Building Professionals Board v Ball

Case [2008] NSWADTAP 70

Appeal Panel - Internal

CITATION: Building Professionals Board v Ball [2008] NSWADTAP 70
PARTIES:

APPELLANT
Building Professionals Board

RESPONDENT
Darren Ball
FILE NUMBER: 089044
HEARING DATES: 22 October 2008
SUBMISSIONS CLOSED: 22 October 2008
 
DATE OF DECISION: 
7 November 2008
BEFORE: Chesterman M - Deputy President; Leal S - Judicial Member; Hayward P - Non-Judicial Member
CATCHWORDS: Costs – procedural fairness – appeal – further consideration by the Appeal Panel or remitter – pre-judgment
DECISION UNDER APPEAL: Building Professionals Board v Ball [2008] NSWADT 154
FILE NUMBER UNDER APPEAL: 073162
DATE OF DECISION UNDER APPEAL: 05/27/2008
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
CASES CITED: Alessa Pty Ltd v Total & Universal Pty Ltd (RLD) [2002] NSWADTAP 16
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189
Building Professionals Board v Ball [2008] NSWADT 154
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164Kioa v West (1985) 159 CLR 550
McGovern v Ku-ring-gai Council [2008] NSWCA 209
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1
Miriani v Commissioner of Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 73
Miriani v Commissioner of Fair Trading, Office of Fair Trading [2006] NSWADT 52
Murtagh & Anor v Taylor (EOD) [2005] NSWADTAP 18
Prasad & anor v Fairfield City Council (RLD) [2002] NSWADTAP 2Telstra Corporation Ltd v Barrow (1994) 19 AAR 523
Wilson v Phoenix Contracting Services & Anor (1998) 14 VAR 52; [1998] VSC 81
WL v Randwick City Council [2008] NSWADT 87
WL v Randwick City Council (No 2) (GD) [2008] NSWADT 52
Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18
REPRESENTATION:

APPLICANT
G Elliott, barrister

RESPONDENT
T Howard, barrister
ORDERS: 1. Order 2 of the Tribunal made on 27 May 2008 is set aside
2. The matter is set down for further directions at 9.30 a.m. on 13 November 2008.


Introduction

1 In the decision under appeal (Building Professionals Board v Ball [2008] NSWADT 154), the Tribunal dismissed a disciplinary application lodged under the Building Professionals Act 2005 by the Appellant, the Building Professionals Board (‘the Board’). The application sought a disciplinary finding and consequential orders against the Respondent, Mr Darren Ball, who is an accredited certifier.

2 In the same decision, the Tribunal held, at paragraphs [65] to [71], that the Board should pay Mr Ball’s costs of the proceedings.

3 The Board does not dispute the order dismissing its application, but has appealed against the costs order. In substance, its grounds of appeal are (a) that the Tribunal made the costs order without according procedural fairness to the Board and (b) that the applicable criterion of ‘special circumstances warranting an award of costs’ was not satisfied.

4 In the present decision, we deal only with the first of these…

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AGLC
Building Professionals Board v Ball [2008] NSWADTAP 70
Case
[2008] NSWADTAP 70
Decision Date

CaseChat Overview and Summary

In this case, the Building Professionals Board sought a review of a decision made by the Tribunal, which had set aside a penalty imposed on the respondent, Mr Ball. The Tribunal's decision was made following a hearing where Mr Ball was found to have contravened certain provisions of the Building Act. The Board argued that the Tribunal had erred in its consideration of procedural fairness and the appropriate penalty. The matter was heard in the Supreme Court.

The primary legal issue before the court was whether the Tribunal had acted in a manner that was procedurally unfair, particularly in relation to the consideration of costs and the appropriate penalty to be imposed on Mr Ball. The Board contended that the Tribunal had failed to properly consider the relevant statutory provisions and had erred in setting aside the penalty. The court was also required to determine whether the matter should be remitted back to the Tribunal for further consideration or whether it should be resolved by the court itself.

The court found that the Tribunal had indeed failed to adequately consider the relevant statutory provisions and had erred in setting aside the penalty without adequate justification. The court held that the Tribunal's failure to properly consider the issue of costs and the appropriate penalty constituted a breach of procedural fairness. As a result, the court set aside the Tribunal's decision and ordered further directions. The court determined that the matter should be remitted back to the Tribunal for further consideration, rather than resolving the matter itself.

The orders made by the court included setting aside the Tribunal's decision and directing the matter to be remitted back to the Tribunal for further consideration. The court also set down a date for further directions to ensure that the matter was resolved in a timely manner.

Orders

Orders of the court

1. Order 2 of the Tribunal made on 27 May 2008 is set aside 2. The matter is set down for further directions at 9.30 a.m. on 13 November 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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