Building Professionals Board v Ball - [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…

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.

Continue reading Building Professionals Board v Ball

Details

AGLC: Building Professionals Board v Ball [2008] NSWADT 154
Case: [2008] NSWADT 154
Decision Date: 27 May 2008

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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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.