Building Professionals Board v Ball (No 2) (GD) - [2009] NSWADTAP 8

Appeal Panel - Internal

CITATION: Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8

PARTIES:
APPELLANT
Building Professionals Board
RESPONDENT
Darren Ball

FILE NUMBER: 089044

HEARING DATES: 10 December 2008

SUBMISSIONS CLOSED: 10 December 2008

DATE OF DECISION:
23 February 2009

BEFORE: 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 2000

CASES 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 416

REPRESENTATION:
APPLICANT
G Elliott, barrister
RESPONDENT
T Howard, barrister

ORDERS: 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…

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: [2009] NSWADTAP 8
Decision Date: 23 February 2009

CaseChat Overview and Summary

In the matter of Building Professionals Board v Ball (No 2), the Building Professionals Board sought to discipline an individual, Mr Ball, who was an accredited certifier. The Board's application was dismissed by the tribunal, and the Board appealed to the Civil and Administrative Tribunal of New South Wales. The Board sought an order for costs at first instance and on appeal, and the tribunal had to determine the appropriate costs to be awarded.

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

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.

CITATION:	Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8
PARTIES:	APPELLANT Building Professionals Board RESPONDENT Darren Ball
FILE NUMBER:	089044
HEARING DATES:	10 December 2008
SUBMISSIONS CLOSED:	10 December 2008
DATE OF DECISION:	23 February 2009
BEFORE:	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 2000
CASES 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 416
REPRESENTATION:	APPLICANT G Elliott, barrister RESPONDENT T Howard, barrister
ORDERS:	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.