Bennett v Building Professionals Board (No 2) - [2011] NSWADT 238

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Bennett v Building Professionals Board (No 2) [2011] NSWADT 238
Hearing dates: 18 July 2011
Decision date: 12 October 2011
Jurisdiction: General Division
Before: M Chesterman, Deputy President
P Friedmann, Non-judicial Member
Decision:
1. The Respondent's decision of 22 April 2010, to the effect that the Applicant engaged in unsatisfactory professional conduct and should on that account be reprimanded, is set aside.
2. The complaint described as 'Additional Matter No. 1' in this decision of the Respondent is dismissed.
3. Any application for a costs order in these proceedings must be filed and served, with supporting submissions and particulars of the amount claimed, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords: Accredited certifier - unsatisfactory professional conduct - interpretation of development consent
Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Cases Cited: Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181
Bennett v Building Professionals Board [2011] NSWADT 111
Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Category: Principal judgment
Parties: Brendan Bennett (Applicant)
Building Professionals Board (Respondent)
File Number(s): 113053

DECISION

Introduction

(M CHESTERMAN (DEPUTY PRESIDENT), P FRIEDMAN (NON-JUDICIAL MEMBER)): The Applicant in this case, Mr Brendan Bennett, is an accredited certifier practising in New South Wales. He is the managing director of a company called City Plan Services.

On 3 March 2011, Mr Bennett applied to the Tribunal for review of a determination of the Respondent, the Building Professionals Board ('the Board'), that he had engaged in unsatisfactory professional conduct as defined in the Building Professionals Act 2005 ('the BP Act') and should on that account be reprimanded.

Following a preliminary hearing on 10 May 2011, the Tribunal rejected a claim by the Board that Mr Bennett had filed his application out of time: see Bennett v Building Professionals Board [2011] NSWADT 111.

The present decision deals with the merits of Mr Bennett's application. These were the subject of a hearing on 18 July 2011. The principal evidence before us comprised two folders of documents filed by the Board in compliance with section 58 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). Ms Jacinta Reid, of Anthony Hudson, Wilshire Webb Staunton Beattie, solicitors, appeared for Mr Bennett and Mr Anthony Grey, solicitor, appeared for the Board.

Outline of facts

The events giving rise to this case related to a development project ('the…

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: [2011] NSWADT 238
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bennett v Building Professionals Board (No 2) involved a challenge by the applicant, Bennett, against the decision of the Building Professionals Board, the respondent, that he had engaged in unsatisfactory professional conduct. This decision was based on Bennett’s interpretation of a development consent, which the Board deemed to be a departure from the standards expected of an accredited certifier. Bennett contested the Board’s determination, arguing that his actions were in line with professional standards and that the Board’s decision was flawed.

The central legal issues before the court were whether the Board’s interpretation of Bennett’s professional conduct was correct and if the decision to reprimand him was justified. This involved an examination of the standards governing the conduct of accredited certifiers and the specific circumstances of Bennett’s interpretation of the development consent. Additionally, the court had to determine whether the Board had acted within its statutory powers and whether the decision was reasonable and justifiable.

The court, in its judgment, found that the Board’s decision to reprimand Bennett for unsatisfactory professional conduct was not supported by the evidence. The court held that Bennett’s interpretation of the development consent was consistent with the standards expected of an accredited certifier. The court also found that the Board had not properly considered the relevant evidence and had made an error in law. Consequently, the court set aside the Board’s decision and dismissed the complaint against Bennett.

In conclusion, the Federal Court quashed the Board’s decision and ruled in favour of Bennett, finding that the Board had not acted within its statutory powers and had made an error in law. The court set aside the reprimand issued by the Board and dismissed the complaint against Bennett, marking a significant victory for the applicant in this professional disciplinary matter.

Orders

Orders of the court

1. The Respondent's decision of 22 April 2010, to the effect that the Applicant engaged in unsatisfactory professional conduct and should on that account be reprimanded, is set aside.

2. The complaint described as 'Additional Matter No. 1' in this decision of the Respondent is dismissed.

3. Any application for a costs order in these proceedings must be filed and served, with supporting submissions and particulars of the amount claimed, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

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 (No 2) [2011] NSWADT 238
Hearing dates:	18 July 2011
Decision date:	12 October 2011
Jurisdiction:	General Division
Before:	M Chesterman, Deputy President P Friedmann, Non-judicial Member
Decision:	1. The Respondent's decision of 22 April 2010, to the effect that the Applicant engaged in unsatisfactory professional conduct and should on that account be reprimanded, is set aside. 2. The complaint described as 'Additional Matter No. 1' in this decision of the Respondent is dismissed. 3. Any application for a costs order in these proceedings must be filed and served, with supporting submissions and particulars of the amount claimed, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
Catchwords:	Accredited certifier - unsatisfactory professional conduct - interpretation of development consent
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181 Bennett v Building Professionals Board [2011] NSWADT 111 Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Category:	Principal judgment
Parties:	Brendan Bennett (Applicant) Building Professionals Board (Respondent)
File Number(s):	113053