JOHN MORGAN and CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline)

[2011] ACAT 18

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOHN MORGAN and CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline) [2011] ACAT 18

OD 2 of 2011

Catchwords:             OCCUPATIONAL DISCIPLINE – construction occupation – application to review condition on licence – application for interim stay of condition - threshold requirement of disadvantage or harm under section 53 of the ACT Civil and Administrative Tribunal Act 2008 – discretionary power to grant stay - factors relevant to exercise of discretion in a regulatory context  - threshold requirement not met

List of legislation:     ACT Civil and Administrative Tribunal Act 2008, s.53

Construction Occupations (Licensing) Act 2004, s.80

Tribunal:                  Ms Linda Crebbin, General President

Date of Orders:  11 February 2011  
Date of ex tempore Reasons:      11 February 2011

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          OD 2 of 2011

BETWEEN:

JOHN MORGAN

Applicant

AND:

CONSTRUCTION OCCUPATION REGISTRAR

Respondent

TRIBUNAL:            Ms Linda Crebbin, General President

DATE:  11 February 2011

INTERIM ORDER

1.        The application for an interim order is dismissed.

………………………………..

Ms Linda Crebbin

General President

EX TEMPORE REASONS FOR DECISION

1. This is an application by Mr John Morgan to review a decision of the Construction Occupations Registrar (the Registrar) to impose a condition on his licence. The application is listed this morning for delivery of a decision in relation to an interim application.

2. Mr Morgan seeks an interim order staying the decision of the Registrar to impose a condition on his licence number 1973893.  The licence licenses Mr Morgan as a building surveyor to provide building certificate services or works assessment services. 

3. Mr Morgan was advised by letter dated 22 December 2010 that the respondent had decided to place two conditions on his licence.  The parties have told the tribunal that the second of the two conditions is no longer pressed by the Registrar. 

4. The condition that is the subject of Mr Morgan’s application, is as follows:

All records associated with activities related to licensable construction services provided by the holder of licence 1973893 be kept in hardcopy format at the address of the place of business where you conduct your licensed activities from and be immediately available for inspection by compliance auditors appointed under section 76 of the Construction Occupations (Licensing) Act 2004 upon direction under section 80 of the Act.

5. At the hearing of the interim application yesterday, the Registrar accepted that the condition should be amended so that it relates to the keeping of records about the applicant’s active or current building surveyor work only, in either hardcopy or electronic format, at his business premises at Deakin (the amended condition).  That is different, in many respects, from the condition that was the subject of the decision notified to Mr Morgan in the letter dated 22 December 2010.

6. Mr Morgan’s interim application is brought under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Section 53 of the ACAT Act gives the tribunal a power to make interim orders to protect the position of a party to proceedings before it. Subsection (1) of section 53 of the ACAT Act sets a threshold that must be met before the tribunal’s power is enlivened.

7. The tribunal must be satisfied that if an order were not made before the substantive application is heard, the party applying for the order would be disadvantaged or suffer harm. This is a threshold requirement. If it is met, the tribunal has a discretionary power provided by subsection (53)(2) of the ACAT Act to make an order that it considers appropriate to protect the position of the party that applied for the order. The tribunal’s discretion under subsection (53)(2) of the ACAT Act goes to both the making of the order and to the terms of the order.

8. The threshold requirement is established by a finding that the evidence before the tribunal establishes that the applicant would be disadvantaged or suffer harm if an order was not made.  It is for the applicant to satisfy the tribunal of the requirement. 

9. The words ‘be disadvantaged’ and ‘harm’ are not defined in the tribunal’s legislation.  They bear their ordinary meaning.  ‘Harm’ requires the applicant to demonstrate something in the nature of an injury, loss or damage. ‘Disadvantage’ comprehends that the applicant would be affected unfavourably, or placed in an unfavourable position, or have some barrier or impediment placed in the way of their advancement. 

10. The threshold requirement is not a high barrier.  The legislation does not require that the harm or disadvantage be serious or significant.  However, a finding that an applicant would be disadvantaged or would suffer harm requires the tribunal to be satisfied of something more than mere inconvenience.

11. If the threshold requirement is met, the tribunal has discretion to make an appropriate order.  Where the order to be made is in the nature of a stay, the exercise of that discretion should, in my view, be informed by the substantial body of jurisprudence relating to the exercise by tribunals and courts of powers to grant stay orders. 

12. In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely: 

(i)whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application; 

(ii)whether any prejudice would be suffered by any party if a stay was not granted;

(iii)whether public safety or the public interest would be imperilled if a stay is granted; and

(iv)whether the substantive application would be pointless or rendered nugatory if the stay is not granted. 

13. The last three factors can be characterised as related to a broader consideration of the balance of convenience[1]. 

[1] See re Snook and Civil Aviation Safety Authority 109 ALD 122 and the cases cited therein

14. Having considered the evidence presented and the submissions made, I am not satisfied that the applicant would be disadvantaged or would suffer harm if an order was not made staying the imposition of an amended condition in the terms described by the respondent’s counsel at yesterday’s hearing. 

15. In a statement provided to the tribunal and confirmed under oath, Mr Morgan identified five ways in which he would be significantly inconvenienced if a stay of the decision was not granted[2]. 

[2] Para 15, Ex A1

16. Mr Morgan says that he would be caused significant inconvenience because the condition would require him to maintain hard copy records of documents despite it being his usual practice to maintain electronic records.  That concern is addressed by the Registrar’s concession that the condition should be amended to provide for the keeping of hard copy or electronic records. 

17. Secondly, Mr Morgan says that he would be inconvenienced by being required to maintain records at the offices of Morgan Engineers ACT despite it being his usual practice to keep records electronically stored on his laptop. He needs to have the laptop and hence the records with him when performing building surveyor duties at various sites throughout the ACT. 

18. His evidence was that some hard copy records are kept at his office but that the bulk of his records are electronically stored on his laptop which accompanies him. At any one time the laptop may be at the Deakin office, in his car, on a building site with him, or in his home.  In many respects, the laptop is the mobile office or “the premises” used by Mr Morgan to conduct his business.

19. Counsel for the Registrar asked Mr Morgan whether it would be possible for him to make a copy of the records on the lap top or some subset of that material and to keep the copy at the business premises.  Mr Morgan indicated that it would not be possible because the records on his laptop were mingled. 

20. Mr Morgan described a process by which he makes a backup copy or a duplicate record of the whole of the contents of his laptop. The records are backed-up onto an external hard drive by an automatic download process that occurs five nights a week at his home. It is clear that Mr Morgan has a duplicate of all of the electronic records relating to his licensable activities, amongst other records, at his home.

21. I do not accept that the exercise of also maintaining a copy of the relevant records electronically at the Deakin premises, is such a difficult exercise that any inconvenience associated with it should be elevated to the status of a disadvantage or harm.  I do not accept that the mingling of records, which is a choice made by Mr Morgan, is something that can be held up by him as a disadvantage that should lead this tribunal to stay the Registrar’s decision. 

22. Mr Morgan clearly has a sophisticated understanding of, and makes a sophisticated use of, electronic technology.  It sounds as though he has almost achieved a full electronic office. A person with that degree of sophistication in the use of electronic technology would, in my view, have no difficulty, either through a manual process (perhaps by transferring records to a disc or thumb drive) or by the set up of the automatic download onto an external hard drive, in ensuring that an electronic copy of records relating to licensable activities can be made and kept at an office.

23. Thirdly, Mr Morgan contends that the condition would cause inconvenience to employees of Morgan Engineers ACT and the sub-tenant of the office premises, as they may be subject to requests for the production of documents relevant to the building surveyor’s licence despite the fact that they are not involved with or familiar with that aspect of the business. 

24. This is not an inconvenience that is caused by the amended condition. The inconvenience, if any, flows from the application of the statutory obligations imposed by section 80 of the Construction Occupations (Licensing)
    Act 2004 (CO(L)A). It is section 80, CO(L)A, and not the amended condition, that requires people who are on business premises, or a person who is apparently in charge of the premises or the occupier of the premises; to do things in response to requests.  The imposition of the condition makes no difference to the statutory obligations imposed by section 80, CO(L)A.

25. The fourth matter raised by Mr Morgan is that the condition would require him to stay in his office during business hours to ensure compliance with any obligation to immediately produce any document.  I don’t accept that that is the case. The condition does no more than require Mr Morgan to maintain records in either hard copy or electronic format at the premises.  The requirement to produce documents flows from the powers given to compliance auditors under section 80, CO(L)A.  There is nothing in the condition itself that would require Mr Morgan’s presence in any particular place at any particular time.

26. Fifthly, Mr Morgan says that the condition would require him to take steps to separate records relating to his building surveyor’s licence from records relating to his Morgan Engineers ACT business to ensure the privacy and confidentiality of the latter.  When Mr Morgan gave evidence yesterday he referred also to his concern that records relating to taxation and other personal matters would be affected by the condition.

27. I don’t accept that this flows as a consequence of the condition.  The amended condition relates to records concerning the current or active work being undertaken by Mr Morgan in relation to licensable activities.  The condition says nothing about how or where he should keep any other records.  It is a matter for Mr Morgan to decide how and where he keeps his tax records or other business records. If he chooses to mingle records relating to his building surveyor work with his private records or with his engineering records, that is a matter for him.

28. The risk that the Registrar may see or have access to other records only arises if Mr Morgan produces his records and makes them available in a way that incorporates those other matters.  Section 80, CO(L)A and not the amended condition, deals with the inspection of records.  I note that section 80 refers to the inspection of documents relating to the licensee’s activities.  That must, of necessity, mean the licensee’s licensable activities. There is no reason why Mr Morgan should be concerned about producing other records, even if he keeps all his records together.

29. Section 80(3)(d)(ii), CO(L)A does open up the possibility that an auditor may have access to a computer on which a range of information is stored, apart from information relating to licensable activities.  But Mr Morgan could address his concerns in relation to the risk of that happening by either producing copies of documents concerning his licensing activities only, or storing his electronic material in a way that minimises that risk.  That is his choice, and not something that flows as a consequence of the amended condition itself.

30. Mr Morgan’s counsel added to the list of matters by submitting that Mr Morgan would be disadvantaged by having to comply with a condition that is beyond the power of the Registrar to impose under the statutory framework under which the Registrar operates.  Counsel noted that the statutory framework does not include an obligation to keep records, let alone to keep records at a particular place.

31. Secondly, counsel submitted that Mr Morgan would be disadvantaged by having to comply with a condition imposed as a result of the exercise of a decision-making power tainted by a fundamental procedural flaw.  He submitted that the flaw was so fundamental that, if an application for judicial review were made to the Supreme Court, the decision made by the Registrar would inevitably be struck down. Counsel for the Registrar conceded that there were flaws in the decision-making process.

32. As to the first of these matters, it is neither possible nor appropriate for the tribunal in the context of this interim application to decide a question as to the extent of the Registrar’s power to impose conditions.  That is a complex question.  It requires a detailed examination of the statute under which the Registrar exercises his powers and an analysis of the purpose of the legislation, amongst other things.  It is properly a question for the substantive hearing in this matter.  I cannot be satisfied that Mr Morgan would be disadvantaged on the basis of a finding today that the amended condition was beyond the power of the Registrar to impose.

33. I have given considerable thought to the second issue raised by counsel; namely, that the condition was imposed as a result of an exercise of power tainted by a fundamental procedural flaw and that to hold Mr Morgan to it now, would cause him to be disadvantaged.

34. The view I have reached is that, to engage in consideration of that issue would stray into areas that are properly the concern of a judicial review process. My focus, as Counsel appropriately said, must be on the exercise of the Tribunal’s statutory power given by section 53 of the ACAT Act.

35. In the circumstances set out above, I am not satisfied that Mr Morgan would be disadvantaged or would suffer harm if an order of the sort that he seeks were not made. The threshold requirement of section 53 of the ACAT Act is not met and the power that the tribunal has under section 53 to make a stay order is not enlivened.

36. Had I found that the threshold requirement was engaged and that a stay could be ordered, I would have declined to make such an order.  The amended condition should, on the balance of convenience, remain in place pending the substantive hearing of this application.

37. It is clear from the material before the Tribunal that there is a serious issue to be tried on the substantive application.  There is an issue that goes to the power of the Registrar, the circumstances in which that power should be exercised, and what an appropriate exercise of such a power is.  These are all serious and complex matters. 

38. Compliance with the condition is not so prejudicial to Mr Morgan that it tips the balance of convenience in his favour. 

39. I cannot determine the extent to which the public safety would be imperilled if the condition were not in place, but I note that this decision is made in the context of a significant regulatory power created for public interest or public safety reasons. It is a condition that I would be loath to set aside without strong evidence of some prejudice to Mr Morgan. 

40. The substantive application would not be made pointless or rendered nugatory if the stay is not granted.  The substantive application will determine whether the condition should continue on an ongoing basis either in its current form or in some other form, or perhaps not at all.  This is not a case in which the decision to impose the condition, destroys or somehow fundamentally affects, the subject matter of the application itself.

41. Had I been satisfied that Mr Morgan would suffer some disadvantage or harm such that a stay should be considered, I would have exercised the discretionary power given to the tribunal under sub section 53(2) of the ACAT Act to refuse to make an order.

42. The application for interim orders is dismissed.

………………………………..

Ms Linda Crebbin

General President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                JOHN MORGAN
RESPONDENT:            CONSTRUCTION OCCUPATIONS REGISTRAR

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          Griffin Legal, Mr Tallboys

RESPONDENT:      ACT Gov Solicitor, Mr Walker

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER: MS LINDA CREBBIN, General President

DATE OF HEARING:              10 & 11 February 2011  PLACE: CANBERRA

DATE/S OF DECISION:          11 February 2011       PLACE: CANBERRA

PART B

RECOMMENDATION:

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

COMMENTS: