Cantwell v The Building Practitioners Board
[2003] NTSC 92
•26 AUGUST 2003
Cantwell v The Building Practitioners Board & Anor [2003] NTSC 92
PARTIES:CANTWELL, DAVID
v
THE BUILDING PRACTITIONERS BOARD
AND:
FABIO FINOCCHIARO in his capacity as Director of Building Control pursuant to section 7 of the Building Act
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL
FILE NO:No. 39 of 2002 (20213022))
DELIVERED: 26 AUGUST 2003
HEARING DATES: 25, 26, 27, 28 MARCH, 15 APRIL, 26 MAY 2003
JUDGMENT OF: ANGEL J
REPRESENTATION:
Counsel:
Plaintiff :C McDonald QC
First Defendant : G Macdonald
Second Defendant : M Grant
Solicitors:
Plaintiff:Povey Stirk
First Defendant: Solicitor for the Northern Territory
Second Defendant : Ward Keller
Judgment category classification: B
Judgment ID Number: ang200301
Number of pages: 13
ang200301
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCantwell v The Building Practitioners Board & Anor [2003] NTSC 92
No. 39 of 2002 (20213022)
BETWEEN:
DAVID CANTWELL
Plaintiff
AND:
THE BUILDING PRACTITIONERS BOARD
First Defendant
AND:
FABIO FINOCCHIARO in his capacity as Director of Building Control pursuant to section 7 of the Building Act
Second Defendant
CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 26 August 2003)
The plaintiff is a building certifier registered pursuant to s 24 Building Act NT 1993.
By his further amended Originating Motion the plaintiff seeks to restrain certain disciplinary proceedings commenced in purported pursuance of Part III Divisions 2 and 3 Building Act NT 1993 by way of an inquiry by three members of the Builders Practitioners Board which commenced on 26 August 2002 into alleged negligence of the plaintiff as a building certifier.
There are in all fifty allegations against the plaintiff, forty of which relate to buildings certified by him as an employee of Project Building Certifiers Pty Ltd, of which a Mr Duncan Cooke is a director. That company is also a registered building certifier and a co-respondent with the plaintiff at the inquiry in relation to the forty allegations of negligence. The three members of the Board conducting the inquiry are a Mr Brears, a Mr Scott and a Ms Whinney-Horton. Brears and Scott are qualified engineers and Whinney-Horton is a building certifier. Whinney-Horton is a former employee of Project Building Certifiers Pty Ltd. Mr Duncan Cooke is a former member of the Building Practitioners Board and for a period was a co-member with Brears, who is Chairman of the present panel of inquiry.
The second defendant, Fabio Finocchiaro, is Director of Building Control appointed pursuant to s 7 Building Act NT 1993 and a member of the Builders Practitioners Board pursuant to s 12(2) Building Act NT 1993. The second defendant's office has thus far conducted the case against the plaintiff and Project Building Certifiers Pty Ltd before the inquiry panel.
The plaintiff challenges the inquiry, inter alia, on the following bases:-
13.that in the absence of an express statutory power to delegate, the Builders Practitioners board, charged, inter alia, with conducting disciplinary inquiries pursuant to s 27 Building Act NT 1993 can not have a panel of three of its members carry out that function;
14.that the Builders Practitioners Board has allowed non-members to participate in the hearing and at its deliberations; in particular, members of Ward Keller solicitors are said to have advised and drafted decisions and reasons of the panel for refusing to support a joint inquiry into the plaintiff and Project Building Certifiers Pty Ltd and for refusing to disqualify themselves from sitting on account of apparent bias;
15.that on a proper construction of the Building Act NT 1993 the plaintiff as an employee of Project Building Certifiers Pty Ltd can not be the subject of an inquiry;
16.that the establishment and conduct of the inquiry has resulted in the plaintiff being denied procedural fairness in that -
(i)the panel members are disqualified by interest or association or both;
(ii)there is apparent bias and pre-judgment;
(iii)there was a failure to disclose relevant material to the plaintiff prior to 20 September 2002 and the inquiry proceeded at times when the plaintiff's legal representative Mr Stirk was unwittingly adrift like junior counsel for the plaintiff in Van Reesema v Giameos (1977) 17 SASR 353 at 355, that is, “with only partial knowledge of [the] case, he [was] "like a champion going into battle unconscious of a gap in his armour".
I turn first to the question whether the panel of three members of the Building Practitioners Board appointed on 14 August 2001 can conduct the inquiry of the Practitioners Board pursuant to s 27 Building Act.
The Building Practitioners Board is established under Division 3 of the Act.
Sections 12, 13 and 14 provide as follows:
“12. ESTABLISHMENT OF PRACTITIONERS BOARD
(1)There is established by this section a Board to be known as the Building Practitioners Board.
(2)The practitioners Board shall consist of such members appointed by the Minister, having experience in the building industry or matters connected with the building industry, as the Minister thinks fit, of whom –
(a)one shall be appointed to be its Chairman; and
(b)one other shall be appointed to be its Deputy Chairman.
(3)
Without limiting the generality of subsection (2), the Director or a member of the Advisory Committee may be appointed as a member of the Practitioners Board.
17.SCHEDULE 2 TO APPLY
Schedule 2 has effect with respect to the members and procedure of the Practitioners Board.
18.FUNCTIONS AND POWERS OF PRACTITONERS BOARD
(1)The functions of the Practitioners Board are –
(a)to determine the qualifications to be held by building practitioners and the courses of instruction, and the examinations, to be undertaken by building practitioners from time to time;
(b)to register persons as building practitioners; and
(c)such other functions as are imposed on it by or under this or any other Act or as directed by the Minister.
(2)
The practitioners Board has such powers as are conferred on it by or under this or any other Act and, subject to this Act, may do all things necessary or convenient to be done for or in connection with or incidental to the performance of its functions and the exercise of its powers.”
Unlike the Minister and Director who have an express power of delegation pursuant to s 20 Building Act, the Practitioners Board has no express power of delegation. Except to the extent that its procedures are prescribed, the Practitioners Board may determine its own procedures in relation to an inquiry; s 28(1).
The Building Appeals Board is established under Division 4 of the Act. Schedule 2 of the Act applies to both the Building Practitioners Board and the Building Appeals Board; see ss 13 and 18.
Sections 2 and 3 of Schedule 2 provide as follows:
“2. ACTING APPOINTMENT
(1) Where a member is or is expected to be absent from duty or from the Territory, the Minister may appoint a person (with, in the case of the Practitioners Board, the same qualification for appointment as the absent member) to act as the member during the absence.
(2) The Minister may, at any time, terminate an appointment made under subclause (1).
(3) The validity of a decision of the Committee or Board shall not be questioned in any proceedings on a ground arising from the fact that the occasion for the appointment of a person under subclause (1) had not arisen or that an appointment under subclause (1) had ceased to have effect.
3. CHAIRMAN AND DEPUTY CHAIRMAN
(1) In the absence of the Chairman from the Territory or from duty, or when the Chairman is unable to perform his or her functions, the Deputy Chairman may exercise the powers and shall perform the functions of the Chairman under this Act.
(2) Subject to subclause (3), a member elected or appointed as the Chairman or Deputy Chairman, while the person remains a member, holds office for a period not exceeding 3 years and is eligible for re–election or reappointment.
(3)
The Committee or Board may at any time, by resolution, elect a new Chairman or Deputy Chairman and, on the passing of such a resolution, the person who held the office immediately before the resolution was passed ceases to hold the office.”
Sections 5, 6 and 7 of the Schedule provide as follows:
“5. DISMISSAL OF MEMBERS
(1) The Minister may terminate the appointment of a member for inability, inefficiency, misbehaviour or physical or mental incapacity.
(2) If a member –
(a)is absent, except by leave of the Committee or Board, from 3 consecutive meetings of the Committee or Board; or
(b)becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit,
the Minister shall terminate the appointment of the member.
6.DISCLOSURE OF INTEREST
(1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Committee or Board (otherwise than as a member of, and in common with other members of, an incorporated company consisting of not less than 25 persons and of which he or she is not a director), shall, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of his or her interest at a meeting of the Committee or Board.
(2) A disclosure under subsection (1) shall be recorded in the minutes of the Committee or Board and, unless the Committee or Board otherwise determines, the member –
(a)shall not, while he or she has that interest, take part after the disclosure in a deliberation or decision of the Committee or Board; and
(b)shall be disregarded for the purpose of constituting a quorum of the Committee or Board,
in relation to the matter.
(3) For the purpose of the making of a determination under subclause (2) in relation to a member who has made a disclosure under subclause (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not –
(a)be present during the deliberations of the Committee or Board for the purpose of making the determination; or
(b)
take part in the making of the determination by the Committee or Board.
7.MEETINGS OF COMMITTEE OR BOARD
(1) The Chairman shall call such meetings of the Committee or Board as are necessary for the exercise of its powers and the performance of its functions.
(2) The Minister may, at any time, direct the Chairman to call a meeting of the Committee or Board and the Chairman shall comply with the direction.
(3) Subject to sections 132 and 133, a meeting of the Committee or Board –
(a)in the case of the Practitioners Board and the Advisory Committee, 3 members constitute a quorum;
(b)the Chairman shall preside at all meetings of the Committee or Board at which he or she is present and, in the absence of the Chairman from a meeting, the Deputy Chairman shall preside and, if both the Chairman and Deputy Chairman are not present, the members present may appoint one of their number to preside at the meeting;
(c)questions arising shall be determined by a majority of the votes of the members present and voting and, in the event of an equality of votes, the Chairman or other person presiding at the meeting shall have, in addition to his or her deliberative vote, a casting vote; and
(d)subject to this Act, the Committee or Board shall determine the procedure to be followed at or in connection with the meeting.
(4) If the Committee or Board so determines, a member may participate in, and form part of a quorum at, a meeting of the Board by means of –
(a)telephone;
(b)closed circuit television; or
(c)a prescribed method of communication.
(5) A member who participates in a meeting as provided by subclause (4) shall be taken, for the purposes of this Schedule, to be present at the meeting if the member is able to hear and be heard by each member taking part in the meeting, including for the purposes of being counted towards a quorum at the meeting.
(6) The Committee or Board shall cause records of its meetings to be kept.”
Section 132 of the Act provides:
“132. SITTINGS OF APPEALS BOARD
(1) The Appeals Board shall, for the purpose of performing its functions in relation to a particular matter, consist of such member or members as the Chairman nominates (one of whom he or she shall nominate to preside), but shall not be composed of, or include, the Director or a delegate of the Director if the Director is the appellant or if the matter the subject of the appeal involves an act or decision of the Director or a delegate of the Director.
(2) More than one sitting of the Appeals Board may be held at any one time.”
As can be seen from these provisions the Practitioners Board consists of such members as are appointed by the Minister, there being no limit on the number of members, and three members constitute a quorum. In contrast the Appeals Board for the purposes of performing its functions may consist of such one or more members as the Chairman nominates.
The express power of delegation given to the Minister and Director under s 20 of the Act and the express power of delegation given to the Chairman of the Appeals Board under s 132 and the absence of an express power of delegation given to the Practitioners Board is significant. In my view the provisions of Schedule 2 of the Act also support the view that the Act contemplates that it is the Practitioners Board as a whole and not a bifurcated portion that is intended to exercise that Board’s functions and powers. In my view ss 2, 3, 6 and 7 of Schedule 2 confirm that the conduct of a disciplinary hearing is to be undertaken by the Practitioners Board as a whole. None of this is to say that all members must be present at meetings or that the inability of a member to attend a meeting renders the Practitioners Board unable to hold an inquiry. Sections 2 and 5 of Schedule 2 plainly contemplate a member or members being absent from meetings.
Counsel for the second defendant submitted that no delegation arises where the activity in question is performed by a lawfully constituted quorum and he particularly emphasized the quorum provision, s 7(3)(a) of Schedule 2. In making the submission he relied upon Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 522, per Menzies J, and Howard v Borneman (No. 2)(1975) 1 Ch 201 at 211, per Lord Denning MR; on appeal: [1976] AC 304 at 311–313.
In Howard v Borneman (No. 2) in the Court of Appeal, Lord Denning (at 211) drew attention to the distinction between what he described as “a panel provision” by which a number of persons are appointed as members of a tribunal but a limited number of them are nominated by the Chairman to determine a particular matter, and “a quorum provision” by which a number of persons are appointed as members of a tribunal and all may attend and determine a matter but there is no provision for any specific number to attend so long as there is a quorum. A tribunal with a “panel provision” can bifurcate. A tribunal with a bare quorum provision can not. In Howard v Borneman the provision in question was construed as a panel provision. Here s 7(3)(a) of Schedule 2 can not. Clearly s 132 enables the Chairman of the Appeals Board to nominate a panel. Given the distinction drawn in the provisions of the Building Act between meetings of the Practitioners Board on the one hand and the Appeals Board on the other and the absence of an express power of delegation relative to the Practitioners Board, I am unable to agree with the submission that no delegation arises simply because three persons constitute a quorum.
The quorum provision, s 7(3)(a) of Schedule 2, simply means no less than three people can constitute the Board; it does not mean that if the Board comprises more than three people, that the Board, charged with disciplinary powers, can bifurcate and delegate those powers to only some of their number in the absence of an express power to do so. I reach this conclusion on what I regard as a true construction of the Building Act. It being a matter of statutory construction, it is unnecessary to discuss Vine v National Dock Labour Board [1957] AC 488 and Barnard v National Dock Labour Board [1953] 2 QB 18 in each of which an absence of an express power of delegation was fatal.
This is enough to dispose of the case. However it is appropriate that I say something on the issue of apprehended bias. The test of apprehended bias is that adumbrated in Livesey v NSW Bar Association(1983) 151 CLR 288 at 293–4 namely:
“ … a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the question involved in it.”
Counsel for the plaintiff made many complaints about the conduct of the hearing and particularly emphasized that all the circumstances had to be taken into account. As he said, there are in the books numerous cases where one factor of disqualification was not enough in itself, but when combined with other factors, was held sufficient to satisfy the test. Amongst other things counsel focused upon the second defendant’s discussions with other members of the Board in the absence of the plaintiff and the second defendant’s conduct of having identified himself with the prosecution of the case against the plaintiff by supervising the investigation into the plaintiff’s activities. It seems to me that the present case is akin to R v Optical Board of Registration & Ors, ex parte Quran [1933] SASR 1 rather than R v The Medical Board of SA; ex parte S (1976) 14 SASR 360. As Bray CJ made clear in the latter case and the Full Court of South Australia held in the former case, a Board which engages in its own investigations thereby identifying itself in a real as opposed to formal sense with the prosecution thereby vitiates the proceedings; see, per Bray CJ at 364, 370. The second defendant’s meeting in the absence of the parties with the inquiry panel on 21 February 2002, it seems to me, necessarily vitiated the present proceedings against the plaintiff.
There will be a declaration that the disciplinary inquiry purportedly conducted by the first defendant pursuant to s 27 Building Act NT in respect of the plaintiff which commenced on 26 August 2002 is invalid and null and void.
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