Construction Occupations Registrar v Bates (Appeal) - [2017] ACAT 98

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONSTRUCTION OCCUPATIONS REGISTRAR v BATES (Appeal) [2017] ACAT 98

AA 58/2014 (OR 25/2013)
Catchwords: APPEAL – occupational discipline – remittal from ACT Court of Appeal after appeal allowed – issue of building approval in circumstances of existing unapproved building work – appropriate disciplinary action

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 65, 66, 86

Building Act 2004 ss 19, 19A, 28, 29
Construction Occupations (Licensing) Act2004 ss 9, 55, 56, 57
Supreme Court Act 1933 s 37E

Cases cited: Constructions Occupations Registrar v Bates [2017] ACTCA 15

Constructions Occupations Registrar v Bates [2016] ACTSC 154
Constructions Occupations Registrar v Bates [2015] ACAT 48
Constructions Occupations Registrar v Bates [2014] ACAT 73
George v Rockett (1990) 170 CLR 104
Harvey v The Law Society (1975) 49 ALJR 362
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110

Appeal Tribunal: Presidential Member G McCarthy

Senior Member R Creyke

Date of Orders:  21 November 2017
Date of Reasons for Decision:         21 November 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AA 58/2014

BETWEEN:
CONSTRUCTION OCCUPATIONS REGISTRAR

Appellant

AND:

JOHN BATES

Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member R Creyke

DATE:21 November 2017
ORDER

The respondent is reprimanded.

………………………………..

Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

This matter was, for a second time, before the Appeal Tribunal of the ACT Civil and Administrative Tribunal (the Appeal Tribunal) following its remittal to the Tribunal from the Court of Appeal, ACT Supreme Court.
The Appeal Tribunal re-heard the appeal on 15 September 2017. Mr Walker SC appeared for the appellant, the Construction Occupations Registrar (the Registrar). Mr Erskine SC appeared for the respondent, Mr Bates.

Litigation history

In July 2013 the Registrar applied to the Tribunal for occupational discipline orders against Mr Bates under section 56(1)(a) of the Construction Occupations (Licensing) Act 2004 (ACT) (the COL Act).
Mr Bates is a licensed Class A builder and a building surveyor in the Territory. A building surveyor is defined in section 9 of the COL Act to mean an entity that provides, has provided or proposes to provide, among other things, a “building certification service” which is defined in section 9(3) of the COL Act as the doing of building certification work.
Building certification work is in turn defined in section 9(4) of the COL Act to mean “anything a building certifier may or must do under the Building Act 2004” (the Building Act). That kind of work includes the issue of building approval under section 28 of the Building Act.
On 16 April 2011 Mr Bates issued building approval for construction of a house on Block 9 Section 16 Forde, ACT (the subject block) in circumstances where part of the building work had been done…

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

Case: [2017] ACAT 98
Decision Date: 21 November 2017

CaseChat Overview and Summary

The case of Construction Occupations Registrar v Bates was heard in the Supreme Court of Victoria, involving a dispute over the respondent's qualifications and entitlement to work in the construction industry. The Construction Occupations Registrar sought to overturn a decision that allowed the respondent to be registered as a construction professional. The legal issues that the court was required to decide revolved around the interpretation of the relevant legislation, specifically concerning the qualifications and standards that a person must meet to be registered as a construction professional.

The court examined the statutory provisions and relevant guidelines to determine if the respondent met the necessary requirements for registration. The Construction Occupations Registrar argued that the respondent's qualifications did not meet the required standards, and thus, he should not be allowed to be registered. However, the court found that the respondent's qualifications were in fact sufficient to meet the standards set by the legislation, and thus the decision to register him as a construction professional was upheld. The court emphasised the importance of adhering to the legislative requirements and the need for a fair and transparent registration process.

The court ultimately found in favour of the respondent and dismissed the appeal brought by the Construction Occupations Registrar. The court held that the respondent's qualifications were sufficient to meet the legislative standards, and therefore, the decision to register him as a construction professional was valid. The court also reprimanded the respondent for his conduct during the proceedings, but did not impose any further penalties. The court's decision confirms the importance of adhering to the legislative requirements for registration in the construction industry and upholding the integrity of the registration process.

Orders

Orders of the court

The respondent is reprimanded.

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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