Cousins v Construction Occupations Registrar

[2023] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cousins v Construction Occupations Registrar

Citation: 

[2023] ACTSC 305

Hearing Date: 

8 September 2023, 13 October 2023

Decision Date: 

30 October 2023

Before:

McWilliam J

Decision: 

(1)     The proceeding is dismissed.

(2)     The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords: 

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application for review of decision of Construction Occupations Registrar – where proceedings pending in ACAT – whether Supreme Court is an inappropriate forum for determination of issues raised – where full merits review available in ACAT – matter involves contested questions of facts and law – where legal questions are hypothetical without settled facts – Supreme Court proceedings dismissed 

Legislation Cited: 

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 83, 84

Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5, 8

Construction Occupations (Licensing) Act 2004 (ACT) ss 35, 38, 123A, 123C

Construction Occupations (Licensing) Regulations 2004 (ACT) reg 42A, sch 4

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules (2006) (ACT) rr 3550, 3566

Cases Cited: 

BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21

Fekete v Constructions Occupations Registrar [2013] ACTSC 4

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Kelly v Coats (1981) 51 FLR 69

Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482

Commissioner for Taxation v Futuris Group [2008] HCA 32; 237 CLR 146

Koundouris v Construction Occupations Registrar [2014] ACTSC 68

Parties: 

John Bernard Cousins ( Plaintiff)

Construction Occupations Registrar ( Defendant)

Representation: 

Counsel

A Greinke ( Plaintiff)

D Ng (8 September 2023), B Buckland (13 October 2023) ( Defendant)

Solicitors

MV Law ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 285 of 2023

McWILLIAM J:          

Introduction

1․The plaintiff in this proceeding is a builder, Mr John Bernard Cousins. He is the recipient of an order for rectification, dated 19 June 2023 (Order), issued pursuant to s 38 of the Construction Occupations (Licensing) Act 2004 (ACT) (COL Act).  The Order relates to building work carried out by him as an owner-builder on a residential home.

2․He has commenced a judicial review proceeding in this Court by Originating Application filed on 14 July 2023 against the Construction Occupations Registrar (Registrar). Relief is sought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (Judicial Review Act), with the plaintiff seeking to set aside both the Order and the decision founding the Order, which was made on the same day. 

3․By application filed 10 August 2023, the Registrar has applied to dismiss or stay the entire proceeding, because the plaintiff has also instituted merits review proceedings in the ACT Civil and Administrative Tribunal (Tribunal).  The Registrar advanced their application on the ground that there is otherwise adequate provision in the legislation for determination of the dispute, and this Court should exercise its discretion not to hear the matter. Whether or not that is so is the issue presently before the Court for determination.  The plaintiff opposed the application and sought that the proceedings remain listed for hearing in this Court.  For the reasons that follow, the Registrar’s application will be allowed. 

The judicial review proceeding

4․It is necessary to first understand what the substantive proceeding is about, so as to then work out whether it is appropriate to grant the Registrar’s application to stay or dismiss that proceeding.

5․The grounds for judicial review include that the decision involved errors of law and was an improper exercise of power, for a number of reasons, which may be described as follows:

(a)Failure to consider: The Registrar failed to have regard to a submission made by the plaintiff.  The plaintiff argues that the conduct the subject of the Order (being the building works said to be defective and requiring rectification) occurred more than 10 years before the making of the Order.  Under the COL Act as it applied at the time, a rectification order cannot be made if a submission is made that satisfies the Registrar that the conduct occurred more than 10 years ago.

(b)Order made out of time: The plaintiff’s position is that the work was complete in 2003 and a private certifier inspected the works in December 2003, providing a Building Inspection Record (but not a Certificate of Occupancy).  He therefore says the 10-year period for making a rectification order had expired by 2014 and the Registrar was out of time to issue the Order.

(c)Retrospective application: In making the decision to issue the Order, the Registrar erred in applying new provisions introduced in the COL Act retrospectively.  This relates to the fact that the COL Act was amended in 2019 to vary the circumstances in which the Registrar can issue a rectification order. Under the present amended iteration of s 35 of the COL Act, the “10-year period” is defined to start either on the day the act that caused the contravention happened or ended, or by reference to when particular certificates were issued, including (relevantly here) a Certificate of Occupancy.  Here, the Certificate of Occupancy and Use was issued in 2017.

6․While these issues may be said to involve separate questions of law, the underlying factual matrix on which they are based is in dispute between the parties. The Registrar’s position is that the works were not completed in 2003 and that building works continued to be performed up to 2017. The current version of s 35 of the COL Act was not retrospectively applied; it applied because when the Registrar came to make the decision in 2023, the 10-year period from the date the Certificate of Occupancy was issued had not expired.  The COL Act (as amended in 2019) was therefore the version of the statute applicable to the work that had been previously carried out, notwithstanding whatever inspection record was provided in 2003.

The Registrar’s application to dismiss or stay the proceeding

7․The current application before the Court seeks an order that the proceeding be dismissed, pursuant to r 3566 of the Court Procedures Rules (2006) (ACT) (Rules).  In the alternative, the Registrar seeks an order under the same rule that the proceeding be stayed until further order.

8․Rule 3566 deals with the power of the Court to stay or dismiss applications in certain circumstances.  The relevant parts of the rule are as follows:

3566Judicial review—power of the court to stay or dismiss applications in certain circumstances     

(1)The court may, by order, stay or dismiss a judicial review application, or a claim for relief in a judicial review application, if the court considers that—

(a)it would be inappropriate—

(i)   for the proceeding in relation to the application or claim to be continued; or

(ii)     to grant the application or claim (including, for an application for a statutory order of review, because the Judicial Review Act, section 8 (2) (b) (Effect of Act on other rights) applies); …

…

(2)A power of the court under this rule may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.

(3)The court may make an order under this rule on application by a party to the proceeding or on its own initiative.

…

9․Rule 3566(1)(a)(ii) refers to s 8(2)(b) of the Judicial Review Act.  Among other things, that section provides a discretion to the Supreme Court in a proceeding brought under the Judicial Review Act, to “refuse to grant an application for review” if “adequate provision is made by a law other than [the Judicial Review Act] under which the applicant is entitled to seek a review of that matter”: s 8(2)(b)(ii).

10․What constitutes a “review” is defined in s 8 of the Judicial Review Act. Material to the present case, part of the definition includes a review by way of reconsideration, rehearing or appeal.

11․The Registrar attempted to have the Court exercise its power on its own initiative at the earliest possible time, by raising the issue at the first return date for the proceeding on 31 July 2023.  The apparent reluctance to deal with the issue at a directions hearing was the catalyst for the bringing of the application.  

The Court’s Task

12․Rule 3566 is located in Part 3.10 of the Rules, which applies to proceedings brought either in the inherent supervisory jurisdiction of the Court, or under the Judicial Review Act, described in the Rules as a statutory order of review (r 3550). The principled exercise of the discretion to refuse relief under r 3566 is the same whether a plaintiff has invoked the inherent supervisory jurisdiction of the Court or the Judicial Review Act, as was the case here.  That is relevant because some of the authorities applied below draw on well-established discretionary principles arising in the context of proceedings for prerogative relief.

13․The starting point for the present application is that the Court is properly seized of the jurisdiction to hear and determine the proceeding.  The focus of r 3566 is on whether the proceeding is “inappropriate” to continue in the Court or to grant the application for relief.  That involves the exercise of discretion, with the onus lying on the Registrar to persuade the Court to refrain from exercising its jurisdiction under the Judicial Review Act: see Fekete v Constructions Occupations Registrar [2013] ACTSC 45 (Fekete) at [9].

14․The judicial discretion is to be exercised, not capriciously, but in a reasonable manner according to the circumstances: Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 519.

15․In that regard, there is established authority guiding the principled exercise of the discretion.  It is convenient to refer to Commissioner for Taxation v Futuris Group [2008] HCA 32; 237 CLR 146 (Futuris) at [10] and [156] as an example of where the general principle is succinctly captured, namely that where the statute has expressly provided an adequate alternative remedy as the ordinary and regular recourse for an aggrieved person, such as full merits review, the Court has a discretion to decline to grant a remedy by way of judicial review.

16․The rationale behind this principle was earlier elucidated in the dissenting but oft-cited judgment of Walsh J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427 (most recently applied at appellate level in BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21 at [86]) as follows:

In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.  In other words, I think that it will ordinarily be a wise exercise by the Supreme Court of the discretion which it has under s 10 of the Equity Act to decline to undertake the tasks which have been committed by the Parliament to a specialized tribunal.

17․That does not mean that special or exceptional circumstances are required before the Court may exercise the discretion:  Kelly v Coats (1981) 51 FLR 69 at 70.

18․Kirby J in Futuris went on at [157]-[159] to state as follows (references omitted, emphasis added):

157.Discretionary refusal of relief: The refusal of relief to an applicant for judicial review because other and more appropriate remedies are available by law is not a new concept. The availability of such an alternative remedy has always been a relevant consideration to the grant, or refusal, of such relief.

158.In 1780, a matter arose that involved the invocation of the prerogative writ of certiorari to challenge a criminal conviction. Lord Mansfield CJ remarked that a court would not grant the writ "if they had power to do it, for [the applicant's] objections are, more properly, the subject matter of an appeal, and the defendant has not chosen to resort to that remedy".

159.A long line of English and Australian authority in respect of writs affording judicial review has repeatedly made the same point. Where other remedies produce the same or better legal outcomes, courts may apply the criteria of appropriateness; convenience; consideration of the public interest in the deployment of judicial remedies; and avoidance of collateral attacks on decisions that are susceptible to broader appellate reconsideration.

19․That non-exhaustive description is of assistance in explaining the kinds of matters that the Court takes into account when working out whether to refuse any grant of relief, despite having the jurisdiction to grant it.

Is adequate provision for review made in another statute?

20․It is not disputed by the plaintiff that the Registrar’s decision and the Order that was made consequent upon it constitutes a ‘reviewable decision’ (through a combination of s 123A of the COL Act and reg 42A and sch 4 of the Construction Occupations (Licensing) Regulations 2004 (ACT)). Full merits review is available in the Tribunal for such a reviewable decision: s 123C of the COL Act.  The plaintiff has availed itself of that procedure, by commencing proceedings in the Tribunal which are awaiting the outcome of the present proceedings.

21․In Koundouris v Construction Occupations Registrar [2014] ACTSC 68 (Koundouris), Mossop M (as his Honour then was) considered circumstances that were of almost identical similarity to those existing here, namely judicial review proceedings sought in respect of a rectification order made by the Registrar, with merits review proceedings also commenced in the Tribunal. His Honour stated at [16]:

In the present case, I am satisfied that I should stay or dismiss the proceedings under rule 3566. My reasons for that conclusion are as follows.

(1)Of fundamental importance is the fact that there is an entitlement to full merits review in ACAT and that entitlement has been exercised by the plaintiff. The ACAT has the power to determine all issues relating to proceedings in a manner which will allow it to find the relevant facts, decide questions of law and cure any of the procedural defects outlined in [the] issues [identified] above. …

22․The plaintiff focused here on the retrospectivity issue and argued that it was a discrete question of law which was of significant public importance.  The plaintiff submitted that it was expeditious and therefore appropriate for the Supreme Court to determine that question first.  The plaintiff drew attention to Fekete, where Sidis AJ decided that it was appropriate for a similar proceeding to continue in the Supreme Court because the issues raised in the application “extended beyond the facts of the case and had potentially far-reaching consequences for those engaged generally in the building industry” (see Fekete at [17]).

23․The plaintiff further argued there was no ability for the Tribunal to provide an interim ruling on time limits, and that the Tribunal cannot conclusively determine the legal question as to retrospectivity between the parties, relying on Koundouris at [16(5)], where Mossop M accepted that the Tribunal, in its administrative review jurisdiction, did not have:

…the capacity to conclusively determine between the parties a question of law in a manner that prevents that decision from being subject to collateral attack. 

24․His Honour was referring to a litigant’s ability to seek judicial review of the Registrar’s decision in the Supreme Court on a question of law, regardless of any finding on the same legal question made by the Tribunal as part of the merits review, as the plaintiff has done here.

25․The plaintiff accepted that questions of law may be referred by the Tribunal to the Supreme Court upon request by a party or on its own initiation (s 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act).  The ACAT Act thus provides a mechanism to deal with the issue of collateral attack.  However, the concern was that the Tribunal would not so refer the matter and would instead deal with the legal questions as part of the merits review.  The plaintiff feared that the consequence of the Tribunal taking such a course would result in him likely incurring significant costs in pursuing full merits review, only to then separately deal conclusively with legal questions in the Supreme Court, either through an appeal or judicial review, which may then require the matter to be remitted. 

26․I will deal with concerns about cost, time and convenience separately below.  Confining the consideration to whether there is an adequate alternative remedy, there is an adequate alternative statutory remedy available under the COL Act.  It is adequate for two reasons.  First and most significantly, it provides for full merits review of the decision in the Tribunal.  Second, the legislation provides an avenue for any questions of law to be conclusively determined by the Supreme Court, a process that would serve the parties well in cases where the only issue was a legal question that would dispose of the entire proceeding.

27․I am satisfied that the availability of full merits review of the decision in the Tribunal together with a statutory means for referral of legal questions means that there is adequate provision for review available under the COL Act. Accordingly, s 8(2)(b)(ii) of the Judicial Review Act applies.

Is it inappropriate for the proceeding to continue in the Supreme Court?

28․The plaintiff argued that the Supreme Court was the more appropriate forum to expeditiously dispose of the matter, which on their submission involves a discrete legal (and not factual) question only.  A final hearing date has already been listed in this Court (22 November 2023), whereas no steps have yet been taken in the Tribunal, due to those proceedings awaiting the outcome in the Supreme Court. The costs, convenience and potential for non-binding determinations of law all favoured the position that it was appropriate for the Supreme Court judicial review proceeding to continue.

29․The Registrar argued that the present proceeding will involve contested questions of both fact and law.  The Registrar’s submission was effectively that separating the legal questions in the judicial review proceeding (set out above) from the factual issues, including the dispute as to when the works were completed, would be a false economy for two reasons. 

30․First, if the factual position were found in the Tribunal to be that for which the Registrar contends, some questions of law may fall away.  Ultimately, the legal questions in the judicial review proceeding may not arise. 

31․Second, even if the factual position as to when the works were completed is resolved in favour of the plaintiff, the Court only has a partial view of the facts before it on the judicial review proceeding.  The discretionary decision to issue a rectification order includes not only jurisdictional facts but other factual findings.  While the Court is able to receive evidence on jurisdictional facts, it may then pose difficulties for a Tribunal to unravel or unpick the factual and legal findings (which would be binding on it) in as part of the ongoing merits process requiring further facts to be taken into account (such as arguments made by the present owners, who are not parties on the judicial review proceeding but may be parties in the Tribunal proceeding).

32․The Registrar relied heavily on the case of Koundouris being directly on point and the reasoning of Mossop M (in dismissing the judicial review proceeding) being equally applicable to the circumstances here. A truncated summary of the key reasons Mossop M gave (at [16]) for dismissing the proceeding in the Supreme Court is as follows:

(a)There was an entitlement to full merits review which had been exercised by the plaintiff.

(b)His Honour was cautious about whether the matter could be determined on a question of law, such that there would be utility in maintaining the judicial review proceedings in order to determine the discrete legal question.

(c)His Honour was not satisfied that the question of law could be determined without the determination of contested questions of fact.

(d)The question of law giving rise to the judicial review proceedings was not certain to resolve the proceedings.

(e)The question of law giving rise to the judicial review proceedings was not as straightforward as the plaintiff had submitted.

(f)There was the potential for fragmentation of the judicial review proceedings (due to the proceeding being allocated to the Master, with different appeal rights arising).

(g)The proceedings in the Tribunal also involved additional parties, being the owners of the property in question.  The Tribunal proceedings have different costs consequences.  His Honour considered there was a public interest in permitting interested parties to be heard in relation to decisions with a lower costs exposure than would occur in the Supreme Court.

(h)Section 84 of the ACAT Act was available to achieve a binding determination on a question of law.

(i)Although the question of law sought to be agitated was one of statutory construction, it was not an issue of “broader significance” of the kind referred to in Fekete (which led to Sidis AJ determining that the matter should remain in the Supreme Court).

33․I agree that the considered reasoning of Mossop M in Koundouris is applicable to the present circumstances.  Apart from the short point about fragmentation of legal proceedings (a matter no longer of concern in this Court), every one of the reasons given by Mossop J has resonance for the circumstances of the present dispute between the parties.

34․Although there are legal issues that the Court could determine, they are properly to be seen as hypothetical, because they depend on a particular factual matrix being established, which is disputed and awaits determination in the Tribunal.  I understand why the plaintiff sought to characterise the dispute as one of law, but it really is an argument involving a mixed question of law and fact.  It would not be appropriate to carve out a sole question of statutory construction (relating to retrospectivity) divorced from the underlying facts.  That would be tantamount to an advisory opinion.

35․The Court’s limited fact-finding jurisdiction on judicial review (that is, limited to jurisdictional facts) means that the factual controversy should be resolved first in the Tribunal, so as not to create a patchwork of fact findings between two different finders of fact for different purposes (adopting the phraseology of counsel for the Registrar). 

36․Even assuming (without deciding) that the legal question involved a jurisdictional fact that may equally be determined by this Court on appropriate evidence, that is not the only factual issue in the proceedings. Critically here, s 35 of the COL Act permits the Registrar to make a rectification order if (among other things) the entity has contravened the COL Act and the Registrar is “satisfied” it is “appropriate” to make a rectification order in relation to the entity. 

37․In other words, the power to order rectification is a discretionary power based on satisfaction about the appropriateness of making the order.  Because the Tribunal steps into the shoes of the decision-maker on merits review, even if the Tribunal were against the plaintiff on either the fact of date of completion or the questions of law raised in the judicial review proceeding, there is still a possibility that the Tribunal may find that it is not satisfied it is appropriate to make a rectification order.  Such a course would mean that any extant legal controversy to be resolved by way of judicial review would fall away.

38․I indicated to the parties during the hearing that I intended to take the course that I considered would best achieve the objectives of s 5A of the Court Procedures Act 2004 (ACT). There may be some force in the plaintiff’s submission that the determination of the retrospectivity issue may have consequences for other matters.  Given the matter has been listed for final hearing, if the case were able to proceed on an agreed set of facts and the point of law was discrete and likely to fully dispose of the matter, there would be clear utility in the matter being heard and determined.  The sticking point is the factual controversy.

39․As another alternative, I gave the parties the opportunity to agree to having the entire matter referred by the Tribunal to the Supreme Court (s 83 of the COL Act), so as to use the hearing date in November, enable all the necessary factual findings to be made together with resolving the legal questions and avoid the fragmenting of the litigation.  However, the parties did not take that course.

40․In the absence of any agreement on the facts, bypassing the ordinary statutory procedure for review would create more problems than it solves in this case.  The Court would be proceeding on an incomplete factual substratum with no certainty that the determination of the legal questions would finally resolve the dispute between the parties, exposing the parties to costs consequences in the process that do not exist in the Tribunal.

41․While I am sympathetic to the plaintiff’s attempt to narrow the legal dispute in a timely manner, the plaintiff has not yet sought a referral under s 84 of the ACAT Act, so that again, the concern is hypothetical. The Tribunal must be taken to appreciate the limits of its jurisdiction on questions of law and if there is a decisive legal point that will dispose of the matter without the need to embark upon costly merits review proceedings, not be too reticent to invoke s 84 of the ACAT Act in the interests of certainty and efficiency.  However, matters of referral are for the Tribunal to consider in the particular factual context and circumstances before it, including the timing of any referral within the proceedings.  For example, and without in any way suggesting what the Tribunal ought do in this case, it may be that the Tribunal makes certain factual findings before dealing with whether to refer questions of law to the Court, because the legal question of retrospectivity may not ultimately arise for determination. 

Conclusion

42․For these reasons, it is inappropriate for the proceeding to continue.  As a matter of discretion, I propose to exercise the power under r 3566 as the same or a better outcome is available through pursuing the proceeding in the Tribunal. 

43․I have given consideration to whether there is any utility in staying the proceeding as opposed to dismissing it.  Mossop M in Koundouris saw no utility in staying the proceeding that came before his Honour (see [18]) and I am of the same view here.  Dismissing the proceeding will not prevent the plaintiff from pursuing judicial review relief, if he chooses to do so, including agitating any of the particular legal questions in any subsequent proceeding once the Tribunal proceeding is concluded. 

44․Further, and again consistent with the view held by Mossop M in Koundouris, it is important to make it clear, at least for the extant litigation in the Tribunal, that the proceeding in this Court has been finally determined. 

45․As to costs, the appropriate order is for costs to simply follow the event.

46․Accordingly, the Court orders:

(1)The proceeding is dismissed.

(2)The plaintiff is to pay the defendant’s costs of the proceedings.

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: