Turner, S.J. v Wyrdeman, P

IN THE FEDERAL COURT OF AUSTRALIA	) )
A[JSIXALIAN CAPITAL TERRITORY	)
) No. ACT G 46 of 1987
DISTRICT REGISTRY	) )
_ _	GENERAL DIVISICN	)

BETWEEN:

STEPHEN JOHN

TURNER

Applicant

AND :

PETER WYRDEMAN, the Building Controller appolnted under

s.7 of the Bulldins Ordinance

1972 (A.C.T.)

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER	: Neaves J.
DATE OF ORDER	: 10 July 1987
WHERE MADE	: Canberra
THE COURT ORDERS THAT:

1. Pursuant

sectlon

15 of

the

Administrative

Decislons (Judicial Renew) Act 1977 (Cth)

the

oDeratlon of the

declsion

the

respondent

suspending the applicant's builder's llcence be

stayed

until

further

order

the

followlng

condltions -

the

applicant

shall

furnish

the

Buildlng Controller not later than the

close of business

Tuesday 14

July

1987 details of

all current contracts

with the applicant, Sogalo Holdings Pty

Ltd

Pool

Fab (A.C.T.) for the

constructlon of swlmmlng pools in the

Australian Capltal Terrltory specifying

i --z- -

-..

the block and sectlon number

of the land

on which the swlmmlng pool

,.\

constructed,

the

date

(If any) up

whlch the plans and speclficatlons f

swlmmlng

the

pool

were

approved

and

i- I

I _

date of	issue of any relevant	I	_	_	L !	!-
permit .

2 .

the applicant shall glve to the Bulldlnq t he lntentlon to commence work on the constructlon of any swlmmlng pool In

respect of

whlch constructlon work has

not jrct commcnced.

. the

appllcant

shall

furnlsh

the

Bulldlng Controller, wlthln seven days

of the

contract

belng

entered

Into,

detalls as speclfled above In respect of

each new contract entered lnto by the

applicant, Sogalo Holdlngs Pty Ltd

Pool Fab (A.C.T.)

for the construction

a swlmming pool

In the Australian

Capital TeKKltOKy.

2 .

The

respondent

1s to

have

liberty

apply

forty-eight hours' notlce to remove the

stay hereby

granted in the event of

the

applicant, Sogalo Pty

Limited or Pool Fab (A.C.T.) falling to comply wlth

the

condltions

referred

or constructing a

swimming pool Otherwise than in accordance wlth

approved plans and speclflcatlons and the relevant

bullding permit.

3 . The costs of the appllcatlon be reserved.

m: Settlement and entry of Orders	1 s dealt with in Order 36
of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA )

AUSTRALIAN	CAPITAL	TERRITORY	)
) No. ACT G 46 of 1987

DISTRICT REGISTRY

DIVISION

GENERAL

)

STEPHEN JOHN TURNER

Applicant

AND:

PETER WYRDEMAN, the Building

Controller aDDOinted under

si7 of the BGildins Ordinance

1972 (A.C.T.)

Respondent

CORAM: Neaves J.

m:	10 July 1987

REASONS FOR JUDGMENT

Stephen John Turner ("the applicant") has filed an

application in the Court seeking an order

of review under 5 . 5

of	the Administrative Decisions (Judicial Review) Act 1977

(Cth) ("the Judicial Review

Act") in respect of

a decision made

on 2 July 1987 by the respondent, Peter Wyrdeman, the Building

Controller appointed under s.7 of the Buildins Ordinance

1972

(A.C.T.) ("the Building Ordinance"), suspending the applicant's

builder's

licence

pursuant

sub-s.18(4)

the Building

Ordinance. The appllcation at present before the Court is an application, by motion on notlce, that the decision to suspend the applicant's builder's licence be stayed until the hearing

and determination of the substantive application.	The motion
is opposed.

2 .

Section 14 provides for four classes of builder’s

licences.	A Class D licence authorises the person to whom	it
1s granted -

“to carry out such specialist bulldlng work as

specified by the

Building

Controller

endorsement on the licence.“

“Buildlng work” in relation to a building, means

work in

connexion with the erection, alteration or

demolition of the

building.

“Building“ includes a structure upon

or attached

to land.

“Structure” includes a swimming pool (sub-s.5(1)).

builder’s licence,

unless sooner cancelled, remains

force for twelve months

(sub-s.17(7)).

A licensee 1s not to carry out any building work

unless

he is the

holder of a builder’s licence that

authorizes

him

to carry out that building

work

(~ub-~.14(7)).

Sub-section 18(1) sets out

nine

lettered

paragraphs the grounds for

the cancellation

of a builder’s

licence.	The condition specified in paragraph (d) is as
follows:

“(d) that -

(1) the holder of the licence has; or

(ii) the person

working

under

the

direction and supervision

of the

holder of

the licence has,

with

the knowledge of the holder,

3 .

contravened or falled to comply wlth, a

provlslon of thls Ordlnance;".

Sub-sect

ions

( 2 )

- (10) of sectlon 18 should be set out in

full. They provlde:

" ( 2 ) Where It

appears to the

Building

Controller that

there exlsts one or more of the

grounds

speclfled

the

last

precedlng

sub-sectlon for the cancellatlon of

a bullder's

llcence, the Building Controller may, by notlce

in wrltlng served on the holder of the llcence,

require the holder to show cause before the

Renew

Commlttee why his licence should not be

cancelled.

( 3 ) A

notice

under

the

last

preceding

sub-section shall

(a) contaln full particulars of the facts

circumstances

which

the

Bulldlng

Controller has formed his oplnion that

the ground exists or the grounds exist;

(b)

speclfy

a time not less than ten days

after the date

the servlce of the

notice within which the holder of the

licence

may

glve

the

Building

Controller notice of his intention to

show cause before the Review Committee

why his llcence should not be cancelled.

( 4 ) The

Building

Controller

may,

if he

considers the circumstances justify him in

doing, suspend a builder's licence, and in that case, the Bullding Controller shall give notice of the suspension to the holder of the licence in

the notice under sub-section

( 2 ) of this section.

( 5 ) Where the holder of a builder's licence

on whom

a notice under sub-sectlon

( 2 ) of this

section has been served gives, within the t m e specified in that notice or within such further tune as the Chairman of the Renew Committee, on an application made before or after the time so speclfied, allows, to the Building Controller

notice of

hls intentlon to show cause why the

licence should not be cancelled, the Building

Controller shall refer the matter to the Chairman

of the Review Commlttee, who shall fix

a tlme and

place for the holding by the Review Committee of

4 .

an inquiry at which the holder of the licence may

show cause.

( 6 ) The

Chairman

the Review Committee

shall give notice of the time and place fixed for

the inquiry to the holder of the licence.

(7) Where the

Renew Committee 15, after

having held an inquiry under this section, satisfied that, in relation to the holder of the builder's licence, a ground referred to in

sub-sectlon (1) of this section	exists,	the
Review Committee may -

(a)

suspend the

licence for such perlod as

the Review Committee sees fit;

(b) cancel the licence;

(c) if the

Review Committee is satisfied that, in the circumstances, the licence should not be suspended or cancelled, reprimand the holder of the licence.

(8) Where the holder

of a licence on whom a

notice under sub-section

( 2 ) of

this section has

been served

does not, within the time specified

in that notice, give to the Building Controller

notice

of hls intention

to show cause why his

licence should not be cancelled, the Building

Controller may cancel the licence.

( 9 ) A suspension of a builder's licence under sub-section ( 4 )	of this section remains in
force -

(a) in

a case where the holder of the

licence gives notice under sub-section

( 5 ) of

this section -

until the Review

Committee

hears

and

determines

the

matter; or

(b) in any other

case -

until the Building

Controller

revokes the suspension or

cancels the licence.

(10) A builder's licence shall, during the

period

for which it

is suspended under this

section, be deemed not to be in force."

"The Review Committee" means the Building Review Committee

established under s.lO(1) of the Ordinance.

Building work is not to be commenced or carried out

unless a building permlt for the work has been granted

(sub-s.30(l)(a)). A building permlt may not be granted

unless plans and

specifications In respect of the work have

been approved by the Building Controller (sub-s.31(1)). The grant of a building permit is sub~ect to the condltions set out in s.40. A person is not to occupy or use, or permit another person to occupy or use a buildlng or portion of a

building unless the

Building

Controller

has Issued

certificate

that that building or that

portion of the

building is fit for occupation and use (sub-s.54(l)(a)).

The appllcant is the holder of a Builder‘s Licence Class D (swimming pools only).

On 2 July 1987 the Building

Controller signed a notice addressed to the applicant	in the
following terms:

“TAKE NOTICE that whereas

Class ‘D’ (swimming

pools only) builder’s licence and

registered as

Folio No.2557 was granted

to you

STEPHEN JOHN

TURNER on 23 October 1986 and

will expire on 24

October

1987

under

Section

16 of the said

Ordinance.

Now I, PEXER WYRDEMAN, BUILDING

CONTROLLER,

pursuant to the powers

vested in me by Section 18

of the said Ordinance HEREBY REQUIRE YOU TO SHOW CAUSE BEFORE THE BUILDING REVIEW COMMITTEE WHY

YOUR BUILDER’S LICENCE

SHOULD NOT BE CANCELLED.

The

grounds

that

are

relied

for

the

cancellation

of your bullder’s licence are

set

out in paragraph

18(l)(d)

the

Building

Ordinance 1972 and are:

1. That you contravened or failed to comply

with a provision of or a requirement made pursuant to the Building Ordinance 1972, namely the provisions of section

30(1)

(a).

2. That you contravened or failed to comply

with a provislon of or a requirement

made pursuant

to the Bulldlng Ordinance

1972, namely the provlslons of sectlon

54(1) (a).

3 . That a person

worklng

under

your

dlrectlon and supervlslon

has, wlth your

knowledge,

contravened

or falled

comply

with

a provlslon

or a

requlrement

made

pursuant

the

Bulldmg Ordlnance 1972,

namely

the

provlsions of section 30(l)(a).

4 . That a person

working

under

your

dlrectlon and supervlslon

has, wlth your

knowledge, contravened or falled to comply with a provislon of or a request made pursuant to the Building Ordlnance 1972, namely the provisions of sectlon 54(1) (a).

Particulars of the facts and circumstances

which I have formed	my opinion that these grounds
exist are

On or

about 22 January 1987 you lodged

an application for

a building permit

f o r

the construction of

swimming pools on

block 14 section 2 Pialligo.

On or

about 22 January 1987 you lodged

plans

for

approval

the

Buildlng

Controller for the installation of three

( 3 ) swimming pools	on block 14 section 2
Pialligo.

The Building Controller had not approved any plans for the installation of 3 swimming pools on block 14 sectlon 2

Pialligo, prior to

1 June 1987.

The Building Controller had not granted

you a building permit for the

lnstallation of swimming pools on block

14 section 2 Pialligo, prior to 1 June

1987.

You installed three

(3) swimming pools

on block 14 section 2

Pialligo between

14 January 1987 and

1 June 1987.

The Building Controller has not issued

Certificate of Fitness for Occupancy and

Use in respect of the three

(3) swimming

pools

installed

you on block

sectlon 2 Pialligo.

(g) You

have

filled

the swimming

pools

installed by	you on block 14 section 2
Pialllgo with	water.

and TAKE

NOTICE

that I HEREBY

suspend

your

builder's licence pursuant to Section	18(4) of
the said Ordinance.

If you wish to show cause before the Building Review Commlttee why your builder's licence should not be cancelled you are required to notify the Bulldlng Controller before 5 pm on 12 July 1987. Fallure to do so may result in the cancellation of your licence pursuant to Section

18(8) of the said Ordinance."

The notice was

served on the applicant under cover

of a letter dated 2 July 1987

readiflg as follows:

"Following consideration of your performance as a licensed builder I advise that your Class D

(swimming

pools

only)

builder's licence

and

registered No.2557 has been suspended.

I have attached a copy of a Notice under Section

18 of the Bullding Ordinance served on you today

setting out the full particulars of the facts and

circumstances on which I have formed my opinion

that grounds exist for you to show cause before

the Review Committee why your licence should not

be cancelled and the suspension of your licence.

The suspension

of the licence remains in

force

until the

Review

Committee has

heard

and

determined the matter or until the suspension has

been revoked.

the meantime all work undertaken

you on

building

sites

for

which you were granted

building permit must cease immediately.

You may

respond to me within the time specified

in the Notice

whether

you intend to show cause

before

the Review

Committee alternatively the

licence may be cancelled."

On 3 July 1987, pursuant to s.15 of

the Judicial

Review Act,

I suspended until 4.00 p.m. on 6 July 1987 the

operation of the

decision

suspending the applicant's

building licence.

I also directed that the applicant file

and

serve not later than 10.00 a.m. on that day an

application under

the Judiclal Review

Act and a notice

motion returnable at 2.15 p.m. on that day

for

the

continuation of the

order under s.15 of the Judlcial Review

Act. The motion,

supported

by an

affidavit

of the

applicant, came on for hearing at 2.15 p.m. on 6 July 1987. After hearing argument, I reserved my decision and directed

that the order made under

s.15 of the Judicial Review Act

continue until judgment on the motion was given.

The applicant is a

sub-lessee

Urban

Constructions Pty. Limited which company

is the lessee from

the Commonwealth of

certain land being Block 14, Section 2,

Division

of Pialligo in

the Australian Capital Territory.

He carries

on the business

of a swimming pool contractor.

In pars 5 - 8 inclusive of his affidavit sworn on

6 July

1987 he sets out the circumstances in which he constructed three fibreglass display swimming pools

that land

circumstances where the plans and specifications for those

pools had not been approved and no building permit had been

issued in respect thereof.

I allowed these paragraphs to be

read subject

to objection. On reflection,

they

are not

admissible on

any issue which arises on the motion before

the Court and I re~ect

them.

The applicant further deposes that on

11 June 1987

Urban Constructions Pty Ltd as such lessee was served with a

notice

pursuant

to s.46(l)(a)

the Building Ordinance

requiring the company to -

"empty the said

swimming

pools

of water

discussed with Mr

S. Turner, the occupant of the

said site and because	of the grave public danger
to the general public."

On the afternoon of 12 June 1987, after

telephone

conversation between the applicant's legal adviser and the

Building Controller, discussions apparently

took place on

the site as a

result of

which agreement was reached that

certam modiflcations be carrled

out to the fencing of the

pools by 5.00 p.m. on that day.

As a result

of the work

carried out, the Building Controller apparently withdrew the

notice that the pools be emptied of water.

Revised

plans

and

specifications

for

the

construction of the pools and certain additional engineering

details

were

subsequently

lodged

and

the

plans

and

specifications were approved, ex	post facto, on	22	June
1987.

The applicant also deposes to the fact that, at no

time prior

to the

service upon him

of the notice dated

July 1987, had he been made aware that the question of the

suspension of his licence was under consideration nor had he

been given any opportunity to put his views to the Building

Controller on any proposed suspension of his licence. Some

question

may

arise about this on the substantive hearing

10.

but,

for

present purposes, I propose to

accept that

statement as being accurate.

The applicant

asserts that there is a

serious

questlon to be

trled

whether he was entitled

to be heard

before the decislon to suspend his licence

was taken.

I do

not understand that to be seriously challenged though,

course,

the Bullding Controller asserts that, readlng

the

provisions of 5.18 as a whole and because of the publlc safety issues involved, the legislation 1s not to be read as imposmg any such requlrement.

On the balance

of convenience,

the applicant says

that, to suspend his licence indeflnitely,

will

cause him

considerable financial loss

and will damage the goodwill

his business.

He asserts

that the business is the sole

source of income for his family and

himself.

He says he has

contracts on hand for the construction

thirty swimming

pools, of which thirteen are partly constructed.

He says he

has thirteen full

time contractors and approximately seven

sub-contractors worklng for

him.

His

current gross weekly

income he

puts at $60,000

approximately.

He further saps

that, if the licence remains suspended, it will be necessary

to llquidate the buslness.

When the motion came on for hearing, oral evidence

was adduced

behalf

of the

Building

Controller,

the

general effect of which was that the decision to	suspend the
appllcant’s builder’s licence was not based on	the matters

. b

11.

referred to in the notice dated 2 July 1987, or at least not based solely on those matters. The Building Controller says that he had before him a number of complaints concerning a number of swimming pools constructed in suburban Canberra.

says that

an examination

of the Building Controller’s

records led him to conclude that the applicant had, over the

period from October 1984 to June 1987

.	swimming pools for which no plans and specifications had been approved and no building permit had been issued.

constructed or partly constructed

. constructed

swimming

pools

without

adequate safety fencing or child-proof self closing and latching pool gates.

. constructed swimming pools in respect of

which no certificate

that the

pool was

fit for	occupation	and	use	had	been
issued.

I am not, of course, in a position to make any finding in relation to these matters at this stage of the proceedings.

It may

be accepted, however, that the Building Controller

has a serious concern whether,

the applicant is allowed

continue with his

building operations, pools will be

constructed which present a safety hazard to members of the

public.

Whether that concern is well founded I cannot say.

However, in

the light of the evidence given

behalf of the Building Controller, a serious question arises

in addition to

that concerning the requirements

of natural

justice. That question is whether it is open

the

Building

Controller,

having

regard

the

terms

of the

12.

notice dated 2 July 1987

and the letter

which accompanied

it, to rely upon matters additlonal to those concerning the

display swimmlng pools constructed on the Pialligo land.

The matter was not fully argued and

express no

definitive opinlon upon it but the prima facie view would

seem to be that Sub-S.18(4) providing for the suspension of

licence

anclllary

the

power

cancellation

conferred by s.18 read

as a whole.

The notice of

2 July

1987 would ordinarily be read as limiting Its operation qua

suspension to the grounds there set out and when one has

regard to par.2 of the letter which accompanied

it, any

other conclusion

1s hardly open.

not for the Court to advise the Building

Controller as to the course he should follow in order that

the real issue between the parties, namely whether the

applicant's building licence should be cancelled, should be

brought to

an early resolution before the Building Review

Committee. That could best be achieved, one would think, by withdrawing the notice dated 2 July 1987 and serving on the applicant a notice which accurately reflects the matters on which the Building Controller wishes to rely.

In the

light of these considerations

think the

balance of convenience requlres that the order made under

5.15 of the Judicial Review Act should be continued until

further

order.

However,

view

the

public

safety

13.

factors Involved,	I propose to make the order conditional
upon the applicant	-

furnlshing to the Building Controller not later than the close of business on

Tuesday

July 1987 details of all

current contracts with himself, Sogalo

Holdings Pty Ltd

or Pool Fab (A.C.T.)

for the construction of swimming pools

the

Australian

Capital

Terrltory

specifying the block and section number

of the land on

which the swimming pool

is to be constructed, the date (if any)

upon which the plans and specifications

for the swimming pool were approved and

the

date

issue

of any

relevant

building permit.

. giving

the Building

Controller

forty-eight

hours'

notice

the

intention

commence

work

on the

construction of any swimming pool in

respect of

which construction work has

not yet commenced.

furnishing

to the Building Controller,

wlthin seven days of the contract being

entered into, details as specified above

in respect of each new contract entered

into by the applicant, Sogalo Holdings

Pty Ltd

Pool Fab

(A.C.T.) for the

construction of

a swimming pool in the

Australian Capital Territory.

The respondent is to have liberty to apply

on forty-eight

hours' notice to remove the suspension hereby granted

in the

event

the applicant, Sogalo Pty Limited

or Pool Fab

(A.C.T.) failing to comply with the conditions referred to

or constructing

a swimming pool otherwise than in accordance

I ( *

14.

.	with approved plans and specifications and the relevant building permit.

The costs of this application are reserved

I	certify that this and

the precedlng 13 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable Mr Justice

Neaves.

Associate

Dated:

10 July 1987

Counsel

for

the

applicant

: Mr I. Nash

Solicitors for the applicant	: Gallens
Counsel for the respondent	: Mr C. Erskine
Solicitor for the respondent	: Australian Government

Solicitor

Date of

hearing

: 6 July

1987

[1987] FCA 353

10 Jul 1987