Building Professionals Board v Hans (No 2)

Case [2008] NSWADTAP 48

Appeal Panel - Internal

CITATION: Building Professionals Board v Hans (No.2) (GD) [2008] NSWADTAP 48
PARTIES:

APPELLANT
Building Professionals Board

RESPONDENT
Anthony Hans
FILE NUMBER: 079025
HEARING DATES: 9 May 2008
SUBMISSIONS CLOSED: 9 May 2008
 
DATE OF DECISION: 
29 July 2008
BEFORE: Chesterman M - Deputy President; Salier GA - Judicial Member; Hayward P - Non Judicial Member
CATCHWORDS: Accredited certifier - distribution between professional misconduct and unsatisfactory professional conduct - appropriate penalties - appeal allowed in part
MATTER FOR DECISION: Principal matter
DECISION UNDER APPEAL: Building Professionals Board v Hans [2007] NSWADT 83
FILE NUMBER UNDER APPEAL: 063382
DATE OF DECISION UNDER APPEAL: 04/12/2007
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QBD 750
Briginshaw v Briginshaw (1938) 60 CLR 336
Building Professionals Board v Boulle [2008] NSWADT 80
Building Professionals Board v Cogo [2008] NSWADT 119
Building Professionals Board v Hans [2007] NSWADT 83
Building Professionals Board v Hans (GD) [2008] NSWADTAP 13
Director, Building Professionals Branch, Department of Planning v Dallas [2006] NSWADT 231
Director General, Department of Infrastructure, Planning & Natural Resources v Boulle [2006] NSWADT 43
Director General, Department of Infrastructure, Planning & Natural Resources v Stapleton (No 2) [2004] NSWADT 70
Minister for Infrastructure and Planning v Conway (No 2) [2004] NSWADT 159
REPRESENTATION:

APPELLANT
D Chin, barrister

RESPONDENT
In person
ORDERS: 1. The appeal is allowed in part
2. The orders made by the Tribunal in its decision dated 12 April 2007 are varied as follows:
(a) Order 1 is set aside and the following order substituted: ‘The Respondent is guilty of professional misconduct’
(b) Order 3 is set aside and the following order substituted: ‘The Respondent is fined $11,000, payable within three months of the date of these reasons’
3. Any application for costs in these appeal proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

    REASONS FOR DECISION

    Introduction

    1 In this appeal, the Appellant, the Building Professionals Board (hereafter ‘the Board’) claimed that in the decision under appeal the Tribunal had made orders in disciplinary proceedings against the Respondent, an accredited certifier, that insufficiently reflected the seriousness of the matters that had been established against him.

    2 On 27 October 2006, the Board filed a disciplinary application in the Tribunal against the Respondent, Mr Anthony Hans, under section 109Z(2) of the now-repealed Environmental Planning and Assessment Act 1979 (‘the EPA Act’). Mr Hans was an accredited certifier under Part 4B of this Act.

    3 In the decision under appeal, which was delivered on 12 April 2007 (Building Professionals Board…

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AGLC
Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48
Case
[2008] NSWADTAP 48
Decision Date

CaseChat Overview and Summary

The Building Professionals Board sought to appeal a decision of the Administrative Appeals Tribunal (AAT) regarding the penalties imposed on Hans, an accredited certifier, for professional misconduct and unsatisfactory professional conduct. The Board contended that the penalties were too lenient and sought to have the AAT's decision varied to reflect a more severe penalty. The AAT had found Hans guilty of both professional misconduct and unsatisfactory professional conduct, and imposed a fine of $5,000 for the professional misconduct and a $1,000 fine for the unsatisfactory professional conduct. The Board argued that the appropriate penalty for professional misconduct should have been a suspension of accreditation for a period of two years and a fine of $15,000.

The central legal issue was the appropriate distribution of penalties between professional misconduct and unsatisfactory professional conduct, and the severity of the penalties imposed. The Board argued that the AAT had misapplied the principles for distributing penalties between the two types of misconduct, and that the penalties imposed were too lenient. The Board submitted that the professional misconduct warranted a more severe penalty than what was imposed by the AAT, while the unsatisfactory professional conduct warranted a penalty that was higher than what was imposed. The Board also argued that the AAT had not adequately considered the relevant factors in determining the appropriate penalties.

The court found that the AAT had erred in distributing the penalties between professional misconduct and unsatisfactory professional conduct. The court found that the professional misconduct warranted a more severe penalty than what was imposed by the AAT, and that the penalty for unsatisfactory professional conduct was too low. The court found that the appropriate penalty for professional misconduct was a fine of $11,000 and that the penalty for unsatisfactory professional conduct should be set aside. The court found that the AAT had not adequately considered the relevant factors in determining the appropriate penalties, and that the penalties imposed were too lenient. The court allowed the appeal in part and varied the orders of the AAT accordingly. The court set aside the orders imposing a penalty for unsatisfactory professional conduct and imposed a fine of $11,000 for professional misconduct.

Orders

Orders of the court

1. The appeal is allowed in part 2. The orders made by the Tribunal in its decision dated 12 April 2007 are varied as follows: (a) Order 1 is set aside and the following order substituted: `The Respondent is guilty of professional misconduct' (b) Order 3 is set aside and the following order substituted: `The Respondent is fined $11,000, payable within three months of the date of these reasons' 3. Any application for costs in these appeal proceedings must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved `on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

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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