John Cousins v Construction Occupations Registrar (Occupational Discipline)

In the case of John Cousins v Construction Occupations Registrar, the applicant, Mr Cousins, sought to have a rectification order set aside, which required him to bring his property up to compliance with the relevant building standards. The dispute primarily revolved around the interpretation of statutory provisions, specifically the Old Act, and the applicability of the presumption against retrospective legislation. The respondent, the Construction Occupations Registrar, argued that the order was valid and enforceable. The case was heard in the Administrative Appeals Tribunal, and the primary issue for the tribunal was whether the rectification order could be issued under the Old Act, given the changes in legislation over time.

The tribunal considered whether the rectification order could be issued under the Old Act and if the changes in legislation over time, particularly the presumption against retrospective legislation, impacted the enforceability of the order. The tribunal examined the legislative history and the provisions of the Old Act, including the example provided in section 35, which discussed a scenario similar to Mr Cousins' situation. The tribunal also looked at the relationship between the rectification order and the expert report by Peak Consulting, which supported the order's references to poor structural integrity. However, the tribunal found that the terms of the Peak Consulting report could not be used to expand the terms of the rectification order beyond what was expressly or implicitly stated.

In its decision, the tribunal relied on significant case law supporting the presumption against retrospective operation of legislation, as outlined in the Legislation Act. The tribunal referenced Coleman v The Shell Company of Australia Limited and Maxwell v Murphy, where the courts had held that amending legislation would not revive a right to maintain an action that had been barred before the amendment was made. The tribunal concluded that the presumption against retrospectivity applied, and the rectification order could not be enforced under the Old Act.

As a result, the tribunal set aside the decision by the respondent to issue the rectification order to Mr Cousins and made a decision in substitution not to make a rectification order. This decision was based on the tribunal's finding that the rectification order could not be issued under the Old Act and that the presumption against retrospective legislation applied to the case.