Case Review: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4
The NSW Civil and Administrative Tribunal (NCAT) has recently affirmed a decision of the Commissioner for Fair Trading (Commissioner) to cancel a certifier's registration and disqualify him from registration for 10 years. Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali Case) is a case that exemplifies the necessity for certifiers to ensure they comply with conditions of their certificates of registration.
Background
The Applicant, Mr Orfali, applied for an NCAT review of the Commissioner's decision to cancel his registration as a registered certifier and disqualify him from registration for a period of 10 years.
Mr Orfali held two certificates of registration as a registered certifier under the Building and Development Certificates Act 2018 (NSW) (BDC Act), both in the class of "Building Surveyor – Unrestricted". Under his registrations, Mr Orfali was not authorised to exercise the function of a principal certifier for buildings other than class 1 or 10 buildings.
Between 15 May 2019 and 25 January 2023 Mr Orfali was issued with sixteen penalty notices under s 118 of the BDC Act and under s 92 of the Building Professionals Act 2005 (NSW) (now repealed).
The Commissioner's Decision
On 6 April 2023, the Commissioner's delegate decided to cancel Mr Orfali's registrations as a registered certifier and to disqualify him from being registered for a period of eight years. The delegate made those decisions on the basis of the following findings:
- Between 2018 and 2019, Mr Orfali acted as the Principal Certifying Authority for a class 2 property development at Kenthurst (Kenthurst Development), despite being accredited for class 1 and 10 buildings only; and
- Between 2021 and 2022, Mr Orfali issued 13 complying development certificates (CDCs) and 3 modified CDCs for 13 class 3 residential care developments, that did not comply with minimum fire safety standards, which he incorrectly classified as class 1a, 1b or 10a and as group home.
Mr Orfali applied to NCAT for a review of the decisions by the
Commissioner.
NCAT's Decision
NCAT found that Mr Orfali's conduct fell short of the standard of competence, diligence, and integrity that a member of the public is entitled to from an accredited certifier, as stipulated by section 45(a) of the BDC Act, and affirmed the findings of the Commissioner as follows:
1. Kenthurst Development
- Mr Orfali knowingly acted outside his accreditation by issuing a class 2 construction certificate for Kenthurst Development. The Tribunal came to this finding based upon inconsistent statements Mr Orfali made in interviews with Fair Trading officers, and evidence he gave in cross examination before NCAT, where he accepted that he had known the Kenthurst Development was a class 2 building;
- Mr Orfali made false and misleading statements in the construction certificate for a class 2 building, which was outside his accreditation; and
- Mr Orfali approved architectural plans with the construction certificate that did not demonstrate that the proposed building would comply with the relevant fire safety requirements of the BCA Act.
2. CDCs
- Mr Orfali incorrectly classified the proposed buildings for which he issued CDCs as residential care buildings. The Commissioner submitted, and the Tribunal accepted, that the developments the subject of the 13 CDCs were not properly class 1 or 10 buildings;
- Mr Orfali issued CDCs without fire safety measures required for class 3 buildings. The BCA contains more stringent fire safety requirements for class 3 buildings than the requirements applicable to class 1 buildings. In this instance there was a need for a sprinkler system and automatic smoke detection and alarm systems, and the CDCs did not contain these minimum fire safety measures;
- Mr Orfali misrepresented the total floor area of three of the developments approved via the CDC. To be classified as a class 1b building, the building was required to be less than 300 square metres, and here the Commissioner submitted and the Tribunal affirmed, that Mr Orfali found 3 developments to be 299.75, 299.6 and 299.67 square metres, when they were in fact 375.31 square metres, 378.92 square metres and 357.08 square metres respectively.
Disciplinary Action
NCAT affirmed the Commissioner's decision to disqualify Mr Orfali for 10 years, stating that Mr Orfali "presently lacks the necessary understanding and capacity to comply with the certification legislation and to carry out his functions as a registered certifier safely, competently and reliably.''
NCAT concludes in its decision that an object of the BDC Act is to "recognise that certificate work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest." To ensure this objective is achieved, a long period of disqualification was required in Mr Orfali's case.
Key Takeaways for Registered Certifiers
The decision is a reminder that registered certifiers must ensure that they are acting within the conditions of their certificate of registration, so as to determine if they can act as a principal certifier. In the Orfali case, by incorrectly classifying the class of the building, various errors occurred consequently through each certificate, including fire safety standards.
The Orfali case also demonstrates that the BDC Act requires certifiers to carry out their functions "safely, competently and reliably", and if in breach, serious disciplinary consequences including substantive sanctions may be imposed. This case provides an opportunity for registered certifiers to review their registration certificates, and ensure that they are aware of the limitations of their certificates to avoid any disciplinary action.