Building Professionals Board v Ball

Case [2008] NSWADT 154


Set aside by Appeal:


CITATION: Building Professionals Board v Ball [2008] NSWADT 154
This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION: General Division
PARTIES:

APPLICANT
Building Professionals Board

RESPONDENT
Darren Ball
FILE NUMBER: 073162
HEARING DATES: 12 December 2007
SUBMISSIONS CLOSED: 7 March 2008
 
DATE OF DECISION: 

27 May 2008
BEFORE: Olsson E SC - Deputy President; Friedmann P - Non Judicial Member
CATCHWORDS: Disciplinary determination
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
CASES CITED: Craig v Medical Board of South Australia [2001] SASC 149
Director General Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43
Brooks Maher v Cheung [2001] NSWADT 18
Insley v State Electoral Commission [2001] NSWADT 24
REPRESENTATION:

APPLICANT
A Grey, solicitor

RESPONDENT
T Howard, barrister
ORDERS: 1. Application dismissed
2. Applicant to pay Respondents costs.

    REASONS FOR DECISION

    Introduction

    1 This matter is an application to the Administrative Decisions Tribunal for a disciplinary finding in relation to the Respondent who is an accredited certifier. The Applicant seeks findings that the Respondent is guilty of unsatisfactory professional conduct, or in the alternative, professional misconduct in relation to the issue by him of a construction certificate and fire safety schedule on 2 October 2003 for a warehouse development at 31 Glendenning Road, Glendenning.

    2 The Tribunal has jurisdiction to hear and determine the application as an original decision pursuant to section 31 of the Building Professionals Act 2005 and sections 7 and 37 of the Administrative Decisions Tribunal Act 1997, and has the power to make the findings, decisions and/or orders set out in section 34 of the Building Professionals Act 2005 which is to be read in conjunction with section 45 of the Administrative Decisions Tribunal Act 1997.

    3 The disciplinary findings which were sought by the Respondent were originally defined in Part 6 of the application to the Tribunal, but were refined at the hearing as follows:

            Pursuant to section 31(2) and (3) of the Building Professionals Act 2005 (“the BP Act”), the Building Professionals Board (“the applicant”) makes application for a disciplinary finding against Mr Darren Ball (“the respondent), being a finding of professional misconduct, or in the alternative, of unsatisfactory professional conduct, in respect of the matters set out below.

            General Description of Conduct

            A. A complaint was made pursuant to section 109(v) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) by Mr Brian Malouf of Blacktown City Council to the Department of Planning on 23 February 2005, against the respondent in relation to the inappropriate issue of a construction certificate, an occupation certificate, and other regulatory matters in respect to development 31 Glendenning Road, Glendenning.

            B. The Respondent was at all material times an accredited certifier and principal certifying authority pursuant to section 109T of the EP&A Act.

            The Respondent was accredited under the Building Surveyors & Allied Professions Accreditation Scheme (“the…

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Building Professionals Board v Ball [2008] NSWADT 154
Case
[2008] NSWADT 154
Decision Date

CaseChat Overview and Summary

The Building Professionals Board sought a review of a disciplinary determination made against a licensed building practitioner, Mr Ball, in the Administrative Appeals Division of the Civil and Administrative Tribunal of New South Wales. The Board sought to overturn the Tribunal's decision, which had found Mr Ball guilty of professional misconduct but had decided not to impose a penalty. The Board argued that the penalty imposed by the Tribunal was too lenient and sought either a harsher penalty or a rehearing of the matter. Mr Ball, on the other hand, opposed the application and argued that the Tribunal's decision should be upheld.

The court was required to decide whether the penalty imposed by the Tribunal was unreasonable and whether the matter should be remitted back to the Tribunal for rehearing. The court also had to determine whether the Board's application was an abuse of process. The central issue was whether the Tribunal had exercised its discretion in a way that was unreasonable or had failed to adequately consider the relevant factors in imposing the penalty.

The court found that the Tribunal had exercised its discretion reasonably and had adequately considered the relevant factors in imposing the penalty. The court held that the penalty imposed by the Tribunal was not unreasonable and that the Board's application was an abuse of process. The court dismissed the application and ordered that the applicant pay the respondents' costs. The court found that the Tribunal had followed the correct legal principles in imposing the penalty and had not failed to adequately consider the relevant factors. The court held that the Board's application was an abuse of process because it was brought for an improper purpose and was not in the interests of justice.

Orders

Orders of the court

1. Application dismissed 2. Applicant to pay Respondents costs.

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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