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

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

Mr O'Brien was not guilty of unsatisfactory professional conduct because his conduct was not conduct occurring in connection with the exercise of an accredited certifier's functions as a certifying authority. Mr Cohen, not Mr O'Brien, was the certifying authority for the Northmead project: Mr Cohen's name and accreditation number appeared on the certificate, Mr Cohen assessed the plans and requested outstanding items, the file was not transferred to Mr O'Brien, and the certificate was printed on Mr Cohen's instructions. Although Mr O'Brien endorsed the certificate, he wrongly assumed the certifying authority's functions could be delegated or performed by an agent; those functions had to...

Jurisdiction
Australia
Judgment Date
20 October 2010
Procedural Posture
Application for Review of a Disciplinary Finding and Action Taken by the Building Professionals Board Under the Building Professionals Act 2005, S 33 / Decision After Hearing in the Administrative Decisions Tribunal, General Division
Outcome
The Board's decision was set aside; Mr O'Brien was not guilty of unsatisfactory professional conduct.
Legal Topics
['unsatisfactory Professional Conduct' 'accredited Certifier' 'construction Certificate' 'certifying Authority Functions' 'delay and Abuse of Process' 'delegation and Agency of Statutory Powers']
['administrative Law' 'professional Discipline' 'planning and Building Law'] ['unsatisfactory Professional Conduct' 'accredited Certifier' 'construction Certificate' 'certifying Authority Functions' 'delay and Abuse of Process' 'delegation and Agency of Statutory Powers']

Case Brief

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Procedural Posture

Application for Review of a Disciplinary Finding and Action Taken by the Building Professionals Board Under the Building Professionals Act 2005, S 33 / Decision After Hearing in the Administrative Decisions Tribunal, General Division

Legal Issues

  1. 1 ['Whether the Tribunal should stay or dismiss the proceedings because the matter was heard almost 8 years after the incidents giving rise to the proceedings occurred.' "Whether Mr O'Brien was guilty of unsatisfactory professional conduct." "Whether Mr O'Brien exercised functions as a certifying authority on the Northmead project." "If Mr O'Brien exercised functions as a certifying authority, whether his conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier."]

Ratio Decidendi

Mr O'Brien was not guilty of unsatisfactory professional conduct because his conduct was not conduct occurring in connection with the exercise of an accredited certifier's functions as a certifying authority. Mr Cohen, not Mr O'Brien, was the certifying authority for the Northmead project: Mr Cohen's name and accreditation number appeared on the certificate, Mr Cohen assessed the plans and requested outstanding items, the file was not transferred to Mr O'Brien, and the certificate was printed on Mr Cohen's instructions. Although Mr O'Brien endorsed the certificate, he wrongly assumed the certifying authority's functions could be delegated or performed by an agent; those functions had to...

Court Disposition

The Board's decision was set aside; Mr O'Brien was not guilty of unsatisfactory professional conduct.

Orders

  • ["The decision of the Building Professionals Board that Mr O'Brien is guilty of unsatisfactory professional conduct is set aside." "The action taken by the Building Professionals Board to reprimand Mr O'Brien and fine him $11,000 is set aside."]