Building Professionals Board v Cohen (No. 2) - [2010] NSWADT 266

CITATION: Building Professionals Board v Cohen (No. 2) [2010] NSWADT 266

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Bernard Cohen

FILE NUMBER: 073165, 073166

HEARING DATES: 22 June 2010, 21 July 2010

SUBMISSIONS CLOSED: 6 September 2010

DATE OF DECISION:
8 November 2010

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

CATCHWORDS: Accredited Certifier - Disciplinary Order - Cancellation of Accreditation

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules 1998
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979

CASES CITED: O'Malley v Director of the Building Professionals Board, Department of Planning (GD) [2006] NSWADTAP 52
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93

REPRESENTATION:
APPLICANT
A Grey, solicitor, Building Professionals Board
RESPONDENT
B DeBuse, counsel / Marsdens Law Group

ORDERS: 1. The respondent's certificate of accreditation is cancelled.
2. The respondent can not re-apply for a certificate of accreditation for two years.
3. The respondent is disqualified from being an accredited certifier director of, or being otherwise involved in the management of, an accredited body corporate for five years.
4. The respondent pay a fine of $12,000.

1 In our decision delivered 8 March 2010, the Tribunal found the respondent, Bernard Cohen, an accredited certifier, guilty under s 31(1) of the Building Professionals Act 2005 (BP Act) of professional misconduct. The finding related to his conduct in respect of two developments: a child care centre located at Harrington Park, municipality of Camden, final occupation certificate issued 18 June 2004 (Tribunal file no. 073165); and an office building at Camden, final occupation certificate issued 14 July 2005 (Tribunal file no. 073166). The complaints that give rise to this outcome were made by a senior officer of the Camden Council, in July 2005 and February 2006 respectively.

2 In each case, Mr Cohen made basic errors of judgment in relation to fire safety requirements and disability access requirements at both the construction certificate and occupation certificate stages.

3 On that occasion, we concluded our decision with the following observations:

203 In both applications there were fire safety omissions of the same type going to: inadequate separation distances between openings (windows, doors, columns) and the perimeter boundary; required exit doors swinging against the direction of egress; obstruction of exits or exit pathways; inadequate exit signage; and lack of required certification as to fire rating compliance for floor coverings. In addition, in one or other of the applications the omissions went to: lack of automatic shut down of air conditioning; lack of automatic smoke detection and alarm system (the child care centre); and lack of lever handles on doors in exit paths (the office building).
204 Disability access standards are a relatively new feature of building regulation. The community’s expectation is that they be actively enforced and implemented. The omissions proven went to: failure to ensure, in several respects, that toilets were compliant with accessibility standards (the child care…

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: [2010] NSWADT 266
Decision Date: 8 November 2010

CaseChat Overview and Summary

In this case, the Building Professionals Board sought to revoke the accreditation of the respondent, Mr. Cohen, an accredited certifier, following a disciplinary hearing. The Board alleged that Mr. Cohen had engaged in conduct unbecoming of a certified professional, leading to the decision being brought before the court. The court was required to determine whether the Board's decision to revoke Mr. Cohen's accreditation was justified and whether the proposed penalties were appropriate.

The primary legal issue before the court was whether the disciplinary action taken by the Board against Mr. Cohen was justified based on the evidence presented. This involved assessing whether Mr. Cohen's conduct warranted revocation of his accreditation and whether the penalties imposed were proportionate and reasonable. The court needed to balance the need to maintain professional standards within the building industry with the rights of the individual concerned.

In delivering its judgment, the court found that Mr. Cohen's conduct was indeed serious enough to warrant the revocation of his accreditation. The court considered the evidence of misconduct, including instances of providing false or misleading information and failing to comply with industry standards. The court concluded that the penalties imposed by the Board were neither excessive nor inadequate, given the seriousness of the misconduct. Consequently, the court upheld the Board's decision to cancel Mr. Cohen's accreditation, prohibiting him from re-applying for two years, disqualifying him from management roles for five years, and imposing a fine of $12,000.

Orders

Orders of the court

1. The respondent's certificate of accreditation is cancelled.

2. The respondent can not re-apply for a certificate of accreditation for two years.

3. The respondent is disqualified from being an accredited certifier director of, or being otherwise involved in the management of, an accredited body corporate for five years.

4. The respondent pay a fine of $12,000.

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 Cohen (No. 2) [2010] NSWADT 266
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Bernard Cohen
FILE NUMBER:	073165, 073166
HEARING DATES:	22 June 2010, 21 July 2010
SUBMISSIONS CLOSED:	6 September 2010
DATE OF DECISION:	8 November 2010
BEFORE:	O'Connor K - DCJ (President); O'Carrigan P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier - Disciplinary Order - Cancellation of Accreditation
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules 1998 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979
CASES CITED:	O'Malley v Director of the Building Professionals Board, Department of Planning (GD) [2006] NSWADTAP 52 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93
REPRESENTATION:	APPLICANT A Grey, solicitor, Building Professionals Board RESPONDENT B DeBuse, counsel / Marsdens Law Group
ORDERS:	1. The respondent's certificate of accreditation is cancelled. 2. The respondent can not re-apply for a certificate of accreditation for two years. 3. The respondent is disqualified from being an accredited certifier director of, or being otherwise involved in the management of, an accredited body corporate for five years. 4. The respondent pay a fine of $12,000.