Bennett v Building Professionals Board

[2011] NSWADT 111

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Bennett v Building Professionals Board [2011] NSWADT 111
Hearing dates:	10 May 2011
Decision date:	20 May 2011
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The applicant's application for review of a reviewable decision was made within time.
Catchwords:	PRACTICE AND PROCEDURE - whether application for review made within time - meaning of 'notified' in s 55(2) of Administrative Decisions Tribunal Act 1997
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 1997 Interpretation Act 1987
Category:	Interlocutory applications
Parties:	Brendan Bennett (Applicant) Building Professionals Board (Respondent)
Representation:	D Reid (Applicant) Building Professionals Board (Respondent)
File Number(s):	113053

REasons for decision

Introduction

1. On 3 March 2011 Mr Bennett applied to the Tribunal for a review of a decision by the Building Professionals Board (the Board) to reprimand him. The issue in these proceedings is whether the application was lodged out of time and, if so, whether the Tribunal should nevertheless allow it to proceed. I have decided that the application was not lodged out of time.

1. Mr Bennett is a building surveyor and an accredited certifier. On 22 April 2010 the Board decided to reprimand him as a result of a complaint it had received about a development at Miranda, a suburb of Sydney: Building Professionals Act 2005 ( BP Act ), s 31(4)(a). The Board says that it notified him of its decision by letter dated 14 May 2010 addressed to Mr Bennett's business premises. Mr Bennett says that he did not receive the letter. He says it was not until 2 February 2011, when he was carrying out a search on the internet for an unrelated reason, that he saw from the Building Professional's Board's Disciplinary Register that he had been reprimanded.

1. Mr Bennett is required to apply to the Tribunal for a review of a decision within 28 days of the day on which he "was notified of the making of the reviewable decision": ADT Act , s 55(2)(b)(ii). The Board said Mr Bennett was notified of the decision in May 2010. If that is correct, his application, which was lodged on 3 March 2011, is about nine months out of time. Mr Bennett submitted that he was notified of the decision on 3 February 2011. The Board agrees that if that was the date on which he was notified, his application is within time.

1. Alternatively, Mr Bennett submitted that if he was notified of the decision in May 2010, he has a "reasonable explanation for the delay" and the Tribunal should extend the time for the lodging of the application: ADT Act , s 57(1).

Legislative provisions

1. An application for review must be made "within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision": ADT Act , s 55(1)(d). As there is no time prescribed in the BP Act , the "default application period" applies. That term is defined in s 55(2)(b) of the ADT Act . In the circumstances of this case, the default application period is:

-the period of 28 days after . . . the day on which the applicant was notified of the making of the reviewable decision.

1. Section 32 of the BP Act requires the Board "to provide a written statement of a decision made under section 31 to the complainant and the accreditation holder concerned." The BP Act does not specify how that statement is to be "provided". The BP Act sets out the ways in which a "document that is authorised or required by this Act or the regulations to be served on any person may be served": s 88. Service includes sending the statement of decision by post to the person's address: BP Act , s 88(1)(a)(ii). Documents that are authorised or required to be served under the BP Act include: a notice under s 8 suspending or cancelling a certificate of accreditation (s 8(7)); a notice under s 9 imposing or varying a condition on a certificate of accreditation (s 9(7)); and a penalty notice under s 92 for the commission of an offence (s 92(1)).

1. Unlike those provisions, the BP Act does not expressly require a written statement of a decision made under s 31 to be "served" on the person to whom it relates. Rather, the Board is "to provide" such a statement to the person concerned: s 32(1). However, s 31(6) suggests that the intention was that the statement should be served in accordance with the provisions in s 88. Section 31(6) specifies when an order, such as a reprimand, takes effect. It also states that the date on which an order takes effect "must be a date occurring on or after service of the statement . . . on the person the subject of the complaint." (Emphasis added.)

1. Under the Interpretation Act 1987, service by post may be effected by "properly addressing, prepaying and posting a letter containing the document": s 76. Service is taken to have been effected on the fourth working day after the letter was posted "unless evidence sufficient to raise doubt is adduced to the contrary."

1. Both parties submitted that if the determination was "served" in accordance with the requirements of the BP Act then Mr Bennett will have been "notified" of the making of the reviewable decision pursuant to the ADT Act and time would begin to run. However Ms Reid, representing Mr Bennett, submitted that service should not be taken to have been effected given the evidence to the contrary.

1. Given the findings of fact I have made, I do not need to decide whether the parties' submission that "service" under the BP Act constitutes notification under the ADT Act is correct. However, I note that that submission involves accepting two propositions: first, that s 55(2)(b) of the ADT Act is to be read by reference to, or as picking up, the notice provisions in the BP Act so that compliance with those provisions will constitute notification; and secondly that it is sufficient compliance with the BP Act for the statement of a decision to reprimand an accredited certifier to be communicated by complying with the provisions relating to "service" under that Act. Neither party addressed those issues.

Findings of fact

1. Mr Wunsch, the Team Leader, Investigations with the Board, gave evidence that by letter of 14 May 2010, the Board notified Mr Bennett of the decision. He produced a copy of that letter which was addressed to the street address of Mr Bennett's business, City Plan Services. The Board keeps a register of returned mail. That register does not record that the letter which the Board says it sent to Mr Bennett was returned. While the Board produced a copy of the letter, there is no direct evidence that the letter was posted.

1. Mr Bennett agreed that he had received other correspondence from the Board which had been sent to his business address but says that he did not receive the 14 May letter. He said that City Plan Services does not have a register of incoming mail.

1. The minutes of City Plan Services monthly management meetings for June, August, October and November 2010 refer to the progress of the Miranda complaint. The minutes from the 14 October 2010 meeting state that:

BB (Brendan Bennett) has advised that he is of the opinion that the complaint against his accreditation from Miranda project has been dropped, as he has not received any further notification. He isn't going to follow up. (Words in brackets added.)

1. On 2 February 2011 Mr Bennett emailed the Board saying:

I was researching some info on the web & came across the attached BPB Disciplinary Register.

It records a reprimand for disciplinary action No 275 against my name dated 22 April 2010. I am not aware of what this relates to and do not recall any notification. Are you able to give me some information on this?

1. Mr Wunsch replied by email the following day enclosing a copy of the determination letter. Mr Bennett advised Mr Wunsch that he was seeking legal advice and requested a copy of the Board's complaint investigation report and any correspondence received after finalising the investigation report.

1. The Board does not accept that Mr Bennett is telling the truth when he says that he did not receive the letter. The matters Mr Grey, representing the Board, put to Mr Bennett on this point and Mr Bennett's responses are summarised below.

(1)   Mr Bennett and another accredited certifier who worked in the Gosford office, Mr Nettleton, had always received notice of the Board's determinations in relation to complaints about them in the past. Mr Bennett agreed with that proposition.

(2)   Mr Bennett was aware from previous dealings with the Board that the average time between receiving written submissions from an accredited certifier about a complaint and making a determination was about 9 weeks. Mr Bennett's response was that he was never given any indication from the Board as to how long it would take for them to make a determination. He expected that he would eventually be notified but other complaints had taken up to two years to be finalised.

(3)   In the October 2010 minutes of the monthly management meetings, it was reported that Mr Bennett believed that the complaint had been "dropped'. According to the Board, Mr Bennett knew that the Board would not "drop" a complaint. Mr Bennett's response was that the minutes are not entirely correct. Nevertheless, Mr Olsen, an officer of the Board, had previously dropped a complaint when he brought certain matters to his attention. Mr Bennett acknowledged that he subsequently received written notification of the determination.

(4)   In his email to the Board dated 2 February 2011 Mr Bennett said that he did not "recall" any notification, not that he did not "receive" any notification. Mr Bennett's response indicated that there was no significance in his mind in the use of the term "recall".

(5)   In his email to the Board on 7 February 2011 Mr Bennett asked for documents relating to the investigation which he would have had on his file relating to the Miranda project. That request demonstrated that he was, in effect, "playing dumb". Mr Bennett's response was that he thought there was a second report in response to his submissions. He said there was no benefit in him "playing dumb" because he believes that he should not have been reprimanded and has taken action to appeal against that decision once it was brought to his attention.

1. I accept Mr Bennett's explanations for each of the matters Mr Grey put to him. His responses were plausible. I find that he is telling the truth when he says he did not receive the letter until February 2011. Mr Bennett had no way of knowing precisely when to expect a decision from the Board and the management meeting minutes record that he was still waiting for a decision in October 2010. Once he found out about the decision in February 2010, he took immediate steps to appeal against it.

1. I am satisfied that Mr Bennett did not receive the letter from the Board dated 14 May 2010. I am also satisfied that there is sufficient evidence to contradict the presumption that service by post was effected four working days after the letter was posted: Interpretation Act 1987.

Conclusion

1. The Building Professionals Board did not "provide", "serve" or "notify" Mr Bennett of its written statement of decision to reprimand him until 3 February 2011. As Mr Bennett applied to the Tribunal for a review of that decision within 28 days, his application was made within time.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 20 May 2011