include:
   • In accordance with the Act, suspending or cancelling the registration of any person under the Act (section 46(f));
   • Revoking any suspension (section 46(h));
   • Regulating the professional conduct of architects (section 46(i)); and
   • Generally carrying out any other powers and functions which are given to it by the Act or which are necessary to implement the Act (section 46(l)).
3. The Board includes a practising senior government architect, two other architects, a person nominated by the approved schools of architecture and a person nominated by the President of the Royal Australian Institute of Architects, Victorian Chapter.[2]
4. Part 4 of the Act deals with disciplinary proceedings.
5. By section 18, the Board, on its own initiative or on the complaint of any person, may determine that an inquiry should or should not be held under Part 4 into a registered architect's fitness to practise or professional conduct. The terms 'fitness to practise' and 'professional conduct' are not defined in the Act.
6. By section 18B, the Board may appoint a person to assist it when determining whether or not an inquiry should be held.
7. Before making a determination under section 18, by section 18C the Board, or an appointed person, may ask the complainant for further information and provide the architect with the details of the matter and ask for information.
8. Section 18D requires the Board to give a complainant written notice about its determination as to whether an inquiry is to be held.
9. An inquiry into an architect is to be conducted by an Architects Tribunal comprised of a practising architect, a person who is not an architect and a consumer representative. At least one member of the Architects Tribunal must be a person with legal experience and knowledge. No Board member may be a member of the Architects Tribunal (section 21).
10. As a result of section 24(2), any decision made by the Architects Tribunal is taken to be a decision of the Board. An architect who is the subject of an inquiry may appear in person or be represented. The inquiry may be conducted all or in part in public.
11. Section 28 provides that the Architects Tribunal may appoint a legal practitioner to assist in the conduct of the inquiry.
12. Under section 27, if the Architects Tribunal decides to hold an inquiry, it must, at least 14 days before the scheduled date, send the architect a notice which:
    • States its intention to hold an inquiry, the kind of inquiry to be held, the grounds for the inquiry and the place and time at which it is to be held;
    • Invites the architect to explain his or her behaviour personally or in writing; and
    • Contains other prescribed information.
13. The procedure of the inquiry is at the Architects Tribunal's own discretion and it is intended that the proceedings be conducted with as little formality and technicality as the requirements of the Act and the proper consideration of the matter permit. The Architects Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit. The Architects Tribunal make take evidence on oath or affirmation. It is bound by the rules of natural justice[3] and may issue summonses.[4]
14. Section 32 sets out the grounds for disciplinary action against a registered architect and says:

If after considering the submissions made at an inquiry the Tribunal finds that-

(a) the architect is careless or incompetent in his or her practice; or

(b) the professional standards of the architect are demonstrably lower than the standards which a competent architect should meet; or

(c) the architect is guilty of unprofessional conduct; or

(d) the architect has breached or failed to comply with any provision of this Act; or

(e) the architect has been convicted in Victoria of an indictable offence or has elsewhere been convicted of an offence which if committed in Victoria, would be an indictable offence; or

(f) the registration of the architect has been obtained by fraud or misrepresentation or concealment of facts-

the Tribunal may make one or more of the following determinations-

(i) to require the architect to undertake further education of a kind, and to complete it within a period, stated in the determination;

(j) to impose a condition or limitation on the architect's registration relating to the architect's practice;

(k) to impose a penalty not exceeding 50 penalty units;

(l) to suspend the architect's registration for the period stated in the determination;

and may make any determination as to costs that it thinks fit.

1. Section 42(2) of the Act provides that a person whose interests are affected by a determination of the Board that an inquiry should not be held, may seek review by VCAT. Mr Shalit's application has been made under section 42(2).

Professional standards and conduct under the Architects Act and regulations

1. Section 69(1)(m) and (n) of the Act provide that the Governor in Council may make regulations for and with respect of the standards of professional conduct and practise for architects and the preparation, publication and implementation of guidelines on professional conduct and practise for architects. No guidelines of this kind have been made.
2. The Architects Regulations 2004 include the following:

An architect must perform his or her work as an architect in a competent manner and to a professional standard.

Without limiting the meaning of unprofessional conduct-

(a) an architect who contravenes one or more of regulations 6 to 14 is guilty of unprofessional conduct; and

(b) a partner of an approved partnership or a director of an approved company who contravenes one or more of regulations 6 to 14 by operation of regulation 15 is guilty of unprofessional conduct.

1. Regulation 6 is set out above. Regulations 7 to 14 say:
   • Regulation 7 - An architect must act in the interest of his or her client or prospective client and not favour his or her own interest over that of his or her client or prospective client;
   • Regulations 8 and 9 - An architect must give written notice to a client or prospective client if he or she may have a conflict of interest in respect of a project and obtain written consent before proceeding;
   • Regulation 10 - An architect who is commissioned to administer conditions of contract must do so impartially between the parties to that contract;
   • Regulation 11 - An architect must be remunerated for his or her architectural services by either the professional fee, or other benefits specified in the contract of engagement or the salary and any other benefits payable by the architect's employer;
   • Regulation 12 - An architect must ensure representations made in connection with the supply or possible supply of architectural services or in connection with the promotion or advertising by any means of the supply of architectural services are accurate and current;
   • Regulation 13 - An architect must ensure that written communications properly disclose in what capacity he or she works and the other architects who are partners or directors, where applicable; and
   • Regulation 14 - An architect must set out in writing the terms of engagement and any changes to those terms and supply a copy of the document to the client.
2. Regulation 17 provides that the Board may prepare guidelines on professional conduct and practise for architects, approved companies and approved partnerships. I was informed that no such guidelines have been prepared.

1. The background to Mr Shalit's complaint is as follows.
2. Mr Shalit is a member of the KNC. In October 2007, he and his wife purchased a property in Caulfield North which they then donated to the KNC for the purpose of establishing a synagogue on the site. At that time a tyre factory was located on the site.
3. The KNC Board held a competition seeking design concepts. A design was selected but it would have cost significantly more than KNC's budget.
4. Mr Shalit, a trained but not then registered architect, offered to design an affordable building on a pro bono basis. He never expected to be paid for his services and no contract was made.
5. In March and April 2009, Mr Shalit prepared design concept drawings for a two-storey building.
6. In around May 2009, on behalf of the KNC Board, Mr Shalit engaged Ausdraft Pty Ltd (Ausdraft) to prepare plans suitable for an application for a planning permit. The dealings with Ausdraft ceased in around October 2009, apparently after that permit was issued.
7. At a meeting held on 25 June 2009, the KNC Board approved Mr Shalit's design. The design was later approved at an annual general meeting of KNC on 17 August 2009.
8. In around October 2009, Mr Shalit, acting on behalf of the KNC Board, engaged Mr Perkins to provide contract documentation for building approval and construction and services during construction. In accordance with the terms of engagement, Mr Perkins adapted the design for the two-storey building to meet building permit requirements.
9. On 27 July 2012, the President of the KNC notified Mr Shalit that the executive had decided to construct only a single story synagogue building. Mr Shalit considered that the second storey and the clerestory windows were important elements of his design and they were to be deleted. Mr Shalit was told that the reason for the decision was because the KNC had not raised sufficient funds to construct the approved two-storey building.
10. Soon after Perkins prepared a set of plans and drawing for a single story synagogue which Mr Shalit says were based upon his original two-storey design.
11. On around 17 August 2012, Mr Shalit rang Mr Perkins and told him to cease making changes to his design because Mr Pekins did not have his permission.
12. On 3 September 2012, Mr Shalit sent Mr Perkins an e-mail stating that he had designed the synagogue and that he retains copyright in the concept.
13. Mr Shalit says that, even though Mr Perkins had been told that he retained copyright in the design, Perkins continued to use his original design and to modify the two-storey design for the purpose of the new one story design. Mr Shalit complains that Perkins also removed his name from the drawings and specifications.
14. Mr Shalit complains that by using and amending his original two-storey design, Mr Perkins infringed his copyright and moral rights.
15. It was this belief which led to Mr Shalit making his complaint to the Board.
16. In his complaint, Mr Shalit made reference to the Royal Australian Institute of Architects Code of Professional Conduct (Code). That Code says in part:

Members have an obligation to respect and acknowledge the professional aspirations and contributions of their colleagues and the contribution made to their works by others.

4.2 Standard: Members must not appropriate the intellectual property of nor unduly take advantage of the ideas of another architect without express authority from the originating architect. Members must build their professional reputation on the merits of their own service and performance and should recognize and give credit to others for professional work performed.

4.3 Standard: Members must not attempt to supplant another architect, who has been appointed for a particular project.

1. It is convenient to note here that the above extract from the Code was all that was produced to me. I enquired whether there might be other parts of the Code which were relevant to this matter. I was told by both parties' legal representatives that the other parts of the Code were not relevant.

1. After being notified of Mr Shalit's complaint, on 15 March 2013, Perkins responded to the Board.
2. Perkins said that it had never claimed to be the design architects of either the original two-storey or the revised single storey scheme. It said that, consistent with a letter of engagement dated 26 October 2009, it had only been appointed to undertake contract documentation work for the purposes of obtaining a building permit and to provide contract administration services during construction.
3. Perkins said that, prior to preparing working drawings on the revised single storey scheme, it was approached by Mr Shalit who insisted that it not carry out any works on the revised scheme as it impinged on his rights as design architect. Mr Perkins forwarded the email raising this matter to representatives of the KNC 'to ensure that any issues between the committee and Mr Shalit were appropriately dealt with.' Perkins was informed that the KNC had written to Mr Shalit stating that he no longer had authority to represent it in relation to the building programme. The correspondence made it plain that Mr Shalit had never been formally engaged by KNC as architect and that his role, along with a number of other members of the community who contributed to the design, had been voluntary.
4. Perkins says that it never claimed ownership over another professional's design and, once aware that there may have been an issue, it ensured that Mr Shalit was formally contacted by the KNC with respect to his and Perkins' ongoing roles, thereby discharging Perkins' professional obligations.
5. Perkins received a letter from Mr Shalit's then lawyer stating that there had been a breach of copyright and that proceedings were to be taken. Perkins was provided with a copy of a letter written to Mr Shalit's then solicitors from solicitors representing the KNC. That detailed letter rejected the claim of breach of copyright.
6. On 2 September 2013, Perkins wrote to the solicitors for the Board. Perkins reiterated the matters referred to above. The letter also clarified the timing of the various plans which are discussed below.
7. Perkins stated that its position was simply that:
   • On 23 July 2012, Ausdraft issued single storey town planning drawings for the proposed synagogue;
   • Perkins prepared a fee proposal to under take the revised building approval documentation on 2 August 2012 and that proposal was approved by the KNC on 13 August 2012;
   • Perkins became aware of the dispute between Mr Shalit and the KNC on around 17 August 2012 after the issue of the revised Ausdraft single storey town planning drawings and after Perkins had been engaged to prepare building approval drawings based on the Ausdraft drawings; and
   • Perkins referred the matter to the KNC on 21 August 2012 and ensured that Mr Shalit had been contacted about his and Perkins' ongoing roles, thereby discharging Perkins' professional obligations.
8. Perkins says that it is not and has never claimed to be the author of the revised single storey drawings prepared by Ausdraft. Therefore it contends that any alleged breach of copyright and associated professional misconduct is unfounded.
9. Mr Perkins made submissions at the hearing. He confirmed the above matters.
10. Mr Perkins said that, on the first set of drawings he produced, he referred to Mr Shalit as the design architect because that was what he understood Mr Shalit's role to be. When it came time to finalise the second set of drawings for the single storey scheme, he was informed that the design was owned by KNC. Accordingly, he noted the plans in that way. He explained that the Perkins name was included on the plans as architect so that the building surveyor would know which firm to contact with any questions.
11. Despite placing the firm name on the second set of drawings as explained above, Mr Perkins was emphatic that he had never claimed authorship over the design. He said he was only producing working drawings for the building permit.
12. Mr Perkins said that the way he had managed the issue raised by Mr Shalit was consistent with usual professional conduct. That required that he ensure that the relationship between his client and the previous architect had been appropriately terminated.
13. Mr Perkins believes that he is collateral damage in the dispute between Mr Shalit and the KNC which arises from Mr Shalit being disappointed that the KNC has not used his original two-storey design. As Mr Shalit is a member of the KNC, as is his wife, Mr Perkins suggests Mr Shalit cannot take action against that body.
14. Mr Perkins also commented that Ausdraft had claimed copyright over the drawings but no action had been taken against it.

1. It is not necessary to refer to the plans in any detail other than to note that there was a February 2010 set of plans for the two-storey design which showed Mr Shalit as the design architect and Perkins as the documentation architect.
2. There is a further set of drawings for the two-storey design dated 23 July 2012 in the name of Ausdraft in which Ausdraft claims copyright. No reference is made to Mr Shalit.
3. Perkins' single storey drawings dated October 2012 make no reference to Mr Shalit.

1. Under section 18B of the Act, the Board appointed two persons to assist it to determine whether or not an inquiry should be held. At the hearing, the Board was unable to tell me the qualifications of those persons.
2. On 8 April 2013, a report was prepared for consideration by the Board. Reference was made to the background events and the professional conduct clauses contained in the Regulations. The report also referred to Perkins' response together with the legal opinion provided to the KNC.
3. The conclusion is stated as follows:

Any finding of unprofessional conduct in this instance would appear to depend upon whether the architect/architectural firm infringed copyright. This in turn will depend upon interpretation of the Copyright Act 1968 and would in all likelihood be subject to complex legal argument.

The reviewers do not have sufficient knowledge of copyright law to be able to draw a conclusion and therefore take the view that the Board should obtain legal advice regarding the matter.

1. The report added as a matter for discussion: 'the Board may wish to consider referring the matter directly to inquiry by a tribunal.'
2. The final recommendation and reasons were stated as follows:

That the Board seeks legal advice on the matter given the complex nature of copyright law before determining whether referral to inquiry is warranted under the circumstances.

1. The Board held a meeting on 9 April 2013. Item 7.2.1 of the minutes says as follows:

A report from DH and AR was considered, and after discussion the Board was of the view that the matters alleged fell outside the jurisdiction of the Board and the Tribunal. It was agreed not to refer the matter to Tribunal inquiry.

1. Mr Shalit was given notice of the Board's decision by letter dated 11 April 2013. After referring to its policy on referral, the Board said that it did not consider that there were grounds for referral to an inquiry.
2. As required by section 49 of the VCAT Act, the Board provided a statement of reasons for the Board's decision for this proceeding.
3. The reasons for the Board's decision were stated to be as follows;
   • The fundamental nature of the complaint is that Perkins infringed copyright claimed to be owned by Mr Shalit in design documents for the proposed synagogue produced between April and June 2009. The allegation of copyright infringement is disputed by Mr Perkins and by the KNC.
   • The factual and legal issues surrounding the complaint of copyright infringement are extremely complex, and are beyond the capacity of an Architects Tribunal to resolve. The Architects Tribunal is made up of mostly non-legally trained people. Each Tribunal must include at least one person who is legally qualified. However, the Architects Tribunal members will not possess the skills necessary to resolve a dispute about legally complex copyright issues.
   • Amongst other things, in order to determine whether or not the complaint is valid, it would be necessary to establish certain matters. Those matters were said to include:
     1. Whether or not copyright exists in the documents prepared by Mr Shalit. That was said to require a consideration of complex legal tests about whether Mr Shalit's design was a sufficiently original work involving sufficient skill and judgment having regard to matters including the content of design documents which had been previously prepared by others;
     2. If copyright does exist in the documents, whether or not Mr Shalit granted an implied licence to the KNC to adapt and reproduce the work;
     3. If there was no such implied licence, whether or not the single-storey design prepared by Mr Perkins did in fact infringe Mr Shalit's copyright; and
     4. To the extent that Mr Shalit also complains that his moral rights are infringed, whether or not the use in this case falls within the reasonableness exceptions to the moral rights provisions.
4. The reasons said, further, that the complaint is best determined in a civil dispute between the relevant parties by a court which is experienced in considering legal issues of copyright. The Board went on to say that the public interest would not be served by the Board applying its very limited resources to conducting an Architects Tribunal hearing to determine such complex legal questions, particularly in circumstances where Mr Perkins and the KNC dispute the allegations made.
5. The Board said that, if Mr Shalit was successful in civil proceedings establishing a breach of his copyright or his moral rights, it may then consider a fresh complaint by Mr Shalit supported by a final determination in the civil proceedings.
6. The Board then said that the evidence before it did not establish a prima facie case that Mr Perkins had been guilty of any of the matters set out in section 32 of the Act. It said that none of the general or specific obligations of architects set out in the Regulations applied to the complaint that had been made.
7. Its reasons concluded by saying that the Board considered that the public interest would not be served by using the resources of an Architects Tribunal to deal with a copyright dispute which should first be the subject of civil proceedings before the Federal Court.
8. The Board said that its decision was made having regard to its published policy dealing with the referral of matters for an inquiry.
9. The policy says relevantly:

(1) The Board will not normally refer a complaint to a Tribunal for inquiry where the Board is satisfied that -

(c) the public interest would not be served by such a referral; or

(d) the evidence before the Board does not establish a sufficient case to answer such that a Notice may be drawn up setting out the particulars against an architect; or

(e) a breach of one of regulations 12 or 13 is the only ground alleged.

(2) The Board will normally refer a matter to a Tribunal where it is satisfied that -

(a) sufficient evidence has been presented, and which is not refuted substantially by the architect's explanation, supporting an allegation of a breach of the Act or regulations such that a Notice can reasonably be drawn up; or

(b) an architect appears to have failed to comply with any part of Regulation 14; or

(c) an architect generally appears to have failed to comply with regulations 6 and 7, or has acted in such a way as to indicate an unresolved conflict of interest under one or more of regulations 7(b), 8, 9, 10 and 11; or

(d) an architect, having apparently made an error in documentation, certification or contract administration, and having been given a reasonable opportunity to rectify that error, has apparently failed to do so to the satisfaction of the complainant, and in accordance with contract provisions.

1. Mr Shalit's position is that the threshold that must be met in order to refer a matter for an inquiry should not be high. He says that, if the material presented to the Board indicates that, prima facie, the conduct in question may possibly fall within the scope of section 32 of the Act, that is enough to warrant referral to an inquiry.
2. Mr Shalit says that the conduct of relevance here under section 32 of the Act is 'carelessness', 'incompetence', 'professional standards demonstrably lower than the standards which a competent architect should meet' or 'unprofessional conduct'. Mr Shalit notes that none of those terms are exhaustively defined. Regulation 16 makes specific reference to performing work in a competent manner and to a professional standard. Mr Shalit says that each of these terms should be given their ordinary English definition.
3. For reasons set out in detail in the written submissions, Mr Shalit says the evidence is sufficient to suggest a real possibility that Mr Perkins breached his copyright and moral rights. Therefore, he says that such conduct would at least constitute careless and unprofessional conduct so as to warrant an inquiry into fitness to practise or professional conduct.
4. Mr Shalit says that, even if the factual and legal issues surrounding the complaint are extremely complex, that is not a sufficient reason to justify not referring the matter to an inquiry.
5. Mr Shalit notes that the Board has the power to appoint a person to assist it in determining whether or not the complaint should be referred to an inquiry. That would include the power to seek legal advice consistent with the recommendation made to the Board. In addition, Mr Shalit notes that the Architects Tribunal must include a member with legal experience and knowledge. The Architects Tribunal may appoint a lawyer to assist it in the conduct of the inquiry. The Architects Tribunal has extensive investigative powers which can require the giving of evidence on oath and issuing summonses. Accordingly, Mr Shalit says that the Architects Tribunal has all of the skill and expertise necessary to deal with the complaint further. In these circumstances, Mr Shalit says it is incorrect to say the Architects Tribunal does not have the capacity to determine the matters raised in the complaint.
6. Consistent with these submissions, Mr Shalit says that the view of the Board that the matter is best dealt with by a court is not a reason to conclude that an inquiry should not be held. Mr Shalit notes that the Board has been given the statutory task of regulating the professional conduct of architects and substantial powers to allow it to do so. Where, as Mr Shalit contends, the evidence suggests a valid basis for the complaint and at least a prima facie case that Mr Perkins may be found guilty of the matters set out in section 32 of the Act, Mr Shalit says it is not sufficient for the Board to refuse to act merely because the complaint could be dealt with by the court. He says that would be an abdication of its function.
7. Mr Shalit notes there are many reasons why a person may wish to file a complaint with the Board rather than pursue court proceedings. He says that a complainant ought not be required to take legal action before the Board will undertake appropriate disciplinary action.
8. As to the question of the public interest, Mr Shalit notes that he is a member of the public. He also says that the Board has an interest in ensuring that its architects conduct themselves in an appropriate and professional manner and all times. He says that, when a complaint is made about the professional conduct of an architect, it should be inquired into. He says that he has a valid complaint.
9. Mr Shalit says that the evidence in this case does suggest at least a prima facie case of unprofessional or careless conduct within the meaning of section 32 of the Act.

1. The Board says that referring an architect for an inquiry is closer to deciding to lay a charge or issuing a show cause notice. The Board says that the inquiry process is commenced with the issuing of a notice of inquiry under section 27. The Board says that there must be a prima facie case that the architect has engaged in conduct which should be the subject of an inquiry. It says that a prima facie case is a case in which there is some evidence in support of a charge or allegation, which will stand unless it is displaced. That calls for a higher threshold than merely identifying a possible breach.
2. The Board says that its power under section 18 is a discretionary one and ultimately the decision is to be made by the Board in its sole discretion. It confirms that, in exercising its discretion, the Board had regard to its policy as set out earlier.
3. Consistent with the policy, the Board says it does not normally decide that an inquiry should be held based only upon the mere possibility that one of the grounds for disciplinary action set out in section 32 of the Act may apply. The Board considers that it would be unreasonable to expose architects to the stress and costs of an inquiry based only upon such a possibility. The Board notes its very limited resources would not allow such an approach.
4. On the question of the claimed breach of copyright or moral rights, the Board submissions made reference to all of the matters that must be established in law for such a claim together with issues relating to express and implied licences and the defences and exceptions which may be available to Mr Perkins. The Board noted that copyright law is notoriously complex and made reference to a number of cases which, in their trial, intermediate, appeal and High Court appeal phases, took a significant number of days and resulted in lengthy decisions.
5. The Board disputes the proposition that, through the powers given under the Act, the Architects Tribunal could arm itself with the skills and expertise required to deal with such legal matters. It maintains that the Architects Tribunal is an inappropriate forum to resolve the central issue in dispute, being a question of copyright and moral rights infringement.
6. As for the Code, the Board says, correctly, that it has no status under the Act. It was accepted though, that the Code might be relevant in understanding what the expectations of the profession might be.
7. The Board says that, before it could turn to the question of whether there had been any carelessness or incompetence or unprofessional conduct or a failure to work in a manner consistent with the standards of a competent architect, the Architects Tribunal would first have to make a finding on the question of copyright or moral rights infringement.
8. The Board says that, even if it was proven that there was a breach of Mr Shalit's copyright or moral rights, it does not necessarily follow that the finding would form the basis of grounds for disciplinary action by the Board. The Board would need to consider whether or not the infringement results in an apparent breach of any of the grounds set out in section 32 of the Act. Reference was made to the decision of the South Australian Supreme Court in Re A Practitioner of the Supreme Court[5] which was relied on in Chen v Chiropractors Registration Board of Victoria.[6] The Board said that the test for unprofessional conduct was whether the conduct in issue violated the standard of professional conduct observed or approved by members of the profession of good repute and competency.
9. The Board says that, it is not in a position to carry out the assessment under section 32 when it is unclear whether or not an infringement of copyright or moral rights has occurred. The Board solicitor suggested that, even if there was a breach of copyright, in all the circumstances of this case, it is unlikely that would establish a ground under section 32. It was asserted that the ground of carelessness or incompetence (section 32(a)) related more to the way in which an architect undertook his or her work, rather than the type of complaint made here.

1. Reading the provisions of Part 4 together, the Board has the initial task of deciding whether or not there should be an inquiry into the relevant architect's fitness to practise or his or her professional conduct. It may appoint a person to assist in making that decision as well as seek more information from the complainant and the architect. It must then give notice of its determination.
2. Section 27 says that, before a notice is issued setting out the subject matter of the inquiry and before any hearing can proceed, the Architects Tribunal itself must decide itself to hold an inquiry. There are no provisions setting out how the Architects Tribunal is to make that decision or whether it may be assisted in reaching a decision. Assistance may be obtained from a legal practitioner for the conduct of the inquiry, but not apparently in making the decision.
3. It is correct to say that the power given to the Board under section 18 is entirely discretionary and unfettered. Having said that, the Board ought to exercise that power having regard to the purpose for which it was created and to its duties. As discussed earlier, the Board's powers and duties include regulating the professional conduct of architects and providing a procedure for complaints. So, when considering whether a particular complaint ought to be referred to an inquiry, the Board must have in its mind whether or not the conduct complained about might engage that regulatory function. That is, it ought to turn its mind to whether, if established, the conduct could be regarded as falling within one of the grounds set contained in section 32.
4. At the hearing, the Board solicitor confirmed that the Board had not turned its mind to the question of whether a breach of copyright or moral rights could amount to unprofessional conduct.
5. It seems to me that the Board erred when it made a decision based only on the question of a copyright or moral rights infringement. I accept that was how the complaint came to be presented, but the original complaint expressly contended that there had been a breach of section 32.
6. Mr Shalit's complaint documents referred to the part of the Code which says members have an obligation to respect and acknowledge the professional aspirations and contributions of their colleagues and the contribution made to their works by others. After referring to the events, he said that Mr Perkins had breached the Act and Regulations by 'appropriating and changing the design without my permission. He also accepted to take over the role of design Architect without my approval.' On my review of the material, the complaint became focussed on the legal question of copyright in part because of the legal advices exchanged by Mr Shalit and the KNC.

1. I accept Mr Shalit's proposition that the threshold for referral to an inquiry is not high. Having said that, there must be more than a bald assertion. In general terms, I consider that the Board's policy as set out earlier is a reasonable approach to deciding when to refer a matter. A proviso is that the Board ought not to give too great weight to the fact that the architect may refute the allegations. The fact that there is a dispute about the matters in issue is not enough to decide against referral. While the Board must make some assessment of the strength of the available material, it ought not to pre-judge which factual matters will be established after a proper hearing when all parties can present evidence and that evidence can be tested.
2. Clearly it is not necessary for the Board to have a final view about whether there had been a breach of section 32, but it ought to be satisfied that, if the facts alleged are established, a notice raising an alleged breach of section 32 can be prepared. It does not need to prepare that notice, as responsibility for that task is reserved to the Architects Tribunal.
3. Where there is a factual basis laid out for the complaint and the architect's response does not provide a complete answer, then having identified a breach which is open to be alleged on the facts, referral would be appropriate.

1. A private dispute which concerns an alleged infringement of copyright or moral rights would usually be resolved by a civil proceeding. The existence of such a matter would not automatically raise a professional conduct question. However, if the alleged infringement was conceded by the architect or the factual circumstances were suggestive of an egregious breach, the otherwise private dispute would more likely become a professional conduct matter. The role of the Board is not to determine private civil matters but to regulate the profession, including by making an assessment of complaints about professional conduct and referring suitable matters to an inquiry.
2. Mr Shalit is correct to say that the Act empowers an Architects Tribunal to obtain assistance, make determinations about evidence and tackle potentially complex legal questions. I agree that concerns about the use of the Board's limited resources for a complex inquiry is not an answer of itself where the functions of the Board under the Act are being carried out. Having said that, a broad discretion has been given to the Board under section 18 of the Act and there may be circumstances where it is open for the Board to take those matters into account.
3. A hotly contested copyright dispute might be best determined by a court. That is because it might not be in the public interest for such a dispute to be the subject of a non-binding decision of an Architects Tribunal which has as its focus professional conduct. Where the public interest falls would depend on how the copyright dispute is viewed within the professional conduct prism and on all of the circumstances of the complaint.
4. As can be seen from the Board's decision, it has not reached a view on whether there was a copyright or moral rights infringement by Mr Perkins. The submissions made to VCAT on behalf of the Board raised questions about the claimed breaches but did not state a final position. The Board did not fully argue these matters and I am not satisfied that the material placed before VCAT is sufficient to allow me to reach a view on those questions.
5. The questions raised by Mr Shalit were not, as described in the Board's 9 April 2013 minutes, beyond the 'jurisdiction' of the Board. Mr Shalit made complaints about Mr Perkins' professional conduct and it is the Board's task to regulate the profession in part by considering complaints of this kind. In undertaking that task, the Board was required to consider whether the circumstances of this case could raise a professional conduct question.
6. Those circumstances include: the claimed copyright and moral rights infringement; Mr Perkins' referral of Mr Shalit's concerns to the KNC and his reliance on its response; and the way in which he used Mr Shalit and Ausdraft's drawings and plans and how he presented those he produced.

1. Other than referring me to section 32 of the Act, the Regulations and the Code provision set out above, neither party called any other evidence about what professional standards might apply to these circumstances.
2. The Board's solicitor noted that the provision in the Code related to other architects and that, at the time, Mr Shalit was not a registered architect. I asked whether that meant that a claimed breach of the principle set out in the context of a person other than an architect might be acceptable professional conduct. The Board's solicitor accepted that a question may be raised in those circumstances.
3. I enquired of the parties whether there were any decisions of the Architects Tribunal or VCAT regarding professional standards, particularly in relation to issues of copyright. I was told there were none. I enquired whether there were any guidelines or publications or newsletters issued by the Board which might assist in understanding what an experienced architect would regard as appropriate professional conduct in the factual circumstances of this matter. I was told there were none. I enquired whether an expert such as a senior practitioner or a lecturer in ethics or conduct from a university might be able to provide evidence about the applicable professional standards. It seemed to be accepted that such a person could, but none had been called. Mr Shalit's Counsel suggested that such people would likely be on the Board. Given the composition of the Board set out earlier, that would seem to be correct.
4. While the Code is not mandatory and it does not have statutory status, it did appear to be accepted by the parties that at least clauses 4.2 and 4.3 were relevant.
5. Regulations 7 to 14 (as summarised earlier) do not appear relevant to this matter. I accept that the reference in regulation 6 to performing work competently appears to be more relevant to the way in which architects undertake their work rather than how they deal with the work of others and the management of relationships surrounding a project. Having said that, the regulation may touch on the issues raised here depending on what the profession identifies as a competent and professional standard in a case such as this. Even if none of the regulations apply here, it is clear that they do not provide an exhaustive definition of unprofessional conduct.
6. Given the limited material before me, it is not clear whether section 32(a) and (b) could apply to the circumstances giving rise to the complaint. Whether or not those provisions arise will depend on what are identified as the applicable professional standards.

1. In the absence of material which clarifies proper standards of conduct in the factual circumstances here, I am unable to reach a view as to whether the alleged infringement of copyright and moral rights or whether Mr Perkins' other conduct of Mr Perkins could raise a ground under section 32. It would appear that the Board gave weight to the legal advice about copyright law provided to the KNC. Clearly neither that advice nor that provided to Mr Shalit is independent. The Board may wish to obtain its own advice on the copyright matter but that advice would not necessarily be determinative of this matter.
2. It appears to be accepted that the parts of the Code might be relevant to the professional standards expected of architects. Others, such as Board members, would be able to comment on whether the Code as drafted is consistent with good practice and professional standards. The Board may elect to seek further responses from Mr Shalit and Mr Perkins. It should then consider whether, the factual circumstances, which are largely undisputed, indicate a failure to act in accordance with the terms or spirit of the Code or identified professional standards. That is, the Board ought to consider whether, assuming the relevant facts are proven, in the circumstances of this case, Mr Perkins' conduct violated the standard of professional conduct observed or approved by members of the profession of good repute and competency.
3. Where I am unable to reach a view about this question, it is appropriate that the matter be remitted to the Board to reconsider the complaint made, having regard to these Reasons.

[1] Architects Act 1991, section 1(a), (c) (d) and (f)

[2] Architects Act 1991, section 47

[3] Architects Act 1991, section 30

[4] Architects Act 1991, section 31

[5] [1927] SAStRp 9; (1927) SASR 58

[6] [2000] VSC 480 at paragraph [23] - [24]