VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	
VCAT REFERENCE NO. Z613/2018	
CATCHWORDS	

Building Act 1993 – s 178, 179 – Building Regulations 2006 – r 1502 – inquiry into conduct of registered building surveyor (limited) and building inspector (unlimited) – application for review by VCAT of decision by Victorian Building Authority - whether Act or Regulations breached – if breached, appropriate sanctions.	

APPLICANT	Simon Mattiske	
RESPONDENT	Victorian Building Authority	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Proctor	
HEARING TYPE	Hearing	
DATE OF HEARING	9 April 2019	
DATE OF ORDER & written reasons	19 August and 16 October 2019	
CITATION	Mattiske v Victorian Building Authority (Review and Regulation) [2019] VCAT 1620	
OrderS

1	The respondent’s decision under review is varied, in that the respondent’s decision concerning breaches of the Building Act 1993 and the Building Regulations 2006 :
a)	As set out in Grounds 2, 3, 4, 7 and 8 are affirmed, as set out in the following reasons; and
b)	As set out in Ground 5 is varied, as set out in the following reasons.
2	By consent, the respondent’s decision concerning Ground 10 is set aside.
3	The respondent’s decision under review as to sanction concerning;
a)	Ground 2 is varied in that the applicant is reprimanded and fined $300 (previously not reprimanded);
b)	Ground 3 is affirmed in that the applicant is reprimanded and fined $800;
c)	Ground 4 is affirmed in that the applicant is reprimanded and fined $1,200;
d)	Ground 5 is affirmed in that the applicant is reprimanded and fined $750 (fine reduced from $1,500);
e)	Ground 7 is varied in that the applicant is reprimanded (previously not reprimanded); and
f)	Ground 8 is varied in that the applicant is reprimanded and fined $500 (previously not reprimanded).
4	Application for reserved costs against the applicant concerning failure to appear at the hearing on 8 April 2019, dismissed; not pursued by respondent.

Ian Proctor
Deputy President			
APPEARANCES:		
For Applicant:	In person with Ms J. Mattiske	
For Respondent:	Mr H. Hassan of Counsel	

Reasons
Background 
1	This case concerns events in 2015 and 2016 with Mr Mattiske registered as building practitioner in the category of Building Surveyor (limited) and Building Inspector (unlimited). 
2	In May 2013, Mr Mattiske was appointed by the Owner (the Owner) of a rural property in Belgrave South (the Site) concerning a barn built in 2013. In November 2013, he issued a certificate of final inspection.
3	In 2015, the Owner appointed him as the relevant  building surveyor concerning change of use of the barn to a habitable room and the construction of a new pergola/verandah on the Site.
4	Dispute arose between the Owner and Mr Mattiske. The Owner complaining to the Victorian Building Authority (VBA) about Mr Mattiske’s conduct.
5	On 25 June 2018, the VBA decided, under the Building Act 1993 (the Act) that grounds existed to take disciplinary action against Mr Mattiske, relevantly being:
•	Ground 2 – Mr Mattiske breached s 179(a)(1) of the Act concerning “forwarding” a copy of a building permit to the site Owner within seven days of the building permit issuing;
•	Grounds 3, 4 and 8 – Mr Mattiske breached regulation 1502 of the Building Regulations 2006 (the Regulations) by failing to perform his work in a competent manner and to a professional standard;
•	Ground 5 – Mr Mattiske breached s 230 of the Act by entering the Site without giving 24-hours notice; and
•	Ground 7 – Mr Mattiske breached s 38 of the Act by failing refusing or otherwise neglecting to issue a certificate of final inspection for veranda works until the Owner paid in fees claimed by Mr Mattiske.
6	The Board reprimanded Mr Mattiske and fined him $4,300.
7	This is the decision under review in this case.
8	In July 2018, Mr Mattiske sought review of this decision (the Decision) by VCAT, under s 186 of the Act. 

VCAT Hearing
9	On 9 April 2019, I heard evidence from the Mr Mattiske, Mr Perno (a VBA investigator) and the Owner. The parties provided documentary evidence and made written submissions, which they supplemented with oral submissions. Much of the evidence was not in dispute.
10	I reserved my decision as to whether to affirm, vary or set aside the VBA’s decision. With the parties’ consent, I foreshadowed written submissions concerning sanction, if required.
Decisions
11	On 19 August 2019, VCAT issued orders and reasons (paragraphs 13 to 95 below) concerning Mr Mattiske contravening the Act and Regulations. This decision was not published at the time, awaiting further submission, such that a single set of orders and reasons concerning this matter could be published.
12	As anticipated, the parties provided written decisions as to sanction which are discussed below. Neither party sought to make further oral submissions and a further hearing. Reasons concerning sanction, now provided, as set out from paragraph 96 below.
Role of VBA and VCAT
13	In deciding this application for review, under section 51 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT stands in the shoes of the decision-maker and re-makes the decision with reference to evidence now available and current law (including the Act as it was at the time of the conduct), exercising all relevant powers of the decision maker.
14	All reference to the Act and Regulations are references to provisions as in force at the time of the relevant conduct.
15	The purposes and objectives of the Act include regulating building work and building standards, regulating building practitioners and protecting the safety and health of people who use buildings: s 1 and a 4.
16	The Act sets out the VBA’s role, which becomes VCAT’s role on review.
17	Section 179(1) of the Act says on an inquiry into conduct, the VBA may find that a registered building practitioner has failed to comply with the Act or the Regulations.
18	As Riegler SM (as he was then) said in Cole-Sinclair v Building Practitioners Board (Review and Regulation) [2014] VCAT 902:
… s 179(1) is expressed more widely than simply being confined to conduct falling within ss (a) and (d). It also includes conduct falling within s 179(1)(b) of the Act; namely the failure to comply with the Act or the Regulations, in addition to a finding of unprofessional conduct. Although there may be overlap between conduct which contravenes reg 1502 and that which would satisfy the BPB of unprofessional conduct under s 179(1), that does not, in my view, render the regulation invalid or require the regulation to be read down. Clearly, s 179(1)(b) contemplates that the Regulations or another provision within the Act may provide a further avenue in which to make a decision under s 179(2) of Act.
19	Section 178 sets out the range decisions the VBA may make by way of sanction, including reprimand and fine, imposing a fine, imposing the condition or limitation on the person’s registration, suspension of registration and cancelling registration.
20	Hollingworth J’s comments in Rodwell v Building Practitioners Board [2009] VSC 146 [36] concerning the former Building Practitioners Board’s functions, when it conducted an inquiry under the Act, apply to VCAT as it reviews the VBA’s decision:
The Board has been given broad powers to inquire into the conduct of registered building practitioners, and to make certain findings and exercise certain powers against them. Having regard to the statutory scheme, I am satisfied that the main purpose of such an inquiry is to ensure that registered builders adhere to the high standards expected of them, primarily for the protection of the public and the reputation of the building industry itself. If the Board finds that a builder has failed to comply with a provision of the Act, it may impose one of a number of disciplinary sanctions. That disciplinary regime is separate from the provisions which create offences which are punishable through prosecution in the courts.
Approach to evidence
21	In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 [38]– [39] (Osborne and Beach JJA), the Court of Appeal approved a formulation of Briginshaw v Briginshaw (1938) 60 CLR 336 as it applies to tribunals. Grounds may be found substantiated, or not, based on whether the tribunal reaches 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.
Overarching submissions
22	The VBA submitted evidence and submissions in this case  generally demonstrate Mr Mattiske having a poor grasp of the operation of both the Act and other law, such as the operation of the Australian Consumer Law and the ACL’s impact on contracts for the provision of services. It also submitted Mr Mattiske has sought to deflect responsibility for his failures and relied on outdated training as an excuse.
23	Mr Mattiske rejects that submission, describing himself as a leader in his field, in part evidenced by him in 2012 receiving an excellence award for Outstanding Building Surveyor of the Year. He notes he is up-to-date with his continuing professional development. He describes himself as a pillar within the building surveyor community.
24	He generally criticised the VBA for not providing guidance to building surveyors were obligations are unclear. Mr Mattiske said that if such guidance had been available, he would have welcomed it and complied with it.
25	I turn the grounds in question.
Ground 2 - failure to forward a copy of the permit within seven days of issue - substantiated
26	Ground 2 alleges Mr Mattiske contravened Regulation 314(1)(a) of the Regulations by not forwarding a copy of a building permit for the verandah works (which he issued on 18 December 2015) to the building owner within seven days of issue.
27	Regulation 314(1) says that when a building permit is issued, the relevant building surveyor must within seven days forward to the building permit applicant, a copy of the permit.
28	Ground 2 is substantiated. 
29	On 18 December 2015, Mr Mattiske issued the building permit for the relevant works. By email to the Owner dated 19 November 2015, he advised that the building permit and documentation could not be posted and that it was a “legal requirement” that the Owner collect these documents. 
30	Mr Mattiske did not provide to the Owner a copy of the documentation either by hand, post, fax, email or otherwise within seven business days of issuing the building permit. 
31	On 16 January 2016, the Owner collected the building permit and documentation from Mr Mattiske’s office.
32	Mr Mattiske contravened Regulation 314(1)(a). 
33	I reject his explanations that:
a)	His business practice, where the Owner is the permit applicant, and the practice of local councils that he is aware of, is to ask his client to pick up the building permit documentation. Mr Mattiske is then able to explain the conditions and requirements. He submits his practice meets the requirement for ‘forwarding’ in Regulation 314(1)(a).  He says this has worked well for decades;
I respond that whatever his practice, the legal obligation is clear.
The word “forward” should be given its ordinary current meaning. It is relevantly defined by the Macquarie Dictionary as meaning “to send, forward, transmit, to advance, help onwards or hasten”. The Collins English Dictionary defines “forward” or “forwarding” in the context of documentation as "to send on to a further destination". 
Requiring someone to attend your office to collect a document is not forwarding of that document.
b)	The above practice was reasonable in this case, given the Owner had plenty of notice that the documentation was ready to be picked up;
See above.
c)	Requiring pickup of the permit ensures that the owner/applicant actually reads and understands the permit, where otherwise that may not occur;
While there may well be truth to this, this did not create compliance with r 314(1)(a).
d)	Regulation 314(1)(a) does not expressly say the documents must be forwarded by post, courier and/or delivery service and requiring pickup is a form of forwarding;
See above.
e)	The documents are too bulky to post, although Mr Mattiske somewhat contradicts this by the fact that his practice is that where applicant is not the owner, he posts a copy of the building permit, “as per the regulations”.
I agree with the VBA’s submission that Mr Mattiske’s evidence and submission, which amounts to saying some A3 laminated sheets (signage) and documentation could not be posted is fanciful.
Ground 3: non-compliant direction to carry out work
34	Ground 3 (as relevant here) alleges Mr Mattiske contravened r 1502(a) of the Regulations because he issued a written direction to carry out work under s 37(1), beyond power, because he included a direction that the Owner pay outstanding fees. It is alleged that therefore, Mr Mattiske did not perform his work as a building practitioner IN-U in a competent manner and to a professional standard.
35	Ground 3 substantiated. 
36	On 10 December 2015, Mr Mattiske conducted a final inspection for the barn change of use works.
37	On 8 February 2016, he issued a written direction to carry out work under s 37(1) for the barn change of use works, including a direction that the owner pay reinspection and amending plan fees.
38	The issue here is whether the direction to the Owner to pay the fees was within the power granted under s 37(1) of the Act when issuing a direction to carry out work.
Decision
39	Section 37(1), now repealed, allowed direction to the person in charge of the building work, to carry out work so that the building work complies fully or substantially with the building permit, the Act or the Regulations.
40	Requiring payment of fees by an owner does not fall within the concept of carrying out work so that the building work complies fully or substantially with the building permit, the Act or the Regulations.
41	Payment of fees is not the carrying out of work. It relates to other legal obligations between parties. It is not appropriate or acceptable to use legislative powers to ensure fees are paid.
42	I accept the VBA’s submission that Mr Mattiske making the direction in issue here amounts to failure on his part to perform his work as a building practitioner IN-IJ in a competent manner and to a professional standard.
43	I reject Mr Mattiske’s explanations that:
a)	At the time in question, there was no standard form for issuing written directions under s 37(1). Since then, the VBA has issued a standard form. In the absence of a standard form, while working with local council, he drafted his own version.
	While the reasonableness, or not, of Mr Mattiske’s own practices and council practices concerning municipal building surveyors may prove to be relevant when deciding sanction, they provide no excuse for making a direction beyond power;
b)	There was a need to direct the Owner to carry out further works, which would cause associated fees to become due and that, in the absence of contrary guidance by way of a relevant guideline or standard form, he saw the approach in the written direction concerning fees as reasonable.
Again, this is no excuse for making directions beyond power.
Ground 4 - delay in issuing the building notice/building order - substantiated
44	Ground 4 relevantly alleges Mr Mattiske did not perform his work as a building practitioner BS-L and as a building practitioner IN-U in a competent manner and to a professional standard because he contravened r 1502(a) in that following an inspection of veranda stump hole works on 3 May 2016, he:
a)	Failed to communicate to the Owner his concerns about the stump bowls within a reasonable time; and
b)	Caused unreasonable delay by not issuing a building notice to the Owner until 21 September 2016. 
45	Regulation 1502(a) states that a registered building practitioner must perform his or her work as a building practitioner in a competent manner and to a professional standard.
46	Ground 4 is substantiated. 
47	On about 1 February 2016 the Owner commenced the verandah works and dug the stump holes on 19 April 2016. 
48	On 3 May 2016, Mr Mattiske arrived to inspect the stump holes. The Owner had concreted three of the four stump holes. Mr Mattiske approved the exposed stump hole but not the three holes already filled with concrete. While on 12 and 13 May 2016, he attempted to contact the Owner, Mr Mattiske made no other contact until he, on 21 September 2016, issued a building notice under s 106 of the Act about the verandah works. 
49	It said in part:
... Foundations that support the verandah x 3 have been filled with concrete without the required mandatory inspections approving the foundation material and soil condition, contrary to Regulation 901
50	A dispute followed between the Owner and Mr Mattiske. Mr Mattiske issued a second building order which required the Owner to remove and expose the already poured and placed column foundations, for an inspection.
51	With Mr Mattiske failing to provide any persuasive explanation for unreasonable delay between inspection, followed by unsuccessful attempts to contact the Owner, with no further follow-up in any form attempted, and the issuing of the building notice, it is obvious that he failed to communicate with the Owner his concerns about the stump holes within a reasonable time. He only took steps to communicate his concerns about the stump holes when he issued the building notice on 21 September 2016.
52	I reject Mr Mattiske’s explanations for delay. He said:
a)	There is nothing in the Act setting down times in which things should be done.
Performing work in a competent manner and to a professional standard, involves taking action in a timely manner and does not require time limits set in legislation;
b)	He had given the Owner the opportunity to respond to his concerns and the Owner failed to respond, to the point where Mr Mattiske had to take action; and
The relatively brief time in which Mr Mattiske followed up matters with the Owner after the inspection, undermines this explanation. There was a significant period of time where Mr Mattiske could have continued to follow-up on his concerns, but did not do so.
c)	The Owner was aggressive and bullying communication with Mr Mattiske’s office, such that at one point his wife is in tears. Mr Mattiske said at hearing, “we do not deal with people like that”.
As the VBA submitted, the evidence, including the Owner’s evidence before me at the hearing in this case, shows nothing more than him acting to assert his rights when facing unreasonable delay.
Ground 5: failure to give 24 hours' notice and entering the site without authority to do so
53	Ground 5 alleges Mr Mattiske contravened:
a)	Section 230 of the Act in that he entered the site on 27 October 2016 for an inspection, but had not given the Owner at least 24 hours notice before he entered the site when the Owner resided on the site, and/or
b)	Section 231 of the Act in that Mr Mattiske entered the site on 27 October 2016 as he suspected there was evidence of a commission of an offence against the Act or the Regulations, but he did not have the written consent of the Owner or the authority of a search warrant.
54	Ground 5 is substantiated, because on the date in question, Mr Mattiske was not registered as a building surveyor (a coincidence as inspection happened in three days when he was not so registered – see below).
Events
55	On 27 October 2016, Mr Mattiske inspected the site at approximately 8:15 am. He had not notified the Owner before visiting the site, who had not consented to him entering the site.
56	Mr Mattiske says that he had issued a building notice requiring the Owner to uncover footings for inspection and that the Owner had not responded within the required time. Therefore, Mr Mattiske submitted he was authorised under the Act to inspect without further notice, leading to the making of a building order after the inspection. 
57	The Owner’s evidence is that on the morning in question, he had dropped his son at school and returned to the property. Being a rural property, the Owner drove down the long driveway and entered the house. From inside, he noticed, and felt shocked and threatened, to see a stranger taking photographs on his property early in the morning. He did not recognise Mr Mattiske, who would not identify himself when questioned. 
58	The Owner disagreed with Mr Mattiske’s proposition that he was rude and inappropriate towards Mr Mattiske. He described himself as fired up because Mr Mattiske would not talk to him. He said he described Mr Mattiske as a “weak man” in the hope he would leave the property. The Owner disagreed with the proposition that he had engaged in a vendetta towards Mr Mattiske. He said that until they came into dispute, he liked Mr Mattiske. He describes himself as now indifferent in the context that he regards Mr Mattiske as having a vendetta towards him.
Entry as a private building surveyor? - no
59	Mr Mattiske submitted he entered the site without giving 24 hour’s permission on the basis that as the relevant building surveyor appointed by the Owner, with a permit for the veranda works in place, s 35 authorised him to enter the site without the Owner’s permission, without providing 24-hour’s notice and without a search warrant.
60	Section 35 appears in the Act within Part 4 – Inspection of building work, Division 1 – Inspections. It says:
35	  Inspection of building work—general powers
The relevant building surveyor may cause building work for which a permit has been issued under Part 3 to be inspected at any time whether or not a mandatory notification stage has been completed.
61	“Part 3 – Building permits” concerns the issuing of building permits. A building permit had been issued concerning the Site.
62	That said, by coincidence, Mr Mattiske’s registration as a building surveyor was suspended for a period of three days from 27 October 2016 to 30 October, quite possibly because of a delay by the VBA in processing payment of annual fees. I have no reason to consider Mr Mattiske at fault concerning the delay.
63	Therefore, on the issue of whether or not Ground 5 is substantiated, Mr Mattiske’s view that s 35 entitled him to enter the site in his role as building surveyor cannot be relevant to whether or not he was authorised to enter the site on 27 October.
64	For the information of the parties, given they have opportunity to make submissions on sanctions, I advise that, subject to submissions, I agree with Mr Mattiske’s interpretation of s 35.
65	Subject to further submissions, I disagree with VBA’s submission that if Mr Mattiske had been a registered building surveyor on 27 October 2016, he would still have been required to give notice to the Owner because:
a)	While s 35 of the Act is a general power, authorising building surveyors to cause the inspection of building works where permits have been issued for those works;
b)	Sections 230 and 231 (and s 229 and 228) limit s 35, in that building surveyors must comply with the power of entry requirements under such sections.
66	Section 230 appears in the Act within Part 13 – General Enforcement Provisions, Division 2 – Powers of entry. It said (as it was at the time):
230	Notice of entry
An authorised person must give the occupier (if any) of a building or land not less than 24 hours notice, or such other notice as may be agreed with the occupier, before the authorised person enters the building or land under section 229(2)(a)(i) or 229(2)(b).
67	Section 228 defines “authorised person” to in part mean a private building surveyor appointed under Part 6 of the Act.
68	Section 76 within “Part 6 –Private building surveyors”, relevantly says a private building surveyor may be appointed to carry out the issuing of building permits and the carrying out of inspections of buildings and building work under Part 4.
69	Section 229 relevantly says:
229	Power of entry—inspections of buildings, places of public entertainment etc.
(1)	Subject to subsection (2), an authorised person may enter any building or land for the purpose of carrying out any inspection, authorised or required by this Act or the regulations, of—
			(a)		the building; or
…
				(d)		building work or plumbing work.
	(2)		An entry under subsection (1) may be carried out—
(a)	in the case of a residence or the land on which a residence is situated—
					(i)		between the hours of 8 a.m. and 6 p.m.; or
(ii)	at any other time with the written consent of the occupier of the residence or land; and
			  (b)		in any other case, at any reasonable time.
(3)	An authorised person must, before obtaining a consent under subsection (2)(a)(ii), inform the occupier of the residence or land of the purpose of the inspection to be carried out at the residence or land.
70	Therefore, in the case of a residence situated on the land, the authorised person must give 24 hours prior notice under section 230.
71	My current view that, in the absence of any reference in s 35, to that broad power being subject to s 230, a reading of the Act as a whole with the two sections appearing in different parts of the Act does not of itself lead to an interpretation that s 35 is subject to s 230.
Entry under s 231? - no
72	Section 231 appears in the Act within Part 13 – General Enforcement Provisions, Division 2 – Powers of entry. It said:
231	Powers of entry—enforcement
(1)	If an authorised person has reasonable grounds for suspecting that there is on any building or land a particular thing that may be evidence of the commission of an offence against this Act or the regulations, the authorised person, with any assistants the authorised person considers necessary, may—
			(a)		enter the building or land; and
			(b)		search for the thing.
(2)	An authorised officer must not enter a building or land under this section except—
(a)	with the written consent of the occupier of the building or land; or
			(b)		under the authority of a search warrant.
73	Where the authorised person has reasonable grounds for suspecting there is evidence on the land of a commission of an offence against the Act or the Regulations, the authorised person can enter onto the land if they have the written consent of the Owner or the authority of a search warrant, under section 231 of the Act.
74	Section 231 did not authorise entry. Mr Mattiske has not claimed and has not provided any evidence of suspecting the commission of an offence against the Act of the Regulations and no search warrant was in place.
Ground 7: failure to issue a certificate of final inspection for veranda works
75	Ground 7 alleges Mr Mattiske contravened s 38 of the Act because from on or about 30 November 2017, he failed, refused or otherwise neglected to issue a certificate of final inspection for the veranda works after the final mandatory stage inspection had taken place, when no occupancy permit was required for that building work and all directions given under Part 4 of the Act had been complied with.
76	Ground 7 is substantiated.
77	While the works were complete, all directions had been complied with, Mr Mattiske took the position that he did not have to issue the certificate because the Owner still owed him fees for the veranda works. He relied upon terms of engagement which contained a term that “fees for additional inspections are payable within 14 days of the invoice and/or prior to the issuing of the occupancy permit or certificate of final inspection”.
78	Section 38 said the relevant building surveyor must issue a certificate of final inspection on completion of the inspection following the final mandatory notification stage of building work if an occupancy permit is not required for the building work all directions given under this Part in respect of the building work have been complied with.
79	The provision operates independently of any civil or contractual obligations and requires Mr Mattiske to issue the certificate of final inspection once the final inspection is completed and no directions remain outstanding.
80	I reject Mr Mattiske’s submission that he has not contravene section 38, because as he put it in his written submissions:
The relevant building surveyor will issue a certificate of final inspection upon a successful site inspection to assess smoke alarms, that there is no change in circumstances and that all outstanding fees and levies are paid
81	I agree with the VBA’s submission that this is not so. Section 38(2) said (and continues to say) that a certificate of final inspection is not evidence that the building or building work concerned complies with this Act or the Regulations.
82	I note the VBA’s submission that once Mr Mattiske was obliged to issue the certificate of final inspection, if he thought there was a remaining significant problem, there were other avenues available under the Act for dealing with such. 
Ground 8: false or misleading statements about automatic legal proceedings
83	Ground 8 alleges Mr Mattiske contravened Regulation 1502(a) because he made false and/or misleading representations to the Owner of the site that legal proceedings would automatically and immediately commence against him on the expiry of the building orders he issued on 4 November 2016 and 3 February 2017.
84	Ground 8 alleges that therefore Mr Mattiske did not perform his work as a building practitioner BS-L in a competent manner and to a professional standard.
85	Ground 8 is substantiated.
Events
86	On 4 November 2016, Mr Mattiske sent the Owner a building order under s 111 of the Act, under covering letter of the same date. The order required the Owner to:
a)	Remove and expose the already poured and placed column foundations for inspection; and
b)	Display the registration numbers and contact details of the builder and building surveyor, and the number and date of the relevant building permit on the front of the site under Regulation 317 of the Regulations.
87	Mr Mattiske wrote another letter to the Owner dated 3 February 2017, enclosing another building order raising the same issues as those raised in the 4 November 2016 building order.
88	Both covering letters dated 4 November 2016 and 3 February 2017 contained the following:
...should you fail to comply with the terms and conditions of the Building Order, you may receive a summons to appear before a Magistrates Court for non-compliance...
...If you fail to have those items satisfied by that date, the Victorian Building Authority investigate (sic) and instigate proceedings against you immediately without further notification to you...
... At the expiry time of this order automatic legal proceedings have commenced without further warnings to "the Owner" and cost recovery and associated fees pursuant to the order will commence.
Mr Mattiske’s submissions
89	Mr Mattiske explains that the statements in the two letters are similar to statements used by municipal building surveyors at Monash City Council when issuing building orders and are consistent with his training. He describes the statements as intended to get action.
90	He explained ‘automatic legal proceedings’ relates to the ‘automatic’ referral of non-compliance with a building order, to the VBA. He relied on s 115 of the Act which requires a private building surveyor to refer a person who fails to comply with the building order, to the VBA within 14 days from the final date of compliance in the building order.
91	Section 115 of the Act does not lead to the VBA will automatically instigating legal proceedings. Nor does s 115 lead to legal proceedings commencing without further notice.
92	Mr Mattiske said following no response to the letter, he referred the matter to the VBA.
VBA submissions
93	The VBA submitted:
a)	Mr Mattiske’s statements in his two letters dated 4 November 2016 and 3 February 2017 about the automatic commencement of legal proceedings were false and/or misleading, and incorrect. They also misstate the requirements under the Act to a layperson who is unlikely to be familiar with those requirements;
b)	As the relevant building surveyor Mr Mattiske was obliged to ensure he did not make incorrect statements to a client that mislead or misrepresented the legal framework and statutory regime under which he operates; and
c)	A lay person receiving a letter such as the one Mr Mattiske sent would feel intimidated and threatened, and so including the text in the letter was improper.
Decision - ground substantiated
94	Legal proceedings (instituted in a Court of law) can only commence against someone for an offence under the Act by a person authorised under section 241 of the Act to so commence those proceedings. There are detailed steps that must be followed before this occurs. Mr Mattiske is not so authorised
95	Mr Mattiske’s statement to the Owner was misleading. There was no statutory basis for the statements he made. In particular, the statements well overstate the potential for any legal proceeding to be made. If made it all, such statements should be far more guarded and far more closely reflect the legislation.
Sanctions
96	The VBA made proportionate, logical submissions, dated 2 September 2019, concerning sanctions. I essentially adopted them, as set out in summary below.
97	Mr Mattiske’s 23 September 2019 submissions demonstrated a lack of insight into the above findings against him and continued to debate points already decided. 
98	He also submitted that I made decisions in this case, such that I, “waved this off to get rid of it”, a submission I rejected.
99	Mr Mattiske also submitted, again a submission I rejected:
The Victorian Building Authority staff have demonstrated that they have no understanding of the building regulations and the Building Act 1993. It is because of this lack of knowledge I now have no faith in the system and join other building practitioners demonstrating that they are not interested in the Victorian Building Authority’s opinion on the Building Act or the regulations.
100	He describes himself:
Simon Mattiske Building Surveyors and Building Inspectors has 32 years of experience in education from Swinburne University he was nominated from an outstanding achievement in 2012, lectures in building studies at Box Hill Tafe and is an outstanding peer in his profession, and highly regarded at Monash City Council.
101	His 23 September 2019 submissions require no further comment.
102	The purposes of disciplinary inquiries are:
a)	Protection of the public; and
b)	Maintenance of high standards of professional conduct. 
Inquiries are not designed to 'punish' practitioners in a criminal sense.
103	Specific deterrence (deterring a practitioner from repeating the conduct) and general deterrence (deterring other practitioners from engaging in the conduct) should also be taken into account when assessing protection of the public.
104	Whether VCAT can be satisfied that a practitioner’s conduct will not be repeated is an important consideration. In that sense, the practitioner's insight into professional failings must be taken into account as it assists VCAT in understanding whether the conduct will be repeated.
105	The VBA proposed criteria which may be appropriately applied in this case.
Prior disciplinary history
106	In the Decision, the VBA noted that the Building Practitioners Board had in April 2016 conducted an inquiry into Mr Mattiske’s conduct at two sites in Mount Waverley. It found him guilty of two allegations of failing to comply with s 24(1)(a) of the Act, reprimanded him and fined him $3,000 with costs of $2,000.
107	I note here that while the record of this event was included in the decision with respect to Ground 10, now withdrawn, it remains, in my view marginally, relevant to sanction, given this was the only disciplinary history cited with respect to Mr Mattiske’s long career.
Degree of insight
108	As is evident from my description of Mr Mattiske’s submissions above, his general conduct in this proceeding and his most recent submissions on sanction, Mr Mattiske has a very high regard for his own opinions and knowledge and low regard for at least those of the VBA. I am not satisfied he has taken the opportunity for self-reflection and self-correction with respect to the issues now before VCAT.
Seriousness of breach
109	While the breaches found against Mr Mattiske are not of the most serious end of the spectrum, they are significant, given the essential role of building surveyors in building regulation in Victoria.
110	His conduct had a significant adverse effect on the building owner in question.
111	Mr Mattiske’s conduct following the breaches and in the context of this case has not assisted.
Specific deterrence
112	My impression of Mr Mattiske is that while he disagrees that he has breached the Act and/or Regulations, he is unlikely to repeat such breaches, if only to avoid further disciplinary action against him. I also note his evidence at hearing that he is close to retirement from the profession. 
General deterrence
113	In my view, the following sanctions provide appropriate specific deterrence to others in the building profession.

Decision as to sanctions
Grounds 2, 3, 4, 7 and 8 
114	I accepted the VBA’s submission that imposition of financial penalties concerning these grounds are appropriate and should not be reduced. In my view, respecting the specialist expertise of the VBA in making the decision under review, the decisions as to financial penalty should be affirmed.
115	I also accepted the VBA’s submission that Mr Mattiske should be reprimanded with respect to each breach.
Ground 5
116	The VBA noted my departure from its analysis with respect to Ground 5 and did not make further submissions. 
117	On that basis, it submitted Mr Mattiske’s failure to give appropriate notice of entry was serious and his reasons for doing so unconvincing.
118	I accepted the VBA’s submission that the financial penalty here should be reduced from $1,500 to $750 as, on review, no breach of s 231 of the Act was found.
Sanctions outcomes 
119	The outcome of this case is summarised in the following table.
Ground	VBA Reprimand?	VCAT Reprimand?	VBA fine	VCAT fine	
2	no	yes	$300	$300	
3	yes	yes	$800	$800	
4	yes	yes	$1200	$1200	
5	yes	yes	1,500	$750	
7	no	yes	n/a	n/a	
8	no	yes	$500	$500	
Total			$4,300	$3,550	
Costs reserved
120	VCAT listed the hearing in the case to start at 10 am on 8 April 2019, to be heard over 8 and 9 April. Logistical issues caused VCAT to advise that the hearing would start at noon on 8 April. 
121	For reasons unexplained on the day, Mr Mattiske arrived at VCAT on the morning of 8 April and filed a letter saying he had a medical appointment and asking that the matter be rescheduled to commence at 10 am on 9 April. At noon on 8 April, the VBA appeared before me and consented to the adjournment to 10 am the next morning, with costs thrown away reserved. 
122	Mr Mattiske later provided a medical certificate concerning him seeking treatment the day before. 
123	By the end of the hearing on 9 April, costs thrown away on 8 April remained reserved, with the VBA to consider it’s position as to these costs, given the new evidence.
124	The VBA did not pursue the reserved costs.

Ian Proctor
Deputy President