Humble & Construction Occupations Registrar & Ors (Administrative Review) - [2011] ACAT 17

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HUMBLE & CONSTRUCTION OCCUPATIONS REGISTRAR AND ORS (Administrative Review) [2011] ACAT 17

AT 113 of 2010
Catchwords: OCCUPATIONAL DISCIPLINE – Construction Occupations Registrar – rectification order – tribunal’s procedures – failure to comply with orders – failure to appear at hearings - obligation of applicant to prosecute application assiduously – circumstances warranting strike out of application if further failure to comply with orders

ACT Civil & Administrative Tribunal Act 2008
Ss 44(2) (e), 74(2) (b), 56 (d)

Tribunal: Ms L. Crebbin, General President

Date of Orders: 18 February 2011
Date of Reasons for Decision: 23 February 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 10/113

BETWEEN:

JASON WILLIAM HUMBLE
Applicant

AND:

CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
CATHERINE EVERITT &
JEFFREY DEVINE
Party Joined

TRIBUNAL: Ms L. Crebbin, General President

DATE: 23 February 2011

ORDER

The applicant is to comply with orders 2 and 4 of the orders made on 12 January 2011 by:

i)Notifying the tribunal on or before 3pm on 25 February 2011 of any dates in March 2011 that are not suitable for him to participate in mediation, and;
ii)Filing and serving a statement of facts and contentions on or before 3pm on 4 March 2011.

Order 1 of the orders made on 12 January 2011 is discharged and the application struck out on the applicant’s failure to comply with order 1(ii) above.

………………………………..

Ms L. Crebbin
General President

REASONS FOR DECISION

The tribunal has made orders today that give the applicant further time to comply with orders made on 12 January 2011 and that strike out his application if he fails to do so.
Several sections of the ACT Civil & Administrative Act 2008 (the ACAT Act) give the tribunal power to dismiss an application without holding a hearing. The tribunal has power to dismiss an application if the applicant fails to appear either personally or by a representative at the time set for the hearing of the application (section 44(2) (e) of the ACAT Act).
The tribunal may strike out an application if a party fails to comply with a tribunal order without reasonable excuse (section 74(2) (b) of the ACAT Act).
Further under section 56(d) of the ACAT Act, the tribunal has a broad general power to take any action that it considers appropriate in a matter, provided that the action is consistent both with the ACAT Act and the authorising law that relates to the application. Example 2 of the examples given for section 56(d) is the dismissal of an order for want of prosecution.
Dismissing or striking out an application without holding a hearing is a significant step. The multiple powers given to the tribunal to do so indicate a clear intention on the part of the legislature to allow the tribunal to take such action in an appropriate case.
Before exercising the power, the tribunal must observe procedural fairness by ensuring that the applicant has notice of the risk that their application might be finalised in this way, an opportunity to provide an excuse for any default and an opportunity to remedy any default.
In this case, the applicant lodged an application seeking review of a decision made by the Construction Occupations Registrar on 29 November 2010. The decision under review was a decision to issue a Rectification Order requiring the applicant to carry out substantial rectification works in respect of a swimming pool and deck constructed by the applicant in 2008 for Ms Everitt and Mr Devine. His application indicated that he was represented by a lawyer.
The application said that the applicant received the decision on 15 November 2010. The Rectification Order required the applicant to commence the rectification work specified in the order within 30 days of the date that the order was given to him and to complete it by 18 February 2011.
A summary of the tribunal’s dealing with application is as follows:
29 November 2010: Application received and directions made in chambers for the filing of documents (“T” documents) by the respondent within 14 days. Application listed for directions on 17 December 2010 at 9.30am. Listing notices posted.
9 December 2010 ACT Government Solicitor files and serves a notice advising that he acts for the respondent.
13 December 2010 Tribunal receives application to join Catherine Everitt and Jeffrey Devine as parties to the proceedings.
14 December 2010 Order made in chambers to join parties. T documents filed.
17 December 2010 Directions hearing. No appearance by on or behalf of applicant. Telephone calls to applicant’s representative unanswered. Orders made requiring respondent to file a corrected statement of reasons. Matter adjourning for a further directions hearing to be held on Wednesday 11 January (sic) 2011 at 9.00am. Orders and listing notice posted to the applicant, the respondent’s representative and parties joined. The listing notice has the following notation:
“The applicant is required to appear in person or by a representative for this directions hearing. The tribunal may dismiss the application or take other action under section 44 of the ACT Civil & Administrative Tribunal Act 2008 in the absence of the applicant.”
20 December 2010 Tribunal emails the applicant’s representative and respondent’s representative to clarify that the adjourned directions hearing is on Wednesday 12 January 2011 at 9.00am. Corrected order made and new listing notices posted to applicant and respondent’s representative and the parties joined.
12 January 2011 Applicant and his representative; respondent and representative and party join attend directions hearing. An interim order is made staying the rectification order. Orders made in the presence of the applicant requiring him to advise dates on which he would not be available for mediation within 7 days and to file and serve a statement of facts and contentions by close of business on 2 February 2011. Orders posted to parties.
19 January 2011 Tribunal emails applicant’s representative asking for dates in accordance with orders.
28 January 2011 Tribunal emails applicant’s representative again asking for dates.
31 January 2011 Tribunal telephones applicant’s representative seeking a response. Applicant’s representative sends the tribunal an email advising that she no longer acts for the applicant.
1 February 2011 Applicant’s representative telephones the tribunal to say that she is acting for the applicant and expects to have instructions from him later that day.
2 February 2011 Applicant does not file and serve statement of facts and contentions as required. No contact from the applicant’s representative.
10 February 2011 Tribunal receives letter from respondent’s representative asking for the application to be re-listed for directions. The letter foreshadows an application to dismiss the substantive application if the applicant does not comply with orders. Letter copied to applicant’s representative and the parties joined.
14 February 2011 Order made in chambers as follows:
“The application is listed for directions at 9.00am on 18 February 2011 to consider the applicant’s apparent non-compliance with directions 2 and 4 of the directions dated 12 January 2011 and the further conduct of the application.
Note: The Tribunal notes that the parties or their representatives may participate in the directions hearing by phone or in person. The tribunal may proceed in the absence of any party.”
Listing notices and a copy of the order are sent to the applicant as well as to the applicant’s representative and other parties.
18 February 2011 No appearance by or on behalf of the applicant. The respondent applies to have the application dismissed as foreshadowed.
Neither the applicant nor his representative has made any contact with the tribunal or the respondent since 1 February 2011.
The summary shows that the applicant has not taken any step to progress his application in the 2½ months since he filed the application. He has not complied with orders. He failed to appear at two directions hearings. Both the applicant and his representative were given notice that the tribunal could make orders in his absence and that on 18 February 2011, the tribunal intended to consider his failure to comply with the orders. Had he attended, he would have had an opportunity to provide an excuse for the failure.
The law that authorises these proceedings is concerned with, inter alia, rectification of work where the Construction Occupations Registrar is satisfied a relevant Act has been or is being, contravened. The tribunal has made an interim order staying the rectification order to give the applicant an opportunity to have the Registrar’s decision reviewed. Having enlivened the Tribunal’s jurisdiction and obtained the benefit of a stay of an order requiring him to undertake significant work, it is incumbent on the applicant to prosecute his application assiduously and in a timely fashion.

In these circumstances, it is appropriate that the applicant be given one further opportunity to comply with the tribunal’s orders. The interim order staying the operation of the rectification order will be automatically discharged and his application struck out if he fails to comply with the orders.

………………………………..

Ms L. Crebbin
General President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AT 113 of 2010

APPLICANT:                JASON HUMBLE
RESPONDENT:            CONSTRUCTION OCCUPATIONS REGISTRAR
PARTY JOINED:            CATHERINE EVERITT & JEFFREY DEVINE

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT: K. Judd, ACT Government
PARTY JOINED:

OTHER: APPLICANT: no appearance

RESPONDENT:
PARTY JOINED:     Mr Devine
TRIBUNAL MEMBER/S:        Ms L. Crebbin, General President

DATE/S OF HEARING: 18 February 2011 PLACE: CANBERRA

DATE/S OF DECISION: 23 February 2011 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: