Ross v Building Practitioners Board
[2017] VSCA 274
•28 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0058
| BRIAN DOUGLAS ROSS | Applicant |
| v | |
| BUILDING PRACTITIONERS BOARD and VICTORIAN BUILDING AUTHORITY | First Respondent Second Respondent |
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| JUDGES: | KYROU, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 August 2017 |
| DATE OF JUDGMENT: | 28 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 274 |
| JUDGMENT APPEALED FROM: | [2017] VSC 196 (Ginnane J) |
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JUDICIAL REVIEW – Statutory Interpretation – Transitional provisions –Building Practitioners Board issued notices of inquiry into allegations against registered building practitioner – Hearing not commenced – Act amended to abolish Building Practitioners Board – Transitional provisions empowered Board to complete inquiries which commenced before specified date – Whether inquiry commenced before that date – Inquiry is a process and involves more than single event of hearing – Appeal dismissed –Building Act 1993, Building Legislation (Consumer Protection) Act 2016.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant For the First Respondent For the Second Respondent | Mr D Collins QC with Mr J Nixon No appearance Ms M Richards SC with Mr J Stoller | McGuinness & Hosking No appearance Victorian Government Solicitor |
KYROU JA
FERGUSON JA
McLEISH JA:
The applicant, Brian Ross, is a building surveyor and a registered building practitioner. In August 2016, the Building Practitioners Board (‘the Board’) endorsed its Inquiry Sub-Committee’s recommendation that the Board proceed to an inquiry into allegations against Mr Ross. On 30 August 2016, the Registrar of the Board executed three notices of inquiry addressed to Mr Ross. The notices were served on Mr Ross on 6 September 2016. A panel of Board members was appointed to conduct inquiries into the conduct of Mr Ross. The inquiries were listed for a directions hearing on 24 February 2017.
On 1 September 2016, a new disciplinary scheme for registered builders administered by the second respondent, the Victorian Building Authority (‘the Authority’), came into effect replacing the scheme that had been operated by the Board. A transitional provision empowers the Board to complete inquiries that had commenced before 1 September 2016. Mr Ross began proceedings in the Trial Division of this Court seeking a declaration that the Board did not have jurisdiction to conduct an inquiry into his conduct because it had not commenced an inquiry before 1 September 2016. A judge refused to grant him that relief. Mr Ross now seeks leave to appeal.
For the reasons which follow, we would grant leave to appeal. We would dismiss the appeal. In broad terms, Mr Ross contends that an inquiry under the legislation is an event which is to be conducted or held, not a series of procedural steps. He identifies the event as a meeting of or hearing before the Board or one of its panels appointed for the purpose of the inquiry. As will be apparent from what follows, in our opinion, an inquiry for the purposes of the legislation involves more than simply the meeting or hearing before the Board or panel. It starts no later than when the Board makes a decision to undertake an official investigation into the relevant builder. Here, that decision was made before 1 September 2016 and the transitional provision applies so that the inquiry by the Board may continue in respect of Mr Ross.
The legislation
The Building Act 1993 (‘the Act’) was amended by the Building Legislation Amendment (Consumer Protection) Act 2016 (‘the Amending Act’). The provisions relevant to the issues in this matter came into force on 1 September 2016. Before that date, the Board was responsible for the discipline of building practitioners. As mentioned above, the Amending Act introduced a new disciplinary scheme overseen by the Authority. The Board was abolished on 1 September 2016, save that it continued for some limited purposes, including dealing with inquiries already commenced.
The transitional provision relevant to this matter is cl 4(1) of sch 8 of the Amending Act. It provides:
If, before [1 September 2016], the Building Practitioners Board had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.
The issue here is whether the Board ‘had commenced an inquiry’ into the conduct of Mr Ross before 1 September 2016.
The statutory context for interpreting cl 4(1) requires consideration of divs 2 and 3 of the Act before it was amended (‘Pre-amendment Act’).
Division 3 dealt with the establishment of the Board, its functions, membership and the like. Section 183 established the Board and set out its functions including to administer a registration system for building practitioners and to supervise and monitor their conduct and ability to practise. Section 184 dealt with the membership of the Board which (among other things) was to include one member for each category of building practitioner.[1] Section 186(1) gave the Board power to establish sub-committees and to define their functions, procedure and membership.
[1]Pre-amendment Act s 184(3).
Division 2 of the Pre-amendment Act governed inquiries. Section 177 provided for a preliminary assessment to be undertaken by a Board-appointed person before a decision was made by the Board to conduct an inquiry into the conduct of a building practitioner.
Section 178 dealt with inquiries. So far as relevant, it provided:
(1)Subject to section 179A(2), the Building Practitioners Board may conduct an inquiry about the conduct or ability to practise of a registered building practitioner—
(a) on its own initiative; or
(b)on the recommendation of a person appointed under section 177; or
(c)on a referral by the Authority; or
(ca)on a referral by the Victorian Civil and Administrative Tribunal; or
(cb)on a referral by an insurer; or
(d) at the request of any other person.
(2)At least 7 days before the inquiry is to be conducted, the Board must cause to be served on the registered building practitioner written notice of the date, time and place of the inquiry, and whether it is to proceed by written submissions or hearing.
(3)The Board may suspend the practitioner’s registration pending the holding and determination of an inquiry if the Board considers it is in the interests of the public to do so.
Section 179 concerned the powers of the Board ‘on an inquiry’ into the conduct of a building practitioner. For example, if the Board found the building practitioner had failed to comply with the Act, it could do a number of things including reprimanding the person or requiring the person to undertake training.
Section 179A dealt with inquiries into practitioners whose registration had been suspended. An inquiry into those practitioners had to be commenced within three years following the suspension. Subsections (2) and (3) provided:
(2)An inquiry into a person whose registration as a registered building practitioner has been suspended may not be commenced by the Building Practitioners Board after the end of the 3 year period immediately following the date on which the suspension takes effect.
(3)For the purposes of subsection (2), an inquiry commences when the Building Practitioners Board causes a notice to be served under section 178(2) on the person whose registration as a registered building practitioner has been suspended.
Section 180(1) set out the Board’s powers where the practitioner was incapable of practising. It provided:
On an inquiry into a registered building practitioner’s ability to practise, if the Building Practitioners Board is satisfied that the practitioner is incapable of practising it may—
(a) suspend the person’s registration for not more than 3 years; or
(b) cancel the person’s registration.
Section 187 (which formed part of div 3) concerned the membership and procedure of the Board. Insofar as relevant, it provided:
(1)Subject to subsections (2) and (3), Parts 1 and 2 of Schedule 3 apply to the membership and procedure of the Building Practitioners Board.
(2)Clause 8 of Schedule 3 applies to the Building Practitioners Board—
(a)only in respect of its functions under Division 2 of this Part; and
(b)as if that clause requires that one of the members of the panel is to be the member of the Board appointed in respect of the category of registered building practitioner to which the person who is the subject of the Board’s inquiry belongs; and
(c)otherwise in the same way as it applies to the Building Appeals Board.
(3)Clause 15 of Schedule 3 applies to the Building Practitioners Board in the same way as it applies to the Building Appeals Board.
Part 2 of sch 3 (being cls 8–11) concerned the general procedure of the Board. Clause 8 permitted the Board to sit in panels and provided:
(1)For the purposes of performing any of its functions, the Building [Practitioners] Board[2] may be constituted by one or more panels of its members.
(2)The chairperson of the Building [Practitioners] Board may determine which and how many of its members are to constitute a panel and what [inquiries][3] or classes of [inquiries] are to be allocated to each panel…
(6)If, after [an inquiry] has commenced before a panel of two or more members, a member of the panel becomes unavailable—
(a)if the parties to the [inquiry] agree, the [inquiry] may be continued and completed before the remaining members of the panel; and
(b)if the member who is unavailable is the chairperson of the panel another chairperson of the panel must be chosen in accordance with this clause.
[2]Clause 8 refers to the ‘Building Appeals Board‘. The parties agreed that by virtue of s 187 of the Pre-amendment Act, that clause applies to the Board.
[3]Clause 8(6) refers to ‘a proceeding’. The parties agreed that by virtue of s 187 of the Pre-amendment Act, that clause applies to an inquiry and that the word ‘inquiry’ should therefore be substituted for the word ‘proceeding.’
Clause 10(3) provided that the functions of the Board may be performed at a meeting at which there is a quorum. Clause 10(4) provided:
At a meeting a decision of a Board is the decision of the majority of the members present and voting at the meeting and if voting is equal, the person presiding at the meeting has a casting vote as well as a deliberative vote.
As noted above, by virtue of s 187(3), cl 15 (located in pt 3 of sch 3) applied to inquiries by the Board. It read:
(1)The Building [Practitioners] Board[4] must give the parties to the [inquiry] reasonable opportunity to make—
[4]Clause 15 refers to the ‘Building Appeals Board‘. The parties agreed that by virtue of s 187 of the Pre-amendment Act, that clause applies to the Board and references in it to a proceeding should be read as references to an inquiry.
(a) oral submissions at a hearing; or
(b)written submissions in the case of [an inquiry] that is not a hearing.
(2)Sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to the Building [Practitioners] Board in relation to [an inquiry] as if the Board were a Board appointed by the Governor in Council.
(3)The Building [Practitioners] Board—
(a)may proceed by accepting written submissions or by conducting a hearing; and
(b)may inform itself in any manner it thinks fits; and
(c)is bound by the rules of natural justice; and
(d)is not bound by any rule or practice as to evidence; and
(e)may conduct [an inquiry] in private if it considers it in the public interest or the interest of justice to do so, but must otherwise hold its hearing in public; and
(f)must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and
(g)may proceed with the hearing in the absence of a party to the [inquiry] if it is satisfied that the party has been given reasonable notice of the date, time and place of the hearing; and
(h)may at any time adjourn the [inquiry]; and
(i)may deal with [inquiries] or classes of [inquiries] together if it is satisfied that they relate to the same parties, the same building, land or building work or the same or related subject-matter; and
(j)may seek the independent advice of a person to assist it in dealing with the [inquiry].
(4)A party to [an inquiry] may appear at a hearing before the Building [Practitioners] Board or do anything else in relation to [an inquiry] before that Board either personally or through an agent.
(5)The Board must disclose to each party to [an inquiry] any advice it receives under subclause (3)(j) and give each party a reasonable opportunity to make submissions about that advice before determining the [inquiry].
The steps taken by the Board
On 10 August 2016, the Board endorsed its Inquiry Sub-Committee’s recommendation that the Board proceed to an inquiry into allegations against Mr Ross. On 23 August 2016, the Board endorsed its Inquiry Sub-Committee’s recommendations that the Board proceed to two further inquiries into allegations against Mr Ross.
On 30 August 2016, the Registrar of the Board executed three notices of inquiry directed to Mr Ross. The first notice contained 66 allegations, the second 315 allegations and the third, two allegations. Each notice stated that an inquiry had been initiated pursuant to s 178 of the Act in respect of the conduct of Mr Ross as a registered building practitioner. Each notice stated that the inquiry would proceed by way of an oral hearing unless otherwise determined by the Board. Each notice specified that a directions hearing would take place on 24 February 2017. Each notice then set out the various allegations made against Mr Ross. The notices concluded with a list of the decisions which the Board may make. Under the heading ‘Process of Inquiry’ each notice contained the following:
It may be in your best interests to appear personally or through a representative at the Inquiry and you should seek advice regarding this. The Board will make a finding on the evidence before it at the Inquiry. If you or your nominated representative fails to appear at the hearing, the Board may make its decision in your absence.
The notices concluded with information concerning how and when the Board would deliver its decision after the inquiry had taken place.
The notices of inquiry were served on Mr Ross on 6 September 2016 under cover of a letter dated 30 August 2016.
Mr Ross challenged the Board’s jurisdiction to conduct the inquiries. The Board rejected that challenge.
Judge’s reasons
Mr Ross commenced a proceeding in the Trial Division seeking a declaration that the Board did not have jurisdiction to conduct an inquiry into his conduct as alleged in the three notices of inquiry. In seeking judicial review, Mr Ross submitted that first, the Board did not commence the three inquiries into his conduct before 1 September 2016; second, it is to be inferred that the Board’s practice was to conduct inquiries through panels but the Board had not appointed a panel before 1 September 2016 for the purposes of the inquiry into his conduct; third, accordingly the Board did not have jurisdiction to conduct the inquiries which were the subject of the three notices; and fourth, by its determination that it did have jurisdiction, the Board fell into jurisdictional error and committed an error of law in ruling that the three inquiries commenced before 1 September 2016.
The Board was named as the first defendant and the Authority as the second. The Authority opposed the grant of the declaration sought by Mr Ross. The Board took no part in the proceeding, adopting instead a Hardiman[5] approach. It has done the same on the application for leave to appeal, and the appeal, if leave is granted.
[5]R v Australian Broadcasting Tribunal;; Ex parte Hardiman (1980) 144 CLR 13.
The judge concluded that the Board did have jurisdiction.[6] The judge reasoned that one of the purposes of the Amending Act was to provide transitional provisions where the Board had commenced an inquiry to ensure that the inquiry could continue and not fall between the Act as it stood before and after amendment.[7] In passing, the judge recorded that while there may be an argument that the Authority might be able to conduct an inquiry into the conduct which was the subject of the three notices of inquiry, it was inappropriate and not possible in the case before him to express any concluded view about that point.[8]
[6]Ross v Building Practitioners Board [2017] VSC 196 (‘Reasons’).
[7]Reasons [51].
[8]Ibid [52].
The judge observed that the words ‘the Board had commenced an inquiry into the conduct of a building practitioner’ are to be given their ordinary meaning, being ‘to begin; to start’ and that the ordinary meaning of ‘begin’ is ‘to enter upon an action; take the first step; commence; start’.[9] The judge contrasted this with the word ‘conduct’ which means to carry on something.[10]
[9]Ibid [53].
[10]Ibid [54].
The judge rejected the submission that an inquiry commences when the final hearing begins. He was of the opinion that the inquiry was made up of a number of steps beginning with the Inquiry Sub-Committee’s recommendations, followed by the Board’s endorsement of those recommendations and then further steps for the implementation of the Board’s decision to proceed.[11] He held that before 1 September 2016, the Board had commenced an inquiry because by that date the Board had taken the first step of endorsing the recommendations of its Inquiry Sub-Committee.[12] In his opinion, the Registrar’s electronic signing of the Notices of Inquiry on 30 August 2016 was a clear step in the inquiry and a demonstration that it had been commenced.[13] In contrast, the judge observed that the service on Mr Ross on 6 September 2016 of those notices (describing the allegations and giving details of the hearing) provided Mr Ross with procedural fairness; service was not the commencement of the inquiry.[14] The judge also referred to the fact that the notices referred to an inquiry having been initiated, that is begun.[15]
[11]Ibid [55].
[12]Ibid [56].
[13]Ibid [58].
[14]Ibid [59].
[15]Ibid [60].
According to the judge, it was not determinative that a panel had not been formed for the conduct of the inquiry. He noted that there was no statutory requirement that a panel be formed to conduct the inquiry.[16]
[16]Ibid [61].
Finally, the judge took into account s 179A(3) of the Act which dealt with the commencement of an inquiry for some purposes. The judge said:
Section 179A was inserted by the Building Amendment Act 2012 following the decision in Ariss v Building Practitioners Board.[17] Because Parliament imposed a limitation period for the commencement of an inquiry into the conduct of a suspended builder of three years immediately following the date on which the suspension took effect, it needed to fix the date for the commencement of the inquiry. It did that for the purposes of s 179A(2) by reference to when the notice required by s 178(2) to be served was served. Parliament did not apply that method in clause 4 of schedule 8 for the purposes of determining when an inquiry had been commenced under the transitional provisions.[18]
[17](2010) 28 VR 92.
[18]Reasons [63].
The judge concluded that the Board had jurisdiction to conduct the inquiry into the conduct of Mr Ross.[19] The judge ordered that the proceeding be dismissed.
[19]Ibid [64].
At what point did the Board commence an inquiry under the Pre-amendment Act?
Mr Ross seeks leave to appeal on the basis that the judge erred in finding that the Board had commenced an inquiry into his conduct by resolving to endorse the recommendations of its Inquiry Sub-Committee.
Mr Ross and the Authority both agreed that the issue to be determined by the judge and by this Court was at what point the Board commenced an inquiry under the Pre-amendment Act. However, they took different positions as to what constitutes ‘an inquiry’ under the legislation. In broad terms, Mr Ross contends that an inquiry is an event, that is, the meeting of or hearing before the Board or one of its appointed panels. On the other hand, the Authority contends that an inquiry is a process comprised of a number of steps, only one of which may be a hearing.
Mr Ross contends that the judge failed to consider the transitional provision in the context of the legislation, in particular, s 178 of the Pre-amendment Act. His submission is that an inquiry cannot be commenced until after the notice is served on the registered building practitioner. In this regard, he relies on s 178(2) which requires notice of the time, date and place of the inquiry to be given. Given that the section expressly requires that notices be served before the inquiry is to be conducted, Mr Ross asks rhetorically ‘How can written notice of the date, time and place of the inquiry be given after the inquiry has commenced?’. He says that if the inquiry was more than an event, the section could have provided for notice to be given at least seven days before ‘the commencement of the hearing of the inquiry’ but it does not do that. Mr Ross submits that the language used does not make sense unless an inquiry is only an event.
In support of this submission, Mr Ross relied on cl 8(6) of sch 3 of the Pre-amendment Act. It will be recalled that that clause concerned replacement of a member of a panel who becomes unavailable after an inquiry has commenced. Mr Ross contends that the clause contemplates the commencement of an inquiry before a panel which will be constituted after a decision to conduct an inquiry has been made. This, he says, means that if a panel is to perform the function of conducting an inquiry, notice of the date, time and place of the inquiry under s 178(2) can only be given after the panel has been convened.
Mr Ross also referred to s 178(1) of the Pre-amendment Act. As noted above, that section provided that the Board ‘may conduct an inquiry’ on its own initiative or on the recommendation, referral or request of other specified persons or bodies. In the submission of Mr Ross, the words ‘may conduct an inquiry’ mean that an inquiry is something that the Board ‘conducts’, and therefore commences when the Board commences to conduct it, not when the Board decides that it will conduct an inquiry in the future, after having given notice as required by s 178(2). Mr Ross submits that the judge erred in contrasting the words ‘commence’ and ‘conduct’, to conclude that the word ‘conduct’ refers to something that has already begun or commenced. He contends that an appropriate analogy is a trial, which does not commence when it is fixed for hearing but when the hearing of the trial commences. He distinguishes the trial as an event from the balance of a proceeding noting that a proceeding is not commenced by a court but rather by a litigant. In that case, the proceeding is simply the process which leads to the trial. In his submission, the judge erred in concluding that the statutory procedures to be followed before the conduct of the inquiry constituted steps in the inquiry itself. In doing so, Mr Ross argues that the judge did not give the words ‘the inquiry’ meaning having regard to the text of s 178.
Mr Ross submits that the trial judge erred in having regard to the fact that the notices which were signed by the Registrar on 30 August 2016 stated that an inquiry had been initiated because s 178 does not provide for the ‘initiation’ of an inquiry, it provides for the conduct of an inquiry.
Next Mr Ross submits that the construction of cl 4(1) of sch 8 that the judge settled upon would have the consequence that the Board could continue for a considerable period of time, as there would be no limitation upon when the notice required by s 178(2) could be served or the hearing conducted. He accepted that the transitional provision is intended to provide for an orderly transition from one disciplinary scheme to another but says that the construction he contends for does no violence to this objective.
Mr Ross accepted that the language ‘on an inquiry’ in s 179 is awkward if the interpretation of the legislation he presses for is the correct one. He submits that s 179 should be interpreted as concerning what may be done at an inquiry. That is, at an inquiry the Board may make any one of the decisions set out in the section. He made the same submission in relation to s 180 which as can be seen above also uses the words ‘on an inquiry.’
Mr Ross submitted that cl 15 of sch 3 provides no real assistance to the task of interpretation. He contends that cl 15 merely contemplates how the hearing of a proceeding is to be conducted and what is to occur before a hearing, which is consistent with the inquiry being limited to the meeting at which the Board either considers and receives submissions or, having received them, considers them in order to make its determination.
In the submission of Mr Ross, s 187(2)(b) (which applies cl 8 of sch 3) is no barrier to the interpretation for which he contends. It will be recalled that that provision requires that one of the members of the panel be from the category of building practitioner ‘to which the person who is the subject of the Board’s inquiry belongs.’ He submits that the section does not necessarily contemplate that the inquiry has already commenced when the panel is appointed. Rather, he says, the panel will necessarily be constituted before the inquiry is conducted.
As an alternative, Mr Ross submitted that if an inquiry is not an event but rather a process, it does not commence until notice is served under s 178(2). That, he says, would be the first step that leads to the conduct of the inquiry. Here, the notices were not served before 1 September 2016.
The task of the Court is to interpret the legislative provision starting and ending with its text, having considered the provision in its context (including the other provisions of the legislation and the history of the legislation) and with its statutory purpose in mind.[20]
[20]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(2009) 239 CLR 27, 46-7 [47]; Thiess v Collector of Customs(2014) 250 CLR 664, 671 [22]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd(2012) 250 CLR 503.
As the parties identified, this case turns on what constitutes an inquiry for the purposes of the Act - is it an event or a procedure involving a series of steps? In our opinion, it is the latter.
Starting with the text of cl 4(1), it seems to us that either interpretation would be open. However, in ordinary parlance an inquiry would generally be understood as an official investigation involving more than just the hearing before a commissioner or the relevant body (in this case the Board) or a meeting of that body’s members; it encompasses the steps leading to the hearing (including the identification of the matters to be investigated, the giving of notice and the like), the hearing or consideration of written submissions and the making of the decision as to the outcome of the inquiry. Consequently, the text suggests that an inquiry is not purely an event.
Turning then to the context, there are some provisions in the legislation that, at least at first blush, may indicate that an inquiry can only be an event. Most notably, if under s 178(2) notice of the time, date and place of the inquiry has to be given seven days beforehand, it is not easily reconcilable with an interpretation that would involve the inquiry spanning a number of steps, including steps to be taken before the notice is given. However, the notice requirement is not quite as straightforward as Mr Ross would have it. In our opinion, the notice requirement in s 178(2) is concerned with a procedural step to ensure that the building practitioner is afforded procedural fairness and knows when and how he or she will be heard (whether by written submissions or hearing). It is about giving notice of the step in the procedure that gives the building practitioner the opportunity to put his or her case to the Board. By the time the notice is given, the matter for examination has been identified (so that the building practitioner can respond to it) and the decision to proceed has been made and the investigation begun. In that sense, the ‘time, place and date’ of the inquiry is the time, place and date of the hearing, whether the inquiry is an ongoing process or a single event. Understood in that way, s 178(2) does not provide strong contextual force for interpreting ‘inquiry’ in cl 4(1) as a single event.
Clause 15 of sch 3 (which applies by virtue of s 187(3)) also provides some relevant context. Sub-clause (1) imposes on the Board an obligation to ‘give the parties to the inquiry reasonable opportunity to make … oral submissions at a hearing; or … written submissions in the case of an inquiry that is not a hearing.’ On one view, the latter part of the clause is consistent with an interpretation that an inquiry is an event; that is, it implies that an inquiry can take two forms, one of which is by written submission, the other being a hearing. But therein lies the difficulty. In the case of written submissions, what is the event? When does it start? Is it the provision of written submissions by the building practitioner, their consideration by the individual members of the Board or panel appointed for the purpose of the inquiry or when the Board or panel members meet as a group to consider the submissions and determine the outcome of the inquiry? In our opinion, the possibility of an inquiry by written submissions without a hearing indicates that an inquiry is more extensive than the component which enables the building practitioner to be afforded an opportunity to put his or her case.
Overall, cl 15(3) suggests that an inquiry is a single event. For example, cl 15(3)(e) permits an inquiry to be held in private in certain circumstances but provides that the Board ‘must otherwise hold its hearing in public’ suggesting that the inquiry is the single event, that is the hearing.
On the other hand, the introductory wording of ‘on an inquiry’ in ss 179 and 180 is supportive of an interpretation that an inquiry comprises a number of steps and is not an event. Had those sections read as applying ‘at an inquiry’ or ‘after an inquiry’ the position may have been different.
Section 187(2)(b) supports an interpretation of an inquiry as more than a single event. As noted above, that section provides for the appointment of a person from the category of building practitioner to which ‘the person who is the subject of the Board’s inquiry belongs’ to a panel charged with responsibility for an inquiry. As the Authority submits, this wording indicates that the inquiry must have begun before the panel is convened to hold the hearing or consider the written submissions. Were this not the case, s 187(2)(b) would refer to ‘the person who is to be the subject of the Board’s inquiry.’
Part of the effect of cl 15(2) was to give the Board power to issue witness summonses in relation to an inquiry and to give members of the Board, witnesses and others appearing the same privileges and immunities in respect of things done or arising out of an inquiry as if the inquiry was a proceeding in this Court. Those are broad powers which might be exercised whether the inquiry is a single event or a process involving a number of steps. They do not assist in determining what constitutes an ‘inquiry’ for the purposes of cl 4(1). The same observation may be made about cl 15(4). To recap, that clause provides that a party to an inquiry may appear at a hearing before the Board or ‘do anything else in relation to an inquiry before that Board either personally or through an agent.’
Section 179A(3) is of no real assistance either. It simply made provision for one specific situation; that is that in the case of a suspended building practitioner, an inquiry would be taken to have commenced when the notice of the inquiry was served. It says nothing about other situations and does not preclude an interpretation that an inquiry is and commences when the hearing takes place or that it involves a process that commences at some earlier time.
When one comes to consider the purpose of cl 4(1), it is apparent from the legislation that it is to provide a smooth transition from the old regime under the Board to the new regime under the Authority. The legislature provided for an inquiry that is in train to be completed by the Board. This leads us to the conclusion that the intention is that if the Board has taken the step of deciding to undertake an inquiry, then its inquiry work has begun and will not be wasted. Rather, the inquiry will be completed by the Board. The alternative construction would preserve only those cases where a hearing had commenced, or some as yet unidentified stage had been reached in a process involving no hearing, leaving it to the new Authority to decide what, if anything, to do with the remaining outstanding cases. That seems an unlikely outcome of a smooth transitional process.
Returning to the text of cl 4(1) (in its overall context and with the purpose of the provision in mind), in our opinion the preferable construction is that an inquiry comprises a number of components; it is not just the final hearing or meeting of the Board. An inquiry, like a proceeding, is a process.
There remains for consideration the alternative argument of Mr Ross, that even if an ‘inquiry’ is not a single event but a process, that process ‘commences’ when notice of the Board’s decision to conduct an inquiry is served upon the practitioner rather than when the decision is made. In our view the trial judge was correct to characterise the giving of notice as a step for the provision of procedural fairness, rather than the formal commencement of an inquiry. There is no analogy with the commencement of a legal proceeding by service of originating process; here the process is commenced by the Board and the Board may properly have given the subject matter of the inquiry extensive consideration before deciding to give notice of the allegations to the practitioner. The inquiry in the present case therefore commenced no later than 30 August 2016 when the Registrar of the Board executed the notices of inquiry. It is not necessary to decide whether it happened at any earlier time.
In passing we would note that it may have been preferable if the legislation had specified exactly when an inquiry would be taken to have commenced for the purposes of cl 4(1) (in an analogous manner to s 179A(3)) but it did not do so. Consequently, the provision must be interpreted using the accepted method of text, context and purpose.
Conclusion
The application for leave to appeal will be granted. The appeal will be dismissed.
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