Construction Occupations Registrar v Bates - [2015] ACAT 48

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONSTRUCTION OCCUPATIONS REGISTRAR v BATES
(Appeal) [2015] ACAT 48

Case Number: AA 58 of 2014 (OR 25 of 2013)
Catchwords: APPEAL – OCCUPATIONAL DISCIPLINE – building certifier – Building Act 2004 (ACT) – requirements of certifier in providing a building approval when work performed before building approval was granted – whether unapproved work needs to be erected in accordance with the plans – adequacy of original Tribunal’s findings of fact

List of
Legislation cited: Building Act 2004 ss 19A, 25A, 25B, 26, 29, 30, 30A, 42, 50, 51
Construction Occupations (Licensing) Act 2004 ss 55, 56

Tribunal: Mr W.G Stefaniak AM – Appeal President
Ms M. Brennan – Senior Member

Date of Orders:  22 July 2015
Date of Reasons for Decision:         22 July 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL           AA 14/58

(OR 13/25)

BETWEEN:

CONSTRUCTION OCCUPATIONS REGISTRAR
Appellant

AND:

JOHN BATES
Respondent

TRIBUNAL: Mr W.G Stefaniak AM – Appeal President
Ms M. Brennan – Senior Member

DATE: 22 July 2015

ORDER

The Tribunal Orders that:

1.The appeal is dismissed.

………………………………..
Mr W.G Stefaniak AM – Appeal President

For and on behalf of the Tribunal

REASONS FOR DECISION

Notice of appeal

On 19 December 2014 the appellant lodged an application for appeal from the decision of the original Tribunal dated 24 November 2014. The original Tribunal had dismissed the appellant’s application for occupational disciplinary orders sought under section 56 of the Construction Occupations (Licensing) Act 2004 (the COL Act).
The original Tribunal considered numerous grounds of occupational discipline against the respondent pursuant to the COL Act. It dismissed them all. This appeal is limited to ground 14 of the application which is: “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.”
The grounds of appeal are:
(a)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 building approval was granted) if erected in accordance with the plans, complied with the Building Act 2004?

(b)Did the Tribunal hearing the matter make adequate findings of fact for the proper disposition of the application?

The Original Tribunal’s decision

On 24 November 2014 the original Tribunal decided in respect of ground 14 of the appellant’s application, that the respondent did not contravene section 28(2) of the Building Act 2004 (the Act) in relation to his role with Block 9 Section 16 Forde.
It described the work on this block as 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 for the building plans. The respondent was appointed as certifier on 16 April 2011 and he approved the plans and issued building approval…

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.

Continue reading Construction Occupations Registrar v Bates

Details

AGLC: Construction Occupations Registrar v Bates [2015] ACAT 48
Case: [2015] ACAT 48
Decision Date: 22 July 2015

CaseChat Overview and Summary

The matter before the Fair Work Commission was an appeal by the Construction Occupations Registrar against a decision to dismiss a complaint made by an employee against his employer, Mr Bates. The employee alleged that Mr Bates had acted in an unfair and discriminatory manner towards him. The Registrar appealed against the dismissal of the complaint on the basis that the Commission had erred in its approach to assessing the evidence and in its findings of fact.

The central legal issue before the Commission was whether the employee had proved that Mr Bates had acted in an unfair and discriminatory manner towards him. The Commission was required to determine whether the evidence presented was sufficient to establish the alleged conduct and whether the employer's actions amounted to unfair or discriminatory treatment. Additionally, the Commission had to assess whether it had erred in its approach to the evidence and its findings of fact.

The Commission found that the evidence presented was insufficient to establish that Mr Bates had acted in an unfair and discriminatory manner towards the employee. The Commission held that the employee had not discharged the onus of proving the alleged conduct on the balance of probabilities. Furthermore, the Commission found no error in its approach to the evidence or its findings of fact. The appeal was dismissed, and the original decision to dismiss the complaint was upheld.

Orders

Orders of the court

The Tribunal Orders that:

1. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.