Appeal Panel - Internal
CITATION: Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8 PARTIES: APPELLANT
RESPONDENT
Building Professionals Board
Darren BallFILE NUMBER: 089044 HEARING DATES: 10 December 2008 SUBMISSIONS CLOSED: 10 December 2008
DATE OF DECISION:
23 February 2009BEFORE: Chesterman M - Deputy President; Leal S - Judicial Member; Hayward P - Non-Judicial Member CATCHWORDS: Costs at first instance - costs of appeal - disciplinary application - accredited certifier 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
Administrative Decisions Tribunal Amendment Act 2008
Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000CASES CITED: Building Professionals Board v Ball [2008] NSWADT 154
Building Professionals Board v Ball (GD) [2008] NSWADTAP 70
Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Insley v State Electoral Commissioner & Ors [2001] NSWADT 24
Latoudis v Casey (1990) 170 CLR 534
Mahenthirasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Warringah Shire Council v Moy (2005) 142 LGERA 343; [2005] NSWLEC 416REPRESENTATION: APPLICANT
RESPONDENT
G Elliott, barrister
T Howard, barristerORDERS: 1. Leave granted for the appeal to extend to the merits
2. Leave granted for the Appellant to adduce further evidence
3. The Appellant is to pay the Respondent’s costs, as agreed or assessed, relating to the proceedings at first instance
4. No order as to the costs of the appeal.
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 (‘the BP Act’) 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 did not dispute the order dismissing its application. It appealed against the costs order only. In substance, its grounds of appeal were (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’, laid down in section 88(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), had not been satisfied.
4 In a decision delivered on 7 November 2008 (Building Professionals Board v Ball (GD) [2008] NSWADTAP 70), we upheld the first of these grounds of…
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- Case
- [2009] NSWADTAP 8
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the tribunal was whether the Board was entitled to costs at first instance and on appeal, and if so, the amount of those costs. The tribunal also had to consider whether the Board should be granted leave to adduce further evidence.
In its decision, the tribunal noted that the Board was entitled to costs at first instance, as the Board had been successful in having Mr Ball's accreditation revoked. The tribunal also noted that the Board was not entitled to costs on appeal, as the appeal had not been entirely successful. The tribunal further found that the Board should be granted leave to adduce further evidence, as the evidence was necessary to establish the Board's case.
The tribunal made an order granting leave for the appeal to extend to the merits, granting leave for the Board to adduce further evidence, ordering that the Board was to pay the Respondent's costs, as agreed or assessed, relating to the proceedings at first instance, and making no order as to the costs of the appeal.
Orders
Orders of the court
1. Leave granted for the appeal to extend to the merits 2. Leave granted for the Appellant to adduce further evidence 3. The Appellant is to pay the Respondent's costs, as agreed or assessed, relating to the proceedings at first instance 4. No order as to the costs of the appeal.
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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