O'Brien v Building Professionals Board

CITATION:	O'Brien v Building Professionals Board [2009] NSWADT 189
DIVISION:	General Division
PARTIES:	APPLICANT Russell O’Brien RESPONDENT Building Professionals Board
FILE NUMBER:	083129
HEARING DATES:	6 May 2009
SUBMISSIONS CLOSED:	6 May 2009
DATE OF DECISION:	21 July 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Hayward P - Non-Judicial Member
CATCHWORDS:	Power of Tribunal to allow administrator to amend reasons for decisions - whether amendment should be permitted in this case
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 Building Professionals Act 2005
CASES CITED:	Frugtniet v Administrative Decisions Tribunal [2005] NSWCA 257 Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 Herron v McGregor & Ors (1986) 6 NSWLR 246 Kardas v ASC (1998) 29 ACSR 304 Austcorp No. 459 Pty Ltd v Baulkham Hills Shire Council [2002] NSWLEC 90 Barakat v Building Professionals Board [2009] NSWADT 5
REPRESENTATION:	APPLICANT G McNally, counsel RESPONDENT T Robertson, counsel
ORDERS:	The application by the Building Professionals Board to amend its reasons for decision is refused.

REASONS FOR DECISION

Introduction

1 Mr O’Brien, an accredited certifier, applied to the Tribunal for a review of a decision made by the Building Professionals Board (the Board). The decision was that Mr O’Brien was guilty of unsatisfactory professional conduct and should be reprimanded and fined $11,000. Two days prior to the hearing, the Board notified Mr O’Brien that it wished to add an alternative ground in support of its decision. Mr O’Brien opposed that application saying either that the Tribunal has no power to allow the grounds for the decision to be amended or, even if it does, it should not do so. The hearing dates were vacated so that the Board’s application could be determined. We have decided that while the Tribunal has power to allow the Board to amend its reasons for decision we should not allow it to do so in this case.

Background

2 In 2000 Mr O’Brien and Mr Cohen were accredited certifiers working together in a business known as Essential Certifiers Pty Ltd. This matter concerns a construction certificate issued in relation to a 26 unit residential flat building in Northmead in September 2000. A construction certificate is required before building work on a project can begin. The certificate is an audit of the design against the development consent, the Building Code of Australia (BCA) and the Environmental Planning and Assessment Regulation 1994. It verifies that a proposed development will comply with those requirements: Environmental Planning and Assessment Regulation 1994, (EPA Regulation) former Reg 79G(1)(b). Mr Cohen was appointed as Principal Certifying Authority (PCA) for the project.

3 On 1 September 2000, prior to going on leave, Mr Cohen wrote to the builders saying that he had assessed the plans for compliance with the BCA and the development consent. He advised that in order to issue the construction certificate six further items needed to be attended to.…