Building Professionals Board v Boulle - [2008] NSWADT 80

CITATION: Building Professionals Board v Boulle [2008] NSWADT 80

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Ivan Boulle

FILE NUMBER: 073163

HEARING DATES: 14 November 2007

SUBMISSIONS CLOSED: 14 November 2007

DATE OF DECISION:
13 March 2008

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

CATCHWORDS: Disciplinary Findings and Order

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED: Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
In person

ORDERS: 1. The Tribunal finds the Respondent guilty of professional misconduct
2. The Tribunal orders that the Respondent: (a) Be reprimanded; and (b) Pay to the Board a fine of $5,500 within 60 days, or such further time as is allowed by the Board.

REASONS FOR DECISION
1 The Building Professionals Board (the Board) has referred to the Tribunal by application filed 29 May 2007 certain conduct of the respondent, Mr Ivan Boulle, an accredited certifier. The application results from an investigation by the Board of a complaint made by the Willoughby City Council (the Council) against Mr Boulle about a construction certificate issued on 21 January 2002. He approved the commencement of construction of a roof over an open-air roof-top car park.

2 The Building Professionals Act 2005 (the BP Act) regulates those who practise as accredited private certifiers, and has replaced earlier legislation which had been in force since 1998. The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Building Professionals Board is responsible under the legislation for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal.

3 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct, it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1).

4 The Council was the principal certifying authority for the development. It was responsible for issuance of compliance certificates and occupation certificates. In that capacity it perused the certificate issued by Mr Boulle and the associated plans. Its assessment was that if the building works were to be erected in accordance with the construction certificate, the development would fail to meet the deemed-to-satisfy provisions of the Building Code of Australia (BCA) concerning fire safety, in particular, provisions in Parts C1, C3, D1, E1, E4 and F4. The Council lodged its complaint on 4 April 2002, and the then responsible body for…

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 [2008] NSWADT 80
Case: [2008] NSWADT 80
Decision Date: 13 March 2008

CaseChat Overview and Summary

In the matter of Building Professionals Board v Boulle, the respondent was found guilty of professional misconduct by the Tribunal. The respondent, a registered building professional, was accused of breaches that included providing misleading information to clients and failing to comply with relevant legislation. The Tribunal was tasked with determining whether these allegations constituted professional misconduct and, if so, what the appropriate disciplinary action should be.

The legal issues before the Tribunal included whether the respondent's actions amounted to professional misconduct and, if so, the appropriate sanction. Professional misconduct, as defined by the applicable legislation, involves conduct that is substantially or seriously dishonourable or incompetent. The Tribunal had to assess the evidence and determine whether the respondent's conduct fell within this definition. Additionally, the Tribunal needed to consider the principles of proportionality and deterrence in deciding the appropriate penalty.

The Tribunal found that the respondent's actions constituted professional misconduct. The respondent had provided misleading information to clients and failed to adhere to the relevant building regulations, which undermined the trust and integrity expected of registered building professionals. In terms of the penalty, the Tribunal concluded that a combination of a reprimand and a monetary fine was appropriate. The reprimand served to publicly acknowledge the respondent's misconduct, while the fine aimed to provide a financial deterrent against future misconduct.

The Tribunal ordered that the respondent be reprimanded and pay a fine of $5,500 within 60 days, or such further time as allowed by the Board. This decision reinforces the importance of ethical conduct and compliance with legislation for building professionals and sets a precedent for similar cases in the future.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of professional misconduct 2. The Tribunal orders that the Respondent: (a) Be reprimanded; and (b) Pay to the Board a fine of $5,500 within 60 days, or such further time as is allowed by the Board.

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 Boulle [2008] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Ivan Boulle
FILE NUMBER:	073163
HEARING DATES:	14 November 2007
SUBMISSIONS CLOSED:	14 November 2007
DATE OF DECISION:	13 March 2008
BEFORE:	O'Connor K - DCJ (President); Hayward P - Non Judicial Member
CATCHWORDS:	Disciplinary Findings and Order
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Building Professionals Act 2005 Building Professionals Regulation 2007 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT In person
ORDERS:	1. The Tribunal finds the Respondent guilty of professional misconduct 2. The Tribunal orders that the Respondent: (a) Be reprimanded; and (b) Pay to the Board a fine of $5,500 within 60 days, or such further time as is allowed by the Board.