Victorian Building Authority v Tsaganas [2017] VSCA 248

1 The respondent, Jim Tsaganas, was registered as a building surveyor and building inspector[1] under the Building Act 1993 ('the Act') in January 1996 and he practised continuously in those professions until the matters giving rise to this appeal. Between 2012 and 2015 the applicant's predecessor, the Building Practitioners Board ('the Board')[2] conducted three inquiries into the professional conduct of the respondent pursuant to s 178 of the Act.[3] The three inquiries came to be known as 'Cromwell No. 1', 'Cromwell No. 2' and 'the Consolidated Proceedings'. The conduct the subject of the inquiries spanned the period 2004 to 2013, and comprised some 47 initial allegations (of which four were withdrawn) in respect of works at 12 properties.

2 As a result of those inquiries, and after making findings that 37 of the allegations across the three inquiries were proven, on 26 March 2015, the Board ultimately determined to cancel the respondent's registrations as a building surveyor and building inspector. Following a series of unsuccessful applications first to the Victorian Civil and Administrative Tribunal ('the Tribunal') and then to the Supreme Court to stay the cancellation of his registrations, the cancellation became effective on 26 May 2015.[4]

3 The Board had previously ordered a suspension of 3 months (which following an unsuccessful appeal, was served from 20 May 2013 to 20 August 2013), a fine of $12,214.00 and an order to pay the Board's costs of $29,591.82 in respect of the Cromwell No. 1 inquiry. In respect of the Cromwell No. 2 inquiry, the Board determined to suspend the respondent's registrations for 12 months and ordered that he pay costs of $10,000 (though this was stayed pending appeal and the suspension was overtaken by the penalties imposed in the Consolidated Proceedings). In respect of the Consolidated Proceedings, in addition to the determination to cancel the respondent's registrations, the Board also ordered that he be fined $14,761.00 and pay costs in the sum of $60,724.53.

4 The respondent subsequently sought merits review of the Board's decisions in respect of the three inquiries in the Tribunal pursuant to s 182A of the Act by way of a hearing de novo.[5]

5 The merits review as to liability was heard over 13 days in May and June 2016.

6 On 14 October 2016, the Tribunal (constituted by Vice President Judge Dyer) made its own determinations as to liability and, after taking account of further admissions and withdrawals, found that all but two of the allegations against the respondent had been established.[6]

7 On 23 December 2016, the Tribunal gave further reasons for decision and made orders in respect of penalty.[7] The Tribunal found in part that matters proved in relation to a property at Oban Road, Donvale and in relation to a property at 30 Cromwell Street, Caulfield North, were at the very high end of potential breaches of the respondent's professional obligations. In each case, the work done or omitted to be done in breach of expected standards resulted in disastrous consequences for the property owners.[8]

8 In relation to the breaches of the respondent's duties with respect to the issue of an occupancy permit for an assembly building at Mooroolbark and the issue of a series of building permits without adequate specifications of swimming pool barriers, the Tribunal held that there was 'a real and apparent risk of injury or death resulting from the failure by [the respondent] to carry out his professional duties in a manner as envisaged by the Act'.[9] The Tribunal further found that the respondent was 'not a fit and proper person to practise as a building practitioner'.[10] The Vice President then suspended the respondent's registrations for a period of one year concurrently in respect of each of these three categories of misconduct (ie. Oban Road, Cromwell Street and the group of permit approvals) subject to him entering into a series of undertakings with the Board. The orders were as follows:

1. Subject to Tsaganas entering into an undertaking with the Board as follows:

(a) He is restricted to issuing a maximum of 1,250 building permits per year for a period of five years commencing on 2 January 2017;

(b) He submits to a random check of 24 files per year by an independent building surveyor who will record matters of compliance and make any recommendations to Tsaganas regarding such for the next three years;

(c) He completes courses up to 15 CPD points (as recommended by the VBA) in the field of building surveying for at least the next three years;

(d) Tsaganas agrees that the cost of the random check of files referred to in (b), and the CPD courses as referred to in (c) will be at his cost;

I order that pursuant to s 179(2) of the Act any registration held by Tsaganas be suspended for a period of one year from 18 November 2016.

1. Tsaganas be fined a total sum of $30,000.
2. Tsaganas be reprimanded.
3. Tsaganas pay the Board costs in the sum of $64,182.30.
4. The application in proceeding Z474/2015[11] be referred to the Registrar to be set down for hearing before a differently constituted Tribunal.

9 The applicant now seeks leave to appeal on a question of law under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') from O 1 made by the Tribunal on the basis that the order to suspend the respondent's registrations rather than cancel them consequent on findings that he had failed to carry out his professional duties in a manner envisaged by the Act which resulted in a 'real and apparent risk of injury or death to persons' and that he was 'not a fit and proper person to practise as a building practitioner' was:

(a) unreasonable, illogical or irrational because it was arbitrary, capricious or devoid of common sense or lacked an evident and intelligible justification, and therefore was vitiated by jurisdictional error; or

(b) was manifestly inadequate to serve the overriding purposes and objectives of the Act, which are to protect the safety and health of people who use buildings, to regulate building work, building standards and building practitioners.

10 The respondent does not seek to cross-appeal the Tribunal's decision but by Notice of Contention seeks to affirm that decision in part by contending that the finding made by the Tribunal that the respondent was not a fit and proper person to practice as a building practitioner, was not open as a matter of law because the Tribunal failed to consider the statutory prerequisites to such a finding.

11 Building work in Victoria is regulated by the Act, the Building Regulations 2006 ('the Regulations'), and the Building Code of Australia ('the BCA').

12 The main purposes of the Act as outlined in s 1 include the regulation of building work,[12] building standards,[13] and building practitioners.[14]

13 Section 4(2) states that it is Parliament's intention that in the administration of the Act regard should be had to a number of objectives as set out in s 4(1):

(a) to protect the safety and health of people who use buildings and places of public entertainment;

(b) to enhance the amenity of buildings;

(c) to promote plumbing practices which protect the safety and health of people and the integrity of water supply and waste water systems;

(d) to facilitate the adoption and efficient application of-

(i) national building standards; and

(ii) national plumbing standards;

(e) to facilitate the cost effective construction and maintenance of buildings and plumbing systems;

(f) to facilitate the construction of environmentally and energy efficient buildings;

The objective stated in s 4(1)(a) is properly regarded as being of primary importance.

14 Part 11 of the Act governs the registration of building practitioners, including disciplinary action.[15] Building practitioners are defined to include building surveyors and building inspectors.[16]

15 At the time of the inquiries, the Board was the statutory authority responsible for the registration, supervision, monitoring, and disciplining of building practitioners,[17] including the respondent who at the time of the allegations was registered as both a building surveyor and building inspector under s 170 of the Act. Section 170 required that the Board must register an applicant if satisfied that the applicant had obtained a police check, held an appropriate prescribed qualification (or equivalent), was of good character and had complied with any other condition required for the class or category of registration applied for.

16 Under the Act, a building surveyor performs the statutory functions of issuing building and occupancy permits for domestic and commercial building work in Victoria. A building surveyor is required to act professionally,[18] perform work in a competent manner and to a professional standard,[19] and must comply with the Act, the Regulations and the BCA.[20]

17 Pursuant to s 178, the Board may conduct an inquiry about the conduct or ability to practise of a registered building practitioner, either on its own initiative or on the recommendation or referral of specified bodies or persons.

18 On an inquiry the Board is authorised to make a number of findings under s 179(1), including relevantly in the present case, that a registered building practitioner:

(a) is guilty of unprofessional conduct; or

(b) has failed to comply with this Act or the regulations; or

...

(d) has been guilty of conduct in relation to his or her practice as a building practitioner which-

(i) is constituted by a pattern of conduct or by gross negligence or gross incompetence in a particular matter; and

(ii) shows that he or she is not a fit and proper person to practise as a building practitioner; ...

19 If the Board makes a finding under s 179(1), it may make any one or more of the following decisions by way of disciplinary action under s 179(2):

(a) to reprimand the person;

(b) to require the person to pay the costs of or incidental to the inquiry;

(c) to require the person to give an undertaking-

(i) to do a specified thing, including to complete or rectify specified building work; or

(ii) not to do a specified thing;

(ca) to require the person to complete a specified course of training within a specified period;

(d) to impose a fine ...;

(da) to impose a condition or limitation on the person's registration;

(e) to suspend registration for not more than 3 years;

(f) to cancel registration;

(g) to disqualify the person from being registered for a specified period of up to 3 years.

20 Section 179(3) authorises the Board to revoke a suspension made under s 179(2) at any time if there is good reason to do so.

21 Section 182A of the Act provides that a person to whom a decision of the Board applies may apply to the Tribunal for a review of that decision. Such a review takes the form of a hearing de novo.

22 In exercising its review jurisdiction, the Tribunal has all the functions of the Board under the Act.

23 Pursuant to s 51(2) of the VCAT Act, in determining such a review, the Tribunal may, by order, affirm, vary, set aside the decision and make another decision in substitution for it, or set aside the decision and remit the matter for reconsideration by the Board in accordance with any directions or recommendations by the Tribunal.

24 The applicant's submissions are succinctly summarised at [14] of its written case.

1. In the present case, the Tribunal found that Mr Tsaganas' failure to carry out his professional duties in a manner envisaged by the Building Act resulted in 'a real and apparent risk of injury or death to persons' and that Mr Tsaganas was 'not a fit and proper person to practise as a building practitioner'. In the context of those findings, the suspension of Mr Tsaganas' registrations for 12 months, so that he will then be entitled to resume practise as a building surveyor and building inspector without first taking any steps to establish his fitness and propriety to practise as a building practitioner, reveals two vitiating errors of law:

14.1. First, the suspension was manifestly inadequate to serve:

(a) the overriding objective of the proceeding before the Tribunal of protecting members of the community; and

(b) the purposes and objectives of the Act - namely, to regulate building work, building standards and building practitioners; and protect the safety and health of people who use buildings;

with the result that it is plain that, in formulating the sanction of suspension, the Tribunal failed to take into account those essential considerations.

14.2. Secondly, the fundamental contradiction between:

(a) on the one hand, the Tribunal's explicit findings that Mr Tsaganas' failure to carry out his professional duties resulted in 'a real and apparent risk of injury or death to persons' and Mr Tsaganas 'is 'not a fit and proper person to practice [sic] as a building practitioner' ...'; and

(b) on the other hand, the suspension of Mr Tsaganas' registrations so that he will be free to resume practise before he takes any steps that might establish his fitness and propriety to practise;

reveals a fundamental jurisdictional error: the imposition of that sanction (rather than cancellation of Mr Tsaganas' registrations) was arbitrary, capricious or devoid of common sense and lacked an evident and intelligible justification, with the consequence that the Tribunal's decision was so unreasonable that it lay outside the range of decisions that the Tribunal was authorised to make by s 179 of the Building Act.

Failure to have regard to relevant considerations

25 The Tribunal's decision makes clear that it did have regard to the overriding objective of protecting members of the community and the need to protect the safety and health of the users of buildings.

26 At the outset of its reasons it specifically recognised both these considerations:[21]

1. Disciplinary proceedings such as these involving Mr Tsaganas have at their essence an obligation to protect members of the community and to maintain the confidence of the community in the profession. Additionally, the statutory provisions of the Building Act 1993, in this case s 179(2) provide a very wide range of options which are available to the Tribunal. These range from a reprimand to cancellation of registration and disqualification of seeking further registration for a period of up to three years.
2. I also take into account the authorities including Hanneberry v Legal Ombudsman[22] and Quinn v Law Institute of Victoria Limited[23] which stand as authority for the proposition that a Tribunal imposing a sanction should have as its first consideration the objective of protecting members of the community and public confidence in the profession. Questions of specific deterrence, punishment and even general deterrence will inevitably follow the imposition of a sanction, although they are not the primary focus.
3. The Court of Appeal more recently re-visited the links between criminal sentencing practice and its link to disciplinary proceedings in Stirling v Legal Services Commissioner.[24] The Court referred to decisions dealing with questions of practitioner insight referring in particular to Morris v Psychological Registration Board[25] where it was held that a practitioner failing to display requisite insight into his wrong doing 'ought not, if the public is to be protected, be allowed to practice.'[26] A similar statement in relation to specific deterrence was made by this Tribunal in a decision of Brott v Legal Services Commissioner.[27]

27 The Tribunal went on to balance a series of considerations before reaching the conclusion that suspension of the respondent's registrations was appropriate in respect of the Oban Road, Donvale and Cromwell Street, North Caulfield breaches of duty:

1. In relation to each of the Donvale and Caulfield North sites the allegations made out against Mr Tsaganas satisfy me that in each case he would ordinarily warrant a penalty of cancellation of registration and disqualification from becoming re-registered for a very substantial proportion of the maximum period of three years set out in section 179(2) of the Building Act 1993.
2. I take into account in this case the matters put both in written submissions and orally by Mr Anderson on the applicant's behalf. I note in particular the submission that Mr Tsaganas has already served a suspension totalling 21 months, according to the written submission. I also take into account that he has consented to giving undertakings as follows:

(a) He is restricted to issuing a maximum of 1,250 building permits per year for a period of five years;

(b) He submits to a random check of 24 files per year by an independent building surveyor who will record matters of compliance and make any recommendations to Mr Tsaganas regarding such for the next three years;

(c) He completes courses up to 15 CPD points (as recommended by the VBA) in the field of building surveying for at least the next three years.

1. Notwithstanding my assessment that Mr Tsaganas' departure from professional standards warrants a most severe penalty in relation to his work (or lack thereof) at the two sites mentioned, I take the view that the proposed undertakings and a further period of suspension would provide a better outcome for the community and the maintenance of confidence in professional building standards than if cancellation and a further period of disqualification were imposed.[28]

28 Although his Honour did not in terms repeat this analysis in respect of the third concurrent suspension which he imposed, it may confidently be inferred that he undertook the same approach of balancing the gravity of the offending and need to protect the community against the factors identified by him which favoured a conditional return to practise after a period of further suspension.

29 The balancing exercise undertaken by the Tribunal was foreshadowed in discussion with counsel for the applicant during final address. The starting point for that discussion, as in the Tribunal's reasons, was an explicit acknowledgment of the need to protect the public.

30 The real question in this appeal is not whether the Tribunal failed to have regard to relevant considerations but whether the conclusion it reached after having regard to those considerations was reasonably open to it.

31 The essence of the applicant's case as to unreasonableness is as follows:

1. The cancellation of a building practitioner's registration will require the formerly-registered practitioner to apply for registration afresh after any period of disqualification, and satisfy the registration authority that the formerly-registered practitioner:

16.1. holds appropriate qualifications and/or equivalent experience; and

16.2. is '... a fit and proper person to practise as a building practitioner ...'.

1. However, suspension of a building practitioner's registration allows the reinstatement of registration as of right after the end of the relevant suspension period, and is manifestly unsuited where the practitioner has been found to be 'not a fit and proper person to practise as a building practitioner'.
2. Where a practitioner is found not to be fit and proper to perform his or her professional obligations, that must be reflected in the sanction, either by cancelling the practitioner's registration or by imposing a requirement that the practitioner demonstrate fitness and propriety to practise before resuming practise.[29]

32 There can be no doubt the Tribunal made significant and serious findings adverse to the respondent but there are two preliminary difficulties with the applicant's submission.

33 First, the statutory discretion granted by s 179 is not confined in the manner contended for. It provides for a series of remedies pursuant to s 179(2) if professional misconduct is established in respect of any of the alternatives set out in s 179(1).

34 The statute does not distinguish and limit the remedies that may be granted in circumstances where there is a finding that a person is not a fit and proper person to practise as a building practitioner. In terms, s 179(1) provides that the Board (and on review, the Tribunal) 'may make any one or more of the decisions mentioned in subsection (2)' if it makes any one of the alternative findings set out under subsection (1). This includes the decision to impose by way of disciplinary action the penalty of suspension (under s 179(2)(e)) in respect of conduct which shows that a registered building practitioner is not a fit and proper person to practise as a building practitioner (under s 179(1)(d)(ii)).

35 We accept the applicant's submission that the intention of the Act is that the remedy imposed under s 179(2) is proportionate to the misconduct identified under s 179(1). But this does not imply that a finding that a person is not a fit and proper person to practise as a building practitioner necessarily mandates cancellation of registration. The better view is that the Act deliberately reserves a broad discretion to the Board (and on review, the Tribunal).

36 In Ekinci v Civil Aviation Safety Authority,[30] the Full Federal Court had to consider whether a finding that a person was not a fit and proper person to hold an authorisation as an aircraft maintenance engineer required cancellation as distinct from suspension of a licence to carry out such work. The Court analysed broadly analogous provisions to those here in issue as follows:

Applying those principles here, we do not consider that this aspect of the AAT's decision is illogical or unreasonable in the appropriate legal sense. First, insofar as the decision to suspend Mr Ekinci's [aircraft maintenance engineer licence] for one year is concerned, the AAT (stepping into the shoes of CASA), was empowered by [Civil Aviation Regulations 1998 (Cth)] 269(1)(d) (subject to the terms of that regulation) to vary, suspend or cancel such an authorisation if it was satisfied, inter alia, 'that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation'. In our view, having attained the relevant satisfaction that a holder of an authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties associated with such an authorisation, CASA (and the AAT on review) is entitled to suspend the authorisation for such a period it considers to be appropriate and without necessarily having to take some additional step which is designed to ensure that the person will be fit and proper in the relevant sense at the expiration of a suspension period. If it transpires that, at the end of the suspension period, the person's authorisation is revived but the relevant person is still not fit and proper to CASA's satisfaction, it will be a matter for CASA at that time to determine what regulatory action should be taken in those circumstances.[31]

37 Whilst there are differences in detail in the relevant statutory schemes, the discretion which the Tribunal exercised in the present case was likewise not confined in the way for which the applicant contends. More particularly, as in Ekinci, the Tribunal's discretion was not limited in consequence of a finding that the respondent was not a fit and proper person to practise. That finding did not prevent the Tribunal from making a more detailed multi-factorial assessment of the case.

38 Next, a finding that a person is not a fit and proper person to engage in a professional role at a particular time is not a finding that that person will not be a fit and proper person at a future date.

39 Thus hypothetically if registration is suspended for three years the question at the time of suspension as to likely fitness at the end of that period requires a predictive judgment which is not necessarily determined by a conclusion as to past misconduct.

40 When, as in the present case, the remedies imposed may include fines, orders for costs, requirements for ongoing supervision and requirements for further training, the decision-maker may consider whether the purpose of specific deterrence and adequate protection of the community by way of deterrence and re-education will be adequately served by the imposition of a conditional suspension or not. A judgment of fact and degree will have to be made as to whether in all the circumstances a conditional transition back into the profession is appropriate or not.

41 There is however no necessary incompatibility between a finding of lack of fitness at one point in time and a conclusion as to likely potential fitness at a subsequent point in time, especially with the assistance of conditions imposed upon resumption of practice with rehabilitation and ongoing supervision in mind.

42 Two decisions with respect to the consequences of professional misconduct by a legal practitioner illustrate the relevant principles.

43 In Burgess v Legal Services Commissioner, Nettle and Neave JJA observed:

As at present advised, it seems to us that, depending on the circumstances of a given case, it would be open to the Tribunal to order a period of suspension to recognise the seriousness of past conduct notwithstanding that the Tribunal might not be persuaded that the solicitor in question was not a fit and proper person. For example, the Tribunal might take the view that, by reason of the facts of a given case, the solicitor was not for the time being a fit and proper person but would be so after a period of suspension.[32]

44 In Stirling v Legal Services Commissioner, Warren CJ, Neave JA and Dixon AJA considered the relevance of a finding that a practitioner was not a fit and proper person to practise in the context of the facts in that case which involved repeated breaches of income tax legislation:

It follows from the preceding analysis that the appellant is not a fit and proper person to currently practise. His failure to comply with his obligations, refusal to cooperate with the respondent, continuing issues with tax compliance and failure to give an account of his failings at the Tribunal all point to this conclusion. The appellant's conduct attracts suspension. However, his circumstances are such that his future practice should be governed for a time by conditions that should assist his rehabilitation.

The imperfections in the course of his rehabilitation, and the uncharged subsequent conduct, do not preclude, but rather condition, how his subsequent rehabilitation to being a fit and proper person should be assessed and managed. Once it is accepted, as we do, that he has demonstrated his remorse, and is working hard at rehabilitation with reasonable prospects of achieving a return to being a fit and proper person, a disposition that encourages that outcome is consistent with the protective function of the jurisdiction.[33] This is particularly the case when one looks at the evidence of Ms Matthews in her letter dated 28 February 2012:

In summary Mr Stirling has been through an extended unsettled period but he has now settled in the context of: (a) a secure base, provided by a supportive relationship and the establishment of a family, and (b) self-imposed discipline in regards to his behaviour, profession and obligations. In the writer's opinion the behaviours of concern to the Applicant [the respondent] have been significantly decreasing since 2005 and have now largely resolved and are unlikely to return.[34]

45 The Court in that case imposed a suspension from practice coupled with conditions attaching to the practitioner's return to practise intended to ensure ongoing compliance with requirements relating to the payment of income tax.

46 Both the statements of principle in Burgess and in Stirling do not sit comfortably with the proposition advanced on behalf of the applicant that a finding that a professional practitioner is not a fit and proper person to practise is necessarily inconsistent with the imposition of a suspension coupled with conditional return to practise. We do not accept the applicant's submission that there is no relevant analogy between legal practitioners and building practitioners given that both may conduct themselves in ways that risk causing considerable detriment to their clients, including, in the case of a lawyer, a client's loss of liberty or loss of livelihood.

47 In Ekinci,[35] there was no dispute with the AAT's finding that the expression 'fit and proper person' has no precise meaning, but takes its meaning from its context and from the activities in which the person is or will be engaged and the purposes to be served by those activities. It is necessary to take into account the responsibilities, functions and duties of the holder of the relevant authorisation.[36] A wide range of conduct might potentially found a conclusion that a person is not a fit and proper person. Likewise, the personal characteristics of such persons may vary widely.

48 When these variabilities are recognised, it follows that the Tribunal's decision in the present case can only be properly characterised as manifestly unreasonable if it can be said to be so having regard to all the relevant circumstances of the case.

49 In our view, although another tribunal may have reached a different conclusion as to the facts as a whole, it cannot be said that in this case a finding of unfitness to practise necessarily precluded an order for suspension coupled with conditions governing the terms on which the respondent returned to practise.

50 In assessing the circumstances of the case, the Vice President enjoyed a considerable advantage over this Court by reason of the opportunity to carefully consider the evidence called before him over many days including the evidence of the respondent.

51 Ultimately it seems to us that the balancing exercise which the Vice President was required to undertake was informed by four critical factors:

(a) the facts founding the conclusion of unfitness;

(b) the personal characteristics of the respondent;

(c) the cumulative range of remedies available to the Tribunal; and

(d) the history overall of the respondent's misconduct.

52 The finding of unfitness was made in response to three allegations concerning the issuing of building permits. The first allegation,[37] concerned a failure to require an adequate survey plan. The second and third allegations related to a failure to properly specify the materials from which swimming pool barriers were to be constructed.[38] The respondent contends by a notice of contention that these matters were not sufficient to justify a finding of unfitness and that the splitting of the hearing between liability and penalty led the Vice President to reach the conclusion of unfitness without properly considering whether the breaches relied on in fact established the pattern of behaviour or gross negligence required by s 179(1)(d). The Vice President expressed his conclusion as follows:

I am satisfied also that Allegation 21, which is made in accordance with section 24(1)(a) of the Act is made out in that the conduct described satisfies me that Mr Tsaganas on the basis of the matters referred to is 'not a fit and proper person to practice [sic] as a building practitioner.'[39]

53 Whilst it is true that this passage expresses a rolled up conclusion, we are not satisfied that the Vice President did other than apply the statutory criteria. In particular, it seems to us that the breach of the strict requirements relating to swimming pool barriers did raise a significant issue of public safety. Accordingly, we would reject the notice of contention.

54 This said, the matters relied on were of a specific and limited kind of failure which were capable of being addressed by the respondent and in respect of which he gave evidence that his practice had already changed.

55 These circumstances provided a specific context within which to assess whether a conditional suspension was appropriate.

56 In turn the Vice President was entitled to take into account:

(a) the cumulative punitive elements of the order he made as constituting measures imposing a penalty likely to result in effective specific deterrence;

(b) the fact that the respondent accepted conditions governing his return to practise which were responsive to evidence as to the causes of his breaches overall; and

(c) an assessment of the respondent's character informed in part by the evidence given by him in the witness box, but also by evidence as to his professional character over many years.

57 Each of these factors needs some elaboration. First, the respondent had already been suspended for some 21 months prior to the suspension imposed by the Vice President. He had suffered the anxiety of very substantial delay in the resolution of the matters before the Tribunal. He was then subjected to public reprimand. In addition, he was subjected to substantial cumulative orders for costs and fines and was required to comply with conditions which themselves imposed serious ongoing constraints upon him. These constraints included an ongoing limitation upon the extent of his business.[40] Those matters, collectively, provided significant specific deterrence to the respondent in respect of future misconduct.

58 Secondly, the conditions were responsive to evidence that the respondent had breached his obligations in part as a result of taking on too much work. They also provided for an independent random check of a relatively substantial number of files on an annual basis at the respondent's cost and required him to complete continuing professional development courses recommended by the applicant. Each of these matters were directed to issues which had contributed to the breaches by the respondent of the Act, and were calculated to improve and maintain his fitness to practise.

59 Thirdly, the Tribunal had before it evidence as to the course of the applicant's practice since 1996, a body of character evidence, and the opportunity to assess directly the respondent's evidence in the witness box.

60 Each of the considerations fell in part to be evaluated in the context of the history of the respondent's misconduct as a whole. Nonetheless, when the above matters are considered in combination, it cannot be said that it was not open to the Tribunal to impose the remedies which it did. In particular, it was reasonably open as a matter of law to impose a suspension coupled with appropriate ongoing conditions as to practise.

61 For the above reasons, leave to appeal should be granted but the appeal should be dismissed.

[1] Both registrations were classed as 'unlimited'.

[2] Pursuant to cl 5, sch 8 of the Act (version no. 107), the appellant, the Victorian Building Authority, has been substituted for the Board as the respondent to the proceeding in the Tribunal which is subject to review.

[3] Prior to these inquiries, on 22 July 2005, the respondent had been fined $500 and ordered to pay $250 in costs for one contravention of reg 15.2(a) of the Building Regulations 1994 for failing to carry out his work as a building surveyor in a competent manner and to a professional standard by issuing a building permit for building work when he was aware that the building work had been completed on or about 11 April 2002. This incident does not form part of the conduct the subject of the appeal. The respondent was otherwise not the subject of any disciplinary findings prior to the 2012-2015 inquiries.

[4] The cancellation remained effective until 18 November 2016.

[5] The hearing before the Tribunal in relation to Cromwell No. 1 was limited to questions of penalty.

[6] Tsaganas v Building Practitioners Board (Review and Regulation) [2016] VCAT 1732 (14 October 2016) ('Liability Decision').

[7] Tsaganas v Building Practitioners Board (No 2) (Review and Regulation) [2016] VCAT 1732 (23 December 2016) ('Penalty Decision').

[11] This proceeding concerns the Board's decision on 13 May 2015 to refuse to renew the respondent's domestic builder's registration on the grounds of character within the meaning of reg 1509(c) of the Building Regulations 2006. The respondent lodged an application to review this decision with the Tribunal on 19 June 2015. The review of this decision has been adjourned to an administrative mention on 1 November 2017.

[17] See s 183 of the Act as it then was. The applicant replaced the Board in performing such functions on 1 September 2016.

[21] Penalty Decision [4]-[6] (emphasis added) (citations in original).

[22] [1998] VSCA 142.

[23] [2007] VSCA 122.

[24] [2013] VSCA 374.

[25] Unreported, Supreme Court of Victoria, Harper J, 19 December 1997.

[27] [2008] VCAT 2399.

[29] Applicant's Written Case [16]-[18] (citations omitted) (emphasis in original).

[30] [2014] FCAFC 180; (2014) 227 FCR 459 ('Ekinci').

[32] [2013] VSCA 142 [69] ('Burgess').

[34] Stirling v Legal Services Commissioner [2013] VSCA 374 [162]-[163] (citation in original) ('Stirling').

[35] [2014] FCAFC 180; (2014) 227 FCR 459.

[36] Ibid 464 [13], citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554.

[40] Cf Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; (2014) 46 VR 308, 331 [91]-[93] as to the punitive quality of conditions imposed under a community corrections order.