Construction Occupations Registrar v Bates - [2016] ACTSC 154

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Construction Occupations Registrar v Bates
Citation:	[2016] ACTSC 154
Hearing Dates:	20 October 2015, 13 May 2016
DecisionDate:	7 July 2016
Before:	Burns J
Decision:	See [65]
Catchwords:	OCCUPATIONAL DISCIPLINE – Building Certifiers – appeal from the ACT Civil and Administrative Appeals Tribunal – where certifier appointed after building works commenced – building approval – where no inspection of works undertaken – question of what certifier needs to be satisfied of – issues of statutory construction – proper construction of the Building Act 2004 (ACT) – leave to appeal granted – appeal dismissed.
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86 Building Act 2004 (ACT) ss 6, 7, 19, 19A, 19D, 19E, 20, 25A, 25B, 25C, 26, 27, 28, 28A, 29, 30, 30A, 37, 42, 43, 44, 47, 48, 50, 50A, 51, 53, 61, 62, 151 Building (General) Regulation 2008 (ACT) Building Legislation Amendment Act 2007 (ACT) Construction Occupation (Licensing) Act 2004 (ACT) s 55(1) Legislation Act 2001 (ACT) ss 126, 138, 139, 140 Planning and Development Act 2007 (ACT)
Cases Cited:	Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 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 Solicitors (Respondent)
File Number:	SCA 66 of 2015
Decision under appeal:	Tribunal: ACT Civil and Administrative Appeal Tribunal Before: Mr W G Stefaniak AM and Ms M Brennan Date of Decision: 22 July 2015 Case Title: Construction Occupations Registrar v John Bates Court File Number: AA 14/58

BURNS J:

The appellant brought an application for disciplinary action against the respondent pursuant to Division 5.2 of the Construction Occupations (Licensing) Act 2004 (ACT) (the COLA) in the ACT Civil and Administrative Tribunal (the ACAT). The respondent is licensed as a Class A Builder and a Building Surveyor.

As the facts in this matter are not in dispute between the parties, I will only briefly set them out. Core Developments (Aust) Pty Ltd was the builder for Mr and Mrs Owens, and Brendan Eames was the nominee of that company. Mr and Mrs Owens had contracted Mr Eames to build them a house on what is referred to as “Block 9 Section 16 Forde”. Mr Eames then began to build the house without a certifier having granted building approval. The building progressed through to the frame work stage without a certifier having been appointed, and without approval for the building plans. The respondent was appointed to be the certifier for the work on 16 April 2011, as evidenced from the completed Form C3 pursuant to s 151 of the Building Act 2004 (ACT) (the BA). The respondent issued building approval and a commencement notice for the remaining work on the same day, being 16 April 2011. It is not contested that the respondent did not undertake an inspection…

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.

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Details

AGLC: Construction Occupations Registrar v Bates [2016] ACTSC 154
Case: [2016] ACTSC 154
Decision Date: 7 July 2016

CaseChat Overview and Summary

In the case of Construction Occupations Registrar v Bates, the Construction Occupations Registrar sought to appeal a decision made by the ACT Civil and Administrative Appeals Tribunal, which had dismissed the Registrar's disciplinary action against Mr. Bates, a building certifier. The central issue was whether the Tribunal correctly determined that Mr. Bates was not guilty of unsatisfactory professional conduct under section 174 of the Building Act 2004 (ACT). The Registrar's action arose from Mr. Bates' issuance of a building approval without inspecting the building works, which had already commenced.

The legal issues before the court involved the interpretation of the Building Act 2004 (ACT) and its provisions regarding building certifiers. Specifically, the court had to determine what Mr. Bates needed to be satisfied of before issuing a building approval, and whether his failure to inspect the works constituted unsatisfactory professional conduct. The Registrar argued that the statutory framework required the certifier to inspect the works before issuing approval, whereas Mr. Bates contended that his role was limited to reviewing documents and that inspections were not mandatory under the Act.

The court examined the statutory language and legislative intent, concluding that the Building Act 2004 (ACT) did not explicitly require a building certifier to inspect the works before issuing approval. The court found that the statutory provisions allowed for a building certifier to issue an approval based on documents alone, provided the certifier was satisfied that the works complied with the relevant standards and regulations. As such, the court held that the Tribunal's decision was correct, and the appeal was dismissed. Consequently, the orders of the court were to affirm the decision of the Tribunal and dismiss the Registrar's appeal.

Orders

Orders of the court

See [65]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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