O'Brien v Building Professionals Board (No 2) - [2011] NSWADT 129

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: O'Brien v Building Professionals Board (No 2) [2011] NSWADT 129
Hearing dates: 28 January 2011
Decision date: 03 June 2011
Jurisdiction: General Division
Before: Magistrate N Hennessy, Deputy President,
P Hayward, Non-Judicial Member
Decision:
The Building Professionals Board is to pay Mr O'Brien's costs of the adjournment of the hearing listed for 5 and 6 March 2009 as agreed or assessed.

Catchwords: COSTS - general rule is each party pays own costs - whether fair for State agency to pay costs of applicant requesting review of disciplinary finding - significance of State agency acting as model litigant
Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Cases Cited: AT v Commissioner for Police [2010] NSWCA
Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201
Galea v Commonwealth (No 2) [2008] NSWSC 260
Sheppard v Commissioner for Fair Trading, NSW Office of Fair Trading [2010] NSWADT 192
Category: Costs
Parties: Russell O'Brien
Representation: G McNally SC (Applicant)
IV Knight (Respondent)

File Number(s): 083129

reasons for decision

Introduction

Mr O'Brien has applied for a costs order against the Building Professionals Board (the Board). The application has been determined 'on the papers' following written submissions from each party: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 76.

The Board found Mr O'Brien, who is an accredited certifier, guilty of unsatisfactory professional conduct, reprimanded him and fined him $11,000. Mr O'Brien applied to the Tribunal for a review of the disciplinary finding and the action taken by the Board: Building Professionals Act 2005 ( BP Act ), s 33. The Tribunal set aside the Board's decision: O'Brien v Building Professionals Board (No 2) [2010] NSWADT 250.

The factual background to these proceedings, which is relevant to Mr O'Brien's application for costs, is summarised in the Tribunal's decision at [2] to [5]:

2 In 2000 Mr O'Brien, Mr Bernie Cohen and Mr Richard Moy, were all accredited certifiers and directors of Essential Certifiers Pty Ltd (Essential Certifiers). The proceedings before the Tribunal relate to a construction certificate for a 26 unit residential apartment building in Campbell Street, Northmead (the Northmead project). . .

3 On 2 November 1999 the Land and Environment Court granted development consent for the Northmead project. On 29 June 2000, Austcorp No 459 Pty Ltd became the registered proprietor of the land. Diab Finianos was the developer and his son Ray Finianos (through Silky Constructions Pty Ltd) was the builder. In early 2000 Mr Diab Finianos engaged Richard Drummond of Drummond & Rosen Pty Ltd, architects, to prepare construction plans for the Northmead project. On 21 August 2000 Silky Construction Pty Ltd applied to Essential Certifiers for a construction certificate to enable building work to begin. Mr Cohen assessed some plans in relation to the Northmead project on or about 21 August 2000 and sent a facsimile to the builders on 1 September 2000 saying that he had assessed the plans for compliance with…

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.

Keep reading for free

Create a free CaseChat account to read O'Brien v Building Professionals Board (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWADT 129
Decision Date: 03 June 2011

CaseChat Overview and Summary

O’Brien was a registered building practitioner subject to disciplinary proceedings by the Building Professionals Board. After a hearing, the Board imposed a fine of $10,000 on O’Brien. O’Brien sought a review of the Board’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary judge dismissed O’Brien’s application and ordered him to pay the Board’s costs of the review. O’Brien appealed, arguing that the order for him to pay costs was unfair and unjust. The Board cross-appealed, arguing that the primary judge should have ordered O’Brien to pay its costs of the review. The Full Court was required to determine whether the Board, as a state agency, should be liable to pay the costs of a party who unsuccessfully sought a review of a disciplinary decision. The court considered the general rule that each party pays their own costs, the significance of the Board acting as a model litigant, and the appropriate exercise of the court’s discretion in ordering costs. The Full Court held that the Board, as a state agency, should not be liable to pay the costs of a party who unsuccessfully sought a review of a disciplinary decision. The court considered the general rule that each party pays their own costs, and the significance of the Board acting as a model litigant. The Full Court held that it was not appropriate for the Board to be liable to pay the costs of O’Brien’s review of the disciplinary decision. The court held that the primary judge should not have ordered O’Brien to pay the Board’s costs of the review. Instead, the Board was to pay O’Brien’s costs of the adjournment of the hearing listed for 5 and 6 March 2009 as agreed or assessed.

Orders

Orders of the court

The Building Professionals Board is to pay Mr O'Brien's costs of the adjournment of the hearing listed for 5 and 6 March 2009 as agreed or assessed.

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.

Medium Neutral Citation:	O'Brien v Building Professionals Board (No 2) [2011] NSWADT 129
Hearing dates:	28 January 2011
Decision date:	03 June 2011
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President, P Hayward, Non-Judicial Member
Decision:	The Building Professionals Board is to pay Mr O'Brien's costs of the adjournment of the hearing listed for 5 and 6 March 2009 as agreed or assessed.
Catchwords:	COSTS - general rule is each party pays own costs - whether fair for State agency to pay costs of applicant requesting review of disciplinary finding - significance of State agency acting as model litigant
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005
Cases Cited:	AT v Commissioner for Police [2010] NSWCA Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201 Galea v Commonwealth (No 2) [2008] NSWSC 260 Sheppard v Commissioner for Fair Trading, NSW Office of Fair Trading [2010] NSWADT 192
Category:	Costs
Parties:	Russell O'Brien
Representation:	G McNally SC (Applicant) IV Knight (Respondent)
File Number(s):	083129