Builders' Registration Board Of Western Australia and Elliott - [2009] WASAT 44

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and ELLIOTT [2009] WASAT 44

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 15 DECEMBER 2008

DELIVERED : 13 MARCH 2009

FILE NO/S: VR 108 of 2008

BETWEEN: BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Applicant
AND
BERNARD ELLIOTT
Respondent

Catchwords:

Builders' Registration Act 1939 (WA) - Application for imposition of a fine - Whether proper cause for disciplinary action on grounds that the person (being a registered builder) responsible for management and supervision of building work pursuant to s 10C guilty of negligence and incompetence - Whether such person susceptible to disciplinary proceedings in absence of any proceedings against the company, being a registered builder, which had contracted to carry out the building works - Whether negligence or incompetence established

Legislation:

Builders' Registration Act 1939 (WA), s 4, s 9A, s 10, s 10A, s 10AA, s 10B, s 10C, s 10CA, s 10D, s 12B, s 12D, s 13, s 13A
Builders' Registration Regulations 1989 (WA), reg 21
Building Code of Australia, Pt 3.4.4.4
Building Regulations 1989 (WA), reg 5, reg 17
Interpretation Act 1984 (WA), s 18
Interpretation of Legislation Act 1984 (Vic)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Mr M Mannes
Respondent: Mr R Shaw

Solicitors:

Applicant: M Mannes
Respondent: Lavan Legal

Case(s) referred to in decision(s):

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Beckworth v R (1976) 12 ALR 333
Briginshaw v Briginshaw (1938) 60 CLR 336
Builders' Registration Board of Western Australia and Carlino [2007] WASAT 298
Chin Keow v Government of Malaysia 1967 1 WLR 813
May v Migatovic [2002] WASC 151 (14 June 2002)
Mills v Meeking (1990) 169 CLR 214
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Qbsa v Phipps Keith Ralph DO 25 – 97 [1997] QBT 163 (25 September 1997)
R v Adams (1935) 53 CLR 563
Re Lamperd [1983] FCA 22
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Voli v Inglewood Shire Council (1963) 110 CLR 74

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant originally applied under s 12D of the Builders' Registration Act 1939 (WA) seeking orders that the then first respondent, Yenbowl Pty Ltd (in liquidation), and the then second respondent, Mr Bernard Elliott, be found to be subject to findings that proper cause for disciplinary action existed against them and for the imposition of a fine of $5,000 against each of them. The applicant applied for leave to withdraw the proceedings against Yenbowl Pty Ltd (in liquidation), which application was granted, and Mr Elliott became the sole respondent.
It was submitted on behalf of Mr Elliott that it was not open to make any adverse finding against him because Yenbowl Pty Ltd (in liquidation) was not the subject of any proceedings alleging breach under s 13(1) of the Builders' Registration Act 1939 (WA). The Tribunal rejected those submissions and found that on a proper construction of the legislation, it was competent to allege, in effect, that Mr Elliott, as a registered builder responsible for the management and supervision of the building work (which Yenbowl Pty Ltd (in liquidation) had contracted to perform) had carried out that management and supervision in a manner evidencing negligence and incompetence.
The Tribunal found on the evidence that all individual allegations concerning inadequacies in the building work and non-compliance with the deemed to satisfy provisions of the Building Code of Australia fell to be dismissed. In the main, this was due to the building works being incomplete, the building contract having been terminated prior to practical completion of the works. However, the Tribunal found that the manner in which Mr Elliott had proceeded with the works, once aware of deficiencies in the architectural drawings, rendered him guilty of negligence and incompetence within the meaning of the legislation and therefore found that proper cause existed for disciplinary action.
In coming to this conclusion, the Tribunal emphasised that the obligation to ensure that management and supervision was sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner meant that not only must the building work when completed be free of any defect, other than of an insignificant nature, but also that the method of carrying out the building work was proficient and workmanlike. Consequently, if the methodology of carrying out the building work, under the management and supervision of a registered builder, was not proficient and workmanlike, as a result of negligence or incompetence in the management and supervision, there was proper cause for disciplinary action. On the facts, the Tribunal found Mr Elliott was guilty of negligence and incompetence on this basis and found that the appropriate disciplinary outcome was the imposition of a fine as sought in the sum of $5,000.

The application

The applicant (Board) originally applied to the Tribunal under s 12B of the Builders' Registration Act 1939 (WA) (BR Act) alleging that cause existed for disciplinary action against Yenbowl Pty Ltd (in liquidation), first respondent (Yenbowl), and Bernard Elliott, second respondent (Mr Elliott). The Tribunal subsequently granted leave to withdraw against Yenbowl and for the Board to amend the grounds on which it relied, which it duly did. Thereafter, a further amended grounds for the orders sought were filed on 10 October 2008.
It appears that, due to an oversight on the part of the Tribunal, the matter was not listed for a directions hearing to deal with the proposed amendment. Consequently, the amendment was dealt with at the commencement of the final hearing on 15 December 2008. The proposed amendment went beyond the proposed October amendment and alleged that the respondent was negligent in proceeding with the building works in circumstances where he did not notify the owners concerned of his concerns, as required under the building contract, without having the steel remanufactured so as to comply with the drawings, or by otherwise taking appropriate steps to ensure that a solution was developed prior to proceeding with the building work. The proposed amendment also clarified that it was alleged that cause for disciplinary action existed as mentioned in s 13(1)(c) of the BR Act.
The reference to 'concerns', in the context of the issues of the case, must be understood to refer to Mr Elliott being made aware that the architectural drawings were inaccurate, that this had led to the floor slab for the building works being altered by a surveyor to ensure that the perimeter of the works closed and that consequently the prefabricated steel framing to be used would require modification. The 'steel' referred to must be understood to be the prefabricated steel framework.
Mr Elliott's objection was limited to the allegation relating to a failure to notify and was based solely on there having been no prior reference in any of the documents to this allegation. In all the circumstances, the Tribunal granted the amendment sought on the basis that if Mr Elliott's counsel had any difficulty in dealing with the matter, he could apply for an adjournment. It was expressly stated by counsel that Mr Elliott did not seek any adjournment of the matter.
As a result of the various amendments to the application and grounds, the respondent's statement of issues, facts and contention referred to paragraph numbers which had changed. That was also the case in respect of one of the witness statements, but no difficulty arose during the conduct of the hearing in identifying the substantive response to the allegations in their final form.

The nature of the allegations

The grounds for orders sought, as amended, reflect, in summary form, the following.
1)At the relevant times, Yenbowl was a registered builder and Mr Elliott was the sole director and secretary of Yenbowl and a registered builder in his own right.
2)Yenbowl contracted with Trina Narelle Millington and Jeremy Seymour Millington for the construction of a dwelling at Safety Bay. Yenbowl carried out the building work under that contract between 6 May 2004 and 19 April 2005 and, in doing so, Mr Elliott, as a director of the company was the nominated supervisor, and managed and supervised the trades who physically performed the building work.
3)There is proper cause for disciplinary action as mentioned in s 13(1)(c) of the BR Act against Mr Elliott because he is guilty of negligence and incompetence in connection with the building work.
4)Yenbowl failed to manage and supervise the building work in accordance with s 10C of the BR Act because the management and supervision of the building work was not sufficient to ensure the whole of the building work was carried out in a proficient and workmanlike manner in accordance with s 10CA of the BR Act. Particulars given of this allegation set out specific instances alleged to establish that the building work was not carried out in a proficient and workmanlike manner.
5)It is alleged that pursuant to reg 5 of the Building Regulations 1989 (WA) (Building Regulations) Yenbowl was required to carry out the building work in accordance with the Building Code of Australia (BCA) and that Yenbowl failed to satisfy the performance requirements of the BCA in that it did not carry out parts of the building work in accordance with the relevant 'deemed to satisfy' provisions of the BCA or did not properly formulate an 'alternative solution' which complied with the performance requirements. Particulars given of this allegation refer to instances in which it is alleged that steelwork was not properly treated in accordance with the BCA.
6)It is alleged that Yenbowl's failure to ensure that the whole of the building work was carried out in a proficient and workmanlike manner was attributable to the negligence and incompetence of Mr Elliott.
7)It is alleged that the conduct of Mr Elliott, which the Board alleges was negligent, included Mr Elliott's decision to proceed with the building work in the circumstances outlined above, namely that he did not notify the owners of his concerns, as required under the contract, had proceeded without the steel being remanufactured, or otherwise by taking appropriate steps to ensure that a solution was developed prior to proceeding with the building work.

The issues for determination

The issues for determination can be gleaned from the statements of issues, facts and contentions filed by the parties and as developed in their oral and written submissions. While there are many subsidiary issues, they are subsumed within, and will be considered in addressing the following principal issues:
1)whether, upon a proper construction of the BR Act, it is not open to find that there is cause for disciplinary action against Mr Elliott because there are no proceedings against Yenbowl alleging a breach of s 13(1)(c) of the BR Act.
2)if issue 1 is determined against Mr Elliott:
2.1whether Yenbowl failed to ensure that the whole of the building work was carried out in a proficient and workmanlike manner;
2.2if issue 2.1 is answered in the affirmative, whether such failure was attributable to the negligence and incompetence of Mr Elliott.

Issue 1: are the proceedings competent?

All references to any section of legislation hereafter is a reference to a section in the BR Act, unless otherwise stated.
The directly relevant sections of the BR Act are as follows.
10C.    Details of person supervising and managing building work constructed by company to be supplied in advertisements and signs on building site
Where any building work is carried out by a company or body corporate, the company or body corporate shall cause the building work to be managed and supervised by a director of the company or member of the board of management of the body corporate, as the case may be, who is registered under this Act or by an employee who is so registered and the company or body corporate shall cause the name and registered number of that person to appear ‑
(a)in all advertisements, if any, published by or on behalf of the company or body corporate in respect of the building work; and
(b)in any sign affixed or erected on the building work pursuant to section 10(4) or otherwise.
Penalty: $250.
10CA. Standard of management and supervision
The requirement for the management and supervision of any building work prescribed by section 10AA, section 10B and section 10C shall not have been complied with unless it can be shown that the management and supervision was sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner.
12D.    Allegation of cause for disciplinary action
The Board may allege to the State Administrative Tribunal that there is proper cause for disciplinary action, as mentioned in section 13, against a builder who is registered under this Act.
13.     Cancellation of registration for fraud or on other grounds
(1)In a proceeding commenced by an allegation under section 12D the State Administrative Tribunal may cancel or suspend the registration of any builder under this Act because there is proper cause for disciplinary action ‑
…
(c)who has been guilty of any negligence or incompetence in connection with the performance of any building work or who has been convicted of any offence against this Act or any regulation; or
(ca)where the building work carried out by the builder has not been managed and supervised in accordance with section 10AA, 10B or 10C, as the case requires; or
…
13A.    Fines
Where the State Administrative Tribunal makes a finding that a situation described in section 13(1)(a) or (c) to (f) exists or has occurred in respect of a registered builder, the State Administrative Tribunal may, instead of, or in addition to, cancelling or suspending the registration of the builder under this Act impose a fine not exceeding the prescribed amount ‑
(a)on the builder;
(b)where the builder is a partnership, on one or more of the following persons ‑
(i)a partner;
(ii)an employee by whom the building work to which the inquiry related was, or was required by this Act to be, managed and supervised;
or
(c)where the builder is a company or other body corporate, on one or more of the following persons ‑
(i)a director of the company;
(ii)a member of the board of management of the body corporate;
(iii)an employee by whom the building work to which the inquiry related was, or was required by this Act to be, managed and supervised.
Mr Elliott's submission, in essence, is that only the builder who contracted to carry out building work is capable of being found guilty of negligence or incompetence in connection with the performance of the building work, within the meaning of s 13(1)(c). Further, that Mr Elliott's obligation was to supervise and manage the building work for Yenbowl but that it is Yenbowl's obligation to ensure that the building work is managed and supervised in the manner required by s 10C read with s 10CA. Further, it is submitted that s 13A supports this construction (T:7).
The submission is developed on the basis that the effect is that disciplinary proceedings can be taken only against the building company, although it is also possible to sanction the nominated registered builder by imposing a fine under s 13A if the allegations against the building company are first established. Finally, it is submitted that while ordinary rules of construction apply, the relevant provisions being penal in nature, any ambiguity is to be interpreted in favour of Mr Elliott relying on R v Adams (1935) 53 CLR 563 at 567 ‑ 8 and Beckworth v R (1976) 12 ALR 333 (Beckworth) at 339.
The ordinary principles of construction, guided by s 18 of the Interpretation Act 1984 (WA) (Interpretation Act) require that the literal rule of construction must give way to the statutory injunction to prefer a construction which would promote the purpose of the legislation. This is so not only where those provisions on their face are capable of more than one construction, but also in determining whether more than one construction is open. This approach does not require that there be any ambiguity or inconsistency; it may be determined that, when regard is had to the purpose of the legislation, more than one possible construction is open. In that event, the effect of s 18 of the Interpretation Act is that a construction that would promote the purpose or object underlying the written law should be preferred to a construction that would not promote that purpose or object: see the principles discussed in Mills v Meeking (1990) 169 CLR 214 at 235 in which the High Court considered a similar provision of the Interpretation of Legislation Act 1984 (Vic). These rules of construction must then be tempered by the principles which apply to the construction of penal provisions.
In Beckworth at 339, Gibbs J stated:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … the rule is perhaps one of last resort.
Consequently, the effect of s 18 of the Interpretation Act is that an ambiguity may be cured by adopting a construction that promotes the purpose of the legislation. Only if this purposive approach does not resolve the ambiguity is it necessary to apply the rule of construction that a penal provision be construed in favour of the subject: see the discussion in Statutory Interpretation of Australia, 6th Edition, by Pearce and Geddes, LexisNexis, Australia, 2006 at [9.9]. Finally, it is trite that the intention of the legislature must be found by a consideration of the statute as a whole: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161 ‑ 2.
We therefore turn to a consideration of the statute as a whole.
The long title reflects that the BR Act is an Act relating to the qualification and registration of builders; to constitute a Board in relation thereto; to establish a jurisdiction in respect of certain building disputes and for other purposes connected therewith.
In the context of these proceedings, the relevant purposes of the legislation relate to the proper qualification and regulation of builders registered under the BR Act. Section 4 prohibits a person who is not registered under the Act, subject to certain exceptions, from carrying out a range of activities, including relevantly, the entering into a contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement. Section 9A and s 10 prescribe various means by which a person may qualify for registration as a builder. In essence, they either require a combination of academic qualifications and experience, or extended experience of building construction as a manager or supervisor sufficient to satisfy the Board that the applicant is fit and competent to carry out building work. It is clearly intended to ensure that persons licensed through registration as a builder are competent to carry out building work.
Section 10AA, s 10B, s 10C, s 10CA and s 10D relate to the management and supervision of building work and have the effect of ensuring that a natural person who is registered as a builder must manage and supervise building work whether the building work is to be carried out by a registered builder who is a natural person, a partnership, a company or body corporate.

Section 13(1) sets out various categories of conduct which, if established, enable the Tribunal to cancel or suspend the registration of a builder, subject to an application having been made to the Tribunal alleging under s 12D that there is proper cause for disciplinary action by reason thereof.
Section 13A then enables the Tribunal to impose a fine instead of, or in addition to, cancelling or suspending the registration of the builder.
The relevant purpose of the legislation is therefore to ensure that any person registered as a builder is competent to carry out building work and that a registered builder who has conducted himself or itself in a manner described in s 13 can be disciplined by either cancellation or suspension of registration or by the imposition of fine under s 13A.
In construing this legislation, it should be borne in mind that provision of a mechanism by which to discipline those engaged in a particular vocation is directed to the protection of the public and the maintenance of standards within that vocation: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 at [25]; Builders' Registration Board of Western Australia and Carlino [2007] WASAT 298 (Carlino) at [38].
We turn now to consider s 13(1) and s 13A in greater detail to ascertain whether the provisions, either expressly or upon a proper construction, have the meaning for which it is contended on behalf of Mr Elliott.
There is no express language used to limit the application of s 13(1)(c) so as to apply only to the builder who is contractually responsible for carrying out the building work. The words 'in connection with' are of the widest import. In our view, on an ordinary reading of this subsection, particularly in the context of s 10AA, s 10B, s 10C and s 10CA, a builder who has been guilty of negligence or incompetence in the supervision and management of building can be said to be guilty of negligence or incompetence in connection with the performance of building work.
The reference in subsection 13(1)(ca) to building work carried out by the builder not having been managed and supervised in accordance with s 10A, s 10B or s 10C is capable of being read to convey that the builder carrying out the work must be the builder who has contracted to do so. It does not necessarily follow, however, that the builder who is responsible for the management and supervision of that building work is not open to disciplinary action, because the opening preamble to s 13(1) enables any builder to be disciplined where, read with s 13(1)(ca), the building work carried out by the builder has not been managed and supervised in the prescribed manner. We therefore consider that there is a degree of ambiguity in the construction of s 13(1)(ca). It remains to be ascertained whether a purposive approach as required by s 18 of the Interpretation Act is capable of curing that ambiguity.
The purpose of s 10AA, s 10B, s 10C and s 10CA is, as we have held, to ensure that a natural person, who is a registered builder, has ultimate responsibility for the management and supervision of building works. In our view, it would be entirely contrary to the purpose of the legislation to enable the nominated manager and supervisor who therefore has a primary responsibility for the manner in which building work is carried out to escape disciplinary consequences where the language of the relevant provision is capable of referring to a builder acting in that capacity. A contrary construction would not foster the maintenance of standards within the industry and would tend to lower the confidence of the public in dealing with registered builders.
In our view, s 13A does not assist Mr Elliott in any way. Section 13A was inserted by Act No 76 of 2000 and its only effect was to provide an additional disciplinary sanction other than cancellation or suspension of registration. Insofar as that additional option clearly applies to the natural person, who is a registered builder, responsible for management and supervision, it supports a view that, but for the insertion, the only options available for disciplining a natural person responsible for management and supervision of building work was cancellation or suspension of that person's registration as a builder under the BR Act.
We accordingly find that, on a literal interpretation of s 13(1)(c), it is open to the Board to allege that cause exists for disciplinary action against a nominated builder responsible for the management and supervision of building work within the meaning of s 10AA, s 10B, s 10C and s 10CA. It requires to be shown that the builder is guilty of negligence or incompetence in the provision of that management and supervision in connection with the performance of any building work as referred to in s 13(1)(c). Further, insofar as there is any ambiguity within subsection 13(1)(ca), we find that when regard is had to the purpose of the legislation, it would be open to allege that cause exists for disciplinary action, against a builder who is the nominated manager and supervisor, pursuant to s 10B and s 10C, where the building work carried out by the builder (who had contracted to carry out the building work) has not been managed and supervised as prescribed.
It follows that it is also open to allege, as the Board has done, that Yenbowl failed to manage and supervise the building works in accordance with s 10C and that the failure was attributable to the negligence and incompetence of Mr Elliott as mentioned in s 13(1)(c).
On a parity of the reasoning given above, if we are wrong in our conclusion that there is no ambiguity within s 13(1)(c), we consider that a purposive approach would resolve that ambiguity so that it is competent to allege that cause exists for disciplinary action against a nominated manager and supervisor who has been guilty of any negligence or incompetence in the provision of that management and supervision in connection with the performance of building work.

Issue 2: did Yenbowl fail to ensure that the whole of the building work was carried out in a proficient and workmanlike manner, and if so, was that failure attributable to the negligence and incompetence of Mr Elliott?

The hearing proceeded on the basis that the Tribunal would have regard to all the material which had been filed, subject to any proper objection which might be made. While some witness statements which had previously been filed were specifically tendered and given exhibit numbers, Mr Elliott's statement, as filed, had not been signed. He identified the unsigned statement and the Tribunal indicated that it was happy to act thereon, without either party objecting. The only document filed to which an objection was taken on behalf of Mr Elliott related to an arbitration award. The Board indicated that it would not rely on that document, and accordingly it is not to be regarded as being in evidence before the Tribunal and no account has been taken to it.
The Tribunal therefore had regard to witness statements from Mr Elliott, Mr John Dryka, an engineer in support of Mr Elliott, Mr George Kallidis, a building consultant for the Board, Mr Neil Harrison Scott, a structural engineer for the Board, Mr Ian Ronald Aitken, an inspector employed by the Board, and Ms Trina Narelle Millington, who, together with her husband, entered into a contract with Yenbowl for the construction of the works in question. Those witness statements, with the exception of the statement of Mr Aitken, were admitted by consent and only Mr Elliott and Mr Aitken were required to give evidence and be subject to cross‑examination. The objection to the evidence of Mr Aitken, taken on behalf of Mr Elliott, was on the basis that it was asserted that he was not an expert witness competent to express an opinion concerning building practice, particularly in relation to the construction of steel‑framed dwellings. At the time of the objection, the Tribunal advised that it would permit Mr Aitken to give evidence, but would determine what weight, if any, to give to that evidence.
In the Tribunal's view, having considered Mr Aitken's evidence, insofar as it related to the procedures which should have been followed during the construction of the dwelling, the Tribunal considers that Mr Aitken's overall experience in the building industry is sufficient to enable him to express an opinion concerning how a builder should respond to particularly significant problems as they become known. The Tribunal as constituted includes Senior Sessional Member Mr R Affleck, an experienced civil engineer and a registered builder, and Senior Sessional Member Ms R Moore, an experienced architect, who were able to assess Mr Aitken's evidence, and the Tribunal finds that his evidence, in this regard, does no more than reflect what would be regarded as good practice within the building industry. The Tribunal sees no particular complexity arising because the dwelling incorporated steel framing as opposed to, say, a timber‑framed dwelling, of such a nature as to disqualify Mr Aitken from expressing an opinion. In any event, the evidence given by Mr Aitken in relation to building practice accords with the concluded views of Senior Sessional Member Mr Affleck and Senior Sessional Member Ms Moore. If Mr Aitken had not given evidence of this nature, it would have been necessary for the Tribunal to raise the possibility of such findings being made and allow the parties an opportunity to address those issues, either through specific evidence or submissions. In the circumstances, the Tribunal will give full weight to Mr Aitken's evidence insofar as it relates to building practice.
Much of the background is common cause. To the extent that facts have not been expressly admitted, they have been taken from witness statements which have been tendered unopposed and which are not contradicted in relation to the relevant facts and from the oral evidence at the hearing. The Tribunal also had before it, reports relating to the building works from Advanced Building Consultants, Better Homes Assured and Structerre Consulting Group. Information has also been taken from documents before the Tribunal.
It is admitted that Yenbowl was a registered builder and that Mr Elliott was the sole director and secretary and is registered as a builder in his own right; that Yenbowl contracted with Trina Narelle Millington and Jeremy Seymour Millington for the construction of a dwelling at Safety Bay, and that Yenbowl carried out the building work and a contract dated 6 May 2004. The building contract includes a cl 2 of the general conditions of contract dealing with discrepancies and ambiguities in the drawings or between the drawings and specification. The clause requires that the builder shall immediately refer the same to the owner who shall in writing direct the builder which course should be followed. Should the owner fail to do so within five days of the reference for directions, the builder may exercise his own discretion in determining which course shall be allowed. Where the builder exercises his own discretion, he must advise the owner in writing of the course adopted.
Mr Elliott, as a director of Yenbowl, was the nominated supervisor responsible for managing and supervising the building work.
The owners provided the architectural drawings for the design of the dwelling. Yenbowl provided the architectural drawings to a subcontractor for the preparation of drawings for fabrication of the steel framework and caused that fabrication to occur.
Yenbowl also arranged for engineering drawings to be prepared.
Yenbowl, which at all times acted through Mr Elliott, arranged for a surveyor to set out the site for construction. The surveyor informed Mr Elliott that the perimeter of the floor slab would not close and that he could not set out the slab because of errors in the architectural drawings. Mr Elliott instructed the surveyor to adjust his floor slab to enable the perimeter to close.
There is some issue as to the stage to which the fabrication of steelwork had by then progressed, and we shall revert to this issue later. It is common cause, however, that the alteration to the floor slab meant that the design and fabrication of the steel framework would have to change. Mr Elliott did not notify the owners of the events which occurred. He took the decision to modify the floor slab, rather than cause the architectural drawings and fabrication drawings to be re‑dimensioned. If Mr Elliott's initial evidence is correct that the steel framework had already been fabricated by then, it is at least common cause that he did not cause it to be re‑fabricated to the extent necessary to comply with any errors in the dimensions. This, again, is a matter to which we shall revert.
Mr Elliott took the decision to modify the steelwork on site.
There was an extensive amount of modification to the steelwork which was necessary. The evidence of Mr Aitken and Mr Scott and photographic evidence reflects the extent of departure from the original engineering drawings and fabrication drawings. This resulted in many alleged defects as set out in the application. Mr Elliott disputed that the work was defective on the basis that the contract had been terminated prior to completion of the works. The evidence of Ms Millington establishes that the contract was terminated on 11 February 2005.

The defective work ‑ breach of building contract claims

The complaints are particularised in the grounds for the application, as amended. They include allegations that beams were not fully welded, connections were not bolted, a stud wall was not fully supported, and an inadequate number of stud members were installed at a number of intersections and truncations and so on. We shall not repeat all the allegations and we incorporate them by reference to the application. Mr Elliott met these allegations in some cases by simply asserting that the work was not finished, in others by indicating that, in effect, the manner in which beams were connected, the stud walls supported, stud members installed and so on were inspected by Mr Dryka.
Mr Elliott's evidence was that in some instances he received Mr Dryka's advice before carrying out modification, but in other respects, he had carried out the work necessary in his judgment and had Mr Dryka inspect it afterwards. In some respects, he gave evidence that allegations that beams were not properly welded were not correct and that the welding could not be observed except from particular vantage points. In addition, Mr Elliott emphasised that the work had not been completed. His intention was to replace wrongly sized dynabolts where the incorrect size had been used because of the immediate unavailability of the correct size. Mr Elliott's specific responses are set out in his statement of issues, facts and contentions which we also incorporate by reference.
If the contract had not been terminated, and if there was evidence from which to infer that there was no intention to address many of the matters of which complaint is made, it might be possible to conclude that, based on the standard of workmanship, the building works were not carried out in a proficient and workmanlike manner. In addition, the case against Mr Elliott is not based simply on the works not being carried out in a proficient and workmanlike manner. The case has been presented on the basis that the extent of deviation from what would constitute the carrying out of the work in a proficient and workmanlike manner is such that it constitutes negligence and incompetence on the part of Mr Elliott. To allege that a builder on whose skill and care clients must rely has been guilty of incompetence, in particular, is a serious allegation, which impugns the builder in his professional capacity. The Tribunal must therefore 'feel an actual persuasion of the occurrence of the events or existence of facts which are in issue': see Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at [361] ‑ [363]. We do not feel that persuasion in relation to the particular allegations of defective work. Nevertheless, that leaves alive for determination whether the general manner in which Mr Elliott caused the works to proceed warrants disciplinary action.
There are then further specific allegations made concerning non‑compliance with the BCA. It is correct as alleged by the Board that reg 5 of the Building Regulations has the effect of giving the BCA force of law and obliges a builder to comply with its requirements.
The Board alleges that structural steel beams supporting the loft floor were installed without being hot dipped galvanised and, further, that the mild steel brackets supporting the ends of the rafters in bedroom 4 were untreated, both contrary to Pt 3.4.4.4 of the BCA. Mr Elliott's evidence was that the provisions of the BCA relating to the alleged necessary treatment did not apply, because the property was in a locality in which there was no breaking surf and because the structural beams were, in any event, not exposed to the weather. There was no evidence to contradict Mr Elliott's evidence and the issue was not pressed. In the circumstances, and having regard to the observations above concerning the allegations against Mr Elliott and the Briginshaw principle, we do not consider that the allegations have been made out.

The manner in which the works were carried out

It is necessary to have regard to what obligations rest on either the builder carrying out the building work, or the builder who is the nominated manager and supervisor. We refer firstly to the standard of management and supervision required as set out in s 10CA, namely, that the whole of the building work be carried out in a proficient and workmanlike manner.
The Australian Oxford Dictionary, Second Edition, 2004, Oxford University Press defines 'proficient' to mean 'adept, expert: a person who is proficient'.
The same dictionary defines 'workmanlike' to mean 'characteristic of a good workman; showing practised skill; competent'.
In relation to s 13(1)(c), it is necessary to consider what is meant by reference to negligence or incompetence.
The Australian Oxford Dictionary, above, defines 'incompetent' as 'adj. 1 a. not qualified or able to perform a particular task or function (an incompetent builder) b. not legally qualified or qualifying 2 showing a lack of skill (an incompetent performance)' and gives incompetence as the noun, which must be taken to have a corresponding meaning.
In relation to the meaning of 'negligence' within s 13(1)(c), counsel for the Board referred the Tribunal to a decision of the Queensland Building Tribunal in Qbsa v Phipps Keith Ralph DO 25 ‑ 97 [1997] QBT 163 (25 September 1997) (Phipps) in which the Tribunal considered the meaning of 'negligence' in the context of what was then a provision which corresponded to s 13(1)(c). The Queensland Building Tribunal explored the different meanings which can be given to the term 'negligence'. Reference was made to a decision of the Privy Council in Chin Keow v Government of Malaysia 1967 1 WLR 813 at 816 in which a distinction was drawn between ordinary negligence as opposed to the negligence importing a special skill in the following terms:
Where you get a situation which involves the use of some skill or competence, then the test ‑ is not the test of a man on top of a Clapham omnibus, because he has not got the special skill. The test is the standard of the ordinary skilled man exercising a profession to have that special skill. The man need not possess the highest expert skill; it is well‑established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
The Queensland Building Tribunal then went on to consider the meaning of negligence in the context of criminality concerning negligence and then posed where negligence fell for the purposes of disciplinary proceedings. After referring to a decision of the Federal Court in Re Lamperd [1983] FCA 22, the Queensland Building Tribunal followed the conclusion in that case that a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in the situation would exercise.

There is a considerable body of law determining what constitutes professional negligence. It is generally accepted that the standard required is the exercise of due care, skill and diligence, which requires the bringing to the task in hand the competence and skill usually employed by members of the particular profession: see Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84 (Voli); May v Migatovic [2002] WASC 151 (14 June 2002) and the authorities there cited and the discussion in Professional Liability in Australia, Walmsley, Abades, Zipser, Lawbook Co 2002, at [6.580] relating to application of the standard to all building practitioners. In our view, the standard expressed in the Phipps decision above is just another way of expressing what is, in effect, the same test because the reasonable man in the situation is a builder professing to have the skills of a builder necessary to carry out the type of building work in which the builder engages, and the skills and competence necessary are those that are usual among builders undertaking that work.
We apply the above meanings and standard as expressed in Voli.
Mr Aitken, the Board's inspector, gave evidence consistent with his statement, and on the premise that the steel framework had been manufactured at the time when Mr Elliott learned that the architectural drawings were inaccurate and that the perimeter of the slab could not be closed, that:
Alarm bells would be ringing because we have now got a situation which I would have to adapt. Now, prior to doing any of the building work there has got to be approval by the local authority. So you would want to be sure that the building work that you are undertaking is compliant with the approved plans and documentation (sic). Furthermore, the approval of the owners. You have already come to an agreement on the plans, the design, so in summing up I would say that I would halt all the proceedings and ensure that the materials delivered on site reflect what's on plan. (T:75)
It was then necessary to clarify with Mr Aitken that there was no plan with which the materials could comply. The surveyor had effectively altered the plan in order to close the perimeter of the floor slab. That did not change the substance of Mr Aitken's approach. Mr Aitken confirmed that if the steelwork had been fabricated in accordance with the architectural drawings (Mr Elliott testified that the drawings for fabrication had been based thereon), he would:
… hold everything until I establish what we need to do to refabricate, readjust those frames till the things marry up in accordance with the plans. (T:76)
Mr Elliott testified that there was no real difference in principle between modifying steel frames on site and, say, modifying timber frames, and that it was appropriate, in the circumstances, for him to have decided to proceed with the works and carry out the necessary modifications on site.
Mr Elliott's evidence was that, as a person with a vast degree of experience in constructing dwellings using steel framing, he considered that any adjustments to the steelwork which were necessary could be carried out on site. We accept that there is nothing unusual in some modifications to framework being made on site. It is a question of fact and degree in every case, as Mr Aitken recognised but, where the degree of modification means that what is being constructed is not in accordance with the approved drawings in any material respect, then to proceed with the construction is a breach of reg 17 of the Building Regulations, which prohibits variation from approved plans without the prior consent of the building surveyor.
Mr Elliott's own evidence was that there were significant modifications. Although there was no direct evidence to the effect that the architectural drawings were the drawings which had been approved by the local authority, that was implicit from Mr Elliott's evidence that he had awaited the grant of the building licence before proceeding with the set out of the slab and the then discovery, through the surveyor engaged for that purpose, that the architectural drawings had errors in the dimensions.
In the circumstances, to proceed with the works without submitting amended plans for approval of the local authority was an entirely unsatisfactory building practice. It was also not in accordance with Yenbowl's contractual obligations to which we have referred, which required Yenbowl to seek instruction from the owners, which it did not do.
To a large extent, by proceeding with the work, Mr Elliott took on the role of an engineer, which he was not qualified to do. While Mr Elliott's evidence, as corroborated by Mr Dryka, is that Mr Dryka attended the site on at least three occasions, the purpose of which was to advise in some respects in relation to prospective modifications, but it was also to approve modifications which Mr Elliott had already carried out.
The management and supervision responsibilities under the BR Act are to ensure that the whole of the building work was carried out in a proficient and workmanlike manner. The scheme of building regulation requires local authorities to be satisfied that building work is carried out in compliance with all relevant legislation, including the Building Regulations and BCA. The process for approval requires that engineering drawings be submitted to ensure structural integrity of the building and to ensure that it is capable of coping with all loads to which it is likely to be subjected. Once plans have been approved, they must not be departed from in any material way. It is entirely inconsistent with that scheme for Mr Elliott to have caused the building works to proceed in the manner in which they did.
As we have pointed out, the purpose of disciplinary provisions in relation to vocational regulation is to ensure the protection of the public and the maintenance of industry standards.
In our view, it is too simplistic to suggest, as is implicit in the submissions on behalf of Mr Elliott, that, if it cannot be demonstrated that particular building work is defective because the builder has not yet completed the work, the builder cannot be said to have been negligent or incompetent in the manner in which he has supervised the carrying out of that building work. If that were so, far from the maintenance of industry standards, the entire process of building regulation would fall into disrepute with an obvious risk to maintenance of building standards. The public interest could not be adequately safeguarded in such circumstances.
In this instance, the owners were faced with steel framework which, at least in one position, overlapped the edge of the slab. Mr Elliott testified that this could be addressed by the construction of a suitable bracket. A further consequence was that a wall positioned between the laundry and study was contrary to the position shown on the plan, which resulted in the plumbing in the laundry and WC being incorrectly positioned. There was no suggestion that the latter problem could be remedied. These are ready examples of matters which could cause a client to lose confidence in their builder and which would have a tendency to bring the building industry into disrepute. It is not the type of work the public is entitled to expect from a competent builder experienced in the use of steel framework construction.
For the above reasons, we find that Mr Elliott is guilty of negligence and incompetence in the manner in which he managed and supervised the performance of the building work in question within the meaning of s 13(1)(c).
However, there are aspects of Mr Elliott's evidence which make it necessary to explore whether the extent of Mr Elliott's negligence and incompetence can be found to be greater than outlined above.
Mr Elliott testified that, once the fabrication drawings had been completed, it would take about three to four weeks to fabricate the framework and have all material ready (T:67).
Mr Elliott then testified that the wall frames were fabricated for over a month ‑ nearly two months ‑ prior to the issue of the building licence (T:67). The accuracy of that evidence may be questionable.
It was readily evident that Mr Elliott, perhaps not surprisingly, could not be specific about the dates of various events. Even in his statement of issues, facts and contentions, while many facts were admitted, it was subject to the qualification that he was uncertain about the dates ([1] of the statement of issues, facts and contentions).
By contrast, Ms Millington was very specific, and her witness statement was not challenged in any way, nor was she required to attend the hearing for cross-examination purposes. She testified that the concrete slab was poured on 2 September 2004. The steel fabrication drawings employ the common technique of including a table which is designed to show the date on which drawings are prepared. This usually reflects the date of the original drawings and then the date of any subsequent variation, resulting in the final drawings. In this case, at least one set of drawings shows that the preliminary drawings were prepared on 20 September 2004, and the final drawings prepared on 24 September 2004. Another set of drawings, to which counsel for Mr Elliott referred, contain an indistinct symbol where the date of preparation of the drawings should be inserted. It was submitted by Mr Elliott's counsel that, as a result of this, the date of final preparation was not clear. We do not accept that to be the case. The use of a symbol, for reasons which were not explained by Mr Elliott or by any other witness, to reflect that there were drawings in existence, at some unknown date, does not, in our view, displace the clear statement of when final drawings were completed.
Indeed, when it was put to Mr Elliott that, on his evidence, as he had the discussion with the surveyor in which the error in the architectural drawings was identified before the slab was laid, he had an opportunity to stop fabrication of the steelwork, because the dates shown on the drawings suggested that the drawings had not even been prepared at that stage, Mr Elliott responded:
I don't know, I haven't got an answer for that one. I don't know whether Millington's statements are right or not. I don't think so, so I don't know what the answer to that question is. I don't know whether Millington's ‑ what she says is correct there. I don't know the specific dates. Obviously the drawings were done then, but they go straight in to manufacture. (T:69)
Later, counsel for Mr Elliott referred him to pencil markings on some of the drawings. Mr Elliott identified the writing as his own, and when referred by his counsel to a date '16 November', he proffered:
Obviously, that is when I was aware of problems and I've started trying to find out just exactly what the problems mean … I started scribbling on this drawing on 16 November. (T:71)
When it was pointed out to Mr Elliott that his evidence tended to tie in with Ms Millington's further statement that the steel framework was delivered to the site on two separate occasions ‑ the first being on 8 November 2004 and the second on or about 25 November 2004 ‑ which, given a three to four week fabrication time, was consistent with the fabrication drawings being finalised in late September, Mr Elliott responded:
It was being fabricated we discovered problems. It might have been while it was being fabricated …
I'm not sure of the dates that all of these things, all I can say is the normal course of affairs is that as soon as the drawings become available, or lists become available, I order materials unless it's going to be just in time. In other words, they arrive so that I can make a progress claim for them when they are put together. In this case here, I'm pretty sure we had made all the wall frames and they were ready, or just about ready by the time we discovered the mistake. I am unsure of all the timing of this. It was over four years ago and I'm struggling to remember exactly. (T:72)
Counsel for Mr Elliott later submitted that, although Mr Elliott may not have been clear on dates, he was clear about the sequence of events and that the steelwork had been fabricated prior to the slab being laid.
It is evident from the above evidence that Mr Elliott was not clear about the sequence of events. He contradicted himself in saying that the steelwork might have been in the course of fabrication when the problem was discovered. Although he ultimately stated that he was 'pretty sure we had made all the wall frames and they were ready, or just about ready by the time we discovered the mistake'. It is obvious that Mr Elliott would not have deliberately proceeded with the fabrication of the steelwork after he came to a realisation that the fabrication drawings, if followed, would result in the steelwork having to be modified to fit the slab as laid out. We therefore would be prepared to accept that Mr Elliott did not come to that realisation until 16 November 2004. By then, the first delivery of the steel framework to site had been completed. As there is no evidence of the stage to which fabrication had been carried out as at 16 November 2004, there is nothing to suggest that any fabrication costs could have been saved.
It is apparent that the evidence has disclosed conduct on the part of Mr Elliott which could be capable of sustaining findings of negligence on a basis other than that which has been particularised. The case as particularised, by reason of the amendment granted at the commencement of the hearing, identifies only a reliance on the failure to notify owners, the failure to have the steel remanufactured and the failure to take appropriate steps to ensure that a solution was developed prior to proceeding with the building work.
While the last particular of negligence might, in isolation, arguably encompass Mr Elliott's failure to realise on or about 2 September 2004 that the fabrication drawings would need to be altered (thereby saving the whole cost of the incorrect fabrication), we do not consider that the particulars should be read in that way. In context, the allegation must be understood as applying to the facts, as then understood, that the steelwork had been manufactured, and that after that event, an appropriate solution should have been developed.
We have considered whether the Board should be provided with an opportunity to amend the grounds of the application but have concluded that it would not be appropriate to do so. We do not consider that it would in any practical sense alter the views we have formed as to the appropriate disciplinary disposition of the matter. If we were to make findings of negligence on the basis that Mr Elliott should have given instructions for the fabrication of the steelwork to cease on or about 2 September 2004, it would be negligence based on an omission. On the other hand, the findings we have made relate to a positive failure to act in the manner which could be expected of a competent registered builder, in the context of a deliberate course of action. We see that conduct as being far more culpable. But, more importantly, Mr Elliott had no notice that the case was to be presented in a manner which might result in a finding of negligence on the above basis. We do not consider that the amendment to which we have referred was intended to give notice to such effect. If clear notice had been given, that might have been a basis upon which Mr Elliott would have sought an adjournment of the matter in order to obtain access to the records of Yenbowl and of the subcontractor responsible for fabrication of the steel framework.
We accordingly limit our findings of negligence and incompetence to those expressed above and based on Mr Elliott's position that the steelwork was fabricated prior to the set out of the slab.

The appropriate disciplinary consequences

Pursuant to reg 21 of the Builders' Registration Regulations, the maximum amount of a fine which may be imposed under s 13A is not to exceed $25,000.
The Board sought in the initial application that a fine of $5,000 be imposed and has not sought to amend the application in that respect.
In our view, the departure by Mr Elliott from the conduct which the public is entitled to expect from a competent registered builder, as outlined above, is significant. While there has been no evidence of the consequences to the owners, it is evident from the reports which have been filed, all of which were addressed to Ms Millington, that the state of the steel framework has been a cause of considerable concern. While, for the reasons we have given, we do not consider that Mr Elliott can be held responsible for the building works being incomplete, on the evidence before us, it is self-evident that the manner in which he managed and supervised the works, without seeking instructions from the owners, lies at the heart of that concern.
The appropriate disciplinary consequences must necessarily depend on what is required to ensure industry standards are maintained, must demonstrate the seriousness with which the offending conduct is viewed, must deter others from acting in the same way and must protect the public. Punishment is not one of the objects of disciplinary proceedings, nor is the exacting of retribution: see Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25; Carlino at [38].
We consider that a fine in the sum of $5,000, as sought by the Board, is appropriate. It reflects the seriousness with which Mr Elliott's conduct, as found above, must be viewed in order to deter other builders from ignoring their obligation to ensure that there is no departure from approved building plans and thereby upholds the statutory regime which is necessary to properly control the carrying out of building work within the State of Western Australia. We shall make an order accordingly.

Costs

The parties agreed that the question of costs should be held over for consideration after the Tribunal's reasons for decision had been published.
The Tribunal's usual position in relation to legal costs is explained in the Carlino decision at [45]. In the circumstances, the Tribunal will make orders which provide the parties with an opportunity to make an application for whatever costs order might be considered appropriate. The orders will provide a sufficient time for the parties to confer, either before or during the course of the application for costs, so that if they are able to reach any agreement, a proposed consent order can be filed, and if deemed appropriate by the Tribunal, an order will issue in terms thereof. The formal orders will simply program the costs application, but the parties are encouraged to endeavour to reach an agreement, if possible.

Orders

For the above reasons, the Tribunal will issue orders as follows.
1.That there is proper cause for disciplinary action against the respondent as mentioned in s 13(1)(c) of the Builders' Registration Act 1939 (WA).
2.The respondent is fined the sum of $5,000.
3.The parties are granted leave to apply for costs, subject to compliance with the following orders:
(a)any application for costs is to be made in writing detailing the amount of costs claimed and the basis on which costs have been computed, and is to be accompanied by an outline of written submissions as to why such costs should be awarded; and
(b)the documents referred to in (a) must be filed with the Tribunal and served on the other party on or before 17 April 2009.
4.On or before 1 May 2009, any party wishing to oppose any application for costs made by the other must file and serve an outline of written submissions as to why such costs orders should not be made.
5.Unless the Tribunal directs otherwise, any such application for costs shall be determined on the documents.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR C RAYMOND, SENIOR MEMBER