Ross v Building Practitioners Board
[2017] VSC 196
•13 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 5120
| BRIAN DOUGLAS ROSS | Plaintiff |
| v | |
| BUILDING PRACTITIONERS BOARD | First Defendant |
| - and - | |
| VICTORIAN BUILDING AUTHORITY | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2017 |
DATE OF JUDGMENT: | 13 April 2017 |
CASE MAY BE CITED AS: | Ross v Building Practitioners Board & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 196 |
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JUDICIAL REVIEW — Building Practitioners Board — Notices of inquiry into allegations against registered building practitioner — Amendments to principal Act — Abolition of Board — Transitional provisions — Whether inquiries commenced before commencement day of amending Act — Building Act 1993 ss 177, 178, 179, 179A, 180, 183 and 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.
STATUTES — Statutory interpretation — Amending Act — Transitional provisions — Whether inquiries commenced before commencement of new legislation — Legislative purpose — Whether interpretation would leave gap in regulation of builder’s conduct — Building Act1993 ss 177, 178, 179, 179A, 180, 183, 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Wheelahan QC and Mr J A J Nixon | McGuinness & Hosking Pty |
| For the First Defendant | Mr M P Allen | Victorian Building Authority |
| For the Second Defendant | Ms M J Richards SC and Ms E H Ruddle | Victorian Government Solicitor’s Office |
HIS HONOUR:
Mr Brian Ross, who is a building surveyor and a registered building practitioner, seeks judicial review of a decision of the Building Practitioners Board (‘the Board’) that it can proceed with inquiries about allegations brought against him. He was subject to regulation provided for in the Building Act 1993 (‘the old Act’).
The issue to decide is whether the Board commenced inquiries into the allegations concerning Mr Ross before 1 September 2016.
Background
On 23 July 2016, the Board’s Inquiry Sub-Committee recommended that the Board proceed to an inquiry into allegations against Mr Ross. On 10 August 2016, the Board endorsed the Sub-Committee’s recommendation.
On 23 August 2016, the Board’s Inquiry Sub-Committee recommended that the Board proceed to two further inquiries into allegations against Mr Ross. Later that day, the Board endorsed the Sub-Committee’s recommendations.
On 30 August 2016, Mr J Gilmore, the Registrar of the Board executed three Notices of inquiry directed to Mr Ross, by application of his ‘electronic signature’. They were each dated 30 August 2016.
On 6 September 2016, Mr Ross was served with the three Notices of inquiry under cover of a letter dated 30 August 2016 signed by a Case Officer of the Board. By the three notices the Board gave him notice that:
(a) The Inquiries were initiated by recommendation of the Victorian Building Authority under s 177 of the Building Act 1993;
(b) The Inquiries would proceed by way of an oral hearing unless otherwise determined by the Board;
(c) The Inquiries were listed for a directions hearing at 10.00 am on 24 February 2017, (a date which was ultimately altered to 14 November 2016).
The covering letter referred to the Board’s decision to hold an inquiry into Mr Ross’ conduct as a registered building practitioner. It seems that the process involving the three notices was often referred to in the singular, as the inquiry.
The Notices set out details of the allegations against Mr Ross. The first notice contained two allegations that Mr Ross had failed to perform his work as a building practitioner in a competent manner and to a professional standard. The second notice contained 66 similar allegations in respect of a range of properties. The third notice contained 315 allegations that Mr Ross had employed staff to do work of a kind that could only be performed by a person appropriately registered under the Act. I set out further details of these allegations later in this judgment when considering whether under the amending Act, the Authority would be able to bring such charges.
The old Act was substantially amended by the Building Legislation Amendment (Consumer Protection) Act 2016 (‘the amending Act’) with the material provisions for this proceeding commencing operation on 1 September 2016. The Board was abolished on that day, namely 1 September 2016, by clause 3 of Schedule 8 of the amending Act. However, it continued for the purposes of the operation of the transitional provisions to which I now refer.
Clause 4(1) of Schedule 8 of the amending Act contained the following transitional provision:
4Proceedings – Building Practitioners Board
(1) 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 relevant statutory provisions that existed immediately before 1 September 2016].
By a determination of Mr D Cooke, the Panel Chairperson of the Building Practitioners Board, the Board on 8 December 2016, ruled that the three inquiries into the conduct of Mr Ross commenced upon the Board resolving to inquire as evidenced in the signing of the notices of inquiry on 30 August 2016, which was prior to 1 September 2016, and accordingly, pursuant to clause 4(1) of Schedule 8 of the amending Act, the Board had jurisdiction to continue and complete the inquiry.
The Board adopted a ‘Hardiman’ stance in the proceeding, while the Victorian Building Authority (‘the Authority’) made submissions opposing Mr Ross’ case. The Authority is established under Part 12, Division 2 of the old Act as the regulator of the building industry in Victoria. Since the commencement of the amending Act, it has disciplinary jurisdiction over registered building practitioners.
Grounds of the amended originating motion for judicial review
In essence, Mr Ross’ grounds in his amended originating motion for judicial review were that: first, the Board did not commence the three inquiries into his conduct before 1 September 2016; secondly, in circumstances where it was to be inferred that it was the practice of the Board to conduct inquiries through panels, the Board did not, before 1 September 2016, appoint a panel to conduct the inquiries the subject of the 3 notices; thirdly, the Board accordingly had no jurisdiction to conduct the 3 inquiries into the conduct of Mr Ross; and fourthly, by the determination of 8 December 2016, the Board fell into jurisdictional error and committed an error of law in ruling that the 3 inquiries commenced before 1 September 2016.
Applicable legislation
The relevant provisions of the Building Act1993 are:
177 Preliminary assessment
(1)The Building Practitioners Board may appoint a person to report and make recommendations to it on whether or not it should hold an inquiry into the conduct or ability to practise of a registered building practitioner.
(2)The appointment may be made on the initiative of the Board or after the Authority has referred a matter to the Board or a person has requested the Board to hold an inquiry.
(3)The appointment person must investigate the matter referred by the Board, and report and make recommendations to the Board in accordance with the terms of the appointment.
178 Inquiries
(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 Victoria Civil and Administrative Tribunal; or
(cb) on a referred 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.
(4)Without delay after suspending a person’s registration under subsection (3), the Board must give the person written notice of the suspension.
(5)The Board may at any time revoke a suspension under this section and must without delay give notice of the revocation to the registered building practitioner.
(6)A person has had his or her registration as a registered building practitioner suspended under subsection (3) must, as soon as possible after the decision to suspend the registration is made—
(a)give notice in the prescribed form of the suspension of the registration to any person who has a contract with the person relating to, or arising out of, the carrying out of his or her work as a registered building practitioner; and
(b) give a copy of the notice to the Board.
Penalty: 10 penalty units.
179 Inquiry into conduct
(1)On an inquiry into the conduct of a registered building practitioner, the Building Practitioners Board may make any one or more of the decisions mentioned in subsection (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 Authority; or
…
179A Inquiries into conduct of building practitioners who are no longer registered
(1)A reference to a registered building practitioner in sections 177, 178 and 179 in relation to the holding of an inquiry into the conduct of a building practitioner includes a reference to any person who was a registered building practitioner at the time of the conduct, even though that person’s registration is suspended at the time any action is taken under those sections.
(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.
183 Establishment and Functions of Board
(1)There is established by this Act a Board to be called the Building Practitioners Board.
(2)The following are functions of the Board:
(a)to administer a registration system for building practitioners;
(b)to supervise and monitor the conduct and ability to practice registered building practitioners;
(c)to make recommendations to the Minister about the qualifications for registration;
(ca)to issue certificates of consent;
(d)any other functions confined by this Act or the regulations.
187 Membership and procedure—general
(1)Subject to subsections (2) and (3), Parts 1 and 2 of the 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.
Section 187(1) refers to Part 2 of Schedule 3 of the old Act, which is headed ‘General Procedure’ and is concerned with the Building Appeals Board, but is made applicable to the Building Practitioners Board. Clause 8 is headed ‘Building Appeals Board may sit in panels’ and enables the Chairperson of the Building Appeals Board to determine which and how many of its members are to constitute a panel and what proceedings or classes or proceedings are to be allocated to each panel. Clause 10 deals with meetings of the Building Appeals Board and provides that decisions at meetings are to be the decision of the majority of the members present and voting. Clause 10(6) provides that subject to the Act and regulations, the procedure of the Board is in its discretion.
Extrinsic materials
The extrinsic materials relating to the amending Act establish that one of its purposes was to improve the disciplinary procedures applicable to building practitioners.
The Minister in the second reading speech for the amending Act stated:
Regulation of building work and building practitioners
Part 3 of the bill deals with regulation of building work and building practitioners.
The performance of the Building Practitioners Board, which is currently responsible for determining registration and discipline of registered building practitioners, has been criticised by both VAGO[1] and the Victorian Ombudsman. Although VAGO have acknowledged some improvements are being made, clearly the separation of registration and disciplinary functions from the Victorian Building Authority's (the authority) general regulatory functions is not working.
The bill therefore abolishes the Building Practitioners Board and transfers the board's registration and disciplinary functions to the authority. This means that the authority will be responsible for regulation, registration and discipline of building practitioners and monitoring and enforcement of compliance with the Building Act and regulations. This will integrate these important functions into the VBA.
The bill also strengthens the regulatory powers of the authority to better position the authority to meet its obligations under the Building Act and deliver best practice regulation to the building industry in Victoria. For example, the authority will be given new powers to direct builders to fix non-compliant or defective building work. The current arrangements under which the authority may act are complex and time-consuming and need to be streamlined. The new arrangements encourage early intervention to fix problems before they become disputes.[2]
[1]Victorian Auditor-General’s Office.
[2]Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2015 (Mr R Wynne, Minister for Planning) 5541.
The Explanatory Memorandum for the amending Act stated in respect of ‘Division 9—Transitional provisions’:
Part 2 — Building Practitioners Board
…
Clause 4 enables the BPB to continue an inquiry and any proceedings that commenced and determine applications for review before the commencement day in accordance with the old provisions and provides for the VBA’s costs, including the costs for the BPB to be paid out of the Building account. Certain decisions of the BPB are taken to be decisions of the VBA.
The affidavit material
Mr Ross’ solicitor filed an affidavit setting out the history of this proceeding. The Authority filed two affidavits. One was by Mr J Gilmore, the Registrar of the Board. The other was by Mr D Honey, the Manager within the Practitioner Discipline Unit of the Victorian Building Authority. Mr Honey stated that as of 2 February 2017, there were approximately 78 Inquiries to be heard and determined by the Board. Of these 78 Inquiries, 46 were cases in which a Notice of Inquiry was issued prior to September 2016. Twenty eight were matters in which the Notice of Inquiry was issued prior to 1 September 2016, but served after 1 September 2016 and 4 were matters in which a Notice of Inquiry was issued prior to 1 September 2016, but service of the Notice of Inquiry was not able to be effected and in which it was intended that further attempts would be made to serve the Notice. Of the 78 inquiries, at least 10 were initiated as complaints to the Board, which determined to conduct an inquiry about the registered building practitioner on the recommendation of the person appointed under s 177 in accordance with s 178(1)(b) of the old Act.
Statutory interpretation principles
Both parties relied on the following passage concerning the principles of statutory interpretation from the judgment of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross[3] in the following terms:
[3](2012) 248 CLR 378, 389 [25] (citations omitted).
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
The search for legal meaning involves the application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
… The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
Mr Ross’ submissions
Mr Ross submitted that the Board had not commenced any of the three inquiries into the allegations against him before 1 September 2016. In the case of an inquiry conducted by a hearing, the inquiry commences when the hearing commences. The words of clause 8 of schedule 4 ‘commenced an inquiry’ mean commenced the inquiry either by hearing or by written submissions. The word ‘commencement’ means the commencement of conducting an inquiry. As that had not occurred, the Board lacked jurisdiction and any disciplinary proceedings that might arise could only be governed, if at all, by Division 3 of Schedule 1 of the amending Act, which includes clause 178 of Schedule 1. That provides for the service of a show cause notice by the Authority if it reasonably believes the ground for taking disciplinary action exists and it proposes to take that action. However, he did not accept that the Authority, which is now conferred with disciplinary functions in respect of registered building practitioners, could conduct inquiries into his conduct which occurred before 1 September 2016.
The commencement of the inquiry is distinct from the conduct of an inquiry. The conduct of an inquiry is a continuing event, whether it be by way of hearing or written submissions, from its commencement until a determination was made. The commencement of an inquiry is a one-off event and it occurs at the outset of the conduct of the inquiry. The words ‘commenced an inquiry’ in the transitional provision can only mean the commencement of the conduct of an inquiry.
The word ‘commence’ in the legislation is to be construed against the background of a legislative framework that contemplated three steps. First, investigation of conduct as the minutes of the Inquiry Sub-Committee and its recommendations demonstrate did occur. The second step is notice, which has to be given at least seven days before the holding of an inquiry, and the third step is the inquiry itself.
Alternatively, Mr Ross submitted that an inquiry is not commenced before the statutory notice is given. Section 178(2) is central as it contemplates that notice will be given before the inquiry is conducted. The notice requirement applied whether the inquiry was to occur by hearing or by provision of written submissions. The inquiry commences by formal notice and, as a result, the facts constituting its commencement are open to scrutiny upon the service of the notice, and any person who is the subject of the inquiry becomes privy to the facts on which the inquiry is based. Thus, the commencement of the inquiry is a public act.
Section 178(2) contemplates an inquiry is to be conducted at some point in the future at least seven days after the notice is given of the date, time and place of the inquiry. Until the notices were served on 6 September 2016, Mr Ross had no notice of the mode of inquiry, that is, whether it was to be by written submissions or by hearing. There was no legal significance in Mr Gilmore, the Registrar of the Board, signing the notices.
The wording of s 179A(3), which is that an inquiry for the purposes of that section commences when the Board causes the notice to be served, is an illustration of the legislation providing its own lexicon. It deems that the inquiry commences when the notice is served.
The purpose of the amending Act was to abolish the Board. But, the effect of the Authority’s case would be that once a notice of inquiry was signed, no time limit would apply to its service, other than that it be served seven days before the conducting of an inquiry. Therefore, the run-off period of the Board’s activities could continue for a long time, whereas one would expect it to be swift as the amending Act’s purpose included the abolition of the Board.
An additional reason why the Court should conclude that the inquiry had not been commenced was that no panel had been formed before 1 September 2016. The Board’s practice was to have a panel of its members conduct an inquiry. Emails in October 2016 sent to determine the availability of Board members showed that the Board intended to conduct the inquiry through panels.
The Board had not commenced the inquiry by its resolutions of 16 and 23 August 2016. All the Board did was endorse a recommendation that it proceed to an inquiry, that is to proceed to exercise its power to conduct an inquiry, which could only occur after the service of a notice. Statutory inquiries are usually commenced by an act of a public character rather than by an entirely internal procedure. The Board erred in treating the decision to hold an inquiry as the commencement of the inquiry itself. The first legislative step in the commencement of an inquiry is the giving of the notice. That is a pre-condition to both the hearing and the inquiry. The inquiry cannot commence without the practitioner knowing that it has commenced, otherwise it could commence when the Board decided that it had commenced.
The legislation, and in particular s 178, 179 and schedule 8, clause 4(1) speak of an inquiry, not a proceeding. Clause 4(1) of schedule 8 is to be construed in a way that is consistent with other provisions of the Act, specifically the relevant provisions of the old Act, which it continued for limited purposes.[4]
[4]Project Blue Sky Pty Ltd v The Australian Broadcasting Authority (1998) 194 CLR 355 [69].
After judgment was reserved, I invited the parties to make written submissions about whether the Authority would have jurisdiction to deal with the alleged conduct of Mr Ross, if the Board did not have jurisdiction under the transitional provisions to do so. It seemed to me unlikely that Parliament intended to leave a gap so that no body had jurisdiction to deal with allegations against a building practitioner.
Mr Ross’ senior counsel submitted that there was a tenable argument that the Authority was not given jurisdiction in relation to any conduct occurring prior to 1 September 2016. Legislation should not be taken as having retrospective effect in respect of matters affecting substantive rights and obligations. In written submissions, Mr Ross’ counsel referred to other instances of Victorian legislation that failed to confer jurisdiction on a newly-created Tribunal concerning events occurring prior to the commencement of new legislation. The amending Act provided for transitional issues to be dealt with by the making of regulations,[5] but that had not occurred to date. In any event, the Court could not determine in this proceeding whether, if the Board lacked jurisdiction to conduct the inquiry, the Authority would have jurisdiction and that issue was not relevant to the issue to be decided in this proceeding.
[5]Schedule 8, clause 17.
The Authority’s submissions
The Authority’s case was that the inquiries were commenced by the Board before 1 September 2016 and thus under the transitional provision could be continued and determined by the Board.
The Authority pointed to three features of clause 4.1 of schedule 8 of the amending Act. The first was the use of the word ‘commenced’. The second was that it is the Board that does the commencing and the third was that an inquiry has to be commenced. The word ‘commenced’ is used only in s 179A, otherwise the old Act refers to the Board conducting an inquiry.
The Inquiry Sub-committee and the Board had resolved to ‘proceed to an inquiry’. The Board’s decisions that an inquiry be conducted, or its endorsement of the recommendations that it proceed to inquiries, were the commencement of the inquiry process. The Board, acting collectively by resolution, had endorsed the recommendations of the Inquiry Sub-Committee that it proceed to an inquiry. Without that Board decision, there would have been nothing to prompt the giving of the notices.
The notices sent to Mr Ross stated that ‘an inquiry has been initiated pursuant to s 178 of the Building Act in respect of your conduct’. They stated that the inquiry would proceed by an oral hearing.
The Authority emphasised that the transitional legislation did not require that the Board had commenced to conduct an inquiry, but only that the inquiry had commenced. The entire process should be considered from the preliminary assessment that could be undertaken under s 177, through to the written notice of the decision of the inquiry that is required under s 182.
An inquiry is commenced before it is conducted. The commencement of the inquiry should not be taken to be the day on which a hearing commences or written submissions were received. A broader view should be taken of the impact of s 178, which should be read in conjunction with s 177. The verb ‘to commence’ has a different meaning from the verb ‘to conduct’. The commencement of an inquiry is not to be conflated with the conduct of an inquiry whether that occurs by way of written submissions or oral hearing or a combination of the two. The word ‘inquiry’ clearly means more than the face to face hearing that is part of an oral hearing whereas an inquiry runs through different stages from initiation to notice to determination and finally any outcome under ss 179 and 180.
There was no legislative requirement for a panel to have been appointed prior to 1 September 2016. The power to use a panel is facultative. Under schedule 3, clause 8 of the old Act, which is applicable to the Board by virtue of s 187(1), the Board may be constituted by one or more panels of its members for the purposes of performing any of its functions.
The purposes of the amending Act were important. First, the transitional provisions continued the disciplinary regime. The broader purpose was to enhance consumer protection. Mr Ross’ interpretation would undermine that purpose.
The Authority referred to other statutory provisions that illustrated the distinction between commencing a proceeding and conducting a proceeding. For instance, the old Act also uses the word ‘commencement’ in clause 13 of Part 3 of Schedule 3, which provides that a proceeding before the Building Appeals Board may be commenced by a person serving on that Board an application, notice of appeal or a notice of referral of the matter to the Board as appropriate.
Section 179A did not support Mr Ross’ submission that the inquiry commenced on the first day of the hearing. If the construction of the word ‘commenced’ was as clear as Mr Ross suggested there would have been no need for s 179A(3).
So far as the Authority’s jurisdiction to inquire into conduct occurring before 1 September 2016 is concerned, the Court should consider the effect of choosing one interpretation of the transitional provision over another. The transitional provision provided for a transition from an old to a new disciplinary regime. The purpose of the Building Act was to regulate building practitioners and that purpose would not be achieved by the adoption of an interpretation of the transitional provisions that might leave a regulatory gap in respect of building practitioners’ conduct if the Board had not commenced an inquiry before 1 September 2016.
The Authority submitted that it would clearly have jurisdiction in relation to conduct alleged in the Board’s first and second notices because the amending Act did not have retrospective effect on the substantive rights and obligations of registered building practitioners. However, there was some doubt about whether that was the case in respect of the conduct alleged in the third notice.
In more detail, the Authority’s written submissions[6] about the first and second notices stated:
[6]In setting out the Authority’s written submissions concerning the three notices I have deleted some text that was unnecessary to repeat.
First and second notices
The first notice contained two allegations to be inquired into pursuant to s 179(1)(b) of the Old Act. The ground of each allegation was that the plaintiff had failed to perform his work as a building practitioner in a competent manner and to a professional standard. The specifics of the allegations were that Mr Ross had breached section 24(1) of the Building Act, which relates to grant of building permits, and Regulation 1502(1) of the Building Regulations Act 2006 (the Regulations), which relates to undertaking work in a proper and competent manner.
The second notice contained 66 allegations, relating to a range of properties. Again, each allegation was that the plaintiff had failed to perform his work as a building practitioner in a competent manner and to a professional standard. Each allegation was to be inquired into pursuant to s 179(1)(b) of the Old Act. The notice alleged a breach of a range of provisions, including:
(1) s 24(1)(a) which provides that a surveyor must not issue a building permit unless the building work and building permit comply with the Building Act;
(2) s 24(1)(b) which provides that a surveyor must not issue a building permit unless satisfied that consent of any reporting authorities has been obtained;
(3) s 115 which provides that if a person fails to comply with an order of the surveyor, the surveyor must report same within 14 days;
(4) ss 201(7)(c) and 201(7)(d). These provisions, which were repealed by the Building and Planning Legislation Amendment (Governance and Other Matters) Act 2013 on 1 July 2013, dealt with a building permit levy and required the payment of certain monies into the Building Administration Fund (pursuant to s 201(7)(c)) and the provision of periodic returns regarding the collection of the levy (pursuant to s 201(7)(d)). The allegations relate to alleged failings between September 2011 and June 2013;
(5) ss 205J(1)(c) and 205J(1)(d) which were inserted into the Building Act by the Building and Planning Legislation Amendment (Governance and Other Matters) Act 2013, with effect from 1 July 2013. These sections also deal with the building permit levy and required the payment of certain monies into the Building Authority Fund (pursuant to s 205(1)(c)) and the provision of periodic returns regarding the collection of the levy (pursuant to s 205(1))d)). The allegations relate to alleged failings between August 2013 and June 2014;
(6) reg 1502(a) of the Regulations, which requires that a registered building practitioner must—
(a) perform his or her work as a building practitioner in a competent manner and to a professional standard; and
(b) immediately inform the client in writing if a conflict of interest arises or appears likely to arise between his or her interest as a building practitioner and that of his or her client; and
(c) receive remuneration for his or her services as a building practitioner solely by the professional fee or other benefits specified in the contract of engagement or by the salary and other benefits payable by the building practitioner’s employer.
The Authority submitted that the amending Act did not amend any of the sections on which the allegations in the first and second notices against Mr Ross were based. The obligations contained in ss 24, 115 and 205J(1) remained the same as did regulation 1502. Prior to 1 July 2013, s 201(7) of the Building Act created an obligation which the Board, and now the Authority can enforce. All that has changed is the procedure by which registered building practitioners may be held to account by the regulator.
The Authority’s description of the third notice was as follows:
Third notice
The third notice contains 315 allegations. Each allegation is said to be inquired into pursuant to s 179(1)(e), that is, an allegation that the practitioner had employed staff to do work which was work of a kind that can only be performed by a person appropriately registered under the Act. Each of the allegations is similar in structure and alleges:
(1) On or about [date] the practitioner was a registered building surveyor;
(2) On or about [date] the practitioner employed [employee] to do work on his behalf;
(3) The work that [the] employee was employed or engaged to do included [description of surveying work];
(4) The work particularised in paragraph (3) was work of a kind that can only be done by a person appropriately registered under Part 11 of the Building Act;
(5) At the relevant time [employee] was not appropriately registered under the Building Act.
The Authority submitted that the allegations contained in the third notice were based solely on the ground contained in s 179(1)(e) of the old Act. There is no direct equivalent of that section in the amending Act. It is an offence under s 176(2) of the old Act for a person who is not registered as a building surveyor to practise as a building surveyor. This provision was not changed by the amending Act. Employing an unregistered practitioner to do the work of a building surveyor, particularly on the scale alleged against Mr Ross, was arguably unprofessional conduct for the purposes of s 179(1)(b) of the amending Act, and was unprofessional conduct under s 179(1)(a) of the old Act. It was therefore arguable that there has been no change to the substantive obligation of practitioners — to not engage in unprofessional conduct by employing an unregistered person to do the work of a building surveyor in contravention of s 176(2). On that basis, the changes to the disciplinary regime were procedural in nature and did not engage the presumption against retrospectivity.
The Authority noted that the contrary proposition might be put by Mr Ross and, therefore, some doubt existed about the whether the Authority would have jurisdiction in respect of the allegations contained in the third notice. If both the Board and the Authority lacked jurisdiction, the identified statutory purposes of protecting consumers and regulating the building industry would be defeated. Therefore, the Authority’s construction of clause 4(1) of schedule 8 of the old Act, which would avoid that outcome, should be preferred.
In reply, Mr Ross disagreed with the proposition that the relevant changes introduced by the amending Act were only procedural and relied on the principle that legislation should not be taken to have retrospective effect.
Consideration of submissions
The purpose of the amending Act was to abolish the Board and confer jurisdiction on the Authority. However, its purpose was also to provide transitional provisions, including provision for circumstances in which the Board had commenced an inquiry, to ensure that such an inquiry could continue and not fall between the two Acts.
Transitional provisions are expected to be temporary and they are spent when the past circumstances have been dealt with.[7] Facts and their legal consequences will fall on one side or other of a transitional line. The text of the amending Act does not indicate that Parliament intended not to confer jurisdiction on either the old body or a different body to consider allegations of wrongdoing against a building practitioner occurring before the commencement of the amending Act. As I explain further below, I have decided that the Board has jurisdiction to continue with the inquiry into the allegations contained in the three notices concerning Mr Ross. While there may be argument about whether the Authority, as distinct from the Board, might be able to conduct an inquiry into all the allegations described in the three notices of inquiry, it is inappropriate and not possible in this proceeding, to express any concluded view about that question.
[7]Britnell v Secretary of State for Social Security; Ex Parte Britnell [1991] 1 WLR 198 at 202 (Lord Keith) and P Herzfeld and T Prince, Statutory Interpretation Principles, The Laws of Australia, (Thomson Reuters, 2014) 288.
The Court must give the words ‘the Board had commenced the inquiry into the conduct of a building practitioner’ their ordinary meaning. The ordinary meaning of the word ‘commence’ is ‘to begin; to start’.[8] The ordinary meaning of the word ‘begin’ is ‘to enter upon an action; take the first step; commence; start’.[9]
[8]S Butler (ed), Macquarie Dictionary (Macmillan, 6th ed, 2013), 304.
[9]Ibid, 128.
In contrast, the word ‘conduct’ when used as a verb, is in its most apt meaning, the carrying on of something. [10] It refers to something that has already begun or commenced.
[10]Ibid, 316.
In my opinion, the statutory procedure associated with the inquiry concerning the conduct of Mr Ross involved at least the following steps: the Inquiry Sub-Committee’s recommendation to the Board to proceed to an inquiry; the Board’s endorsement of recommendations; the implementation of that Board decision by further decisions as to the form of the inquiry; the setting of a directions date; the preparation of the notice containing information required by s 178(2); the notice’s signing by the Registrar on behalf of the Board; the service of the notice and then the conducting of the directions hearing. Each of those steps was part of the inquiry. It would be incorrect, in my opinion, to narrow the essence of the statutory inquiry to the commencement of the final hearing. On that interpretation, the inquiry would not have commenced even at the point when the directions hearing was held.
In my opinion, on their ordinary meaning, the relevant words in clause 4(1) of schedule 8 ‘the Board had commenced an inquiry’ applied to the fact that the Board had taken the first step in the inquiry process. That first step was the Board’s resolutions or endorsement of recommendations of 10 and 23 August 2016 to proceed to an inquiry.
That first step followed the Board’s Inquiry Sub-Committee decisions on 26 July 2016 and on 23 August 2016 to recommend to the Board that it proceed to an inquiry into allegations against Mr Ross in respect of the allegations contained in the notices of inquiry. On 10 August 2016, the Board resolved to proceed to an inquiry in respect of the allegations that were the subject of the first notice of inquiry — the minutes record that the Board endorsed the Sub-Committee’s recommendation. Similarly, in respect of the allegations contained in the second and third notices of inquiry, on 23 August 2016, the Board endorsed the Sub-Committee’s recommendation to proceed to an inquiry. On 30 August 2016, the Registrar of the Board caused his electronic signature to be affixed to a Notice of Inquiry in respect of each of the three matters.
Further to my conclusion that the inquiry had commenced when the Board resolved to proceed to an inquiry, in my 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. The notices contained the allegations which were to be the subject matter of the inquiry.
The service of the notices on Mr Ross on 6 September 2016 was not the commencement of the inquiry. The notices by describing the allegations and providing details of the hearing satisfied the requirement of s 178(2) and provided Mr Ross with procedural fairness. The notices were not in any prescribed form; the Board used them to give notice of the inquiry to the builder as required by s 178(2) of the date, time and place of the inquiry, and whether it was to proceed by written submissions or hearing. Section 178(2) does not require that the notice contain a specific statement of the allegations with which the inquiry was concerned, although procedural fairness required that information to be provided.
The inquiry could be on the Board’s own initiative, on the recommendation of a person appointed under s 177 or on a referral by the Authority. The Notices stated that ‘an inquiry has been initiated pursuant to s 178 of the Building Act 1993 in respect of your conduct as a registered building practitioner’. The Notices also state that the inquiry was initiated on the recommendation of the Authority appointed under s 177 of the Building Act. The word ‘initiate’ means ‘begin’.
I do not consider that the fact that a panel had not been formed for the conduct of the inquiry is determinative of whether an inquiry had commenced. There was no statutory requirement for the forming of a panel to conduct the inquiry.
I have taken into account that Parliament in dealing with inquiries when the registration of a builder is suspended, provided in s 179A(3):
(3) For the purposes of subsection (2), an inquiry commences when the Building Practitioners causes a notice to be served under s 178(2) on the person whose registration as a registered building practitioner has been suspended. (emphasis added)
Section 179A was inserted by the Building Amendment Act 2012 following the decision in Ariss v Building Practitioners Board.[11] 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.
[11](2010) 28 VR 92.
Conclusion
Mr Ross’ challenge to the Board’s jurisdiction to conduct the Inquiry has not succeeded.
The proceeding is dismissed.
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