John Cousins v Construction Occupations Registrar (Occupational Discipline)
[2024] ACAT 48
•4 July 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOHN COUSINS v CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline) [2024] ACAT 48
AT 54/2023
Catchwords: ADMINISTRATIVE REVIEW – decision to issue rectification order in relation to renovations by builder and former owner of house - limitation period for order – meaning of ‘act that caused the contravention happened, or ended’ in limitation provision – amendment of limitation provision to extend limitation period for order – whether limitation period had ended before the amendment – presumption against retrospective legislation – whether amendment to limitation provision subject to presumption against retrospective legislation
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 68
Acts Interpretation Act 1901 (Cth), s 7
Building Act 2004 ss 48, 69, 85
Building and Construction Amendment Act 2019
Construction Occupations (Licensing) Act 2004 (R52) ss 34, 35, 38
Construction Occupations (Licensing) Act 2004 (R53) ss 2, 6, 7, 34, 35, 123A, 123C
Legislation Act 2001 ss 6, 47, 84, 132
Subordinate
Legislation cited: Construction Occupations (Licensing) Regulations 2004 ss 42A, 42B, Sch 4
Cases cited:Burns v Minister for Health [2012] WASCA 267
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629
Coleman v The Shell Company of Australia Limited (1943) 45 SR (NSW) 27
D’Arro v Queensland Building and Construction Commission [2017] QCA 90
Esber v The Commonwealth (1992) 174 CLR 430
Koundouris v The Owners, Units Plan 1917 [2017] ACTCA 36Maxwell v Murphy (1957) 96 CLR 261
Nicholas v Commissioner for Corporate Affairs [1988] VR 289
Rodway v The Queen (1990) 169 CLR 515
Re a Solicitors Clerk [1957] 1 WLR 1219
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
List of
Texts/Papers cited: Dennis Pearce, Statutory Interpretation in Australia (9th edition, 2019)
Diggory Bailey and Luke Norbury, Bennion, Bailey and Norbury on Statutory Interpretation (8th edition, 2020)
Tribunal:Senior Member R Orr KC
Date of Orders: 4 July 2024
Date of Reasons for Decision: 4 July 2024
Date of Publication: 11 July 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 54/2023
BETWEEN:
JOHN BERNARD COUSINS
Applicant
AND:
CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
AND
ANDREW PURDON
First Party Joined
SARAH PURDON
Second Party Joined
TRIBUNAL:Senior Member R Orr KC
DATE:4 July 2024
ORDER
The Tribunal orders that:
The decision by the respondent to issue to the applicant a rectification order dated 19 June 2023 is set aside, and a decision is made in substitution not to make a rectification order.
………………………………..
Senior Member R Orr KC
REASONS FOR DECISION
These proceedings concern a decision by the Australian Capital Territory Construction Occupations Registrar (Registrar or respondent) to issue to John Cousins (applicant, John Cousins or Mr Cousins) a rectification order on 19 June 2023 (rectification order or order) under section 38 of the Construction Occupations (Licensing) Act 2004 (Construction Occupations (Licensing) Act or COLA) in relation to renovations to a house (renovations or works) which Mr Cousins had owned and lived in for many years (building), but which he sold in July 2017 to Andrew Purdon and Sarah Purdon (party joined).
Mr Cousins challenges the decision to make the rectification order in an application for review of decision dated 17 July 2023 (application); the application attaches the rectification order and other relevant documents. One of the grounds of challenge is that the order was made outside of the time allowed by the COLA. The tribunal decided to determine this question as a preliminary issue (preliminary issue). These reasons deal only with the preliminary issue and do not deal with the standard of the renovations.
The COLA contains what is in effect a limitation period for when a rectification order can be made. In summary, Mr Cousins argues that the limitation provision which applies to the renovations was in the version of the COLA before amendments were made by the Building and Construction Amendment Act 2019 (Amending Act) which came into effect on 9 December 2019.[1] The limitation period before the Amending Act was made was that the Registrar could not make an order where the act that caused the contravention happened, or ended, more than 10 years before the day the Registrar proposes to make the order (section 35(3)). The limitation period inserted by the Amending Act provided that the limitation period could run for 10 years from the issue of the certificate of occupancy, which for these renovations was not issued until 2017 (section 35(5), (6)).
[1] Amending Act section 2; the amendments are shown in the consolidated Act R39, and continue in the current consolidated Act R48
In this decision I use the term ‘Old Act’ to refer to the version of the COLA before the Amending Act, and ‘New Act’ for the version after. I also use the terms ‘old Act’, ‘amending Act’ and ‘new Act’ for similar types of other legislation where the issue of retrospectivity arises.
In summary, the applicant argued that the Amendment Act did not operate in relation to the renovations because of the presumption against the retrospective operation of legislation, and section 84 of the Legislation Act 2001 (Legislation Act) which gives effect to that presumption. He argued that the renovations were generally completed by 2003, so that the 10-year limitation period under the Old Act ran out in 2014, before the Amending Act came into operation. He acknowledged that further work was done on subsequent occasions, but that this was not relevant to the rectification order.
In summary, the respondent argued that for a number of reasons the presumption against retrospective operation of legislation does not apply here; and at any rate because work was done on the building well after 2003, that the rectification order is still within the limitation period even under the Old Act.
Summary of this decision
I find that most of the works that caused the alleged contraventions the subject of the rectification order occurred from 1999-2003 and happened, or ended, by the end of 2003. The retiling may fall within this category, and I find that this happened, or ended, by the end of 2006.
The addition of a pergola and new flooring to the back deck, and a canopy to the front deck, were not acts that caused the contraventions the subject of the rectification order and are therefore irrelevant for the purpose of the limitation period in the Old Act. I doubt that there were any repairs to the front deck, but if there were, they are irrelevant to the contraventions the subject of the rectification order.
On this basis, the limitation period in section 35(3) of the Old Act ended by 2014 for most of the works, and 2017 for the retiling. This was before the commencement of the New Act.
I find that because of this timeline, the limitation provision in the New Act did not operate in relation to these works because of the common law presumption against the retrospective operation of legislation, also set out in section 84 of the Legislation Act. In this matter, the limitation period in the Old Act expired well before the Amending Act was made, and this gave the applicant a right or immunity which was protected by the presumption. There is significant case law in support of this conclusion. I am not convinced by the arguments of the respondent that the presumption does not apply here.
On this basis, the order could not and should not have been made because of the operation of the presumption and section 35(3) of the Old Act.
In my view this finding finalises the application and these proceedings. The application is successful and the decision of the Registrar to make the order is set aside, and a decision is made in substitution not to make a rectification order.
This decision is based on the operation of the limitation period, and therefore I do not address the quality of the works.
My reasons for this decision are set out below.
Material in relation to this hearing
There was a hearing on the preliminary issue on 1 March 2024.
The applicant provided a statement dated 8 February 2024 (exhibit A1) and a further statement dated 26 February 2024 (exhibit A2). Mr Cousins gave oral evidence and was cross-examined at the hearing.[2]
[2] Transcript of proceedings dated 1 March 2024, pages 25-40
The applicant also provided a statement of Deborah Cousins dated 26 February 2024 (exhibit A3), a statement of Robyn Marshall, a cleaner, dated 26 February 2024 (exhibit A4), and a statement of Wilhelmina Huys, a former real estate agent, dated 26 February 2024 (exhibit A5). He also provided additional documents: the notice of intention to make a rectification order dated 27 October 2022 (exhibit A6); the Special purpose inspection expert defect report v1.1 by George Pudja of Peak Consulting dated 9 September 2022 (Peak Consulting first report) (exhibit A7)[3]; an email chain beginning with an email dated 8 September 2022 (exhibit A8); and the original approved floor plan for the renovations dated 1 September 2003 (exhibit A9).
[3] The Peak Consulting first report is also attached to the notice of decision in relation to the rectification order dated 19 June 2023, which are both attached to the application
The respondent provided the Special purpose inspection addendum expert report by George Pudja of Peak Consulting dated 14 February 2024 (Peak Consulting second report) (exhibit R1), and emails dated 20 June 2023 concerning errors in the rectification order (exhibit R2).[4] Mr Pudja gave oral evidence and was cross-examined.[5]
[4] These were very minor amendments and do not raise any substantive issues
[5] Transcript of proceedings dated 1 March 2024, pages 43-56
The party joined provided a statement of Andrew Purdon dated 20 February 2024 (exhibit PJ1) and a bundle of photos (exhibit PJ2). Mr Purdon gave oral evidence and was cross-examined.[6]
[6] Transcript of proceedings dated 1 March 2024, pages 57-73
The applicant provided an outline of submissions - preliminary issue dated 13 February 2023 and an outline of submissions in reply dated 26 February 2024. Counsel for the applicant also made oral submissions at the hearing.
The respondent provided submissions on the interim application dated 20 February 2024. Counsel for the respondent also made oral submissions at the hearing.
The party joined provided submissions dated 20 February 2024. Counsel for the party joined also made oral submissions at the hearing.
I had regard to all this material in making this decision.
Jurisdiction of the tribunal
Section 123C of the COLA provides that an entity prescribed by regulation, or any other person whose interests are affected by the decision, may apply to ACAT for review of a reviewable decision.
A reviewable decision is prescribed by regulation.[7] The Construction Occupations (Licensing) Regulations 2004 provide, in sections 42A and 42B, and Schedule 4, item 13, for review of decisions under section 38 of the COLA to make a rectification order on application of a person or entity to which the rectification order relates. Under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), on review the tribunal must confirm the decision, vary the decision, or set aside the decision and make a substitute decision or remit the matter for reconsideration.
When can a rectification order be made?
Old Act limitation period
[7] Section 123A of the COLA
As noted, the rectification order was issued under section 38 of the COLA. As originally made, this Act provided in section 34 that if the Registrar believed that a licensee has provided a construction service otherwise than in accordance with the Act or ‘an operational Act’, that they could give notice of a rectification order and invite submissions, and in section 35 for when a rectification order may be made. In addition to the requirements that the Registrar is satisfied that there has been a contravention of the COLA or an operational Act, section 35(3) stated:
(3) However, the registrar may not make an order under section 38 in relation to the entity if a submission is made that satisfies the registrar that the act that caused the contravention happened, or ended, more than 10 years before the day the registrar proposes to make the order.
It is important to make a few preliminary comments about this provision. First, in my view, it is in effect setting a limitation period for making a rectification order. It is similar to limitation periods for bringing claims of torts or breaches of contract, or criminal proceedings.
The respondent argued that this was not a limitation period, but a restriction on a power.[8] But in my view, general limitation provisions can also be characterised as a restriction on the power of a court or tribunal to consider and grant a claim; they are still also limitation periods. The respondent also argued that the period specified was fundamentally different to those for other claims because, for example, “the contract action is complete upon breach”.[9] But here the act that caused a contravention was also “complete upon breach” of the relevant building laws, that is the doing of acts that “caused the contravention”. It is true that some steps were required to be taken to make an order on the basis of that breach. But similarly, there are steps which need to be taken to bring proceedings based on a tort, breach of contract or a crime. I think it is appropriate to treat this section as establishing in effect a limitation period for a rectification order.
[8] Transcript of proceedings dated 1 March 2024, page 14
[9] Transcript of proceedings dated 1 March 2024, page 15
Second, this period is linked to “the act that caused the contravention”. The time is not linked to all building work on, in this case, the house. The act must be linked to the contraventions specified in the rectification order. I return to this issue below.
New Act limitation period
The Amendment Act maintained a similar section 34, which required that the Registrar believe a licensee has provided a construction service otherwise than in accordance with the Act or an operational Act. The Amendment Act significantly amended section 35. After it commenced operation, the provisions which replaced the old section 35(3) stated:
(5) However, the registrar may only make an order under section 38 in relation to the entity before the latest of the following:
(a)if the registrar first became aware of the act that caused the contravention within 6 months before the end of the 10-year period—1 year after the registrar became aware of the act; or
(b) if the registrar gave the entity a notice under section 34 before the end of the 10-year period—1 year after the entity was given the notice; or
(c) in any other case—the day the 10-year period ends.
(6) In this section:
10-year period means the period starting on the later of the following days:(a) the day the act that caused the contravention happened or ended;
(b) the day any certificate was issued by the registrar under any of the following provisions of the Building Act 2004 in relation to the building the subject of the construction service:
(i) section 69 (Certificates of occupancy);
(ii)section 71 (2) (Certificate for building work involving demolition);
(iii)section 72 (2) (Certificate for building work involving erection of structure);
(iv)section 73 (Certificates of occupancy and use for owner‑builders).
I note that this provision continues to use the phrase, in section 35(6)(a), the “act that caused the contravention”.
Section 35(6)(b) now also uses an alternative concept of the day a certificate was issued in relation to “the building the subject of the construction service”. This is defined to mean the doing or supervision of work in a construction occupation, which includes a builder and related occupations.[10] The structure of the provision makes clear that this construction service is one which the Registrar believes was otherwise than in accordance with the COLA or an operational Act (section 34(1)).
[10] Sections 6 and 7 of the COLA
Section 69 of the Building Act 2004 currently provides in part that the Registrar must issue a certificate of occupancy for building work that involves the erection or alteration of a building if, on application by the owner of the parcel of land where the building work was carried out, the Registrar is satisfied that:
(a)the building work has been completed in accordance with the prescribed requirements for the building work; and
(b)the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.
It seemed to be agreed by the parties that a certificate of occupancy was issued in relation to the renovations on 10 May 2017.[11]
[11] Applicant’s outline of submissions at [9]
I also note for completeness that the wording in the Old Act, that the Registrar may not make an order under section 38 in relation to the entity if a submission is made that satisfies the Registrar as to the limitation (section 35(3)), was replaced by the Amending Act to the more direct formulation that the Registrar may only make an order before the expiry of the latest of the possible limitation periods (section 35(5)).
The New Act importantly for this case therefore enabled a rectification order to be made within 10 years after the certificate of occupancy was issued. Thus, if the New Act applied here, as argued by the respondent, the rectification order in this case was issued within 10 years since the issue of the relevant certificate of occupancy.
If the New Act does not apply here, as argued by the applicant, then the limitation period is as determined by the Old Act, that is 10 years from when the act that caused the contravention happened, or ended. As noted, the order was made on 19 June 2023. The applicant argued that the act that caused the contravention happened or ended by 2003. The date of the rectification order, 19 June 2023, is significantly greater than 10 years after that date.
The respondent also argued that there was at least some doubt about when the contravention happened and ended, and that it may have been well after 2003.
Acts that caused the contravention
Before addressing the retrospectivity issue, it is necessary therefore to consider when the limitation period ended under the Old Act. If this was after 19 June 2023, then even under the applicant’s retrospectivity argument, the order was made within this period. In deciding the period under the Old Act, there were a number of significant factual issues raised at the hearing, in particular what were the acts that caused the contravention in this case, and when did they happen or end.
Rectification order sets out the relevant defects
I do note several general issues here, before addressing the acts that caused the contravention specified in the rectification order. First, the rectification order sets out the list of alleged defects with the works. In my view, the respondent is limited to relying on these specified defects. As I discuss below, there is an issue as to whether some of the actions by the applicant and raised by the respondent are acts which caused the specified alleged defects.
Nature of acts that cause the contravention
A second related point concerns actions taken concerning the building. Buildings which continue to be used are often subject to maintenance, adjustment, and improvement in various ways. I do not think that any maintenance, adjustment or improvement to the house, even to those parts of the house mentioned in the order, are automatically acts which caused the contravention, and therefore extend the limitation period. If that were the case, for many buildings the limitation period would keep being extended for the life of the building. I do not think that this is correct. Rather, in my view, in order for maintenance, adjustment or improvement of the house to extend the limitation period, it has to be shown that these were acts that caused the alleged contraventions.
The respondent referred to Koundouris v The Owners, Units Plan 1917,[12] to make a related point. The legislation there was different to here. But the Court emphasised the need to interpret the extent of the warranties in light of the legislative scheme. Here it is necessary to interpret the extent of the phrase ‘act that caused the contravention happened, or ended’; maintenance, adjustment and improvement can fall within this concept; but to do so they need to have caused the contravention.
[12] [2017] ACTCA 36 at [121]-[122]
The respondent argues that the applicant bears an onus for showing when the works happened or ended, in light of the terms of section 35(3) of the Old Act.[13] As noted above, these terms are no longer used in the New Act. The Old Act provision states that the Registrar may not make an order:
…if a submission is made that satisfies the registrar that the act that caused the contravention happened, or ended, more than 10 years before the day the registrar proposes to make the order.
[13] Transcript of proceedings dated 1 March 2024, pages 16-17
I would add some further elements to this proposition of the respondent. I think that before the Registrar can issue a notice under section 34(2) of the Old Act, they should at least consider whether the contravention was within the limitation period. The evidence indicates that in this case that is what the Registrar did.[14]
[14] Email from Will Hogan to George Pudja dated 8 September 2022, exhibit A8
I would also add that, as discussed above, the specific acts that caused the contraventions are wholly determined by the respondent and are set out in the rectification order. Other acts in relation to the building are simply not relevant. As I discuss below, in this case the respondent sought to rely on a number of acts since 2003 to extend the limitation period, but if these are not acts that caused the contraventions specified in the order, they are not relevant to this issue. It may be possible for the respondent to put on expert evidence as to what the terms of the order mean, but this did not occur here, and therefore I am left simply with those terms.
Does “happened, or ended” require a certificate under the Old Act?
Third, it was argued by the respondent and party joined that the concept in the Old Act of when an act that caused the contravention “happened, or ended”, meant when a certificate of completion was issued.[15] I do not think there is any basis for this suggestion in the Old Act. There is no definition of “happened, or ended” so these words take their general meaning. There is no definition of completion, or even a reference to a certificate of completion, in the Old Act.
[15] Respondent’s submissions at [17]-[18]; party joined’s submissions at [9]-[16]
It is true that the Building Act contains a related regulatory regime. But this is not a basis for holding that the distinct phrase in the COLA should have the meaning of a different phrase in the Building Act.
Section 48 of the current Building Act provides for “Completion of building work”, but as the applicant noted this uses the term completion, and not the term “happened, or ended” in section 35(3) of the Old Act. At any rate, this provision is about the certifier’s obligation when the work appears to be completed. It is therefore not in its terms relevant to the operation of section 35(3) in the Old Act. Section 69 provides for certificates of occupancy, but again this uses the term “the building work has been completed.” There is also a definition of ‘completion day’ in section 85 of the Building Act, but again that term is not even used in section 35 of the Old Act.
In the New Act, the concepts of the day the act that caused the contravention happened or ended, and the day any certificate was issued, are separate concepts, providing no basis for thinking they were both picked up under the Old Act. The Explanatory Memorandum for the Amendment Act makes clear that the addition of the reference to certificates in relation to the limitation period was a significant and important amendment to the COLA by the Amendment Act.[16] This Memorandum states:
This clause substitutes a new section 35(3) that does three things: … Provides that the 10 years in which an order may generally be made … is taken from the later of the day the act that caused the contravention happened or ended; or the day any certificate was issued by the registrar under any of the following provisions of the Building Act 2004 in relation to the building the subject of the construction service … [emphasis added]
[16] Revised Explanatory Memorandum for Building and Construction Legislation Amendment Bill 2019, page 47, see also page 20
The respondent and party joined also referred to ‘example 2’ which was in section 35 of the Old Act for a period of time.[17] It is true that the example mentions certification. It is confusing in its terms. But it does seem to provide for several events: 1. original work that did not comply with technical standards 13 years ago and where there was no certification; 2. further work to bring the original work into compliance with the certification 9 years ago (that is 4 years after the original work); 3. then the Registrar may issue a rectification notice. It seems to me clear that it is the fact that the work only ended 9 years ago that provides a basis for issuing a notice. It has little to do with the certification. Even taking into account section 132 of the Legislation Act, this is no basis on which to override the clear words of the Old Act.
Documentary and approvals evidence
[17] Respondent’s submissions at [33]-[35]; party joined’s submissions at [10]-[13]. The example provided that:
2. A licensee undertook work that did not comply with the required technical standards 13 years previously without obtaining or providing a required certification. The licensee did not bring the work into compliance with the relevant certification until 4 years after the work was complete. The registrar is not satisfied that the act that caused the contravention ended over 10 years ago and may issue the rectification order to the licensee.
A fourth point concerns the drawings and approvals for various works. There was some confusion and dispute about these.
The applicant stated that some renovation works were undertaken in 1999-2000.[18] Mr Cousins provided 1999 approved plans, which he says he carried out in 1999 to 2000.[19]
[18] Statement of John Cousins dated 8 February 2024, exhibit A1 at [8]-[17]
[19] Statement of John Cousins dated 8 February 2024, exhibit A1 at [8]-[17], pages 5-8 of the attached exhibit JC-1
He then says he did additional works in 2001-2003, and he provided plans for these.[20] A further version of these plans was tendered as exhibit A9.
[20] Statement of John Cousins dated 8 February 2024, exhibit A1 at [18]-[23], pages 13-15 of the attached exhibit JC-1
These plans clearly show a new rear deck and enlarged deck for new front entry (see discussion of the decking at paragraphs [65]-[72] below); corrugated roof sheeting (see paragraphs [96]-[98] below); and reconfiguring of the bathroom and addition of an ensuite and new laundry (see paragraphs [107]-[109] below).
Mr Cousins says that in December 2003 Don Waring as the appointed certifier did a final inspection, with a report dated 8 December 2003. This report includes a statement apparently by Mr Waring that:
Extensive but minor alterations to previously approved plans noted including some variations not yet shown on amended plans provided by owner. Those amendments subsequently noted on plan (by hand). Site inspection of completed work noted all work, internally and externally, is fully completed and complies with requirements. All surfaces components finishes fittings and services fully operational.[21]
[21] Statement of John Cousins dated 8 February 2024, exhibit A1 at [23], page 16 of the attached exhibit JC-1
There is also a set of plans stamped as approved on 5 April 2017 by Don Waring (approved plans).[22] It appears that these were plans submitted to obtain the certificate of occupancy. The front page of these plans is dated 1 September 2016, but the second two pages are dated 1 September 2003. These seem to be the original plans with significant handwritten annotations of two kinds.
[22] Statement of John Cousins dated 8 February 2024, exhibit A1 at [60]-[64], page 110-112 of exhibit JC-1 to the statement; see also exhibit A9; transcript of proceedings dated 1 March 2024, pages 26-27
One set of annotations refers to the rear deck, and provides details of this, and the front entry deck, and gives details of this. These seem to be those referred to in the comments by Mr Waring noted above in paragraph [55]. In the table at the left-hand side of these plans, these seem to fall within ref A (4), enlarge deck for new front entry, and (7) site plan changed to show amended floor plan, decks and landscaping. These notes show the date of 2 September 2003. Mr Cousins gave evidence supported by photos and earlier plans that the rear and front deck were completed by 2003, as did Deborah Cousins.[23] It seems on the basis of the evidence before the Tribunal that these were works completed before the end of 2003, noting that as discussed below the pergola, canopy and other things occurred later.
[23] Statement of John Cousins dated 8 February 2024, exhibit A1 at [18]-[17], [42]-[51], [62]-[74]; statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [5]-[10]
There are also 3 things noted adjacent to the date of 23 March 2017. The first is “item 8 – rear decking altered”, and the plan contains the words “decking altered (8)” and an arrow to what appears to be a gate. It also talks about a balustrade. Mr Cousins gave evidence and further explained under cross-examination that these alterations were pool seating put in front of the deck, a gate, and additional steps for the pool.[24] The second was “item 9 –entry canopy added”, and the plan contains a handwritten note “(9) entry canopy” and an arrow to a canopy like drawing in front of the entry door. This is discussed further below at paragraphs [86]-[91]. The third was “item 10 pergola over rear deck”, with the handwritten annotation “pergola (over) (10)” and an arrow to the rear deck. This is discussed further below at paragraphs [73]-[78]. It seems based on the evidence before the Tribunal that these were works done after 2003.
[24] Statement of John Cousins dated 8 February 2024, exhibit A1, at [62]; transcript of proceedings dated 1 March 2024, pages 33-35
The respondent argued that the statement in the report dated 8 December 2003 by Mr Waring that the site inspection of completed work noted all work, internally and externally, is fully completed and complies with requirements, should not be relied upon to find that all relevant works were completed by 2003, in part because it is not clear what works Mr Waring was talking about. This is true in part, but not completely. The approved plan which I have discussed above does briefly describe the renovations which took place and gives these a date of 2 September 2003; this is some evidence that these were completed by that date. There was the evidence of later possibly relevant works, which Mr Cousins agreed occurred. I agree that this report is not of itself determinative of completion for these reasons. But put together with the other extensive evidence, I think it supports the view that most of the relevant works were completed by 2003 (in particular the front and rear decking, corrugated roof sheeting, and reconfiguring of the bathroom and addition of an ensuite and new laundry). However, it is also clear that some things were done later (in particular the pergola over the rear deck, the entry canopy and other things).
I have had to make sense of what documents are available in relation to this case. I note that one of the key reasons for limitation periods is that it is often difficult to determine facts which occurred many years ago. This matter confirms that difficulty. Whatever the legal position, the difficulty the parties had in providing evidence in relation to building works for the most part undertaken more than 20 years ago is understandable.
Evidence of Mr Pudja
Fifth, the respondent provided evidence from Mr Pudja, called him as a witness, and he was cross-examined. Mr Pudja’s evidence was principally as to the standard of the renovations. As noted above, in consideration of this preliminary issue, that evidence is largely irrelevant.
Mr Pudja gave some evidence about when he thought some work was done. But generally this does not address the relevant issue, that is when the acts that caused the contraventions happened, or ended. The Peak Consulting second report simply states in response to a question about timing of the renovations that the “construction methodology does not reveal any particular period of construction”.[25] There were a few specific comments about the timing of particular acts which I discuss in more detail below.
What were the acts that caused the contraventions in this case, and when did they happen or end?
[25] Peak Consulting second report (exhibit R1), page 7
The rectification order identifies in section 3 the relevant defects and contraventions. As noted, the limitation period under the Old Act is determined by when the acts that caused the contraventions happened or ended. It is necessary therefore to determine what were the acts that caused the contraventions; the contraventions are set out in the order. It is then necessary to determine when they happened or ended, to establish whether that was more than 10 years before the day the Registrar proposed to make the order.
The position and evidence of Mr Cousins is that all of the works the subject of the rectification order had ended by December 2003.[26] Deborah Cousins also provides a statement dated 26 February 2024 which generally confirms the position of Mr Cousins. The respondent challenged this position and suggested that there was evidence that some of the works ended after 2003. I now address this issue.
Decking - defect 1
[26] Statement of John Cousins dated 8 February 2024, exhibit A1, at [8]-[36]; applicant’s outline of submissions at [14]-[30]
Defect 1 is described in the rectification order as poor structural integrity of decking access to the premises and refers to the front and rear access to the premises via timber deck spaces. The order states that diagonal bracing of in-ground timbers is missing; timber post bearer connections do not meet nominal fixing requirements; the deck walling plates are not secured to external walls; and the construction method used do not meet minimum live load standards. The order states that deconstruction and rebuilding is necessary. This defect 1 is said to be in breach of the Building Code of Australia 1996 Volume 2 (Code), in particular, Part 3.4.3 Timber Framing and Australian Standard (AS) 1684.2:1992 in that the two decks have not been designed and constructed to perform adequately under all reasonably expected design actions. [27]
Rear deck
[27] Order, attached to the application, page 5
John Cousins states that the rear deck was finished by April 2003. He states that his family had a birthday celebration on the deck in April 2003; he provided a number of photos of the rear deck in 2003, and the same deck in 2017; he provided the drawings discussed above at paragraphs [52]-[57].[28] Deborah Cousins confirms that timing; and that at her 40th birthday party in 2003 they sat on the deck.[29] Robyn Marshall, their cleaner, states that the construction took place from 1999-2003, and that no renovation work was done to the house for well over 10 years before it was sold.[30]
[28] Statement of John Cousins dated 8 February 2024, exhibit A1 at [20] and [42]-[47]; applicant’s outline of submissions at [31]-[32]
[29] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [5]
[30] Statement of Robyn Marshall dated 26 February 2024, exhibit A4 at [5]-[6]
Mr Pudja did not contradict this evidence. He did note that some repairs appear to have been done to the structure of the decks (which I discuss below at [92]-[95]).
Front deck
John Cousins states that the front deck was built in 1999; a small extension was undertaken in 2003; the existing front deck and extension were finished in 2000 and 2003; he provided a number of photos of the front deck; he provided the drawings discussed above at paragraphs [52]-[57].[31] Deborah Cousins confirms that timing, and that the extension was finished by 2003 because her sister got married in June that year and there are pictures related to the event which show it completed; those pictures were provided.[32] Robyn Marshall the cleaner states that the construction took place from 1999-2003, and that no renovation work was done to the house for well over 10 years before it was sold.[33]
[31] Statement of John Cousins dated 8 February 2024, exhibit A1 at [18]-[20] and [48]-[51]
[32] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [10]
[33] Statement of Robyn Marshall dated 26 February 2024, exhibit A4 at [5]-[6]
Mr Pudja did not contradict this evidence. He did note that some repairs appear to have been done to the structure of the decks (which I discuss below).
Both decks
It seems likely that the notes and annotations to the approved plan in relation to the rear deck and front deck refer to the works done by 2003 (set out in paragraph [52]-[57] above) and are included in the note by Mr Waring in 2003, discussed at paragraph [55] above. This does not include the pergola, overlay, canopy and repairs, which I come to below.
Mr Cousins says he oiled the decks twice a year, and Deborah Cousins confirms this and states that he was meticulous about maintenance of the property.[34]
Conclusion about construction of both decks
[34] Statement of John Cousins dated 8 February 2024, exhibit A1 at [48]; statement of John Cousins dated 26 February 2024, exhibit A2, at [19]-[20]; statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [14]
On this basis there is significant evidence that both decks were built by the end of 2003. I find this was the case. Subject to the discussion following in relation to the pergola, overlay, canopy and repairs, the act that caused the contraventions in relation to the decking happened, or ended, by the end of 2003. This is the relevant date for the commencement of the limitation period.
Pergola over back deck
John Cousins states that the pergola had been constructed over the rear deck by 2007. Mr Pudja did not contradict this. It was constructed using metal posts with a laser light charcoal roof.[35] This pergola over the rear deck is referred to in the 2017 comments on the approved plan (see paragraph [58] above) which suggests that it was built between 2003 and 2017. It seems likely therefore that this pergola was built by 2007.
[35] Statement of John Cousins dated 8 February 2024, exhibit A1 at [75]
The problems identified with the deck in the rectification order go to its poor structural integrity. There is nothing in the terms of the order itself which suggests that there is a problem with the pergola.
The rectification order says that it is to be read in conjunction with the notice of decision in relation to the rectification order dated 19 June 2023 (notice of decision). The notice of decision refers to the Peak Consulting first report, which is attachment A to the notice of decision. The notice of decision then states that the decision maker gave due regard to that report, being produced by a professional with sufficient knowledge and experience to form such conclusions, and that they found this material relevant to making their decision.[36] The rectification order makes clear that the relevant defects are those identified in section 3 of the order; for the decks these are set out above in paragraph [65] above. The order does say after this list of defects: “Evidence considered by the delegate include: Attachment A: Special Purpose Inspection Expert Defect Report V1.1 – 9 Sep 2022”, that is the Peak Consulting first report. Most of the detail in the report is in relation to the structural defects identified in the rectification order. The Peak Consulting first report generally supports the order’s references to poor structural integrity. However also in the report, the executive summary states that “the rear pergola was not constructed in accordance with AS 1684.2 Residential timber frame constructed and lacks adequate falls to the corrugated polycarbonate roof sheeting, and flashings are not compliant”. The report itself also refers to the pergola, the pergola roof fall, and also one of the pergola roof support posts in relation to AS 1684.2.[37]
[36] Order, page 1, notice of decision, page 2, attached to the application
[37] Peak Consulting first report, pages 5, 6 and 9 (exhibit A7), attached to the notice of decision, which is attached to the application
This raises the issue of the relationship between the rectification order and the Peak Consulting first report. In my view it is clear from the rectification order itself and the notice of decision that the decision-maker had regard to the report as evidence on which the terms of the order were based, that is as evidence of the relevant contraventions. But I do not think that the terms of the Peak Consulting first report can be used to expand the terms of the rectification order; that is I do not think that because the report refers to the pergola, that this is therefore included in the rectification order, when the order itself neither expressly or implicitly refers to this.
John Cousins was cross-examined in relation to the pergola and overlay (discussed immediately following at [79]-[85]), and he agreed these would increase the load on the decking.[38] But this does not suggest that the construction of these were acts that caused the contraventions. The contraventions were the poor structural integrity of the decks. The additions on top of the deck, or people standing or sitting on it, may have given rise to risks because of the poor structural integrity, but they would not cause that poor structural integrity.
[38] Transcript of proceedings dated 1 March 2024, pages 28 and 29
Therefore, there is no evidence that the construction of the pergola over the back deck was an act that caused the contravention. It is therefore irrelevant to the limitation period. Even if I am wrong about this, the pergola over the back deck was built by 2007. If it is relevant, this is the date for the commencement of the limitation period in relation to this work.
Overlay on back deck
John Cousins says that sometime between 2007-2010 he overlaid the rear deck with new timber. He says he made no changes to the deck structure.[39]
[39] Statement of John Cousins dated 26 February 2024, exhibit A2 at [16]-[20]
Deborah Cousins states that they did decide to overlay the timber on the rear deck to make the area more of an entertainment area. She says this was done sometime between 2007 to, at the latest, 2010. She says that this was done a few years after her 40th birthday. There was no demolition or alteration of the deck.[40]
[40] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [6]-[8]
Andrew Purdon also notes the overlay, which he says had raised the height of the deck and made the pool fence non-compliant. He says that the deck boards were smooth, shining and not weathered, but that the deck boards underneath were greying and cracked. He says that “from this information” he believed that the rear deck was “over planked” shortly before the property was sold.[41] Andrew Purdon did not provide any information as to his relevant expertise to make this conclusion as to the timing, or any factual basis for this conclusion. The information he refers to is also consistent with the statements of John Cousins and Deborah Cousins. Mr Pudja does not give an opinion about the timing of the overlay.
[41] Statement of Andrew Purdon dated 20 February 2024, exhibit PJ1 at [23]
John and Deborah Cousins clearly had direct knowledge of the overlaying. In my view they were generally witnesses who sought to tell the truth. Their evidence is however quite vague. This is not surprising given the time which has elapsed since the events. It is very unclear how I should decide this issue, but I think it is reasonable to take the view that the overlaying took place in the middle of the period they specified, which is the beginning of 2009.
But it is not necessary to resolve this issue about the timing of the overlaying. As noted, the problems identified with the deck in the rectification order go to its poor structural integrity. There is nothing in the order which refers to or suggests that there is a problem with the overlay. The Peak Consulting first report generally supports the order’s references to poor structural integrity. Similar to the rear deck pergola, there is reference to the overlaying in the Peak Consulting first report. The executive summary notes that the “rear deck has been laid over the original timber deck which is not recommended as it traps moisture and restricts airflow” and is not in compliance with the relevant standard. It is later suggested that the original decking should have been removed and new decking provided directly onto the joists.[42] As discussed in relation to the rear deck pergola, I do not think that the terms of the Peak Consulting first report can be used to expand the terms of the rectification order; that is I do not think that because the report refers to the overlaying, that this is therefore included in the rectification order, when the order itself neither expressly or implicitly refers to this. Therefore, there is no evidence that the overlaying was an act that caused the contraventions.
[42] Peak Consulting first report (exhibit A7), pages 5 and 9, attached to the notice of decision, which is attached to the application
The respondent did assert that the overlay may have increased the weight of the deck, and John Cousins agreed with this. But this suggests that the overlay was not part of the structural integrity problem; it was what supported it that was the problem.[43]
[43] Transcript of proceedings dated 1 March 2024, pages 28-29; see also above at [77]
Therefore, in my view, the overlay did not cause any contravention and it is irrelevant to the limitation period. Even if I am wrong about this, as I have stated it is reasonable to take the view that the overlaying took place at the beginning of 2009. If it is relevant, this is the date for the commencement of the limitation period in relation to this work.
Shade sail/canopy over front deck
John Cousins states that between 2009 and 2012 he removed the front entrance pergola and replaced it with a removable shade sail; this was in turn removed and a new front entrance entry pergola/canopy added.[44] He suggests that these changes can be seen in the February 2012 and 2014 photographs. This canopy was attached to the roof, which is discussed further below at paragraphs [99]-[103].
[44] Statement of John Cousins dated 8 February 2024, exhibit A1 at [76]-[81]
Andrew Purdon also refers to the shade sail and canopy. He also refers to photographs which show the sail cloth in place in 2012, and the canopy in place in 2014. He suggests that the structure is a substantial, steel framed canopy roof, rather than a pergola.[45]
[45] Statement of Andrew Purdon dated 20 February 2024, exhibit PJ1 at [24]
As discussed, the problems identified with the decks goes to their poor structural integrity. There is nothing in the order which suggests that there is a problem with the canopy which affects the deck.
The Peak Consulting first report generally supports the order’s references to poor structural integrity. It states that the front timber deck is not supported in a way that complies with the relevant standard. There is some reference to the roof of the “front entry portico” which I consider under defect 2 in relation to the roofing. There is nothing in the reports of Mr Pudja which mentions or suggests that the shade sail or canopy was any part of the problem. There is reference to repairs to the front decking itself which I consider below at [92]-[95].
It was asserted by the respondent that the canopy was part of the work caught by the order, but there was no reference to any aspect of the order or other evidence to support this.[46] I can find no such evidence.
[46] Transcript of proceedings dated 1 March 2024, pages 90-92
Therefore, in my view, the construction of the canopy over the front deck as not an act that caused any contravention, and it is irrelevant to the limitation period.
Repairs to the front decking
Mr Pudja also refers to what he thought were repairs to the decking. The Peak Consulting first report does contain an image which is said “illustrates recent blocking added to support a bearer, which (1) does not support the full width of the bearer, (2) relies on 3x gun nails rate for 90kg supporting a deck that requires 650kg support”.[47] The Peak Consulting second report says that “repairs had been carried out to the front deck for safety reasons by the owner”; it does not provide a basis for this statement which, as noted below, John Cousins denies. Mr Pudja states that the patching and repairs to the front deck structure are noticeably different to the original deck. He thought the condition of this “strongly suggests this work was done prior to the sale of the property in 2017 rather than in 2003”.[48] Apart from the reference to the nature of the structure, no factual basis is provided for his conclusion that the repairs were done prior to, which seems to suggest just prior to, the sale. He also later states that the front deck repairs were likely to have been executed just before the sale of the property.[49] He provides no further details as to the factual basis for this very precise conclusion. Under cross-examination, Mr Pudja first declined to answer a question about the reasons of the repairs to the deck because that would require him to speculate about the intention. He then changed his position and stated that it was added for support based on his professional experience and qualifications as to what a block is intended for but provided no factual basis for this view. He thought the block was however wholly inadequate for this purpose. He did not seem to acknowledge that this fact suggested that the actions were not done for that purpose.[50]
[47] Peak Consulting first report (exhibit A7), pages 7 and 11, attached to the notice of decision, which is attached to the application
[48] Peak Consulting second report, exhibit R1, pages 5 and 8
[49] Peak Consulting second report, exhibit R1, page 10
[50] Transcript of proceedings dated 1 March 2024, pages 49-50
John Cousins stated that the bearers, joists, and decking boards on the front deck are original. He says that the only additions he made under the deck were for the purposes of supporting storage racks, which have since been removed[51].
[51] Statement of John Cousins dated 26 February 2024, exhibit A2 at [9] and [10]
John Cousins clearly had significant knowledge of the house. In my view he was generally a witness who sought to tell the truth. In my view there is not enough positive evidence for me to conclude that he is wrong in his evidence in regard to this issue, and that repairs were in fact done, and when they were done. It is difficult for me to give much weight to the evidence of Mr Pudja in this regard when his evidence involved conclusions with little identified factual basis. I accept the evidence of Mr Cousins that there were no such repairs. Further, there is nothing in the rectification order which suggests that there were any repairs, or that if there were, that these were any part of the structural problem with the deck. Mr Pudja provides no basis for a finding that these were acts that caused the contraventions. Rather Mr Pudja thought that the additions were wholly inadequate to provide support. If this is the case, then it is the original structure which caused the contravention; the alleged repairs neither remedied nor made worse these original defects.
Therefore, I doubt that there were any repairs, but even if there were, they are irrelevant to the contraventions and the limitation period. If as stated by Mr Cousins these were for the purposes of supporting storage racks, which have since been removed, which seems more likely, they are also irrelevant to the contraventions and the limitation period.
Corrugated roof sheeting – defect 2
Defect 2 is the corrugated roof sheeting. It is noted that the original residential building had cement roof tiles and that these were replaced with corrugated roof sheeting, which was continued for the new front and rear extensions to the building. The rectification order sets out a number of problems with the corrugated roof sheeting, namely: that the roof pitch on the front and rear extensions is less than the required minimum; the front extension roof sheeting has been laid with the joints facing the prevailing winds; roof trusses are missing the required tie-downs; approximately 70% of the roof screws are overtightened, compromising the waterproof sealing; some roof screws have been left in place when the screw has not engaged with the intended underlying batten; and roof sheets do not project into the roof gutters the required minimum distance. The order states that evidence of water ingress corresponds with the roofing defects identified. Defect 2 is determined to be in breach of the Code, Part 3.5.1 Roof cladding and AS 1562.1:1992 Design and installation of roof sheeting and wall cladding.[52]
[52] Order, attached to the application, pages 5-6
Mr Cousins states that all of the works related to the corrugated roof sheeting were finished by 2003 and inspected in December that year.[53] The drawings discussed above at [52]-[57] confirm this; the approved plan notes in ref A dated 2 September 2003 that the roof cladding changed to colorbond corrugated steel roofing. Deborah Cousins confirms that timing, and that the extension was finished by 2003.[54] Robyn Marshall the cleaner states that the construction took place from 1999-2003, and that no renovation work was done to the house for well over 10 years before it was sold.[55] Mr Pudja does not dispute this except in relation to the front canopy, which I discuss below at [99]-[103].
[53] Statement of John Cousins dated 8 February 2024, exhibit A1 at [52]; applicant’s outline of submissions at [37]
[54] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [10]
[55] Statement of Robyn Marshall dated 26 February 2024, exhibit A4 at [5]-[6]
On this basis, there is significant evidence that the corrugated roof sheeting was built by 2003 (leaving aside the front canopy). I find this was the case. The act that caused the contraventions in relation to the corrugated roof sheeting happened, or ended, by the end of 2003. This is the relevant date for the commencement of the limitation period.
Shade cloth and canopy attached to roof
Mr Cousins states that between 2009 and 2012 he removed the front entrance pergola and replaced it with a removable shade sail; this was in turn removed and a new front entrance entry canopy added.[56] He suggests that these can be seen in the February 2012 and 2014 photographs. This canopy was attached to the roof. Mr Cousins admitted that he put a penetration through the existing roof structure to attach the canopy.[57]
[56] Statement of John Cousins dated 8 February 2024, exhibit A1 at [76]-[81]
[57] Transcript of proceedings dated 1 March 2024, pages 36-38
As noted, the problems identified with the roof are extensive and relate to features across its construction, particularly for the new, in 2003, front and rear extensions, namely: the roof pitch; the direction it has been laid; missing tie-downs; overtightened screws; roof screws left in place; and roof sheets not projecting the required distance. There is nothing in the order which suggests that the addition of the canopy has created these problems or is in any way related to these problems. Rather the order focusses on the new roofing for the original house, and the roofing for the new front and rear extensions to the building.
There is little in the reports of Mr Pudja which mentions or suggests that the shade cloth or canopy were any part of these problems. The Peak Consulting first report does state that the small front entry portico roof, which may mean the canopy over the front deck, lacks adequate gradient falls.[58] This however is not referred to in the order. As discussed above, I do not think that the terms of the Peak Consulting first report can be used to expand the terms of the rectification order.
[58] Peak Consulting first report (exhibit A7), page 14, attached to the notice of decision, which is attached to the application
It is also true that Mr Pudja notes that the roof sheeting to the front canopy had a manufacturer’s date stamp indicating it was manufactured in August 2010.[59] This is consistent with Mr Cousins statement that the new canopy was added between 2009 and 2012.
[59] Peak Consulting second report, exhibit R1, page 5
Therefore, in my view, the addition of the shade cloth and canopy did not cause any contraventions in relation to the corrugated roof sheeting, and this is irrelevant to the limitation period.
Flashing, downpipes and gutters – defect 3
Defect 3 refers to flashing, downpipes and gutters that do not meet the required standard. The order sets out a number of problems with the flashing downpipes and gutters. Defect 3 was determined to be in breach of the Code, Part 3.5.2 Gutters and Downpipes and AS 3500.3:1990.[60]
[60] Order, attached to the application, page 6
Mr Cousins states that all the works relating to the flashing, downpipes and gutters was finished at the latest by 2003. The works were inspected in December 2003.[61] There is support for this in the evidence of Deborah Cousins and their cleaner, the plans, and the photos. Mr Pudja casts no doubt on this.
[61] Statement of John Cousins dated 8 February 2024, exhibit A1 at [53]-[54]; applicant’s outline of submissions at [39]
On this basis, the evidence is that the flashing, downpipes and gutters were built by 2003. The acts that caused the contraventions in relation to the flashing, downpipes, and gutters therefore happened, or ended by the end of 2003. This is the relevant date for the commencement of the limitation period.
Wet areas – defect 4
Defect 4 refers to wet areas which allow water to escape into habitable spaces. The order sets out a number of problems with the bathroom, laundry and ensuite. These include that there was non-performing perimeter flashing at floor level openings for the bathroom, laundry and ensuite; there was excessive lipping between floor tiles; the work was constructed in a manner that does not prevent the damage of building elements caused by dampness or water overflow from the bathroom and laundry; a test indicated water leaking across the floor and entering a walk-in robe. Defect 4 was determined to be in breach of the Code, Part 2.4 Health and Amenity, Part 3.8.1 Wet areas and external waterproofing and AS 3740:1994.[62]
[62] Order, attached to the application, page 5
Mr Cousins states that he engaged a tiler to undertake the work in the bathrooms, ensuite and laundry, namely R West Tiles Pty Ltd. He says that the tiling of the ensuite was finished in 2000 and provided a waterproofing certificate dated 1 December 2000. He says that the work in the bathroom and laundry was finished by early 2003; he remembers this in particular because it was finished by the family birthday referred to above.[63] The drawings provided show that works on the bathroom, ensuite and laundry were part of the works which were completed by 2003. This timing is supported by Deborah Cousins[64] and Robyn Marshall.[65] This evidence is subject to the issue of the retiling, which I discuss below at [110]-[118]. Also subject to the issue of the retiling, Mr Pudja does not seem to dispute this evidence.
[63] Statement of John Cousins dated 8 February 2024, exhibit A1 at [55]-[59]; applicant’s outline of submissions at [40]-[41]
[64] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [10]
[65] Statement of Robyn Marshall dated 26 February 2024, exhibit A4 at [5]-[6]
On this basis, there is significant evidence that the wet areas were built by 2003. I find this was the case. Subject to the issue of the retiling, the acts that caused the contraventions in relation to the wet areas happened or ended by the end of 2003.
Retiling
In his further statement, John Cousins states that they did re-engage the tiler around 2006 to retile the ensuite floor.[66] Deborah Cousins confirms that in around 2005 or 2006 she decided that she wanted to update the ensuite and install new tiles, and that John engaged R West Tiles to come back to do this in 2006.[67] Mr Pudja did not contradict this timing.
[66] Statement of John Cousins dated 26 February 2024, exhibit A2 at [11]
[67] Statement of Deborah Cousins dated 26 February 2024, exhibit A3 at [11]-[13]
Andrew Purdon notes that the ensuite floor had been “overtiled” at some time after the original floor was laid. He says there are identical tiles in the bathroom. He does not express a view as to when that took place.[68]
[68] Statement of Andrew Purdon dated 20 February 2024, exhibit PJ1 at [25]
I find that the retiling took place in 2006. The evidence is that the original work and the retiling was undertaken by R West Tiles, not the applicant. No point was taken that this work was not done by the applicant, so I put this to one side.
It is not completely clear if this retiling in 2006 was responsible for the problems identified in the rectification order, or whether these were the fault of the earlier tiling in and before 2003.
Mr Pudja stated that he thought that the original tiles and waterproofing had failed and “this camouflage attempt is not acceptable”, by which he seems to be referring to the retiling.[69] Mr Pudja provided no basis for the suggestion that the retiling was done to camouflage the faults in the original tiling. Further, if Mr Pudja is correct, then this suggests that the problem was with the original tiling, which was completed in 2003, not the retiling in 2006. He confirmed this under cross-examination when he stated that “the fact is, the original tiles and waterproofing had failed and they were covered with another set of … tiles”; he continued “it’s not really going to fix the problem”.[70] If this is true, it is only the original tiling which is the problem.
[69] Peak Consulting second report, exhibit R1, page 11
[70] Transcript of proceedings dated 1 March 2024, page 52
Andrew Purdon gave evidence of the water runoff from the ensuite which suggests that the retiling may have had some impact on this.[71]
[71] Statement of Andrew Purdon dated 20 February 2024, exhibit PJ1 at [25]
More significantly, the rectification order does refer to excessive lipping between floor tiles and that the work was constructed in a manner that does not prevent the damage of building elements caused by dampness or water. It is possible that the retiling contributed to this.
Because in this case the rectification order at least mentions the tiling, and notwithstanding the evidence of Mr Pudja, I am willing to find that this retiling may have contributed to the contravention. On this basis, some of the acts that caused the contraventions in relation to the wet areas, defect 4, happened, or ended by the end of 2006. This is the relevant date for the commencement of the limitation period in relation to the retiling of the ensuite, as part of defect 4.
Conclusion in relation to acts that caused the contraventions
Therefore, the vast majority of the work in relation to the renovations which caused the contraventions happened or ended by 2003. The retiling of the ensuite, which may have contributed to the problems with the wet areas, defect 4, happened or ended by 2006. The addition of the pergola over the back deck, the overlaying of the back deck, the addition of the shade cloth and canopy over the front deck, and the repairs to the front deck, if any, were not acts which caused the contraventions set out in the order and are therefore not relevant to the limitation period.[72] Therefore, under the Old Act, the limitation period for most of the contraventions ended in 2014, and for the retiling of the ensuite, as part of the wet areas, defect 4, in 2017. The limitation period in the Old Act for these works had expired well before the Amending Act came into operation, at the end of 2019.
[72] Even if, contrary to this finding, they were acts which caused the contraventions, the addition of the pergola over the back deck happened or ended by 2007, and the overlaying happened or ended by the beginning of 2009. On this basis, the limitation period for these also expired before the Amending Act came into operation
It is necessary to consider therefore whether the limitation period in the Old Act or New Act applies.
Presumption against retrospective operation of legislation
Generally, in the absence of some clear statement to the contrary, an Act will be presumed not to have a retrospective operation.[73]
[73] Dennis Pearce, Statutory Interpretation in Australia (9thedition, 2019) (Pearce) at [10.1]; Diggory Bailey and Luke Norbury, Bennion, Bailey and Norbury on Statutory Interpretation (8th edition, 2020) at [7.14]
In the ACT this rule has now been set out in the Legislation Act which provides:
84 Saving of operation of repealed and amended laws
(1) The repeal or amendment of a law does not—
(a)revive anything not in force or existing when the repeal or amendment takes effect; or
(b)affect the previous operation of the law or anything done, begun or suffered under the law; or
(c)affect an existing right, privilege or liability acquired, accrued or incurred under the law.
(2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.
…
(5) This section is a determinative provision.(6) In this section:
liability includes liability to penalty for an offence against the law.
penalty includes punishment and forfeiture.
privilege includes immunity.right includes capacity, interest, status and title.
There are a number of sometimes difficult issues in relation to the presumption against retrospective operation of legislation. What does retrospective mean; what is a relevant right, privilege or liability; are there in effect exceptions for procedural provisions or provisions which provide for future acts based on past events? I deal with these below.
But first I note that there is significant case law supporting the application of the presumption and section 84 in the circumstances of this case.
Coleman
Coleman v The Shell Company of Australia Limited[74] was a case with complex facts, somewhat different to those here. However, Jordan CJ of the NSW Supreme Court reviewed the authorities and stated:
In the light of these considerations, I think it would be giving a retrospective operation to the Act of 1942 to hold that it enabled an action to be maintained in a case where it had ceased to be maintainable prior to the date when the Act came into force. So to hold would deprive the defendant company of a legal right to immunity from legal proceedings which had become vested in it prior to the Act.
Maxwell
[74] (1943) 45 SR (NSW) 27, at 31, Jordan CJ, Davidson and Halse Rogers JJ agreeing
Maxwell v Murphy[75] (Maxwell) concerned compensation to relatives legislation. The relevant old Act provided that any action should be commenced within 12 months of the relevant death. Mr Maxwell died on 19 March 1951 as the result of an accident. An amending Act which commenced on 16 December 1953 omitted the reference to 12 months and inserted 6 years. His widow issued proceedings on 30 November 1954.
[75] (1957) 96 CLR 261
The High Court held that the amendment did not operate to revive the plaintiff’s right to maintain an action which had been barred from 19 March 1952, before the amendment was made.[76] That is, the presumption against retrospectivity applied.
[76] Dixon CJ, Williams, Kitto and Taylor JJ, Fullagar J dissenting.
Dixon CJ stated that the general rule of the common law was that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect liabilities which the law had defined by reference to the past events. This was in contrast to laws regulating the manner, practice or procedure in which liabilities are to be enforced (sometimes called procedural laws).[77] Dixon CJ stated that the facts in Maxwell fell within the presumptive rule of construction against retrospective operation. The right of action was lost before the amending Act was passed; a remedy had been conferred and a bar had been imposed:
If the passing of the [amending Act] … revived her remedy that means that it revived a right which had ceased to exist and reimposed a liability on the respondent from which he had been discharged.[78]
[77] Maxwell at 267
[78] Maxwell at 268
Williams J stated that the limited time within which a new right of action may be enforced is of its essence:
… [the amending Act] is not merely procedural. Where the cause of action under the principal Act was out of time when it came into force and a consequential immunity had accrued to an alleged wrongdoer, the removal of that bar would necessarily affect his substantive rights.[79]
[79] Maxwell at 283
Such an amending Act should not be given retrospective operation without clear words. There were no such words, as the amending Act simply substituted one period for another.[80]
Yew Bon Tew
[80] Maxwell at 283
Similarly, Yew Bon Tew v Kenderaan Bas Mara[81] (Yew Bon Tew) concerned a bus crash which took place on 5 April 1972, and the relevant old Act at that time required that an action be brought within 12 months. On this basis, any claim became statute barred in April 1973. The law was subsequently amended from June 1974 to provide for a limitation period of 3 years. The plaintiff commenced proceedings in March 1975.
[81] [1983] 1 AC 553
The Privy Council made the important point that whether a statute is retrospective, and to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute.[82]
[82] Yew Bon Tew at 558-559
A lower court had held that the amending Act in Yew Bon Tew was a procedural provision, and therefore could operate retrospectively. But the Privy Council held that expressions of “retrospective” and “procedural” though useful in a particular context are equivocal and can be misleading. A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in another aspect of the same case (e.g. because it applies only to the post statute commencement of proceedings to enforce the same cause of action).[83]
[83] Yew Bon Tew at 558
Further, in developing its thinking, the Privy Council relied on Maxwell, especially the decision of Williams J, and the distinction between different types of amendments to statutes of limitations. As noted, Williams J stated that a statute which enables a person to enforce a cause of action which was then barred could hardly be described as merely procedural. This would rather affect substantive rights, and the presumption against retrospective legislation would apply.[84]
[84] Yew Bon Tew at 562; Maxwell at 277
The Privy Council held that on the failure of the plaintiffs to commence action within the specified period under the old Act, the defendants had acquired an accrued right which was designed to give them immunity, preserved by the relevant interpretation Act, and the amending Act was not retrospective in operation and had no application to a cause of action which was barred before the amending Act came into operation.
The Privy Council noted the injustice of an amending Act depriving a potential defendant of a limitation defence which they already possessed. Rather when a period of limitation has expired, a potential defendant should be able to assume that they are no longer at risk and order their affairs accordingly, including part with their papers.[85] This policy issue is relevant here, with the obvious difficulties of the parties proving things most of which happened more than 20 years ago.
Adoption and application of Maxwell and Yew Bon Tew
[85] Yew Bon Tew at 563
Not only does Yew Bon Tew adopt the approach of the High Court in Maxwell, but the approach in the two cases has been generally adopted by Australian courts.[86]
[86] See for example Burns v Minister for Health [2012] WASC 267 at [15]-[22]; Rodway v The Queen (1990) 169 CLR 515 at 518-519
The facts in these two cases are very close to the facts in this case. Here the Old Act provided that a rectification order should be commenced within 10 years from when the contravention happened or ended. That is, as found above, generally 2014, and for the ensuite wet areas, because of the retiling, 2017. The Amending Act commenced at the end of 2019 and the Registrar issued the order in 2023, both well after the limitation period under the Old Act had expired. Applying the decisions in Maxwell and Yew Bon Tew, the Amending Act did not operate to revive the Registrar’s right to issue the order which had been barred. I note that other factors and cases will be relevant if a new Act commences operation before the limitation period under the old Act has concluded.[87]
[87] Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629
Dennis Pearce summarises the Australian position by noting that in relation to a provision that if given effect would revive a cause of action that was otherwise barred, it is clear that the approach to be followed is to hold that the statute affects rights and therefore, in the absence of a clear contrary intention, should not be read as acting retrospectively. That such provisions might otherwise be said to be procedural was beside the point in such a case.[88]
[88] Pearce at [10.36]
On the basis of these cases, the Old Act limitation period applies, and the rectification order was issued out of time.
The respondent argued gallantly and on a number of bases as to why this result is not correct, which I now consider.
Effect of prerequisites to the exercise of the power to issue a rectification order
The respondent noted that there were a number of preconditions to the exercise of the power to issue a rectification order under the Old Act. These were that the respondent believed on reasonable grounds that a licensee had provided services otherwise than in accordance with the relevant legislation, and that it may be appropriate to make an order, which enabled a notice of intention to be given.[89] Further that the respondent had given the notice of intention to make an order, and was satisfied that there had been a contravention and it was appropriate to make the order.[90]
[89] Section 34 of the Old Act; respondent’s submissions at [7]-[10]
[90] Section 35(1); respondent’s submissions at [11]
The respondent stated that the pre-amendment version of section 35 conferred a discretionary power to be exercised in some circumstances, subject to the specific restrictions. This is correct, but I do not see how that is relevant to this issue.[91]
[91] Respondent’s submissions at [14]
It is then said, apparently in relation to the Old Act, but I assume also in relation to the amendments, that an application which fixes rights and liabilities to past matters and events does not fall within the concept of retrospectivity, citing Dixon J in Maxwell.[92] In fact, as noted above, Dixon J’s judgment is to the contrary in relation to a limitation period.
[92] Respondent’s submissions at [14]
It seems that the respondent is suggesting here that because the preconditions to the immunity arising had not all occurred while the Old Act was in operation, that therefore the applicant could not rely on it.[93] I do not think this correct. First, if all the preconditions arose under the Old Act, then the Old Act would have been in operation, and Mr Cousins could have relied on it.
[93] Transcript of proceedings dated 1 March 2024, pages 97-99
Second, it is only when there is an amending Act that these issues of retrospectivity arise.
Third, there is no requirement that all the procedural steps which are needed to claim the limitation must arise while the old Act is in force for the presumption against retrospectivity to operate in relation to the new Act. In both Maxwell and Yew Bon Tew, no claim was made under the old Act, so none of the procedural steps required for the plaintiff to make their claim and the respondent to assert the immunity had arisen. None-the-less when the claims were made, after the amendments, the respondents then raised the immunity in the proceedings, and put on appropriate evidence for determination by the courts. Mr Cousins has done the same thing here. The respondent also relies on cases concerning administrative actions,[94] rather than judicial proceedings, but in none of these administrative cases is the fact that procedures leading to the administrative action were not taken under the old Act held to determine the issue. The terms of section 84 of the Legislation Act clearly suggest that after the amending Act is made, relevant procedures can be started or continued under the Old Act.[95]
Was there a relevant right?
[94] See below paragraphs [156]-[161]
[95] See section 84(1)(b) and (c) and (2)
The respondent then argued that that the amendments did not alter any rights, but simply provided for a different method of calculating the 10-year period.[96]
[96] Respondent’s submissions at [15] and [19]-[21]
In my view, the Old Act section 35(3) did create a right not to have a rectification order made where the act that caused the contravention happened, or ended, more than 10 years before the day the Registrar proposes to make the order, and in this case that right had accrued before the Amending Act came into operation. This is the same right that was expressly upheld in Maxwell and Yew Bon Tew.
The respondent seeks to characterise this as a “restriction on the exercise of administrative power”.[97] I noted this argument at paragraph [28] above. But the legislation in Maxwell and Yew Bon Tew can equally be characterised as a restriction on the exercise of judicial power, namely a limitation provision. I do not see that there is any substantive difference.
[97] Respondent’s submissions at [21]
The respondent argued that there is no right because it only existed in theory, as:
… at no time prior to the amendment … did any, let alone all, of the preconditions exist; [and], …where no section 34 notice was issued at any time prior to 10 December 2019, then no ‘right’ under the pre-amendment version of section 35(3) to make a submission in response ever arose.[98]
For the reasons outlined above at [144]-[149] I do not think this is correct.
[98] Respondent’s submissions at [22]-[24]
The decisions in Maxwell and Yew Bon Tew clearly indicate that a limitation period can give rise to a relevant right. This is also supported by the breadth of the definitions of ‘privilege’ and ‘right’ in section 84(6) of the Legislation Act.
Esber
The respondent relied on Esber v The Commonwealth[99] (Esber) in relation to this point.[100] Esber concerned Mr Esber’s claim to redeem weekly payments which was rejected by the decision-maker, after which he appealed to the Administrative Appeals Tribunal for review. Before his application could be considered the relevant old Act was repealed, and the new Act provided that some weekly payments were not redeemable. The High Court applied the presumption against retrospectivity to this amendment and in that context. This factual scenario is very different to the one in this case; there is nothing in the decision which suggests that the scenario in Esber is the only scenario in which the presumption against retrospectivity operates, which is in effect what the respondent argues. Further, Mr Esber did not have a right to a lump sum – he only had a right to apply for a lump sum. The Court held he had a right to have his application determined under the relevant old Act.[101] Here the applicant had more than a right to make an application for an immunity; he had a statutory immunity from proceedings if the act that caused the contravention happened, or ended, more than 10 years before the Registrar proposes to make an order. And in this case the immunity had accrued before the Amending Act was made.
[99] (1992) 174 CLR 430
[100] Respondent’s submissions at [25]
[101] Esber at 439-440
The Court in Esber usefully indicated that then section 8 of the Commonwealth Acts Interpretation Act 1901, now section 7, the equivalent of section 84 of the Legislation Act, protects “anything that may truly be described as a right, ‘although that right may fairly be called inchoate or contingent’”.[102] This provides another basis for doubting the respondent’s arguments about preconditions and rights.
Amendment provides for future action based on past events
[102] Esber at 440
The respondent argues that in this case the relevant amendment in the Amending Act was only a basis for future action based on past events.[103]
[103] Respondent’s submissions at [28]-[30]; transcript of proceedings dated 1 March 2024, pages 99-107
It is important to consider when this exception or principle arises. In my view, the respondent articulated the principle too broadly. As noted above, it clearly did not apply in relation to the legislation considered in Maxwell and Yew Bon Tew.
Re a Solicitor’s Clerk
A key example of this principle is Re a Solicitor’s Clerk.[104] There a clerk was convicted of larceny; but no disciplinary order could be made because under the relevant legislation he had not stolen from his employer or their client; the Act was amended to provide for such an order. The Court said that the amendment enabled an order to be made disqualifying a person in the future, and what happened in the past is the cause or reason for the order, but the order had no retrospective effect. This was in contrast to an amendment which provided that something done before the amendment was void or a penalty. As has been noted in later cases, the amendment in Re a Solicitor’s Clerk was not concerned with a primary penalty, but with the use of past history as an indicator of present fitness, where the focus is on the protection of the public from future actions.[105]
D’Arro
[104] [1957] 1 WLR 1219
[105] Nicholas v Commissioner for Corporate Affairs [1988] VR 289 at 298
The respondent relied in particular on D’Arro v Queensland Building and Construction Commission[106] (D’Arro). Unfortunately, the factual situation in that case is complicated. In summary, there were 4 companies associated with the applicant which together operated a design and construction business. One of them held a building licence. Liquidators were appointed to each of the companies and the applicant was made bankrupt. The legislation prevented the granting of a licence to a ‘permanently excluded individual’ who was taken not to be a fit and proper person. A permanently excluded person included an individual who had twice been excluded for a relevant event. The respondent decided that the applicant was an excluded individual because of the appointments of the liquidators and his bankruptcy. The applicant applied to be a permitted individual, but this was refused.
[106] [2017] QCA 90
He appealed these decisions to the Queensland Civil and Administrative Tribunal (QCAT). Before it made its decision, the relevant old Act was amended to provide an argument to the applicant that he should not be an excluded individual, and should be a permitted individual. The issue was whether these amendments applied.
The Queensland Court of Appeal in summary held that it was the amending Act which should be applied by the QCAT, principally on the basis that that this was legislation providing for future action based on past events. This is a reference to the line of authority, including Re a Solicitor, which establishes that a statute, the object of which is to protect the public interest by disqualification based on conduct antecedent to the enactment, does not fall within the principle of retrospectivity.[107]
Nicholas
[107] D’Arro at [34], quoting Nicholas v Commissioner for Corporate Affairs [1988] VR 289 at 297, and Re a Solicitor’s Clerk
Another case in this line is Nicholas v Commissioner for Corporate Affairs[108] (Nicholas), which was relied on extensively in D’Arro. This concerned the operation of an amendment to the provisions prohibiting a director from taking part in the management of a company due to conduct prior to the amendment. In that case, as noted Kaye J stated that there is a line of authority which establishes that a statute the object of which is to protect that public interest by disqualification based on conduct antecedent to the enactment, does not fall within the principle of retrospectivity. His Honour went on to say that such provisions do not affect or change the legal character of the consequences of past events, and nor do they impose penalties for conduct antecedent to the enactment of the section[109]
[108] [1988] VR 289
[109] Nicholas at 297 and 299, quoted in D’Arro at [34]
In my view, the decisions in Re a Solicitor’s Clerk, D’Arro and Nicholas are clearly limited to the exception from the presumption against retrospectivity for laws which amend the grounds for disqualification of people based on their past conduct, in order to protect the community from future conduct by them. This is not the position here. Rather in this case, the provisions are not about disqualification of the applicant at all. They are rather providing for a primary regulatory, or tort like, remedy and penalty for past contraventions of building regulations, which can be made within a specified period. In such a situation, the decisions in Re a Solicitor, D’Arro and Nicholas do not apply, as Kaye J indicated in the quote at paragraphs [159] and [160] above.
Procedural, not substantive right
As noted, the courts often draw a distinction between amending laws which affect liabilities, where the presumption applies strongly, and those which affect only procedure, where the presumption is weaker and often does not apply. It is difficult to characterise limitation periods within this formulation, but it is clear that where a law affects a limitation period, especially one which has already expired, the presumption will be applied.
Contrary intention
The party joined also argued that there was a contrary intention expressed in the Amending Act. The argument was that the relevant words in the Amending Act contained words of apparently general application, and this was enough to show a contrary intention.[110]
[110] Transcript of proceedings dated 1 March 2024, pages 17-18
I do not think that the use of words of apparently general application is enough. Where there are words of general application, this is the very circumstance where the presumption applies, to limit those words to have only a prospective effect. The amendments in both Yew Bon Tew and Maxwell were of apparently general application, simply changing the terms of the limitation period, but in both cases the courts applied the presumption against retrospectivity and held that there was no contrary intention.
Further, section 84 of the Legislation Act is a determinative provision under the Act. Such a determinative provision may only be displaced expressly or by a manifest contrary intention. There is no evidence of either here. Section 6 of the Legislation Act gives an example of an express displacement, which is that the relevant section of the Legislation Act “does not apply”. Such words are not present here. It also gives an example of a manifest contrary intention to displace the requirement for adoption in section 47(3) to laws or instruments “as in force only at a particular time”. This is by use of words “from time to time”. Such words are also not present here.
Conclusion in relation to retrospectivity
Therefore, I find that the presumption against retrospective legislation applied to the Amending Act in relation the changes it made to the limitation period, where the limitation period in the Old Act had elapsed. In my view this is the case here.
The decision to make the rectification order should not and could not have been made. In my view this finding finalises the application and these proceedings. The Tribunal therefore makes an order under section 68 of the ACAT Act setting aside the decision to make the rectification order, and a decision is made in substitution not to make a rectification order.
………………………………..
Senior Member R Orr KC
| Date(s) of hearing: | 1 March 2024 |
| Counsel for the Applicant: | Dr A Greinke |
| Solicitors for the Applicant: | P Hall, MV Law |
| Counsel for the Respondent: | WDB Buckland |
| Solicitors for the Respondent: | S Ng, ACT Government Solicitor |
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