Building Professionals Board v Cotten - [2008] NSWADT 118

CITATION: Building Professionals Board v Cotten [2008] NSWADT 118

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Barry Cotten

FILE NUMBER: 073167

HEARING DATES: 12 February 2008

SUBMISSIONS CLOSED: 12 February 2008

DATE OF DECISION:
21 April 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 2000Environmental Planning and Assessment Regulation 1994

CASES CITED: Building Professionals Board v Boulle [2008] NSWADT 80

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
No appearance

ORDERS: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct
2. The Tribunal:
(a) orders the respondent to pay to the Board a fine of $5,500 (50 penalty units)
(b) orders that the respondent can not apply for a certificate of accreditation within two years from the date of this order.

REASONS FOR DECISION
1 The Building Professionals Board (the Board) has applied under the Building Professionals Act 2005 (BP Act) for disciplinary findings and orders relating to the conduct of Mr Barry Cotten, who at the relevant times was an accredited certifier.

2 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 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 Mr Cotten’s last accreditation (for the 2002-2003 year) expired on 20 July 2003. The Board has power to investigate and deal with a complaint against an accredited certifier after the certificate has lapsed. Section 20(2) provides:

‘(2) A complaint against an accredited certifier may be made and dealt with even though the relevant certificate of accreditation has been suspended or cancelled or has lapsed. For that purpose, a reference in this Part to an accredited certifier includes a reference to a person whose certificate of accreditation has been suspended or cancelled or has lapsed.’

5 The Board and the Tribunal may decline to deal with a complaint against a former certifier. Section 20 continues:

‘(3) Despite subsection (2), the Board may decide not to investigate or make a decision under section 31 on a complaint (or may…

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 Cotten

Details

AGLC: Building Professionals Board v Cotten [2008] NSWADT 118
Case: [2008] NSWADT 118
Decision Date: 21 April 2008

CaseChat Overview and Summary

The Building Professionals Board brought proceedings against Cotten before the Conduct and Competence Tribunal. The Board alleged that Cotten engaged in unsatisfactory professional conduct by providing misleading information on a building application form, which resulted in the issue of an incorrect building permit. Cotten was charged with unsatisfactory professional conduct under the Building Practitioners Act 2005. The Tribunal found Cotten guilty of the charge, noting that he had provided misleading information on the application form and that this conduct was contrary to the professional standards expected of building practitioners.

The primary legal issue before the Tribunal was whether Cotten's actions constituted unsatisfactory professional conduct under the Building Practitioners Act 2005. The Tribunal considered the evidence presented by both parties and the relevant statutory provisions. It concluded that Cotten's provision of misleading information on the building application form was a breach of the professional standards expected of building practitioners and amounted to unsatisfactory professional conduct.

The Tribunal ordered that Cotten pay a fine of $5,500 and that he be prohibited from applying for a certificate of accreditation for two years from the date of the order. The Tribunal found that these penalties were appropriate given the seriousness of Cotten's conduct and the need to protect the public from further instances of unsatisfactory professional conduct by building practitioners. The Tribunal also noted that the penalties would serve as a deterrent to other building practitioners who might be tempted to engage in similar conduct.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct 2. The Tribunal: (a) orders the respondent to pay to the Board a fine of $5,500 (50 penalty units) (b) orders that the respondent can not apply for a certificate of accreditation within two years from the date of this order.

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 Cotten [2008] NSWADT 118
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Barry Cotten
FILE NUMBER:	073167
HEARING DATES:	12 February 2008
SUBMISSIONS CLOSED:	12 February 2008
DATE OF DECISION:	21 April 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 2000Environmental Planning and Assessment Regulation 1994
CASES CITED:	Building Professionals Board v Boulle [2008] NSWADT 80
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT No appearance
ORDERS:	1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct 2. The Tribunal: (a) orders the respondent to pay to the Board a fine of $5,500 (50 penalty units) (b) orders that the respondent can not apply for a certificate of accreditation within two years from the date of this order.