Jan Ruckschloss v Craig Simmons
[2013] ACTSC 49
•22 March 2013
JAN RUCKSCHLOSS v CRAIG SIMMONS & ANOR
[2013] ACTSC 49 (22 March 2013)
JUDICIAL REVIEW - application for interim injunction – prima facie case – balance of public safety interests against damage to reputation
Administrative Decisions (Judicial Review) Act 1989 (ACT)
Planning and Development Act 2007 (ACT)
Construction (Occupations) Licensing Act 2004 (ACT)
Smith v New South Wales Bar Association (1992) 176 CLR 256
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd 1968) 118 CLR 618
No. SC 414 of 2012
Judge: Sidis AJ
Supreme Court of the ACT
Date: 22 March 2013
IN THE SUPREME COURT OF THE )
) No. SC 414 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JAN RUCKSCHLOSS
Plaintiff
AND:CRAIG SIMMONS in his capacity as Director, Construction Services Branch, Department of Environment & Sustainable Development
First Defendant
AND:DAVID MIDDLEMASS in his capacity as ACT Construction Occupations Registrar
Second Defendant
ORDER
Judge: Sidis AJ
Date: 22 March 2013
Place: Canberra
THE COURT ORDERS THAT:
The application for the interim injunction be refused, unless the plaintiff provides an undertaking to the court that until further order, any engineering designs that he prepared for the purpose of projects to be constructed in the Australian Capital Territory will be checked and certified by an engineer approved by the second defendant.
The proceedings are adjourned to allow the parties to attempt to agree on the terms of the undertaking and to deal with the issue of costs.
In this matter the proceedings came before the court on 15 and 25 February 2013, and 5, 6 and 14 March 2013 on the application of Mr Jan Ruckschloss filed on 6 December 2012. The application seeks the review under the provisions of the Administrative Decisions (Judicial Review) Act 1989 of actions proposed by the defendants that will potentially prejudice the plaintiff’s practice in the Australian Capital Territory as a structural engineer.
The Proceedings to Date
On 25 February 2013 I heard argument on the question of whether, pending determination of the primary issue, that is, whether the defendants have power to take the action indicated in notices issued to the plaintiff, the relief sought in paragraph 4(b) of the originating application should be granted. The relief sought in that paragraph was:
An interlocutory order restraining the First and/or Second Defendant from imposing any condition on the licences of building surveyors that in any way relate to the Plaintiff until further order of the Court;
At the conclusion of the proceedings on 25 February 2013, I agreed that the parties might forward to the court any further authority that they considered to be of assistance in the determination of that interlocutory application. On 5 March 2013 at the request of the plaintiff the matter was re-listed. The plaintiff sought leave to re-open his case to rely on his affidavit evidence of 6 December 2012 and 4 March 2013.
This change of approach was said to have been prompted by an exchange of views that took place between myself and Mr Purnell SC, appearing for the plaintiff, commencing on page 55 of the transcript of 25 February 2013. This exchange concerned the question of whether, in deciding whether or not to grant the injunctive relief sought and having regard to the public interest, it was necessary to deal with the grounds upon which the defendants claimed to have power to deal with the plaintiff in the manner proposed.
The application was opposed by the defendants who pointed to the decision taken by the plaintiff to provide no response to notices issued by them, calling upon him effectively to show cause why the second defendant should not proceed with the action proposed in those notices.
This decision was communicated in a letter of 20 February 2013 in which the plaintiff’s solicitors wrote to the defendants’ solicitor advising that he did not intend to respond to the notices in order to avoid the expense involved before the court ruled on the question of whether the second defendant had power to take the action proposed.
The defendants referred to a number of authorities that dealt with the circumstances in which leave to amend pleadings should be granted or refused, much of which focused on changes by the parties in their tactical positions. It was clear that this is what occurred in this case. Nevertheless, the authorities to which I was referred dealt with other issues, including delay and prejudice, that militated against granting leave to amend: Smith v New South Wales Bar Association (1992) 176 CLR 256; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
In this case matters advanced rapidly after the plaintiff’s application was filed on 6 December 2012 and I did not accept that this was a situation where considerations of delay applied.
On 6 March 2013 I decided that, given the consequences faced by the plaintiff if an injunction were not granted, justice required that he be given the opportunity to present such further evidence as he thought fit. I granted the defendants leave to file affidavit evidence in reply.
The Evidence
The result was that on the application for the interim injunction I read affidavits of the plaintiff dated 6 December 2012 and 4 March 2013; affidavits of the first defendant dated 22 February 2013 and 13 March 2013; and affidavits of Mr M K Wilson dated 21 February 2013 and 12 March 2013. I also read the Schedule of Correspondence, marked Exhibit C, on the application.
While each party challenged aspects of the affidavit evidence, they agreed that I should read them and consider the weight to be given to some of the material that was provided in the nature of hearsay or opinion evidence or that otherwise were inadmissible as to form.
From these materials I summarised the facts as follows:
1. The plaintiff is a structural engineer registered as such under the National Professional Engineers Register. He is a member of the Institution of Engineers, Australia. He has a degree in civil engineering awarded by the Slovak University, Bratislava.
2. The defendants are concerned with standards of engineering services provided by the plaintiff in respect of the following eight projects:
·The Soho development
·Fox Place, Lyneham
·Bisdee Street development, Hughes
·Elara Street development, Bruce
·Barton Highway Bridge
·Canberra Avenue, Forrest
·Empire Building development, Forrest
·Pulse Apartments development, Gungahlin
3.On 22 October 2012 the first defendant in his capacity as Director of the Construction Services Branch of the Environment and Sustainable Development Directorate wrote to the plaintiff stating that the Construction Occupations Registrar, the second defendant, was giving consideration to contacting all building surveyors licensed in the Australian Capital Territory and that the Registrar was also giving consideration to placing a condition on each building surveyor’s licence that would require that an independent engineer check the plaintiff’s engineering work prior to their providing any certification services in relation to such design or advice.
4.The letter referred to three developments that were of concern and the basis for the proposed action was stated in the letter to be:
... evidence that your engineering services to licensed builders and certifiers has contributed to multiple breaches of the Building Code of Australia and the Building Act 2004 (Exhibit C1).
5.The plaintiff was asked to provide written submissions in response to the notice by 19 November 2012 and was advised that those submissions would be considered before deciding whether or not to proceed with the action outlined in the letter.
6.Enclosed with the letter were reports of engineering consultants detailing their findings and expressing opinions concerning the structural adequacy of the nominated buildings.
7.The plaintiff’s solicitor responded to the letter of 22 October, 2012 challenging the defendants’ power to impose the proposed conditions under s 353 of the Planning and Development Act 2007.
8. The notice of 22 October was subsequently withdrawn and on 20 November, 2012, apparently recognising the correctness of the plaintiff’s submission, the first defendant issued a second notice in identical terms except that;
a) It stated that the powers were proposed to be exercised under the Construction (Occupations) Licensing Act 2004;
b)Notice of intention to exercise those powers was given by the Construction Occupations Registrar.
9. After further exchanges of correspondence between the parties concerning the extent of the defendants’ power to take the action proposed, the first defendant again wrote to the plaintiff on 14 February 2013 detailing allegations of design failures concerning the eight projects already identified in these Reasons for which he provided engineering services. In the same letter the first defendant sought a response from the plaintiff by 21 February 2013 showing cause why the Registrar should not proceed to place the proposed condition on the licenses of registered building surveyors.
The Plaintiff’s Response
In his affidavit of 4 March 2013 the plaintiff responded to the defendants’ concerns in respect of each of the eight projects. He stated that the response dealt with their concerns regarding public safety and it was not intended to be a complete response to the notices issued. Notwithstanding this limitation on the extent of his response, and leaving aside issues of form and admissibility, the material provided by the plaintiff was unsatisfactory in many respects.
In a number of instances the plaintiff stated that he was a member of a design team and did not identify the extent of his involvement in the structural design services provided. He claimed that some of the matters of concern were outside his area of responsibility but did not identify for which of the remaining matters he was responsible.
In responding to concerns relating to a number of the projects, the plaintiff relied on the advice or opinions of Mr McInnes of Sellick Consultants Pty Ltd. The plaintiff was formally a director of an engineering consultancy that traded under the name Sellick. It was unclear whether Mr McInnes or Sellick Consultants Pty Ltd had any responsibility in respect of the concerns raised by the defendants. Much of the structural design service of concern was provided by the plaintiff while he was a director of the Sellick engineering consultancy. I was concerned therefore that any prior or ongoing professional connection between the plaintiff, Mr McInnes or Sellick Consultants Pty Ltd undermined the objectivity of Mr McInnes’ opinions.
In a number of instances, investigations were said to be incomplete. The plaintiff’s claims that structures were built in accordance with the designs were unsubstantiated by any independently provided engineering opinion.
The report of AWT Consulting Engineers Pty Ltd dated 29 November 2012 in respect of the Elara Street development at Bruce was addressed for the attention of Mr McInnes at B & T Constructions (ACT) Pty Ltd. This company was said by the plaintiff to be the developer of this project. This again raised questions concerning the nature of the plaintiff’s relationship with Mr McInnes.
In respect of the Barton Highway bridge the plaintiff relied on a report provided by WorleyParsons, consulting engineers, in which they concluded that a construction error caused the false work collapse. This report was prepared on instructions of solicitors for the insurer of Sellick Consultants Pty Ltd. It commenced with a disclaimer in the following terms:
This report is being prepared on behalf of and the exclusive use of Wotton Kearney Insurance Lawyers, and is subject to and issued in accordance with the agreement between Wotton Kearney Insurance Lawyers and WorleyParsons. WorleyParsons accepts no liability or responsibility whatsoever for it in respect of any use of or reliance upon this report by any third party.
Copying this report without the permission of Wotton Kearney Insurance Lawyers or WorleyParsons is not permitted.
The plaintiff sought an interim injunction because the action proposed by the defendant’s would catastrophically affect his practice and his livelihood as a structural engineer in the ACT. He claimed that there was significant merit in his challenge to the powers of the defendant to regulate directly engineers who held appropriate qualifications and professional registration. He claimed also that there was significant merit in his argument that they were without power to use the indirect method proposed by imposing conditions on the licences of building surveyors requiring that an independent engineer check the plaintiff’s engineering work.
The plaintiff contended that to date no issues of public safety had arisen, no emergency rectification orders had been issued and there was no imminent risk to public safety. He said that the defendants, by agreeing to withhold action pending the outcome of the application for an interim injunction, demonstrated that they did not consider that there was an urgent need to act. He claimed therefore that considerations of public safety did not outweigh the irreparable damage that he would suffer.
The Defendants’ Reply
The defendants pointed to the serious deficiencies in the engineering designs of the structures that were the subject of concern. Those concerns were identified in the engineering reports upon which the defendants relied.
Mr Wilson of Advanced Structural Designs prepared a structural report dated 24 November 2010 on the Barton Highway Bridge collapse at the request of Reynders Constructions, the head contractor for that project. The plaintiff submitted that his objectivity was undermined in similar fashion to that of Mr McInnes.
In his affidavit of 12 March 2013 Mr Wilson said that, although it was still in draft form, he maintained the opinion that he expressed in that report which included the following conclusion:
We considered that the collapse of the structure is consistent with a collapse caused by inadequate lateral restraint of the main support beams. The required restraint was simply not documented by the design consultants and we believe therefore that the collapse was inevitable. There were undoubtedly many other design errors, such as the failure to stiffen the headstock beams that will have contributed to a greater or lesser extent to the collapse. Which of the design errors initiated the collapse is an interesting academic point, but the complete failure to comply with any recognised design standards in a number of aspects of the design is clearly the primary cause of the collapse.
Mr Wilson noted the consistency between his opinion and the following paragraph that appeared in the executive summary of the SMEC Structural Engineer’s Report on the Collapse of Falsework, dated 23 August 2010:
This report concludes that the main girders supporting the formwork were not braced to prevent local movement of the girders when subjected to loads imposed by the concreting works. The inclination of the beams from the vertical meant that the loads in them were not carried concentrically and excessive stresses were induced through the bending of the girders webs. Thus, the cause of the false work failure was the inability of the main longitudinal girders to carry loads arising from the 3% cross fall of the bridge deck.
The defendant drew attention to Mr Wilson’s report that a number of people were injured, some seriously, as a result of the Barton Highway Bridge collapse. Other reports identified structural defects that, if not remedied, undermined their integrity in a way that did not present an imminent risk but potentially threatened the safety of occupiers of those structures.
The Law
In seeking guidance from the authorities on the principles to be applied to the issues arising in this case, I had regard in particular to Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 and Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57. These decisions dealt with issues that differed from those under consideration in the current application. In Castlemaine Tooheys an interim injunction was sought pending determination of the constitutionality of legislation; in ABC v O’Neill issues of freedom of speech were considered.
It was possible however, to draw some principles of general application from these authorities.
In Castlemaine Tooheys, Mason ACJ, at 158, set out the following as general principles:
The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
He noted that in some instances where the grant of injunction might adversely affect the public interest, the plaintiff might be required to demonstrate more than a prima facie case and, depending upon the balance of convenience, it might be necessary to show a distinct probability of success.
In ABC v O’Neill, Gummow and Hayne JJ referred to the principles explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 in essentially to similar terms to those set out above. They said that the term prima facie case as used in those general principles did not mean that the plaintiff was required to establish that it was more probable than not that at trial the case would succeed. It was sufficient that the plaintiff establish a sufficient likelihood of success to justify the preservation of the status quo pending the hearing of the issues. They went on to consider apparently conflicting judicial statements concerning the term a serious question to be tried. They said, at 84, the governing consideration was:
... that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
Conclusions
I was satisfied that the materials before me on the application for an interlocutory injunction established a prima facie basis on which to test the powers of the defendants to take the action proposed.
They also established serious concerns in respect of defects in the structures, the designs for which were ostensibly provided the plaintiff. In one case, persons were injured as a result of structural failure. In others the structures unremedied presented potential risks of injury to occupants.
The number of structures involved was sufficient to cause me concern to the point where I decided that public interest in preventing the proliferation of potentially hazardous structures outweighed the potential damage to the professional reputation of the plaintiff.
I concluded that the application for the interim injunction should be refused, unless the plaintiff provided an undertaking to the court that until further order, any engineering designs that he prepared for the purpose of projects to be constructed in the Australian Capital Territory would be checked and certified by an engineer approved by the second defendant.
The proceedings are adjourned to allow the parties to attempt to agree on the terms of the undertaking and to deal with the issue of costs.
I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Chanel Schultz
Date: 22 March 2013
Counsel for the plaintiff: Mr F. J. Purnell SC
Solicitor for the plaintiff: KJB Law
Counsel for the defendants: Mr R. P. Clynes
Solicitor for the defendants: ACT Government Solicitors
Date of hearing: 25 February, 5, 6 and 14 March 2013
Date of judgment: 22 March 2013
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