O'Brien v Building Professionals Board (No 2) - [2010] NSWADT 250

CITATION: O’Brien v Building Professionals Board (No 2) [2010] NSWADT 250

DIVISION: General Division

PARTIES:
APPLICANT
Russell O’Brien
RESPONDENT
Building Professionals Board

FILE NUMBER: 083129

HEARING DATES: 26, 27 & 28 August 2009

SUBMISSIONS CLOSED: 17 March 2010

DATE OF DECISION:
20 October 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Hayward P - Non-Judicial Member

CATCHWORDS: Unsatisfactory professional conduct - accredited certifier – conduct occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994

CASES CITED: O’Brien v Building Professionals Board [2009] NSWADT 189
Northern Residential Proprietary Ltd v Newcastle City Council [2009] NSWCA 141
McRae v Coulton (1986) 7 NSWLR 645

TEXTS CITED: Judicial Review of Administrative Action, 4th ed Lawbook Co 2009, Aronson et al

REPRESENTATION:
APPLICANT
G McNally SC
RESPONDENT
T Robertson SC

ORDERS: 1. The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside
2. The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.

REASONS FOR DECISION

Introduction

1 The Building Professionals Board (the Board) found Mr Russell O’Brien, who is an accredited certifier, guilty of unsatisfactory professional conduct. The Board reprimanded Mr O’Brien 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’s role is to review the Board’s finding and the action taken and decide whether those decisions are the ‘correct and preferable’ decisions having regard to the material now before us: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63(1).

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). A construction 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 (the EPA Regulation 1994). It verifies that a proposed development will comply with those requirements: EPA Regulation 1994, former Cl 79G(1)(b).

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…

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: [2010] NSWADT 250
Decision Date: 20 October 2010

CaseChat Overview and Summary

O'Brien, an accredited certifier, was the subject of proceedings by the Building Professionals Board, which alleged he had engaged in unsatisfactory professional conduct. The Board had found O'Brien guilty and imposed a reprimand and a fine of $11,000. O'Brien challenged the Board's decision, arguing it was unreasonable and should be set aside. The court was tasked with determining whether the Board's decision was legally sound, considering the evidence and applicable standards.

The court considered whether the Board had correctly identified the conduct that constituted unsatisfactory professional conduct, whether the Board's decision was based on appropriate evidence, and whether the penalty imposed was proportionate. The court also examined the standards expected of an accredited certifier and whether the Board's decision aligned with these standards. The court had to decide if the Board had adequately justified its decision and whether it was open to the Board to make such a decision based on the evidence presented.

In reviewing the Board's decision, the court found that the Board had failed to adequately justify its conclusion that O'Brien's conduct constituted unsatisfactory professional conduct. The court was not satisfied that the Board had correctly applied the relevant standards in making its decision. Additionally, the court found that the penalty imposed was excessive and not proportionate to the alleged conduct. Consequently, the court determined that the Board's decision was unreasonable and set it aside. The action taken by the Board to reprimand and fine O'Brien was also set aside.

The court ordered that the decision of the Building Professionals Board finding O'Brien guilty of unsatisfactory professional conduct be set aside. Additionally, the action taken by the Board to reprimand O'Brien and impose a fine of $11,000 was also set aside. The court did not impose any alternative penalties or orders.

Orders

Orders of the court

1. The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside

2. The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.

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:	O’Brien v Building Professionals Board (No 2) [2010] NSWADT 250
DIVISION:	General Division
PARTIES:	APPLICANT Russell O’Brien RESPONDENT Building Professionals Board
FILE NUMBER:	083129
HEARING DATES:	26, 27 & 28 August 2009
SUBMISSIONS CLOSED:	17 March 2010
DATE OF DECISION:	20 October 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Hayward P - Non-Judicial Member
CATCHWORDS:	Unsatisfactory professional conduct - accredited certifier – conduct occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994
CASES CITED:	O’Brien v Building Professionals Board [2009] NSWADT 189 Northern Residential Proprietary Ltd v Newcastle City Council [2009] NSWCA 141 McRae v Coulton (1986) 7 NSWLR 645
TEXTS CITED:	Judicial Review of Administrative Action, 4th ed Lawbook Co 2009, Aronson et al
REPRESENTATION:	APPLICANT G McNally SC RESPONDENT T Robertson SC
ORDERS:	1. The decision of the Building Professionals Board that Mr O’Brien is guilty of unsatisfactory professional conduct is set aside 2. The action taken by the Building Professionals Board to reprimand Mr O’Brien and fine him $11,000 is set aside.