Cantwell v The Building Practitioners Board - [2003] NTSC 92

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 DARWIN
Cantwell 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…

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: [2003] NTSC 92
Decision Date: 26 AUGUST 2003

CaseChat Overview and Summary

In Cantwell v The Building Practitioners Board, the plaintiff, David Cantwell, a building certifier, sought to restrain disciplinary proceedings initiated by the Building Practitioners Board against him for alleged negligence in his role as a building certifier. The proceedings were contested on several grounds, including the validity of the disciplinary inquiry conducted by a panel of three members of the Board rather than the entire Board, the participation of non-Board members in the inquiry, and issues of procedural fairness and bias. The case was heard over several days and resulted in a detailed judgment delivered by Angel J on August 26, 2003.

The court addressed whether the disciplinary inquiry could be validly conducted by a panel of three Board members, rather than the entire Board, in the absence of an express statutory power to delegate such functions. The court examined the relevant provisions of the Building Act NT 1993 and Schedule 2, concluding that the Board, unlike the Minister and Director, did not have an express power of delegation. The court found that the Act and Schedule 2 contemplated the Board as a whole conducting disciplinary hearings, not a bifurcated portion of its members. Consequently, the inquiry conducted by the three-member panel was deemed invalid.

Furthermore, the court considered whether the inquiry was vitiated by apprehended bias. The court found that the second defendant's involvement in the investigation and discussions with other Board members in the absence of the plaintiff created a reasonable apprehension of bias. The court held that the second defendant's identification with the prosecution of the case against the plaintiff, by supervising the investigation, was sufficient to vitiate the proceedings.

In conclusion, the court declared the disciplinary inquiry invalid and null and void. This judgment underscored the importance of adherence to statutory provisions concerning delegation and the necessity for procedural fairness in disciplinary proceedings.

Orders