Construction Occupations Registrar v Bates - [2017] ACTCA 15

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Construction Occupations Registrar v Bates
Citation:	[2017] ACTCA 15
Hearing Date(s):	14 February 2017
DecisionDate:	1 May 2017
Before:	Elkaim, Rangiah, Mossop JJ
Decision:	See [77]
Catchwords:	LOCAL GOVERNMENT — BUILDING CONTROL — Building certifiers — occupational discipline — grant of building approval — whether building approval may be granted for works already completed where no certifier appointed for those works — whether plans approved as plans without regard to works completed on site — relationship between ss 19 and 19A of the Building Act 2004 (ACT)
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) Building Act 2004 (ACT) Building Legislation Amendment Act 2007 (ACT) Construction Occupations (Licensing) Act 2004 (ACT) Legislation Act 2001 (ACT) s 126(1), (2)(a) Supreme Court Act 1933 (ACT)
Cases Cited:	Commissioner of ACT Revenue v Araghi [2013] ACTCA 54; 8 ACTLR 245 Construction Occupations Registrar v Bates [2014] ACAT 73 Construction Occupations Registrar v Bates [2015] ACAT 48 Construction Occupations Registrar v Bates [2016] ACTSC 154 Legal Practitioner v the Council of the Law Society of the ACT [2011] ACTSC 207; 257 FLR 118 Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316 O’Donnell v Environment Protection Authority [2012] ACTSC 140; 268 FLR 48 PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the ACT [2014] ACTSC 161; 290 FLR 1
Parties:	Construction Occupations Registrar (Appellant) John Bates (Respondent)
Representation:	Counsel Mr P A Walker SC (Appellant) Mr C Erskine SC (Respondent)
Solicitors ACT Government Solicitor (Appellant) Snedden Hall & Gallop (Respondent)
File Number(s):	ACTCA 29 of 2016
Decision under appeal:	Court/Tribunal: Supreme Court Before: Burns J Date of Decision: 7 July 2016 Case Title: Construction Occupations Registrar v Bates Citation: [2016] ACTSC 154

THE COURT:

Introduction

This is an appeal against a decision of a single judge of this Court who was hearing an application for leave to appeal and an appeal from the Appeal Tribunal of the ACT Civil and Administrative Tribunal (ACAT). The Appeal Tribunal was, in turn, hearing an appeal from a decision of the ACAT.

The appellant is the Construction Occupations Registrar, a statutory officeholder with responsibilities under various building-related legislation. The respondent is a building certifier. On 16 April 2011 the respondent granted a building approval for a building at Block 9 Section 16 Forde. In July 2013 the respondent made an application for occupational discipline orders under the Construction Occupations (Licensing) Act 2004 (COL Act) which related largely to the grant of that building approval. By the conclusion of the hearing at first instance before the ACAT (the original Tribunal) only eight grounds were pressed by the Registrar. On 24 November 2014 the ACAT found that none of the grounds of the application were established and therefore dismissed the application. An appeal was made to the Appeal Tribunal in relation to one of those grounds. That appeal was dismissed on 22 July 2015. The Registrar sought leave to appeal from that decision pursuant to s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). Under s 86, an appeal to the Supreme Court is on “a question of fact or law”. On 7 July 2016 a single judge of the Court (Burns J) granted leave to appeal but dismissed the appeal. The appeal to this Court is brought under s 37E(2)(a) of the Supreme Court Act 1933 (ACT).

For reasons which are not clear, no perfected order of Burns J was included in the appeal papers. The notice of appeal identified the orders made by Burns J on 7 July 2016 as follows:

1. Leave to appeal is granted;
2. Appeal is dismissed; and
3. The appellant pay the respondent’s costs of the appeal.

The appeal is brought against orders 2 and 3. The grounds of appeal are:

1) The Appeal Tribunal erred by not concluding that the Respondent was required to be satisfied that the whole of the building on Block 9 Section 16 Forde (including the existing unapproved building work and the building work to be undertaken in accordance with the building plans) had to comply with the Building Act 2004 before he could grant building approval in this case.
2) In the alternative, Burns J erred by not concluding that, before he could grant building approval in this case, the Respondent was required to have regard to the unapproved building work undertaken on Block 9 Section 16 Forde in order to be reasonably satisfied that the building work to be undertaken in accordance with the building plans could comply with the Building Act 2004.
3) The Appeal Tribunal erred in not concluding that the original ACT Civil and Administrative Tribunal hearing tribunal erred by making insufficient findings of fact to properly discharge it statutory obligations under the Construction Occupations (Licensing) Act 2004 in this case.

Scope of appeal to the Supreme Court

The appeal from Burns J is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). Given that the appeal is against the decision of Burns J it is not clear why grounds 1 and 3 in the notice of appeal set out above are framed by reference to the decision of the Appeal Tribunal.

Neither the reasons given by Burns J nor the parties’ submissions on appeal make any reference to the appropriateness of the notice of appeal from the Appeal Tribunal to the Supreme Court. Section 86 of the ACAT Act requires that the appeal be limited to “a question of fact or law”. The scope of such an appeal has been the subject of conflicting decisions of single judges of this court: Legal Practitioner v the Council of the Law Society of the ACT [2011] ACTSC 207; 257 FLR 118; O’Donnell v Environment Protection Authority [2012] ACTSC 140; 268 FLR 48; PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the ACT [2014] ACTSC 161; 290 FLR 1; Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316.

The comments of the Court of Appeal in Commissioner of ACT Revenue v Araghi [2013] ACTCA 54; 8 ACTLR 245 at [57] do not resolve the issue. Those comments were directed to the form of order required to be made upon an appeal on a question of fact or law. The effect of the decision is that appropriate orders of the court must be made on the appeal not merely by the giving of an answer to a question of fact or law.

The approach taken by Burns J in the present case appears to be consistent with his Honour’s decision in Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316. Because the parties did not raise the scope of the appeal from the Appeal Tribunal to the Supreme Court or make any submissions on that issue it is not appropriate to seek to determine the correctness of that approach.

Statutory provisions

The COL Act provides a regime for licensing and discipline of construction practitioners. It provides for applications to be made to the ACAT for discipline of a construction practitioner. One of the grounds for occupational discipline is a contravention of an “operational Act”: s 55. The term “operational Act” is defined to include the Building Act 2004 (ACT): s 16.

The relevant statutory provisions are those that were in force at the date of the grant of building approval by Mr Bates namely 16 April 2011.

6Meaning of building work
(1)In this Act:
building work means—
(a) work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated—
(i) by the alteration of a building other than a building excluded under the regulations; or
(ii) by the demolition of a building (but not part of the building); or

(b)work in relation to repairs of a structural nature to a building.

(2) ...
7Meaning of building
(1)In this Act:
building includes—
(a)a structure on or attached to land; and
(b)an addition to a building; and
(c)a structure attached to a building; and
(d)fixtures; and
(e)part of a building, whether the building is completed or not.
Example of part of building
footings poured for a building that is being built
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, building does not include—
...

(3) ...

Division 3.2 deals with certifiers.

19Appointment of certifiers—work not begun
The owner of land where it is proposed to carry out building work may appoint an eligible entity as certifier for the work.
NoteAn appointment must be in writing (see Legislation Act, s 206).

19AAppointment of certifiers—work begun
(1)This section applies if—
(a)building work has begun on a parcel of land; and
(b)the building work has been carried out in accordance with this part.

(2)The owner of land may appoint an eligible entity as certifier for the building work.
Division 3.3 Building approvals
25AOverview—div 3.3
(1)This division deals with building approvals for building work carried out on land and how the owner of the land may apply for building approval.
(2)Section 27 to section 30A affect the issue of building approvals as follows:
(a)section 27 provides that a certifier must not consider an application for building approval unless, among other things, the accompanying plans comply with the requirements prescribed by regulation;
(b)section 28 provides that an application for building approval must be approved if the plans meet each approval requirement under section 29, and deals with how the approval is given;
(c)section 28A sets out how a building approval is marked on plans;
(d)section 29 sets out the approval requirements for the plans;
(e)section 30 and section 30A set out when an application for building approval must be refused.

25BWhy are building approvals necessary?
(1)A building approval is necessary because—
(a)section 42 (1) (d) requires building work to be carried out in accordance with approved plans (which may have to comply with this Act in relation to asbestos); and
(b)approved plans are plans that relate to building work for which a building approval is in effect.

(2)Section 42 provides that building work must not be carried out except in accordance with the requirements set out in the section.
(3)Not complying with section 42, for example—
(a)is an element of offences against section 42A (Contravention of requirements for building work involving asbestos) and section 51 (Carrying out building work in contravention of s 42); and
(b)is a ground for giving a notice to a building licensee under section 44 (2) (a) (Stage inspections); and
(c)is a ground for giving a notice to carry out building work under section 62 (see s 61 (b)).
Note 1 Not complying with s 42 may also be grounds for occupational discipline under the Construction Occupations (Licensing) Act 2004.
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

25CBuilding approvals apply to building work
To remove any doubt—
(a)a building approval only relates to building work shown on the approved plans under the approval, other than building work—
(i)identified in the plans as not forming part of the approval; and
(ii)on a parcel of land other than a parcel to which the application for approval relates; and

(b)the issue of a building approval does not indicate that carrying out work other than building work identified in the plans is consistent with the law or lease provisions applying to carrying out the work.
[examples omitted]
26Building approval applications
(1)The owner of a parcel of land may, in writing, apply to the certifier for a building approval for building work to be carried out on the land.
Note At common law, an agent may make an application on the owner’s behalf.

(2)The application must—
(a)be accompanied by the number of copies of the plans relating to the proposed work prescribed under the regulations; and
...

(3)The regulations may require the application to contain other details or be accompanied by other material.
(4)In this section:
energy efficiency provision—see section 139C (4).
26AApplications for building approval—certifier may require further information
(1)This section applies if—
(a)the owner of a parcel of land (the applicant) has applied to a certifier for building approval for building work to be carried out on the land; and
(b)further information is required for the certifier to be able to decide the application without personally inspecting the land where the building work is to be carried out; and
(c)the applicant and the certifier have not agreed that the certifier will obtain the further information.
(2)The certifier may, by written notice, ask the applicant to give the certifier stated further information in relation to the application if the certifier believes on reasonable grounds that the information will help the certifier to decide the application without personally inspecting the land where the building work is to be carried out.
[Examples omitted]
(3)...
(4)For this section, a certifier that is a partnership inspects land personally if any partner inspects the land.
26BContents of request for further information
...
26CApplications for building approval—effect of failure to provide further information
(1) This section applies if—
(a)a certifier has asked for further information under section 26A in relation to an application; and
(b)the applicant has not provided some or all of the information in accordance with the request; and
(c)the applicant and the certifier have not agreed that the certifier will obtain the further information.

(2) The certifier may refuse to issue a building approval under section 28.
27Certifier not to consider certain applications
(1) A certifier must not consider an application under section 26 unless—
(a)the plans that accompany the application comply with any requirements prescribed under the regulations; and
(b)if—
...

28Issue of building approvals
(1) This section applies if—
(a)an application for a building approval is made to the certifier under section 26; and
(b)the certifier may consider the application; and
(c)section 30 (When building approvals not to be issued—general) and section 30A (When building approvals not to be issued—advice on referral) do not prevent the issue of the approval; and
(d)if there is a written agreement between the certifier and applicant for the payment of an amount for deciding the application and the agreement states that the amount is to be paid before the application is decided—the amount has been paid.

(2) As soon as practicable after receiving the application for building approval, the certifier must—
(a)take all reasonable steps to get the information the certifier reasonably needs to decide the application; and
(b)if satisfied on reasonable grounds that the plans meet each applicable approval requirement under section 29 and is not prevented from being issued under section 30 or section 30A—
(i) prepare a notice (the building approval certificate) certifying what approval requirements apply to the application and why the building approval is not prevented from being issued; and
(ii)issue the building approval and give the building approval certificate to the applicant.

Note 1If a form is approved under s 151 for this provision, the form must be used.
Note 2A fee may be determined under s 150 for this provision.

(3) To remove any doubt, a certifier is not required to decide an application for building approval if the applicant has asked the certifier to delay making the decision, whether to allow the applicant to negotiate with an entity to which the application has been referred or for any other reason.
28AMarking building approval
(1) If a certifier issues a building approval under section 28—
(a)the approval must be marked on, attached to or partly marked on and partly attached to, each page of the plans it relates to; and
(b)the certifier must—
(i)initial, date and mark the certifier’s licence number on each page of the plans; and
(ii)attach each accompanying document to the plans; and
(iii)if the accompanying documents do not include an asbestos assessment report—attach an asbestos advice to the plans.

NoteIf a form is approved under s 151 for a building approval, the form must be used.

...
29Approval requirements
(1) Each of the following is an approval requirement for plans:
(a)if the plans are for the substantial alteration of a building—the building as altered will comply with this Act and the building code;
[Notes omitted]
(b)if the plans are for the erection or alteration of a building—the building, if erected or altered in accordance with the plans, will comply with this Act;
(c)if the plans are for the demolition of a building—demolition in accordance with the plans will comply with this Act;
(d)if a waste management plan is required to accompany the application—the plan is adequate;
(e)if an asbestos removal control plan is required to accompany the application—the plan complies with the asbestos code;
(f)the building as proposed to be erected or altered will be structurally sufficient, safe and stable.
(g)if the plans show site work that, if carried out in accordance with the plans, might be exempt under the Planning and Development Act 2007 from requiring development approval—
(i)the plans show all the information necessary to establish that the site work will be exempt; or
(ii)development approval for the site work is attached.

[Examples and notes omitted]
(2)       ...
(3)       ...
...
30When building approvals not to be issued—general
(1)       A certifier must not issue a building approval if carrying out the site work to which the application for the approval relates would result in the contravention of this Act or any other law in force in the ACT because of—
(a)the design or siting of a proposed building or a building as proposed to be altered; or
(b)the material used in the building; or
(c)the proposed use of the building as determined by the class of building; or
(d)the number of buildings on the land.

[Examples and notes omitted]
(2) A regulation may prescribe when, apart from this section, a building approval must not be issued.
(3) In this section:
design, of a building, includes anything affecting the appearance of the building.

30AWhen building approvals not to be issued—advice on referral
...

Decision of the original Tribunal

Proceedings were brought by the appellant seeking that the respondent be disciplined: see Construction Occupations Registrar v Bates [2014] ACAT 73. While there were a number of grounds for discipline pursued before the original Tribunal, only one is relevant for present purposes. That was identified as ground 14. It provided as follows:

14. On or about 16 April 2011, pursuant to section 55(1)(a) of COLA, the respondent contravened section 28(2) of the Building Act 2004 in relation to Block 9 Section 16 Forde.

Particulars
a) On 16 April 2011, the respondent was appointed certifier for building work at Block 9 Section 16 Forde, ~~presumably under section 19 A of the Building Act 2004~~.
b) On or about 16 April 2011, the respondent issued building approval for Block 9 Section 16 Forde pursuant to section 28 of the Building Act 2004.
c) Prior to 16 April 2011, no certifier had been appointed under section 19 or 19A of the Building Act 2004.
d) Prior to 16 April 2011, no building approval had been issued in accordance with section 28 of the Building Act for Block 9 Section 16 Forde.
e) As at 16 April 2011, building work at Block 9 Section 16 Forde had progressed through the following stages for building work:
i) Strip footings;
ii) Storm water;
iii) Damp course/slab; and
iv) Frame work.
f) As at 16 April 2011, in circumstances where building work had progressed through to the frame work stage without permission or certification, the respondent could not have issued building approval for the building work undertaken at Block 9 Section 16 Forde because of the requirements under ~~section 19 A (1) (B) and~~ section 29 of the Building Act had not been met.

Those portions of the allegation which are struck-through represent the agreed form of the allegation by the time of the conclusion of the hearing in the ACAT.

In relation to this ground the reasons of the ACAT were as follows:

30. Grounds 14, 18A and 20 are the surviving grounds relating to block 9 section 16 Forde. This was an ill-starred development in which the respondent was appointed as certifier after the building had progressed through building stages to frame work stage without approval and without approval for the building plans. There is a completed form C3 appointing the respondent as certifier, and this is dated 16 April 2011. The respondent approved the plans and issued building approval on 16 April 2011.
31. Ground 14 is as follows:
On or about 16 April 2011, Pursuant to section 55(1)(a) of COLA, the respondent contravened section 28(2) of the Building Act 2004 in relation to Block 9 Section 16 Forde.

32. The essence of this allegation is that the respondent in issuing the building approval on 16 April 2011, approved the existing building work that had been previously done on the block without approval.
33. Under section 26 of the Building Act, an owner may request the certifier for building approval for building work to be done on land. The certifier must then under section 28 decide the application, and if satisfied that the plans for the project meet the ‘applicable approval requirements’ under section 29 and some other requirements, issue building approval.
34. Section 29 of the Building Act is a long section and deals with approval requirements for plans. Relevantly, these have the effect of requiring plans for erection of a building to comply with the requirements of the Act. There is no evidence that the plans did not comply with the Act, or that the building, if built in accordance with the plans, would not comply with the Act. The building approval issued by the respondent was what he was required to do under the Act having made an assessment of the integrity of the building work if executed in accordance with the plans. His action in doing so was not a certification of what had already been done on the site.
3. Ground 14 is not made out.

In summary, the original Tribunal found:

(a)the task of the certifier was to approve plans that showed a building that would comply with the Act;
(b)because what the certifier did was approve plans, he did not approve what had already been done on the site.

Because he did not approve the work that had already been done on the site, the allegation against him was not made out.

Decision of the Appeal Tribunal of ACAT

The appellant appealed to the Appeal Tribunal of the ACAT: see Construction Occupations Registrar v Bates [2015] ACAT 48. The appeal identified a question of law as follows:

In this case some building work (for which building approval was required) had been undertaken on Block 9 Section 16 Forde without building approval. When considering whether to give building approval in these circumstances, is a building surveyor required to be satisfied on reasonable grounds that the building (including the work constructed before the building approval was granted) if erected in accordance with the plans, will comply with the Building Act 2004?

The appeal also raised whether the original Tribunal had made adequate findings of fact for the proper disposition of the application. The notice of appeal identified that the Appeal Tribunal would be asked to make its own findings of fact and determine whether to make an occupational discipline order and, if so, what order.

The submission of the appellant before the Appeal Tribunal was that the original Tribunal was in error in finding that s 29 of the Building Act dealt with approval of plans. The appellant submitted that s 29 went beyond requiring that plans meet the Building Act’s requirements and that s 28(2)(b) required that the respondent be satisfied that the previously completed unapproved work met the requirements of the Building Act before approval could be granted for the further work. The appellant submitted that the respondent needed to have undertaken an inspection of the building work in order to be so satisfied.

The respondent is recorded by the Appeal Tribunal as having submitted that it was not relevant to the approval of the plans that some work on the block had begun. He submitted that the approval process in s 26 of the Building Act was limited to the approval contemplated by sub-s (2) which listed the plans that the certifier must be provided. He made submissions based upon the subsequent provisions of the Building Act and the operation through to the point of completion of the building.

The Appeal Tribunal commenced its consideration by reference to s 19A. It identified that because building work on the block had commenced prior to the plans being approved, the work was not carried out in accordance with Pt 3 of the Building Act as s 19A required: at [23]. The Appeal Tribunal found that, in such circumstances, the respondent’s appointment was in contravention of the Act and strictly speaking he was unable to be appointed certifier of that parcel of land: at [25]. The Appeal Tribunal noted that this was not an issue raised by the appellant in relation to this parcel of land: at [25]. The Appeal Tribunal identified that:

The focus of the appeal is whether the respondent breached subsection 28(2)(b) of the Act in failing to be reasonably satisfied that the unapproved work met the Act’s requirements before he provided the approval which would allow further work to occur. Prior to giving his approval, the respondent needed to have undertaken an inspection of the building work undertaken, which he failed to do.

The Appeal Tribunal pointed to the terms of s 26 which referred to building approval for building work “to be carried out”. It identified that s 28 requires that the respondent had to be satisfied on reasonable grounds that “the plans” met each requirement under s 29 and approval was not prevented from being issued under ss 30 or 30A. The Appeal Tribunal also made reference to s 25A(2)(b) which provided that the building approval must be approved if “the plans” meet each of the approval requirement under s 29. It also made reference to “the plans” in s 29(1)(b). The Appeal Tribunal then made reference to the operation of s 50, an offence provision which applies if a contravention of Pt 3 of the Building Act comes to the notice of a certifier but the certifier does not tell the appellant about the contravention. The Appeal Tribunal correctly identified that this was a matter not included in the appellant’s application but suggested “[t]his may well be something the appellant now wishes to pursue separately”: at [32]. The conclusion reached by the Appeal Tribunal was set out in paragraph 33 of its reasons as follows:

33. The Appeal Tribunal could find nothing in the Act requiring the respondent to ensure the unapproved work met the requirements of the Act before he could provide the approval under section 29. This is because division 3.3 deals with approval of plans for the erection of a building. The Act requires the certifier to consider that if a building is constructed in accordance with the provided plans would it meet the Act’s requirements. An assessment of the plans is preliminary to the construction then to be undertaken. Section 26 covers an application for building work to be carried out.

The Appeal Tribunal recorded that the appellant had put “a strong argument that the respondent had an obligation under section 26 to do more than certify the suite of plans provided by the owner”. It accepted that this approach was “basic common sense” but could not find that the original Tribunal had erred in rejecting the argument because “the Act clearly envisages that at the stage a certifier is appointed pursuant to section 26, he or she will be reviewing plans provided by the owner in giving that approval under section 28.” It once again emphasised the terms of s 25A(2)(b) which summarised the operation of s 28 which described that approval must be issued if “the plans” satisfy s 29. The Appeal Tribunal (at [36]) indicated that the original Tribunal’s interpretation was “a black letter one” supported by “the ordinary English meaning of the relevant sections”. It reached this conclusion “reluctantly” and recorded its view that the sensible and desirable interpretation of the Building Act was that contended for by the appellant. The Appeal Tribunal suggested amendment to the legislation and recorded its view at [37] as follows:

The appellant may wish to take up the issue of amending the Act to cover situations like the present case with the ACT government. It is the view of this Appeal Tribunal that there should be a provision to make it clear that a certifier, certifying plans for a partially built building, must also fully inspect and certify that what had been done to date was structurally sound.

The Appeal Tribunal also concluded that in light of its acceptance of the original Tribunal’s interpretation of the legislation that the reasons it had given were adequate.

In summary the Appeal Tribunal found:

(a)s 19A did not apply to the circumstances of the case because building work had been carried out in contravention of Pt 3 and therefore the appointment of the certifier was in contravention of the Building Act;
(b)there was nothing in the Building Act requiring the certifier to ensure that unapproved work already carried out met the requirements of the Act before he provided an approval under s 29;
(c)the terms of the Building Act indicated that the certifier was to review plans and hence the original Tribunal’s conclusion was correct.

Thus, while it supported the policy merits of the appellant’s argument, it considered that the Building Act required only that the plans satisfied s 29. There was therefore no need to “fully inspect and certify that what had been done to date was structurally sound” but suggested that the Building Act should be amended to require that.

Decision of the Supreme Court

The appellant applied for leave to appeal to the Supreme Court from the decision of the Appeal Tribunal. The draft notice of appeal identified that the grounds of appeal were:

1) The Appeal Tribunal erred by not including that the Respondent was required to be satisfied that the whole of the building work on [the block] (including the existing unapproved building work and the building work to be undertaken in accordance with the building plans had to comply with the Building Act 2004 before he could grant building approval in this case.
2) The Appeal Tribunal erred in not concluding that the [original Tribunal] erred by making insufficient findings of fact to properly discharge it statutory obligations under the [COL Act] in this case.

Burns J granted leave to appeal but dismissed the appeal.

His Honour identified the issue as the appropriate interpretation of s 29(1)(b). He articulated the appellant’s argument as being that, in the circumstances of this case, the respondent could not issue a building approval for the building works in question unless he was satisfied that the existing building works on the site met the requirements of the Building Act and that this required at least a personal inspection by the respondent. He was not satisfied that this was correct.

His Honour first examined the relationship between s 19 and s 19A. Having regard to the headings to the sections and the explanatory statement which accompanied the bill which introduced s 19A, his Honour concluded that s 19 was only intended to permit the appointment of a certifier where building work on the land had not commenced. Where it had commenced the entitlement to appoint a certifier must be found in s 19A. So far as the limitation on the operation of s 19A imposed by the requirement that the work had been “carried out in accordance with this part” went, his Honour considered that this picked up the requirements of division 3.5 of the Building Act which included the requirements in s 42(1) which his Honour paraphrased as including that:

(a)the materials used in the building work must comply with applicable standards;
(b)the building work must be carried out in a proper and skilful way; and
(c)the building work must be carried out in accordance with approved plans.

His Honour considered that these requirements were not matters of which the certifier was required to be satisfied at the time of appointment. Rather, his Honour said: “In purporting to appoint a certifier pursuant to s 19A, it is the owner of the land who asserts that the building work already begun was carried out in accordance with Part 3 of the BA”: at [48]. If in fact the work already begun had not been carried out in accordance with Pt 3 then “the appointment of the certifier is invalid as not complying with the terms of s 19A”. His Honour identified that it followed from what he said that he differed from the Appeal Tribunal in his interpretation of s 19A. He continued (at [49]):

The requirement found in s 19A that a certifier may be appointed where works already undertaken on site have been carried out in accordance with Part 3 of the BA does not import a requirement that the works were the subject of a building approval by a certifier. The use of the words “carried out” in s 19A(1)(b), in my opinion, was a deliberate reference by the drafter to the requirements for carrying out building work found in s 42.

His Honour appears to be saying that the words “carried out” is a qualification upon the requirements that must be met for s 19A(1)(b) to be satisfied. This is reinforced by what his Honour said in the subsequent sentence:

The power to appoint a certifier granted by s 19A is not a power directed towards appointment of a successor to an earlier certifier; that is dealt with elsewhere in the BA: see ss 19D, 19E and 20.

He then turned to the scheme of Pt 3 of the Building Act which provided “a logical and sequential process for the approval and carrying out of building work”. His Honour then referred in some detail to the provisions in the Building Act that followed the grant of building approval:

(a)the issue of a commencement notice;
(b)the carrying out of the work in stages;
(c)the need for a survey plan to proceed beyond damp course level;
(d)the requirement for inspection at each stage;
(e)the power of the certifier to require the builder to carry out tests;
(f)the power of the certifier to require the owner to provide certificates by professional engineers;
(g)the process for providing information to and obtaining a certificate of occupancy from the construction occupations registrar.

Having undertaken this review, his Honour said (at [56]-[58]):

56. The structure of Part 3 of the BA, as is apparent from the above, is such that it addresses the process of engaging in building work from the plan approval stage, through the building stage, until the final approval stage. The building stage is also sequential, in that there are prescribed points during the building stage when the works must be inspected by a certifier and permission granted for the works to continue. The relevant provisions in the present appeal, ss 28 and 29, are found within that portion of Part 3 governing the approval of plans, such that the legislative context suggests that the legislative intention is for the certifier, at that point in the process, to concern him or herself only with the plans and the extent to which the proposed construction will comply with the requirements of the BA.
57. The text of s 29 supports this approach. The section refers to approval requirements for plans. The relevant provision, s 29(1)(b), provides that the approval requirement for plans to erect a building is that the building, if erected in accordance with the plans, will comply with the BA.
58. In the present case, the plans which the respondent approved were plans for the erection of a building, which included plans for the construction of the foundations and the works that were undertaken on the land before he was appointed. The plans which he approved were not for alteration of an existing building. The fact is that the work had begun on site without the appointment of a certifier and the approval of plans. The consequence of this, as I have observed, is that the respondent’s appointment as certifier with respect to the works was made pursuant to s 19A of the BA, and not pursuant to s 19. That appointment did not require him to certify that the works already undertaken on the site complied with the BA before he approved the plans for the works and gave building approval.

His Honour then (at [59]-[60]) considered whether the interpretation which he had given to the Building Act was consistent with public safety and identified the manner in which a certifier may be able, under the provisions of the Act, to address any issues arising out of building work having already been commenced. Having done so he concluded:

The appellant’s submission that this appeal raised the issue of what the certifier must be satisfied before he gave building approval to the works to be built on top of the works already on site starts from a false premise. The approval given was for the construction of the works set out in the plan, not for alteration of an existing structure.
61. Both the text of s 29 and the legislative context in which it is found persuades me that the interpretation urged by the respondent is to be preferred. It follows that the respondent could not have been found to have breached his obligations as a certifier by granting building approval based on the builder’s application for building approval. The respondent was not required at the time that he granted building approval to be satisfied that the existing unapproved building works had been constructed in accordance with the requirements of the BA. The time at which he had to be satisfied of that circumstance was, where works had already been commenced on site, at the time when he was called upon by the provisions of the BA to do a stage inspection (s 44) or at the time of the completion of the building work when the certifier is required to provide a certificate under s 48.

His Honour also rejected the second ground of appeal which alleged insufficiency of findings by the Appeal Tribunal noting that the matter had not been addressed in written or oral submissions but not abandoned. His Honour found that to a great extent the facts were not in contention and the basis of the ACAT’s decision revolved around interpretation of the Building Act.

In summary his Honour found:

(a)the words of s 19A(1)(b) — “has been carried out in accordance with this part” — are limited to having been carried out in accordance with s 42 and to not require compliance with the other provisions of Pt 3.
(b)section 19A did not address the situation where one certifier had been responsible for part of the work on land and another certifier subsequently took over.
(c)the appointment in the present case was made under s 19A and not s 19.
(d)the certifier was only concerned with plans and the extent to which the proposed construction, if built in accordance with the plans, would comply with the requirements of the Building Act.
(e)any difference between the plans and what was already constructed on site would be addressed at an inspection stage or at the point of the grant of a certificate of occupancy.

Consideration

Given the multiple levels at which this matter has already been heard it is most efficient to articulate the proper operation of the Building Act in the present case and then identify the consequences of that operation for the outcome of the appeal.

Interpretation of the Building Act

Because of the distinction drawn between situations where building work has begun and those where it has not, it is necessary to start with s 19 and 19A of the Building Act.

As made clear by the judge below, the interpretation of ss 19 and 19A may be informed by the terms of their headings as they form part of the Act: Legislation Act 2001 (ACT) s 126(1), (2)(a). The operation of ss 19 and 19A are dependent upon identification of the “building work” being considered. In each case the appointment of the certifier is linked to particular “building work”. Subject to the conditions in s 19A(1), which relate to whether or not “the building work” has begun and has been carried out in accordance with Pt 3 of the Act, s 19A(2) permits the appointment of a certifier “for the building work”. Similarly, s 19 addresses “proposed” building work, that is, work which has not begun. It is clear that it is the “proposed… building work” in relation to which the certifier is appointed.

The terms of s 19A(1)(b), as well as the terms of the Explanatory Statement for the bill which became the Building Legislation Amendment Act 2007 which inserted s 19A, make it clear that if building work has been begun but has not been carried out in accordance with Pt 3 of the Building Act then s 19A does not permit a certifier to be appointed in relation to that work. Burns J considered that the requirement that the earlier work be carried out in accordance with Pt 3 only picked up the requirements of s 42: see [31]-[32] above. That had the effect that although there was a requirement that building work be carried out “in accordance with approved plans”: s 42(1)(d)(i), there was no requirement for a certifier to have been appointed in relation to the earlier work. His Honour did not consider that s 19A dealt with the appointment of a successor to an earlier certifier as his Honour considered that issue was dealt with in ss 19D, 19A and 20: see [32] above.

In our view, the reference in s 19A(1)(b) to work having been “carried out in accordance with this part” means that the previously carried-out work must have been carried out in accordance with all of the requirements of Pt 3 of the Building Act and not just in accordance with the requirement of Div 3.5 and s 42.

First and foremost that conclusion is indicated by the fact that the words of s 19A refer to “this part” rather than to Div 3.5 or to s 42.

Second, even if only Div 3.5 or s 42 were picked up those provisions would necessarily require a certifier to have been appointed for the previously completed work. In relation to s 42 that is indicated by the reference to building work having been carried out in accordance with “approved plans” in s 42(1)(d)(i). “Approved plans” is defined in the Dictionary to the Building Act as “plans that relate to building work for which a building approval is in effect”. Division 3.3 (which is after Div 3.2 in which s 19 and 19A appear) of the Building Act deals with building approvals. Given that the building approvals may only be granted by the certifier appointed for the building work: s 28, it is clear that the requirements of s 42 include a requirement that a building certifier has been appointed in relation to the building work. That is emphasised by the other provisions in Div 3.5 which include provisions relating to building stages (s 43) and stage inspections (s 44) both of which require the involvement of the building certifier. It is not, in our view, possible to read s 19A(1)(b) as referring only to s 42. It is even more clearly not possible to read it as only referring to some but not all of the obligations in the section, namely, those paraphrased by his Honour (see [30] above).

Third, we do not consider that the provisions of 19D, 19E and 20 deal with the appointment of a successor to an earlier certifier in a manner which indicates that s 19A does not deal with that situation. Where it is sought to replace one certifier with another in relation to particular building work it might be expected that there had been full compliance with Pt 3 as a result of the activities of the outgoing certifier. Hence if s 19A was to apply in such a situation then it is more likely that the legislature intended that the whole of Pt 3 be complied with. Thus, his Honour’s conclusion that the appointment of subsequent certifiers was dealt with elsewhere made it easier to reach the conclusion that s 19A only required compliance with some of the requirements of Pt 3.

We do not consider that s 19D, 19E and 20 deal with the appointment of a successor to an earlier certifier in a manner that does not require s 19A to do so because those provisions only deal with a limited subset of cases in which a successor certifier may need to be appointed. Section 19D addresses how the appointment of a certifier for building work may end. It deals with five different situations: (a) revocation of the appointment by the owner of the land, (b) resignation by the certifier, (c) suspension of the certifier’s appointment (under s 19B) for a single period of three months or longer, (d) the issue of a certificate of occupancy for the building, and (e) the expiry of five years since the certifier was last appointed as certifier for the building work. Section 19E addresses the appointment of a certifier after the appointment of a certifier has ended under s 19D(1)(e). That is the provision which has the effect that the appointment lapses after a period of five years. Section 19E does not deal with any of the other situations where a certifier’s appointment might end and where it is necessary for there to be a certifier in order to complete the building work, that is, the situations in s 19D(1)(a), (b) and (c). As a consequence, s 19A is a provision which has effect in such situations. It is therefore a factor which tends in favour of a requirement that the previously completed work be carried out in accordance with all of the provisions of Pt 3 including those which would require the appointment of a certifier.

The conclusion that s 19A requires all of the provisions of Pt 3 to have been complied with is reinforced by the terms of the Revised Explanatory Statement for the Building Legislation Amendment Bill 2007 which proposed the insertion of s 19A. That made it clear that prior to the amendments proposed, s 19 only catered for work that had not begun and the Building Act was silent on what to do in the case where work had already begun. It said in relation to s 19A: “It is intended that if building work has been carried out in contravention of part 3, then section 19A does not permit a certifier to be appointed in respect of that work. That is to deter carrying out work in contravention of part 3, which regulates how building work must be carried out.”

Thus the mischief apparently being addressed by the insertion of s 19A was the inability to appoint a certifier in circumstances where work had already begun and hence the difficulty with appointing a subsequent certifier when the appointment of an earlier one ended. As the explanatory statement makes clear, the amendments were not intended to permit the retrospective approval of previously constructed work that had not been constructed in accordance with the requirements of Pt 3. In those situations the disincentives created by the offence created by s 51 would still apply because the work would not be, for the purposes of s 42(1)(d)(i), in accordance with any approved plans.

Where, as here, it is uncontroversial that the pre-16 April 2011 work was undertaken without any plans having been approved in circumstances where approval under the Building Act was required, the effect of s 19A(1)(b) was to preclude the appointment of a certifier in relation to that building work.

In those circumstances the only capacity to appoint a certifier for the work was that in s 19 of the Act. Because of the use of the word “proposed” in relation to the building work for which a certifier is appointed and the heading of the section which refers to “work not begun”, the appointment of a certifier under this provision can only operate in relation to work that is yet to be carried out, that is, work which has not begun.

In the circumstances of the present case that meant that it was only possible for the owners of the land to appoint the respondent in relation to the work that was yet to be undertaken.

As at 16 April 2011 very substantial work had been undertaken on the site. Because of the approach taken to the interpretation of s 29, neither the original Tribunal nor the Appeal Tribunal made any detailed findings of fact about what had occurred. Photographs taken on 14 April 2011 which were before the original Tribunal show what appear to be the timber frames in place for a two-story building. The ground floor slab and the first floor appear to be in place.

Having regard to the definition of “building” in s 7 of the Act it is clear that, as at 16 April 2011, there existed a building on the land because what was present on the land was within the scope of paragraph (a) and paragraph (e) of the definition. The fact that what was constructed on the site was within paragraph (e) is made clear by the example under that paragraph which is “footings poured for a building that is being built”. If the footings constitute a “building” for the purposes of the Building Act then there is no doubt that the very substantial construction that had been completed on the site prior to 16 April 2011 was a “building” for the purposes of the Act.

Therefore, the “building work” for which a certifier could be appointed was the balance of the work necessary to complete the construction of the dwelling. That was clearly “work in relation to the erection, alteration… of a building” for the purposes of the definition in s 6 of the Building Act. Having regard to the breadth of the connecting term “in relation to” the work involved in the completion of an existing building could be considered to be work either in relation to the erection or alteration of that building.

Once a certifier is appointed, s 26 of the Building Act allowed the owner of a parcel of land to apply to the certifier “for a building approval for building work to be carried out on the land”. Section 26(2) refers to the various plans that must accompany the application. The plans are plans “relating to the proposed work”: s 26(2)(a). Section 26A provides limited power to the certifier to request further information to permit the certifier to decide the application “without personally inspecting the land where the building work is to be carried out”.

Section 28 relates to the issue of building approvals. The critical provision for present purposes is s 28(2)(b) which requires that the certifier be “satisfied on reasonable grounds that the plans meet each applicable approval requirement under section 29”. Section 29(1) identifies the approval requirements. The relevant paragraphs for the present case being (b) and (f) which provide:

(b) if the plans are for the erection or alteration of a building—the building, if erected or altered in accordance with the plans, will comply with this Act;
...
(f) the building as proposed to be erected or altered will be structurally sufficient, safe and stable.

In a case in which what is being proposed is the carrying out of building work to complete an unfinished building, the requirements in paragraph (f) are such that the certifier would need to be satisfied that the building as completed would be “structurally sufficient, safe and stable”. This provision received a great deal of attention during the course of the hearing of the appeal because it was the provision which made no reference to the plans and focused exclusively on the building that was to be the product of the carrying out of the building work. Because of that, in a case like the present where some unapproved building work had resulted in a half-completed building, it indicates that the certifier was required under s 29 to give consideration to the nature and quality of the existing work onto which the proposed work was to be added. Precisely what is required in the case of an approval to complete a half-finished building to be “satisfied on reasonable grounds that the plans” meet the requirement in s 29(1)(f) will vary from case to case. However in the present case it was certainly reasonably arguable that the respondent was required to undertake some inspection of the existing work in order to reach the state of satisfaction required.

Both levels in the Tribunal and the judge below concluded, contrary to what we have said above, that the exercise being undertaken by the certifier was an exercise which only involved review of the plans. Burns J referred to the respondent’s submissions that the structure of the Building Act draws a distinction between the approval of “plans as plans” and the actual carrying out of building work: see Construction Occupations Registrar v Bates [2016] ACTSC 154, [42]. He accepted that submission saying (at [56]):

The relevant provisions in the present appeal, ss 28 and 29, are found within that portion of Part 3 governing the approval of plans, such that the legislative context suggests that the legislative intention is for the certifier, at that point in the process, to concern him or herself only with the plans and the extent to which the proposed construction will comply with the requirements of the BA.

At [60] his Honour said:

The appellant’s submission that this appeal raised the issue of what the certifier must be satisfied before he gave building approval to the works to be built on top of the works already on site starts from a false premise. The approval given was for the construction of the works set out in the plan, not for alteration of an existing structure.

Notwithstanding the numerous references to “plans” in s 29 it is clear, in our view, that the exercise being undertaken is one which, although significantly dependent upon the accuracy of the plans provided with the application, is not one which is solely defined by what is stated in the plans. That is made clear by the fact that the Building Act contemplates that the certifier may need to personally inspect the land or require further information from an owner in order to determine the application: s 26A. Section 28(2)(a) specifically refers to the certifier getting the information that the certifier reasonably needs to decide the application and proceeds on the assumption that not everything that the certifier needs will be contained in the plans themselves.

That conclusion is also compelled, in the circumstances of this case, by the fact that the plans provided to the certifier failed to identify what work had been carried out (and hence could not be subject of an approval) and the work that was yet to be carried out (which could be the subject of an approval). Although there were no findings of fact by the original Tribunal on this issue there was evidence available to it consistent with the respondent knowing at all relevant times that he was granting an approval in circumstances where a significant amount of work had already been done. Whether or not the plans failed to identify that work, it was necessary for the certifier to identify such already-completed work for himself in order to determine what it was that he was granting approval for. It therefore formed a part of the matters of which he was required to be satisfied under s 28(2)(b).

Application to the decisions below

In the light of this analysis of the operation of the Building Act it is then possible to consider the underlying circumstances and the decision below. While clearly the appeal of this Court is against the decision of the judge below it is most convenient to identify how the analysis of the Building Act affects what occurred at each level commencing with the underlying building approval.

Approval by the respondent

The description of the building work and approval was contained in a single document which attached the plans stamped with the certifier’s approval. Both the description of the building work and the attached plans are plans that would be appropriate if no work had begun on the site. The description of the building work includes “single dwelling residence including balcony” and the plans themselves are described as “proposed new work” and do not identify work that had already been completed or otherwise provide a basis for distinguishing the work that had been completed. The certification exercise appears to have been approached on the basis that it was open for the certifier to be appointed in relation to, and approve the whole of, the building work necessary to complete the dwelling and not simply that which was yet to be undertaken. Because of the approach taken to the approval process, the approval that was purportedly granted was one for the whole of the building work including that which had already been undertaken. That is because the approved plans were for the whole of the building work and did not in any way exclude from the purported approval work that which had already been undertaken. Clearly, that was contrary to the scheme provided by ss 19 and 19A which precluded the appointment of a certifier and hence the granting of approval in relation to work already carried out that had not been carried out in accordance with Pt 3 of the Building Act.

Original Tribunal

The reasoning of the original Tribunal is not entirely clear. There was some debate on this appeal between the parties as to precisely the allegation that was being made by the appellant and this might affect how the reasons of the original Tribunal are read. However it is clear that the original Tribunal gave no consideration to what was able to be the subject of a building approval or the scope of what could be approved. The terms of its reasons at [34] place emphasis on the approval of plans and the adequacy of those plans. The last three sentences of that paragraph (quoted at [14] above) emphasise that the Building Act required the respondent to assess the plans and that in doing so he was not required to assess what had already been done on the site. To the extent that the original Tribunal proceeded on the basis that it was open to the respondent to approve plans for work that had already been done, the decision involved an error of law. From there was then generated the subsequent error, namely that an approval could be granted on the basis of plans alone without considering the relationship between the proposed new work and the existing work upon which it was to be built.

Appeal Tribunal

The Appeal Tribunal correctly identified the issue arising out of the operation of s 19 and 19A. It concluded that because s 19A did not apply then the respondent was “unable to be appointed as a certifier of that parcel of land”. That conclusion is not correct, at least in relation to proposed future work. However the Appeal Tribunal passed over the issue in order to address the arguments that were put to it based on s 28(2)(b). Its conclusion was that there were insufficient indicators in the text of the statute to give effect to the intention of the legislature and hence it reluctantly agreed with the respondent’s argument. As pointed out above, in our view that reluctant conclusion was incorrect because of the terms of the statute, most particularly s 26A, s 28(2)(a) and s 29(1)(f). Because of its conclusion as to the law, it did not need to consider the original Tribunal’s failure to make findings on questions of fact or make findings for itself about what state of satisfaction had been reached by the respondent.

Supreme Court

Burns J appeared to adopt an interpretation of s 19A which expanded the circumstances in which it could apply. His Honour concluded (at [58]) that the appointment was made pursuant to s 19A of the Building Act and not pursuant to s 19. As will be apparent from the above, this involved an erroneous interpretation of s 19A.

His Honour then concluded in the light of the overall structure of Pt 3 of the Building Act that the plans put forward could be approved as plans, without consideration of that which had already been built on the site, because any discrepancy between the plans approved and what was built would be picked up and rectified at later stages. In our view that approach involved an error because it confined the matters of which the certifier was required to be satisfied to the plans as plans in a manner which is inconsistent with the terms of Building Act, which require consideration of the substance of the application in the light of information going beyond the scope of the plans. As pointed out above, that is most clearly demonstrated by s 26A, s 28(2)(a) and the terms of s 29(1)(f).

For these reasons the appeal from the decision of Burns J should be allowed.

Should the proceedings be remitted?

In oral submissions on the hearing of the appeal counsel for the respondent contended that the appeal should, in any event, be dismissed because of the limited scope of the allegation made against the respondent in the original Tribunal. The terms of the allegation are set out in full at [12] above. Counsel for the respondent argued that the particulars of the allegation in paragraph (f) were premised on the respondent having “issued [a] building approval for the building work undertaken” at the block prior to 16 April 2011. Counsel contended that this allegation must necessarily fail because if his appointment as certifier was under s 19 then as a matter of law he was only statutorily empowered to grant a building approval for the balance of the work done on the site and could never have issued an approval for the previous work.

Counsel for the appellant said that where the particulars referred to “work undertaken” they were not referring to work undertaken prior to 16 April 2011 but instead were referring to the whole of the work undertaken on the block from the perspective of the date of the application for occupational discipline (either 8 July or 23 September 2013).

Notwithstanding the superficial attractiveness of the submission made by counsel for the respondent there are two reasons why we consider that it should not lead to the dismissal of the appeal and that instead the matter should be remitted to the ACAT for determination.

First, how the particulars of the charge should be interpreted is a matter of dispute between the parties which has, it appears, been raised for the first time in the Court of Appeal. While we accept that in the case of ambiguity the terms of particulars of a charge will usually be interpreted in a manner favourable to the person facing the charge we do not consider it appropriate for this Court to finally determine that issue in circumstances where:

(a)the issue appears to be raised for the first time in the Court of Appeal;
(b)the material before the Court does not include the written submissions or transcript of oral argument when the proceedings were before the original Tribunal or Appeal Tribunal and hence it is not possible to reach any clear conclusion as to the manner in which the case was conducted or how these submissions were put either before the original Tribunal or on appeal;
(c)The document recording amendments to the charge appears to have been prepared by agreement between the solicitors at some unidentified point so as to reflect the final position adopted by the appellant and how those amendments or qualifications occurred or were communicated to the ACAT is not disclosed in the material before this Court.

Second, the respondent’s argument could only have merit if what the certifier actually did is ignored and the sole focus is upon what it was legally open to the certifier to do. The respondent in fact gave approval to the whole of the building work recorded in the plans that he was given without any qualification. Even if as a matter of law it now appears that it was not open to the certifier to be appointed in relation to the completed work or to grant any approval in relation to it, that is what he purported to do. It is possible that the ACAT may ultimately conclude that the respondent is able to defeat the disciplinary proceedings against him because he was acting completely without power, notwithstanding that:

(a)if he was not acting without power he would have contravened a requirement of the Act in exercising the power that he purported to exercise;
(b)he wrongly contended that he was acting within his power.

However, given the protective jurisdiction that the ACAT was exercising that is a conclusion that would not be lightly reached.

For these reasons it is not, in our view, appropriate for this Court to dismiss the appeal even though the Court below and both levels of the ACAT erred in their analysis of the case. Rather, the matter should be remitted to the ACAT to be determined according to law.

Conclusion and orders

For the above reasons, the appeal must be allowed. It is appropriate to set aside the orders made by Burns J dismissing the appeal and instead allow the appeal and remit the matter to the ACAT for further hearing.

Adopting the formulation and numbering of the orders of Burns J as set out in the notice of appeal (see [3] above), the appropriate orders are:

1. The appeal is allowed.

2. Orders 2 and 3 made by Burns J on 7 July 2016 are set aside and in their place the following orders made:

“2. The appeal is allowed with costs.

3. The proceedings are remitted to the ACT Civil and Administrative Tribunal.”

3. Unless an application for costs is made pursuant to order 4, there is no order as to the costs of the appeal.

4. Any party seeking a costs order in favour of the party must file and serve written submissions limited to no more than three pages and any evidence within seven days. Any submissions in reply limited to not more than three pages and any evidence must be filed and served within a further seven days.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 1 May 2017

Citations

Construction Occupations Registrar v Bates [2017] ACTCA 15

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