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 licensee, or, if the licensee is a corporation or partnership, a nominee of the licensee, to complete a stated course of training to the satisfaction of the registrar or another stated person;
(d)impose a condition on the licence, or amend an existing condition.
(2)If a regulation prescribes a short description of a ground for occupational discipline under section 55 (1) (a), the registrar may use the short description in the application.

The grounds alleged in the application relied on breach of either sub-section (a) or (b) of section 55(1) of the COL Act.
55Grounds for occupational discipline
(1)Each of the following is a ground for occupational discipline in relation to a licensee:
(a)the licensee, or a nominee or employee of the licensee, contravened, or is contravening, this Act or an operational Act (including a direction given to the licensee under an operational Act);
Examples
1contravening a rectification order
2failing to complete a skill assessment required by the registrar under s 55A
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).
(b)the licensee, knowingly or recklessly, gave someone information in relation to a construction service provided, or to be provided, by the licensee that was false or misleading in a material particular;

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.

The Grounds

A number of grounds relied on in the original application were abandoned, so that the numbering that follows refers to the remaining grounds by their original numbers.
Ground 6 relates to Block 16 Section 75 Forde in the ACT, and reads as follows:
On or about 29 October 2010, pursuant to section 55(1)(b) of COLA, the respondent knowingly or recklessly gave Mr Brendan Eames (the Builder) information in relation to a construction service to be provided by the respondent that was false or misleading in a material way.
Particulars were provided.
The ground supported by the particulars stated a number of circumstances which if occurring on 29 October 2010 could have potentially constituted breaches of the Building Act 2004 (the Building Act). The basis of the ground was that the respondent had attended the site on that date and, it was alleged, issued a Building Inspection Report in respect of the earthworks and strip footing. At that time he had not been appointed as Certifier for the block and building approval had not been issued.
That inspection report bore two dates: 29 October 2010 and 4 November 2010.
The Building Inspection Report should not have had two dates on it. However since it bore the later date of 4 November 2010 as well as the earlier 29 October 2010 date, the Tribunal infers that it had remained in the respondent’s custody in the intervening period. It is not possible to determine what part of the form had been completed on the earlier date. The respondent issued it on 4 November 2010 so that it became effective then, and any confusion which may have arisen as a result of the two dates there appearing would have been inconsequential at that time. It was not alleged that the respondent was not authorised to undertake the certifications referred to in the form on 4 November 2010.
The Tribunal is not satisfied that the respondent took any action that infringed either the Building Act or the COL Act on 29 October 2010.
Ground 6 is not made out.
Ground 7 relates to Block 16 Section 92 Curtin. This alleges a contravention of section 55(1)(a) of the COL Act when it is alleged that the respondent in contravention of section 84(1) of that Act provided a construction occupation service when not licensed to do so.
The Tribunal is satisfied that the circumstances are established which would amount to the contravention alleged. It is, however, common ground that the contravention was the result of the respondent acting on some incorrect advice provided by a professional he had engaged. He took as much action as he could to remedy the situation as soon as the error was identified.
The Tribunal is satisfied that the respondent in relying on professional advice took reasonable steps to avoid the infringement; that he took steps to mitigate any potential impact; that impact was minimal; and that the respondent is unlikely to repeat the infringement. Having regard to these matters referred to in section 65 of the ACAT Act, the Tribunal makes no disciplinary finding in relation to this ground.
Ground 10 relates to Block 15 Section 75 Forde and is as follows:
On or about 30 November 2011, pursuant to section 55(1)(b) of COLA, the respondent knowingly or recklessly gave Mr Brendan Eames (the Builder) information in relation to a construction service to be provided by the respondent that was false or misleading in a material particular.
Particulars were separately provided.
The evidence indicates that the person named as the builder in the particulars and to whom it is alleged the information was passed was not in fact the builder in respect of the block. The Tribunal is satisfied that the ground fails on that basis.
Furthermore, the respondent submitted that the approval that was issued was conditional and did not on its face authorise construction to proceed. The certificate which was issued was therefore not false or misleading. The Tribunal concurs with that submission.
Ground 10 is not made out.
Grounds 12 and 13 which respectively allege breach of section 55(1)(a) and (b) of the COL Act are as follows:
12.On or about 15 December 2010, pursuant to section 55(1)(a) of COLA, the respondent contravened section 44(2)(b) of the Building Act 2004 in relation to Block24 Section 60 Forde
13.On or about 15 December 2010, pursuant to section 55(1)(b) of COLA, the respondent knowingly or recklessly gave Mr Brendan Eames (the Builder) information in relation to a construction service to be provided by the respondent that was false or misleading in a material particular.
There is considerable overlap between these two grounds.
The owners of the block signed a C3 form appointing the respondent as certifier on 23 November 2010. There was some problem with insurance and that form was not completed until 16 December 2010. Building approval was also given on 16 December 2010.
The respondent had conducted an inspection of the strip footings on 15 December 2010, the day before the form of his appointment was completed.
The respondent submits that the three forms should be regarded as having been completed at the same time. There is no evidence that any building work was done by the builder in the interval between the inspection report of 15 December 2010, and the issue of the building approval the next day, 16 December 2010.
There appears to have been a technical breach arising out of the inspection of 15 December 2010 committed at a time that the respondent was aware that the insurance difficulty had been solved. No adverse consequences or any consequences have been established and the situation was rectified the next day. Having regard to the matters referred to above in section 65 of the ACAT Act, the Tribunal makes no finding in relation to these grounds.
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.
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.
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.
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.
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.
Ground 14 is not made out.
Ground 18A is expressed as follows:
On or about 16 April 2011, pursuant to section 55(1)(a) of COLA, the respondent contravened section 44(2)(b) of the Building Act 2004 in relation to Block 9 Section 16 Forde.
It is alleged that the respondent contravened section 44(2)(b) of the Building Act. This section regulates stage inspection, referring to inspections of building progress which have to be conducted at certain stages of construction. The date referred to is 16 April 2011. Prior to that date it is common ground that construction had progressed without approval and without inspections having been carried out at the respective stages of construction achieved.
Section 44(2)(b) of the Building Act refers to the certifier having received a notice from the builder under section 43(3)(a) of the Building Act certifying that a particular stage has been reached and this triggers an obligation on the certifier to make an inspection of work done in that stage.
The evidence before the Tribunal indicates that on 16 April 2011 the following occurred:
(a)A form C3 was signed by the lessees of the block appointing the respondent as the certifier.
(b)A building commencement notice application form was signed by the lessees. There was a C2 form and it was signed and issued by the respondent on 16 April 2011 (Exhibit E). Building approval was endorsed by the respondent on the plans for the construction of the dwelling on the block.
There is no evidence that the builder on or about 16 April 2011 gave notice pursuant to section 43(3)(a) of the Building Act that a stage had been reached; that in response to that notice the respondent conducted a stage inspection on that date; or that the respondent took any action pursuant to section 44(2)(b) of the Building Act on that date. The Tribunal is not satisfied that the respondent took any action on 16 April 2011 as alleged in ground 18A which purported to give approval to the work which had already been done at this block.
Ground 18A is not made out.
Ground 20 is closely related to ground 14. It is as follows:
On or about 16 April 2011, pursuant to section 55(1)(b) of COLA, the respondent knowingly or recklessly gave Mr Brendan Eames (the builder) information in relation to a construction service provided by the respondent that was false or misleading in a material particular.
Some particulars were provided of which the following is relevant.
e)In circumstances where building work had progressed through to the frame work stage without permission or certification, the building approval issued by the respondent for the building work undertaken at Block 9 Section 16 Forde was false and misleading because the requirements under section 29 of the Building Act 2004 had not been met.
The requirements of section 29 have been referred to above. They deal with the need for building plans to comply with the Act. A certifier in giving building approval is approving the construction of building work in accordance with the plans. In certifying the plans and giving building approval the respondent was not making any representation relating to the construction as it had progressed to 16 April 2011. He was certifying that building work if executed in accordance with the plans would comply with the Act. No breach of section 29 is demonstrated.
Ground 20 is not made out.

Conclusion

None of the grounds of the application that were ultimately pursued by the applicant are established. The application is therefore dismissed.

………………………………..
Mr G. J. Lunney SC – Senior Member
For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 13/25
PARTIES, APPLICANT:	Construction Occupations Registrar
PARTIES, RESPONDENT:	John Bates
COUNSEL APPEARING, APPLICANT	P. Walker SC
COUNSEL APPEARING, RESPONDENT	C. Erskine SC
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Snedden Hall & Gallop
TRIBUNAL MEMBERS:	Mr G.J Lunney SC – Senior Member Mr G. Trickett – Senior Member
DATES OF HEARING:	15, 16, 17 July 2014, 25 August 2014, 5 September 2014