Building Professionals Board v Boulle - [2009] NSWADT 9

CITATION: Building Professionals Board v Boulle [2009] NSWADT 9

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Ivan Boulle

FILE NUMBER: 083164

HEARING DATES: 13 August 2008

SUBMISSIONS CLOSED: 13 August 2008

DATE OF DECISION:
16 January 2009

BEFORE: O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member

CATCHWORDS: Accredited Certifier – Application for Disciplinary Findings and Orders – Exceeding Authority of Accreditation – False Substitute Certificate – Professional Misconduct – Building Professionals Act 2005

LEGISLATION CITED: Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED: Building Professionals Board v Boulle [2008] NSWADT 80
Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43
Law Society of New South Wales v Young (No 3) [2001] NSWADTAP 38
Law Society of New South Wales v Young [1999] NSWADT 78
Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191

REPRESENTATION:
APPLICANT
A Grey, legal officer
RESPONDENT
K Lovegrove, solicitor, Lovegrove and Lord

ORDERS: 1. The Tribunal finds the Respondent guilty of professional misconduct.
2. The Tribunal orders that the Respondent’s certificate of accreditation be cancelled; and that the Respondent cannot re-apply for a certificate of accreditation for 9 months.
3. These orders are to take effect on 1 February 2009 or on such later date as is permitted by the Applicant.

1 On 21 May 2008 the Building Professionals Board applied to the Tribunal under the Building Professionals Act 2005 (the Act) for disciplinary findings and orders to be made against Mr Ivan Boulle over his conduct in connection with a development. The material text of the application is appended.

2 At all relevant times Mr Boulle held under the classification system then used, a certificate of accreditation as an Accredited Certifier and Principal Certifying Authority – Building (Grade 3). He has been accredited since 2 March 1999.

3 The conduct in issue occurred in the period July-August 2006. Mr Boulle was the accredited certifier and principal certifying authority (PCA) for a development at 71-75 Sydney Street, Willoughby. The development took the form of a two storey residential care facility. It was a class 9C building under the Building Code of Australia. The developer was Grindley Constructions Pty Ltd.

4 He issued a construction certificate for the development on 25 July 2006, and notified the Council of his appointment as PCA. On 1 August 2006 the Council notified the developer that, in its opinion, the construction certificate was invalid, as Mr Boulle did not hold the required level of accreditation. While his accreditation, Grade 3, covered class 9 buildings of three storeys or less, it was restricted to buildings that did not exceed 2000 square metres in floor area. This building’s floor area was 3267 square metres. In his Reply lodged 9 July 2008 Mr Boulle admitted the particulars of this allegation (‘exceeding authority of accreditation’) but did not admit that it amounted to professional misconduct. He asserted that the floor area was only in excess by…

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 Boulle

Details

AGLC: Building Professionals Board v Boulle [2009] NSWADT 9
Case: [2009] NSWADT 9
Decision Date: 16 January 2009

CaseChat Overview and Summary

Building Professionals Board brought an application against Mr Boulle, an accredited certifier, seeking disciplinary findings and orders based on allegations of exceeding the authority of his accreditation and issuing a false substitute certificate. The matter was heard by the Civil and Administrative Tribunal. The primary legal issues the Tribunal needed to address were whether Mr Boulle had engaged in professional misconduct and, if so, what appropriate disciplinary orders should be imposed. The Tribunal found that Mr Boulle had indeed acted in a manner that constituted professional misconduct. He had exceeded the authority of his accreditation by providing a substitute certificate for a building that was not within his approved scope of work, and had also falsified a substitute certificate. These actions were serious breaches of professional standards and undermined public confidence in the building certification process. As a result, the Tribunal ordered that Mr Boulle's certificate of accreditation be cancelled, and that he be barred from reapplying for a certificate of accreditation for a period of nine months. These orders were to take effect on 1 February 2009, or on such later date as the Building Professionals Board deemed appropriate.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of professional misconduct. 2. The Tribunal orders that the Respondent's certificate of accreditation be cancelled; and that the Respondent cannot re-apply for a certificate of accreditation for 9 months. 3. These orders are to take effect on 1 February 2009 or on such later date as is permitted by the Applicant.

Background

Background to the litigation

Full text does not contain this section.

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 Boulle [2009] NSWADT 9
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Ivan Boulle
FILE NUMBER:	083164
HEARING DATES:	13 August 2008
SUBMISSIONS CLOSED:	13 August 2008
DATE OF DECISION:	16 January 2009
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Application for Disciplinary Findings and Orders – Exceeding Authority of Accreditation – False Substitute Certificate – Professional Misconduct – Building Professionals Act 2005
LEGISLATION CITED:	Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Building Professionals Board v Boulle [2008] NSWADT 80 Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43 Law Society of New South Wales v Young (No 3) [2001] NSWADTAP 38 Law Society of New South Wales v Young [1999] NSWADT 78 Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191
REPRESENTATION:	APPLICANT A Grey, legal officer RESPONDENT K Lovegrove, solicitor, Lovegrove and Lord
ORDERS:	1. The Tribunal finds the Respondent guilty of professional misconduct. 2. The Tribunal orders that the Respondent’s certificate of accreditation be cancelled; and that the Respondent cannot re-apply for a certificate of accreditation for 9 months. 3. These orders are to take effect on 1 February 2009 or on such later date as is permitted by the Applicant.