Cocks v O'Malley

[2006] NSWADT 150

CITATION:	Cocks v O'Malley [2006] NSWADT 150
DIVISION:	General Division
PARTIES:	APPLICANT Neil Cocks RESPONDENT Michael David O'Malley
FILE NUMBER:	053397
HEARING DATES:	13/03/06
SUBMISSIONS CLOSED:	03/13/2006
DATE OF DECISION:	05/22/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987
CASES CITED:	Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 (20 August 2003) New South Wales Bar Association v Sahade [2004] NSWADT 151 (27 July 2004)
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT T Howard, counsel
ORDERS:	The application by the respondent to dismiss the application for lack of jurisdiction is dismissed; Directions; 1. The applicant is to file and serve any further evidence and submissions in support of the application within 28 days of the date of these reasons; 2. The respondent is to file and serve any further evidence and submissions in reply within a further 28 days; 3. The Registrar will arrange a date for hearing suitable to the Tribunal and the parties.

Introduction

1 The issue dealt with in this judgment is whether the applicant has lodged an application for a disciplinary finding against the respondent within the statutory time limit allowed for the filing of such an application. On 11 November 2005, Mr Neil Cocks, Director Building Professionals Branch, Department of Planning, applied to the Tribunal for certain disciplinary findings to be made against Mr Michael O’Malley who is an accredited certifier. Under the Administrative Decisions Tribunal Act 1997 (ADT Act), a person may apply to the Tribunal for a disciplinary finding (which is an “original” decision under the ADT Act) if the application is made within the time prescribed by the rules of the Tribunal, or by or under the enactment under which the application is made: ADT Act, s 42(b). The enactment under which the application was made is the Environmental Planning and Assessment Act 1979 (EP&A Act). That Act does not prescribe any time limit for the making of an application to the Tribunal for a disciplinary finding. However the rules of the Tribunal require that an application be made “within 28 days from the day on which the applicant became entitled under the enactment to make the application”: Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (ADT Rules), cl 14(3).

2 The respondent submitted that the event that triggers an accreditation body’s entitlement to make an application is the completion of an investigation. According to the respondent that date was 21 May 2004 when the State Assessment Committee (SAC) made its recommendations to the applicant with respect to the complaint. The applicant submits that the relevant date is the date the applicant decided to apply to the Tribunal for a disciplinary finding. That date was 17 October 2005 and the applicant says that as the application was filed in the Tribunal on 11 November 2006, the application is within time. Section 44 of the ADT Act allows the Tribunal to extend the time “if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.” The applicant did not apply for an extension of time under s 44. If the application has not been lodged in time, both parties agree that the Tribunal does not have jurisdiction to hear the application.

Statutory scheme

3 Division 3 of Part 4B of the EP&A Act establishes a disciplinary scheme in relation to certifiers. The accreditation bodies (including the applicant in this case) and the Tribunal both have a role in disciplining accredited certifiers. The process begins when a person makes a complaint against an accredited certifier alleging that he or she has been guilty of unsatisfactory professional conduct or professional misconduct. It is not necessary for the purposes of these reasons to elaborate on the meaning of those terms but they are defined in s 109R. After the accreditation body receives a complaint it must inform the accredited certifier of the nature of the complaint and invite him or her to make representations within a specified time frame of not less than 7 days: s 109V(3). The accreditation body must then conduct an investigation into the complaint: s 109W. Importantly, s 109Y provides that, “An investigation by an accreditation body is to be conducted as expeditiously as possible.” Section 109Z sets out how an accreditation body is to deal with a complaint after it has completed an investigation. The meaning of that provision is critical for the purposes of these proceedings so I will set it out in full with the most important passages underlined.

109Z Decision after investigation of complaint

(1) After an accreditation body has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section.

(2) The accreditation body may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier.

(3) Subject to subsection (4), the accreditation body must institute proceedings in the Tribunal with respect to the complaint against the accredited certifier if satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.

(4) If the accreditation body is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the accreditation body may instead:

(a) with the consent of the accredited certifier do any one or more of the following:

(i) caution or reprimand the accredited certifier,

(ii) direct that such conditions as it considers appropriate be imposed on the accredited certifier’s accreditation to practise as an accredited certifier,

(iii) order that the accredited certifier complete such educational courses as are specified by the accreditation body,

(iv) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the accreditation body, or

(b) dismiss the complaint if satisfied that the accredited certifier is generally competent and diligent and that no other material complaints have been made against the accredited certifier.

(5) The accreditation body is to dismiss the complaint against the accredited certifier if satisfied that there is no reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (emphasis added.)

4 The procedures in Division 3 of Part 4B are expanded on in Part 8 of the Ministerial Guidelines made under clause 198 of the Environmental Planning and Assessment Regulation 2000. Clauses 8.5 and 8.6 establish a Complaints Review Committee (CRC) as a sub-committee of a State Assessment Committee (SAC). A complaint is to be referred to the CRC. That body is to inform the respondent within 14 days of the nature of the complaint. The CRC is then to take certain steps in relation to the investigation culminating in a report of its findings and recommendations to the SAC. The SAC is to consider the CRC’s report at its monthly meeting and make recommendations to the applicant in relation to the complaint.

Chronology of events

5 It is not in dispute that the following events occurred:

15 July 2002 The Department of Planning received a complaint against the respondent. The complaint was assigned to a Senior Auditor from the Department, Mr Ron Rogers, for investigation.

21 July 2003 The respondent was informed of the nature of the complaint and was invited to provide representations.

25 November 2003 The respondent’s solicitors provided written submissions in response to the complaint.

9 December 2003 A written report prepared by Mr Rogers for the consideration of the Complaints Review Committee (CRC) was provided to the respondent.

19 February 2003 The CRC held a meeting to consider the complaint.

14 April 2003 The CRC sent a copy of the report it had prepared for the SAC, to the respondent.

21 May 2004 The SAC met and considered the report of the CRC. The SAC was satisfied that there was a reasonable likelihood that the respondent would be found guilty by the Tribunal of unsatisfactory professional conduct.

17 October 2005 The applicant determined to make an application to the Tribunal for a disciplinary finding under s 109Z of the EP&A Act.

6 It can be seen from this chronology that the applicant decided to make an application to the Tribunal nearly 17 months after the SAC made its recommendations to him. According to the applicant’s solicitor, there is no time prescribed for the filing of an application with the Tribunal after the completion of an investigation. He says time does not start to run until the applicant makes a decision to apply to the Tribunal for a disciplinary finding.

Respondent’s submissions

7 The respondent’s submissions included the following points:

(a) The day on which the applicant became entitled under the enactment to make the application arose, at the latest, when the SAC made its recommendations with respect to the complaint at its meeting on 21 May 2004. That was the day that the applicant completed the investigation. According to the respondent, that is apparent from the terms of the Ministerial Guidelines and the process actually undertaken in relation to the investigation.

(b) If the legislature had intended the 28 day time period to run from the date the applicant made a formal decision to make the application to the Tribunal, the EP&A Act would have expressly provided for the time to run from that date.

(c) A purposive construction of s 14(3) accords with the ordinary meaning of the words in that provision. The construction advanced by the applicant that the time runs from the date of a formal determination to make the application would defeat the purpose of imposing a time limit. Furthermore s 109Y requires complaints to be dealt with as expeditiously as possible.

(d) It is consistent with affording a respondent procedural fairness to deal with any complaint as quickly as possible. The longer the delay, the less likely it is that the respondent can properly prepare his or her case and the less likely it is that the administrative system is able to ensure a fair hearing.

(e) There are no decisions of the Tribunal which are contrary to the proposition that time commences to run from the date of the entitlement to make the application, as distinct from the date of formal determination.

8 Both parties agreed that the applicant “became entitled under the enactment” to make the application to the Tribunal “after” it had “completed an investigation”. The Macquarie Dictionary defines “after” in this context to mean “prep . . 4. later in time than; in succession to; at the close of”. (Macquarie Dictionary 3rd edition, Macquarie Library, 1997.) The applicant says “after” in this context means “later in time than” the completion of the investigation. The reason for that provision, according to the applicant, is to prevent the applicant from taking any of the steps set out in s 109Z before the investigation has finished. The respondent says that “after” in this context means “at the close of” the investigation. The respondent’s alternative submission was that “after” means either “as soon as practicable after” or “within a reasonable time after”. According to the respondent the applicant’s construction would lead to an absurd result because it would allow an application to be made to the Tribunal ten or twenty years after the completion of the investigation.

Reasoning and decision

9 In the present context, the ordinary meaning of the word “after” means “later in time than”. If it were intended to mean “at the close of” or “within a reasonable time after”, the legislature would have used a different form of words. This view means that time does not start running immediately upon the close of an investigation, but rather when the applicant decides to make an application to the Tribunal. Consequently, the application is within time and the Tribunal has jurisdiction to deal with it.

10 If I am wrong, and there is more than one possible meaning of the word “after” in the present context, I need to determine which of the alternative constructions put forward by the parties is correct. Section 33 of the Interpretation Act 1987 assists in determining that question. It states that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

11 In addition, the High Court has rejected constructions of legislative provisions which lead to a result that is incongruous, contrary to the objects of the Act, capricious or irrational: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 per Gibbs CJ at 157; per Stephen J at 162 and per Mason and Wilson JJ at 170.

12 The objects of the EP&A Act set out in s 4, are not directly relevant to the disciplinary provisions in Part 4B. The purpose of Division 3 of Part 4B is to address unsatisfactory professional conduct or professional misconduct by accredited certifiers. That purpose is achieved by establishing a procedure for receiving, investigating and determining complaints made against accredited certifiers. While the legislature intended that the process of investigating complaints be conduced as expeditiously as possible, it did not prescribe any time limits for the conduct of an investigation, nor for an accreditation body to apply to the Tribunal for a disciplinary finding. It merely provided that such an application be made, “[A]fter an accreditation body has completed an investigation into a complaint”.

13 The consequences of interpreting the word “after” as meaning “later in time than” does not lead to a result that is incongruous, capricious or irrational. It is possible, as has occurred in this case, that it leads to delay in the matter being determined. However, the longer the delay the less likely it is that the Tribunal would make findings adverse to the respondent. In that sense, delay may not disadvantage a respondent.

14 The consequences of interpreting the word “after” as meaning “at the close of” are that an accreditation body would have only 28 days from the completion of an investigation to commence proceedings in the Tribunal. Even if an investigation is complete when the SAC makes its recommendations, that body is merely an advisory body to the applicant. The applicant is not bound by those recommendations and must determine, for him or herself, whether or not to institute proceedings in the Tribunal. Twenty-eight days is a relatively short period of time in which to lodge an application given that the applicant may need to consider extensive documentation, obtain legal advice and prepare the application together with supporting evidence as to jurisdiction.

15 In my view, the application is within time and the Tribunal has jurisdiction to deal with it. That view is consistent with other decision of this Tribunal including Director General, Department ofInfrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 (20 August 2003) and New South Wales Bar Association v Sahade [2004] NSWADT 151 (27 July 2004).

Orders

The application by the respondent to dismiss the application for lack of jurisdiction is dismissed.

1. The applicant is to file and serve any further evidence and submissions in support of the application within 28 days of the date of these reasons.

2. The respondent is to file and serve any further evidence and submissions in reply within a further 28 days.

3. The Registrar will arrange a date for hearing suitable to the Tribunal and the parties.