Building Professionals Board v Duffy - [2008] NSWADT 117

CITATION: Building Professionals Board v Duffy [2008] NSWADT 117

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Peter Duffy

FILE NUMBER: 073169, 073287

HEARING DATES: 11 December 2007

SUBMISSIONS CLOSED: 11 December 2007

DATE OF DECISION:
18 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 2000

CASES CITED: Legal Services Commissioner v Tsolakis [2000] NSWADT 21
Building Professionals Board v Boulle [2008] NSWADT 80

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
K Lovegrove, solicitor

ORDERS: 1. The Tribunal finds the Respondent guilty of:
(a) professional misconduct in respect of his failure to respond to notices served by the accreditation body; and
(b) unsatisfactory professional conduct in respect of his failure to provide copies of certificates to Council
2. The Tribunal orders the Respondent not to re-apply for a certificate of accreditation within two years from the date of this order.

REASONS FOR DECISION
1 The Building Professionals Board has made two applications under the Building Professionals Act 2005 (BP Act) for disciplinary findings and orders relating to the conduct of Peter Duffy, 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 Duffy allowed his accreditation to lapse in 2006. 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…

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 Duffy

Details

AGLC: Building Professionals Board v Duffy [2008] NSWADT 117
Case: [2008] NSWADT 117
Decision Date: 18 April 2008

CaseChat Overview and Summary

In the matter of Building Professionals Board v Duffy, the Respondent, an architect, was subject to disciplinary proceedings for his failure to respond to notices and provide copies of certificates to Council. The Building Professionals Board brought the matter before the Tribunal, seeking disciplinary action against the Respondent. The central legal issues that the Tribunal had to resolve were whether the Respondent's conduct constituted professional misconduct and whether it amounted to unsatisfactory professional conduct. Furthermore, the Tribunal needed to determine the appropriate sanction to impose in light of the findings.

The Tribunal considered the evidence presented and the relevant statutory provisions governing the conduct of architects. It concluded that the Respondent's failure to respond to notices served by the accreditation body amounted to professional misconduct, as it demonstrated a disregard for the regulatory process. Additionally, the Tribunal found that the Respondent's failure to provide copies of certificates to Council constituted unsatisfactory professional conduct, as it displayed a lack of diligence and attention to professional obligations. The Tribunal carefully weighed the evidence and the applicable standards of conduct to reach these conclusions.

Based on its findings, the Tribunal imposed a sanction on the Respondent, ordering that he is not to re-apply for a certificate of accreditation within two years from the date of the order. This decision reflects the Tribunal's assessment of the gravity of the Respondent's misconduct and its aim to maintain the integrity of the architectural profession. The Tribunal's order serves as a deterrent to future misconduct and reinforces the importance of compliance with professional standards.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of: (a) professional misconduct in respect of his failure to respond to notices served by the accreditation body; and (b) unsatisfactory professional conduct in respect of his failure to provide copies of certificates to Council 2. The Tribunal orders the Respondent not to re-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 Duffy [2008] NSWADT 117
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Peter Duffy
FILE NUMBER:	073169, 073287
HEARING DATES:	11 December 2007
SUBMISSIONS CLOSED:	11 December 2007
DATE OF DECISION:	18 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 2000
CASES CITED:	Legal Services Commissioner v Tsolakis [2000] NSWADT 21 Building Professionals Board v Boulle [2008] NSWADT 80
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT K Lovegrove, solicitor
ORDERS:	1. The Tribunal finds the Respondent guilty of: (a) professional misconduct in respect of his failure to respond to notices served by the accreditation body; and (b) unsatisfactory professional conduct in respect of his failure to provide copies of certificates to Council 2. The Tribunal orders the Respondent not to re-apply for a certificate of accreditation within two years from the date of this order.