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Barker v Victorian Building Authority (Review and Regulation) [2022] VCAT 696 (22 June 2022)

Last Updated: 22 June 2022

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDERS

1 The decision under review, being the internal review decision of the Victorian Building Authority dated 13 May 2020, is set aside and a new decision substituted as follows:

(a) With respect to Grounds 1 to 26:

(i) Under subsection 178(g) of the Building Act 1993 (the Act), the applicant’s registrations in the categories of Domestic Builder Limited (DB- L 1408) and Commercial Builder Limited (CB-L 407) are cancelled;

(ii) Under subsection 178(a) of the Act, the applicant is reprimanded;

(iii) Under subsection 178(h) of the Act, the applicant is disqualified from holding registration in any class or category of building practitioner for a period of 18 months;

(iv) Under subsection 178(d) of the Act, a combined financial penalty of $22,500.00 is imposed on the applicant;

(b) With respect to Ground 27:

(i) Under subsection 178(a) of the Act, the applicant is reprimanded;

(ii) Under subsection 178(d) of the Act, a financial penalty of $2,500.00 is imposed on the applicant;

(c) With respect to Grounds 28 to 50:

(i) As the grounds have not been proven no disciplinary action is imposed.

(d) With respect to Ground 51:

(i) Under subsection 179B(1) of the Act, the applicant’s registrations in the categories of Domestic Builder Limited (DB- L 1408) and Commercial Builder Limited (CB-L 407) are cancelled.

REASONS

The proceeding

1 This is a review of an internal review decision of the Victorian Building Authority (the VBA) to affirm the original decision of the VBA to take disciplinary action against Mr Craig Barker (Mr Barker or the applicant) and impose penalties upon him.

Background

2 Following a complaint received by the VBA, an investigation was commenced as to the conduct of Mr Barker relating to the creation and provision of Certificates of Compliance under the Building Act 1993 (the Act) between 2012 and 2017.

3 On 12 December 2019, the VBA served on Mr Barker a notice to show cause why disciplinary action should not be taken (the show cause notice) under section 182 of the Act alleging 51 grounds for disciplinary action against Mr Barker. In summary, these grounds were:

1. Mr Barker engaged in unprofessional conduct under subsection 179(1)(b) of the Act by creating or causing to be created false Certificates of Compliance under the Act for 26 identified sites;
2. Under subsection 179(1)(a)(i) of the Act, Mr Barker knowingly provided or caused to be provided false information to a person carrying out a function under section 246 of the Act by providing a false Certificate of Compliance to a building surveyor for one site;
3. Mr Barker engaged in conduct that was negligent in a particular matter under subsection 179(1)(f)(ii) of the Act by knowingly making false representations that the designs referred to in 23 false Certificates of Compliance had been certified as compliant for construction at the subject sites by a registered civil engineer, when Mr Barker knew they had not been certified.
4. The VBA under subsection 179(1) (g) of the Act believed on reasonable ground that Barker was not a fit and proper person to practise as a building practitioner.^[1]

4 In response to the notice to show cause, Mr Barker made oral and written representations to the VBA.

5 On 30 March 2020, the VBA made a decision that the 51 grounds for disciplinary action were proven and, in summary, imposed the following disciplinary action on Mr Barker:

1. The cancellation of Mr Barker’s building registrations;
2. Disqualifying Mr Barker from being registered in any class or category of building practitioner for a period of 18 months;
3. The issuing of three reprimands;
4. Financial penalties totalling $25,000.00

(the original decision).

6 On 15 April 2020, Mr Barker applied for an internal review of the original decision.

7 Mr Barker made oral and written representations to the VBA internal reviewer.

8 On 13 May 2020, the VBA internal reviewer affirmed the VBA’s original decision (the internal review decision).

9 On 14 May 2020, Mr Barker applied to this Tribunal for a review of the internal review decision under section 186 of the Act.

10 On 30 June 2020, the VBA filed with the Tribunal its section 49 statement.

11 On 27 October 2021, the VBA filed with the Tribunal a joint Tribunal Book of three volumes.

12 The matter came on for hearing before the Tribunal on 6 and 7 April 2022. Mr Barker represented himself and gave sworn evidence. The VBA was represented by Counsel and called Mr Oliver Kelly, a civil and structural engineer, to give sworn evidence. The parties each relied upon various documents in the Tribunal Book.

13 At the commencement of the hearing, Mr Barker indicated that he did not contest the findings as to the grounds for disciplinary action. He wished to contest the penalties imposed upon him and, in particular, the quantum of the financial penalties imposed.

14 At the conclusion of the hearing, the Tribunal reserved its decision.

Background facts

15 From February 1997, Mr Barker was a registered building practitioner in the classes of domestic builder (limited to the construction of non-habitable building structure work) and commercial builder (limited to the construction of low-rise building work).

16 Mr Barker was the sole director of the corporate entity A-Line Building Systems Pty Ltd (A-Line). A-Line designs, fabricates and supplies steel frame buildings, including garages, farm sheds and industrial buildings. The buildings were constructed by builders or by A-Line. A-Line sold the steel kit buildings with a Certificate of Compliance to be used to obtain a building permit.

17 Between about 1999 and about 2010 or 2011, with some breaks within that period, A-Line engaged a civil engineer to design the buildings and provide the Certificates of Compliance for the buildings (the Engineer). The Certificates of Compliance were to be assessed with regard to the structural adequacy of the building design and the suitability of the building design to the site and location conditions.^[2]

18 After the Engineer ceased to have any involvement with A-Line, A-Line continued to create and issue Certificates of Compliance for buildings using the Engineer’s name, address, signature and registration number. For each of the 26 subject sites, the Engineer had not assessed or certified the designs for the site or inspected the building work, was not familiar with the particular sites and had not in any way authorised the certificates to be issued under his name or otherwise. The Engineer did not undertake any work for A-Line or Mr Barker after 2011, save for one specific project in 2012, which is not relevant to the present matter.

19 On the Engineer becoming aware of the practice of A-Line to issue Certificates of Compliance in his name, he engaged a lawyer to represent his interests. A-Line and Mr Barker agreed to cease creating and issuing such certificates and provided the Engineer with a list of sites where certificates had been issued in the Engineer’s name. The certificates for the 26 sites were created between 2012 and 2017. Mr Barker and A-Line signed a deed confirming that the Engineer did not assess the building projects referred to in the relevant certificates created by Mr Barker and A-Line and also that the Engineer did not authorise the use of the facsimile copy of his signature on the certificates.

20 The VBA engaged civil or structural engineers to review the structural designs for which the Certificates of Compliance were issued. Mr Elias Eracleous, Senior Forensic Engineer, provided a report dated 5 September 2018, in relation to the designs for 15 of the buildings. Mr Leigh Crapper, Structural and Civil Engineer, provided a report dated 14 April 2019 on the designs for a further eight buildings. Mr Oliver Kelly provided a report dated 14 May 2021, in relation to the designs of 23 buildings. Detailed structural calculations for the structural members of each structure were not provided as part of Mr Kelly’s report. Ms Dhayanthi Pfeifer, Mr Barker’s civil engineer, provided the VBA with an assessment of each structure in spreadsheet format with attached detailed calculations.^[3] Mr Kelly gave verbal evidence to the Tribunal and was cross-examined by Mr Barker.

21 The Tribunal had no evidence before it from any person who had inspected the buildings the subject of the proceeding.

The relevant law

22 The disciplinary provisions of the Act are contained in Division 3 of Part II of the Act.

23 The VBA is required under section 182 of the Act to give a registered building practitioner a notice to show cause, if it reasonably believes there are grounds for taking disciplinary action against the registered building practitioner and it proposes to take such action.

24 The grounds for taking disciplinary action against a registered building practitioner are contained in section 179 of the Act. Section 179, relevantly, provides as follows:

179 Grounds for disciplinary action

(1) Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner—

(a) the practitioner has contravened—

(i) this Act or the regulations under this Act; or

...

(b) the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct;

...

(f) the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is—

(i) constituted by a pattern of incompetence; or

(ii) negligent in a particular matter;

(g) the Authority believes on reasonable grounds that the practitioner is not a fit and proper person to practise as a building practitioner;

...

25 The disciplinary action which may be taken against a registered building practitioner is contained in section 178 of the Act and is relevantly as follows:

178 Meaning of disciplinary action

In this Division, disciplinary action in relation to a registered building practitioner means one or more of the following—

(a) reprimand the practitioner;

...

(d) impose a penalty of not more than 150 penalty units, in the case of a natural person, or 750 penalty units, in the case of a body corporate, unless—

(i) a charge has been filed in the Magistrates' Court in relation to the matter; or

(ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or

(iii) the matter has been dealt with by the issue of an infringement notice;

...

(g) cancel registration;

...

(h) disqualify the practitioner for a specified period of up to 3 years from being registered in any category or class of building practitioner.

26 Subsection 179B(1) of the Act provides that if the registered building practitioner is found not to be a fit and proper person to practice as a building practitioner, the person’s registration must be cancelled.

27 Subsection 4(2) of the Act provides that in the administration of the Act, regard should be had to the objectives in subsection 4(1) of the Act. The objectives of the Act include the protection of the safety and health of people who use buildings.

28 Section 238 of the Act, relevantly, provides that a building surveyor in carrying out a function under the Act may rely upon a certificate by a registered building practitioner in a prescribed category or class of practitioners.

29 The Building (Interim) Regulations 2005, which were in place in the relevant period, relevantly provide at regulation 1505 the prescribed classes of building work and the prescribed category and class of practitioner for the issuing of certificates of compliance for a certificate related to the design or part of the design of building work related to a structural matter are the category of engineer and class of civil engineer. Regulation 1507 provides for the required form of the certificate.

30 Section 246 of the Act as of August 2012, provided relevantly that:

A person must not knowingly make any false or misleading statement or provide false or misleading information to a person or body carrying out any function under this Act or the regulations.

31 Section 185 of the Act provides that a person affected by a reviewable decision may apply to the VBA for an internal review.

32 Section 186 of the Act provides that a person dissatisfied with an internal review decision may apply to this Tribunal for a review of that decision. The Tribunal conducts a de novo review (a hearing from the beginning) of the decision for the purpose of making the correct and preferrable decision. Under section 187 of the Act, the Tribunal may affirm or amend the internal review decision or substitute a new decision for the internal review decision.

33 Subject to subsection 187(3) of the Act, subsection 187(2) stays (temporarily stops) the operation of the internal review decision until the review is determined.

34 In considering the evidence and reaching its findings of fact, the Tribunal will find grounds “substantiated, or not, based on whether the Tribunal reaches a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.”^[4]

Issues

35 The issues for the Tribunal to determine in this matter are:

1. Whether Mr Barker has engaged in unprofessional conduct under subsection 179(1)(b) of the Act by creating or causing to be created false Certificates of Compliance as described in Grounds 1 to 26;
2. Whether under subsection 179(1)(a)(i) of the Act, Mr Barker has contravened section 246 of the Act by knowingly providing or causing to be provided false or misleading information to a person carrying out a function under the Act, as described in Ground 27;
3. Whether Mr Barker has engaged in conduct that was negligent in a particular matter under subsection 179(1)(f)(ii) of the Act by providing false Certificates of Compliance to purchasers, site owners and/or builders as described in Grounds 28 to 50;
4. Whether under subsection 179(1)(g) of the Act, Mr Barker is a fit and proper person to practise as a building practitioner;
5. If yes to any of paragraphs a. to d., what, if any, disciplinary action should be taken against Mr Barker.

Issue 1 – Has Mr Barker engaged in unprofessional conduct under subsection 179(1)(b) of the Act by creating or causing to be created false Certificates of Compliance as described in Grounds 1 to 26

36 The grounds for the VBA seeking to take disciplinary action include that under subsection 179(1)(b) of the Act, Mr Barker engaged in unprofessional conduct. The Act does not define the term unprofessional conduct. The Tribunal is satisfied that unprofessional conduct is conduct which “violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”^[5]

37 In interviews with the VBA, Mr Barker said that the Engineer never gave him formal approval to continue using the facsimile certificates containing his name and signature.^[6] Mr Barker agreed that no engineer had looked at the locational conditions and provided certification that the designs were sufficient.^[7]

38 The Tribunal finds on the evidence before it that Mr Barker created or caused to be created Certificates of Compliance for each of the 26 buildings on the sites as described in grounds 1 to 26. Mr Barker was not an engineer and therefore was not qualified to create such certificates.^[8] Mr Barker inserted or caused to be inserted on each of these certificates the name, address, registration number and signature (note only 25 of the 26 certificates contained a facsimile of the signature) of the Engineer. The Engineer did not create the certificates of compliance for any of the subject sites and did not give any authority or permission for documents to be created in his name for any of those sites. The Tribunal finds that the certificates of compliance were false.

39 Mr Barker does not contest that he engaged in the conduct alleged under Grounds 1 to 26.

40 Although in the interviews with the VBA, Mr Barker admitted creating and supplying the Certificates of Compliance, at the same time he sought to avoid conceding that this conduct was dishonest. Mr Barker told the VBA that the issuing of certificates for a design without consideration of the site was common in the industry, that the Engineer had designed the buildings as generic buildings, so had expected that the certificates could be produced under his name for various sites where the buildings were to be constructed as per his design and Mr Barker did not understand the requirements for the certificates to be issued by an engineer specifically for each site. Mr Barker told the VBA that part of the reason for the complaint from the Engineer may be that the Engineer is now working for a competitor in the industry.^[9] Mr Barker told the VBA that the Engineer was a horribly disorganised character. He is a very good engineer, but has a financial interest in another business. Mr Barker is the opposition.^[10]

41 Mr Barker gave evidence that he was aware that the appropriateness of a design depended on the site conditions, such as soil type and wind load and that he or a salesman would assess these conditions. Mr Barker is not an engineer. ^[11]

42 At the hearing of the matter, Mr Barker conceded that the conduct could be characterised as dishonest and he did not repeat the above claims about industry practice or the Engineer. There was no documentary evidence produced to support these earlier claims.

43 The 26 Certificates of Compliance described in grounds 1 to 26 were each contained in the Tribunal Book. To complete a certificate, the following information needed to be included in the certificate: the Engineer’s details as described above, the name and address of the surveyor, the property details where the building was to be constructed and the dates that the drawings were prepared, by whom they were prepared as well as the date and by whom the plans were certified. Mr Barker included or caused these details to be included in each certificate for the subject sites. The dates for the drawings being prepared by the Engineer and the dates of the certification are in some cases years after the Engineer last had any involvement with A-Line or Mr Barker. We have no doubt that Mr Barker was aware that he was creating or causing to be created certificates which he had not right to create.

44 We are comfortably satisfied taking into account the gravity of the charges, that Mr Barker knowingly created or caused to be created, the false Certificates of Compliance for the 26 buildings on the subject sites. We find that this conduct fell very seriously below the standard of professional conduct observed or approved by members of the profession of good repute and competency.

45 The Tribunal therefore finds that the grounds of unprofessional conduct set out in grounds 1 to 26 have been proven.

Issue 2 – Has Mr Barker contravened the Act by the contravention of section 246 of the Act by knowingly providing or causing to be provided false or misleading information to a person carrying out a function under the Act as described in Ground 27

46 Ground 27 for disciplinary action relies upon subsection 179(1)(a)(i) of the Act, which provides that disciplinary action may be taken against a registered building practitioner where the practitioner has contravened the Act. Section 246 of the Act, as at August 2012, relevantly provided that a person must not knowingly provide false or misleading information to a person carrying out a function under the Act.

47 The allegation in ground 27 is that Mr Barker knowingly provided or caused to be provided a false Certificate of Compliance to the building surveyor for the building at 1315 Heidelberg-Kinglake Road, Cottles Bridge (the Cottles Bridge site). This site was also one of the sites in grounds 1 to 26 discussed above.

48 The written application for a building permit submitted to the surveyor for the Cottles Bridge site, names A-Line as the applicant for the permit as the agent of the owner.^[12] The building permit issued on 3 September 2012 by the building surveyor names Mr Barker as a practitioner engaged in various parts of the building work as well as naming the Engineer as having prepared the documents only. The Certificate of Compliance states that the design was certified by the Engineer on 16 August 2012. We find that the design for this site was not certified by the Engineer on this date or at all. We find that the Certificate was provided to the building surveyor for the purpose of obtaining the building permit under the Act.

49 The Tribunal is comfortably satisfied taking into account the gravity of the charges, that Mr Barker knowingly provided false information to a person carrying out a function under the Act. We therefore find this ground proven.

Issue 3 – Has Mr Barker engaged in conduct that was negligent in a particular matter under section 179(1)(f)(ii) of the Act by providing false Certificates of Compliance to purchasers, site owners and/or builders as described in Grounds 28 to 50

50 Grounds 28 to 50 for the disciplinary action rely upon subsection 179(1)(f)(ii) of the Act, which relevantly provides as follows:

(1) Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner—

...

(f) the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is—

(i) constituted by a pattern of incompetence; or

(ii) negligent in a particular matter;

51 The ground which therefore must be proven is that the practitioner has engaged in conduct that is negligent in a particular matter. The Act does not define negligent or conduct that is negligent in a particular matter.

52 The conduct of Mr Barker which is relied upon by the VBA to make out these grounds is, in summary, that Mr Barker knowingly made false representations to third parties that the designs had been certified as compliant for construction at the subject sites by a registered civil engineer when Mr Barker knew that to be false.^[13] Before moving to consider whether the conduct has been proven, the Tribunal first must consider whether such knowingly dishonest conduct could be characterised as negligent conduct.

53 Counsel for the VBA took the Tribunal to the Victorian Supreme Court decision of McSteen v Architects Registration Board of Victoria [2018] VSCA 96 (McSteen), which stands for the proposition that conduct may fall within the statutory concepts in the Architects Act 1991 of careless or incompetent and also within the concept of unprofessional conduct. There is an overlap between the concepts of careless or incompetent in one subsection and the concept of ‘unprofessional conduct’ in an alternative subsection.^[14]

54 Counsel for the VBA further submitted that negligent conduct for the purpose of subsection 179(1)(f)(ii) of the Act, would be conduct that falls short of the conduct of a reasonable practitioner. Counsel drew an analogy with what might be found to be common law professional negligence by a practitioner. It was submitted that the Tribunal should consider what a reasonable practitioner would do and whether the conduct fell short of that standard. It was submitted that conduct may be negligent even if the conduct was undertaken deliberately. A further analogy was drawn to the common law tort of negligent misstatement, for which it was said that an element of the tort was that the speaker knows the statement to be false. Counsel for the VBA conceded that knowingly engaging in false conduct was more serious than the minimum required for a finding of negligent conduct.

Relevant principles of statutory interpretation

55 The High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [78] stated:

... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of the legislative provisions to be read in a way that does not correspond with the literal or grammatical meaning.

56 Further at [69] the High Court stated:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

(footnotes deleted)

57 For the purpose of statutory interpretation words and expressions are not to be interpreted in isolation. They must be read in their statutory context, see Cooper Brooks (Wollongong Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (“Cooper Brooks”) at 304.

58 The Tribunal first considered the ordinary meaning of the term negligent. The Macquarie Dictionary (6^th Ed., 2013) provides the definition of negligent as follows:

Guilty of or characterised by neglect, as of duty.

59 The same dictionary provides as definitions of neglect:

1. To pay no attention to; disregard: a neglected genius. 2. To be remiss in care for or treatment of: to neglect one’s family. 3. To omit (doing something), through indifference or carelessness. 4. To fail to carry out or perform (orders, duties, etc.). 5. To fail to take or use: ... 6. The act or fact of neglecting; disregard. 7. The fact or state of being neglected; negligence.

60 In this case, the context of the expression negligent in a particular matter, is that it is contained in disciplinary grounds for building practitioners. The objectives of the Act relevantly include the protection of health and safety of people who use buildings. The various grounds for disciplinary action in subsection 179(1) of the Act cover a range of potential conduct of a registered building practitioner. Some grounds are directed at particular obligations and others to more general concepts, such as unprofessional conduct and being a fit and proper person. None of the paragraphs appear to require evidence of loss to a person for a ground to be made out, save for potentially 179(1)(f)(ii) of the Act.

61 The Supreme Court of Victoria in the matter of ETNA v ARIF [1999] 2 VR 717, was required to interpret the meaning of the term ‘negligence’ contained within the Supreme Court Rules regarding a solicitor’s liability for costs in a proceeding. The Court considered a detailed history of the Rule and the legislative context of the rule. In particular, the Court found that the Rule read a whole gave the expression ‘negligence’ its meaning in that Rule. The term negligence in that context was to be of the same kind as the terms ‘misconduct or default’ found elsewhere in the Rule. The Court found that taking into account the history and legislative context of the Rule, the term negligence in the Rule required more than mere or tortious ‘negligence’ and instead some kind of professional impropriety or gross negligence.^[15]

62 The Tribunal is satisfied that conduct in relation to the practitioner’s practice as a building practitioner that is negligent in a particular matter is not limited or defined to the concept of the tort of negligence. For example, the tort of negligence requires proof of loss for the tort to be made out. Such a requirement applied into subsection 179(1)(f)(ii) of the Act, would substantially limit the occasions when the ground was made out. If a practitioner was careless or incompetent in a particular matter but no loss was suffered, the ground could not be established. Other concepts of the tort of negligence may also be problematic in a particular case, including causation and remoteness of damage.

63 Further, the term negligent would take some meaning from subparagraph 179(1)(f)(i), being conduct constituted by a pattern of incompetence. The alternatives under subject 179(1)(f) of the Act can be seen as covering incompetence as a pattern and in a particular matter. The key feature being a lack of care or competence either as a pattern or in an individual matter.

64 The Tribunal finds that the term negligent in a particular matter should be given its ordinary meaning and not have imported into it concepts from the tort of negligence. This interpretation is consistent with the language of the section and the objectives of the Act. There is nothing in the Act which would imply that the elements of the tort of negligence are relevant to the interpretation of this subsection.

65 Pursuant to the definition contained in the Macquarie Dictionary and the legislative context, we find that the meaning of negligent in a particular matter is to be remiss in care for or treatment of the particular matter or to omit doing something through indifference or carelessness in the particular matter. Nor is there anything which would indicate that the term neglect in a particular matter would apply to deliberately dishonest conduct.

66 In this case, the particular matter for each of the 23 grounds is the provision of a Certificate of Compliance on each occasion to the builder or client. The VBA’s allegations are that Mr Barker knowingly made false representations that the designs had been certified as compliant for construction at the subject sites by a registered civil engineer, when Mr Barker knew that to be false.

67 The Tribunal is not satisfied that these grounds, effectively of dishonesty by Mr Barker, can be characterised as conduct that was remiss in care for or treatment of the particular matter or omitting doing something through indifference or carelessness in a particular matter. The conduct was the deliberate and intentional provision of false certificates and therefore cannot be conduct of being remiss in care or omitting to do something through indifference or carelessness. Grounds 28 to 50 therefore could not be made out as the allegations made do not come within the conduct described in paragraph 179(1)(f)(ii) of the Act. Grounds 28 to 50 are not proven.

68 The Tribunal is unable to make findings on potential grounds not raised and particularised by the VBA in which the alleged conduct may have been otherwise relevantly alleged.

Issue 4 – Is Mr Barker is a fit and proper person to practise as a building practitioner

69 Ground 51 for the taking of disciplinary action is that under subsection 179(1)(g) of the Act, Mr Barker is not a fit and proper person to practise as a building practitioner.

70 The High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [36], in a different legislative context, considered the interpretation of the term fit and proper person. The Court found:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

71 In the context of the Act and flowing from the above extract from Bond, this Tribunal in Valentine v Victorian Building Authority [2020] 1104 at [408], stated that:

It can be seen the test for whether a person is fit and proper allows for a wide range of matters to be considered, including whether the person has the necessary honesty, knowledge, and ability. The test must be applied in the context of what the person will be authorised to do and therefore the question of whether Mr Valentine is a fit and proper person must be assessed in the light of the purposes of the Building Act and the DBC Act.

72 The conduct relied upon by the VBA for the allegation that Mr Barker was not a fit and proper person under ground 51, is the conduct described in grounds 1 to 50, being all the conduct or any combination of the conduct.

73 The Tribunal has earlier found the conduct alleged under grounds 1 to 27 proven. As the Tribunal did not consider whether the conduct alleged under grounds 28 to 50 was proven, it must now to do.

74 The Tribunal is comfortably satisfied taking into account the gravity of the ground and the allegations, that Mr Barker provided to customers, site owners and/or builders false Certificates of Compliance for 23 of the buildings for the subject sites as alleged in grounds 28 to 50. Mr Barker did this knowing that the certificates were false, in that the designs had not been assessed and certified for the particular sites by the Engineer and the Engineer had not given authorisation or permission for the certificates to be issued in his name. The alleged conduct described under grounds 28 to 50 has therefore been proven. As noted above, grounds 28 to 50 themselves are not proven.

75 The submission of the VBA as to the proven conduct under ground 51 was, in summary, that the conduct:

1. is of a nature which violates, or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency;
2. demonstrates a flagrant, wilful and repeated pattern of serious wrongdoing which exemplifies professional misconduct;
3. involves matters of dishonesty and fraud on Ms Barker’s part, which may be reasonably inferred to have resulted in financial gain by him and/or A-Line;
4. is extremely reckless and unscrupulous conduct which would reasonably be regarded by practitioners of good repute and competence as utterly disgraceful;
5. is capable of adversely impacting, in a serious way, on the integrity of the statutory certification and practitioner registration regime by undermining the reliability and confidence that can be placed on Certificates of Compliance;
6. carries the potential to bring the profession into disrepute and undermine the fundamental trust consumers should have in registered building practitioners;
7. has resulted in ongoing detriment for the relevant owners and/or kit purchasers as a direct consequence of Mr Barker’s actions;
8. undermines the process of building surveyors being able to rely upon Certificates of Compliance as evidence that a registered engineer has assessed that the building complies with regulatory requirements for the site at the date of certification;
9. creates a risk of serious public safety consequences.^[16]

76 The Tribunal accepts these submissions, save that there was no evidence of any ongoing detriment to the owners or kit purchasers and without an inspection of the subject buildings being undertaken, the level of risk involved was not able to be fully assessed. The second aspect is discussed further below.

77 The Tribunal is comfortably satisfied taking into account the gravity of the charge and the conduct proven, that Mr Barker is not a fit and proper person to practise as a building practitioner. Ground 51 has therefore been proven.

Issue 5 – What, if any, disciplinary action should be taken against Mr Barker

78 The disciplinary action available for the disciplinary grounds proven is set out in section 178 of the Act and is relevantly extracted above.

79 The Victorian Supreme Court in Thomas v Victorian Building Authority  [2020] VSC 150 , considered the appropriate principles to apply in disciplinary matters under the Act. The Supreme Court examined the authorities as to the imposition of penalties in disciplinary proceedings and provided guidance on the principles as follows:

[60] First, the purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law.

[61] Secondly, while considerations of individual deterrence and general deterrence have a very prominent role in sentencing criminal offenders, such considerations are subsidiary in the exercise of a protective jurisdiction.

[62] Thirdly, this is not to deny that such orders may be punitive in effect. In fact, sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone was the relevant consideration.

[63] Fourthly, protection of the public may be achieved in various ways. As well as preventing people from practising, it may include orders which will secure the maintenance of proper professional standards.

[64] Finally, as highlighted by Doyle CJ in Craig, the public may also be protected by making it clear that certain conduct is not acceptable. However, the emphasis is on the protection of the public rather than concepts of deterrence.

(footnotes omitted)

80 The Tribunal finds that it should have as its first consideration in imposing a sanction, the objective of protecting members of the community and public confidence in the profession, therefore issues of deterrence and general deterrence are relevant to the imposition of the penalty but are not the primary focus.^[17]

81 The matters which may be relevant in determining the appropriate penalty, if any, are:

1. The gravity of the conduct proven;
2. The degree of insight of the practitioner as to the conduct;
3. The prior disciplinary history of the practitioner;
4. Specific deterrence to protect the public from the practitioner engaging in the misconduct in future;
5. General deterrence to deter others in the profession from engaging in similar conduct;
6. Character and contribution to the community of the practitioner.

Gravity of the proven conduct

82 The Tribunal must take into account the conduct proven for the relevant ground in deciding the appropriate penalty for that ground. The Tribunal will therefore take in account the proven conduct under grounds 1 to 26 in deciding the appropriate penalty for those grounds, and so on.

83 In relation to ground 1 to 26, the Tribunal found that Mr Barker created or caused to be created false Certificates of Compliance on 26 occasions indicating the proposed buildings had been assessed and certified by a civil engineer for the proposed subject site. In relation to ground 27, the Tribunal found that Mr Barker provided a certificate for one of these 26 sites to a building surveyor carrying out a function under the Act.

84 In relation to ground 51, the Tribunal has found the conduct alleged in grounds 1 to 27 proven and that Mr Barker provided false Certificates of Compliance on 23 occasions to customers, site owners and builders, indicating the proposed buildings had been assessed and certified by a civil engineer for the proposed subject site.

85 The certificates produced or caused to be produced by Mr Barker had information added to them including the name, address, registration number and signature of the Engineer, as well as a statement that the design had been certified by the Engineer on a particular date. The Engineer had given no authority or permission for his name and qualifications to be used for the certificates. The Engineer had not assessed or certified any of the buildings for the subject sites. These findings without more would make the conduct of Mr Barker very serious.

86 The adequacy of the designs and the risks involved in the completed structures were the subject of evidence and submissions at the hearing. The VBA relied on a written report and oral evidence from Mr Oliver Kelly, a Structural and Forensic Engineer, as to the adequacy of 23 designs. The VBA also relied upon reports from civil engineers, Mr Elias Eracleous and Mr Leigh Crapper. They did not give oral evidence. Mr Barker relied upon a spreadsheet and attached calculations provided by his current civil engineer, Ms Pfeifer. Ms Pfeifer, an employee of A-Line, was not called to give evidence before the Tribunal.

87 Mr Barker told the Tribunal that a lot of what engineers do is subjective and a certain amount of discretion exists in their work. Different engineers can have different views as to whether a design is adequate.

88 Each of the engineers providing material as to the designs in this case undertook a desktop assessment of the relevant structural designs. There were no inspections undertaken of the subject buildings by any of the engineers. There was otherwise no evidence as to the current state of any of the subject buildings, nor clarification of the actual grade of steel used for the structural members in the subject buildings. The only evidence which the Tribunal therefore had before it regarding the risks arising from the proven conduct was the risks assessed by the desktop analysis of the plans by the engineers.

89 Mr Kelly gave clear and competent evidence to the Tribunal. His evidence was that the deficiencies in the plans differed between the subject sites. There were however several recurring or significant deficiencies, including:

1. the plans did not state the grade of steel to be used in construction;
2. he had assessed a different terrain category for a number of the sites, which affected the adequacy of the designs.
3. three of the drawings had insufficient information to make any assessment of the structural designs;
4. a number of the designs had insufficient structural capacity for the lateral deflection of the building (from wind) and/or the vertical load;
5. several the designs did not have discrete roof and wall bracing but instead relied upon roof and wall sheeting/cladding for stability and this was poor structural engineering;
6. one structural design was assessed as fundamentally flawed by Mr Kelly, as the internal portals frames were insufficient to support the design load. He assessed the level of risk of structural failure for this design as high.
7. for the other designs, Mr Kelly assessed the level of risk of a structural failure as low for nine designs and medium for ten designs. No risk assessment was possible for three designs due to the lack of information on the drawings.
8. Mr Kelly recommended enhancements to the designs and the buildings, ranging from a plaque indicating that the sheeting or cladding was required for structural integrity and should not be removed without advice from a civil engineer to the installation of new portal frames within buildings and welding new rafters and columns to support the existing structure.

90 In relation to the documentation provided by Ms Pfeifer, Mr Kelly told the Tribunal that:

1. The A-Line assessment by Ms Pfeifer assumed a higher grade of steel was used in construction, when no grade was noted on the plans. Mr Kelly had assumed a lower grade due to the absence of the specification on the plans;
2. A-Line in its designs often used a less onerous terrain category for assessing the designs than assumed by him. Mr Kelly conceded that a site visit may lead to a change in the terrain category by half a category;
3. It was not clear from the documents provided by A-Line whether they had adequately assessed the lateral deflection on some designs.

91 Mr Barker gave evidence that a higher grade of steel had been used but he was unable to produce any documentary evidence as to the purchase or use of such higher grade steel at the relevant times. Mr Barker conceded that Ms Pfeifer had assumed the use of the higher grade of steel but that she was not working with A-Line at the time any of the subject buildings were constructed.

92 He also gave evidence that they had undertaken testing to show that the cladding/sheeting provided sufficient structural bracing capacity in addition to the frames, for the building to be able to withstand the relevant loads. Mr Barker did not produce any documentary evidence as to this testing or its results.

93 The Tribunal generally accepts as correct the evidence of Mr Kelly and prefer his evidence to Ms Pfeifer’s documentation and Mr Barker’s assertions. This is, in part, due to being able to assess and test Mr Kelly’s evidence in person (by videoconference) and the lack of clarity as to the assumptions made by Ms Pfeifer. Ms Pfeifer appears to have relied upon assumptions which are not part of the structural designs. There were some limitations as to Mr Kelly’s evidence. Although the evidence has allowed us to confidently reach conclusions as to inadequacy of the structural designs and the risks which arise from those designs, we are less confident as to how those structural design flaws have translated into risks from the buildings as constructed. Aside from Mr Barker assertions as to the construction of the buildings, we have no evidence as to whether the risks inherent in the structure designs have been mitigated as part of the construction process. Due to the number and types of structural design risks, we are satisfied that there are risks from the buildings as constructed.

94 The Tribunal therefore takes into account as to the seriousness of the conduct, the structural design risks flowing from Mr Barker’s proven conduct. We also take into account that there are potential risks of the buildings as constructed.

95 The Tribunal considers that the proven conduct of Mr Barker in relation to grounds 1 to 26 is very serious, we are of the same view as to Ground 27 and as to Ground 51. We note the overlapping nature of the grounds.

Degree of insight of the practitioner

96 A point in Mr Baker’s favour, is that on being contacting by the Engineer about his conduct, Mr Barker admitted the conduct and entered into a deed with the Engineer regarding the matter. The deed provided for Mr Barker to cease the conduct, supply the Engineer with a list of the subject sites and a small amount of compensation. On being interviewed by the VBA, Mr Barker made admissions as to some key factual matters, including that he created or caused to be created the certificates without permission or authority from the Engineer, he entered the relevant information into the certificates and provided them to builders and customers.

97 During these interviews, Mr Barker sought to blame his own ignorance and lack of training for the conduct and, on three occasions, referred to the Engineer now working for a competitor which could be a cause for the complaint being made. He also suggested that the conduct was common in the industry and that as the Engineer had designed the buildings as generic structures, he would have accepted that the certificates would be issued for these structures.

98 At the hearing, Mr Barker did not repeat any of the matters in the previous paragraph. He stated that he had a lack of insight when the issue first arose but he is now very clear as to the requirements. He stated that every job is now passed onto an engineer. His business no longer undertakes any installation work. Mr Barker told the Tribunal that he will not be making any such poor decisions as he did in the past and is never going to be a registered builder again. He now has a full understanding of his legal obligations. A-Line has a full time engineer presiding over every job.

99 Mr Barker told the Tribunal that he was no longer the sole director of the company. This responsibility is now being shared with others.

The prior disciplinary history of the practitioner

100 Mr Barker has been a registered building practitioner since 1997. The present matter is the only occasion that he has been subject to disciplinary action. This weighs in his favour on the issue of penalty.

Specific Deterrence

101 When considering specific deterrence in determining a penalty, the Tribunal is framing a penalty partly for the purpose of discouraging the person being penalised from committing similar conduct in future.

102 Mr Barker told the Tribunal that he is no longer registered as a building practitioner and does not intend to be registered in the future. The business is now operating as a fabrication and sale business and not undertaking any construction. Mr Barker told the Tribunal that he is no longer the sole director, he is now one of three directors. This change occurred with the view to Mr Barker having less to do with the business in future. As discussed above, Mr Barker told the Tribunal that he now has a full understanding of his legal obligations and has employed a full time engineer. Mr Barker had in earlier interviews with the VBA displayed less insight into the seriousness of the conduct. Mr Barker conceded to the Tribunal that ‘early on’ he had a lack of insight. The Tribunal has considered each of these matter in weighing the need for a penalty to reflect the need for specific deterrence.

General deterrence

103 The purpose of general deterrence is to frame sanctions so as to discourage others from engaging in the same conduct for which a person is being penalised. This assists in maintaining professional standards. The VBA submitted that VCAT may have regard to the effect its sanctions will have on the understanding in the profession and among the public about the standard of behaviour required of building practitioners.^[18]

104 The VBA submits that the appropriate sanction would send a clear message to deter any other building practitioners who may be tempted to not comply with the requirements of the Act with respect to Certificates of Compliance. It is important that the sanction is sufficiently severe to discourage other building practitioners from seeking to reduce costs by not complying with the requirements of the Act.^[19]

105 The Tribunal accepts that these matters are relevant considerations in fixing the appropriate penalty.

Character and contribution to the community

106 When asked by the Tribunal whether he had anything to say or rely upon about his character and contribution to the community, Mr Barker replied not really. He said that he had contributed a lot to the local community for no remuneration.

107 The VBA submission states that Mr Barker had advised in his interviews that he takes an active part in his local church, where he is an elder. The VBA invited Mr Barker to provide evidence from others as to his contribution to the community and indicated that if the person giving the reference noted the allegations in this matter, that would be more helpful to be Mr Barker’s case. The VBA submits that the only reference provided was from a long term employee of A-Line. The reference stated that Mr Barker is “honest and fair in his dealings with employees, suppliers, customers and the authorities.”^[20] The reference did not refer to the allegations against Mr Barker.

108 Mr Barker did not produce any further references or letters of support to the Tribunal. The material before the Tribunal on Mr Barker’s character and contribution to the community was of limited assistance in fixing the appropriate penalty.

109 The VBA sought information from Mr Barker as to his personal financial circumstances to assist in setting a penalty. The effect of a penalty is not central to the question of penalty; however, it should be given due consideration.^[21] Mr Barker produced little information and the Tribunal found this information of little assistance in fixing the appropriate penalty. Mr Barker mentioned in passing a health condition but did not address the Tribunal on the nature of the condition or its consequences and did not produce any documentary evidence as to the condition, such as a letter from his doctor.

Passage of time

110 The delay in disciplinary proceedings being commenced and finalised has been recognised as a matter to be taken into account in determining an appropriate penalty. A delay may be a mitigating factor and is considered in the light of the rehabilitation of the person in the period and the fairness of such a delay on the person.^[22]

111 In this case, the matters were reported to the VBA on about 4 June 2018. Mr Barker was interviewed on 27 June 2018. The investigator’s and engineers’ reports were completed by April 2019. The show cause notice was issued on 12 December 2019. Mr Barker made oral representations on 14 January 2020 and sought additional time to provide documents from his engineer, which were provided on 28 February 2020. The VBA made the original decision on 30 March 2020. Mr Barker lodged an application for internal review on 15 April 2020. On 13 May 2020, the VBA internal review decision was made and Mr Barker lodged his application for review with this Tribunal on 14 May 2020. It appears from the Tribunal file that the period between the lodging of the application for review and the final hearing of the matter was extended by two factors, the parties undertaking extensive discussions as to a potential resolution of the matter and the COVID-19 pandemic, which has significantly delayed the hearing of matters in the Tribunal.

112 The only significant delay which could be brought home to either party is the delay by the VBA in issuing the show cause notice of approximately eight months after the completion of the investigation and the gathering of evidence, including the expert evidence. Otherwise, a party could not be found to be at fault.

113 Mr Barker did not raise that he had been prejudiced by the period between the complaint being made against him and the final hearing. The VBA has conceded that the delay has given Mr Barker the time to hire an engineer and apparently practise without any further complaints as to his conduct. The Tribunal notes that the period has also allowed Mr Barker an opportunity to reflect on the conduct.

114 Despite no complaint from Mr Barker as to the delay, the Tribunal considers that it should take into account that Mr Barker had disciplinary matters hanging over him for a period of almost four years.

Totality Principle

115 A factor which must be taken into account in the fixing of penalties for multiple breaches is the totality principle. The totality principle has been expressed as the need to ensure that the penalties in aggregate are just and appropriate when determining a penalty for a number of offences.^[23]

116 In the present case, the Tribunal has not found all of the grounds relied upon by the VBA proven. As discussed above, grounds 28 to 50 were not proven, as the subsection of the Act relied upon did not cover the conduct alleged. However, the conduct alleged under grounds 28 to 50 was also alleged as part of the relevant conduct for ground 51. The Tribunal found that conduct and ground proven.

117 The Tribunal is satisfied that it should take into account the overlapping nature of the conduct relied upon for the remaining grounds and the need to ensure that the aggregate of penalties is just and appropriate.

Appropriate penalties

118 As discussed above, in deciding the appropriate penalties for the proven grounds, the Tribunal takes into account the proven conduct for that ground. Grounds 28 to 50 were not proven. The alleged conduct under grounds 28 to 50 was also relied upon for ground 51. The Tribunal has therefore only taken into account this conduct in setting the penalty for ground 51. That is, the provision of the false Certificates of Compliance to 23 purchasers, site owners and/or builders has only been taken into account in setting the penalty for ground 51.

119 The Tribunal has found that under subsection 179(1)(g) of the Act, Mr Barker is not a fit and proper person to be a registered building practitioner. Subsection 179B(1) states that VCAT must cancel a person’s registration as a building practitioner if it makes a finding that the person is not a fit and proper person. The Tribunal therefore has no discretion in applying the sanction of cancellation of Mr Barker’s registrations on this ground. The Tribunal was also satisfied that Mr Barker’s registration should be cancelled under subsection 178(g) of the Act under grounds 1 to 27.

120 In relation to the period of disqualification from holding registrations in any class or category of building practitioner under grounds 1 to 26, the Tribunal views the conduct proven to be very serious for the reasons previously outlined. Taking into account that there is possibly more serious conduct under the disciplinary provisions and that the factors discussed above, including the totality principle, the Tribunal is satisfied that for the protection of the public a period of disqualification of 18 months is just and appropriate for grounds 1 to 26. The Tribunal will therefore impose a period of disqualification of 18 months.

121 The Tribunal is satisfied that under subsection 178(a) of the Act it is appropriate to impose two reprimands on Mr Barker. The first reprimand for grounds 1 to 26 and the second for ground 27.

122 The Tribunal notes the total potential financial penalties set out in the show cause notice and, in particular, the maximum financial penalty for grounds 1 to 26 is $558,139.50 and for ground 27 is $16,900.80. ^[24] No financial penalty was proposed or imposed by the VBA for ground 51.

123 The Tribunal accepts the maximum applicable penalties for the grounds are accurately described in the show cause notice. Taking in account the matters discussed above for the purpose of fixing penalties for the protection of the public, and particularly taking into account the seriousness of the conduct, the matters considered in mitigation and the totality principle, the Tribunal is satisfied that a total financial penalty of $25,000.00 is just and appropriate. The penalty for grounds 1 to 26 is a combined penalty of $22,500.00 and for ground 27 is the penalty of $2,500.00.

124 The Tribunal notes that the total financial penalty is the same amount as the penalty imposed by the VBA for a larger number of proven grounds. The Tribunal notes the while the number of proven grounds has been reduced, the Tribunal considered that the level of the penalty was just and appropriate in accordance with the matters discussed above and in particular for the protection of the public and the seriousness of the proven conduct under grounds 1 to 26 and ground 27.

Conclusion

125 The Tribunal has therefore found grounds 1 to 27 and 51 proven. Grounds 28 to 50 have not been proven. The Tribunal has reached different conclusions to the internal reviewer as to the sanctions to be applied. The Tribunal will therefore set aside the internal review decision dated 13 May 2020 and substitute a new decision that:

1. With respect to Grounds 1 to 26:
   1. Under subsection 178(g) of the Act, the applicant’s registrations in categories of Domestic Builder Limited (DB- L 1408) and Commercial Builder Limited (CB-L 407) are cancelled;
   2. Under subsection 178(a) of the Act, the applicant is reprimanded;
   3. Under subsection 178(h) of the Act, the applicant is disqualified from holding registration in any class or category of building practitioner for a period of 18 months;
   4. Under subsection 178(d) of the Act a combined financial penalty of $22,500.00 is imposed on the applicant;
2. With respect to Ground 27:
   1. Under subsection 178(a) of the Act, the applicant is reprimanded;
   2. Under subsection 178(d) of the Act, a financial penalty of $2,500.00 is imposed on the applicant;

100. With respect to Grounds 28 to 50:
     1. As the grounds have not been proven no disciplinary action is imposed.

4. With respect to Ground 51:
   1. Under subsection 179B(1) of the Act, the applicant’s registrations in categories of Domestic Builder Limited (DB- L 1408) and Commercial Builder Limited (CB-L 407) are cancelled.

Schedule A

Grounds for disciplinary action

Based on the above facts and circumstances, the VBA has formed a reasonable belief under section 182(1) of the Act that the following grounds exist for proposing to take disciplinary action against you:

(a) Grounds 1 to 25 – Disciplinary Action under Section 179(1)(b) of the Act (25 counts)

On each of the following 25 occasions, you have engaged in unprofessional conduct contrary to section 179(1)(b) of the Building Act 1993 (Vic.) by falsifying, or causing to be falsified, a document purporting to be a Regulation 1507 Certificate of Compliance – Design which fraudulently bore the name, registration number and facsimile signature of a person registered in the class of Civil Engineer as the purported author and certifier, without that building practitioner’s certification, knowledge and/or authorisation:-

Table E

(b) Ground 26 – Disciplinary Action under Section 179(1)(b) of the Act

On or about 21 August 2013 and in relation to building work consisting of the construction of a shed at 59 The Boulevard, Loch Sport, in the State of Victoria, you have engaged in unprofessional conduct contrary to section 179(1)(b) of the Building Act 1993 (Vic.) by falsifying, or causing to be falsified, a document purporting to be a Regulation 1507 Certificate of Compliance – Design in respect of that proposed building work which fraudulently bore the name and registration number of another building practitioner registered in the class of Civil Engineer as the purported author and certifier, without that building practitioner’s certification, knowledge and/or authorisation.

(c) Ground 27 – Disciplinary Action under Section 179(1)(a)(i) of the Act

In or about 2012 and in relation to building work consisting of the construction of a garage at 1315 Heidelberg-Kinglake Road, Cottles Bridge, in the State of Victoria (the Heidelberg-Kinglake Road works), you have contravened section 246 of the Building Act 1993 (Vic.) (the Act) (as it then was), in that you knowingly provided or caused to be provided, caused to be provided, false or misleading information to a person carrying out a function under the Act or Regulations, in that you caused to be lodged with the relevant building surveyor a falsified Regulation 1507 Certificate of Compliance – Design concerning the application for building permit for the Heidelberg-Kinglake Road works when you knew, or ought to have known, that document was fraudulent.

(d) Grounds 28 to 50 – Disciplinary Action under section 179(1)(f)(ii) of the Act

On each of the following 23 occasions, you have engaged in conduct in relation to your practise as a building practitioner that was negligent contrary to section 179(1)(f)(ii) of the Building Act 1993 (Vic.), in that, by providing a falsified Regulation 1507 Certificate of Compliance – Design to the purchasers of steel kits, the owner(s) of the site and/or the builders engaged to erect the building work at the site, you knowingly made false representations that the design had been certified as compliant for construction at the subject site by a registered Civil Engineer, when in fact you knew no such certification had been given.

Table F

(e) Ground 51 – Disciplinary Action under Section 179(1)(g) of the Act

Pursuant to section 179(1)(g) of the Building Act 1993 (Vic.)(the Act), the Authority (VBA) believes on reasonable grounds that you are not a fit and proper person to practise as a building practitioner.

Note: Footnotes not reproduced.

`

^[1] The full grounds relied upon by the VBA in the notice to show cause are set out in Schedule A to these reasons.

^[2] The Engineer’s witness statement at p1 L18-21.

^[3] TB710-1104

^[4] Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 at [38-9].

^[5] See Valentine v Victorian Building Authority (Review and Regulation) [2020] VCAT 1104 at [46-48] quoting Re A Practitioner of the Supreme Court [1927] SASR 9 and Campbell v Dental Board of Victoria [1999] VSC 113 at [8].

^[6] TB1829

^[7] TB1800-1

^[8] See references to r1506 and 1507 of the Building (Interim) Regulations 2005 and section 238 of the Act under the heading Relevant Law in these reasons.

^[9] TB1751

^[10] TB1804

^[11] TB1743

^[12] TB363

^[13] VBA written submissions dated 4 August 2021 at [41.3].

^[14] McSteen at [64].

^[15] ETNA v ARIF [1999] VSCA 99; [1999] 2 VR 353 at [79].

^[16] VBA written submissions dated 4 August 2021 at [85].

^[17] Victorian Building Authority v Tsaganas [2017] VSCA 248 at [26-9].

^[18] VBA written submissions dated 4 August 2021 at [110] with footnote referring to Stirling v Legal Services Commissioner [2013] VSCA 374 at [59].

^[19] VBA written submissions dated 4 August 2021 at [112].

^[20] VBA written submissions dated 4 August 2021 at [114].

^[21] Stirling v Legal Services Commissioner [2013] VSCA 374 at [134-138].

^[22] Stirling v Legal Services Commissioner [2013] VSCA 374 at [121].

^[23] CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 at [7].

^[24] TB1140. The Tribunal notes that the value of a penalty unit has varied over the period 2012 to 2017.