Barakat v Building Professionals Board - [2009] NSWADT 5

CITATION: Barakat v Building Professionals Board [2009] NSWADT 5

DIVISION: General Division

PARTIES:
APPLICANT
Barry Barakat
RESPONDENT
Building Professionals Board

FILE NUMBER: 083108

HEARING DATES: 18 September 2008

SUBMISSIONS CLOSED: 18 September 2008

DATE OF DECISION:
12 January 2009

BEFORE: O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member

CATCHWORDS: Accredited Certifier – Cancellation of Accreditation – Application for Review of Board decision – Misrepresentation – Not Fit and Proper Person – Affirmed – Building Professionals Act 2005, s 8

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Crimes Act 1900
Home Building Act 1989

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127
Burton v Anderson (NSWCA, unreported, 28 October 1994)
Ex parte Tziniolis; Re The Medical Practitioners’ Act (1966) 67 SR (NSW) 448
Good v. The Medical Board of Western Australia (SCWA, 6 December 1994)
McBride v Walton (NSWCA, unreported, 15 July 1994
Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading (GD) [2008] NSWADTAP 84

REPRESENTATION:
APPLICANT
J Conomos and F Coyne, counsel/Carneys Lawyers
RESPONDENT
A Grey, legal officer

ORDERS: Decision under review affirmed.

1 The applicant, Barry Barakat, has applied to the Tribunal for review of a decision made on 2 April 2008 by the Building Professionals Board under the Building Professionals Act 2005 (the Act) cancelling his accreditation as an accredited certifier. As more fully explained below, the decision has been stayed subject to conditions pending this decision.

2 Mr Barakat has held accreditation since the commencement of the private certifier system in 1999. At the time of cancellation his accreditation extended to the following categories:

C8 – electrical services compliance

C9 – mechanical services compliance

C11 – energy management compliance (classes 3, 5 to 9)

C13 – building hydraulics compliance

C14 – building hydraulics compliance

C16 – specialist hydraulics services compliance.

3 He was born in 1953 in Lebanon and later settled in Australia. He obtained his academic qualifications which include an MBA at New South Wales tertiary institutions. He has substantial academic qualifications in engineering especially in the area of electrical engineering.

4 Between 1983 and 1997 he was a public servant working for the Department of Public Works. In 1997 he established his own business, BHB Australia Pty Ltd, which specialises in electrical and air conditioning contracting work, including the inspection and investigation of existing systems and consultancy work.

5 In deciding to cancel his accreditation the Board exercised the power given to it by paragraph (a) of s 8(2) of the Act. Section 8(2) (as it then stood) provided:

(a) the person has been issued a certificate of accreditation on the basis of a misrepresentation made by the person, whether or not made knowingly, or

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWADT 5
Decision Date: 12 January 2009

CaseChat Overview and Summary

The case of Barakat v Building Professionals Board involved the respondent board’s decision to cancel the accreditation of the appellant as an accredited certifier under the Building Professionals Act 2005. The appellant, Barakat, sought a review of the decision on the grounds that the board had made an error of law and that the decision was otherwise unreasonable. The court was required to determine whether the decision to cancel the appellant's accreditation was justified, and whether the board's actions were procedurally fair.

The primary legal issues before the court were whether the board's decision to cancel the appellant's accreditation was lawful and whether the process by which the decision was made was fair. Specifically, the court had to consider whether the board's finding that the appellant was not a fit and proper person to hold accreditation was supported by the evidence, and whether the appellant had misrepresented himself to the board. Additionally, the court examined whether the appellant's right to procedural fairness was observed.

The court found that the board's decision to cancel the appellant's accreditation was both lawful and procedurally fair. The evidence presented demonstrated that the appellant had indeed misrepresented himself, which was a significant factor in the board's determination that he was not a fit and proper person. The court upheld the board's finding that the appellant's actions warranted the cancellation of his accreditation. Furthermore, the court found that the process followed by the board complied with the requirements of procedural fairness, including the provision of an opportunity for the appellant to respond to the allegations against him.

The court affirmed the decision of the Building Professionals Board to cancel the accreditation of the appellant. The decision was upheld on the grounds that the board's determination was supported by the evidence and that the process was fair. As a result, the application for review was dismissed, and the decision under review remained in place.

Orders

Orders of the court

Decision under review affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barakat v Building Professionals Board [2009] NSWADT 5
DIVISION:	General Division
PARTIES:	APPLICANT Barry Barakat RESPONDENT Building Professionals Board
FILE NUMBER:	083108
HEARING DATES:	18 September 2008
SUBMISSIONS CLOSED:	18 September 2008
DATE OF DECISION:	12 January 2009
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Cancellation of Accreditation – Application for Review of Board decision – Misrepresentation – Not Fit and Proper Person – Affirmed – Building Professionals Act 2005, s 8
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Crimes Act 1900 Home Building Act 1989
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127 Burton v Anderson (NSWCA, unreported, 28 October 1994) Ex parte Tziniolis; Re The Medical Practitioners’ Act (1966) 67 SR (NSW) 448 Good v. The Medical Board of Western Australia (SCWA, 6 December 1994) McBride v Walton (NSWCA, unreported, 15 July 1994 Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading (GD) [2008] NSWADTAP 84
REPRESENTATION:	APPLICANT J Conomos and F Coyne, counsel/Carneys Lawyers RESPONDENT A Grey, legal officer
ORDERS:	Decision under review affirmed.