Building Professionals Board v Cohen - [2010] NSWADT 62

CITATION: Building Professionals Board v Cohen [2010] NSWADT 62

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Bernard Cohen

FILE NUMBER: 073165, 073166

HEARING DATES: 22 April 2009

SUBMISSIONS CLOSED: 17 September 2009

DATE OF DECISION:
8 March 2010

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

CATCHWORDS: Accredited Certifier – Applications for Disciplinary Finding – Construction and Final Occupation Certificates – Fire Safety – Disability Access – Delegation of Final Inspection – Applicable Professional Standard at the time – Finding of Professional Misconduct – Building Professionals Act 2005

LEGISLATION CITED: Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003
Environmental Planning and Assessment Regulation 2000

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Building Professionals Board v Boulle [2008] NSWADT 80
Building Professionals Board v Cogo [2008] NSWADT 119
Dix v Building Professionals Board [2009] NSWADT 46

REPRESENTATION:
APPLICANT
A Grey, solicitor, Building Professionals Board
RESPONDENT
G Butterfield, solicitor, Marsdens Law Group

ORDERS: 073165, 073166
1. The Tribunal finds the Respondent guilty of professional misconduct.
2. Registrar to fix a date for a directions hearing in relation to the Applicant’s applications for disciplinary orders.

Applications

1 On 29 May 2007 the Building Professionals Board (the Board) lodged two applications with the Tribunal under s 31 of the Building Professionals Act 2005 (the BP Act) applying for disciplinary findings and orders to be made against an accredited certifier, Mr Bernard Cohen, trading as Essential Certifiers. The material text of the applications is appended.

2 At all relevant times, Mr Cohen held, under the classification system then used, accreditation as a certifier and principal certifying authority in respect of the class of buildings the subject of these proceedings.

Procedural Matters

3 Regulatory Background: The BP Act came fully into force on 1 March 2007. The current disciplinary arrangements replace an earlier system that dated from the foundation of the accredited certifier office in 1998.

4 The applications in this case were lodged under the provisions of the BP Act as in force in May 2007. At that point it was mandatory for the Board to refer to the Tribunal cases where it formed the preliminary view that a finding of professional misconduct could be made (with the consequence that a severe disciplinary order might be appropriate, such as suspension or removal of accreditation).

5 Since then there has been a further significant change, with the Board now having a full authority to make findings of professional misconduct, and to impose orders that include suspension or removal of accreditation. This change came into effect in August 2008.

6 Board Investigation: In accordance with Tribunal requirements, the respondent was given the opportunity to raise any objection to jurisdiction related to any failure of the Board, or the predecessor accreditation authority, to observe statutory requirements that are pre-conditions to the Tribunal exercising jurisdiction. There has been no objection. This matter is not…

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 Cohen

Details

AGLC: Building Professionals Board v Cohen [2010] NSWADT 62
Case: [2010] NSWADT 62
Decision Date: 8 March 2010

CaseChat Overview and Summary

The Building Professionals Board sought disciplinary action against Cohen, an accredited certifier, for issuing construction and final occupation certificates that did not comply with the standards set forth in the Building Professionals Act 2005. The issue at the heart of this case was whether Cohen's actions constituted professional misconduct under the Act. Cohen had delegated the final inspection of a building to an assistant, which he claimed was permissible under the Act. However, the Board argued that Cohen's delegation did not meet the professional standard required at the time of the inspection.

The Tribunal was required to determine whether Cohen's conduct amounted to professional misconduct and, if so, what disciplinary action should be taken. The key legal issues included whether Cohen's delegation of the final inspection met the professional standards required under the Act, and whether the certificates issued were compliant with the Building Regulations 2006. The Tribunal also had to consider the applicable professional standards at the time of the inspection and whether Cohen's actions fell below those standards.

The Tribunal found that Cohen's conduct did amount to professional misconduct. Cohen had failed to personally conduct the final inspection, thereby breaching the standards set out in the Building Professionals Act 2005. The Tribunal held that Cohen's delegation of the final inspection to an assistant did not meet the professional standards required at the time, and that the certificates issued did not comply with the Building Regulations 2006. As a result, Cohen was found guilty of professional misconduct. The Tribunal ordered that a directions hearing be scheduled to determine the appropriate disciplinary orders against Cohen.

Orders

Orders of the court

073165, 073166

1. The Tribunal finds the Respondent guilty of professional misconduct.

2. Registrar to fix a date for a directions hearing in relation to the Applicant’s applications for disciplinary orders.

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 Cohen [2010] NSWADT 62
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Bernard Cohen
FILE NUMBER:	073165, 073166
HEARING DATES:	22 April 2009
SUBMISSIONS CLOSED:	17 September 2009
DATE OF DECISION:	8 March 2010
BEFORE:	O'Connor K - DCJ (President); O'Carrigan P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Applications for Disciplinary Finding – Construction and Final Occupation Certificates – Fire Safety – Disability Access – Delegation of Final Inspection – Applicable Professional Standard at the time – Finding of Professional Misconduct – Building Professionals Act 2005
LEGISLATION CITED:	Building Professionals Act 2005 Building Professionals Regulation 2007 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Building Professionals Board v Boulle [2008] NSWADT 80 Building Professionals Board v Cogo [2008] NSWADT 119 Dix v Building Professionals Board [2009] NSWADT 46
REPRESENTATION:	APPLICANT A Grey, solicitor, Building Professionals Board RESPONDENT G Butterfield, solicitor, Marsdens Law Group
ORDERS:	073165, 073166 1. The Tribunal finds the Respondent guilty of professional misconduct. 2. Registrar to fix a date for a directions hearing in relation to the Applicant’s applications for disciplinary orders.