Dix v Building Professionals Board - [2009] NSWADT 46

CITATION: Dix v Building Professionals Board [2009] NSWADT 46

DIVISION: General Division

PARTIES:
APPLICANT
Lyall Dix
RESPONDENT
Building Professionals Board

FILE NUMBER: 083289

HEARING DATES: 6 February 2009

SUBMISSIONS CLOSED: 6 February 2009

DATE OF DECISION:
3 March 2009

BEFORE: Handley R - Deputy President; Hayward P - Non-Judicial Member

CATCHWORDS: Disciplinary finding (Accredited Certifier) – unsatisfactory professional conduct

LEGISLATION CITED: Buildings Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED: Building Professionals Board v Cogo [2008] NSWADT 119
Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99
Director General, Department of Infrastructure Planning and Natural Resources v Boulle [2006] NSWADT 43
Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia [2001] SASC 169
Moy v Warringah Council [2004] NSWCA 77
Building Professionals Board v Boulle [2008] NSWADT 80

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

ORDERS: The Tribunal affirms the decision to find Mr Dix guilty of ‘unsatisfactory professional conduct’, but sets aside the decision to caution him in respect of that conduct, substituting a decision to take no further action against him.

1 Lyall Dix has applied to the Tribunal for the review of a decision of the Building Professionals Board (‘the Board’) dated 31 July 2008 to caution Mr Dix for unsatisfactory professional conduct.

Background

2 Mr Dix is an experienced engineer and building surveyor who is an accredited building certifier and runs a building certification practice in NSW - Dix Gardner Pty Ltd.

3 On 13 February 2002, Strathfield Municipal Council (‘the Council’) granted development consent for a residential development at 83 Chalmers Road, Strathfield. On 15 July 2002, Mr Dix issued a construction certificate for this development, approving architectural plans for a dwelling, swimming pool and outbuilding at the property.

4 On 12 April 2003, an application was lodged with the Council (pursuant to section 96 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’) seeking approval for a number of variations to the development consent, including in relation to the construction of the outbuilding. The Council notified adjoining owners of the application, two of whom made written submissions. Peter Conroy, Manager, Development Assessment for the Council, provided a report to the Council on the application, which was considered at a Council meeting on 3 June 2003. Mr Conroy subsequently wrote to Mr Dix on 16 June 2003 concerning the Council’s resolution on the application, which included “serious concerns” over Mr Dix’s certification of the development on 15 July 2002. Mr Dix responded by letter dated 20 June 2003.

5 On 11 November 2003, Mr Conroy wrote to Engineers Australia complaining of Mr Dix’s conduct in issuing a construction certificate when the development had not been carried out in accordance with the original development consent. The complaint identified six specific matters, including one in relation to an outbuilding at the rear of the premises.

6 On 30 June 2004, Engineers Australia wrote to Mr Conroy stating:

“Engineers…

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 [2009] NSWADT 46
Case: [2009] NSWADT 46
Decision Date: 3 March 2009

CaseChat Overview and Summary

Dix v Building Professionals Board involved a disciplinary proceeding against Mr Dix, an accredited certifier, by the Building Professionals Board. The Board brought proceedings against Mr Dix for unsatisfactory professional conduct. The case was heard and determined by the Victorian Civil and Administrative Tribunal (VCAT). The primary issue before the court was whether Mr Dix's professional conduct was unsatisfactory and whether the decision to caution him was appropriate.

The court considered the evidence presented and the applicable standards of professional conduct for accredited certifiers. It examined Mr Dix's actions and whether they fell below the expected standards of competence and diligence. The court also evaluated the appropriateness of the penalty imposed, specifically the decision to caution Mr Dix. The court concluded that while Mr Dix's conduct was indeed unsatisfactory, the decision to caution him was not the appropriate response.

In reaching its decision, the Tribunal noted that while Mr Dix's conduct was unsatisfactory, it did not warrant a caution. Instead, the Tribunal considered that taking no further action was the appropriate response. The Tribunal thus affirmed the finding of unsatisfactory professional conduct but set aside the decision to caution Mr Dix, substituting a decision to take no further action against him. This outcome reflects a nuanced approach to disciplinary proceedings, balancing the need to uphold professional standards with the proportionality of the response to the misconduct.

Orders

Orders of the court

The Tribunal affirms the decision to find Mr Dix guilty of `unsatisfactory professional conduct', but sets aside the decision to caution him in respect of that conduct, substituting a decision to take no further action against him.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dix v Building Professionals Board [2009] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT Lyall Dix RESPONDENT Building Professionals Board
FILE NUMBER:	083289
HEARING DATES:	6 February 2009
SUBMISSIONS CLOSED:	6 February 2009
DATE OF DECISION:	3 March 2009
BEFORE:	Handley R - Deputy President; Hayward P - Non-Judicial Member
CATCHWORDS:	Disciplinary finding (Accredited Certifier) – unsatisfactory professional conduct
LEGISLATION CITED:	Buildings Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Building Professionals Board v Cogo [2008] NSWADT 119 Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 Director General, Department of Infrastructure Planning and Natural Resources v Boulle [2006] NSWADT 43 Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia [2001] SASC 169 Moy v Warringah Council [2004] NSWCA 77 Building Professionals Board v Boulle [2008] NSWADT 80
REPRESENTATION:	APPLICANT K Lovegrove, solicitor RESPONDENT A Grey, solicitor
ORDERS:	The Tribunal affirms the decision to find Mr Dix guilty of ‘unsatisfactory professional conduct’, but sets aside the decision to caution him in respect of that conduct, substituting a decision to take no further action against him.