Re Builders' Registration Board Of Western Australia - [2002] WASCA 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA; EX PARTE BGC (AUSTRALIA) PTY LTD [2002] WASCA 114

CORAM: WALLWORK J
ANDERSON J
WHEELER J

HEARD: 19 FEBRUARY 2002

DELIVERED : 10 MAY 2002

FILE NO/S: CIV 2176 of 2001

MATTER :Application for a Writ of Prohibition against the Builders' Registration Board of Western Australia

EX PARTE
BGC (AUSTRALIA) PTY LTD
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Prerogative writs - Prohibition - Inquiry by Builders Registration Board - Whether builder had adequately supervised work - Whether it had misrepresented position in applying for building licence - Builder contended that it would be unfair and oppressive to continue Inquiry - Whether too long a delay - Decided on the facts

Legislation:

Builders' Registration Act 1939, s 10C, s 13

Public Service Act 1979 (NSW)

Result:

Order nisi discharged

Category: B

Representation:

Counsel:

Applicant: Mr M C Hotchkin
Respondent: Mr E M Corboy

Solicitors:

Applicant: Hotchkin Hanley
Respondent: Elizabeth Buttfield

Case(s) referred to in judgment(s):

Cranley v Medical Board of Western Australia, unreported; SCt of WA; Library No 8668; 21 December 1990
Grey v Health Insurance Commission [2001] FCA 1257, 17 September 2001
Public Service Board of New South Wales v Etherden [1985] 1 NSWLR 430
Walton v Gardiner (1993) 177 CLR 378

Case(s) also cited:

Bond v Australian Broadcasting Tribunal (1988) 19 FCR 494
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt; Library No 980235C; 5 May 1998
Carson v Legal Services Commissioner, unreported; BC 200006718; FCt of NSW; 3 November 2000
Cotterill v Lenpriere (1890) 24 QBD 634
Coward v Stapleton (1953) 90 CLR 573
Etherton v Public Service Board of New South Wales & Anor [1983] 3 NSWLR 297
John L Pty Ltd v Attorney General (New South Wales) (1987) 163 CLR 508
Kioa & Ors v West & Anor (1985) 159 CLR 550
Medical Board of South Australia v Bradley [1999] SADC 81
R v Electricity Commissioners; Ex Parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
Re Babban; Ex Parte Suleski [2001] WASCA 289
Re Buckley; Ex Parte Lovell (1938) 38 SR (NSW) 153
Re Burton; Ex Parte Stephen Burns, unreported; FCt; Library No 980154S; 6 February 1998
Re Carruthers; Ex Parte Goodwin (1968) 70 SR (NSW) 175
Re Croser; Ex Parte Rutherford & Anor [2001] WASCA 422
Re Cuff & Ors; Ex Parte Wilson (1940) 40 SR (NSW) 559
Re Gillett & Ors; Ex Parte Rusich [2001] WASCA 111
Re McWilliam & Ors; Ex Parte Ivan Juras, unreported; SCt of WA; Library No 960637S; 7 November 1996
Re McWilliam; Ex Parte Olsen [1999] WASCA 128
Re Wong; Ex Parte Maria Stella Hays, unreported SCt of WA; Library No 980575S; 5 October 1998
Tarson Pty Ltd & Anor v Holt & Ors (1991) 25 ALD 730
Walsh v Ionides (1853) 118 ER 479

WALLWORK J: In this case the applicant applies for a Writ of Prohibition against the Builders' Registration Board of Western Australia prohibiting it from conducting an Inquiry pursuant to a Notice of Inquiry dated 5 July 2001, or alternatively in respect of the matters the subject of the notice of inquiry dated 5 July 2001.
The applicant contends that the continuation of the relevant Inquiry will be oppressive to the applicant or alternatively unless proper particulars are given it will be unfair. Alternatively it contends that unless the Board gives proper particulars as requested by the applicant there will be a denial of natural justice.
It is conceded for the Board that in appropriate circumstances a Writ of Prohibition could issue against the Board to restrain it from proceeding further. However, it is contended that there are no grounds upon which the Writ should issue in this case.

Background

The Inquiry originated with a letter from the Registrar of the Board to the manager BGC (Australia) Pty Ltd dated 20 June 1997 in which the company ("applicant") was advised that the Board intended to hold a full Inquiry into certain building works carried out pursuant to Local Authority Building Licences which had been issued to the applicant. The letter advised that the Inquiry would be held on Friday, 18 July 1997 at the offices of the Board and that:
"It is considered that BGC (Australia) Pty Ltd may have contravened paragraphs 13(1)(ca) and 13(1)(d) of the Act in regard to the carrying out of building works specified in this notice."
The letter then set out some relevant provisions of s 13 of the Act and continued:
"It will be alleged that in respect of the construction of a housing project at Pretty Pool, Port Hedland, pursuant to a building contract with BHP Direct Iron Ore Pty Ltd, that BGC (Australia) Pty Ltd -
(a)failed to maintain adequate management and supervision of the work sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner and/or;
(b)in an application for a building licence to be issued by the local authority for the building work, that BGC (Australia) Pty Ltd falsely represented that the builder undertaking the building work was to be BGC (Australia) Pty Ltd and at the time the representation was made BGC (Australia) Pty Ltd did not believe it to be true."
The applicant was advised that it was "afforded an opportunity of giving an explanation personally or in writing to the Inquiry and may have legal representation".
The attention of the Board had been drawn to the contract by a letter written by Mr Wilson, a barrister and solicitor, dated 24 October 1996 which referred to attached correspondence which amongst other things alleged that the head contract for the work was between BHP Direct Reduced Iron Ore and BGC (Australia) Pty Ltd but that at all material times BGC Contracting had represented and held themselves out to be the registered builder and contractor on the job.
By letter dated 3 July 1997, the applicant's solicitors advised the Board that there was a District Court action concerned with the matter in progress and that "it would be inappropriate and unnecessarily expensive to canvass these issues before the proceedings had been heard and determined." The letter advised that the solicitors were instructed to argue that the complaint to the Board constituted an abuse of process. Further, that due to the absence of material witnesses for the company and some other matters, the solicitors would be requesting an adjournment of the Inquiry. The solicitors asked for detailed particulars and said "If we do not receive particulars of the allegation against our client by 9 July 1997 we will not be able to properly advise and defend our client at any Inquiry…"
An adjournment was granted by the Board and particulars were supplied by letter dated 22 August 1997.
The particulars supplied were as follows:

Pretty Pool Housing Project, Port Hedland, WA "the building work"

1.It is alleged that BGC (Australia) Pty Ltd did not carry out any supervision or management of the building work in the manner required by s 10C of the Builders Registration Act 1939 as amended.
2.It is not alleged that the building work was carried out otherwise than in a proficient and workmanlike manner.
3.The representation that BGC (Australia) Pty Ltd was to undertake the building work was made in writing in building licence applications lodged on 23 July 1996 with the Town of Port Hedland and in building licences issued on 31 July 1996 in respect to "the building work" by that local authority. Copies are enclosed for your information.
4.The representation is alleged to have been false on the grounds that BGC (Australia) Pty Ltd did not in fact undertake the building work in question.
5.At the time the representation was made it was intended by BGC (Australia) Pty Ltd that the building work in question would be carried out, managed and supervised by BGC (Contracting) Pty Ltd.

Further particulars were later provided by the Board including 14 pages of particulars which are reproduced in pages 63 to 76 inclusive of the application book.

Submissions on this application

In its written submissions the applicant details a number of matters on which it relies for its submission that the public interest would be served by a Writ of Prohibition to prevent the further conduct of the hearing. They include the following:
"(a)The matters the subject of the complaint are said to have occurred in mid‑1996, almost six years ago;
(b)The complaint was not initiated (in the sense that the subject‑matter of the inquiry was brought to the Board's intention) by the person apparently affected by the alleged conduct, BHB Iron Ore; it was initiated by one Bernie Elliott, the director of a company called Orwell Holdings Pty Ltd, trading as "Steel Homes", which was involved in a District Court action against the Applicant for payment of a disputed debt, apparently for the purpose of applying pressure to the Applicant to resolve the District Court proceedings (refer to paragraph 4 of the Affidavit of ABS Teo, page 4 Application Book);
(c)The apparent cause of the delay was the time taken by the Board to respond to the Applicant's solicitors request for particulars, made on numerous occasions, being 3 July 1997, at the initial hearing itself on 27 March 1998, 11 August 2000 and 16 July 2001;
(d)There is no adequate explanation for the delay in providing adequate particulars. The apparent lack of available resources is not relevant to the failure to provide proper particulars, as they should have been identified before the first notice was issued. The pressure of the Chairman's own commitments does not justify a delay of almost 2 years in providing a response to the Applicant's submissions. The Chairman's affidavit fails to give any details to establish that conclusion. The Chairman's assertion, without specifying the grounds, that he was 'under the impression that this was not a matter which the Applicant required to have expeditiously resolved', is not justified if one has regard to the letters complaining about the delay dated 31 March 1999 (page 38 Application Book) and 11 August 2000 (page 56 Application Book);
(e)The Applicant provided full co‑operation to the Board, granting the Board access to all its documents and providing copies when requested (see ABST5, page 21 Application Book);
(f)Neither of the two individuals referred to in the Notices of Inquiry, Mr Joe Sweet and Mr Joe Clynk remain in the Applicant's employment. Another former employee, Mr Phippard, who had some knowledge of the circumstances, is currently in business with Mr Sweet in competition with the Applicant's subsidiary, BGC Contracting Pty Ltd. There is good reason to suppose that the level of co‑operation which the Applicant would have expected whilst those individuals were employees would no longer exist. Mr Sweet attended the initial hearing with Mr Teo on 27 March 1998 and was in a position at that time to give instructions to provide full co‑operation;
(g)The nature of the case against the Application is difficult to understand in the absence of proper particulars. If it is common ground that the Applicant had entered into a building contract with BHP Iron Ore, how can a statement to the effect that it was the builder be false? Further, if it is alleged in the alternative that it was the builder, but did not cause the building work to be adequately managed and supervised by a person who was a registered builder, on what basis is it alleged that the Applicant failed to do so? If the entire thrust of the Board's inquiry is simply that the Applicant utilised the resources of its subsidiary to undertake the building work, but remained contractually, and therefore statutorily responsible for such building work, there is little or no public interest in proceeding with the inquiry, particularly as the Board has made it quite clear that it is not suggesting that if such an arrangement was undertaken, that it led to faulty or unsatisfactory workmanship requiring intervention by the Board;
(h)The nature of the inquiry itself is of the utmost seriousness in terms of the allegation against the Applicant, and the remedy available (suspension or de‑registration of the Builder and its directors) see re: Freeman and McKenzie (Unreported; Federal Court, per Woodward J, delivered 6 September 1988). There is a certain opprobrium attached to any proceedings where it is alleged that a person has been dishonest. If the allegation is not clear, then a delay in providing adequate particulars of the alleged dishonesty is not only unfair to a person seeking to defend themselves against such an allegation, but unfair in terms of its on‑going effect on a person's reputation, both with the Board and in industry;
(i)The Board has now refused to provide proper particulars (see paragraphs 10 and 11 below)."
On this application the applicant submitted that the Board refused to provide proper particulars and that the rules of natural justice require that any person who is likely to be subject to punishment is entitled to know the specific charge against him and to be given the full particulars necessary to enable him to prepare his defence. It is contended that those principles apply to disciplinary proceedings and that the notice of inquiry delivered on 5 July 2001 contained insufficient particulars to enable the applicant to properly defend the charge against it. That it failed to properly identify how the representation alleged to have been made was false and that particulars had not been given as to how the applicant as the contracting party was said not to have caused the works to be executed.
In Cranley v Medical Board of Western Australia, unreported; SCt of WA; Library No 8668; 21 December 1990 Ipp J said at 24:
"The point can be put in an alternative way. An inquiry under s 13(1)(a) of the Medical Act 1984 (WA) is of a judicial nature and requires the observation of natural justice and the application of procedural fairness; R v Medical Board Ex parte St Vincent, Isaachsen & Gregory, unreported; FCt SCt of WA; Library No 7879; 6 October 1989. In my view natural justice and procedural fairness require a medical practitioner charged under s 13(1)(a) to be informed of the specific charge which is made against him and, if particulars are provided, he is not required to answer anything outside the particulars. The charge should be confined to the particulars provided."
In Public Service Board of New South Wales v Etherden [1985] 1 NSWLR 430 at 432 when discussing the hearing of disciplinary charges under the Public Service Act 1979 (NSW) Street CJ said:
"Mr Finnane contends on a sound basis that a disciplinary proceeding of a character such as that for which provision is made in this Act and by this Regulation, is an administrative investigation; it is neither a civil proceeding nor a criminal proceeding. I am prepared to accept and agree with that proposition. It does not, however, import as a corollary that the Board or its delegate in presiding over an administrative disciplinary hearing is permitted to proceed in disregard of the principles of natural justice… Hunt J, in an illuminating examination of the course of authority, reached the conclusion that the requirements of natural justice impose an obligation upon a prosecuting authority in a context such as the present, to furnish such particulars as will fairly enable the accused person to understand and to meet the case being made against him. His Honour held that the mere discovery by the Board to the officer of the whole of its file of documents fell short of meeting the requirements of natural justice. Indeed, this is a course which has never been regarded in civil or criminal litigation as adequate to fulfil an obligation to furnish particulars. It leaves the characterisation and specification of the relevant allegations entirely at large, and hence does not serve to provide specific notice to the person concerned of the matters to be investigated in the course of the hearing. The inadequacy in ordinary civil and criminal litigation of merely providing access to documents is equally applicable to proceedings of a disciplinary character. There is an initial obligation on the prosecuting authority to acquaint the person concerned with adequate particulars of the nature of the case to be made against him."
Applying the above principles to this case, in my view the letter of 22 August 1997 and the later particulars which were supplied, revealed that the essence of the matter to be enquired into was that the applicant was alleged to have made a representation to the local authority that it was going to be the builder as a registered builder when at the time it made that representation it intended that another body, which was not registered would undertake the work. Secondly, the complaint was that the applicant had not adequately managed and supervised the undertaking of the building work because the other company had done the building work in the sense of managing, supervising etc.
It was contended by the applicant that the particulars had not condescended to say how it was that the two persons who had been nominated as the mind of the applicant for the purpose of making the representation knew that the representation was false. However, the particulars alleged that they knew it was false because at the time the representation was made they had intended not that the applicant would do the building work but that another company would do the work. That matter could be explored during the course of the Inquiry.
It was contended in the particulars that in order for a company to be the builder it must have the day to day management and supervision of the building work. The particulars revealed that at all relevant times it had been the intention of the applicant that another unregistered party would perform the work.
In my opinion the particulars given to the applicant both before and with the letter of 5 July 2001 were extremely detailed. The persons who allegedly had been involved were named. The applicant knew the essential ingredients of the case alleged against it.
The applicant complained that it had not been told why it was said that BGC Contracting caused the building work to be done as distinct from BGC (Australia) Pty Ltd. However, in my view, the material particulars were given and there was no uncertainty about what was being alleged.
With respect to the applicant's contention that the delay had been such that it would be oppressive for the matter to proceed, amongst other things it was said that some of the employees of the applicant had left the company. Because of that, it was contended that the company would be prejudiced. However, in my view, the fact that the company does not still have the relevant witnesses in its employ, is not a sufficient reason to justify an allegation of oppression or to suggest that the delay has so gravely prejudiced the applicant that the Inquiry should be stayed.
In Walton v Gardiner (1993) 177 CLR 378 at 392 Mason CJ, Deane and Dawson JJ said:
"Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process. Their Honours made plain that the Court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view the approach adopted by the members of the Court of Appeal was correct."

At 395 their Honours said:
"In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective -ie protective of the public - in character. Nevertheless the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds."
In this case the applicant relied on the reasons of Finkelstein J in Grey v Health Insurance Commission [2001] FCA 1257, 17 September 2001 where at 12 his Honour said:
"There is no doubt that if a party is put at a significant disadvantage in a proceeding by reason of the time that has elapsed since the happening of the events in question so that it is no longer possible to obtain a fair hearing of the matter arising from those events it may be possible to obtain a stay… this principle applies as well to administrative tribunals as it does to courts of law. The matters to be taken into account in deciding whether a person has been given a fair hearing within a reasonable time would include:
(1)the length of the delay;
(2)the reason given by the instituting party to justify the delay;
(3)the responsibility of the person concerned for asserting his rights;
(4)prejudice to the person; and
(5)the public interest.
…"
In this case although there has been considerable delay since the first notification to the applicant of the complaint, in my view it is fair to say that the applicant has to a considerable extent been responsible for the delay in the proceedings of the Inquiry since 20 June 1997 due to various requests which have been made by the applicant including the initial request for an adjournment and the later requests for particulars. The applicants should always have known what this complaint was about. It was made clear in the original letter of 20 June 1997. Since then the applicant has continually been raising points of law. Those objections have contributed to the delay. In any event, there is nothing that I know of, within the meaning of the reasons for judgment in the decided cases referred to above, which would result in the oppression of the applicant or unfairness to it. In my view, there has been no abuse of process or breach of natural justice.
I would refuse the application for a writ of prohibition.

ANDERSON J: I have had the advantage of reading in draft the judgment of Wallwork J and agree that the order nisi for a writ or prohibition ought to be discharged for the reasons expressed by Wallwork J. There is nothing I wish to add to those reasons.
WHEELER J: I have had the advantage of reading in draft the reasons to be published by Wallwork J and agree that the order nisi for a writ of prohibition should be discharged and have nothing further to add.