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Board of Architects of Queensland v Perry[2024] QCAT 299

Board of Architects of Queensland v Perry[2024] QCAT 299

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Board of Architects of Queensland v Perry [2024] QCAT 299

PARTIES:

Board of Architects of queensland

(applicant)

v

Mark Perry

(respondent)

APPLICATION NO/S:

OCR342-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

  1. Mr Mark Perry is reprimanded pursuant to section 130(3)(a) of the Architects Act 2002 (Qld).
  2. The penalty of $5,000 is imposed upon Mr Mark Perry payable to the Board of Architects of Queensland within six months, being by 16 January 2025, pursuant to section 130(2) of the Architects Act 2002 (Qld).
  3. Mr Mark Perry is to pay to the Board of Architects of Queensland $17,875.00 towards the costs of the investigation and legal costs of bringing the proceeding within twelve months, being by 16 July 2025, pursuant to section 130(3)(d) of the Architects Act 2002 (Qld); and
  4. If Mr Mark Perry fails to make the payments in orders (2) & (3) above, Mr Perry’s registration will be suspended pursuant to section 130(4) & (5) of the Architecture Act 2002 (Qld), until such time as any outstanding amount is paid.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – REGISTERED ARCHITECT – UNSATISFACTORY PROFESSIONAL CONDUCT – PENALTY – whether ‘unsatisfactory professional conduct’ – whether discipline ground established – appropriate penalty

Architect Act 2002 (Qld), s 3, s 36, s 73, s 77, s 80, s 108, s 126, s 128, s 130

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, 102

Registrar of Architectural Board of South Australia Chwalis [2023] SACAT 7

Board of Professional Engineers of Queensland v Moodie [2015] QCAT127

Nanfredini & McCeaw v NSW Architects registration Board [2021] NSW CATO 116

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Caruana, D instructed by HopgoodGanim Lawyers

Respondent:

Lillas & Loel Lawyers

REASONS FOR DECISION

  1. [1]
    Mr Perry is a registered architect and has been so for over 30 years since 7 June 1990.[1]  He trades under the name Black Ink Architecture, from a premise in Helensvale, Qld.
  2. [2]
    On 16 December 2022 the Board of Architects of Queensland (‘the Board’) applied to the Tribunal to conduct a proceeding to determine whether a disciplinary ground is established against Mr Mark Perry, a registered architect, in respect of his dealings with the company ISA Architects Pty Ltd (‘ISA Architects’) also known as ISA Collective Pty Ltd (‘ISA Collective’) and its Director Mr Imran Ali (‘Mr Ali’).
  3. [3]
    The Board is established under the Architects Act 2002 (Qld) (‘the Act’).[2]
  4. [4]
    The main object of the Act is to protect the public by ensuring architectural services of an architect are provided in a professional and competent way, maintain public confidence in the profession and uphold the standards of practice of professional Architects.[3]
  5. [5]
    The Board’s functions include the conduct of investigations about the professional conduct of registered architects.[4]
  6. [6]
    In this matter the Board alleges that the facts disclosed that Mr Perry’s conduct constitutes unsatisfactory professional conduct[5] in that he engaged in conduct that was:[6]
    1. of a lesser standard than that which might reasonably be expected of an architect by the public or his professional peers; and/or
    2. demonstrates incompetence or lack of adequate knowledge, skill, judgement or care in the practice of architecting and/or engaged in misconduct; and/or
    3. engaged in misconduct in a professional respect; and/or
    4. engaged in improper or unethical conduct.
  7. [7]
    The parties have filed a Statement of Agreed Facts, and each filed submissions on sanction. Notwithstanding the Agreed Statement of Facts, the Tribunal must decide whether there are grounds for taking disciplinary action and if so, what is the appropriate penalty.
  8. [8]
    Directions were made by the Tribunal on 10 October 2023 and confirmed on 13 May 2024 for the application to be determined on the papers without an oral hearing. This is the decision in the matter.

Legislative Provisions

  1. [9]
    Section 73(2)(a) of the Act empowers the Board to start disciplinary proceedings against an architect. Section 126 of the Act provides jurisdiction for the Tribunal to decide whether a discipline ground is established.
  2. [10]
    Section 108 of the Act provides that the Board must make a code of practice to provide guidance to architects as to appropriate professional conduct or practice. Section 128 of the Act states that if the Tribunal is making a decision about whether the architect has behaved in a way that constitutes unsatisfactory professional conduct or practice, the Tribunal must have regard to the approved code of practice.
  3. [11]
    Section 36 of the Act provides grounds for disciplining an architect. Section 36(a) is the relevant provision in relation to this matter, which states: 

36Grounds for disciplining a registered professional engineer.

Each of the following is a ground (a disciplinary ground) for disciplining an architect—

  1. The engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct.
  1. [12]
    Schedule 2 of the Act defines ‘unsatisfactory professional conduct’:

Unsatisfactory professional conduct, for an architect, includes the following—

  1. conduct that is of a lesser standard than that which might reasonably be expected of the architect by the public or the architect’s professional peers;
  2. conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of architecture;
  3. misconduct in a professional respect;
  4. fraudulent or dishonest behaviour in the practice of architecture;
  5. other improper or unethical conduct.
  1. [13]
    Clause 8(e) of the current Code of Practise (‘the Code’) defines ‘supervision’ to mean:

the architect supervising and approving services (the supervising architect):

  1. directs the supervised person in carrying out the service;
  2. oversees the carrying out of the service by the supervised person; and
  3. evaluates the carrying out of the service by the supervised person.
  1. [14]
    Clause 15 of the Code states that ‘an architect must not sign as checked, approved or supervised, any drawings or other documents which the architect has not checked, approved or supervised’. Clause 16 states that

if the architect is supervising and approving services being undertaken by a non – registered person as a part of a project, the architect (the supervising architect) must ensure that:

  1. the non-register person is supervised by the supervising architect; and
  1. the architect takes full responsibility for the service.
  1. [15]
    Clause 17 of the Code states

An architect must not permit the architect’s name to be used in relation to any service, documents or publication to misleadingly imply authorship of, responsibility for or agreement with the content or form of the services, document or publication.

  1. [16]
    Section 130 of the Act provides that the Tribunal may make various orders if it decides that a disciplinary ground is established:

130Orders relating to architect

  1. If the tribunal decides that a disciplinary ground is established, the Tribunal may—
  1. make 1 or more of the orders mentioned in subsections (2) to (4); or
  1. take no action against the architect.
  1. The tribunal may order the architect to pay a stated amount of not more than the equivalent of 200 penalty units.
  1. Also, the Tribunal may make an order—
  1. reprimanding the architect; or
  1. cancelling the architect’s registration; or
  1. disqualifying, indefinitely or for a stated period, the architect from obtaining registration as an architect; or
  1. requiring the architect to pay an amount to the board as compensation for all or part of the reasonable costs of an investigation by the board about the matter the subject of the proceeding, including the costs of preparing for the proceeding.
  1. An order for payment of an amount under subsection (2) or (3)(d) may direct that, if the architect does not pay the amount within the period stated in the order, the architect’s registration be suspended until the amount is paid.

…

Agreed Fact

  1. [17]
    There is a Statement of Agreed Facts which has been filed in the proceedings on 8 November 2023.
  2. [18]
    All parties agree that Mr Perry is a registered architect and he engaged in unsatisfactory professional conduct in two aspects, namely:
    1. He signed a Form 1, which was given to the Board representing that he was the supervising architect for ISA Architects, when he did not supervise that company or oversee the work it produced. He allowed ISA Collective (formally known as ISA Architects) to hold him out as the supervising architect when he was not supervising the work produced by the company or the Director Mr Ali. The Form 1 also had an incorrect address, being the address of Mr Perry’s architecture firm and not that of ISA Architects.
    2. He signed off as the supervisor of work produced by Mr Ali, the Director of ISA Architects for the purpose of Mr Ali submitting an application for registration as an architect with the Board, when he did not in fact supervise the performance of the work he signed off on.

Discussion as to disciplinary grounds

  1. [19]
    There are significant concerns as to consumer protection and public safety involved in allowing an unregistered person to complete architect work. Members of the public rely on professional architects for their skill and experience. Where conduct is inadequate or demonstrates a lack of adequate knowledge, skill, judgement, or care, it can have serious consequences on the consumer who engaged and relied upon the architect’s expertise.
  2. [20]
    On the basis of the material filed in the proceedings and the Statement of Agreed Facts, the Tribunal is satisfied that:
    1. Mr Perry was, at all material times, a registered architect and is subject to the requirements of the Act and the Code.
    2. Mr Ali, the Director of ISA Architects and ISA Collective was not a qualified architect at all material times and did not engage or employ any person who was a registered architect.
    3. On or about 12 February 2019, Mr Ali asked Mr Perry to act as his supervisor, with respect to architectural work performed by Mr Ali and ISA Architects, until Mr Ali was successful in obtaining registration as an architect.
    4. Mr Ali provided Mr Perry with a partially completed ‘notice by business of use of an architect’ (‘Form 1’). Mr Perry completed and signed the Form 1, including writing the address of his business, Black Ink Architecture, instead of the address of Mr Ali’s business, ISA Architects. This form was provided to the Board by ISA Architects falsely representing that the respondent would be taking full professional responsibility for all architectural services provided by ISA Architects, including performing and/or supervising all architectural services on behalf of ISA Architects, from the premises of Black Ink Architecture at Helensvale.
    5. Mr Perry did not undertake any of the responsibilities of the nominated responsible architect for ISA Architects. ISA Architects never performed services from Black Ink Architecture’s premise in Helensvale and Mr Perry never provided any architectural services on behalf of ISA Architects, from the address of Black Ink Architects, the address of ISA Architects or any other place. Mr Perry also did not undertake formal supervision of all non-architectural staff, including Mr Ali.
    6. During a period of almost three years from February 2019 to January 2022 ISA Architects carried out services that were held out as being architectural services from its own premises, without those services being carried out, or supervised, by Mr Perry or any other registered architect, in breach of the Act.
    7. The Form 1 signed by Mr Perry allowed this conduct to be concealed from the Board and concealed from the public, as ISA Architects published on its website that the nominated responsible architect of the services that it provided was Mr Perry. This conduct breaches clauses 10(b), 15, 16, 17, 40 and 41.
    8. On 1 February 2021, Mr Ali applied to the Board for registration as an architect. Mr Ali included in the application that he was employed by Black Ink Architecture and submitted a logbook of more than 3,300 hours of supervised experience gained under the supervision of an architect together with a corresponding ‘Statement of Practical Experience’ describing his supervised architectural experience in relation to several highlighted projects that he had performed prior to his application being made. Each page of the Statement of Practical Experience was signed off by Mr Perry as the supervising architect.
    9. The Statement of Practical Experience signed by Mr Perry contained incorrect and/or false and misleading information, namely that Mr Ali was an employee of Black Ink Architecture, that he was supervised by Mr Perry and that Black Ink Architecture was involved in the projects detailed in the Statement of Practical Experience.
    10. Mr Perry accepts that, whilst he engaged in some mentoring and support of Mr Ali, he did not, at any time, supervise any of the more than 3,300 hours of architectural work logged by Mr Ali in his logbook and described by Mr Ali in the Statement of Practical Experience.
    11. Mr Perry failed to ensure the truth of the Statement of Practical Experience before signing off on it. In doing so, he accepts that he breached Clause 15 of the Code of Practice.
  3. [21]
    Based on those findings of fact and the joint submissions, I find that Mr Perry’s conduct in relation to each of these two incidents,[7] amounts to unsatisfactory professional conduct, being conduct that is of a lesser standard than that which might reasonably be expected of a registered professional architect by the public or his professional peers, and conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgement, or care in the practice of architecture. Accordingly, a disciplinary ground has been established for each of the two allegations.

Penalty submissions

  1. [22]
    The parties do not agree on penalty.
  2. [23]
    The Board submit that Mr Perry should be reprimanded and fined $20,000 (payable to the board within 2 months) and should pay costs to the Board of $40,000, which was reduced from an initial estimate of $65,000 to account for Mr Perry’s financial position (payable to the board within 3 months). The Board also submit that there should be a guillotine order that if the payments are not made within the times specified in the order, Mr Perry’s registration should be suspended until such time as the amount is paid.
  3. [24]
    The Board confirmed that at the time of the signing of the Form 1, a single penalty unit was worth $130.55. At the time of the signing of the Statement of Practical Experience, a single penalty unit was worth $133.45.[8] Accordingly, the maximum financial penalty that can be imposed for each breach is:
    1. false Form 1 – a fine of $26,110; and
    2. false Statement of Practical Experience – a fine of $26,690.[9]
  4. [25]
    Mr Perry submits that the level of the breach of his conduct is at the lowest end of the spectrum. He submits that he is not a wealthy man and has already incurred his own legal fees estimated to be $8,000 which has already caused him significant hardship and provides significant deterrence.
  5. [26]
    Mr Perry’s submission are not clear on whether he supports a reprimand or a fine, and if a fine is imposed what the amount or range should be. He does however provide comparable cases where the fines were significantly lower amounts of $6,000, $1,000 and $550.00. Mr Perry does state that any fine or costs order would need to be subject to a payment plan with the applicant.
  6. [27]
    Mr Perry disputes any costs of the Board should be paid by him given the starting point is each party bear their own costs and it is only if it is in the interest of justice to do, so can costs be ordered. Mr Perry also disputes that a guillotine order should be made requiring his licence to be suspended if payment is not made, as requested by the applicant.  Mr Perry states that this would unnecessarily prejudice him and would ‘very potentially result in him being unable to earn an income’.[10]

Discussion as to Penalty

  1. [28]
    The objects of the Act as set out in section 3 of the Act emphasises the protection of the public, the maintenance of public confidence in the professional standards of registered architects, and the upholding of the standards of registered architects. These objectives are all protective in focus. Accordingly, it is appropriate that the deterrent effect of any orders or penalty should tend to uphold the objects of the Act.
  2. [29]
    This is in line with the decision in Registrar of the Architectural Board of South Australia v Chwalisz,[11] where the Members stated:

Disciplinary sanctions assist in upholding public trust and confidence in the profession, bringing home to the practitioner the seriousness of the conduct, deterring the practitioner from any future departures from appropriate standards, deterring other members of the profession from acting in a similar way, and imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.

  1. [30]
    This needs to be balanced against the guidance expressed in other disciplinary decisions involving the discipline of other professionals including engineers, teachers and veterinary surgeons, that states a ‘penalty should have a deterrent effect without being oppressive’.
  2. [31]
    Mr Perry’s encouraging or allowing of Mr Ali to conduct work as an architect, when he was not in fact a qualified architect, and his support for Mr Ali’s application to be an architect despite not properly supervising his work, has the capacity, not only to compromise the safety of the public but also to seriously compromise the public confidence in architects and potentially pose risk or harm to others.
  3. [32]
    While fortunately no harm to the public occurred, given the risk to the public and the risk to the public perception and trust in architects, both personal and general deterrence is an important consideration.
  4. [33]
    The Tribunal does not accept Mr Perry’s submissions that this is the lowest level offending and that all the respondent did was write the wrong address in a Form 1 and signed a Statement of Practical Experience without taking the time to carefully review it.
  5. [34]
    Mr Perry did more than this as, in completing and signing the Form 1, he was indicating that he would take full professional responsibility for architectural work produced by ISA Architects and to either carry out all the architectural work himself or to closely supervise all of the architectural work produced by the company. He failed to do this as he did not provide any architecture service for ISA Architects despite being advertised as the supervising architect and he did not properly supervise Mr Ali over a period of three years, resulting in a number of breaches of the Code of Practice.
  6. [35]
    Then, when Mr Ali came to him to support his registration as an architect, he signed a Statement of Practical Experience that he either knew or ought to have known was false as it contained numerous errors and incorrect statements. This conduct shows a lack of competence, care and/or judgment from Mr Perry.
  7. [36]
    The aggravating feature of this unsatisfactory professional conduct is that:
    1. There are two district breaches. Firstly, the signing of the Form 1, which allowed ISA Architects to hold themselves out and conduct work as architects and hold Mr Perry out as the supervising architects which occurred over a significant period of time. Secondly, the signing of the Statement of Practical Experience which attempted to support Mr Ali being registered as an architect without the necessary experience and supervision.
    2. The failure to supervise the work of Mr Ali or any other staff of ISA Architects (none of whom were registered architects), exposed the public to the risk of unqualified and unsupervised persons carrying out services that were held out as architectural services. Some of the services provided by ISA Architects included designs for childcare centres, which the Board asserts not only require complex design, documentation, and superintendency skills to deliver, but also have as users, young vulnerable children who require the highest standards of health and safety design.[12]
    3. Prior to signing the Form 1 the Board had advised Mr Ali he had to cease using the word ‘architects’ in its name and advertising. As such, it was Mr Perry’s actions in completing and signing the Form 1 which allowed Mr Ali and ISA Architects to market and provide to the public, services that were held out as being architectural services which were not architectural services provided by an architect, resulting in potentially misleading consumers. This strikes at the heart of the respondent’s professional obligations regarding his acceptance of the critical role of nominated responsible architect and as supervisor to staff of ISA Architects, and failing to ensure the accuracy of documents he signs off on.
  8. [37]
    The Board asserted that the fact that Mr Perry’s actions allowed Mr Ali and ISA architects to make profit providing service they should not have provided, is an aggravating factor.[13] There is no evidence that Mr Perry benefited from any profits and therefore, this is more appropriately an aggravating factor for proceedings against Mr Ali or ISA Architects who profited where they were not entitled to, and the Tribunal does not put weight on this as an aggravating factor in relation to Mr Perry.
  9. [38]
    The mitigating factors taken into consideration are:
    1. There is no previous discipline action, despite a lengthy architecture career spanning over 30 years.
    2. There is no evidence to suggest Mr Perry profited or benefited in any way from the unsatisfactory professional conduct.
    3. There is no evidence that this is some calculated attempt to circumvent the requirement to become a registered architect. Mr Perry did provide some level of support, mentorship or supervision to Mr Ali. He did review some draft drawings and provided comments and guidance in respect of the draft drawings he was shown,[14] but the supervision was not to the extent that is required by the Code. While Mr Perry should have known better, given his extensive experience as an architect, the Tribunal accepts that Mr Perry did not calculatingly and knowingly breach his obligations under the Act and the Code, but the behaviour was more of lack of knowledge and understanding of his obligation and/or poor judgement and lack of due care and attention to what was required of him.
    4. Mr Perry co-operated with the Board during its investigation of the matter and participated in two interviews at the request of the investigator.[15]
    5. While Mr Perry initially defended the allegations of unsatisfactory professional conduct, based on the supervision or mentorship he did provide, he now understands and accepts that he has committed unsatisfactory professional conduct as identified in the agreed statement of facts and as such has demonstrated insight into his conduct.
    6. Although the respondent initially delayed the progress of the proceeding by failing to file a response to the application for a period of 8 months, since filing the response, he co-operated in the efficient disposition of these proceedings by agreeing to a statement of facts and to the decision of penalty being determined on the papers.
  10. [39]
    The Board have suggested that Mr Perry deserves less credit for his co-operation and admissions as he attempted to walk back some of his initial admissions. The Tribunal cannot support this finding on the evidence as the Board did not provide any evidence as to what was said in either of the two interviews, and the only agreed evidence is that Mr Perry co-operated with the Board and participated in two interviews at the request of the investigator.[16]
  11. [40]
    Mr Perry has raised that it is relevant to observe that during the period of the offending the world was subject to Covid lockdowns, and it was simply not possible for Mr Ali to attend at Mr Perry’s place of business and that contributed, in part, to the lack of supervision. While the impact of COVID and any lockdowns or stay at home orders in Queensland, where Mr Perry and Mr Ali are both located, may be relevant (not in the world at large) it is noted that Mr Perry was not providing ‘in person’ supervision in the 12 months before COVID occurred or in the period after lockdown or stay at home orders eased. The lockdowns also did not stop Mr Perry providing supervision over a video calling network such as Skype or Teams and keeping accurate records of the supervision, which he also did not do.
  12. [41]
    The Tribunal is satisfied that both a reprimand and a monetary penalty should be applied having regard to the nature of the behaviour and its potential consequences; and taking into account the mitigating and aggravating factors.
  13. [42]
    Having considered the various comparable cases referred to in the submissions of the Board and the respondent and the sentencing remarks in the Magistrates Court proceedings against ISA Architects, the Tribunal finds that a penalty of $5,000 should be imposed in this matter, to reflect the combined conduct in the two grounds of unsatisfactory professional conduct. While it is accepted that they are two distinct grounds, breaking different clauses of the Code and having potentially different consequences, both acts of unsatisfactory professional conduct related to the same issue of Mr Perry not providing sufficient supervision and being reckless, careless in not taking due care and attention in reviewing information in documents he signed in relation to his supervision of ISA architecture and Mr Ali. Accordingly one penalty to cover both acts of unsatisfactory professional conduct is appropriate.
  14. [43]
    While there is a difference in mitigating and aggregating factors, the overall level of offending behaviour of Mr Perry is not a dissimilar level to that in Registrar of Architectural Board of South Australia v Chwalisz,[17] and Board of Professional Engineers of Queensland v Moodie[18] which were both fines of $5,000; and the failure to supervise is for similar period of time as that in Nanfredini & McCeaw v NSW Architects registration Board.[19]
  15. [44]
    Most relevantly, the fine imposed in the proceedings against ISA Architectures was $5,000. While it is acknowledged that this was a proceeding against a company as opposed to an individual and Mr Perry should be held to a higher standard than that of the company and Mr Ali as Mr Perry is a registered architect, who should know and abide by the Code of Practice, the conduct of ISA Architectures is arguably more serious. The proceedings against ISA Architects involved 3 charges each of which had a higher maximum penalty than that which can be opposed against Mr Perry. Mr Ali and ISA Architects also financially benefited from the offending.
  16. [45]
    In relation to the Board’s request to have Mr Perry pay the costs of the investigation and proceedings, the starting point for costs is that each party must bear their own costs.[20] This power is subject to s 102(1) of the QCAT Act which provides that the Tribunal may make a costs order if the interests of justice require it.
  17. [46]
    The Board was obliged to bring the application as part of its function as the regulatory body charged with maintaining professional standards. The cost of that is contributed to by each of its members. While it is not uncommon in disciplinary proceedings brought by Boards that are funded by members to have some or all of the costs paid by the respondent, if the legislature intended for the Board to recover costs, as a right, because it is required to bring disciplinary proceedings in the Tribunal, provision for that could have been made in the Act. Such a provision being absent demonstrates that it is not a given that the Board should recover costs in each and every matter and it still has to satisfy the ‘interest of justice’ test in section 102 of the QCAT Act.
  18. [47]
    Accordingly, the question that arises here, is whether the interests of justice point so compellingly to a costs order that they overcome the strong contra-indication against costs orders in section 100.
  19. [48]
    It is noted that the Board has an important statutory function in protecting the public from the provision of unprofessional and incompetent architectural service and has a number of other functions under the Act and associated regulations in addition to conducting disciplinary proceedings. These include accreditation of tertiary level architecture courses, setting standards, conducting registration examination and auditing architects. It is also noted that the Board is a small, wholly self-funding statutory body, with the registration fees paid by architects providing the majority of the Board’s income each year.[21] In the circumstances, it is accepted that investigation and prosecution of disciplinary action can be expensive and could deplete the resources of the Board to perform its other function. In the circumstances, it is in the interest of justice that given the allegations have been proven, the offending registrant, in this case Mr Perry, should meet or at least contribute to some of the reasonable costs incurred in bringing the proceedings.
  20. [49]
    The difficulty in this matter is that the costs are not agreed on and the Board has provided very limited evidence of the details of the costs. There is an affidavit from Anita Nikolaou, the Registrar of the Board, which confirms that there was an investigation conducted by BK Investigations which cost $3,750.00 to conduct the investigation into both Mr Perry and ISA Architects/Mr Ali and accordingly, Mr Perry would be responsible for half the cost;[22] there have been legal fees and disbursements at the time of the affidavit in April equating to $54, 219.70; and a further $8,800 was expected to finalise the matter. However, there is no evidence or breakdown of these costs provided to the Tribunal, other than the statement in the affidavit. There is no cost assessment, no cost agreement and not even copies of the invoices paid by the Board. 
  21. [50]
    This makes it difficult for the Tribunal to assess the ‘reasonable costs of an investigation by the Board about the matter the subject of the proceeding, including the costs of preparing for the proceeding’. The costs appear high in light of the fact that no brief of evidence has been provided to the Tribunal as there was an agreed statement of facts and the decision as to penalty has proceeded on the papers, with the filing of submissions.[23] There was no hearing required in this matter due to the agreement to determine the issue of penalty on the papers and the only court time was two directions hearings taking no more than 15 minutes each and a one hour compulsory conference. In contrast to the $65,000 estimated costs of the Board, the respondent who was also legally represented estimate their costs at $8,000.
  22. [51]
    The Board assert that the respondent failed to attend hearings and comply with deadlines, protracting proceedings and resulting in additional or wasted costs for the Board.[24] From the evidence provided it is difficult to see why this would contribute to a vast difference in costs, noting the only clear evidence of any additional work, is the Board following up with the respondent’s lawyers on four occasions as to the delay with filing of material. There was no final hearing in this matter and the only time the respondent did not attend was at the direction hearing in March 2023. The Board, as the applicant, would have likely attended this direction hearing regardless, and the total time of the direction hearing was only 15 minutes.
  23. [52]
    In the circumstances, working the best the Tribunal can from the limited information, factoring in while there was a finding of disciplinary grounds, not all of the Board’s submissions on penalty are accepted, and taking into account the respondent’s financial circumstances, the Tribunal proposes to fix Mr Perry’s contribution to the legal costs of the proceedings at $16,000. This is double the amount of the respondent’s estimated legal costs, to account for the additional costs of bring the application including the drafting of a second set of submissions in reply, attendance at the direction hearing in March (which the respondent did not attend) and any additional work to contact the respondent’s solicitor to follow up on the respondent’s non-compliance. In addition to this the Tribunal will add half the costs of the initial investigation, as requested, being $1,875. The request for the Tribunal filing fee of $367 is not allowed as there is no evidence that this fee was paid. The application does not demonstrate any filing fee was paid and the Board have not provided any evidence, in the form of a receipt for this cost. Accordingly, the Tribunal orders that Mr Perry is to pay $17,875 to the Board towards the cost of the investigation and legal costs of bringing the proceedings.
  24. [53]
    The Tribunal agrees there should be consequences for failure to comply with the orders to pay a fine and the costs of the proceedings, and the proposed consequence of suspension of the registration until any outstanding amount is paid, is reasonable. However, the Tribunal also agreed that the timeframes to pay the financial penalty and costs needs to be reasonable and the proposal by the Board, which initially required Mr Perry to pay $85,000[25] within three months, later reduced to $60,000[26] in three months is not reasonable.
  25. [54]
    While Mr Perry provided evidence of his financial situation and indicated any payment would need to be over a payment plan, he unfortunately did not provide any information to assist the Tribunal in understanding how much he was able to pay in any given timeframe.
  26. [55]
    Taking into account the circumstance of Mr Perry’s financial situation, as best as can be without the information about what time frame he expected he would need to pay a penalty, and considering the timeframes in similar professional discipline matters,  the Tribunal orders Mr Perry shall have 6 months from the date of the decision, to pay the $5,000 penalty and a further 6 months, being a total of 12 months since the date of the decision to pay the additional $17,875 costs order.
  27. [56]
    I am satisfied that the orders which I will make are authorised by section 130 of the Act.

Orders

  1. [57]
    The Tribunal is satisfied that a disciplinary ground is established and make the following Orders: 
  1. Mr Mark Perry is reprimanded pursuant to section 130(3)(a) of the Architects Act 2002 (Qld).
  1. The penalty of $5,000 is imposed upon Mr Mark Perry payable to the Board of Architects of Queensland within six months, being by 16 January 2025, pursuant to section 130(2) of the Architects Act 2002 (Qld).
  1. Mr Mark Perry is to pay to the Board of Architects of Queensland $17,875 towards the costs of the investigation and legal costs of bringing the proceedings, within twelve months, being by 16 July 2025, pursuant to section 130(3)(d) of the Architects Act 2002 (Qld); and
  1. If Mr Mark Perry fails to make the payments in orders (2) & (3) above, Mr Perry’s registration will be suspended pursuant to section 130(4) & (5) of the Architects Act 2002 (Qld), until such time as any outstanding amount is paid.

Footnotes

[1]Form 22 Application, Annexure A [1]; Statement of Agreed Facts, filed 8 November 2023 [5].

[2]The Act, s 77(1).

[3]Ibid, s 3.

[4]Ibid, 80(1)(c).

[5]Ibid, Schedule 2.

[6]Form 22 Application; Statement of Agreed Facts, filed 8 November 2023.

[7]The signing of the Form 1 in relation to supervising ISA Architects and the signing of the Statement of Practical experience for Mr Ali.

[8]Applicant’s submissions filed 29 November 2023 [33].

[9]Ibid, [34].

[10]Respondent’s submissions on penalty filed 5 March 2024 [16].

[11][2023] SACAT 7.

[12]Applicant’s submissions on penalty filed on 29 November 2023 [29].

[13]Ibid, [42d].

[14]There is a dispute between the Board and Mr Perry about the frequency of this mentorship/supervision as to whether this was weekly supervision or less frequently. The Tribunal cannot determine this issue as no brief of evidence was ever provided by the Board, to confirm what evidence there is of the supervision, including what Mr Perry and Mr Ali told the investigator about it, and Mr Perry did not keep any records of the supervision himself.

[15]Statement of Agreed Facts filed 8 November 2023 [33].

[16]Ibid.

[17][2023] SACAT 119.

[18][2015] QCAT127. 

[19][2021] NSW CATO 116.

[20]Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), s 100.

[21]Affidavit of Anita Nikolaou affirmed 26 April 2024 [26].

[22]Ibid [27]-[28].

[23]Which includes both submissions on penalty and submissions in reply from the Board.

[24]Applicant’s reply submissions on sanction filed 29 April 2024 [22],

[25]The cost of the proposed penalty of $20,000 and the costs estimated to be $65,000.

[26]The cost of the proposed penalty of $20,000 and the reduced costs sought of $40,000.

Close

Editorial Notes

  • Published Case Name:

    Board of Architects of Queensland v Perry

  • Shortened Case Name:

    Board of Architects of Queensland v Perry

  • MNC:

    [2024] QCAT 299

  • Court:

    QCAT

  • Judge(s):

    D Brown

  • Date:

    16 Jul 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127
2 citations
Jump To
Cite 1 - [2015] QCAT 127
Cite 2 - [2015] QCAT 127
Nanfredini & McCeaw v NSW Architects registration Board [2021] NSW CATO 116
2 citations
Jump To
Cite 1 - [2021] NSW CATO 116
Cite 2 - [2021] NSW CATO 116
Registrar of Architectural Board of South Australia Chwalis [2023] SACAT 7
2 citations
Jump To
Cite 1 - [2023] SACAT 7
Cite 2 - [2023] SACAT 7
Registrar of Architectural Board of South Australia v Chwalisz [2023] SACAT 119
1 citation
Jump To
Cite 1 - [2023] SACAT 119

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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