Construction Occupations Registrar v Bates (Appeal)
[2017] ACAT 98
•21 November 2017
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, 57Supreme 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 73George v Rockett (1990) 170 CLR 104
Harvey v The Law Society (1975) 49 ALJR 362
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423The 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 without building approval. His issue of building approval became the subject of ground 14 of the grounds relied on in the application for occupational discipline orders, although many grounds relied on in the application were abandoned prior to hearing.
Ground 14 (after amendment)[1] provides:
[1] The words struck through in ground 14 reflect the amendments arising from the Registrar no longer pressing that Mr Bates was appointed as a certifier under section 19A of the Building Act: transcript of proceedings 5 September 2014, pages 62 - 63
On or about 16 April 2011, pursuant to section 55 (1)(a) of COLA, the respondent [Mr Bates] contravened section 28(2) of the Building Act 2004 in relation to Block 9 Section 16 Forde.
Particulars
a. On 16 April 2011, the respondent was appointed certifier for building work on Block 9 Section 16 Forde,
presumably under section 19A of the Building Act 2004.b. On or about 16 April 2011, the respondent issued building approval for Block 9 Section 16 Forde pursuant to section 28 of the Building Act 2004.
c.Prior to 16 April 2011, no certifier had been appointed under section 19 or 19A of the Building Act 2004.
d. Prior to 16 April 2011, no building approval had been issued in accordance with section 28 of the Building Act for Block 9 Section 16 Forde.
e. As at 16 April 2011, building work at Block 9 Section 16 Forde had progressed through the following stages or building work:
o i) Strip footings;
o ii) Storm water;
o iii) Damp course/slab; and
o iv) Frame work.
f. As at 16 April 2011, in circumstances where building work had progressed through to the frame work stage without permission or certification, the respondent could not have issued building approval for the building work undertaken at Block 9 Section 16 Forde because the requirements under
section 19A(1)(b) andsection 29 of the Building Act 2004 had not been met.The original Tribunal said that “the essence” of ground 14 was that Mr Bates had approved the existing building work on the subject block that had been done without building approval.[2]
[2]Construction Occupations Registrar v Bates [2014] ACAT 73 at [32]
It also said that under section 28 of the Building Act a certifier must issue building approval if satisfied that the plans for the proposed works meet the “applicable approval requirements” under section 29 of the Building Act.[3] The original Tribunal found that section 29 deals with “approval requirements for plans”. It found that that there was no evidence that the plans Mr Bates approved did not comply with the Building Act; that Mr Bates’ issuance of building approval arose from his “assessment of the integrity of the building work if executed in accordance with the plans”; and that his action in doing so was not a certification of work that had already been done on the site.[4] For these reasons, on 24 November 2014 the original Tribunal determined that ground 14 was not made out.[5]
[3]Construction Occupations Registrar v Bates [2014] ACAT 73 at [33]
[4]Construction Occupations Registrar v Bates [2014] ACAT 73 at [34]
[5] The Tribunal also determined that none of the other grounds for occupational discipline was made out, and therefore dismissed the application
On 19 December 2014, the Registrar appealed to the Appeal Tribunal against the dismissal of ground 14. On 22 July 2015, the Appeal Tribunal dismissed the Registrar’s appeal.[6]
[6]Construction Occupations Registrar v Bates [2015] ACAT 48
The Registrar applied for leave to appeal to the Supreme Court from the decision of the Appeal Tribunal under section 86 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). On 7 July 2016, the Supreme Court (Burns J) granted leave to appeal but dismissed the appeal.[7]
[7]Construction Occupations Registrar v Bates [2016] ACTSC 154
The Registrar appealed to the Court of Appeal under section 37E(2)(a) of the Supreme Court Act 1933 (ACT). On 1 May 2017, the Court of Appeal allowed the appeal, set aside the orders of Burns J and remitted the matter to the Tribunal for further hearing.[8]
[8] Construction Occupations Registrar v Bates [2017] ACTCA 15.
In summary, the Court of Appeal’s findings relevant to the remitter were as follows:
(a)section 19 of the Building Act operates only to permit a certifier to approve work that is yet to be carried out, that is, work which has not begun;[9]
(b)if building work has begun but the existing work has not been carried out in accordance with Part 3 of the Building Act, which relevantly includes that it be carried out with building approval, section 19A does not permit a certifier to be appointed in relation to that existing work;[10]
(c)it follows that where work has been done without building approval, a certifier cannot be appointed for that work and building approval cannot be issued for that work;
(d)where work has been done without building approval, a certifier can be appointed only for the balance of the work necessary to complete the construction of the building (meaning in this case the house on the subject block);[11]
(e)to issue building approval, a certifier must be “satisfied on reasonable grounds” that the plans for the proposed building work meet each applicable approval requirement under section 29 of the Building Act;[12]
(f)one of the applicable approval requirements, under section 29(1)(f) of the Building Act, is that the completed building as proposed to be erected or altered will be structurally sufficient, safe and stable;[13]
(g)in the unusual case where a certifier is appointed under section 19 to approve proposed building work on existing work to complete an unfinished building, section 29(1)(f) requires the certifier to give consideration not just to the plans regarding the proposed work but also “the nature and quality of the existing work onto which the proposed work [is] to be added”.[14]
Factual background
[9] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [50]
[10] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [41] and [47]
[11] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [54]
[12] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [56]
[13] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [57]
[14] Construction Occupations Registrar v Bates [2017] ACTCA 15 at [57]
Core Developments (Aust) Pty Ltd, with Mr Eames as its nominee, contracted with the Crown lessee owners of the subject block to build a house on their block. Building work commenced in 2010.
As at 16 April 2011, a certifier had not been appointed and building approval had not been issued under section 28 of the Building Act for the work that had been done as at that date. Construction of the house had progressed to the framework stage.
On 16 April 2011 Mr Eames asked Mr Bates to provide building approval for all the works, existing and proposed, as a matter of urgency. On the same day:
(a)Mr Eames provided the Crown lessees of the subject block with a form C3, which they signed and by which they appointed Mr Bates as certifier;[15]
(b)Mr Bates provided (or purported to provide) building approval for the whole job, meaning the existing work as well as the proposed building work;[16] and
(c)Mr Bates issued Core Developments with a building commencement notice for the work.[17]
[15] Appeal Book, page 374; witness statements of the Crown lessees dated 6 and 9 September 2011
[16] Transcript of proceedings 1 June 2015, page 40, lines 34-42
[17] Appeal Book, page 373
At the time he did so, Mr Bates knew that the existing building work had been done without building approval.[18] He issued building approval for all the work, existing and proposed, without going onto the site to inspect the site and without consulting the owners.[19] On the building commencement notice, Mr Bates wrote “Engineer to provide certification for already constructed footings & ground slab.”
[18] Transcript of proceedings, 1 June 2015, page 17, lines 8-10
[19] Transcript of proceedings 1 June 2015, page 20, lines 13, 41-42; page 37, line 3; page 21, lines 25-30
On 19 April 2011, the Registrar issued a stop work notice for work on the subject block. On 20 April 2011, Mr Eames attended the Registrar’s premises and provided copies of the plans stamped with Mr Bates’ building approval for the work. Upon him doing so, the Registrar lifted the stop work notice.[20]
[20] Statement of Mr Turk, 11 June 2013, [7]-[8]
On 9 September 2011, the Registrar issued a further stop work notice after receiving advice that Core Developments was no longer the builder. On 7 November 2011, the Registrar lifted the further stop work notice after another certifier, Mr Collins, issued a further building commencement notice.[21]
Appellant’s submissions
[21] Statement of Mr Turk, 11 June 2013, [21], [30].
Despite the original Tribunal’s finding that ground 14 concerned work that existed as at 16 April 2011, the Registrar submitted that “it has never been the Registrar’s case [that] Mr Bates was required to give building approval for that which had been built by Mr Eames up until 16 April 2011.”[22] Rather, the Registrar submitted that a certifier, and Mr Bates in this case:
is only looking to the future, to giving approval of building work which is going to be carried out. Our position was not that he had to approve what was there, he only had to approve what was to be carried out, but because what was being carried out was going to be put on top of what was there, he had to have some proper reasonable grounds to believe that if it is put on top it would comply with the provisions of the Act which required some degree of understanding of the building which had been already constructed.[23]
[22] Transcript of proceedings 15 September 2017, page 11, lines 30-33
[23] Transcript of proceedings 15 September 2017, page 11, line 42 – page 12, line 4
Mr Walker SC noted the original tribunal’s error, as determined by the Court of Appeal,[24] that “all [the certifier] had to do was to give approval to plans as plans.”[25]
[24]Construction Occupations Registrar v Bates [2017] ACTCA 15 at [57]
[25] Transcript of proceedings 15 September 2017, page 12, line 11
In relation to future work as at 16 April 2011, the Registrar submitted that Mr Bates contravened section 28(2)(b) of the Building Act, when issuing building approval, because he could not have been satisfied on reasonable grounds that the plans met the approval requirement in section 29(1)(f) of the Building Act.
Sections 28 and 29 of the Building Act state:
Issue of building approvals
28
(2) As soon as practicable after receiving the application for building approval, the certifier must—
(a)take all reasonable steps to get the information the certifier reasonably needs to decide the application; and
(b)if satisfied on reasonable grounds that the plans meet each applicable approval requirement under section 29 and is not prevented from being issued under section 30 or section 30A—
(i)prepare a notice (the building approval certificate ) certifying what approval requirements apply to the application and why the building approval is not prevented from being issued; and
(ii)issue the building approval and give the building approval certificate to the applicant. …
Approval requirements
29
(1) Each of the following is an approval requirement for plans:
…
(b)if the plans are for the erection or alteration of a building—the building, if erected or altered in accordance with the plans, will comply with this Act;
…
(f)the building as proposed to be erected or altered will be structurally sufficient, safe and stable.
The Registrar submitted that if the Appeal Tribunal finds that Mr Bates could not have been so satisfied, the Appeal Tribunal should:
(a)decide whether Mr Bates has contravened an operational Act as a ground for occupational discipline under section 55(1)(a) of the COL Act;[26]
(b)decide whether a ground for occupational discipline exists under section 65(2) of the ACAT Act;[27] and
(c)if it decides ‘yes’ to both of the previous questions, decide an appropriate penalty under section 66 of the ACAT Act after considering the factors set out in section 57(2) of the COL Act and section 65(3) of the ACAT Act.[28]
[26] The parties agreed that the Building Act is an operational Act for the purposes of the COL Act
[27] Contravention of an operational Act under the COL Act is a ground for occupational discipline for the purposes of section 65(2)
[28] Appellant’s outline of argument at [4]
The Registrar submitted that an occupational discipline order was required because, when he issued building approval, Mr Bates:
(a)knew a certifier had not been appointed and building approval had not been given for the building work that had already been conducted on the subject land;
(b)had not conducted an inspection of the building work. Although he had driven past the block, Mr Bates had not been onto the site and had not checked the depth, width or size of the reinforcement of the footings;
(c)had not obtained certification by an engineer of the existing works, although recommending that this occur, prior to granting building approval;
(d)did not have a survey certificate to enable him to be satisfied that the existing works were correctly sited, although he had received oral advice from the surveyor that there were no survey problems;
(e)provided ‘urgent’ building approval, for which there is no provision in the Building Act; and
(f)preferred the interests of the builder to the interests of the home owners.[29]
[29] Appellant’s outline of argument at [22]
Regarding appropriate disciplinary orders, the Registrar submitted that after considering the factors in section 57(2) of the COL Act and section 65(3) of the ACAT Act, the appropriate penalty is a reprimand under section 66(2)(a) of the ACAT Act and a fine of $1,000 under section 66(2)(h) of the ACAT Act.
Respondent’s submissions
Mr Erskine SC made, in substance, four submissions.
First, he submitted that in circumstances where the particulars described in paragraphs (a) – (e) of ground 14 were agreed and uncontroversial, the essential allegation against Mr Bates was, per paragraph (f), that he “could not have issued building approval for the building work undertaken”.
Referring to the decision of the Court of Appeal regarding sections 19 and 19A of the Building Act per paragraph 13(a) – (c) above, Mr Erskine SC submitted that it was not legally possible for Mr Bates to have issued building approval for the work undertaken, meaning (he said) the work that existed as at 16 April 2011, with the result that the purported approval of that work was a nullity. From there, Mr Erskine SC submitted that Mr Bates could not be disciplined for something that was not legally possible.
Second, Mr Erskine SC submitted that having regard to the manner in which the Registrar put his case, meaning his reliance on Mr Bates’ approval of proposed future work and him disavowing any reliance on purported approval of work that existed as at 16 April 2011, ground 14 “makes no sense” and therefore has to be dismissed. Before the original tribunal, Mr Erskine SC submitted that if the claim against Mr Bates is a claim about proposed future work then ground 14 is “an incoherent mess”.[30] Mr Erskine SC relied on the Court of Appeal’s observation that in the case of ambiguity, the terms or particulars of a charge will usually be interpreted in a manner favourable to the person facing the charge”.[31]
[30] Transcript of proceedings 5 September 2014, page 69, line 9
[31]Construction Occupations Registrar v Bates [2017] ACTCA 15 at [72]
Third, Mr Erskine SC submitted in the alternative that if the Appeal Tribunal finds that ground 14 means “something intelligible”, it must mean “something along the lines” of the Registrar’s submission that Mr Bates made no checks of the existing building work before he issued building approval for the future work. The consequence (on the Registrar’s case) was that if there was a problem with the existing unapproved work, it would be seriously compounded by building further work on top of it both in terms of cost and the extent of any rectification works required.
Essentially, this reflected the Court of Appeal’s finding[32] (as we understand it) that Mr Bates had an obligation to be satisfied on reasonable grounds that the proposed future work (to be built on top of the existing unapproved work) would result in a completed building that was “structurally sufficient, safe and stable”.
[32]Construction Occupations Registrar v Bates [2017] ACTCA 15 at [57]
From that proposition, Mr Erskine SC submitted that there were reasonable grounds for Mr Bates holding that satisfaction, which (as Mr Erskine SC properly observed) does not entail or equate with certification of the existing work. Whilst not having conducted an on-site formal inspection of the footings, Mr Erskine SC submitted that Mr Bates had a sufficient understanding of what had been laid. He could see that the footing was 300mm wide and that the steel used was 3 bar 11. He had noted that the process of pouring the footings was drawn out, in part because of flooding, and had had ample opportunity to see the work being done in the course of driving by it. He had seen the footings being dug and poured, and was able to compare what he had seen with the structural drawings. Mr Erskine SC submitted that Mr Bates was able to compare his memory of what he had seen in relation to the existing work with what was shown on the plans put forward for approval on 16 April 2011 in order to be satisfied on reasonable grounds that the completed building would be structurally sufficient, safe and stable. He required an engineer to certify the already constructed footings and slabs.
Mr Erskine SC submitted that these actions on Mr Bates’ part should be accepted as reasonable grounds for him having the required satisfaction, especially where the Registrar had not led any expert or other evidence to the contrary as to what a certifier should have done in the unusual circumstance of approving future work to be done on top of existing unapproved work.
Mr Erskine SC submitted that, at the time, the Registrar must have been satisfied that Mr Bates’ actions were appropriate because the Registrar’s officer, Mr Turk, lifted a stop work notice on the site upon Mr Bates issuing building approval for all the works.
Fourth, in what appeared to be a general submission regarding fairness, Mr Erskine SC submitted that the interpretation of the Building Act urged on Mr Bates’ behalf before the original tribunal and at each level of appeal was:
…consistent with what a lot of people in the industry thought and certainly was consistent with what two layers of this tribunal and Burns J thought, so it must have a moderately respectable argument even if it ultimately didn’t carry the day.[33]
[33] Transcript of proceedings 15 September 2017, page 62, lines 14 - 18
Mr Erskine SC also relied on the Registrar’s decision to lift the second stop work stop notice upon Mr Collins, as certifier, recommending that an engineer certify the footings and slab (as Mr Bates had done) before applying for a certificate of occupancy.
Mr Erskine SC submitted that if the Appeal Tribunal was satisfied that ground 14 was made out, the unusual circumstances of this case made it “inappropriate to impose any kind of penalty on Mr Bates.”[34] Mr Erskine SC referred to Mr Bates’ obligation to pay the Registrar’s costs of the appeals to the Supreme Court and to the Court of Appeal to submit that to impose additional occupational discipline penalties would be disproportionate.
Consideration
[34] Respondent’s submission on remitter at [43]
Although on remitter from the Court of Appeal, it remained the Appeal Tribunal’s role to hear and determine the Registrar’s appeal from the original decision of the Tribunal made on 24 November 2014. The appeal must be referenced to what is alleged in ground 14 and the original Tribunal’s reasons for dismissing the allegation.
Particular (f) of ground 14 alleges that (in the circumstances described in the other particulars to ground 14) “the respondent could not have issued building approval for the building work undertaken”.
Central to each party’s submissions on the appeal before us was whether “the building work undertaken” meant (or means) the proposed work to be undertaken, or the existing work that had been done, as at 16 April 2011.
Mr Walker SC submitted the former, although accepting that particular (f) is “not the happiest drafting”.[35] He contended not only can particular (f) be read in that way but it should be because that is the way the case was run before the original tribunal. Mr Walker SC provided the Appeal Tribunal with pages 60 – 70 of the transcript of the original tribunal hearing in support of that submission, and relied in particular on pages 62 - 64.
[35] Transcript of proceedings 15 September 2017, page 32, line 15
Mr Erskine SC submitted the latter, contending that Mr Bates was entitled to rely on the words in ground 14 as stating the case he needed to meet, and that ground 14 concerned building work “undertaken” as at 16 April 2011 - “past tense” - not proposed building work to be undertaken after that date.
It is clear from the Court of Appeal’s decision regarding the proper construction of sections 19 and 19A of the Building Act that Mr Bates could not have lawfully issued building approval on 16 April 2011 for the building work that existed at that time. If that work is the subject of ground 14, it would appear that the allegation is made out, save for the Appeal Tribunal ruling on Mr Erskine SC’s submission that Mr Bates could not be disciplined for that action because it was a nullity. However, the Registrar disavows any reliance on that work for the purposes of ground 14.
The original tribunal certainly understood Mr Bates’ approval of “the existing building work” to be the “essence” of ground 14,[36] despite Mr Walker SC’s submissions to the contrary, but Mr Walker SC continued on appeal and before us to rely only on Mr Bates’ approval of the proposed future work for the purposes of ground 14.
[36]Construction Occupations Registrar v Bates [2014] ACAT 73 at [32]
Mr Erskine SC was “happy to concede” that before the original Tribunal and “up the line since then”[37] Mr Walker SC was tolerably clear that “the gravamen of the allegation” he was putting in his submissions was that Mr Bates “was purportedly approving the building work to come”[38] and that the Registrar “wasn’t alleging for this allegation that Mr Bates was purporting to issue a building approval for the building work that had been undertaken.”[39]
[37] Transcript of proceedings 15 September 2017 page 55, lines 21-24
[38] Transcript of proceedings 15 September 2017 page 54, lines 43-44
[39] Transcript of proceedings 15 September 2017 page 55, lines 26-27
However, Mr Erskine SC’s primary position, at its core, was that Mr Walker SC’s submissions about future work are irrelevant because ground 14 is directed at the work that existed as at 16 April 2011, not work still to be done. If the Registrar chooses to disavow any reliance on the work the subject of the allegation, so be it: whether the ground is proved must still be determined according to its terms.
In our view, ground 14 must be read as a whole. Particulars (a) – (e) give context to particular (f). When particulars (e) and (f) are read together, it becomes tolerably clear that particular (f) alleges that in circumstances where building work had progressed through to the framework stage as described in particular (e), Mr Bates could (or should) not then have issued building approval for further building work because the applicable approval requirements under section 29 (in particular the approval requirement under section 29(1)(f)) had not been met.
The Appeal Tribunal acknowledges that ‘building work undertaken’ is written in the past tense, but relative to what point in time? In our view, when ground 14 is read as a whole, the word ‘undertaken’ is written, not with the intention of referring to the building work that existed as at 16 April 2011, but because the work the subject of the allegation (meaning work still to be done as at 16 April 2011) had been undertaken at the time the application for disciplinary action was made. To the extent there was ambiguity because of the ‘unhappy drafting’, it was clarified at the original tribunal hearing. The ambiguity might, possibly, have been lessened by referring to building work ‘to be’ undertaken or building work ‘then’ undertaken, but those possible additional words become otiose once particular (f) is read in the context of ground 14 as a whole.
Where the Appeal Tribunal is satisfied that ground 14 is directed to work still to be done as at 16 April 2011, it need not rule upon Mr Erskine SC’s ‘nullity’ submission because that submission was directed to work that is not the subject of ground 14. However, the Appeal Tribunal was not attracted to the submission in any event because, as the Court of Appeal noted, the fact remains that Mr Bates gave approval, albeit without power, for that existing work. In our view, that Mr Bates purported to issue building approval for existing work where he had no power to do so compounds the error rather than excuses it.
The Appeal Tribunal also rejects Mr Erskine SC’s second submission that ground 14, read as a whole, “make no sense”. We have concluded that ground 14 is tolerably clear in the sense of referring to future work as at 16 April 2011, and Mr Bates through his counsel knew that was the Registrar’s position from the beginning.
Where we are satisfied that ground 14 concerns future work as at 16 April 2011, it is clear that the original Tribunal erred because it did not consider that work when it found that ground 14 was not made out.
In these circumstances, the Appeal Tribunal must determine, as a question of fact, whether Mr Bates could not (or should not) have issued building approval for that future work because he could not have been satisfied on reasonable grounds that that the completed building would be structurally sufficient, safe and stable. Arising from the decision of Court of Appeal, much depends on the extent to which Mr Bates considered the existing unapproved work on which the proposed building work was to be added when deciding to issue building approval for the future work.
The Appeal Tribunal has taken into account the various factual matters that Mr Bates was aware of concerning the subject block and the work that existed when he issued building approval, but is not persuaded that he was satisfied on reasonable grounds that the proposed works to be constructed on the existing works would result in a completed building that would be structurally sufficient, safe and stable.
For a certifier to be ‘satisfied on reasonable grounds’ that the applicable approval requirements are met differs from a certifier reasonably believing that the requirements are met. The former is an objective test. The latter a subjective one. Mr Bates assert that “he believed he had a sufficient understanding of what had been laid”,[40] and in that sense was satisfied that the approval requirement in section 29(1)(f) was met, but that is not the test. Whether there are reasonable grounds for him having that satisfaction must be approached, objectively, from the viewpoint of a reasonable decision maker.
[40] Respondent’s submission on remitter at [29]
In George v Rockett,[41] the High Court explained the significance of the phrasing as follows:
When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.[42]
[41] (1990) 170 CLR 104
[42] (1990) 170 CLR 104 at [8]
In McKinnon v Secretary, Department of Treasury,[43] the High Court made similar observations on the question whether, on review by the Administrative Appeals Tribunal, there were reasonable grounds for a claim that disclosure of a document would be contrary to the public interest. The High Court said:
10. This is an objective test. George v Rockett was concerned with Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The statutory formula, however, is widely used. The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds.
11. To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as … whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. …
12. Where a claim, or an argument, or a conclusion or some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. It is not enough for the Tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the Tribunal agrees with the Minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the Minister accepted.[43][2006] HCA 45; (2006) 228 CLR 423
In our view, the facts relied upon Mr Erskine SC do not constitute ‘reasonable grounds’ for Mr Bates being satisfied that the completed building would be structurally sufficient, safe and stable. In our view, any reasonable certifier who realised that his/her role was to consider the existing work for the purpose stated by the Court of Appeal would at the very least have come onto the site and inspected the footings and slab before issuing building approval for future work.
A lack of reasonable grounds also arises from the fact that Mr Bates stated on the building commencement notice that an engineer would need to provide certification for the already constructed footings and ground slab. As Mr Walker SC submitted, if a reasonable certifier has concerns about structural sufficiency, engineering certification should first be obtained. With an engineer’s report in hand, a reasonable certifier would be in a position to know whether it was appropriate to issue building approval for future work, or not.
In his evidence before the original tribunal, Mr Bates sought to downplay the significance of issuing building approval before obtaining engineering certification by saying that on 16 April 2011, before issuing building approval that day, he telephoned the engineer, Mr Stodulka. Mr Bates stated that Mr Stodulka gave him “a verbal okay”[44] and said he could provide certification “in due course”.
[44] Transcript of proceedings 17 July 2014, page 87, line 14
However in his evidence before the original tribunal Mr Stodulka denied he could have said to Mr Bates that the footings and slab were structurally adequate. He said that neither he nor any member of his staff had inspected the footings as at April 2011, and that the implication of his conversation with Mr Bates was that they would have to look at and inspect the building before issuing the certificate.[45]
[45] Transcript of proceedings 17 July 2014, page 128, line 10 - page 129, line 4
As to whether Mr Bates understood that Mr Stodulka or one of his staff had already inspected the footings at the time Mr Stodulka gave his “verbal okay”, Mr Bates said he was “a little bit hazy on that, I’m sorry.”[46]
[46] Transcript of proceedings 17 July 2014, page 89, line 1
For these reasons, the Appeal Tribunal finds that Mr Bates issued building approval contrary to section 28(2)(b) of the Building Act because he could not have been satisfied on reasonable grounds that the approval requirement in section 29(1)(f) was met.
Penalty
When deciding on penalty, the Appeal Tribunal considered the matters set out in sections 57(2) of the COL Act and section 65(3) of the ACAT Act.
Section 57 of the COL Act states:
(1) This section applies if the ACAT is considering an application for an occupational discipline order in relation to a licensee.
(2) Without limiting the matters the ACAT must consider in relation to a licensee, the ACAT must consider the following:
(a)the degree of responsibility of the licensee for the act or omission that made up the ground for occupational discipline;
(b)the number of people detrimentally affected by the doing of something, or not doing something, that made up the ground for occupational discipline;
(c)the extent to which it is necessary to discourage the licensee and others from doing something, or not doing something, that made up the ground for occupational discipline;
(d)whether, and the extent to which, it is necessary to protect the public from the licensee;
(e)the desirability of making the licensee responsible for the consequences of the licensee's acts or omissions;
(f)the desirability of maintaining public confidence in the regulatory system set up by this Act;
(g)the licensee's regard, or disregard, for public safety and protection of the environment when doing something, or not doing something, that made up the ground for occupational discipline;
(h)if the licensee has completed an assessment mentioned in section 55A (Skill assessment of licensees)—the results of the assessment;
(i)any action taken by the registrar under section 56.
Prior to the decision of the Court of Appeal, it would seem there was a widespread understanding that the role of a certifier, when issuing building approval, was to determine according to the plans alone whether the proposed building would meet the applicable approval requirements under section 29 of the Building Act. That circumstance counts against a significant penalty, especially where the Appeal Tribunal must consider the facts and circumstances as at 16 April 2011.
We are nevertheless satisfied that a penalty should be imposed. The proper approach to disciplinary matters is that orders are not to be punitive; they are for the protection of the public.[47]
[47] COL Act , section 57(2)(d); Harvey v The Law Society (1975) 49 ALJR 362 at 364 per Barwick CJ; The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110, 123
Mr Bates’ primary role, as certifier appointed by the Crown lessees, was to protect their interests not the builder’s interests. On his own case, Mr Bates was sufficiently concerned about the structural sufficiency of the existing work that he required an engineer to certify that work. Yet, despite that concern, he issued building approval to enable work to continue on top of the existing work.
In our view, any reasonably competent certifier looking to the interests of his/her client/s would recognise that to carry out further building work on top of a slab and footings where the structural sufficiency of the slab and footings was unknown was to risk structural insufficiency of the whole house. At the very least, Mr Bates should have discussed that risk with his clients and sought their views about whether they wished to proceed, notwithstanding the risk, in the interests of progressing the work, or whether they wished work to halt pending receipt of information about the structural sufficiency of the slab and footings.
In our view, a responsible certifier would not even have given his/her client the choice, such was the importance of first obtaining certification that the slab and footings were structurally sound.
Despite being engaged to protect the interests of his clients, the Crown lessees, Mr Bates acknowledged that at the time he issued building approval for all works on the subject block he had not even spoken with his clients about the project[48] much less discussed his concerns about the unapproved existing work and the need for a structural engineer to certify the sufficiency of the work.
[48] Transcript of proceedings 17 July 2014, page 85, lines 35-36
His appointment as certifier, his phone call to Mr Stodulka, his issue of building approval and his issue of a building commencement notice all occurred on the same day. Yet he never spoke to his clients, the Crown lessees, whose interests should have been his priority.
His only priority, in our view, was to issue building approval as quickly as possible in the interests of the builder to enable the builder to continue working.
Such an approach was contrary to the regulatory system for building in the ACT, which depends so substantially on private certifiers acting in the interests of their clients to ensure compliance with the Building Act.[49]
[49] COL Act section 57(2)(a), (b),(c), (f); ACAT Act section 65(3)(d)
For these reasons, the Appeal Tribunal has concluded that Mr Bates should be reprimanded.
The Appeal Tribunal has decided that a financial penalty should not be imposed. A financial penalty is sometimes imposed to bring home the seriousness of a person’s actions where only a reprimand might not do so.[50] That is not this case. After attending now three proceedings in the Tribunal and two in the Supreme Court over many years, Mr Bates is now more aware of the role of a certifier under the Building Act. Also, as Mr Erskine SC noted, Mr Bates has incurred, and is liable for, substantial legal costs arising from his conduct.
[50] COL Act section 57(2)(c)
………………………………..
Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AA 58/2014 |
PARTIES, APPELLANT: | Construction Occupations Registrar |
PARTIES, RESPONDENT: | John Bates |
COUNSEL APPEARING, APPELLANT | Mr P Walker SC |
COUNSEL APPEARING, RESPONDENT | Mr C Erskine SC |
SOLICITORS FOR APPELLANT | ACT Government Solicitor |
SOLICITORS FOR RESPONDENT | Snedden Hall & Gallop |
APPEAL TRIBUNAL MEMBERS: | Presidential Member G McCarthy Senior Member R Creyke |
DATE OF HEARING: | 15 September 2017 |
0
7
0