NSW Architects Registration Board v Cserhalmi - [2006] NSWADT 110

CITATION: NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110

DIVISION: General Division

PARTIES: APPLICANT
NSW Architects Registration Board
RESPONDENT
Otto Cserhalmi

FILE NUMBER: 053399

HEARING DATES: 14/02/06

SUBMISSIONS CLOSED: 03/29/2006

DATE OF DECISION:
04/13/2006

BEFORE: Chesterman M - ADCJ (Deputy President)

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Architects Regulation 2004
Interpretation Act 1987
Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED: Barwick v Law Society of New South Wales [2000] HCA 2
Briginshaw v Briginshaw (1938) 60 CLR 336
Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Tasker v Fullwood [1978] 1 NSWLR 20

REPRESENTATION:
APPLICANT
P Griffin, barrister
RESPONDENT
J Griffiths, SC

ORDERS: 1. The Respondent’s objection to jurisdiction is upheld; 2. The Application for a disciplinary finding against the Respondent is dismissed; 3. The Respondent is to file and serve any submissions in support of its application for costs within 28 days of the date of this decision. The Applicant will have a further 28 days in which to file and serve its submissions. The Respondent must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.

Introduction

1 The issue dealt with in this judgment is whether non-compliance with either of two requirements that are stipulated, or apparently stipulated, in the Architects Act 2003 (‘the Act’) deprives the Tribunal of jurisdiction to hear and determine a disciplinary application brought under the Act by the NSW Architects Registration Board (‘the Board’) against a registered architect. This is the first disciplinary application under the Act to be filed in the Tribunal.

2 The application was filed on 14 November 2005, together with an affidavit as to jurisdiction sworn on the same day by Ms Kate Doyle, the Registrar of the Board. The application named Mr Otto Cserhalmi, an architect registered under the Act, as the Respondent. It sought findings of professional misconduct and/or unsatisfactory professional conduct against Mr Cserhalmi. As outlined in Ms Doyle’s affidavit, the application stemmed from a complaint against Mr Cserhalmi that had been submitted to the Board on 6 August 2004 by Mrs Marcia Osterberg-Olsen.

3 In his reply, filed on 24 November 2005, and in letters dated 8 February 2006 sent to the Registrar of the Tribunal and to the Board, Mr Cserhalmi put forward three grounds of opposition to the Board’s application. He denied the allegations of professional misconduct and unsatisfactory professional conduct, he submitted that the application should be dismissed on the ground that it had been filed out of time and he contended that the Tribunal did not have jurisdiction to hear and determine the application, since certain pre-requisites set out in the Act had not been satisfied.

4 The present judgment is concerned with the third of…

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.

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Details

Case: [2006] NSWADT 110
Decision Date: 04/13/2006

CaseChat Overview and Summary

The case of NSW Architects Registration Board v Cserhalmi involved the NSW Architects Registration Board as the applicant and Mr. Cserhalmi as the respondent. The dispute arose from the Board's application for a disciplinary finding against Mr. Cserhalmi, a registered architect, based on alleged breaches of professional conduct. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue before the court was whether it had jurisdiction to hear the application for a disciplinary finding against the respondent. The court needed to determine if the tribunal had the authority to make such a decision, considering the specific provisions of the Architects Act 2005 (NSW) and any relevant case law. Additionally, the court had to consider whether the Board had properly followed the procedures outlined in the Act when initiating the disciplinary proceedings.

In its decision, the tribunal found that the application for a disciplinary finding was not within its jurisdiction. The tribunal ruled that the Act required the Board to first refer the matter to an Architects Disciplinary Tribunal, which has the specific authority to make findings of professional misconduct. As the Board had not followed this requirement, the tribunal held that it did not have the jurisdiction to hear the application directly. Consequently, the tribunal upheld the respondent's objection to jurisdiction and dismissed the application for a disciplinary finding against him.

The tribunal ordered that the respondent must file and serve any submissions in support of its application for costs within 28 days of the decision. The applicant would then have a further 28 days to file and serve its submissions, followed by the respondent having seven days to file and serve any submissions in reply. The matter would be decided on the papers, but either party could apply for a hearing with appropriate submissions.

Orders

Orders of the court

1. The Respondent’s objection to jurisdiction is upheld; 2. The Application for a disciplinary finding against the Respondent is dismissed; 3. The Respondent is to file and serve any submissions in support of its application for costs within 28 days of the date of this decision. The Applicant will have a further 28 days in which to file and serve its submissions. The Respondent must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110
DIVISION:	General Division
PARTIES:	APPLICANT NSW Architects Registration Board RESPONDENT Otto Cserhalmi
FILE NUMBER:	053399
HEARING DATES:	14/02/06
SUBMISSIONS CLOSED:	03/29/2006
DATE OF DECISION:	04/13/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Architects Regulation 2004 Interpretation Act 1987 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2 Briginshaw v Briginshaw (1938) 60 CLR 336 Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Tasker v Fullwood [1978] 1 NSWLR 20
REPRESENTATION:	APPLICANT P Griffin, barrister RESPONDENT J Griffiths, SC
ORDERS:	1. The Respondent’s objection to jurisdiction is upheld; 2. The Application for a disciplinary finding against the Respondent is dismissed; 3. The Respondent is to file and serve any submissions in support of its application for costs within 28 days of the date of this decision. The Applicant will have a further 28 days in which to file and serve its submissions. The Respondent must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.