Webster v Leighton
[2018] TASSC 22
•15 May 2018
[2018] TASSC 22
COURT: SUPREME COURT OF TASMANIA
CITATION: Webster v Leighton [2018] TASSC 22
PARTIES: WEBSTER, Dale
v
LEIGHTON, Ricky Alan
FILE NO: LCA 2795/2017
DELIVERED ON: 15 May 2018
DELIVERED AT: Hobart
HEARING DATE: 20 February 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Professions and Trades – Builders – Licences and registration – Other matters – Respondent's building company engaged to build house but company went into liquidation and construction was not completed – Applicant found that builder was guilty of unsatisfactory professional conduct and ordered that respondent carry out the work – Magistrate held notice was invalid due to impossibility of performance because the respondent had ceased to be an accredited building practitioner prior to the order – Interpretation that promotes remedial purpose is correct interpretation of the provision – Learned magistrate erred by determining that the notice was invalid.
Building Act 2000 (Tas), ss 3(1), 23A, 40 and 170.
Acts Interpretation Act 1931 (Tas), s 8A.
Building Amendment Act 2012 (Tas).
Aust Dig Professions and Trades [1041]
REPRESENTATION:
Counsel:
Applicant: S Thompson, E Bill
Respondent: T Williams
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Timothy Williams Barrister and Solicitor
Judgment Number: [2018] TASSC 22
Number of paragraphs: 34
Serial No 22/2018
File No LCA 2795/2017
DALE WEBSTER v RICKY ALAN LEIGHTON
REASONS FOR JUDGMENT BRETT J
15 May 2018
On 7 September 2017, Magistrate C Webster heard a complaint against the respondent in which he was charged with one count of failing to comply with a building order, contrary to s 170(7) of the Building Act 2000 (the Act). As I will explain shortly, it appears that, in fact, the offence alleged against the respondent was actually created by s 40(6) of that Act. The Act has since been repealed, but it is common ground that it was in force at all times relevant to the charge in question.
The building order had been issued by the Director of Building Control (the applicant in this review). It was issued as a consequence of a complaint which had been made against the respondent in relation to building work performed by the respondent as an accredited building practitioner. The Director had exercised disciplinary powers arising under the Act to issue the order.
It was conceded at the hearing that the applicant had cause to issue the order pursuant to his disciplinary powers, that the respondent had been an accredited building practitioner at the time of the relevant work, and that he had not complied with the order. The only issue raised on behalf of the respondent was that, as he had ceased to be an accredited building practitioner prior to the issue of the order, it would be unlawful for him to carry out the relevant work under that order, having regard to a different provision of the legislation. It was argued that in these circumstances, compliance with the order was impossible and, hence, the order was invalid. The magistrate accepted this argument, held that the order was invalid, and dismissed the complaint. The applicant now seeks a review of that decision. The sole question on the review is the validity of the order.
The Building Act 2000
The nature and purpose of this Act is summarised in its preamble:
"An Act to regulate the construction and maintenance of buildings and building and plumbing matters and to provide for permits, enforcement matters and resolution of disputes."
Part 4 of the Act provides for an accreditation scheme in respect of building practitioners. By s 23A, a person must not manage, carry out or enter into a contract to manage or carry out the work of a building practitioner in connection with building work over a certain value unless the person is appropriately accredited under the Act. It is apparent that the scheme of the legislation is to ensure that the quality of building work is controlled through the restriction of that work to persons who are properly accredited to do the work.
Section 3(1) defines "accredited building practitioner" as follows:
"accredited building practitioner means a building practitioner who is accredited under Part 4 and whose accreditation is in force and, for the purposes of Divisions 4, 5 and 6 of Part 4 , includes a person who was accredited at the time certain building work or associated building work was done, or certain conduct engaged in, by that person."
"Building Practitioner" is defined to include: "(c) a builder who is responsible for the management, carrying out or certification of building work."
"Builder" is defined as "(a) a person engaged by the owner of a building to manage or carry out building work on the building."
Section 25 provides that where a building practitioner is a body corporate, and is responsible for the carrying out and management of building work, the person who is to be accredited in respect of that work is a director of, or a permanent employee nominated by, the body corporate.
Divisions 4, 5, and 6 of Pt 4 set out provisions relating to the maintenance and enforcement of professional standards among accredited building practitioners. Under those provisions, a person may make a complaint to the Director in respect of professional misconduct or unsatisfactory professional conduct of an accredited building practitioner. The provisions provide for the investigation of the complaint. Section 40 deals with the powers of the Director after an investigation. It is set out in full below:
"(1) An approved investigator is to provide a report of an investigation carried out by him or her to the Director.
(2) After investigating a complaint or receiving a report from an approved investigator, the Director may decide that the accredited building practitioner to whom the complaint or report relates —
(a)is guilty of unsatisfactory professional conduct; or
(b)is guilty of professional misconduct; or
(c)is not guilty of professional misconduct or unsatisfactory professional conduct.
(3) If the Director makes a decision under subsection (2)(a), he or she may —
(a)caution or reprimand the accredited building practitioner; and
(b)impose any condition he or she considers appropriate on the building practitioner's accreditation; and
(c)direct the accredited building practitioner to complete any course or training directed by the Director; and
(d)direct the accredited building practitioner to report on his or her practice as an accredited building practitioner in the manner directed by the Director; and
(da)order an accredited building practitioner to carry out work at the accredited building practitioner's expense as if the Director were exercising the powers of a general manager or a building surveyor under section 170(2)(b)(ii) and may issue that order without issuing a prior building notice; and
(db)impose reasonable and relevant conditions on an order under paragraph (da); and
(e)impose a fine not exceeding 100 penalty units.
(3A) An order under subsection (3)(da) remains in force until complied with or revoked.
(3B) A person who fails to comply with an order under subsection (3)(da) is guilty of professional misconduct.
(4) If the Director makes a decision under subsection (2)(b), he or she may —
(a)suspend the building practitioner's accreditation for any period he or she considers appropriate; or
(b)cancel the building practitioner's accreditation.
(5) If the Director considers it to be in the public interest to do so, he or she may publish details of a suspension or cancellation under this section in such a manner as he or she considers will best bring the suspension or cancellation to the attention of persons affected, or likely to be affected, by it.
(6) A building practitioner subject to an order under subsection (3)(da)must comply with the order.
Penalty: Fine not exceeding 100 penalty units."
The order in question was issued pursuant to s 40(3)(da). That section authorises an order "as if the Director were exercising the powers of a general manager or a building surveyor under s 170(2)(b)(ii)". Section 170 authorises the issue of a building order in circumstances in which, with one exception, a building notice has been issued to an owner or builder under preceding provisions, and has not been revoked. The section is part of the legislative machinery whereby building standards are enforced by appropriate authorities. It is apparent that the issue of an order under s 40(3)(da) is intended to utilise the machinery provisions relevant to an order issued under s 170, albeit that the circumstances in which the order is issued and the person by whom the order is issued are different to and separate from those specified in s 170. An obvious difference is that the issue of a building notice is not a condition precedent of the order.
The agreed circumstances
The learned magistrate was told that all of the underlying factual circumstances had been agreed. Despite this, he was given very little factual information. On the hearing of the review, the parties handed up an agreed chronology of events. Not all of the detail of this information was before the magistrate. However, none of it is inconsistent with the general factual statements made to his Honour. As it is all common ground, I have agreed to have regard to this information for the purpose of the determination of the review.
The respondent became an accredited building practitioner in November 2011. From that date, he owned and operated a company constructing homes in the Hobart area. In July 2012, the respondent's company was engaged to build a house. However, on 17 November 2014, the company went into liquidation, and did not complete the construction of the house. On 28 September 2015, the owner made a complaint to the applicant pursuant to the above-mentioned provisions, concerning the company's failure to complete the house. For the purposes of s 25 of the Act, the respondent was the accredited building practitioner in respect of the work being carried out by the company. Accordingly, the complaint related to the professional conduct of the respondent.
On 10 December 2015, after an investigation of the complaint, the applicant issued the relevant order. It was common ground in the hearing before the learned magistrate that the applicant had validly made a decision that the respondent was guilty of unsatisfactory professional conduct and was, therefore, entitled to exercise the powers set out in s 40(3), including subpar (da). Acting purportedly in compliance with that power, the applicant had ordered the respondent to: "Carry out building work or cause building work to be carried out, at the expense of" the respondent.
It is also common ground that on 30 November 2015, prior to the issue of the order, the respondent had, of his own volition, ceased to be an accredited building practitioner. It was accepted that, of itself, this fact did not affect the jurisdiction of the applicant to investigate the complaint and exercise powers pursuant to s 40(3). The definition of "accredited building practitioner" contained in s 3(1) of the Act (as set out above) includes a person who was accredited at the time of performance of the building work in question. It was accepted by the respondent's counsel at the hearing before the magistrate, and on review, that the respondent had been an accredited building practitioner at the time that the work, which was the subject of the complaint, had been performed, and accordingly that he was an accredited building practitioner for the purposes of the provisions of s 40.
The magistrate's decision
The argument raised by the respondent, which was accepted by the magistrate, was that, where an order is made pursuant to s 40(3)(da) for building work to be performed, where that work is of a cost which exceeds $5,000, then it must be carried out by a building practitioner currently accredited in the relevant category and class of work, having regard to the provisions of s 23A. If it is not, then the person carrying out the work commits an offence under that section. The power under s 40(3)(da) may only therefore be directed to a building practitioner, so accredited at the time of the issue of the order. The expanded definition of "accredited building practitioner" will not entitle a building practitioner without contemporary accreditation to perform the work. Because the respondent had ceased to be accredited by the time the order was issued, it was held by the magistrate that the notice was invalid because of the impossibility of its performance, having regard to s 23A.
The arguments on review
Mr Williams, who appears for the respondent argues that the purpose of the provisions in Pt 5, including s 40, is to control the professional conduct of accredited building practitioners. He argues that the primary purpose of the disciplinary powers is the protection of the public. This is, he submits, apparent from the hierarchy of sanctions available under the section. The ultimate sanction for professional misconduct, which is more serious than the unprofessional conduct of which the respondent was found guilty, is cancellation of accreditation. The sanctions for unprofessional conduct under s 40(3) should not be interpreted in a way which would render them more punitive than in the case of professional misconduct. Hence, in the case of a person who has since ceased to be an accredited building practitioner, there is no need to exercise the powers under s 40. The protective purpose of the provision has already been achieved on a voluntary basis. He argues that this supports his contention that an order under s 40(3)(da) can only relate to a person who is currently accredited as a building practitioner.
Mr Thompson, who appeared for the applicant, argued that the power under s 40(3)(da) to order that the respondent carry out work at his expense, is to be interpreted as including the requirement that the respondent is to cause that work to be carried out, if necessary, by another appropriately accredited building practitioner. Mr Thompson points out that the phrase "carry out work" is used on numerous occasions throughout the Act. Its meaning depends upon the context of its use. In some cases, it clearly relates to work which is carried out or to be carried out personally by the person concerned. In other cases, the context of its use leads to the conclusion that it has a wider meaning, and incorporates the obligation to cause the work to be carried out, notwithstanding that practically and legally, the work cannot be done personally by the person to whom the provision is directed. Hence, Mr Thompson argues, a notice which required the respondent to carry out or cause building work to be carried out at his expense was a valid exercise of the power under s 40(3)(da).
Resolution
The question of whether s 40(3)(da) is intended to merely operate in a protective way, or also has a remedial purpose, is fundamental to the question of its interpretation. In resolving this question, the provisions of s 8A of the Acts Interpretation Act 1931 are relevant. That section provides that in the interpretation of the provision of an Act, "an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object". In my view, the remedial operation of this provision promotes the purpose and object of the Act. It is consistent with the purpose of the Act, which includes the control of the quality of building work and the resolution of disputes.
Further, such an interpretation is also consistent with the intention of the legislature in respect of the provision under consideration, which can be discerned from the legislative history, as well as the context of the provision. Subparagraph (da) was inserted into s 40(3) by amending legislation, the Building Amendment Act 2012. The Act also introduced the following:
(a)The extended definition of accredited building practitioner to include a person who was no longer accredited as a building practitioner but had been accredited at the time that the work was performed. The clause notes to the amending Bill note that this definition was extended for the following purpose:
"The definition is amended to provide that a person who was formerly accredited as a building practitioner under the Building Act 2000 is defined as an accredited building practitioner for matters relating to complaints, investigations and appeals. The amendment allows for complaints to be made about the conduct of formerly Accredited Building Practitioners. The Act as it currently stands only allows for investigations of 'accredited building practitioners' which by definition discounts those who are no longer accredited and denies the Director the ability to perform an investigation. In the past, on receiving a complaint, it has been found that some practitioners are not currently 'accredited building practitioners' because they have not paid an annual accreditation fee or do not have current insurance."
(b)The clause notes also refer to the purpose of the introduction of subs (3)(da):
"(a) This clause enables the Director to use the existing enforcement provisions of the Act. It provides that the Director (as if exercising the powers of a general manager or a building surveyor issuing a building order) may order an accredited building practitioner found guilty of unprofessional conduct or professional misconduct, to carry out building work so that the work complies with the building permit. An order may be subject to any reasonable or relevant conditions."
(c)A provision was inserted whereby a person who failed to comply with an order under subs (3)(da) is guilty of professional misconduct (s 40(3B)).
(d)It was made an offence for a building practitioner to fail to comply with the order (s 40(6)). This was the offence with which the respondent was charged in this case.
It is appropriate to have regard to the clause notes, having regard to the ambiguity of the meaning of "carry out" the work arising from its variable usage in the Act. Acts Interpretation Act, s 8B.
The scheme introduced by these amendments suggests that the purpose of the disciplinary provisions goes beyond the ambit of that submitted by Mr Williams. In particular, s 40(3)(da) would appear clearly to be remedial in nature. The relationship between that amendment and the extension of the definition of accredited building practitioner to include those who were accredited at the relevant time, but are no longer, supports this interpretation.
This interpretation is also consistent with the resultant scheme incorporated into the wording of s 40(3)(da). The section provides that the order by the Director may be made "as if the Director were exercising the powers of a general manager or a building surveyor under section 170(2)(b)(ii)". Section 170 provides for the issue of a building order in circumstances in which an authorised person has issued a building notice to a person under one of the general enforcement provisions contained in Div 2 of Pt 11. For example, s 163 authorises a general manager to issue a building notice to the owner of a building or a temporary structure in certain circumstances. Section 170(2)(b)(ii) provides that the building order may require the person on whom it is served to carry out building work. The person on whom it is served must, under s 170(1) be the person who was issued with the notice. Under s 163, that person is the owner of the building.
Clearly, the owner of the building need not be an accredited building practitioner. In fact, it would be an extremely rare coincidence if that were the case. Accordingly, the context of that legislative provision, through which the power under s 40(3)(da) is directed, is that the requirement to carry out building work cannot be a requirement to carry out the building work as an accredited building practitioner. The interpretation of that provision must mean that the obligation is to ensure that the building work is carried out in accordance with the provisions of the Act, which, in practice, would mean engaging a properly accredited building practitioner to do the work.
I see no reason why the power specified in s 40(3)(da) should receive a different or more restricted meaning. The specific reference in s 40(3)(da) to s 170(2)(b)(ii), suggests that the context is identical. Accordingly, a requirement made in accordance with s 40(3)(da) must include the requirement to either carry out the work or cause it to be carried out lawfully under the Act.
It follows that I am satisfied that the learned magistrate erred by determining that the notice was invalid because it would be illegal for the respondent to carry out the work. If the respondent was unable to lawfully perform the work himself, then he was legally obliged to engage an accredited building practitioner to carry out the work. Of course, this interpretation has the unsatisfactory consequence that the term "carry out" as used in s 23A, will bear a different meaning to the use of that term under s 170. However, a requirement under s 170 directed at, for example, the owner requiring that person to carry out the work, would place the owner in breach of s 23A if there was not a difference in the meaning of that term as it is used in the respective provisions. As the Act has now been repealed, it is likely to be a difficulty with academic consequences only. In any event, s 40(3)(da) is directed specifically to the power to issue a building order under s 170, and, accordingly, it is desirable that the interpretation of the requirement to carry out work is consistent with the interpretation of the requirement as it appears in s 170.
Other matters
A practical difficulty referred to by Mr Williams in his submissions is that the building practitioner who is subject to the order has no lawful authority to enter upon the land for the purpose of doing the work. However, this difficulty applies whether or not the order is made in respect of a person who is currently and appropriately accredited to perform the work. This is a difficulty related to the operation of the complaint resolution scheme set out in s 40. It was not a matter that was raised before the learned magistrate, and does not directly bear on the issue in question in these proceedings. It is not a matter that needs to be resolved by me. The order made pursuant to s 40(3)(da) can have no practical effect without the consent of the owner, irrespective of the state of accreditation of the person to whom the order is directed.
Mr Williams raises two further matters. He concedes that neither was argued before the magistrate. The first relates to the form of the building order in this case. It purports to be issued under s 170(2)(b)(ii) of the Act. Mr Williams submits correctly that, in fact, the authority for the order is derived from s 40(3)(da). The reference to s 170(2)(b)(ii) in s 40(3)(da) is simply to provide substance to the power conferred under the latter section. It does not result in the order being issued under s 170(2)(b)(ii).
This seems to me to be a matter of form rather than substance. The wording of s 40(3)(da) suggests that the order is in fact issued pursuant to s 170(2)(b)(ii), notwithstanding that the authority for the Director to issue the order, without issuing a prior building notice, arises under s 40(3)(da). In any event, it seems to me that it does not affect the substance of the order. I am satisfied that there has been substantial compliance with the requirements of the legislation and, accordingly, the order is not invalid for this reason.
Mr Williams also raises the fact that the complaint asserts that the offence of failing to comply with the order is a breach of s 170(7) of the Act. This assertion in the complaint is clearly incorrect. The offence in question is created by s 40(6).
The requirement to specify the provision that is alleged to have been contravened in a complaint arises pursuant to r 7 of the Justices Rules 2003. Section 31 of the Justices Act 1959 provides that an objection shall not be taken or allowed to a complaint in respect of an alleged defect in form. However, where the defect appears to have prejudiced the respondent then, unless the magistrate determines to amend the complaint, he is required to dismiss it.
It is conceded by Mr Williams that this objection was not taken at the hearing. If it had been, then the magistrate would have been required to apply the provisions of s 31. Given the formal nature of the defect, it is difficult to imagine that any prejudice to the respondent could have been demonstrated and, in that case, the magistrate would have been required to amend the complaint, rather than dismiss same.
In these circumstances, the error does not affect the outcome of the review.
Disposition
Because I have determined that the magistrate erred in concluding that the building order was invalid, the single ground of review must succeed. I will hear counsel as to the appropriate disposition of the motion.
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