Construction Occupations Registrar v Minotaur Constructions (ACT) Pty Ltd
[2015] ACTSC 275
•17 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Construction Occupations Registrar v Minotaur Constructions (ACT) Pty Ltd |
Citation: | [2015] ACTSC 275 |
Hearing Date: | 3 August 2015 |
DecisionDate: | 17 September 2015 |
Before: | Refshauge J |
Decision: | Each party pay his or its own costs of the discontinuance of the appeal. |
Category: | Principal Judgment |
Catchwords: | CIVIL – Jurisdiction, practice and procedure – appeal – appeal from ACAT – removal Appeal Tribunal of the ACAT to the Supreme Court – Notice of Discontinuance – costs – change in circumstances beyond the control of the parties – parties conducted the appeal in a reasonable manner – parties were aware that they were exposing themselves to costs – not possible to speculate as to which party would have been successful |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 83(1) Construction Occupations (Licensing) Act 2001 (ACT), ss 17, 19, 19(4), 19(6), 28, 56(1)(a), 103, 104(1)(c), 123C Construction Occupations (Licensing) Regulations 2004 (ACT), s 42A, Schedule 4 Court Procedures Rules 2006 (ACT), rr 1163, 1707, 5171, 5171 (7), 5171(8), r 5151(7), Pt 5.3, Div 2.11.6 |
Cases Cited: | Abbey v Mack (2010) 244 FLR 324 Appellants v Law Society of the ACT (2011) 252 FLR 209 Construction Occupations Registrar v B & T Constructions (ACT) Pty Ltd [2015] ACAT 24 Director of Public Prosecutions v B (1998) 72 ALJR 1175 Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2014] ACAT 43 Oshlack v Richmond River Council (1998) 193 CLR 72 South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 State of Tasmania v Anti-Discrimination Tribunal (2008) 17 Tas R 227 |
Parties: | Construction Occupations Registrar (Appellant) Minotaur Constructions (ACT) Pty Ltd (Respondent) |
Representation: | Counsel Mr C McCarthy (Appellant) Mr C Erskine SC (Respondent) |
| Solicitors ACT Government Solicitor (Appellant) Trinity Law (Respondent) | |
File Number: | SC 88 of 2014 |
Decision under appeal: | Tribunal: ACT Civil and Administrative Appeals Tribunal Before: Senior Member Anforth Date of Decision: 17 July 2014 Case Title: Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar Citation: [2014] ACAT 43 |
Refshauge J:
In circumstances to which I will refer in more detail below, the respondent, Minotaur Constructions (ACT) Pty Ltd (Minotaur), applied to the Australian Capital Territory Construction Occupation Registrar (the Registrar), a statutory office established by s 103 of the Construction Occupations (Licensing) Act 2001 (ACT) (the Licensing Act), for a Class B Builder’s Licence under s 17 of the Licensing Act.
The Registrar refused Minotaur’s application and Minotaur challenged that decision by applying for a review by the ACT Civil and Administrative Tribunal (the ACAT), in accordance with s 123C of the Licensing Act and s 42A and Item of the Schedule 4 of the Construction Occupations (Licensing) Regulations 2004 (ACT).
The ACAT heard the application by Minotaur and, on 21 August 2014, set aside the Registrar’s decision and remitted Minotaur’s application to the Registrar for determination according to law, for reasons delivered on 17 July 2014. See Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2014] ACAT 43.
The Registrar, being dissatisfied with the decision of the ACAT, then appealed to the Appeal Tribunal of the ACAT and, on 2 October 2014, the Appeal President of the ACAT removed the appeal to this Court under s 83(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act).
On 25 July 2015, the Registrar filed a Notice of Discontinuance of the appeal. I was advised, however, that there was an issue between the parties as to costs.
On 3 August 2015, I heard arguments on that issue and reserved my decision.
The facts
In addition to the decision of the ACAT, referred to above (at [3]), I had an affidavit filed by the Registrar. From this material, I make the following findings of fact.
According to a statement made by Mr Simon Corbell, Minister for Planning on 24 June 2003, the Licensing Act, introduced following a national competition policy review of occupational licensing undertaken in 2000, was intended to create a framework for licensing matters for various building occupations, except architects, but including builders, electricians, plumbers, drainers and gas fitters, building surveyors and plumbing plan certifiers, bringing some of those trades that then did not have licensing boards within the one scheme.
Section 103 of the Licensing Act required the relevant chief executive to appoint a public servant as the Registrar to undertake specified functions and, in particular, under s 104(1)(c) to decide applications in relation to licences.
Minotaur was a company, the director of which was Ivan Bulum. On 10 April 2016, it applied for a licence class B, which entitled the company to carry out building work, other than specialist building work, in relation to a building that is three storeys or lower. A corporate applicant had to specify in the application one or more persons as nominees: s 28 of the Licensing Act. Minotaur nominated Mr Bulum and an employee, Cornelius Hank Van Roon, as nominees.
In circumstances that I do not need to detail, the Registrar refused the application on 11 December 2013, on the basis that the refusal was “necessary and desirable to protect the public”.
On 24 December 2013, Minotaur applied to the ACAT for a review of the decision.
Mr Bulum and Mr Van Roon were also the nominees of B&T Constructions (ACT) Pty Ltd the holder of a Class A licence (which entitled it to perform building work other than specialist building work, but with no height restriction) and, on 30 January 2014, the Registrar commenced proceedings for occupational discipline against that company and its nominees under s 56(1)(a) of the Licensing Act. The application was based on what was said to be non-compliance with certain orders for rectification of certain work on buildings constructed by B&T Constructions Pty Ltd. I deal further with those proceedings later.
On application by Minotaur, the ACAT agreed to consider, at an interim hearing, the argument of the parties about the proper construction of s 19 of the Licensing Act and, on 17 July 2014, gave its decision, referred to above (at [3]). That decision effectively resolved the application by Minotaur against the decision of the Registrar.
In summary, the issue concerned the question of whether the Registrar could take into account matters occurring after the making of an application for an occupational licence in considering the application. Matters occurred after Minotaur had lodged its application which, had they occurred prior to the lodgement of the application, would have provided grounds for the Registrar to refuse to grant the licence. Minotaur submitted that the Registrar (and, on appeal, the ACAT) could not consider them. At issue, also, was the temporal requirement on the Registrar to consider the application which Minotaur submitted had to be considered as soon as possible.
The ACAT decided both these questions against the Registrar and published its reasons for so holding on 17 July 2014.
That effectively meant that the decision of the Registrar could not stand and, on 21 August 2014, the parties agreed, and the ACAT ordered, that the decision of the Registrar be set aside and the application remitted to the Registrar to be determined according to law.
The Registrar then appealed against the decision of the ACAT. That appeal was to the Appeal Division of the ACAT but, under s 83(1) of the ACAT Act, such an appeal can be removed into this Court. On 2 October 2014, the Appeal President did so.
I do not need to resolve the vexed question of the powers and jurisdiction of the Court under such a removal. That can wait for another day.
The grounds on which the Registrar relied for refusing the application by Minotaur for a licence were apparently under s 19(4) of the Licensing Act but that provision did not come into force until 6 August 2013, that is after Minotaur had made its application though prior to the Registrar making his decision. The ground in s 19(4), namely that Mr Bulum was subject to an application for occupational discipline, did not exist either at the time of the Registrar’s decision.
The Registrar submitted, however, that because of the application for occupational discipline pending against B&T Constructions (ACT) Pty Ltd and its nominees at the time of the appeal, the ACAT, which stood effectively in the shoes of the Registrar, should defer a decision until the outcome of those disciplinary proceedings as, if successful, they would result in a finding that would, at that time, under s 19(4) of the Licensing Act, entitle the ACAT to refuse Minotaur’s application for a licence.
The ACAT, however, held that the Registrar could not – and so the ACAT could not – rely on facts that came into existence after a person (in this case Minotaur) had made an application for a licence unless explanatory of events occurring prior to lodgement of the application. Since no occupational discipline proceedings were on foot at the time the application was made (the relevant ground under s 19(4) of the Licensing Act) there was no basis for a deferral under s 19(6) of the decision on the licence application.
The appeal, which was subsequently removed to this Court, involved a number of questions and included the question of whether the ACAT was correct that Minotaur had an accrued right at the time it made the application such that the legislative change which introduced s 19(4) into the Licensing Act should not apply to the hearing before the ACAT, and whether the ACAT should instead make its decision on a de novo hearing so as to consider the application of the law existing at the time of the hearing, which would include consideration of the matters under s 19(4).
There were other grounds raised in the appeal but they are not relevantly material.
On 24 March 2015, the ACAT dismissed the occupational discipline proceedings against Mr Bulum. It found that B&T Constructions (ACT) Pty Ltd had “committed a ground for occupational discipline” and noted that the Registrar had discontinued the proceedings against Mr Van Roon. See Construction Occupations Registrar v B & T Constructions (ACT) Pty Ltd [2015] ACAT 24.
No appeal was lodged from that decision.
As a result, the appeal proceedings in this Court became effectively moot, for, even were the appeal to be upheld, the Registrar would not have the ground on which he proposed to rely to refuse the application for a licence to Minotaur.
Minotaur, however, made no inter partes submissions about the effect of that decision on this appeal, its continuing utility or as to what should be done about it.
On 9 July 2015, therefore, the lawyers for the Registrar wrote to the lawyers for Minotaur pointing out that the appeal now had “little practical purpose” and proposing that the appeal be dismissed by consent with no order as to costs. Although the letter was marked “Without Prejudice”, no objection was taken by Minotaur to me reading it and I assume that the privilege was waived.
As these proceedings were listed for hearing on 3 August 2015, the lawyers for Minotaur filed a Notice of Discontinuance, even though it had not heard from Minotaur’s lawyers as to its attitude to costs. The Notice was filed on 27 July 2015.
Helpfully and very properly, the lawyers for the Registrar gave the Court, through my Associate, notice that the appeal would not proceed, though advising that there may be an issue as to costs.
On 30 July 2015, the lawyers for Minotaur advised that it would be seeking costs as a result of the discontinuance.
The proceedings came before me on 3 August 2015 and the Registrar submitted that I should make no order as to costs. Minotaur submitted that the Registrar should pay its costs.
The submissions
The Registrar submitted that the questions of law which were live at the time the appeal was instituted had been overtaken by events that had since occurred and over which events the Registrar had no control, the result of which was that the appeal had become futile.
It was, in the circumstances, proper for the Registrar to discontinue the appeal. It is inappropriate for a court to entertain a hypothetical or merely academic appeal: Inre The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257 at 265-7. Similarly, an appellate court should not be asked to deliver advisory opinions: Director of Public Prosecutions v B (1998) 72 ALJR 1175 at 1181; [25].
The Registrar submitted that there were reasons why there should be no order as to costs:
(a)The appeal was rendered futile by acts that happened after the appeal had been commenced and over which it had no control.
(b)The appeal had come before the Court because the parties had consented to the removal of the appeal to this Court, which was a recognition of the significance and complexity of the questions arising. Importantly, if the proceedings had not been removed to this Court, the ACAT could not have made an order for costs. The Registrar referred to Abbey v Mack (2010) 244 FLR 324 at 333-4; [51]-[56].
(c)In the circumstances, Minotaur could have applied to have the appeal struck out if the Registrar had not discontinued, but did not do so. There was a degree of mutuality in the disposition of the appeal especially as the Registrar remained of the view that the ACAT erred in its application of the law.
Minotaur disputed that the ACAT had erred and submitted that the Court could not decide the question of costs by hypothetically deciding the questions of law the subject of the appeal.
It disputed the submission that the events leading to the present position with the appeal were out of the Registrar’s control since it was the Registrar who brought the proceedings for occupational discipline. The Registrar must have known that the application may possibly have ultimately been resolved in the way it was.
The Registrar had a choice as to whether to bring those proceedings. Though a public authority with a requirement to uphold the law, the Registrar was not required to commence the proceedings against B&T Constructions (ACT) Pty Ltd and Messrs Bulum and Van Roon. It could not, for example, be required to do so by an order in the nature of mandamus.
Minotaur also submitted that, though the proceedings were removed to this Court by consent, it was the Registrar that sought the removal. I did not, however, have any evidence of that. He knew, when doing so or, at least when consenting to the removal, that there was, by the removal, a risk of costs were it not to succeed in the appeal. Minotaur, however, can also be taken to know that.
Minotaur further submitted that the Registrar had not succeeded before the ACAT on these questions of law and it could not be said that it was likely to succeed in this Court.
That the Registrar was a public authority exercising public functions does not render them immune from a costs order.
Consideration
Part 5.3 of the Court Procedures Rules 2006 (ACT) makes provision for appeals from various bodies. Although this is strictly an exercise of the original jurisdiction of the Court (see Appellants v Law Society of the ACT (2011) 252 FLR 209 at 213; [17]) the exercise of the jurisdiction of the court is dealt with under the rules relating to appeals since it is an exercise in judicial review.
Division 2.11.6 of the Court Procedures Rules makes provision for Discontinuance and Withdrawal of civil proceedings.
I do note, however, that Div 2.11.6 of the Court Procedures Rules is not an applied provision so it does not apply to proceedings under Pt 5.3. Nevertheless, there is a separate provision that deals with discontinuances on appeals (including judicial review), namely r 5171, which is, relevantly, in the following terms:
5171Appeals to Supreme Court—discontinuance of appeal
(1)An appellant may discontinue the appeal or a part of the appeal—
(a)without the Supreme Court’s leave, at any time before the hearing of the appeal; or
(b)only with the Supreme Court’s leave, at the hearing or after the hearing and before judgment.
NotePt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.
...
(4)The appellant may discontinue the appeal by filing a notice of discontinuance in the Supreme Court, and serving a stamped copy of the notice on each party to the appeal.
NoteSee approved form 5.8 (Supreme Court—notice of discontinuance of appeal) AF2006-392.
(5)If the appeal or a part of the appeal is discontinued—
(a)the appeal or part of the appeal is abandoned by the appellant; and
(b)the discontinuance does not affect any other appellant in the appeal.
...
(7)If the appeal or part of the appeal is discontinued in a civil proceeding, the appellant must pay the costs of the other parties caused by the appeal or part of the appeal discontinued, unless the Supreme Court otherwise orders.
(8)The Supreme Court may make an order under subrule (7) on application by a party to the appeal or on its own initiative.
It is clear that r 5151(7) of the Court Procedures Rules establishes what might be considered the prima facie position that, unless circumstances require otherwise, the discontinuing party should be ordered to pay the costs of the other party: Haines v Croft (2001) 146 ACTR 59 at 62; [11]. That position, however, may be varied under r 5171(8).
Penfold J has pointed out in Rural and General Insurance Broking Pty Ltd v Australian Prudential Regulation Authority (2009) 231 FLR 199 (the APRA Case) at 208; [54] that this “starting point” does not confine the Court’s discretion, which remains unfettered, though to be exercised judicially.
In the APRA Case, Penfold J was considering the discontinuance of a first instance proceeding under r 1163 of the Court Procedures Rules (which rule appears in Div. 2.11.6), but it seems to me that the same approach is applicable to these proceedings. Rule 1163 is in similar terms to r 5171 (7) and (8). Her Honour summarised, at 213-4; [82], the principles that she divined from the cases as follows:
(a) The costs discretion to be exercised under r 1163(2) where a party is given leave to discontinue is at large, but must be exercised judicially.
(b) There is no presumption that under r 1163(2) costs will be awarded to one or other party. There is no entitlement to costs against the discontinuing party arising simply because in some cases it may be preferable in the interests of finality to enter judgment against the party rather than giving leave to discontinue.
(c) In the exercise of the costs discretion, it is appropriate to have regard to:
(i)whether the behaviour of each party was reasonable until the point when discontinuance was sought; and
(ii)whether seeking to discontinue reflects a surrender by the discontinuing party in a hopeless case or a supervening event or other change in external circumstances that has rendered the action “futile” or pointless.
(d) In relation to the reasonableness of a party’s behaviour, the matters that may be relevant include (but are not limited to), those set out in the following list (extracted from Oshlack ... and Edwards Madigan ...:
(i)whether a party has “by its lax conduct effectively invite[d] the litigation”;
(ii)whether either party has unnecessarily protracted the proceedings;
(iii)whether the successful party has succeeded on a point not argued before a lower court;
(iv)whether a party has prosecuted the matter solely to increase the costs recoverable;
(v)whether a party has obtained only the relief previously offered by another party in settlement offers;
(vi)whether a discontinuing plaintiff had “an arguable case” against the other party;
(vii)whether the “complexity, duration or expense of the litigation could have been reduced if either party had taken a different view of the case”.
(e) In relation to the reason for seeking to discontinue:
(i)a surrender will usually leave the surrendering party to pay the other party’s costs; and
(ii)discontinuance for futility will sometimes mean that no costs order is made.
It seems to me that neither party has, in these proceedings, behaved in an unreasonable manner.
It was not unreasonable for the Registrar to have sought to challenge the decision of the ACAT as it raised important issues that are relevant to the question of whether Minotaur should be licensed or not. In part, that depended on its proceedings in relation to occupational discipline against B&T Constructions (ACT) Pty Ltd and Mr Bulum.
That it succeeded in those proceedings, as the ACAT found against B&T Constructions (ACT) Pty Ltd, is some indication of the reasonableness of its conduct in initiating those proceedings. That it did not succeed against Mr Bulum is not necessarily an indication of unreasonableness, as he was the nominee for the licence. He, however, held a class B licence as nominee and not, as required for the building work that was under consideration, a class A licence. That is a curiosity which, fortunately, I do not have to consider further. Mr Bulum was, however, a director of B&T Constructions (ACT) Pty Ltd. I have read the decision of the ACAT and, while it was clear in its decision that it held that it had no power to make an order against Mr Bulum in its occupational discipline jurisdiction, it did not suggest that there was an impropriety (as opposed to invalidity) in joining Mr Bulum to the proceedings.
It may be accepted that the Registrar chose to pursue the proceedings for occupational discipline and, thus, set in train the proceedings the result of which ultimately rendered this appeal futile. Nevertheless, he had a requirement to do so, given his public duty to ensure that breaches of such discipline are subject to an appropriate response.
That the proceedings against Mr Bulum were dismissed was not a matter within the Registrar’s control, though the ACAT has now identified a basis on which, in the future, a person in the position of Mr Bulum would not be joined in similar proceedings. Were the Registrar to do so in the future, that may well amount to relevantly unreasonable behaviour.
Mr C Erskine SC, counsel for Minotaur, submitted, nevertheless, that the Registrar was always unlikely to be able to maintain the utility of the appeal as he knew at all times that Mr Bulum did not hold, as nominee, the relevant classes of licence. He pointed to the decision of the ACAT which readily found that that was so.
Nevertheless, none of the matters referred to in paragraph (d) of what Penfold J held in the APRA Case, as relevant matters in determining whether a party had acted unreasonably, would reflect in this way on the conduct of the Registrar.
That is, however, not determinative of the outcome of the application for an appropriate costs order.
I do not consider that the fact that the Registrar is a public authority with an obligation to undertake the enforcement of occupational discipline, including the administration of licences, is a relevant factor. As McHugh J said in Oshlack v Richmond River Council (1998) 193 CLR 72 at 107, a court judges persons “by their conduct not by their identity”. As Evans J put it in State of Tasmania v Anti-Discrimination Tribunal (2008) 17 Tas R 227 at 240; [25]:
... ordinarily circumstances personal to the parties, and an imbalance between the capacities and the resources of the parties, are not relevant to the exercise of the costs discretion.
See also South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 at 311 and Ohn v Walton (1995) 36 NSWLR 77 at 79.
Nevertheless, in this case, I note the following:
(a)Both parties knew that, when consenting to the appeal being removed to this Court, they were exposing themselves to a costs order in the proceedings.
(b)The discontinuance was not the result of any settlement between the parties and, though it was proper in the circumstances for the Registrar to discontinue the appeal, it was not in the face of any strike out application made by Minotaur.
(c)It is not possible to speculate as to whether the Registrar or Minotaur would have been inevitably successful on the appeal.
(d)Neither party conceded that the other party was likely, or was more likely, to succeed on the appeal and both parties maintained their positions, namely that the Registrar considered that the decision of the ACAT was wrong and Minotaur that it was correct. Thus, it could not be said that the Registrar had conceded that the appeal had no prospects of success.
(e)While the fact that made the appeal futile was a decision of a third party, namely the ACAT, it was the decision in a proceeding in which the Registrar was involved and, indeed, which he initiated, though under a public duty. Neither party, however, caused the result. Nevertheless, those proceedings, commenced by the Registrar after his decision to refuse Minotaur’s application, were central to whether the Registrar may have had a basis for refusal of the licence application by Minotaur.
(f)While the Registrar had an interest in the outcome of the appeal that had a direct relevance to Minotaur, he also had a wider interest as the decision of the ACAT had a long-term effect on the performance of his functions and on his jurisdiction.
(g)As noted above, both parties conducted the appeal in a reasonable manner and both the Registrar had a reasonable basis for bringing it and Minotaur had a reasonable basis for defending it.
(h)It seems to me unlikely that, if the appeal had not been removed into this Court, then, having regard to the regime of costs in that jurisdiction (see Appellants v Law Society of the ACT at 225-6; [88] – [93]), no order would have been made as to costs.
(i)In my view, r 1707 of the Court Procedures Rules applies and, in that sense, Abbey v Mack is of no assistance.
The Registrar is not “surrendering” (see APRA Case at (e)(i), quoted at [48] above) because he still considers that the ACAT’s construction of the Licensing Act is wrong. He is “surrendering” in the sense that the ACAT has found that his application for occupational discipline against Mr Bulum was not maintainable and the Registrar did not challenge that.
There is no doubt that the proceedings were relevantly “futile” (see APRA Case at (e)(ii) quoted at [48] above) and that this was not a result of any direct action by either party. I do not consider that the commencement of occupational discipline against Mr Bulum could mean that I should make such a finding.
It is relevant that what may be called the “starting point” is that the discontinuing party should pay the other party’s costs.
Having regard to these circumstances, the matter is finely balanced. I am of the view, however, and not without some hesitation, that each party should pay its own costs of the discontinuance of the appeal in this Court. There should be no order as to costs.
I shall order accordingly.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Leila Tai Date: 14 September 2015 |
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