Victorian Building Authority v Andriotis

[2018] HCATrans 154

[2018] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2018

B e t w e e n -

VICTORIAN BUILDING AUTHORITY

Applicant

and

NICKOLAOS ANDRIOTIS

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2018, AT 9.47 AM

Copyright in the High Court of Australia

MS C.M HARRIS, QC:   If the Court pleases, I appear with my learned friend, MS S. GORY, for the applicant.  (instructed by Victorian Government Solicitor)

MS K.P. HANSCOMBE, QC:   Your Honours, in these proceedings I appear with MR T.J.D. CHALKE, for the respondent.  (instructed by Boris Pogoriller)

GAGELER J:   Ms Harris, there is just one question I wanted to ask you.  Ms Hanscombe in her submissions at page 152 of the application book seeks an undertaking as to costs.  What do you say as to that?

MS HARRIS:   Your Honour, my instructions are that the Authority would undertake not to disturb the cost orders below.  Insofar as they relate to payment of the Authority’s costs, it would not seek an alternative order that it receive the costs of the appeal.  I am instructed there would not be an undertaking to pay Mr Andriotis’ costs in the High Court and the reason for that, your Honour, is the serious nature of the findings made in the Administrative Appeals Tribunal below.  The Authority has determined that it is not appropriate to give that undertaking, but of course it is understood that we are in the hands of the Court if that was made a condition of the grant of special leave.

GAGELER J:   So the undertaking you would propose is not to disturb the existing costs orders in the Full Court, is that correct?

MS HARRIS:   Your Honour, as I understand my instructions, there may be an application for an order that those costs orders be amended so that Mr Andriotis would pay the costs of the Authority of that appeal.

GAGELER J:   I think perhaps you could clarify your instructions.

MS HARRIS:   I am clear that those are the instructions, your Honour, and one thing I omitted to say is that the Authority would bear its own costs of this appeal regardless of the outcome.  It would undertake to the Court to do that.

GAGELER J:   All right.  We would be assisted I think from hearing from Ms Hanscombe, thank you.

MS HARRIS:   If your Honour pleases.

GAGELER J:   Ms Hanscombe, the difficulty you face is that there appears, at least arguably, to be a conflict between intermediate Court of Appeal decisions in this area.

MS HANSCOMBE:   Well, certainly that is what is put against us.  We would say on a careful reading of Petroulias and Tkacz ‑ I think is how one says that – that that is in fact not the case.  The reason we would say that is that in Petroulias the three very careful judgments of the Queensland Court of Appeal were concerned as to whether the Mutual Recognition Act interfered with or disturbed the court’s inherent jurisdiction to supervise its own practitioners.

NETTLE J:   What do you say about Chief Justice Crawford in Scott v Law Society of Tasmania?

MS HANSCOMBE:   Well, Scott really is on all fours factually with Petroulias and the decision, with great respect to his Honour, does not delve deeply into the relevant law.  It simply, as we read it, assumes that Petroulias and Tkacz were authority for the proposition put against us and decided on the facts.

NETTLE J:   I had rather read it as contradicting Petroulias.

MS HANSCOMBE:   Well, it is a very brief judgment.

NETTLE J:   It is, but nonetheless moderately assertive, one might have thought.

MS HANSCOMBE:   To the extent that at paragraph 42 the learned Chief Justice says:

On its face, s20(1) leaves little room for a discretion based on the applicant’s character or prior conduct.  However, there is authority for the proposition that there is a remaining discretion.

That seems to be really the extent of his Honour’s consideration of the issue because he is primarily concerned, understandably enough, with the facts in Scott which would perturb any court, I would have thought.  That is why we would submit that a close reading of Petroulias and Tkacz will show, in our submission, that there is not indeed a conflict and there is not a residual discretion either.  The notion that “character” in the Mutual Recognition Act does not come within the proviso to the exception to section 17(2) sits very ill with the fact that “character” is expressly referred to as a kind of qualification in section 4 of that same Act.

EDELMAN J:   In the definition of “occupation”?

MS HANSCOMBE:   In the definition of “occupation”.

EDELMAN J:   But you have to then read section 17 in light of those authorities as effectively being subject to the inherent jurisdiction of the court.

MS HANSCOMBE:   Yes, those authorities were concerned as to whether any of the Mutual Recognition Act interfered with that inherent jurisdiction.

EDELMAN J:   And once you do that, then all the authorities are at one?

MS HANSCOMBE:   We would say so.  The inherent jurisdiction, despite our learned friend’s assertion to the contrary in the reply, the inherent jurisdiction of superior courts of record to supervise their own practitioners is a special jurisdiction.  There are special rules that apply to legal practitioners and you can see that, if no other place, from the excerpt in Re Davis from Chief Justice Owen Dixon, and again in Ziems.  There are extensive excerpts set out in the judgment in Tkacz from those old authorities.

So, looking at what the appellate courts have done with their own practitioners will not, we say, assist in the proper construction of Mutual Recognition Act.  The task that faces a regulating authority – I withdraw that – a registering authority when it receives a valid section 19 notice – and I stress the word “valid” because in Petroulias the notice was not valid so, although our learned friends say, well, Mr Petroulias was through the gate, he was not through the gate because his notice did not comply with the Act.

So, a registering authority receives a section 19 notice.  What can it do with it?  Well, it is given a suite of choices.  It can postpone.  It can register.  It can refuse.  It can postpone, it would appear, on the reading of the Act, in aid of making one of the other two decisions, and the reason I say that is this.  When you lodge your section 19 notice one of the things you have to do is consent to the making of inquiries and the exchange of information with authorities in the other State.  That is 19(1) – I withdraw that – 19(2)(h).  The registering authority ‑ section 22 – can postpone for no more than six months if – subsection (1)(a) – any of the information in the section 19 notice is false or misleading, if any information provided is false or misleading, if the person’s circumstances have changed, or if the occupation is not equivalent.

Now, if those things in (a), (b) and (d) were apparent already on the face of the application, you would not need to postpone because you can refuse.  We see that the same things are repeated in 23(1)(a), (b), (c).  So you look at this and you see this is on its face not a compliant section 19 notice.  If the information is false or misleading or it is not an equivalent occupation, you refuse.  That is why I say this other power to postpone must be in aid of making inquiries to determine whether any of (a), (b) or (c) in 23(1) is made out, because 22(2):

If the grant of registration has been postponed, the local registration authority may in due course grant or refuse –

And it cannot wait for more than six months.

NETTLE J:   Allowing that all that is so, how would it assist in a case where, for instance, an applicant was registered interstate but had sustained a conviction for malpractice?

MS HANSCOMBE:   Before registration, your Honour?

NETTLE J:   Yes.

MS HANSCOMBE:   Well, that would be a thing that had to be disclosed.  We see that from ‑ ‑ ‑

NETTLE J:   Yes, assume that it is.  What would then be the position of the interstate authority to whom application is made for registration under the Mutual Recognition Act?

MS HANSCOMBE:   Well, if the person’s registration in the original jurisdiction is valid and current, and if he has made a proper section 19 declaration, then he would be registered in the second State.

NETTLE J:   So the postponement section really does not say much at all about a case like the present, does it?

MS HANSCOMBE:   No, I bring it to the Court’s attention in order to show that the choices of the registering authority on receipt of a valid section 19 notice are limited to those three ‑ ‑ ‑

NETTLE J:   I follow.

MS HANSCOMBE:   ‑ ‑ ‑ and that the middle one of those three is only in aid of determining which of the other two to do.

NETTLE J:   Yes, I see.

MS HANSCOMBE:   That is the only reason I take you through the scheme of the Act in that way.

NETTLE J:   As it were, to make all the clearer that the decision for which leave to appeal against is sought is correct?

MS HANSCOMBE:   Indeed.

NETTLE J:   Yes, I see, thank you.

MS HANSCOMBE:   Indeed, your Honour.  So, if that is right, then in that situation such as your Honour has just posited, what would be happening in the second State would be what Justices Bromberg and Rangiah below described as the price paid for the convenience of really assisting commerce in trade and goods between the States.

If there is to be a residual discretion left in section 20(2), why do you need – two questions really:  one, why do you need all that machinery; and two, how would section 20(3) look?  You would have to redraft it – well, you would have to redraft a number of things actually.  The first thing you would have to redraft is section 20(1), because that says:

A person who lodges a [valid] notice –

I interpolate the word “valid”:

is entitled to be registered . . . as if the law of the second State . . . provided that registration in the first State is a sufficient ground –

What that does is drop into section – we have the Building Act at page 136 of the book.  We have the relevant provisions of the Building Act (Vic). We say that what section 20(1) does is, if you have lodged a valid section 19 notice, all of (a), (b), both (i) and (ii), (c) and (d) in 170(1) have been replaced by the lodgement of that valid notice. That is what it means, we say, to say:

as if the law of the second State . . . expressly provided that registration in the first State is a sufficient ground –

If you then leave a residual discretion, you have not replaced all of the limbs of section 170(1). You have left something hanging out, and that defeats the purpose of “a sufficient ground”. What that means in turn is that the word “character” in the Mutual Recognition Act has a broader meaning than it has in the Building Act (Vic). I think Justices Bromberg and Rangiah referred to this as well. You can see that expressly from section 170 of the Building Act itself because it uses the two words separately and it is clear from the drafting that “qualification” under the Building Act is not intended to be “character”.  There is nothing anomalous at all about either Act once one understands that the word has a broader meaning in the Mutual Recognition Act.

GAGELER J:   The word appearing in the definition of “occupation”, you say ‑ ‑ ‑

MS HANSCOMBE:   Yes.

GAGELER J: ‑ ‑ ‑ has a broader meaning than in section 170 of the Building Act?

MS HANSCOMBE:   I am sorry, I put that badly.

GAGELER J:   I have misunderstood your submission, I think.

MS HANSCOMBE:   No, I put it badly.  The word “qualification” has a broader meaning in the Mutual Recognition Act and it includes “character”.

GAGELER J:   I understand that.

MS HANSCOMBE:   Whereas the two words in the Building Act are separate.  I put that very badly, I apologise.  Once one understands that, then the policy reasons for the enactment of the Mutual Recognition Act fall clearly into place, as both Justice Flick below and the joint judgment of the other two below say.

GAGELER J:   So your submission in response to the way in which the public importance of this matter is put is to say that the decision of the Full Court was clearly right on the construction of the Commonwealth Act?

MS HANSCOMBE:   Yes.

GAGELER J:   Yes.

MS HANSCOMBE:   There is nothing else I want to say except we do press that if special leave were to be granted that we should have some relief in respect of costs.  We have heard what our learned friend’s instructions are.

GAGELER J:   Yes, thank you.  Ms Harris, we would be assisted in hearing from you simply on the question of distinguishing the legal practitioner cases in State Supreme Courts.

MS HARRIS:   Thank you, your Honour.  Can I first make the observation that the case of Re Tkacz was a case in which the section 19 notice was valid ‑ that is apparent from paragraph 26 of the court’s judgment – and there were no documents or information in support of that application which were misleading within the meaning of section 23.  So, on the face of it, if it was the case that the simple lodgement of a section 19 notice automatically had the effect of entitling a person to registration, it would have followed in Re Tkacz.

The submission that we make is that the fact that the court in that case and in Re Petroulias was acting by reference to the inherent jurisdiction of the courts to regulate admission of practitioners is not a matter that by the construction of the Mutual Recognition Act stands in a different position than a local law as to good character or fitness to purpose in respect of any other profession.

GAGELER J:   Is there some affirmative aspect of the Mutual Recognition Act that bears that out?

MS HARRIS:   If I can go to the suggestion from Dr Hanscombe that section 21 confers an entitlement of itself.  First, it cannot be that absolute if, as my learned friend says, it makes allowance for the court’s inherent jurisdiction.  Secondly, if section 20(1) was intended immediately upon the receipt ‑ ‑ ‑

EDELMAN J:   There would be nothing unusual about reading a provision like section 20(1) as being subject to powers of a court.

MS HARRIS:   No, your Honour, but indeed that section is said to be by subsection (6) subject to the entirety of Part 3.  It will plainly also be, in our submission, subject to the inherent powers of a court.  But the legislative scheme is such that it may also be subject to a limited range of local laws that are consistent with the operation of Part 3 of the Act.

The first point is, your Honour, that section 20(1) refers to an entitlement to be registered as if the law of the second State deals with registration – dealing with registration expressly provided that the registration in the first State is a sufficient ground of entitlement.  That says nothing as to possible disentitling or disqualifying circumstances of the nature referred to in, for example, Re Davis, but also qualifying other statutory grants of facultative discretions where an authority may do something if certain conditions are satisfied.  It has been held in the past that that does not mean “must” if the conditions are satisfied.  But section 20(1) is at minimum subject to the way in which the mutual recognition principle is expressed in section 17, which clearly is subject to an exception.

Our submission is that exception has application not only to the question of the continuance of registration, but to registration itself.  One reason why that must be, your Honours, is that section 17(2)(a), which is the proviso to that exception, refers not only to laws applicable to persons

carrying on the occupation, but to persons seeking to carry on the occupation.  It is simply untenable, in our submission, to suggest that the mutual recognition principle applies generally, but the exception applies only to the carrying on of the occupation.

GAGELER J:   Thank you, Ms Harris.  Subject to the condition that the applicant gives an undertaking not to seek its costs of this application or of the appeal and not to disturb the costs orders in the Full Court, there will be a grant of special leave to appeal in this matter.

MS HARRIS:   If the Court pleases.

AT 10.08 AM THE MATTER WAS CONCLUDED