Jones v The Architects Board of Western Australia
[2004] WASCA 219
•1 OCTOBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: JONES -v- THE ARCHITECTS BOARD OF WESTERN AUSTRALIA [2004] WASCA 219
CORAM: STEYTLER J
TEMPLEMAN J
SIMMONDS J
HEARD: 24 AUGUST 2004
DELIVERED : 1 OCTOBER 2004
FILE NO/S: CIV 1289 of 2003
BETWEEN: BARRY PETER JONES
Applicant
AND
THE ARCHITECTS BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Administrative law - Natural justice - Application for writ of certiorari against the Architects Board of Western Australia - Whether there was apprehended bias as a result of organisation to which members of the Board also belonged being engaged in litigation against the applicant - Whether the Board failed to decide whether it was properly constituted - Whether discretion not to quash decision should be exercised
Architects Board of Western Australia - Disciplinary proceedings - Whether sufficient evidence to find architect guilty of misconduct
Costs - Costs thrown away as a result of modification of grounds for order nisi - Whether costs should be borne by instructing solicitors
Legislation:
Architects Act 1921 (WA), s 5, s 22A, s 29(1), s 29(2)
Rules of the Supreme Court 1971 (WA), O 66 r 5
Result:
Order nisi discharged with costs
Category: B
Representation:
Counsel:
Applicant: Mr G M G McIntyre SC
Respondent: Mr J D Allanson
Solicitors:
Applicant: Corser & Corser
Respondent: Deacons
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dale v New South Wales Trotting Club Ltd [1978] 1 NSWLR 551
Gudgeon v Black (1994) 14 WAR 158
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433
Public Service Board of NSW v Osmond (1986) 159 CLR 656
R v The Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Re Refugee Tribunal; Ex parte H [2001] HCA 28
Case(s) also cited:
Attorney-General v Times Newspapers Ltd [1974] AC 273
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chesterfield Properties PLC v Secretary of State for Environment [1997] EWHC Admin 709
Craig v South Australia (1995) 184 CLR 163
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
DBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Engler v Commissioner of Taxation (No 2) [2003] FCA 411
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Hammond v Commonwealth (1982) 152 CLR 188
Johnson v Johnson (2000) 201 CLR 488
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Pettitt v South Australian Tattersall's Club [1930] SASR 258
Price v Clack (1906) 6 SR (NSW) 611
R v Bowe Street Magistrate; Ex parte Pinochet (No 2) [2000] 1 AC 119
R v Lord Saville; Ex parte A [2000] 1 WLR 1855
R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Thomas v Hayward (1907) 9 WALR 212
Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492
Victoria v Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 152 CLR 25
Watson v Commissioner of Taxation (1999) 96 FCR 48
Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29
STEYTLER J: I have had the advantage of reading the judgment of Simmonds J. I agree with it and with his conclusion that the order nisi should be discharged. Like Simmonds J, I would hear further submissions on the question of who should bear the costs thrown away as a consequence of amendments to the grounds of the order nisi.
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Simmonds J. I agree with his Honour that the order nisi should be discharged, essentially for the reasons he gives, and that the costs issue should be the subject of a further hearing. However, I wish to make some additional observations in relation to the issue of apprehended bias.
At the commencement of the hearing before the Architects Board on 3 September 2002, Mr Bower, Mr Jones' solicitor, raised a number of issues including that of apprehended bias.
Mr Bower explained the principle to the Board and illustrated its application by reference to a number of authorities. Having done so, Mr Bower set out his client's position very succinctly in the following way:
" … The essence of the submission is that the appearance is that where members of this Board is (sic are) also members of the professional body that has an outstanding current litigation in the Supreme Court against the Joneses and where some of them are even officers of the entity that's suing them, then they shouldn't be seen to sit on this enquiry." (AB 59)
As Mr Bower had pointed out earlier in his submission, and as was the case, the litigation had been brought by Archicentre Ltd and The Royal Australian Institute of Architects ("the RAIA") against Mr and Mrs Jones. Although Archicentre Ltd was a company incorporated in Victoria, it alleged in its statement of claim that its business in Western Australia was managed by the Western Australian chapter of the RAIA.
The plaintiffs were seeking relief which included an injunction restraining Mr and Mrs Jones from carrying on any business using the name "Archicentre" or words which were substantially the same or deceptively similar. One of the complaints against Mr and Mrs Jones arose from the way in which their business was advertised in the Yellow Pages telephone directory and on the internet. The action had been commenced on 24 December 1999. Mr and Mrs Jones' defence and counterclaim was filed on 1 March 2000.
Mr Jones, in an affidavit of 14 March 2003, said that soon after receiving the writ and "lodging an intention to defend" (which I take to be a memorandum of appearance) he and his wife were summoned to a conference. There, one Robert Caulfield who represented the plaintiffs in the action "threatened that if my wife and I did not stop carrying out business under the name Archicentre he would use his position to make a formal complaint against me with the respondent". That allegation has not been denied. Mr Caulfield is a past president of the RAIA and was the executive officer of RAIA Archicentre.
Mr Jones said it was shortly after this incident that he received the complaint of December 1999. This, I think, must be an error, having regard to the fact that the proceedings were not commenced until 24 December of that year. According to Brian Frederick Charles Wright, the chairman of the Board at the material time, the Board received complaints "in or around June 2000. One of the complaints was from the RAIA's Archicentre organisation. It was these complaints which prompted the Board to issue a notice of enquiry to Mr Jones on 29 August 2000. Mr Jones raised a number of objections to that notice which the Board then withdrew. It was replaced by a notice dated 1 November 2000.
The Board held an enquiry on 5 December 2000. By letter of 14 December 2000, Mr Wright notified Mr Jones that he had been reprimanded by the Board and ordered to pay the costs of the enquiry. Mr Wright's letter contained an instruction to Mr Jones to cease advertising in certain specified respects.
It was Mr Jones' alleged failure to comply with all of the Board's requirements that led to the enquiry now in issue.
In the meantime, nothing of consequence happened in the action. In his affidavit of 14 March 2003, Mr Jones said the plaintiffs had proceeded with the case very slowly and that there had been no action to advance it "for about two years". Mr Jones' evidence has not been contradicted. Nor is it suggested that the action is any further advanced now than it was then.
In these circumstances, I consider that an apprehension of bias on the part of the fair‑minded lay observer would be eminently reasonable. In the light of Mr Jones' uncontradicted evidence, such a person might well think that the Board's conduct was calculated to achieve in a summary way at least some of the objectives being pursued in the Supreme Court proceedings, the RAIA having pre‑judged the issue. This might be thought to result in a financial benefit to the RAIA, though its Archicentre organisation. In my view, that is a reasonably possible consequence the curtailment of Mr Jones' business activities.
The submission put to the Board by its own solicitor at the hearing on 3 September 2002 was that "simply being a member of the RAIA is not a sufficient basis for saying there's the apprehension of bias. What would be required is some kind of involvement in the Supreme Court proceedings against Mr Jones".
That advice was accepted by Mr Wright, as Chairman of the Board. He asked the members present whether they had been involved in the Supreme Court action. That was clearly an appropriate question. However, even though the members of the Board who ultimately conducted the enquiry had no involvement in the action, four out of the five were members of the RAIA. And that body had already formed the view that Mr Jones' conduct was dishonest.
In those circumstances, I consider that to remove a reasonable apprehension of bias, it would have been necessary to establish that the members of the Board had no knowledge of the Supreme Court proceedings or at least, of the nature of the allegations made against Mr Jones. That question was not asked.
In my view, if the Board members were aware of these matters, they should not have proceeded with the enquiry. I do not think it would have been open to the Board to contend that in those circumstances it would be impossible for them to discharge their statutory function in relation to misconduct. Given that the RAIA had instituted the action and therefore had an obligation to prosecute it diligently, the proper course for the Board would have been to delay their consideration of the misconduct issue until after judgment had been given.
I have set out these matters because I view the apprehension of bias issue somewhat differently from Simmonds J. However, I respectfully agree with his Honour that it is only the apprehension of bias which would provide a basis for review in the present case. But even on the view I take, I would not exercise any discretion in Mr Jones' favour. In reaching that conclusion, I respectfully agree with the reasons given by Simmonds J. I place particular weight on the fact that Mr Jones did not exercise his right of appeal to the District Court and that he delayed in applying for a prerogative writ. Further, although the apprehension of
bias point was taken before the Board, it was not pursued after Mr Schubert was replaced by Dr Pitman. The Board was not, therefore, alerted to the problem in the way it appears to me.
SIMMONDS J: Barry Jones had been registered as an architect for 17 years. This was until, on 1 October 2002, his registration was cancelled by the Architects Board of Western Australia. The Board cancelled his registration because of his involvement in a business, ArchiCentre Building Advisory Service. The Board had, following a hearing in September 2002 at which it had inquired into the matter, determined that Mr Jones had been guilty of "misconduct" for the purposes of the legislation governing the practice of architecture, the Architects Act 1921 (WA). Mr Jones now asks us to quash this decision, by way of a Writ of Certiorari.
Senior counsel for Mr Jones relies on six grounds, which replace those for which he was originally granted the order nisi for these proceedings. In argument before us, the six grounds resolved themselves into five issues. First, was the Board precluded from conducting its hearing because of how the Board was constituted? Secondly, whether or not the membership of the Board was appropriate for the hearing, had the Board improperly failed to decide whether it was properly constituted? Thirdly, assuming the Board could hear the matter, had the Board asked itself the wrong legal questions in making its determination? Fourthly, assuming the Board had not erred in that way, was there evidence to support the determination the Board made? And fifthly, assuming any or any combination of these bases for review of the Board's decision were made out, then should the Court quash that decision?
There is a further issue that emerged before us and concerns only the legal representatives of Mr Jones. That issue is whether the costs thrown away as a result of the modifications of the grounds for the order nisi should be borne personally by the instructing solicitors to senior counsel for Mr Jones. I deal with this issue as the end of these reasons.
To understand the modified grounds for the order nisi and the first four issues, it is first necessary to say more about ArchiCentre Building Advisory Service.
ArchiCentre Building Advisory Service
ArchiCentre Building Advisory Service was a registered business name. Its registration indicated that the business was supplying building advisory and reporting services. This registration also indicated that as at
the date of the Board's decision the business had been carried on for about 12 years. For all but the first 3 weeks of that period, the owner of the business was Lesley Anne Jones, acting as trustee of the Jones family trust. She is the wife of Mr Jones. His affidavit of 14 March 2003 says (par 5) that he had "continuously represented" the business, "concentrating almost exclusively on providing building inspection services, including reports and advice to clients who are contemplating buying property and reports for use in legal proceedings, mostly with respect to disputes concerning defects in buildings or in work done on them". Mr Jones figured prominently in the advertising for the business, as I will indicate below.
The Composition of the Board for its Hearing
Mr Jones' ground 7 was that a fair-minded lay observer might apprehend the Board might be biased against Mr Jones. This apprehension, it was said, would rest on the fact that all but one of the members of the Board that made its decision were members of a body which at the same time was engaged in litigation against the Joneses. The body was the Royal Australian Institute of Architects. The litigation was in respect of the activities of ArchiCentre Building Advisory Service.
The Institute is a national body which is organised as a company and has state chapters. It appears that a large proportion of, if not all, registered architects in this state belong to the Western Australian chapter. The litigation against the Joneses was in the Supreme Court (CIV 2467/99). The Institute, and a subsidiary, ArchiCentre Ltd, were the plaintiffs. They were seeking to prevent the Joneses from using the name "Archicentre" or a similar one to carry on any business, and from infringing the trade mark "Archicentre". There were also claims for damages, an account of profits, and other incidental relief. By comparison, the Board's hearing was under s 22A of the Architects Act, which authorises the Board, once it has determined that a registered architect has been guilty of "misconduct" as the section defines it, to impose a range of penalties, including cancellation of the architect's registration.
Senior counsel for Mr Jones said that (in effect) a fair‑minded and reasonably informed lay observer would have viewed a cancellation penalty in this case as having the potential for much the same effect on the business of ArchiCentre Building Advisory Services as the relief sought in the judicial proceedings. This would have been because of the importance to the business, both of Mr Jones' status as a registered architect, and of its name. In fact, Mr Jones' affidavit of 14 March 2003 (supra) stresses the considerable significance of his former status as a registered architect to the marketability of his provision of building inspection services (par 6), which was the principal part of his work for ArchiCentre Building Advisory Services (par 5), as I earlier noted. A photograph of Mr Jones and reference to him appear prominently in the Yellow Pages notices of the business that appeared in the 2001 print edition, and in the on-line form as it appeared on 13 August 2002.
The importance to natural justice, for a person like Mr Jones facing the Board, of an absence of apprehended as well as actual bias in that body, is stressed by authorities like Re Refugee Tribunal; Ex parte H [2001] HCA 28. Then, the High Court said that the test of apprehended bias applied to judicial proceedings was in terms of "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided": [27]. It went on to say in [28]:
"Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof."
The Court concluded the test was met, where the tribunal constantly interrupted and challenged the person before them who was representing himself. Here Mr Jones was represented before the Board, and there was no evidence of his having been dealt with in any such way. However, senior counsel for Mr Jones said we should note, in addition to the litigation by the Institute and its subsidiary, the lack of evidence for the Board's determination, as well as three further matters. I deal with the lack of evidence issue below, where I conclude that there was indeed evidence to support the determination the Board made. I note that the three further matters were ones that sometimes in argument before us appeared to be addressed as tending to show actual bias. However, the grounds for these proceedings had been modified to delete any claim of actual bias, and senior counsel for Mr Jones disclaimed any intention to address this. It is therefore important for me to note then that I am treating the three further matters as relevant only to the apprehension of bias.
The first of the further matters was that the Board had shown itself unprepared to consider the reasonable convenience of Mr Jones in setting the date for its hearing. Mr Jones had indicated overseas business commitments would prevent him attending the hearing. The affidavit of Mr Jones of 14 March 2003 (supra) says that the Board had replied in terms of the commitments of its members (par 38). The affidavit of the Chairman of the Board, Brian Wright, of 26 June 2003 refers (par 25) to the regular meeting schedule of the Board set up to deal with those commitments. The Board's management of a conflict of commitments between its members and Mr Jones does not seem to me to be something that might tend to suggest possible bias.
The second of the further matters was that the Board had made its determination without setting out reasons for it. The Board did provide a fairly detailed statement of its determination, although counsel for the Board conceded it could not be regarded as a statement of the reasons for that determination. I would characterise it as a statement of each respect in which the Board found Mr Jones had engaged in "misconduct" as defined by s 22A of the Architects Act. The statement of its determination also said why the Board had concluded it should cancel his registration as an architect notwithstanding that "in normal circumstances" it would not do such a thing. However, this aspect of the statement was simply a reference to the seriousness with which it viewed one of those respects, and to the combination of all of them.
There was, however, no requirement in the Architects Act for the Board to state reasons for its decision, nor does the common law require them: see Public Service Board of NSW v Osmond (1986) 159 CLR 656. Given the statement the Board had provided, I do not see the lack of reasons as something that might suggest possible bias.
The third of the further matters was that there had been a member of the Board who had been replaced at the beginning of its hearing but who had been seen to rejoin the other members after the hearing. This person had been replaced because counsel for Mr Jones at the Board's hearing had raised the issue of bias with the Board, and that person identified himself as the only member who had had an involvement with the Supreme Court litigation. That was in his capacity as past state president of the Institute when the proceedings had been launched.
However, the affidavit of Mr Wright of 23 June 2003 referred to earlier says (at pars 41 and 42) that the Board had moved on from the hearing to conduct its regular meeting, at which the hearing was not discussed. It seems to me that a fair-minded lay person who was reasonably informed would bear in mind the meeting schedule of the Board (to which I earlier referred), as well as the circumstances of the replacement, where the matter of bias had been specifically drawn to the attention of all of those present. It is established that the requirements of natural justice, such as the apprehension of bias, are not "infringed by a mere lack of nicety": R v The Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at 553 ‑ 554. In those circumstances, I do not see the fact that the person who was replaced then rejoined the other members of the Board after the hearing as something that might suggest possible bias.
This returns me to the impact on the fair-minded lay person of the fact of the Supreme Court litigation. Counsel for the Board submitted there was no evidence as to what interest an ordinary member of the Institute would have in that litigation's plaintiffs (the Institute and its subsidiary), or in its outcome. For that matter, I note there was only limited evidence (in Mr Jones' affidavit of 14 March 2003, at par 19) that the subsidiary was a for‑profit entity. Counsel for the Board submitted to us that at most there was an interest no different from one that would arise for any of the practising architects on the Board of the elimination from the possible cancellation of the registration of a competitor. There was no evidence here of what proportion of the Board was made up of practising architects, but it is likely there was at least one such member. This is because the Board is a ten person body, and at least six of its members must be registered architects: see Architects Act, s 5.
However, to repeat, the test of apprehended bias is that from Ex parte H (supra), of what a fair-minded reasonably informed lay observer might believe. Here the fact of the litigation indicated the matter was of importance to the Institute. Whether that importance had a pecuniary dimension, or another one related to other aspects of the objectives of the Institute, that observer might be concerned. I would identify this concern as arising out of more than simply a question of the possible elimination of a competitor. It was the particular competitor involved that is significant. That competitor was one who was an important contributor to the activities of a business which appeared, in litigation begun by the professional organisation to which most of the Board's members had chosen to belong, to be competing with a subsidiary of that organisation. That litigation was seeking to have those activities, at least in their current form, a form that appeared to be important to their viability, stopped. I consider the interest of a member of the Institute without any involvement in the litigation - and none of the members of the Board, other than the one who was replaced, met that description ‑ was indeed indirect, as counsel for the Board submitted. But it was one that might have engaged some concern from the fair-minded reasonably informed observer.
Having said that, I am also of the view that the concern it would have engaged is a matter of degree. The concern is more than a matter of "nicety" (Ex parte Angliss Group, (supra)), but most certainly not one of evidence on which a finding of actual bias could rest. Furthermore, it is not in my view a matter of an apprehension of bias as intense as that referred to in Ex parte H (supra), where, as I indicated earlier, the tribunal constantly interrupted and challenged the person before them who was representing himself, so as to suggest to the fair-minded lay observer the possibility that the matter before them had been prejudged. This matter, of the intensity of the concern, is one which I believe goes to the exercise of the discretion whether to grant relief by way of a Writ of Certiorari. This appears to me to be consistent with, if not addressed in, the authorities. Thus, in Ex parte H (supra) the Court indicated that the discretion was particularly relevant where there had been a determination by a superior court that there was no actual bias: [33]. I return to this consideration at the end of these reasons.
Counsel for the Board, however, reminded us that the Board is a ten person body: Architects Act, s 5. As the events in the Board's hearing showed, at least six members were also members of the Institute, while a quorum is five members: Second Schedule, Item 2. Thus, it would not have been possible, consistently with Mr Jones' position on bias, for the Board to have heard the matter at all, at least while the litigation was on foot. The position would be less clear after the litigation had ended. However, even then it might be argued that a Board, at least if it were made up of a majority of members who had also been members of the Institute at the time of that litigation, might cause a fair‑minded lay observer an apprehension of bias. It was thus not simply a matter of the Board holding off the conduct of "misconduct" proceedings until the litigation ended.
In this light, there was, as counsel for the Board submitted, the statutory function of the Board in relation to "misconduct" of registered architects under Architects Act, s 22A to consider. We were referred to the "rule of necessity" that permits a decision-maker to sit who has some interest in the subject-matter, where there is no other member of the decision-making body "available to sit": Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 88, per Mason CJ and Brennan J. Their Honours explain, at 89, that the reason for this principle is so "that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it".
In my view this principle is capable of providing an answer to the claim of bias resting on the litigation of the Institute and its subsidiary against the Joneses. Questions do arise, however, of when the Board's membership was due to change, and how difficult it would have been to have made extraordinary appointments. We were not addressed on these. But at the very least the impossibility for the Board as then constituted to hear the proceedings against the Joneses is relevant to the discretion in the award of relief in these proceedings. I return to that discretion below.
However, senior counsel for Mr Jones submitted to us that this is an exceptional case where the necessity principle should not preclude quashing the decision. We had our attention drawn to a provision in the proposed legislation to replace the Architects Act which would transfer the disciplinary jurisdiction of the Board to the proposed new State Administrative Tribunal, which would of course not be affected by this bias. However that may be, neither the proposed new legislation for architects nor the proposed legislation to create the Tribunal has yet passed into law. Therefore, I consider that at most this possibility goes only to qualify, not eliminate, the relevance of the necessity factor to the discretion I have referred to.
Whether the Board failed to decide whether it was properly constituted to conduct its hearing
Mr Jones' grounds 5 and 6 raise this issue. They go to the member of the Board stepping down from its hearing, and being replaced by a new member who became the only one at the hearing who was not also a member of the Institute. I have already referred to this sequence of events. Senior counsel for Mr Jones submitted to us that the Board had failed to make the decisions as to the Board's proper constitution, leaving them to counsel for the Board, or its Chairman. We were referred to passages in the transcript of the Board's hearing where the Chairman acquiesced in the statement of its counsel as to how to deal with the concern as to apprehended bias. That statement led to the stepping down. We were also referred to other passages where the Chairman introduced and questioned the replacement member, before declaring that "we can dismiss the item of bias". Senior counsel for Mr Jones pointed out that the replacement member had not had the benefit of the submissions of counsel for Mr Jones that led to the stepping down, submissions that would have assisted the member in determining whether he should sit, notwithstanding the view expressed by the Chairman (although it is difficult to see why he should have decided to step down); or at least these submissions might have led that member to initiate a discussion by the Board of whether or not its other members should sit.
The matter of apprehended bias is, however, a one for the reviewer of the Board's decision, such as this Court. As counsel for the Board submitted, it is not the function of the Board to determine the matter, although of course it would be prudent for members to consider the possibility and act on their conclusions. It is thus not a ground for review of the Board's decision that it did not address itself to the matter.
My view makes it unnecessary for me to consider whether the Board did indeed fail to address this issue. Senior counsel for Mr Jones submitted, as I have said, that the Board had simply abdicated the task to its counsel, or to its Chairman. Nonetheless I should say I have some doubt that abdication is shown by its counsel or the Chairman speaking without interruption or follow-up discussion by the Board, and in a way that suggests the speaker is enunciating a position of the Board : see Dale v New South Wales Trotting Club Ltd [1978] 1 NSWLR 551, at 556 ‑ 557 per Hutley JA. But I do not need to reach a final conclusion on this point.
Whether the Board asked the wrong legal question
Mr Jones' ground 8 raises this issue. Senior counsel for Mr Jones referred us to the Board's determination as to one of the respects (of three) in which it found Mr Jones had engaged in "misconduct" as defined by s 22A of the Architects Act. That respect went to whether Mr Jones' conduct was a contravention of Architects Act s 22A(1)(a), which runs:
"(1)In this section, 'misconduct' means the doing by a person registered under this Act as an architect of any of the following things -
(a)allowing any person except a registered architect in partnership with himself or a practising firm of which he is a member or a practising corporation of which he is a director or a member to practise in his name as an architect or use his name in connection with an architectural practice;"
The portion of the Board's determination addressing this provision expressly negatives each of the exceptions in par (a). The determination does not expressly address whether Mr Jones had allowed "ArchiCentre [Building Advisory Service]" (that is, the owner of the business with that name) to practise in Mr Jones' name as an architect. As the written submissions for Mr Jones correctly pointed out, this left the possibility that Mr Jones had allowed ArchiCentre Building Advisory Service to use Mr Jones' name in connection with an architectural practice. Yet the Board's determination made no reference to Mr Jones allowing that business to act in that way, referring simply to how the business had acted. It did this when it said "ArchiCentre [Building Advisory Service] is offering its services as an architect in the name of Mr Barry Jones" before stating that Mr Jones was "in breach of s 22A(1)(a)".
It is clear that there is a basis for disturbing a decision of body like the Board where the body shows, by asking itself the wrong question, that it misunderstood the nature of the opinion it had to form: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
However, I am of the view that the Board's determination does not indicate that it asked itself the wrong question. I have concluded that at worst the Board expressed itself elliptically. This is because its determination needs to be read against the backdrop of the understandings of Mr Jones and the Board as to the matters before it. There was a statement of those understandings in a Draft Minute of Agreed Issues prepared for the Board's hearing and executed by the counsel assisting the Board and counsel for Mr Jones (AB 142 ‑ 144). That statement referred to a list of issues under s 22A(1)(a), the first of which was whether Mr Jones "allowed" ArchiCentre [Building Advisory Service] to practise in Mr Jones' name as an architect or use his name in connection with an architectural practice. The outline of submissions for Mr Jones filed before the Board's hearings similarly highlights (AB 192), for the purposes of s 22A(1)(a), whether Mr Jones was "allowing" the owner of the ArchiCentre [Building Advisory Service] business to practise in Mr Jones' name, or to use his name in connection with an architectural practice.
Read against that backdrop, the Board's determination indicates to me its finding was that of Mr Jones allowing ArchiCentre Building Advisory Service to use his name, rather than to practise in his name. This is in fact a stronger case than one where there was simply the relevant material before the decision‑maker and a notification of his decision, on which see Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433 (Full Court) at [78] (Branson J, with whose judgment in this respect Goldberg and Allsop JJ agreed).
Senior counsel for Mr Jones in argument before us pointed also to the fact that the Board, in finding ArchiCentre Building Advisory Service was involved in architectural practice of some sort, had a particular view as to the meaning of "architectural practice". That view, it was said, was wrong. However, that view is I believe most readily understood and evaluated in relation to the issue of the evidence for the Board's determination, below.
Whether there was evidence to support the Board's determination
Mr Jones' grounds 9 and 10 raise this issue. Senior counsel for Mr Jones submitted there was no evidence of the facts that were critical to the respects in which the Board had determined Mr Jones had engaged in "misconduct".
Those respects were, as I have indicated, three. I have already referred to one, that Mr Jones had allowed ArchiCentre Building Advisory Service to use his name in connection with an architectural practice: Architecture Act s 22A(1)(a). The second was that Mr Jones had advertised he offered his services as an architect without the approval of the advertising by the Board: s 22A(1)(i). And the third was that Mr Jones had done something not otherwise listed in s 22A(1) constituting "infamous and improper conduct in a professional respect": s 22A(1)(n).
Senior counsel for Mr Jones indicated that the submission concerned two critical gaps in the evidence. One was said to be in relation to whether ArchiCentre Building Advisory Service was offering its services as an architect or as "architectural practice", through Mr Jones or otherwise. This matter is central to the s 22A(1)(a) and (i) forms of misconduct.
The other critical gap in the evidence was said to be in relation to s 22A(1)(n). That paragraph was implicated, the Board said in its determination, because Mr Jones had previously been the subject of disciplinary proceedings before it for "the same offence". The statement of determination went on that he had been "reprimanded and ordered to cease advertising in the same manner that he was in the yellow pages and elsewhere", and that he had been warned the matter would be viewed "most seriously" if he failed to comply. The determination concluded by saying he "had shown complete contempt towards the Board". Counsel for the Board submitted that there was no evidence of such contempt.
Counsel for both parties before us addressed the matter of whether ArchiCentre Building Advisory Service was offering its services as an architect or as an "architectural practice", through Mr Jones or otherwise, by reference to its Yellow Pages advertising, in both print and on-line forms. These were annexed to the Minute of Agreed Facts (supra) for the Board's hearing (see AB 145). It was the case for Mr Jones that the services the business was offering was, as its name suggested, only of an advisory sort, with respect to the condition, design and construction of buildings, as well as to building contracts. This tends to be borne out by the print form of its Yellow Pages entry for 2001 (AB 151), and by the entries for the business in the Yellow Pages on‑line as at 13 August 2002 (AB 152 ‑ 189).
Our attention was not drawn to any authority on what is meant in s 22A(1) by the phrases "architectural practice" in par (a) and "services as an architect" in par (i).
There is, however, some indication of the meanings to be gleaned from s 29(1), which prohibits holding oneself out as an "architect", "architectural practitioner" or some one "carrying on the practice of architecture". There is no definition in the legislation of any of the quoted language. However, s 29(2) says:
"(2)Subject to subsection (1) nothing in this Act shall be deemed to prevent an engineer, builder, or other person from designing and superintending the erection of any building."
Senior counsel for Mr Jones submitted to us that, while building design is part of the range of services provided by architects, others might provide such a service without practising architecture. So much is evident from s 29(2), I believe. However, a strong argument can be made, in my view, that the practice of architecture includes at least some services in relation to building design to which providers attached the label "architecture" or similar: s 29(2), read with s 29(1). It is a closer question for me whether or not the mere provision of advice services as to building design labelled as done to "architectural standards" or similarly would qualify. However, it seems to me that the advertising of such services as ones done by a registered architect would at least leave it open to a decision-maker to conclude that architectural practice was involved.
Counsel for the Board drew to our attention to the references for ArchiCentre Building Advisory Services in the 2001 Yellow Pages to "REGISTERED ARCHITECT" (AB 151). These references appear immediately under the name of the business and its phone and fax numbers. We also had our attention drawn to the 13 August 2002 Yellow Pages on‑line entries for the business, where "Registered Architect" appears under "ACCREDITATIONS". It is true that a close reader of these materials might be left uncertain whether the registration or the accreditation, as the case may be, related not to the business but to Mr Jones. A picture of him and references to him do feature prominently near the quoted language. However, in my view, it does not matter whether it was the business, or the contribution of its prominently featured representative who would provide those services, being characterised. Either way, it was open to the Board to determine that architectural practice was involved.
Senior counsel for Mr Jones said to us that more evidence than this was required because the practice of architecture always involved more services than advising as to building design. Whether that is correct or not, it seems to me the Board could conclude that the services here were to be provided by some one as a registered architect, that is, as part of their practice as such a professional.
Nor is this view of the matter precluded because, as senior counsel for Mr Jones pointed out to us, the detail in the Yellow Pages on‑line entry for ArchiCentre Building Advisory Service refers to "Your architect". This it was said indicated a different service provider whose work might be evaluated. However, in my view this does not exclude the possibility that the client would be benefiting from the advisory work of another architectural practice.
Senior counsel for Mr Jones strongly contended that simply because an architect was providing a service did not mean the practice of architecture was involved, and I agree. But here there is not simply any service involved. It is one in relation to building design; and that service is advertised as one to be provided by a registered architect.
My conclusion on the matter of whether ArchiCentre Building Advisory Service was offering its services as an architect in large part addresses the matter of whether the Board had a basis for finding that Mr Jones "had shown complete contempt towards the Board" for the purposes of s 22A(1)(n). The Draft Minute of Agreed Issues (supra) for the purposes of the hearing of the Board draws attention to whether Mr Jones complied with a letter of the Board dated 14 December 2000. That letter in its turn drew his attention (AB 143) to the Board's earlier, reprimand, decision (supra). Apparently this was the first time Mr Jones had been informed of that decision. The letter says (AB 106) the Board "again instructs" him to cease advertising his services without written approval of that advertising; to cease allowing his name and photograph to be used in connection with that business name; and to cease allowing any advertising or promotion of his services under that name to make reference to "registered architect" or any other language that would falsely suggest that the business under that name was authorised by the Board. The Minute of Agreed Facts (supra) prepared for the Board's hearing uses a different description (AB146 ‑ 147) of these instructions, but the differences do not appear to me to be material.
Senior counsel for Mr Jones pointed out that his client was not in any position, following the receipt of the December 2000 letter, to change the print form of the 2001 Yellow Pages advertising. However, the Board's letter itself acknowledged this, while indicating that immediate steps should be taken to change the Yellow Pages on‑line entries. I have already referred to those entries in some detail. We were not shown any prior form of those entries. In any event, it appears to me to be open on those entries for the Board to conclude that any changes plainly did not comply with the instructions in the letter, and thus, to the extent Mr Jones was able to respond to those instructions, he had shown "complete contempt" for them.
Senior counsel for Mr Jones submitted to us that the on-line advertising had been altered in an attempt to comply with the Board's instructions, and this indicated there was no intent to defy them. Accepting that such an intent must be found, the Board in my view, having regard to its December 2000 letter and the on-line advertising before it, had evidence from which it could make such a finding.
Senior counsel for Mr Jones submitted to us that, even if there was evidence on which the Board could have found misconduct in the relevant respects, it was not evidence on which any reasonable decision-maker would have come to such conclusions. We were referred to Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223, which presumably was a reference to the well known dicta of Lord Greene MR there (at 229 ‑ 230). However, it seems to me that the evidence as I have described it is in fact more than sufficient to preclude the use of that approach: see Aronson M et al, Judicial Review of Administrative Action, 3rd ed, Law Book Company, Pyrmont NSW, 2004, 335 ‑ 343 (on the approach to those dicta in this country).
My conclusion means I must also reject Mr Jones' ground 10. That ground, as it was explained to us, goes to the use of the Board's determination as to contempt, in combination with the other respects in which it found Mr Jones was guilty of misconduct, to conclude that cancellation of his registration as an architect was "justified" (AB 2).
Before leaving the issue of whether there was evidence for the Board's determination, I should add that senior counsel for Mr Jones, in argument before us, addressed to the requirement for advertising approval in Architects Act s 22A(1)(i), drew our attention to the fact ArchiCentre Building Advisory Service had been advertising for a decade before the Board intervened. It was not clear to me how this bore on the return of the order nisi. We were told there was no procedure laid down by the Board for seeking approval of advertising. But it was not suggested there was any evidence the Board would on that account refuse to consider an application. In any event there was no indication of such a claim in the modified grounds for the order nisi. Nor was it suggested there was any evidence the Board had tacitly approved the advertising in this case (apart from the failure to intervene for some time), nor did this failure form part of those grounds. I do not see this aspect of the case for Mr Jones as bearing on the decision we have to make.
Whether We Should Quash the Board's Decision
The Court in proceedings on a Writ of Certiorari has an undoubted discretion to decide whether or not to quash a decision it finds to be reviewable: see Ex parte H (supra), which I have already referred to above in this connection.
Senior counsel for Mr Jones submitted that we should exercise our discretion to quash the Board's decision because of its effect on Mr Jones, and the cogency of the grounds for these proceedings. That effect is undoubted. However, as to the cogency point, I have indicated that the only basis for review in this case is the point as to the fair‑minded observer's apprehension of bias. And I upheld that point only in relation to the litigation by the Institute and its subsidiary against Mr and Mrs Jones when four out of the five members of the Board who heard and determined the disciplinary proceedings against Mr Jones were members of the Institute. I must weigh in the balance as well that, as I also indicated, this apprehension of bias would have been of a lower intensity than the one which led the High Court in Ex parte H (supra) to quash the decision before it. And I should further take account of the impossibility for the Board (as it was constituted at the time) to discharge its statutory functions in relation to any "misconduct" under s 22A in this case, to which I also referred earlier. This should be qualified, as I explained earlier, by the possibility of the Board being replaced for present purposes by the proposed State Administrative Tribunal.
There is a still further matter I should weigh. It is that Mr Jones had a right of appeal to the District Court from the decision of the Board under the Architects Act, s 22A(8). Unlike this Court on the return of a Writ of Certiorari, the District Court is there given power to hear "evidence and submissions anew", and to make a wide range of orders. That would have enabled it to conduct a fresh hearing and make orders in the place of a Board that could not act.
It is clear that the existence of another avenue for review of an impugned decision should be weighed in the exercise of the Court's discretion: see Gudgeon v Black (1994) 14 WAR 158 at 186 ‑ 187 per Malcolm CJ, and the discussion of the matter in Aronson et al, (supra) at 714 ‑ 719. Senior counsel for Mr Jones reminded us of the short period for appeal under s 22A(8) (1 month), and said that Mr Jones had waited a longer period to determine the effect on his commercial activities of the loss of his registration. While I agree that this affects how much weight the right of appeal should be given, it is also necessary to bear in mind that before the Board his counsel had made, as I have indicated, a preliminary objection as to actual and apprehended bias. The rejection of this objection would not have called for any delay in responding.
Senior counsel for Mr Jones submitted to us that where as here Mr Jones has established he has a particular grievance, and is not appearing before us simply as a member of the public, the court will "normally exercise its discretion in the applicant's favour", as Malcolm CJ said in Gudgeon (supra), at 179. His Honour specifically referred to the case of "undue delay" as one where "clearly" this discretion was relevant. To rebut any suggestion of such delay here, we were referred to an affidavit of Mr Reginald Bower, solicitor for Mr Jones, sworn 16 June 2004, which set out his explanation of the reasons for the delay of almost 18 months between the grant of the order nisi (on the original grounds) and this hearing. And so, it was said, we were left with a case where it would not be appropriate to exercise our discretion not to quash the decision of the Board.
However, accepting the proffered explanation of any delay here, I note that in Gudgeon (supra) itself, relief was withheld in the exercise of the discretion where an appeal had been instituted but adjourned pending determination of the application for certiorari. In my view, that case, the Aronson et al text (supra) at 714 ‑ 719, and Ex parte H (supra) at [33] (already referred to above in this connection) all show the possibility for withholding relief in a case like this one.
Senior counsel for Mr Jones also referred us to the likely impact at the time of the Board's decision of the review of the National Competition Policy Review of the Architects Act 1921 and Subordinate Legislation (2001). This was said to be antithetical to the Architects Act's controls on advertising. We were also told that proposed new legislation, the Architects Bill 2003, introduced into the legislature in November 2003, indeed removes the current approval requirement. Counsel for the Board replied that it was obliged to apply the legislation at the time of its decision, and that, at most, the Review was relevant to whether to approve any proposed advertising. This reply appears to me to be right.
Taking all of these matters into account, I conclude that the Court should in the exercise of its discretion decline to quash the decision of the Board.
Order including costs
I therefore conclude that the order nisi in this case should be discharged, with costs.
There is, however, one matter as to costs that, as I indicated at the outset, I need to address separately. It goes to the modifications of the grounds of the order nisi. Those grounds came about after a previous hearing by this Court when it became evident such modifications needed to be made. The representatives of Mr Jones sought, as we are told this Court suggested, to have the return of the order nisi put in the expedited list, as well as to have leave to modify, and these matters came before Pullin J. His Honour granted the leave, but did not put the return in the expedited list. Senior counsel for Mr Jones gave His Honour an undertaking to raise on the return the matter of the possible liability of the instructing solicitors under O 66 r 5 of the Rules of the Supreme Court 1971 (WA) for the costs thrown away as a result of the modifications. Senior counsel for Mr Jones duly raised the matter with us. We indicated that it was best addressed after we made our decision on certiorari.
We have since the hearing before us had the opportunity to consider the affidavit of Mr Bower of 16 June 2004 (supra). This affidavit addresses the background to the modifications of the grounds for the order nisi. In my view, the affidavit goes some distance to show the original grounds were reasonable as an exercise of a practitioner's judgment and so their modification, to reflect a less optimistic view, would not warrant an O 66 r 5 order: Seaman, [65.5.5]. However, I am of the view that the instructing solicitors for Mr Jones should appear before us to show cause why such an order should not be made.
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