Construction Occupations Registrar v Bates - [2014] ACAT 73

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONSTRUCTION OCCUPATIONS REGISTRAR v BATES
(Occupational Discipline) [2014] ACAT 73

OR 25 of 2013
Catchwords: OCCUPATIONAL DISCIPLINE – Construction Occupations (Licensing) Act 2004 – Disciplinary Proceedings Sections 55 and 56 – Application to Cancel Licence – Building Act 2004, Section 19, Appointment by Owner of Property – Section 28, Issue of Building Approvals – Whether Building Approval relates to existing unapproved work – Section 44, Issue of Stage Certifications – Application Dismissed

Legislation:Construction Occupations (Licensing) Act 2004(ACT)
ss 55(1), 56, 84(1).
ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 65, 66.
Building Act 2004 (ACT) ss 26, 28, 29, 44(2)(b), 43(3)(a).

Tribunal: Mr G. J. Lunney SC – Senior Member (Presiding)
Mr G. Trickett – Senior Member

Date of Orders: 24 November 2014
Date of Reasons for Decision: 24 November 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/25
BETWEEN:
CONSTRUCTION OCCUPATIONS
REGISTRAR
Applicant

AND:
JOHN BATES
Respondent

TRIBUNAL: Mr G. J. Lunney SC – Senior Member (Presiding)
Mr G. Trickett – Senior Member

DATE:24 November 2014
ORDER

The Tribunal Orders that:
The application is dismissed.
………………………………..
Mr G. J. Lunney SC – Senior Member
For and on behalf of the Tribunal

REASONS FOR DECISION

This is an application for disciplinary action brought by the Construction Occupations Registrar (the applicant) against John Bates (the respondent), pursuant to Division 5.2 of the Construction Occupations (Licensing) Act 2004, (the COL Act). The respondent is licensed as a Class A Builder and a Building Surveyor in the Territory.
The proceedings were commenced by application of 8 July 2013. This was amended on 23 September 2013, and further amended during the course of the hearing. The application was heard on 15, 16 and 17 July 2014, 25 August 2014, and 5 September 2014.
The order for disciplinary action sought by the applicant in the original application was an order cancelling the respondent’s licence which was stated to be Licence Number 19884388 which comprised a building licence and a building surveyor licence.
The application relied on a number of grounds for the order sought. Each ground related to a particular block in the Territory upon which a domestic dwelling was being built and alleged that various breaches constituted grounds for occupational discipline under sections 55(1)(a) or (b) of the COL Act. For each dwelling the respondent had provided some sort of certification service or services. The grounds for the orders sought were amended from time to time, and reached their final form during addresses on the concluding hearing date, 5 September 2014.

Legislation

The Registrar may bring an application to the ACAT for occupational discipline as provided in section 56 of the COL Act.
56Occupational discipline
(1)If the registrar believes on reasonable grounds that a ground for occupational discipline exists in relation to a licensee, the registrar may take 1 or more of the following actions—
(a)apply to the ACAT for an occupational discipline order in relation to the licensee;
(b)reprimand the licensee;
(c)require the…

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 [2014] ACAT 73
Case: [2014] ACAT 73
Decision Date: 24 November 2014

CaseChat Overview and Summary

The Construction Occupations Registrar filed an application against Mr. Bates to cancel his licence under the Construction Occupations (Licensing) Act 2004. The application was dismissed by the Administrative Appeals Tribunal of the Australian Capital Territory. The Registrar alleged that Mr. Bates had contravened certain sections of the Building Act 2004 by undertaking building work without a building approval and issuing stage certifications in relation to existing unapproved work. The Registrar sought to cancel Mr. Bates' licence as a result of these alleged contraventions.

The central legal issues before the tribunal were whether Mr. Bates had indeed contravened the specified sections of the Building Act 2004 and, if so, whether those contraventions warranted the cancellation of his licence. The tribunal had to consider whether the alleged actions of Mr. Bates constituted grounds for occupational discipline under the Construction Occupations (Licensing) Act 2004. The tribunal also needed to evaluate the mitigating factors and the impact of the alleged contraventions on other parties.

In evaluating the evidence presented, the tribunal found that while Mr. Bates had indeed undertaken building work without a building approval and issued stage certifications in relation to existing unapproved work, the application did not demonstrate that these actions constituted grounds for the cancellation of his licence. The tribunal considered various factors, including Mr. Bates' efforts to mitigate the effects of his actions and the impact of the alleged contraventions on other parties. Ultimately, the tribunal concluded that the application did not meet the threshold for cancelling Mr. Bates' licence. As a result, the tribunal dismissed the Registrar's application.

The tribunal ordered that the application to cancel Mr. Bates' licence be dismissed.

Orders

Orders of the court

The Tribunal Orders that:

The application 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

The application to the ACAT is dealt with pursuant to Division 6.2 of the ACT Civil and Administrative Tribunal Act 2008, (the ACAT Act). Sections 65 and 66 are reproduced below:65Considerations before making orders on application for occupational discipline(1)This section applies if the tribunal is considering an application for occupational discipline against a person (the subject person).(2)The tribunal may make an order for occupational discipline in relation to the subject person if satisfied that a ground for occupational discipline exists against the person.(3)In considering what occupational discipline to use against the subject person, the tribunal must consider the following:(a)whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;(b)whether occupational discipline has previously been used against the person for a similar act;(c)whether the person has taken steps to mitigate the effect of the contravention;(d)the impact of the contravention on any other person;(e)the likelihood that the person will act in a way that is a ground for occupational discipline in the future;(f)whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.Example—par (c)the person has changed a method of work or given a direction to staff to prevent further contraventions...(4)The tribunal may consider any other relevant matter.66Orders for occupational discipline(1)This section applies if the tribunal may make an order for occupational discipline in relation to the subject person.NoteSection 65 sets out when the tribunal may make an order.(2)The tribunal may make 1 or more of the following orders for occupational discipline in relation to the subject person:(a)reprimand the person;(b)require the person to give a written undertaking;(c)require the person to complete a stated course of training to the satisfaction of the regulatory body or another stated person;(d)give the person a direction;NoteFor directions that may be given, see s 67.(e)cancel or suspend the person’s licence or registration; (f)disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens;(g)if a regulatory body may put conditions on the person’s licence or registration under an authorising law—direct the regulatory body to—(i)put a condition on the person’s licence or registration; or(ii)remove or amend a condition put on the person’s licence or registration;(h)require the person to pay to the Territory or someone else a stated amount (not more than any amount prescribed by regulation);(i)if the person gained financial advantage from the action that is the ground for occupational discipline—require the person to pay to the Territory an amount assessed as the amount of financial advantage gained by the person.(3)If the ACAT cancels a person’s licence or registration, the ACAT may disqualify the person from applying for a licence or registration for a stated period or indefinitely.(4)This section does not limit the orders the tribunal may make.(5)In this section:regulatory body means the entity responsible for issuing licences of the kind held by the subject person or for registering people in the occupation or profession in which the subject person is registered.