Geocon Constructors (ACT) Pty Ltd v Construction Occupations Registrar (No 2) (Administrative Review)

Geocon Constructors (ACT) Pty Ltd sought to have the Construction Occupations Registrar’s decision to make a rectification order set aside. The Construction Occupations Registrar opposed the application, while the party joined, which had sought the order in the first place, proposed that the preferable outcome was to substitute a decision not to make a rectification order. The applicant’s grounds of review challenged the adequacy of the order’s identification and description of the defects and the scope of the work required to rectify them, as well as the adequacy of the reasons provided for the decision to make the order. The applicant also contended that the party joined’s failure to provide updated evidence about defects meant the order should not be made. The respondent contended that the order was justified and that the party joined’s failure to provide updated evidence did not affect the validity of the order. The applicant and the party joined conceded that a rectification order should be made in respect of certain defects, but there was no agreement about the scope of the work that should be required to rectify them. The parties also did not agree about whether a rectification order should be made in respect of other defects.

The Tribunal held that the order should be set aside and substituted by a decision not to make a rectification order because the party joined had not been willing to abide by the outcome of the regulatory process. The Tribunal concluded that the party joined’s failure to provide updated evidence about the defects did not affect the validity of the order. However, the Tribunal found that the party joined could not reserve its position in relation to the applicant’s proposed scope of work and repair methodology, including whether it would cooperate to allow the applicant to comply with the rectification order depending on whether it agreed with the registrar’s decision to accept the applicant’s programme of works. The Tribunal noted that a rectification order requires an entity to take stated action to rectify non-compliant work, but does not state how the stated action is to be done. The responsibility to develop a suitable programme of works lies with the entity alone, and the order may require the entity to provide written information to the registrar to enable the registrar to attain the necessary state of satisfaction. The Tribunal found that the party joined’s position meant that it was not appropriate to make a rectification order at this stage.

The Tribunal vacated the second day of the hearing, as the matters that remained to be determined could be resolved on the first day. The Tribunal ordered that the decision to make a rectification order be set aside and substituted by a decision not to make a rectification order, and that the second day of the hearing be vacated. The Tribunal left open the option for the registrar to issue a fresh notice of intention to the applicant and for the parties to restart the process by providing the registrar with whatever further information they thought necessary.