Jan Ruckschloss v Craig Simmons

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:

1. 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.  

1. 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.

1. 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

1. 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;

1. 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…