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

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.

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.

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.

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

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…

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.

Keep reading for free

Create a free CaseChat account to read Bennett v Building Professionals Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWADT 111
Decision Date: 20 May 2011

CaseChat Overview and Summary

Bennett was the applicant in a proceeding before the Administrative Appeals Tribunal (AAT) against the Building Professionals Board. The dispute centred around the validity of a decision made by the Board, which was subject to review under the Administrative Decisions (Judicial Review) Act 1977. The primary issue for the court was whether the applicant had complied with the time limit for lodging an application for review, specifically whether the application was made within the period prescribed by section 55(2) of the Administrative Decisions Tribunal Act 1997. This hinged on the interpretation of the term "notified" in the context of when the applicant was deemed to have been notified of the decision by the Board.

The court was required to determine the precise meaning of "notified" in the statute and assess whether the applicant's application was made within the requisite time frame. The applicant contended that the time limit began on the date they were actually aware of the decision, which was later than the date they were formally notified by the Board. The Board argued that the statutory language indicated that the time limit commenced on the date of formal notification, irrespective of the applicant's actual knowledge.

The court found that the term "notified" in section 55(2) of the Act should be interpreted in line with the ordinary meaning of the word, which includes both the formal communication and the reasonable opportunity for the recipient to become aware of the decision. Given that the applicant had a reasonable opportunity to be aware of the decision on the date of formal notification, the court held that the time limit for lodging the application began on that date. Consequently, the applicant's application for review was deemed to be made within the required period.

Orders

Orders of the court

The applicant's application for review of a reviewable decision was made within time.

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.

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