NSW Architects Registration Board v Goriaux [2010] NSWADT 21 (22 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
NSW Architects Registration Board v Goriaux [2010] NSWADT 21


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
NSW Architects Registration Board

RESPONDENT
Philippe Goriaux



FILE NUMBERS:
093203

HEARING DATES:
20 November 2009

SUBMISSIONS CLOSED:
20 November 2009



DATE OF DECISION:
22 January 2010

BEFORE:
Chesterman M - Deputy PresidentO'Carrigan P - Non-Judicial MemberWatts P - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Architects Act 2003

CASES CITED:
Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336
Gianoutsos v Glykis [2006] NSWCCA 137

TEXTS CITED:


APPLICATION:
Disciplinary application – Architects Act 2003 – nominated architect – forged development consent created by architect’s company – fees improperly recovered from clients

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
P Griffin, barrister
RESPONDENT
No appearance


ORDERS:
1. The Respondent is not permitted to apply for re-registration as an architect under the Architects Act 2003 within the period of two years following the date of this decision
2. When making any such application for re-registration, the Respondent must provide to the Applicant an explanation of the following matters: (a) the action, if any, that he took to investigate the allegations made about the behaviour of Insite Architecture & Design (Newcastle) Pty Ltd contained in the letter dated 8 February 2008 from Mr John Lakos, of Lakos & Company Lawyers, to Mr Sean Lander, once he had received a copy of that letter; (b) the action, if any, that he took to make appropriate reimbursement to Mr Stephen Dammerer and Ms Tanya Dammerer; and (c) if he did act in either of these ways, the reasons why he did not advise the Applicant accordingly once he had received a copy of the complaint made against him by Mr and Ms Dammerer
3. The Respondent is to pay the Applicant’s costs, as agreed or as assessed under the Legal Profession Act 2004.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 In this case, the evidence suggested that an employee of an architect corporation forged a document purporting to show the consent of a local authority to a development project being instituted by the corporation’s clients. The corporation received payment of its fees from the clients. The chief question to be determined was what disciplinary order or orders, if any, should be made under the Architects Act 2003 (‘the Act’) against the architect who had been nominated under this Act as responsible for the provision of architectural services by the corporation.

2 These proceedings were instituted by an Application filed on 30 July 2009 by the NSW Architects Registration Board (‘the Board’) against the architect in question, Mr Philippe Goriaux.

3 Mr Goriaux did not appear at two directions hearings or at the substantive hearing, which took place on 20 November 2009. At that hearing, we decided, after receiving evidence about the measures adopted to serve documents on him relating to the proceedings, that the Board should be permitted to tender its evidence and make submissions, following which we should determine what disciplinary order or orders should be made against him. The evidence on which we based this decision and our reasons for so deciding are outlined below.

The conduct alleged by the Board

4 On 13 April 2005, the Board received from Insite Architecture & Design (Newcastle) Pty Ltd (‘Insite’), an architect corporation, a form nominating Mr Goriaux, who was then a registered architect, under section 27 of the Act. The form bore his signature. By virtue of section 27, Mr Goriaux thereby became the architect responsible for the provision of architectural services by Insite.

5 The records maintained by the Australian Securities & Investments Commission show that at that time the directors of Insite were Mr Goriaux and Mr Sean Lander and that its shareholders were Mr Goriaux, Mr Lander and Mr Gregg Scott, each of whom held one share.

6 On 8 August 2005, the Board approved this nomination of Mr Goriaux and sent notification of its approval to Insite.

7 Mr Lander has never been a registered architect in this State and as far as the Board is aware is not qualified as an architect.

8 In or about July 2006, Mr Stephen Dammerer and Ms Tanya Dammerer discussed with Mr Lander their desire to obtain architectural services from Insite in relation to the building of a new residence for them at Middle Cove (‘the Property’). Mr Lander represented to them that he was an architect and that Insite was ‘his’ firm.

9 On or about 4 August 2006, Mr and Ms Dammerer signed a copy of a letter on Insite’s letterhead, which Mr Lander had prepared and signed on behalf of Insite. By so doing, they engaged Insite to provide architectural services and agreed to pay fees in accordance with a scale of charges set out in the letter. The letter stated near its commencement that they would have to obtain development consent and a construction certificate from the local authority (Willoughby City Council – hereafter ‘the Council’). It quoted fees payable to Insite for preparing the necessary applications.

10 During February 2007, Mr Lander told Mr Dammerer that the Council had approved a development application that Mr Lander had lodged with respect to the Property. During the following month, he advised that he needed to prepare additional documents in order to obtain both a construction certificate and the Council’s approval to minor modifications to the plans submitted with the development application.

11 Between August 2006 and July 2007, Mr and Ms Dammerer received tax invoices for professional fees totalling $26,500 from Insite. They paid these fees as requested.

12 On a number of occasions from June 2007 onwards, Mr Dammerer asked Mr Lander for copies of the correspondence and documents relating to the application for development approval. Mr Lander promised to comply with these requests, but provided no document until January 2008.

13 During January 2008, Mr Lander sent to Mr Dammerer a photocopy of a document on the Council’s letterhead, headed ‘Notice of Determination of a Development Application – Development Consent "Deferred Commencement" No. DA-2006/1045(C)’ (hereafter ‘the Development Consent’). It was dated 11 November 2007 and addressed to Insite. It stated that consent had been given to the development proposed for the Property and bore a signature purporting to be that of Mr Ian Arnott, an officer employed by the Council as its Development Planning Manager.

14 Soon after receiving this document, Mr Dammerer sent a copy of it to the Council, together with a request for access to the other documents relating to this matter that were in the Council’s possession.

15 On 24 January 2008, Mr Lindeman, who was employed by the Council as its Help and Service Supervisor, notified Mr Dammerer by email that the Council, having completed an investigation of the Development Consent, did not believe that this document had ever been issued by the Council.

16 A file note prepared by Mr Arnott on the same day contains the following statements: (a) the Council had no record of receiving or determining a development application for the Property; (b) the highest reference number for such applications during 2006 was 2006/1044, one less than the number on the Development Consent; (c) the text of the Development Consent had significant resemblances to that of a comparable document that the Council had issued to Insite during 2003; and (d) although the signature on the Development Consent resembled Mr Arnott’s signature, he had never signed a Deferred Commencement consent for the Property.

17 Also on 24 January 2008, Mr Dammerer sent an email to Mr Lander outlining what he had just ascertained from the Council. Mr Lander did not reply.

18 Pursuant to advice from its solicitors, the Council referred the matter to the NSW Police at Chatswood and to the Independent Commission Against Corruption (ICAC).

19 On 8 February 2008, Mr John Lakos, of Lakos & Company Lawyers, wrote on the instructions of Mr and Ms Dammerer to Mr Lander. His letter began by summarising the course of dealings between his clients and Insite and the information that they had obtained from the Council about the Development Consent. It indicated that the Council were ‘treating the matter as gravely serious’ and was believed by his clients to have referred the matter to their solicitors, to the police and to ICAC. The letter then claimed that Mr Lander, Insite and ‘the officers of Insite’ were liable to Mr and Ms Dammerer for breach of contract, misleading and deceptive conduct, negligence and fraudulent. It stated that unless within seven days Insite and its officers refunded the full amount of the fees that they had paid ($26,500), Mr and Ms Dammerer would commence legal proceedings claiming damages amounting to a significantly larger sum. It also indicated that they would shortly be lodging a formal complaint about the misconduct of Mr Lander ‘and possibly other officers of Insite’. It concluded by inviting Mr Lander to respond by return mail if he wished to dispute the allegations made in the letter.

20 On the same day, Mr Lakos also wrote to Mr Goriaux, enclosing a copy of his letter to Mr Lander. He noted first that Mr Goriaux and Mr Lander had been Insite’s directors since 1996 and that the letter to Mr Lander described ‘gross unprofessional conduct and apparently fraud’ on the part of Mr Lander and Insite. He then pointed out that over many years Insite had performed a broad range of architectural services ‘in reliance on’ Mr Goriaux’s registration as an architect and that Mr Goriaux, by virtue of this registration and his role as a director of Insite, had ‘a range of legal obligations to parties who undertake business dealings with Insite and its staff’. He maintained that Mr Goriaux and Mr Lander had been ‘derelict’ in their legal obligations and invited Mr Goriaux to conduct an immediate investigation into the dealings between Insite and his clients. His letter concluded as follows:-

Having regard to the immediate referral of this matter to the Board we request your immediate response. Your response to this letter (or its absence) will also be brought to the attention of the Board for appropriate further action.

21 Neither Mr Lander nor Mr Goriaux replied to these letters from Mr Lakos.

22 On 5 March 2008, Mr Lakos lodged with the Board a complaint by Mr and Ms Dammerer against Mr Goriaux (‘the Complaint’). The grounds of the Complaint, comprising the allegations just outlined, were contained in a statutory declaration, sworn by Mr Dammerer on 28 February 2008, and in annexed copies of correspondence.

23 On 1 April 2008, the Board, acting under sections 24 and 28 of the Act, removed Mr Goriaux from the register of architects on the ground that he had failed to pay the annual registration fee on or before the due date.

24 In a letter dated 23 April 2008, the Registrar of the Board, Ms Kathleen Doyle (hereafter ‘the Registrar’), notified Mr Goriaux accordingly.

25 On 26 May 2008, in accordance with section 38 of the Act, the Registrar, on instructions from the Board, wrote to Mr Goriaux notifying him of the Complaint and enclosing a copy of it. The letter pointed out that under section 33(2) a complaint against an architect may be made and dealt with even though the architect has ceased to be registered. It stated that the Board required Mr Goriaux to make any representations about the Complaint as he thought fit on or before 23 June 2008.

26 On 30 June 2008, having received no response from Mr Goriaux, the Registrar wrote a further letter to him requiring him to respond within 14 days and stating that if he failed to do so the Board would assume that he had declined to provide a response.

27 On 9 July 2008, Mr Lander, or a person purporting to be him, sent an email to the Registrar acknowledging receipt of her letter of 30 June 2008 and stating that ‘we’ (apparently referring to himself and Mr Goriaux) were preparing a response, which would be sent within the next few days.

28 On 8 August 2008, having received no further communication from Mr Lander or Mr Goriaux, the Registrar wrote again to Mr Goriaux. She stated that a response to the Complaint was required by 22 August 2008, that any information received after that date might not be taken into account by the Board and that under section 32(c) of the Act the definition of unsatisfactory professional conduct included ‘any failure without reasonable excuse’ by an architect ‘to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court’.

29 On 10 December 2008, an officer of the NSW Police at Chatswood advised the Registrar that the Police had received relevant documents from the Council and were still investigating the matter. On the same day, Mr Arnott advised the Registrar that he had been unable to ascertain whether documents had been sent to the Independent Commission Against Corruption.

30 On 18 February 2009, a duly constituted Complaints Committee to whom the Board, pursuant to section 45 of the Act, had delegated the function of investigating the Complaint issued a document entitled ‘Determination of a Complaint against an Architect’. In this Determination, the Committee outlined the grounds of the Complaint, the steps that it had taken to investigate the Complaint and the evidence relating to it that had been obtained during the investigation. In a section headed ‘Assessment of the Complaint’, the Committee observed that it was unclear from the available evidence whether, and if so to what extent, Mr Goriaux had knowledge of, or involvement in, the relevant events. It also observed that although Mr Lakos had given an outline of these events to him on 8 February 2008 and had sought his response, he had not responded to this letter or to later letters sent to him by the Registrar. It then set out provisions of the Act defining professional misconduct and unsatisfactory professional conduct and delineating what the Board was required to do after investigating a complaint.

31 At the conclusion of its Determination, the Committee stated (a) that the Board was satisfied that Mr Goriaux was guilty of professional misconduct and (b) that the Board resolved to refer the matter to the Tribunal for a disciplinary finding.

32 The Registrar then arranged for a copy of it to be served on Mr Goriaux together with a letter dated 30 March 2009. The letter commenced as follows: ‘Pursuant to section 43(3) of the Act the Board finds the Architect guilty of professional misconduct.’ It then stated that, as required by section 43(5) of the Act, the Board, before implementing its decision to refer the matter to the Tribunal, would allow a period of 28 days after service of the Determination for Mr Goriaux to make written submissions to it and would take such submissions into consideration before deciding on its future course of action.

33 On 8 May 2009, a process server effected personal service of the Determination on Mr Goriaux at an address in Oyster Bay which the Board believed to be his residential address.

34 On the same day, the Registrar received a letter from Mr Goriaux. In it, Mr Goriaux first acknowledged being served earlier that day with ‘a complaint against the professional conduct’ of Insite. He then stated as follows: (a) he had left ‘the Dammerers project’ to be handled by his co-director, Mr Lander; (b) he had not been ‘aware of a fraud’ in relation to the Development Consent; (c) he did not appreciate ‘the gravity of this matter’ until he had recently been interviewed about it at Chatswood Police Station; (d) he did not understand why he had not been told earlier about the police investigation, with which he was now co-operating; (e) to his knowledge, Insite had not produced any ‘fraudulent Notice of Determination’; (f) he had ‘read the matter’ and would provide a response to the Board; (g) he believed that the Board should not make a decision until after the police investigation had been completed; (h) he noted that ‘ICAC has not been fully briefed on the matter’; and (i) Insite could show that it had carried out the work requested by Mr and Ms Dammerer and would defend itself vigorously against their allegations. The letter concluded by requesting the Registrar to send ‘all previous correspondence’ to Insite’s office in York Street, Sydney or to what he called his ‘personal address’ in Oyster Bay.

35 Also on 8 May 2009, the Registrar wrote back to Mr Goriaux at Insite’s address in York Street. She acknowledged his letter of the same day, enclosed copies of previous correspondence as requested and indicated that any submission that he wished to make pursuant to his ‘stated intention’ should reach her by 5 June 2009.

36 On 9 June 2009, Mr Goriaux, or a person purporting to be him, sent an email to the Registrar in the following terms:-

The submission is being printed for delivery to you. Please note that Insite were not the Architects employed by the Dammerers. The company that did the work was Atelier K Pty Ltd.

37 On 2 July 2009, the Registrar sent by email a letter to Mr Goriaux acknowledging his email of 9 June 2009, noting that the submission mentioned in it had not reached her and indicating that the Board would now adopt the course of action set out in the Determination. The letter concluded by saying that if Mr Goriaux wished to discuss the matter he should contact her immediately.

38 Having considered Mr Goriaux’s letter of 8 May 2009, the Board resolved to confirm its decision to refer the matter to the Tribunal.

39 On 30 July 2009, the Board filed its Application for Disciplinary Finding and Orders against Mr Goriaux, together with an affidavit as to jurisdiction sworn by the Registrar.

40 On 14 October 2009, in circumstances outlined below, the Board filed an Amended Application. In outline, the alleged conduct on which its case against Mr Goriaux was founded was as follows: (a) Mr Goriaux was the ‘nominated architect’ for Insite; (b) Mr Lander, a director of Insite, agreed to provide architectural services to Mr and Ms Dammerer; (c) Mr Lander falsely told them that the Council had approved their development application and gave them the Development Consent, which was a forgery; (d) on the basis of Mr Lander’s representations that Insite had performed ‘a range of architectural services’ for them, they paid to Insite fees totalling $26,5000.

41 The Amended Application sought a disciplinary finding against Mr Goriaux and consequential orders as follows: (1) an order under section 47 of the Act; (2) an order for costs pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’); and (3) such further or other order as the Tribunal deemed appropriate.

42 During the hearing, Mr Griffin of counsel, appearing for the Board, informed us that the Board had not carried out any investigation of Insite. He indicated also that Mr and Ms Dammerer had not sought any order from the Board (under section 43(4)(b) of the Act) or from the Tribunal (under section 47(2)(b)) requiring Mr Goriaux to repay to them any part of the fees that they had paid to Insite. He added that as far as the Board was aware, they had instituted their own proceedings to recover these fees and that they had been compelled to sell the Property without the benefit of the Council’s approval of their plans to develop it.

Steps taken to notify Mr Goriaux of these proceedings

43 On 31 July 2009, the Registrar of the Tribunal posted to Mr Goriaux at his ‘personal address’ in Oyster Bay a Notice of Application, as required by section 72 of the ADT Act, and a copy of the Board’s Application. The Notice stated that a directions hearing in the matter would take place at the Tribunal at 10 a.m. on 1 September 2009 and gave details of the Tribunal’s location.

44 The Board also took the following steps to serve a copy of its Application on Mr Goriaux:-

1. On 4 August 2009, a process server attempted service at the address in Oyster Bay. A person identifying herself as his wife said that he was not there and that he had left instructions for all documents to be served at a work address in Kent Street, Sydney.

2. On 7 August 2009, a process server attempted service at the address in York Street, Sydney that Mr Goriaux had given as Insite’s address in his letter of 8 May 2009 to the Registrar. A person identifying herself as a member of the staff of a firm called ‘Impress Design’ said that he leased a room in the building but was not there often.

3. On 11 August 2009, a process server attempted service at the address in Kent Street, Sydney. He was told that Mr Goriaux did not live in the single-storey residential building at this address.

4. On 25 August 2009, the Registrar sent the Application, together with copies of affidavits outlining these prior attempts at service and a covering letter, by pre-paid post to both the ‘personal address’ in Oyster Bay and the address in York Street. The covering letter gave details of the forthcoming directions hearing on 1 September 2009.

45 On 1 September 2009, a directions hearing took place, at which Mr Goriaux did not appear. The matter was adjourned to a further directions hearing on 29 September 2009. At this hearing, conducted by Deputy President Hennessy, there was also no appearance by Mr Goriaux. The hearing of the Board’s Application was fixed for 20 November 2009.

46 On 29 September 2009, the Registrar of the Tribunal wrote to Mr Goriaux at his personal address at Oyster Bay advising that the Board’s Application had been ‘adjourned for hearing’ on Friday 20 November 2009.

47 On 2 October 2009, at the request of Deputy President Hennessy, the Registrar wrote to Mr Patrick Griffin, counsel for the Board, asking (a) that the Board file an Amended Application, outlining and particularising the alleged conduct of Mr Goriaux on which it relied and (b) that this Amended Application be served on Mr Goriaux no later than 16 October 2009. The letter stated that the purpose of this request to Mr Griffin was to ensure that Mr Goriaux had adequate notice of the case against him.

48 On 14 October 2009, the Board filed an Amended Application in accordance with the direction by Deputy President Hennessy.

49 The Deputy Registrar of the Board, Ms Mae Cruz, instructed a process server to serve a copy of the Amended Application, together with a document headed ‘Notice to the Respondent’, on Mr Goriaux at his personal address at Oyster Bay. On 21 October 2009, the process server advised Ms Cruz that on attending this address earlier on that day he had been told by a female occupant that all documents for Mr Goriaux should be sent to the previously notified address in York Street, Sydney.

50 On 22 October 2009, the Deputy Registrar of the Board sent a copy of these two documents, together with a covering letter, to Mr Goriaux at the address in York Street. The covering letter outlined what had been said to the process server at Oyster Bay and stated that ‘the Direction Hearing in this matter’ (sic) was set down for 20 November 2009 at the Tribunal (for which the address was supplied).

51 Section 138 of the ADT Act provides as follows regarding service of documents:-

(1) Service of documents and giving of notices

For the purposes of this Act, a notice or document may be given to a person (or a notice or document may be served on a person):

(a) in the case of a natural person--by:

(i) delivering it to the person personally, or

(ii) leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document,...

(3) Other means of service

Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.

52 The foregoing account shows that three notices or letters referring to these proceedings and providing details of a forthcoming hearing have been posted to Mr Goriaux at the address in York Street which he identified in his letter of 8 May 2009 as his business address. These are the Notice dated 31 July 2009 from the Registrar of the Tribunal, the letter dated 25 August 2009 from the Registrar of the Board and the letter dated 22 October 2009 from the Deputy Registrar of the Board. In addition, the first two of these pieces of correspondence, plus also the letter dated 29 September 2009 from the Registrar of the Tribunal, were posted to Mr Goriaux at the address in Oyster Bay which he identified as his personal address. In every instance except the last, a copy of the Board’s Application or Amended Application accompanied the letter or notice.

53 Accordingly, service of all of these documents on Mr Goriaux was effected in a manner complying with section 138(1)(a)(ii) of the ADT Act.

54 Having regard to these matters and to the content of a number of letters previously sent to Mr Goriaux by the Registrar, we are satisfied that, although the Deputy Registrar’s letter of 22 October 2009 should not have described the forthcoming hearing as a directions hearing, Mr Goriaux had adequate notice of the nature of these proceedings, of the case being brought against him and of the fact that a hearing of the Amended Application was set down for 20 November 2009. He nevertheless failed to appear at this hearing (as also at the directions hearing on 1 September 2009) and he made no apparent attempt to contact the Board or the Tribunal about the proceedings.

55 For these reasons, we ruled at the commencement of the hearing on 20 November 2009 that the Board should be permitted to tender its evidence and make submissions to us in support of the Amended Application.

Relevant legislation

56 Section 33(2) of the Act states that a complaint about an architect may be made and dealt with even though the architect has ceased to be registered.

57 Section 39 requires the Board, subject to certain exceptions, to conduct an investigation into any complaint made to it.

58 Under section 43(3), if the Board after completing this investigation is satisfied that the architect is guilty of professional misconduct, it must apply to the Tribunal for a disciplinary finding against the architect.

59 Section 47 states:-

47 Functions of Tribunal in applications for disciplinary findings

(1) If any application is made under this Division for a disciplinary finding in relation to an architect, the Tribunal is to determine whether or not the architect is guilty of unsatisfactory professional conduct or professional misconduct.

(2) If the Tribunal finds that the architect is guilty of unsatisfactory professional conduct, the Tribunal may make any one or more of the following decisions:

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect’s practice of architecture as it considers appropriate be imposed on the architect’s registration,

(d) order that the person complete any educational course or courses specified by the Tribunal,

(e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 200 penalty units.

(3) If the Tribunal finds that the architect is guilty of professional misconduct, the Tribunal may (in addition to any decision made under subsection (2)):

(a) order the suspension of the architect’s registration for such period as the Tribunal thinks fit, or

(b) order the cancellation of the architect’s registration.

(4) The Tribunal is to dismiss an application under this section if it finds that the architect is not guilty of unsatisfactory professional conduct or professional misconduct.

(5) If the Tribunal orders the cancellation of the architect’s registration, it may also order that the person cannot apply to be re-registered within such period (including the person’s lifetime) as may be specified by the Tribunal.

(6) If an architect’s registration is suspended by the Tribunal, the Registrar is to note in the Register the suspension and its date and cause.

(7) If the architect is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate.

60 Section 32 contains the following definitions:-

professional misconduct means:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect’s registration, or

(b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act.

unsatisfactory professional conduct means any of the following:

(a) any contravention by the architect of the conditions of the architect’s registration,

(b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7,

(c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court,

(d) any failure without reasonable excuse by the architect to properly supervise the provision of architectural services by an architect corporation or architect firm while the architect is a nominated architect responsible for the provision of those services,

(e) any failure by the architect to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures) Act 2002,

(f) any contravention by the architect of this Act or the regulations,

(g) any conduct of the architect that demonstrates that the architect is not a fit and proper person to be registered as an architect,

(h) any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture,

(i) any other improper or unethical conduct of the architect in the course of the practice of architecture,

(j) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act.

61 Section 17 states:-

17 Full registration as architect

(1) An individual is entitled to be registered as an architect if:

(a) the Board is satisfied that the individual is of good fame and character, and

(b) the individual has the necessary qualifications for registration as an architect, and

(c) the Board is satisfied that the individual has acquired such practical experience required by the Board as a prerequisite for entry to the examination referred to in paragraph (d), and

(d) the individual has, to the satisfaction of the Board, passed an examination in architectural practice arranged or approved by the Board.

(2) Registration under this section is full registration.

(3) An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act.

62 Section 48 empowers the Tribunal to award costs under section 88 of the ADT Act in respect of proceedings commenced by a disciplinary application.

63 Section 88 of the ADT Act states, so far as relevant:-

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:...

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

The Board’s submissions

64 The submissions made to us by counsel for the Board, Mr Griffin, were as follows.

65 In disciplinary proceedings such as these, the Tribunal had to be ‘affirmatively’ or ‘reasonably’ satisfied of the matters alleged against the respondent, in accordance with principles deriving from the judgment of Dixon J in the well-known case of Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336 at 360-363 and recently discussed by the Court of Criminal Appeal in Gianoutsos v Glykis [2006] NSWCCA 137 at [47 – 51].

66 Having regard particularly to this requirement, the evidence adduced by the Board was insufficient to support an inference that Mr Goriaux played any role in, or even had any knowledge at the time concerning, the dealings between Insite and Mr and Ms Dammerer and the preparation of the forged Development Consent.

67 The following important inference did however arise from the evidence: after Mr Lakos, in his two letters dated 8 February 2008, had provided Mr Goriaux with a full account of the fraudulent behaviour of Mr Lander alleged by Mr and Ms Dammerer, Mr Goriaux made no attempt to investigate the matter, to discuss it with them, or even to suggest that if their allegations were correct the fees that they had paid would be at least partly refunded. Since he was a director of Insite and one of its three shareholders at the time, he derived financial benefit from its receipt of these fees. But because he was the nominated architect for Insite and therefore the person responsible under the Act for the architectural services that it provided to its clients, he had a duty to ensure that if, as alleged by Mr and Ms Dammerer, these fees had been improperly obtained they were duly refunded. He did not attend to the performance of this duty, but simply allowed his registration, and therefore his status as the nominated architect, to come to an end.

68 This inference of complete inaction by Mr Goriaux should be drawn because Mr Goriaux, despite having numerous opportunities to describe his involvement in the matter, did not claim to have taken any such remedial action and did not put forward any plausible explanation for his failure to act.

69 Without reasonable excuse, Mr Goriaux failed on three occasions to respond to the allegations contained in the Complaint, despite being required to do so by the Board in the course of its investigation. His failure on the third occasion occurred even though the Board drew his attention to the consequences of non-compliance.

70 Furthermore, the two responses that Mr Goriaux did provide to letters from the Board contained statements that were both palpably false and known by him to be false. His claim, in his letter of 8 May 2009, that he had not been ‘aware of any fraud’ in relation to the Development Consent and had not been told of the police investigation was clearly a lie because he had been informed of both these matters in the letter sent to him by Mr Lakos on 8 February 2008 (to which, it will be recalled, a copy of Mr Lakos’s letter of the same date to Mr Lander was attached). Mr Goriaux’s claim in his email of 9 June 2009 that ‘the company that did the work was Atelier K Pty Ltd’ was not substantiated by any evidence and was totally contradicted by the account of events, verified by Mr Dammerer and supported by copies of relevant documents, that the Complaint contained.

71 The Board’s claim that these aspects of Mr Goriaux’s behaviour required the Tribunal to make a finding of professional misconduct was based on paragraph (d) (this being ‘the primary ground’) and paragraphs (c) and (i) of the definition of unsatisfactory professional conduct in section 32 of the Act, and on paragraph (a) of the definition of professional misconduct. Mr Goriaux had failed without reasonable excuse to supervise properly the provision of architectural services by Insite, he had failed without reasonable excuse to comply with directions by the Board and he had engaged in ‘other improper or unethical conduct’ in the course of practising architecture. This behaviour was ‘unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect’s registration’ and therefore constituted professional misconduct.

72 Because Mr Goriaux was not currently registered as an architect, the case was governed by section 47(7) of the Act. Exercising the power conferred by that subsection, the Tribunal should order that he should not be permitted to apply for registration before a period of time specified by it had elapsed. In view of the gravity of his misconduct, this period should not be less than two years. In addition, the Tribunal should consider requiring that before he applied for re-registration he should fulfil one or more specified conditions: for example, providing a response to the Complaint and undertaking a course in professional ethics approved by the Board. Alternatively, the Tribunal should leave it to the Board to impose conditions of this nature pursuant to section 17(3).

73 Mr Goriaux should also be ordered to pay the costs of these proceedings under section 88(1A) of the ADT Act. An order to this effect would satisfy the statutory criterion of ‘fairness’, because by virtue of section 43(3) of the Act the Board was under a duty to institute the proceedings and he did not assist their resolution in any way (for example, by conceding that the allegations made against him were true or that he had indeed been guilty of professional misconduct or unsatisfactory professional conduct).

Our conclusions

74 For the reasons advanced by Mr Griffin on behalf of the Board, we make the findings of fact for which he argued. These are set out above at [67], [69] and [70].

75 We also agree with his submission that the first of these findings, set out at [67], provides a basis for upholding the Board’s claim in so far as it is based on paragraph (d) of the definition of unsatisfactory professional conduct in section 32 of the Act. It will be recalled that Mr Griffin described this as the ‘principal ground’ relied on by the Board. The factual allegations supporting this finding were, in our opinion, sufficiently stated in the Amended Application.

76 The conduct covered by this finding includes the failure by Mr Goriaux, despite his role as the architect responsible for the provision of architectural services by Insite, to ascertain whether it was proper for Insite, being a corporation in which he was a director and a one-third shareholder, to retain the fees, amounting to $26,500, that Mr and Ms Dammerer had paid. He did nothing to achieve this aim even though Mr Lakos’s letters dated 8 February 2008 gave him strong grounds for suspecting that Mr Lander and/or some other employee(s) of Insite had secured the payment of these fees through fraud.

77 In our judgment, this failure by Mr Goriaux also constitutes ‘improper or unethical conduct’ under paragraph (i) of the definition of unsatisfactory professional conduct.

78 We also agree with Mr Griffin that the findings set out above at [69] (non-compliance with directions from the Board) and at [70] (making untruthful statements in communications to the Board) fall within the scope of paragraphs (c) and (i) respectively.

79 In our opinion, however, these findings cannot furnish the basis for any formal rulings of unsatisfactory professional conduct under these provisions. Our reason is that these aspects of Mr Goriaux’s conduct were not included in the allegations made and particularised in the Amended Application. Because he did not appear at the hearing, he was never put on notice that they were components of the Board’s claim of professional misconduct. At most, their role in these proceedings can be to counter any inference that the improper conduct on his part that has been both alleged and found proven was wholly untypical of him.

80 The improper conduct by Mr Goriaux upon which we do base our finding of unsatisfactory professional misconduct under paragraphs (d) and (i) of the definition of that phrase in section 32 was, in our opinion, ‘unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect’s registration’. We therefore conclude that it constituted professional misconduct, under paragraph (a) of the definition of that phrase in section 32.

81 We turn now to the question of the order or orders that are appropriate in consequence of our conclusion that Mr Goriaux was guilty of professional misconduct.

82 We agree with Mr Griffin that this is an appropriate case for the exercise of the Tribunal’s powers under section 47(7) of the Act. If Mr Goriaux were currently registered, we would order that his professional misconduct warranted at least the suspension of his registration for a significant period.

83 As proposed by the Board, we order that Mr Goriaux should not be permitted to apply for re-registration as an architect until a period of two years from the date of this decision has elapsed.

84 We have given consideration to the Board’s further proposal that before making any application for re-registration Mr Goriaux should be required to fulfil one or more specified conditions, such as providing a response to the Complaint and undertaking a course in professional ethics approved by the Board.

85 A broadly expressed requirement to the effect that Mr Goriaux should ‘respond to the Complaint’ would, in our opinion, create problems of interpretation. But we see merit in the proposal that he should be required to explain his behaviour once the matters set out in the Complaint had come to his attention. An explanation would assist the Board to a significant extent in deciding whether, at time of any application for re-registration after the stipulated period of two years, he satisfied the requirement in section 17(1)(a) of the Act that he should be a person of good fame and character.

86 We accordingly attach the following condition to any application for re-registration by Mr Goriaux. He must provide to the Board an explanation of the following matters: (a) the action, if any, that he took to investigate the allegations made about Insite's behaviour contained in Mr Lakos’s letter of 8 February 2008 to Mr Lander, once he had received a copy of that letter; (b) the action, if any, that he took to make appropriate reimbursement to Mr and Ms Dammerer; and (c) if he did act in either of these ways, the reasons why he did not advise the Board accordingly once he had received a copy of the Complaint.

87 On the other hand, a condition that Mr Goriaux should undertake a course in professional ethics approved by the Board is best left for the Board to impose, if it thinks fit, under section 17(3). A factor underlying this conclusion is that because Mr Goriaux did not appear in these proceedings we have not had the benefit of any observations that he or his representative might wish to make on the specific content of any such condition.

88 Finally, we accede to the Board’s application for costs. We agree with Mr Griffin’s submission that pursuant to subparagraph (e) of section 88(1A) of the ADT Act we should take particular account of the fact that the Board was under a statutory obligation to institute the proceedings. We also take account of the ‘nature’ of these proceedings under subparagraph (d). In professional disciplinary proceedings, the disciplinary authority instituting them, if successful, is commonly awarded its costs.

89 We accord less weight in this context to Mr Griffin’s argument that a respondent to professional disciplinary proceedings who is minded not to contest them is under a duty to assist the proceedings by admitting the allegations set out in the application and the associated claim(s) of professional misconduct and/or unsatisfactory professional misconduct. Our reason is that the court or tribunal hearing the case must reach its own conclusions on these matters. It should not rely solely on admissions, which can assist only to a limited degree.

90 Our order regarding costs is that Mr Goriaux should pay the Board’s costs, as agreed or as assessed under the Legal Profession Act 2004.