Fitzgerald v Building Professionals Board - [2013] NSWADT 299

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Fitzgerald v Building Professionals Board [2013] NSWADT 299
Hearing dates: 8, 9 and 28 August 2013
Decision date: 24 December 2013
Before: Judge K P O'Connor, President
P Hayward, Non-judicial Member
Decision:
1. The Board's finding that the applicant engaged in professional misconduct in relation to his issuance of a construction certificate for the development the subject of Complaint No 01/12 (Waverton) is affirmed.
2. The Board's finding that the applicant engaged in unsatisfactory professional conduct in relation to the developments the subject of complaints Complaint No 16/12 (Bexley) and Complaint No 21/12 (Mosman) is affirmed. The finding in respect of Complaint No 116/11 (Chatswood) is set aside.
3. The Registrar is to fix a date for directions to be given in relation to hearing of the parties' submissions in relation to the Board's disciplinary order.

Catchwords: PROFESSIONAL DISCIPLINE - accredited certifier - application for review of disciplinary decision - initial hearing confined to review of the disciplinary findings - Board findings of professional misconduct with respect to one project, affirmed with one qualification; Board findings of unsatisfactory professional conduct in respect of other three projects - set aside in respect of one project, otherwise affirmed. Further hearing to be held in relation to the disciplinary orders.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154
Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99
MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8
Moy v Warringah Council [2004] NSWCCA 77
Qiu v Building Professionals Board [2013] NSWADT 289
Category: Principal judgment
Parties: Paul Fitzgerald (Applicant)
Building Professionals Board (Respondent)
Representation: Counsel
T G Howard SC (Applicant)
A Gough, Storey and Gough Lawyers (Applicant)
A Grey, Building Professionals Board (Respondent)

File Number(s): 133146

reasons for decision

This is an application for review of disciplinary findings and orders made by the Building Professionals Board against the applicant, an accredited certifier, Mr Paul Fitzgerald, who conducts business as Fitzgerald Building Certifiers Pty Ltd at Thornleigh NSW.

This decision deals with the first part of the application for review, the dispute as to the disciplinary findings. The Tribunal will reconvene after this decision is issued to hear submissions on the application as it relates to the disciplinary orders, taking into account these reasons.

The Board derives its disciplinary authority over certifiers from the Building Professionals Act 2005 (the BP Act), see esp s 31. The certifier's right to apply for review is conferred by s 33.

The Board investigated four complaints, each relating to a development for which Mr Fitzgerald was the accredited certifier and principal certifying authority:

(1) Complaint No 116/11 - demolition of an existing single storey house together with the existing brick fence located on the front boundary, and…

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 Fitzgerald v Building Professionals Board

Details

AGLC: Fitzgerald v Building Professionals Board [2013] NSWADT 299
Case: [2013] NSWADT 299
Decision Date: 24 December 2013

CaseChat Overview and Summary

In Fitzgerald v Building Professionals Board, the respondent, a board established under the Building Practitioners Act 2005 (NSW), pursued disciplinary action against the appellant, an accredited certifier. The Board found the appellant guilty of professional misconduct and unsatisfactory professional conduct in relation to multiple construction projects. The appellant sought judicial review of the Board's findings and the disciplinary orders imposed. The legal issues that arose were whether the Board's findings were supported by evidence, and whether the Board had the authority to make the orders it did.

The court examined the evidence presented at the initial hearing and found that the Board's findings of professional misconduct in relation to the Waverton project were supported by evidence. The court also found that the Board's findings of unsatisfactory professional conduct in relation to the Bexley and Mosman projects were supported by evidence, but the finding in relation to the Chatswood project was not. The court held that the Board had the authority to make the orders it did, but the orders in relation to the Chatswood project were quashed. The court also held that a further hearing was required to determine the appropriate disciplinary orders to be imposed in relation to the Waverton, Bexley and Mosman projects.

The court's reasoning was based on a detailed examination of the evidence presented at the initial hearing, and a review of the relevant statutory provisions. The court found that the Board had acted within its authority in making the findings and orders it did, but that some of the findings were not supported by evidence. The court also found that a further hearing was required to determine the appropriate disciplinary orders to be imposed.

The orders made by the court were that the Board's finding of professional misconduct in relation to the Waverton project was affirmed, and the finding of unsatisfactory professional conduct in relation to the Bexley and Mosman projects was affirmed, but the finding in relation to the Chatswood project was set aside. The court also ordered that a further hearing be held to determine the appropriate disciplinary orders to be imposed in relation to the Waverton, Bexley and Mosman projects. The Registrar was directed to fix a date for the further hearing.

Orders

Orders of the court

1. The Board's finding that the applicant engaged in professional misconduct in relation to his issuance of a construction certificate for the development the subject of Complaint No 01/12 (Waverton) is affirmed.

2. The Board's finding that the applicant engaged in unsatisfactory professional conduct in relation to the developments the subject of complaints Complaint No 16/12 (Bexley) and Complaint No 21/12 (Mosman) is affirmed. The finding in respect of Complaint No 116/11 (Chatswood) is set aside.

3. The Registrar is to fix a date for directions to be given in relation to hearing of the parties' submissions in relation to the Board's disciplinary 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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Medium Neutral Citation:	Fitzgerald v Building Professionals Board [2013] NSWADT 299
Hearing dates:	8, 9 and 28 August 2013
Decision date:	24 December 2013
Before:	Judge K P O'Connor, President P Hayward, Non-judicial Member
Decision:	1. The Board's finding that the applicant engaged in professional misconduct in relation to his issuance of a construction certificate for the development the subject of Complaint No 01/12 (Waverton) is affirmed. 2. The Board's finding that the applicant engaged in unsatisfactory professional conduct in relation to the developments the subject of complaints Complaint No 16/12 (Bexley) and Complaint No 21/12 (Mosman) is affirmed. The finding in respect of Complaint No 116/11 (Chatswood) is set aside. 3. The Registrar is to fix a date for directions to be given in relation to hearing of the parties' submissions in relation to the Board's disciplinary order.
Catchwords:	PROFESSIONAL DISCIPLINE - accredited certifier - application for review of disciplinary decision - initial hearing confined to review of the disciplinary findings - Board findings of professional misconduct with respect to one project, affirmed with one qualification; Board findings of unsatisfactory professional conduct in respect of other three projects - set aside in respect of one project, otherwise affirmed. Further hearing to be held in relation to the disciplinary orders.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154 Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 Moy v Warringah Council [2004] NSWCCA 77 Qiu v Building Professionals Board [2013] NSWADT 289
Category:	Principal judgment
Parties:	Paul Fitzgerald (Applicant) Building Professionals Board (Respondent)
Representation:	Counsel T G Howard SC (Applicant) A Gough, Storey and Gough Lawyers (Applicant) A Grey, Building Professionals Board (Respondent)
File Number(s):	133146