Under section 51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the 11 February 2014 decision of the Architects Registration Board of Victoria is affirmed.

1. Mr Shalit has applied to VCAT for review of a decision made by the Architects Board of Victoria (Board). On 11 February 2014, the Board decided not to refer Mr Shalit's complaint to an inquiry to be conducted by a tribunal established under the Architects Act 1991(Vic) (Architects Act). 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. This is the second time Mr Shalit has challenged the Board's decision not to refer his complaint to an inquiry. On 17 October 2013, I made an order that the Board's first decision, made on 9 April 2013, was set aside and the matter was remitted to the Board for re-consideration having regard to my published reasons.[1] The Board's February 2014 decision followed that re-consideration.

1. My 2013 decision set out the background to the dispute between the parties at paragraphs 27 to 40. To summarise:
   • 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;
   • The KNC Board held a competition seeking design concepts. A design was selected but it would have cost significantly more than KNC's budget;
   • 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;
   • In March and April 2009, Mr Shalit prepared design concept drawings for a two-storey building;
   • 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.
   • 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;
   • 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 also 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;
   • In July 2012, the KNC executive decided to construct only a one-storey synagogue building as the cost of the two-storey building exceeded available funds;
   • The KNC engaged Ausdraft to prepare drawings for a one-storey scheme. After doing so, on 20 November 2009, Perkins was engaged to prepare plans;
   • On around 17 August 2012, Mr Shalit rang Mr Perkins and told him to cease making changes to his design because Mr Perkins did not have his permission. On 20 August 2012, Mr Shalit sent a further email which included an extract from material produced by the Australian Institute of Architects regarding copyright in architecture;
   • Perkins referred the matter to the KNC on 21 August 2012. In an email dated 23 August 2012, Mr Perkins was told by Mr John Furstenberg of KNC that there had never been a client architect agreement with Mr Shalit and that Mr Shalit was a volunteer. The email said that Mr Shalit, along with a number of other members of the community, had contributed to the design. The email concluded that the KNC had written to Mr Shalit stating that he no longer had authority to represent it in relation to the building program. Relying on that information, Perkins prepared plans for the revised single storey scheme;
   • 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; and
   • Mr Shalit made a complaint to the Board about Mr Perkin's conduct and sought an inquiry under the Architects Act. On 9 April 2013, the Board made a decision refusing to do so.

1. In the 2013 matter, Mr Shalit complained 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-storey design. Mr Shalit complains that Perkins also removed his name from the drawings and specifications. He further complained that, by using and amending his original two-storey design, Mr Perkins infringed his copyright and moral rights.
2. In this proceeding, Mr Shalit complains that, the reasons for the Board's February 2014 decision failed to properly identify the professional standards which applied to the circumstances of this case. He says that it should be inferred from the Board's failure to identify those standards in the reasons given, that the Board did not properly turn its mind to the content of the standards in making the decision. Mr Shalit says that VCAT should decide either to set aside the February 2014 decision and again remit the matter back to the Board or substitute a decision that an inquiry should be held into Mr Perkins' professional conduct.
3. In the 2013 matter, VCAT was supplied with a large amount of material relating to the question of whether Mr Shalit had copyright or moral rights in the designs and whether his copyright or moral rights had been breached by Mr Perkins. At the hearing of this matter, Mr Shalit's counsel clarified that the issue now was Mr Perkins' professional conduct after Mr Shalit raised concerns with him about a possible breach of copyright. The legal argument as to whether there had been a breach of copyright or moral rights was to be put to one side. On this basis, I have not considered those legal arguments.

The Board's 11 February 2014 decision

1. When making its 2013 decision, the Board had regard to the following policy statement:

(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. The Board's second decision was conveyed in a letter dated 27 February 2014 which enclosed a document entitled 'Record of ARBV decision at Board meeting on 11 February 2014' (Board decision). While for the purposes of this proceeding, the reasons for the Board's decision are taken to be the document filed under section 49 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) , I will first refer to the content of the Board decision.
2. The Board decision makes reference to my earlier reasons and to the decision it had made in 2013. It noted that it was:

. . . of the view that it was sufficiently clear from the material before it that the facts were not in dispute as between Mr Shalit and Mr Perkins in relation to their communications in August and September 2012 such that further investigation and assessment by a Tribunal was not required.

1. At the hearing before me, it was confirmed that there was no factual dispute between the parties about the background to the matter or about the communications between Mr Shalit and Mr Perkins or about the steps taken by Mr Perkins in August and September 2012 in respect of Mr Shalit's concerns. That was understood to be the conduct the Board had considered.
2. The Board decision included detailed comments and conclusions regarding the issues relating to copyright. Given that is not a matter relied on by Mr Shalit here, I will leave those comments and conclusions to one side.
3. At paragraphs 5 and 6, the Board decision says:

The Board compared Mr Perkins' conduct to what is expected of a member of the profession of good repute and competency in this situation and determined that Mr Perkins' conduct did not fall below that of a member of the profession of good repute and competency, nor was it incompetent or careless.

The Board was of the view that Mr Perkins' conduct was in line with typical professional standards of competent architects in the industry and that Mr Perkins had not failed to act in accordance with relevant professional standards (including the Architects Code of Professional Conduct). The Board was satisfied that Mr Perkins' conduct did not fall within any of the grounds set out in section 32 of the Architects Act 1991.

1. The Board concluded that Mr Perkins acted appropriately by seeking instructions from his client on the copyright issue and that he acted appropriately when he followed KNC's instructions and prepared the one-storey drawings.
2. The Board said that it was standard industry practice that a name on a drawing signifies only that the named person produced the drawing, not that they claim ownership over the design or concept. It said that, having been told that a number of persons contributed to the original two-storey concept and knowing that Mr Shalit objected to the changes (which suggested that he would not want to be attributed in relation to the one-storey design), it was reasonable for Mr Perkins to mark the drawings with reference to Perkins only.
3. The Board decision concludes:

Even if the Board is incorrect in its conclusions regarding the application of copyright and moral rights law to the facts of this case, the Board is nevertheless satisfied that Mr Perkins' conduct did not fall within any of the grounds set out in section 32 of the Act and does not raise a professional conduct question. If there was an infringement, it was certainly not an egregious infringement, nor was it of a type which would raise concerns about the professional conduct of Mr Perkins.

1. I was informed that, in making its decision, the Board relied on a report prepared by Mr Anthony Mussen. Mr Mussen has been awarded the Royal Australian Institute of Architects Citation for Life Fellowship. The Citation says that he has been a practising architect for 30 years. He has held a number of positions at The University of Melbourne, including Deputy Head of the Department of Architecture and Building, Deputy Head of Faculty and Head of Architecture, Deputy Dean and Associate Dean. He was the Practice Director of the Victorian Chapter of the Royal Australian Institute of Architects, an author of practice manuals and guidelines, former member of the Board and the Chair of Tribunals.
2. His report recommended that the Board further investigate the complaint of copyright infringement by obtaining legal advice and then considering the complaint in the light of the advice. He said:

The recommendation is that the Board authorise further investigation of matters pertaining to whether or not the architect infringed copyright. The reason is that without an infringement being shown to have occurred the complaint cannot be proven and the matter would not merit progression.

1. I was told that Mr Mussen was present at the Board meeting in February 2014 to assist the Board in its deliberations.
2. The Board also relied on a detailed legal advice from Mr Warwick A Rothnie, a barrister who is regarded as an expert in copyright law.
3. The Board did not commission a further report from Mr Mussen or another architect after the legal advice was obtained. It considered all of the material at the Board meeting on 11 February 2014 and made its decision.
4. Seven members of the Board were present when the Board decision was made, four of whom are architects. I have noted beside the architect member's names their professional qualifications and relevant experience:
   • David Sainsbery - Fellowship Diploma of Architecture (RMIT) - registered in Victoria since 1978 - practising architect since 1973 -former Director/Managing Director of Architectus Group Holdings Pty Ltd and subsidiary companies - member of the Board since 2011 - current Board examiner and member of the Australian Institute of Architects Disciplinary Tribunal
   • David Hallet - Bachelor of Architecture (Melb) - registered in Victoria - practising architect since 1988 - currently General Manager, Archicentre Ltd
   • Ian Sutter - Bachelor of Architecture (Adelaide) - registered in Victoria - previously registered in Queensland - currently national Chair of Cox Architecture
   • David Islip - Bachelor of Architecture, First Class Honours (Melb) and Bachelor of Planning and Design, Urban Planning, Second Class Honours (Melb) - registered in Victoria since 2001 - practising architect since 1994 - currently Principal Advisor, Architecture & Urban Design, Office of the Victorian Government Architect, Department of Premier and Cabinet - member of the Board since 2013
5. The three other Board members who were present were Arianne Rose, a qualified lawyer, company secretary and general counsel, Debra Low-Choy, who holds Bachelor degrees in Design and Interior Design, and Venise Reilly, who holds a Bachelor of Arts, a Diploma of Education and is the director of a building company.
6. The section 49 reasons adopt the matters discussed in the Board decision and address matters arising from my earlier reasons.

1. After being notified of Mr Shalit's complaint, on 15 March 2013, Perkins responded to the Board. Mr Perkins made submissions at the 2013 hearing. After being joined as a party to this proceeding, Perkins sent the Tribunal a letter dated 26 May 2014 which set out its position. Mr Perkins made submissions at the hearing of this proceeding also.
2. Perkins wished to draw attention to a matter which it considered to be incorrect in Mr Shalit's submissions. Those submissions referred to the various plans and drawings for the synagogue but did not include a copy of the town planning drawings of the one-storey scheme which had been produced by Ausdraft before Perkins produced its drawings. This was not disputed at the hearing before me.
3. Mr Perkins says that Perkins was engaged to prepare building approval drawings based on the revised town planning drawings prepared by Ausdraft. As such it had not, nor ever, claimed to be the author of the revised one-storey design and accordingly, any allegation of breach of copyright and associated professional misconduct is contended to be unfounded.
4. Consistent with its position in the 2013 proceeding, Perkins again set out the events leading to the 2013 complaints. Taking the earlier submissions together with the letter of 26 May 2014 and the oral submissions at the hearing, Perkins' position is:
   • Perkins never claimed to be the design architects of either the original two-storey or the revised one-storey scheme;
   • Perkins 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;
   • On 23 July 2012, Ausdraft issued one-storey town planning drawings for the proposed synagogue;
   • Perkins prepared a fee proposal to undertake the revised building approval documentation on 2 August 2012 and that proposal was approved by the KNC on 13 August 2012;
   • Mr Perkins referred to Mr Shalit as the design architect on the first set of drawings he produced, 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 one-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;
   • The way Perkins managed Mr Shalit's concerns 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;
   • 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; and
   • Ausdraft had claimed copyright over the drawings but no action had been taken against it.

1. The power to review the Board's decision is found in section 51 of the VCAT Act. Under that provision, the Tribunal's role is to make the correct or preferable decision having regard to the evidence before it. While it may consider the findings of the Board, it is not bound by them. The Tribunal must make a decision based on its own findings of fact determined on the balance of probabilities. The Tribunal is not conducting an appeal as to the legality of the original decision. Rather, it is seeking to find what is the correct or preferable decision based on its own findings of fact.
2. 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.
3. At the hearing, the parties' submissions and counsel dealt in detail with the content of my October 2013 reasons and the content of the Board's reasons for its February 2014 decision. Both parties correctly stated that written reasons given by a tribunal such as the Board ought not to be scrutinised minutely or overzealously.
4. I told the parties at the hearing that is was my view that, where the Board's February 2014 decision is before me for review, I must decide whether the complaints made by Mr Shalit about Mr Perkins' professional conduct are such that it would be appropriate for the complaints to be referred to in inquiry under the Architects Act. That is not done by analysing the correctness or otherwise of the Board's reasoning process but by considering the material before me and making a fresh decision. The parties did not disagree with this approach.
5. As discussed in my 2013 reasons, the matters to be considered in making that assessment are as follows:
   • The power given to the Board under section 18 of the Architects Act to determine that an inquiry should or should not be held under Part 4 into a registered architect's fitness to practise or professional conduct is entirely discretionary and unfettered;
   • In exercising that power, regard ought to be had to the purpose for which the Board was created and to its duties. The Board's powers and duties include regulating the professional conduct of architects and providing a procedure for complaints.[2] So, when considering whether a particular complaint ought to be referred to an inquiry, the decision-maker 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 contained in section 32 of the Architects Act;
   • 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. I noted that a proviso was 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;
   • Some assessment of the strength of the available material should be made but the decision-maker 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;
   • It is not necessary for the decision-maker to have a final view about whether there has 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;
   • 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;
   • Whether or not the matters dealt with in section 32 arise will depend on what are identified as the applicable professional standards; and
   • The question is 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.

The Architects Act 1991 (Vic)

1. I set out the detail of relevant sections of the Architects Act 1991 (Vic) (the Act) in my 2013 reasons. It is sufficient here to note the following:
   • Part 4 of the Act deals with disciplinary proceedings. 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;
   • 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);
   • Any decision made by the Architects Tribunal is taken to be a decision of the Board (section 24(2));
   • The procedure of an 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 may take evidence on oath or affirmation. It is bound by the rules of natural justice[3] and may issue summonses;[4]
   • Section 32 sets out the grounds for disciplinary action against a registered architect and the determinations which may be made on the completion of an inquiry; and
   • 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. Each of Mr Shalit's applications have been made under section 42(2).

1. Before proceeding further, it is important to identify what conduct of Mr Perkins is in issue. With the alleged breach of copyright put to one side, the conduct to be considered arose in August and September 2012. There is no dispute about the following.
2. On around 17 August 2012, Mr Perkins was put on notice of Mr Shalit's copyright concerns. Mr Perkins sent an email to the KNC on 21 August 2012 asking the KNC to resolve the issue with Mr Shalit.
3. The KNC told Mr Perkins by email reply that there had never been a client architect agreement with Mr Shalit and that Mr Shalit was a volunteer. He was told that Mr Shalit, along with a number of other members of the community, had contributed to the design. The email informed Mr Perkins that the KNC had written to Mr Shalit stating that he no longer had authority to represent it in relation to the building program.
4. Relying on the response from KNC Perkins prepared plans for the revised one-storey scheme using the July 2012 Ausdraft plans as the basis for the design.
5. The allegation is that Mr Perkins acted unprofessionally when he continued to work on the one-storey scheme and when he produced drawings for that scheme which carried his name.
6. The next question to consider is against what professional standards ought that conduct be tested.

1. In my 2013 reasons, I set out relevant parts of the Architects Act and Regulations. Relevantly here:
   • 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;
   • Regulation 6 of the Architects Regulations 2004 says that an architect must perform his or her work as an architect in a competent manner and to a professional standard; and
   • Regulation 17 provides that the Board may prepare guidelines on professional conduct and practise for architects, approved companies and approved partnerships. No such guidelines have been prepared.
2. The Royal Australian Institute of Architects has produced a Code of Professional Conduct (Code). There was no dispute that the Code is not in any way binding on Victorian registered members of the profession, the Board or VCAT.
3. The 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. As I understand it, the Board gives some weight to the Code but relies primarily on the experience of the Board members involved in making the decision to identify the applicable professional standards.
2. At the hearing I expressed surprise that, after the legal advice on copyright had been provided, no further expert report from Mr Mussen or another architect had been obtained. In his report Mr Mussen suggested that course of action. Such a further expert report could have been relied on by the Board in its deliberations or by VCAT when reviewing the Board's decision.
3. Mr Masters, for Mr Shalit, argued that the Board had failed to identify the applicable standards, contrary to the statements I had made about that in the 2013 reasons. He argued that by using phrases such as usual and standard practice, the Board had failed to identify what were the applicable good standards of practice. He noted that usual or standard practice may be poor. Mr Shalit's complaint is that, having failed to identify the applicable good standards of practice in the circumstances which arose here, the Board's reasons do not disclose how it dealt with the substantial issues and its intellectual process.
4. Mr Masters contended that, the Board having failed to identify the applicable standards, I am now asked to take a leap of faith based on the assertion by the Board that standards have been complied with. It is submitted that I should infer that the Board failed to turn its mind to the applicable standards of members of the profession of good repute and competency. Mr Masters said that, as VCAT does not have its own expertise as to the applicable standards, it is left with nothing to measure Mr Perkins' conduct against. Mr Masters submitted that the proper decision for me to make in this case is to either refer the complaints to an inquiry or remit the matter to the Board again for reconsideration.
5. Mr Woods, for the Board, referred me to the experience of the Board members and what the Board had said in its reasons document. He contended that the Board had clearly applied the standard of a member of the profession of good repute and competency to Mr Perkins' conduct. He argued that the discussion in the Board reasons about usual and standard practice should be understood in context as referring to good practice. He further contended that the comments made by the Board ought to be rolled up and treated as setting out the applicable standards. He relied upon the expertise of the individual architect members of the Board.

1. As stated at the hearing, given the history of this matter, I would be very reluctant to remit the matter to the Board again. Accordingly, I have first considered whether there is sufficient material before me to determine whether Mr Shalit's complaint ought to be referred to an inquiry applying the approach set out above.
2. The material before me is as follows:
   • Undisputed evidence that Mr Perkins sought clarification of his position vis a vis Mr Shalit from his client and relied on the advice provided. There is no suggestion that Mr Perkins had any suspicion or doubt that he could proceed as instructed to prepare plans;
   • Undisputed evidence that the plans in issue were based on drawings made by Ausdraft and that those drawings were first in time after the KNC decided to abandon the two-story scheme. I have no reason not to accept that Mr Perkins was following KNC's instructions to prepare plans suitable to obtain a planning permit based on Ausdraft's one-storey design;
   • Principle 4 of the Code, which deals with recognition of colleague's work and the appropriation of intellectual property. Neither party made a specific submission about how the Code would apply to the facts here. In respect of principle 4 of the Code, I have Mr Perkins' undisputed evidence that he does not claim authorship over the one-story design. The Board stated that it was standard industry practice that a name on a drawing signifies only that the named person produced the drawing, not that they claim ownership over the design or concept. The Board also concluded that it was reasonable for Perkins' name to appear on the plans;[5]
   • Mr Mussen's conclusion that, unless there was a copyright infringement, the complaint could not be proven and would not merit progression, presumably referring to an Architects Tribunal.
   • The content of the Board decision, which I have summarised above; and
   • The experience and expertise of the members of the Board, as referred to earlier.
3. What is not before me is any material which raises a suggestion that Mr Perkins' conduct was of a kind which would allow a notice raising an alleged breach of section 32 to be prepared. Mr Shalit has not produced an expert report or opinion or any other material which would provide the foundation for the preparation of a notice.
4. In my earlier reasons, I said this (at paragraph 111):

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.

1. I do not accept the contention that I am being asked to take a leap of faith in the knowledge and experience of the Board where it did not state what standards it considered applied to Mr Perkins' conduct and where it used phrases such as 'typical professional standards' and 'standard industry practice'. I give weight to the individual and collective experience of the architect Board members. I give weight to the high regard in which Mr Mussen is held.
2. The conclusions set out in paragraphs 5 and 6 of the Board decision make it plain that the Board had in mind the conduct expected of a member of the profession of good repute and competency. The Board concluded that the conduct did not fall within one of the grounds contained in section 32 of the Architects Act. The Board made that assessment having regard to the facts which are undisputed and which constitute the conduct about which Mr Shalit complains.
3. I accept that references to typical standards and standard practice are unfortunate to the extent that they do not make plain the exact standard being applied by the Board. However, I am satisfied that the Board was well aware that the test it had to apply was to compare Mr Perkins' conduct against that of a member of the profession of good repute and competence. That is because, not only did it say so, but it made reference to my earlier reasons which emphasised that test.
4. It is implicit in the Board's conclusion that its assessment was that Mr Perkins' conduct did not fall within section 32. It was satisfied that Mr Perkins was not careless or incompetent, did not display professional standards which were demonstrably lower than the standards which a competent architect should meet or that he acted in a manner which amounted to unprofessional conduct.
5. I said earlier that the threshold for referral to an inquiry is not high but that more than a bald assertion is required. There is no suggestion at all that the architect members of the Board or Mr Mussen considered that, on the undisputed facts, a notice raising an alleged breach of section 32 could be prepared.
6. There is no evidence or other material before me to suggest that the Board's assessment of that question is not well founded or that its collective expertise and that of Mr Mussen should not be relied on by me.
7. Having regard to the undisputed facts, the discussion of standards contained in the Board decision, the particular expertise of its architect members and Mr Mussen and, importantly, the absence of any evidence or material to the contrary, Mr Shalit has not shown that the circumstances of this matter meet the threshold for referral to an inquiry. Accordingly, the decision of the Board will be affirmed.

[1] [2013] VCAT 1788.

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

[3] Architects Act 1991 (Vic), section 30.

[4] Architects Act 1991 (Vic), section 31.

[5] The material submitted to VCAT included Australian Institute of Architects 'Acumen' practice notes. Neither party submitted I should use them to determine what standards apply and so I have disregarded them in making my decision.