Rodwell v Building Practitioners Board
[2009] VSC 146
•17 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 9225 of 2008
| BRUCE ARCHIBALD RODWELL | Plaintiff |
| v | |
| BUILDING PRACTITIONERS BOARD | Defendant |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2008 | |
DATE OF JUDGMENT: | 17 April 2009 | |
CASE MAY BE CITED AS: | Rodwell v Building Practitioners Board | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 146 | |
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Builders – Registered building practitioner – Inquiry by regulatory body – Whether inquiry a proceeding “for an offence” – Whether inquiry time-barred – Nature of proceeding - Building Act 1993 ss 177, 178, 179, 241
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Donald | ResourcesLaw International |
| For the Defendant | Mr N Pane | Maddocks |
HER HONOUR:
The issues
The Building Practitioners Board is a statutory authority responsible for the registration and supervision of building practitioners under the Building Act 1993 (“the Act”).
The plaintiff builder, Bruce Rodwell, is a registered building practitioner under the Act.
By a notice of inquiry dated 24 July 2008 (“the Notice”), the Board informed the builder that an inquiry had been initiated under s 178 of the Act, in respect of building work which he allegedly carried out between 2002 and 2004 at a property in Glen Street, Hawthorn (“the Inquiry”). The Notice alleged that the builder had failed to comply with s 16(1) of the Act, in that certain works were not carried out in accordance with the relevant building permit.
Section 241(7) of the Act provides that:
Despite anything in any Act, proceedings for an offence against this Act or the regulations may be commenced within the period of 3 years after the commission of the alleged offence.
The builder argues that the Inquiry is not properly characterised as a disciplinary proceeding, rather, it is a proceeding “for an offence against” the Act. If that contention is correct, the Inquiry is either:
(a) Statute-barred under s 241(7), because the Notice was issued more than 3 years after the last building work was performed[1]; or
(b) Beyond the Board’s power to hear and determine, because the Board is not a person authorised to commence a proceeding for an offence against the Act.
[1]The Notice alleges that the building work continued until April 2004. The builder alleges that he ceased work at the property in May 2003. It is not necessary for me to resolve that factual dispute, as both dates are more than 3 years before the commencement of the Inquiry.
The builder seeks a declaration that the Notice is invalid, and relief in the nature of prohibition[2] restraining the Board from conducting any inquiry or taking any further steps based on the matters alleged in the Notice.
[2]Under order 56 of the Supreme Court (General Civil Procedure) Rules 2005.
The Board disagrees with the builder’s characterisation of the Inquiry. It says that the fact that the Inquiry is based on an alleged failure to comply with s 16(1) of the Act does not make it a proceeding “for an offence against” s 16(1); rather, it is a disciplinary proceeding, in respect of which there is no limitation period.
The following matters are not in dispute:
(a) The Board is not a person authorised to prosecute the builder in court for a breach of s 16(1); and
(b) The limitation period in s 241(7) would apply to any prosecution brought against the builder in court for breach of s 16(1)[3].
[3]The word “may” in s 241(7) gives a discretion whether to commence a proceeding at all, not whether to commence a proceeding for an offence before or after the expiration of the limitation period.
It is also not disputed that the Inquiry is a “proceeding”. The critical issue is whether the Inquiry is a proceeding “for an offence against [the Act]”, within the meaning of s 241.
The builder does not contend that all inquiries conducted under s 178 would be proceedings “for an offence”. Rather, he argues that the Inquiry is a proceeding “for an offence”, because the only matter to be inquired into is whether the builder has failed to comply with s 16(1) of the Act.
There is no doubt that, if the Board conducts the Inquiry, it may make a finding under s 179(1)(b) that the builder has failed to comply with s 16(1) of the Act, and may exercise one of the powers set out in s 179(2). But, the builder argues that such a finding would necessarily be a finding that he is “guilty of an offence” under s 16(1) and, therefore, the Inquiry is necessarily a proceeding “for an offence”. I do not accept that argument, for a number of reasons.
The statutory scheme
The court’s task is to construe the Act, in accordance with the relevant principles of statutory construction. A construction that would promote the purpose or object underlying the Act, whether or not expressly stated in the Act, is to be preferred to a construction that would not promote that purpose or object.[4]
[4]Interpretation of Legislation Act 1984 s 35(a). Quite apart from that specific legislative direction, the modern common law approach to statutory construction requires a purposive, rather than a literal, approach: see the discussion in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
The main purpose of the Act is to provide for the regulation of building and building standards (s 1). The objects of the Act include: to establish, maintain and improve standards for the construction and maintenance of buildings; to protect the health and safety of people who use buildings; and to regulate building practitioners (s 4). The Act establishes a number of separate entities, to achieve its purpose and objects.
The Building Commission is established by s 193 of the Act. Its wide-ranging functions include reviewing the administration and effectiveness of the Act and the relevant regulations, advising the relevant minister in relation to a variety of matters, promoting better building standards, conducting industry consultation, and disseminating information (s 196).
The Board itself is established by s 183 of the Act. In addition to administering the practitioner registration system, the Board’s functions include “to supervise and monitor the conduct and ability to practise of registered building practitioners” (s 183(2)(b)).
Part 11 of the Act deals with the registration of building practitioners and contains the following divisions: Division 1 – Registration; Division 2 – Inquiries; and Division 3 – The Board. The sections pursuant to which the Board is purporting to act in respect of the Inquiry are all contained within Division 2 of Part 11.
The Notice was issued under s 178, sub-section (1) of which authorises the Board to conduct an inquiry about the “conduct or ability to practise” of a registered building practitioner. It may conduct such an inquiry on its own initiative, on a referral by the Building Commission or VCAT, or on the recommendation of a person appointed by it to conduct a preliminary assessment under s 177 (s 178(1)).
The Board may suspend a practitioner’s registration, pending the holding and determination of an inquiry (s 178(3)).
There is no time limit for the commencement of an inquiry specified in s 178, or anywhere else in Part 11.
The procedure for conducting an inquiry under s 178 is specified in clause 15 of schedule 3 to the Act (s 187(3)). That requires the Board to be bound by the rules of natural justice, but otherwise confers considerable flexibility upon the Board (for example, it is not bound by rules of evidence, may inform itself in any manner it thinks fit, and must proceed with as little formality and technicality as possible).
Section 179 of the Act, which is headed “Inquiry into conduct”, sets out the Board’s powers in relation to an inquiry under s 178. Sub-section 179(1) sets out the types of findings which the Board may make at an inquiry:
On an inquiry into the conduct of a registered building practitioner, the [Board] may make one or more of the decisions mentioned in sub-section (2) if it finds that the registered building practitioner –
(a) is guilty of unprofessional conduct; or
(b) has failed to comply with this Act or the regulations; or
(c) has failed to comply with a determination of the Building Appeals Board or a direction of the Commission; or
(d) has been guilty of conduct in relation to his or her practice as a building practitioner which –
(i) is constituted by a pattern of conduct or by gross negligence or gross incompetence in a particular manner; and
(ii) shows that he or she is not a fit and proper person to practise as a building practitioner; or
(e) has employed or engaged to do, on his or her behalf, work of a kind that can only be done by a person registered under this Part in a particular category or class, a person who is not so registered; or
(f) has obtained his or her registration under this Part or any required insurance by fraud or misrepresentation; or
(fa) has failed to comply with a reasonable direction of an insurer [under specified legislation]…; or
(fb) has failed to carry out a recommendation contained in an inspector’s report under section 48 of the Domestic Building Contracts Act 1995; or
(g) has had his or her authority to practise as a building practitioner in a place outside Victoria cancelled or suspended otherwise than for failure to renew that authority; or
(h) has failed to comply with an undertaking given to the Board under this Division.
Section 179(2) provides that the Board may make the following decisions:
(a) to reprimand the person;
(b) to require the person to pay the costs of or incidental to the inquiry;
(c) to require the person to give an undertaking not to do a specified thing;
(d) to impose a fine of not more than 50 penalty units;
(e) to suspend registration for not more than 3 years;
(f) to cancel registration.
It can be seen that the Board may make a very broad range of findings at an inquiry held under s 178, and that the conduct which may be inquired into includes single acts or omissions, as well as patterns of conduct. All of these findings would involve an examination of past conduct. The Board may exercise one or more of the broad range of powers contained in s 179(2), if it makes a finding under s 179(1). Those powers range from a reprimand, to the suspension or cancellation of registration; they include the power to impose a fine. They are powers of a nature commonly seen in legislation dealing with the disciplining of professional or occupational groups. No doubt, in considering the exercise of power under s 179(2), the court may have regard to future matters (such as ongoing risks to the public), as well as the nature and seriousness of past conduct.
In this case, the Notice described s 179(1)(b) as the ground for inquiry. Specifically, the Notice alleged that the builder had failed to comply with s 16(1) of the Act, in certain specified respects.
Section 16 appears in part 3 of the Act, which deals with building permits. Section 16(1) provides that:
A person must not carry out building work unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the building regulations and the permit.
Penalty: 100 penalty units, in the case of a natural person.
500 penalty units, in the case of a body corporate.
There are numerous offences created throughout the Act, of which s 16(1) is but one example. The offence provisions prescribe maximum penalties for the relevant offences. However, those sections do not indicate who may prosecute for such an offence; such matters are dealt with in s 241, which is headed “Proceedings for offences”. Section 241 appears in Division 4 (Offences and Penalties) of Part 13 (General Enforcement Provisions) of the Act.
Sub-sections (1) to (3) of s 241 specify who may bring proceedings “for an offence” against different parts of the Act or the regulations. Section 241(6) provides that no person other than a person authorised by or under s 241 may bring proceedings “for an offence against” the Act. Different persons are authorised to bring proceedings for different types of offence.
Proceedings for an offence against part 3 of the Act (which includes s 16) may only be brought by a person authorised by the council, or a prescribed person or a person in a prescribed class of persons (s 241(1)). It is common ground that the Board does not fall within any of those descriptions and therefore may not prosecute the builder in court for a breach of s 16(1).
If the builder’s argument (that the Inquiry is a proceeding for an offence) is accepted, then the Board is not even authorised to conduct a disciplinary inquiry into whether he has failed to comply with s 16(1). But, s 179(1)(b) specifically empowers the Board to make a finding that a builder has failed to comply with the Act. There would be little, if any, work for s 179(1)(b) to perform, were the builder’s argument correct. The court should, if possible, construe s 179(1)(b) so as to give it some meaning consistent with the purpose and objects of the Act.
I was referred to a number of cases which have considered the nature of disciplinary proceedings against professional persons. In particular, the courts have considered whether such proceedings should be characterised as “protective” or “punitive”, meaning that, notwithstanding that the exercise of disciplinary power may involve a great deprivation to the person involved, it is done for the protection of the public, not to punish the professional.[5]
[5]Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2; NSW Bar Association v Evatt (1968) 117 CLR 177 at 193-4; Richter v Walton (NSW Court of Appeal No CA 40309/93, 15 June 1993, unreported); Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-8; Ha v Pharmacy Board of Victoria [2002] VSC 322.
As the High Court more recently pointed out in Rich v Australian Securities and Investments Commission[6], albeit in a different context[7], the supposed distinction between “punitive” and “protective” proceedings or orders is elusive, and suffers from the same difficulties as attempting to classify all proceedings as either civil or criminal.
[6](2004) 220 CLR 129 at [32] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
[7]In that case, ASIC sought orders disqualifying two directors from acting in the management of a corporation. The court had to consider whether the directors could refuse to provide discovery to ASIC because of the privilege against exposure to penalties and forfeitures. The courts below had decided the question on the premise that a distinction between “punitive” and “protective” proceedings was possible and useful and that, when applied to the case, it led to the conclusion that the proceedings were protective and the privilege was therefore not available. The High Court rejected that approach in considering the availability of the privilege.
The other cases to which I was referred, which considered whether the relevant body was exercising judicial or administrative power[8], are not directly on point either.
[8]Particularly, Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23.
In this case, the court is not required to characterise the Board’s proceeding as protective versus punitive, or administrative versus judicial. Rather, the court must determine whether the Inquiry is a proceeding “for an offence” within the meaning of s 241.
The builder correctly points out that the word “for” is capable of a wide variety of meanings. The expression “for an offence” in s 241 must be construed by reference to the context in which it appears, and the presumed purpose and objects of the Act. As already mentioned, s 241 sits in the part of the Act concerned with offences and penalties, not the part dealing with registration and disciplinary inquiries.
The Board has been given broad powers to inquire into the conduct of registered building practitioners, and to make certain findings and exercise certain powers against them. Having regard to the statutory scheme, I am satisfied that the main purpose of such an inquiry is to ensure that registered builders adhere to the high standards expected of them, primarily for the protection of the public and the reputation of the building industry itself. If the Board finds that a builder has failed to comply with a provision of the Act, it may impose one of a number of disciplinary sanctions. That disciplinary regime is separate from the provisions which create offences which are punishable through prosecution in the courts.
The builder asserts that, if the Inquiry proceeds, the Board will not be conducting an investigation into “proper” disciplinary matters, such as: his broad conduct or ability to practice; whether he performed at the relevant standard or benchmark for registered building practitioners; and whether or not he is a fit and proper person. He says the Board will only be looking at whether or not he breached s 16(1), and that must simply be an inquiry into whether or not he has committed an offence. That argument seems to proceed on two false premises, namely, that:
(a) The relevant events can only be the subject of one legal proceeding; and
(b) A disciplinary proceeding must be concerned with more than one instance of alleged misconduct.
It is trite to observe that the same events may have a variety of legal consequences. For example, an act or omission may constitute a criminal offence and also give rise to civil proceedings, such as an action in damages. The same events may also have disciplinary consequences.
The standard of proof will vary, depending on the type of proceeding. Disciplinary inquiries into professional misconduct are not criminal proceedings, and the standard of proof is not proof beyond reasonable doubt.[9] Nevertheless, given the nature of such proceedings and the serious consequences which they may have, the Briginshaw[10] test applies.
[9]Re Seidler (1986) 1 Qd R 486; Mercer v Pharmacy Board of Victoria [1968] VR 72; Lee v Naismith [1990] VR 235; Bodna v Deller and Public Service Appeals Tribunal [1981] VR 183; Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ, citing Kirby P in Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce [1988] 85 ALR 640; Rich v Australian Securities and Investments Commission, op-cit; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board, op-cit.
[10]Briginshaw v Briginshaw (1938) 60 CLR 336.
The structure of the Act is that any failure by a builder to comply with a provision such as s 16(1) may have criminal consequences (through prosecution for an offence, brought in court by a prescribed person other than the Board) and/or disciplinary consequences (through the holding of an inquiry by the Board). A different standard of proof would apply, depending on the nature of the proceeding. Furthermore, a proceeding for an offence would be subject to the limitation period in s 241(7), a disciplinary inquiry under s 178 would be subject to no such time limit.
Different persons make the decision whether or not to bring the different types of proceeding. Whether one or both proceedings would be commenced would no doubt depend on the circumstances of each case.
There is no reason in logic or principle why a disciplinary proceeding cannot be concerned with a single instance of alleged misconduct. Here, s 179(1) clearly envisages that a single instance of alleged misconduct may be the subject of a disciplinary inquiry under s 178. Section 179 specifically permits the Board to make a finding under s 179(1)(b), that a person has failed to comply with the Act, and to exercise the powers in s 179(2).
The builder points to a number of features of the Board’s own documents and procedures, which he says establish that the Board’s inquiry is a proceeding “for an offence”. In particular, he argues that the Board adopts the language of the criminal law, and this supports a conclusion that the Inquiry is an inquiry into whether or not the builder has committed an offence.
In this case, the Board appointed a compliance officer, who was employed by the Building Commission, to conduct a preliminary investigation under s 177. The officer took statements from relevant witnesses and formally interviewed the builder (who he described as “the subject”), in what he described as a “record of interview”. He then reported to the Board, with a recommendation that it conduct an inquiry.
Served with the Notice were a witness list and an exhibit list, and copies of the statements and documents which it was proposed would be used in evidence at the hearing of the Inquiry.
There was also a document headed “preliminary inquiry information”, which informed the builder that the Board would welcome “any written submissions or documents for consideration in addition to the brief of evidence irrespective of your plea”, and “submissions on appropriate penalty.” The document asked the builder to state which of the allegations he disputed, and warned that he would have to submit evidence to refute any disputed allegations.
The builder argues that the use of words or concepts such as “record of interview”, “fine”, “plea”, “penalty” and “refute” demonstrate that the Inquiry is, in reality, in the nature of a prosecution. The Board disputes that it regards the Inquiry in that way. The court’s role is to construe the relevant legislation, and the Board’s choice of language, or perception of its role, is irrelevant to that task.
The builder also seeks to rely on certain information on the Building Commission’s website.[11] The website includes a section headed “Register of [Board] inquiries” listing the results of the Board’s inquiries in particular years. The introduction to that section says that the inquiry hearings concern practitioners who were registered “at the time of the alleged offence or misconduct”. There is then a table which lists, next to the relevant practitioner’s details, a summary of the allegations, and a column headed “penalty”. There is a separate section of the website, headed “Register of prosecutions”, which provides details of the results of prosecutions brought by the Building Commission in courts.
[11] type="1">
The builder particularly relies on the references to “alleged offence” and “penalty” as establishing that an inquiry by the Board is a proceeding for an offence. But, the language used by the Building Commission is similarly irrelevant to the task of statutory construction.
For all of these reasons, I conclude that the Inquiry is not a “proceeding for an offence”, within the meaning of s 241 of the Act. It is a disciplinary proceeding, properly brought pursuant to s 178, and in respect of which there is no time limit.
Alternative argument
In his supplementary written submissions, the builder raises an alternative argument. He says that, even if the Inquiry is not a proceeding for an offence, the court should nevertheless stay the Inquiry, in the exercise of its inherent jurisdiction.
He argues that the Inquiry should be stayed, because otherwise it would involve an improper attempt to circumvent the time limit in s 241(7). In support of that argument, he relies in particular upon the decision in Hoffman v Chief of Army[12], in which the Full Court of the Federal Court was considering the prosecution of a person under the Defence Force Discipline Act 1982 (Cth). The respondent sought to charge the appellant with an offence under s 61 of that Act, the elements of which offence were identical to an offence under s 33 of the same Act. Because a charge under s 33 would have been time-barred, the court held that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period, through a different charge. Accordingly, it stayed the prosecution.
[12][2004] FCAFC 148.
Unlike Hoffman, this case does not involve alternative criminal charges for the same conduct. Rather, the Act envisages that the same conduct may have criminal and/or disciplinary consequences. The legislature has decided to impose a limitation period in respect of the former, but not the latter. There is no inherent unfairness in that, nor any reason to think that the legislature did not intend that consequence.
He also argues that it would be unfair if the Board could make a finding that he had contravened the Act, which could lead to the same public opprobrium as if he had been convicted of an offence in the Magistrates Court. But, even if it were accepted that such a consequence may flow, that is what the Act clearly provides for.
The purpose of the Inquiry is not to determine whether the builder is guilty of a criminal offence and to impose a penalty under s 16(1). It is to consider whether, on the civil standard of proof, he should be subject to some sort of disciplinary sanction under s 179(2) for failure to comply with s 16(1). The Act provides for inquiries and for prosecutions, and each serves a different purpose. There is no manifest unfairness or prejudice to the builder caused by reason of the differing standards of proof in disciplinary proceedings, as opposed to proceedings for offences.
I am not persuaded that there is any reason why the court should stay the Inquiry in the exercise of its inherent jurisdiction.
Conclusion
For these reasons, the builder’s claim must be dismissed. I will hear from the parties as to costs.
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