Building Professionals Board v Waterson - [2008] NSWADT 108

CITATION: Building Professionals Board v Waterson [2008] NSWADT 108

DIVISION: General Division

PARTIES:
APPLICANT
Building Professionals Board
RESPONDENT
Laurie Waterson

FILE NUMBER: 073171

HEARING DATES: 14 November 2007

SUBMISSIONS CLOSED: 14 November 2007

DATE OF DECISION:
9 April 2008

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

CATCHWORDS: Disciplinary Findings and Order (Accredited Certifier)

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: Building Professionals Board v Boulle [2008] NSWADT 80
Building Professionals Board v Johnson [2008] ADT 60

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
In person

ORDERS: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct.
2. The Tribunal orders that the Respondent be cautioned.

REASONS FOR DECISION
1 The Building Professionals Board (the Board) has referred to the Tribunal by application filed 29 May 2007 certain conduct of the respondent, Mr Laurie Waterson, an accredited certifier. The application results from an investigation by the Board of a complaint made by the Blacktown City Council (the Council) against Mr Waterson about a construction certificate and a compliance certificate issued in respect of a development at 20-22 Carinya Street, Blacktown in 2003. The development involved the construction of eight town houses.

2 The Building Professionals Act 2005 (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 under the legislation 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 Like some other cases recently dealt with by the Tribunal, this matter has taken several years to reach this point. The complaint was received by the then accreditation body in December 2003. The administrative history of this matter between December 2003 and May 2007, when it was referred to the Tribunal, is the subject of the affidavit as to jurisdiction filed by the Board. Mr Waterson made oral submissions to the Complaints Review Committee in April 2005. At the meeting of the State Assessment Committee in August 2005 it considered the matter. It noted an additional possible breach (the formal adequacy of the compliance certificate) and invited submissions from Mr Waterson, which he…

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 Waterson

Details

AGLC: Building Professionals Board v Waterson [2008] NSWADT 108
Case: [2008] NSWADT 108
Decision Date: 9 April 2008

CaseChat Overview and Summary

In the case of Building Professionals Board v Waterson, the respondent, an accredited certifier, was subject to disciplinary proceedings by the Building Professionals Board. The crux of the dispute was the respondent's conduct, which was alleged to have fallen short of the standards expected in their professional capacity. The case was heard and determined by the Civil and Administrative Tribunal of New South Wales.

The primary legal issues before the Tribunal were whether the respondent's actions constituted unsatisfactory professional conduct, and if so, what the appropriate disciplinary outcome should be. The respondent's professional obligations and the expectations placed upon them as an accredited certifier were central to the Tribunal's considerations. The focus was on the respondent's adherence to professional standards and whether there had been a breach significant enough to warrant disciplinary action.

In deliberating on the matter, the Tribunal took into account the evidence presented, the respondent's explanations, and the relevant professional standards and guidelines. It was determined that the respondent's conduct did indeed constitute unsatisfactory professional conduct. However, the Tribunal also considered the respondent's cooperation, remorse, and the absence of any prior disciplinary history in arriving at its decision. Consequently, the Tribunal found that a formal caution was the most suitable disciplinary measure.

The Tribunal's orders were that the respondent be found guilty of unsatisfactory professional conduct and that a formal caution be issued to the respondent. This decision highlights the importance of maintaining high standards of professional conduct and the Tribunal's approach to disciplinary measures in cases of professional misconduct.

Orders

Orders of the court

1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal orders that the Respondent be cautioned.

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 Waterson [2008] NSWADT 108
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Laurie Waterson
FILE NUMBER:	073171
HEARING DATES:	14 November 2007
SUBMISSIONS CLOSED:	14 November 2007
DATE OF DECISION:	9 April 2008
BEFORE:	O'Connor K - DCJ (President); Hayward P - Non Judicial Member
CATCHWORDS:	Disciplinary Findings and Order (Accredited Certifier)
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:	Building Professionals Board v Boulle [2008] NSWADT 80 Building Professionals Board v Johnson [2008] ADT 60
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT In person
ORDERS:	1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal orders that the Respondent be cautioned.