Dix v Building Professionals Board - [2010] NSWADT 160

CITATION: Dix v Building Professionals Board [2010] NSWADT 160

DIVISION: General Division

PARTIES:
APPLICANT
Lyall Dix
RESPONDENT
Building Professionals Board

FILE NUMBER: 093265

HEARING DATES: 24 and 25 February 2010

SUBMISSIONS CLOSED: 25 February 2010

DATE OF DECISION:
28 June 2010

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

CATCHWORDS: Accredited Certifier – Disciplinary decision of Board – Application for Review – Decision affirmed

LEGISLATION CITED: Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003
Environmental Planning and Assessment Amendment Regulation 2000
Local Government Act 1993

CASES CITED: Building Professionals Board v Boulle [2008] NSWADT 80
Building Professionals Board v Cohen [2010] NSWADT 62
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:
APPLICANT
I Hemmings, counsel / Lovegrove and Lord
RESPONDENT
A Grey, legal officer

ORDERS: Decision under review affirmed

1 Mr Dix, the review applicant, holds accreditation as a private certifier under the Building Professionals Act 2005 (BP Act). He has an unrestricted A1 accreditation. His curriculum vitae records that he has a degree in engineering and a diploma in urban and regional planning, and that he has held senior positions in major councils, senior positions in industry and regulatory bodies, including as chief executive officer of the Australian Building Codes Board, and is the principal assessor of building certifiers for the Institution of Engineers Australia. He was a principal of Dix Gardner Pty Ltd.

2 By decision made 13 August 2009, the regulator, the Building Professionals Board, found proven five allegations of incompetence in his certification of a residential flat development. The Board found him guilty of unsatisfactory professional conduct, and took the following action under s 31(4) of the BP Act: administered a reprimand and fined him the sum of $5000 payable within 28 days of the notice of decision.

3 Mr Dix has applied to the Tribunal pursuant to s 33 for review of the disciplinary finding and the action taken by the Board.

4 In line with usual practice for disciplinary proceedings of this kind, the Tribunal is constituted by a presidential member and a non-judicial member with relevant expertise, Mr Philip Hayward, a registered surveyor of standing and substantial experience.

The Development

5 The development under notice is a 72-flat residential complex made up of two buildings, each four storeys in height, located at 1-5 Durham Street, Mt Druitt. There is a below ground car park with 90+ spaces. Blacktown Council granted the development consent on 3 July 2003. Mr Dix issued the construction certificate on 25 August 2004, and the occupation certificate on 15 September 2005. The development belonged to the class 2 and class 7 categories under the BCA.

6 In December 2005, the New South Wales Fire Brigade (NSWFB) inspected the adequacy of the fire safety measures at the building after two instances of fires in…

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 Dix v Building Professionals Board

Details

AGLC: Dix v Building Professionals Board [2010] NSWADT 160
Case: [2010] NSWADT 160
Decision Date: 28 June 2010

CaseChat Overview and Summary

The case of Dix v Building Professionals Board was heard by the Queensland Civil and Administrative Tribunal. The appellant, Mr Dix, an accredited certifier, sought a review of a disciplinary decision made by the respondent, the Building Professionals Board. The Board had imposed a range of penalties on Mr Dix following a series of complaints about his professional conduct. Mr Dix contested the Board's findings and sought to overturn the sanctions imposed.

The primary legal issue before the Tribunal was whether the Board's decision to discipline Mr Dix was lawful and reasonable. This involved an examination of the evidence presented to the Board, the Board's findings of fact, and the proportionality of the penalties imposed. The Tribunal had to determine whether the Board had acted within its statutory powers and whether the decision-making process was procedurally fair and substantively sound.

In reviewing the Board's decision, the Tribunal found that the evidence supported the Board's findings that Mr Dix had engaged in unprofessional conduct. The Tribunal further held that the penalties imposed were appropriate in the circumstances and did not constitute an error of law. The Tribunal affirmed the Board's decision, finding that the Board had correctly exercised its powers and that the process followed was fair and lawful.

Orders

Orders of the court

Decision under review affirmed

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:	Dix v Building Professionals Board [2010] NSWADT 160
DIVISION:	General Division
PARTIES:	APPLICANT Lyall Dix RESPONDENT Building Professionals Board
FILE NUMBER:	093265
HEARING DATES:	24 and 25 February 2010
SUBMISSIONS CLOSED:	25 February 2010
DATE OF DECISION:	28 June 2010
BEFORE:	O'Connor K - DCJ (President); Hayward P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Disciplinary decision of Board – Application for Review – Decision affirmed
LEGISLATION CITED:	Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 Environmental Planning and Assessment Amendment Regulation 2000 Local Government Act 1993
CASES CITED:	Building Professionals Board v Boulle [2008] NSWADT 80 Building Professionals Board v Cohen [2010] NSWADT 62 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:	APPLICANT I Hemmings, counsel / Lovegrove and Lord RESPONDENT A Grey, legal officer
ORDERS:	Decision under review affirmed