Beattie v Licensed Building Practitioners' Board
[2015] NZHC 1903
•12 August 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2015-488-43 [2015] NZHC 1903
BETWEEN IAN BEATTIE
Appellant
AND
LICENSED BUILDING PRACTITIONERS' BOARD First Respondent
WHANGAREI DISTRICT COUNCIL Second Respondent
Hearing: (on the papers) Counsel:
I Beattie, Appellant, in person
No appearance by or on behalf of First Respondent
J Dawson for Second RespondentJudgment:
12 August 2015
JUDGMENT OF HEATH J
This judgment was delivered by me on 12 August 2015 at 2.00pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Whangarei District Council (Kathryn Candy) Counsel:
J Dawson, Auckland
Copy to:I Beattie, Appellant
BEATTIE v LICENSED BUILDING PRACTITIONERS' BOARD [2015] NZHC 1903 [12 August 2015]
The appeal
[1] Mr Beattie is a licensed building practitioner.1 The Whangarei District Council (the Council) made a complaint about him. A disciplinary hearing took place before the Building Practitioners’ Board (the Board). The outcome was unfavourable to Mr Beattie.2 He appealed against the Board’s decisions, to the District Court at Whangarei.
[2] During the course of case management of the appeal, the District Court considered whether an order for security for costs should be made against Mr Beattie, in favour of the Council. On 18 March 2015, Judge de Ridder ordered Mr Beattie to give security in the sum of $2000.3 Mr Beattie appeals to this Court against that decision.
The regulatory framework
[3] Part 4 of the Building Act 2004 (the Act) deals with the regulation of licensed building practitioners. It provides for a registration process,4 authorises the making of Orders in Council prescribing codes of minimum standards of ethical conduct,5 and establishes a disciplinary regime through which complaints may be determined by an independent authority, the Board.6 Rights of appeal against decisions made both by the Registrar of Licensed Building Practitioners and the Board are established.7 An appeal from the Registrar is to the Board, whereas an appeal from a decision of the Board is to the District Court.8
[4] The purposes of licensing building practitioners are twofold. Both have a consumer protection function. The first is to assess and record practitioners who
have certain skills and knowledge. The second is to ensure that restricted building
1 A person is licensed to be a building practitioner by the Registrar of Licensed Building Practitioners, who is appointed under s 310 of the Building Act 2004. A licence is issued under s 288.
2 See paras [9]–[12] below.
3 Beattie v Building Practitioners’ Board [2015] NZDC 4620 at para [21].
4 Building Act 2004, ss 285–309.
5 Ibid, s 314A.
6 Ibid, ss 315–329. Criminal offences are also created by s 314 of the Building Act 2004.
7 Ibid, ss 330–340.
8 Ibid, s 330.
work is carried out or supervised by a licensed building practitioner.9 If a licensed practitioner is alleged to have carried out or supervised work other than in conformity with the standards required, he or she may be the subject of a complaint to the Board.10 In the present case, the relevant complaint was made by the Council.
[5] Following receipt of a complaint, the Board is required to investigate and to determine whether to proceed with it.11 The Board is required to act independently when conducting a hearing for any disciplinary offence.12 A hearing before the Board on a disciplinary matter is characterised as a “judicial proceeding”.13
[6] While, in dealing with a complaint, the Board is undertaking an inquiry, it must comply with the principles of natural justice.14 Subject to that qualification, the Board is the master of its own procedure.15 In regulating its processes, the Board “must be guided by the principle that it should avoid unnecessary formality”.16
[7] Other than the licensed building practitioner ,there is no specific right for any person (including a complainant) to be heard at a disciplinary inquiry. The Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008 provide that:
(a) The Board must give the complainant at least 15 working days notice of the hearing of the complaint.17
(b)The complainant is not required to attend the hearing, either personally or through a representative.18
9 Ibid, s 282A.
10 Ibid, s 315.
11 Ibid, s 316(1).
12 Ibid, s 321(1).
13 Ibid, s 322(2). That characterisation brings the hearing under the auspices of ss 108 and 109 of the Crimes Act 1961.
14 Ibid, s 283(b).
15 Ibid, Schedule 3, cl 27.
16 Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008, reg 14(1).
Reg 14(2) makes it clear that reg 14(1) does not limit the obligation of the Board to comply with the rules of natural justice.
17 Ibid, reg 12.
18 Ibid, reg 11.
(c) The Board must inform the complainant and the licensed building practitioner in writing of the Board’s decision and of any right of appeal under s 330.19
[8] Although s 330(2) of the Act confers a right of appeal on “a person” only the licensed building practitioner is entitled to appeal against any action taken by the Board to which s 318 of the Building Act 2004 (the Act) refers.20 Section 330(2)(b) of the Act allows an appeal only against a decision of the Board “to take” any action under s 318. A complainant has no right of appeal.
The Board’s decisions
[9] Following the Board’s inquiry into the Council’s complaint, a decision was given on 22 April 2014. The Board found complaints that Mr Beattie had carried out or supervised building work in an incompetent manner proved, but rejected a complaint that he had been either negligent or incompetent in relation to duties involving documentation.21
[10] On 7 August 2014, the Board delivered a separate decision on questions of penalty and costs. Mr Beattie was suspended from practice for a period of three months and ordered to pay a fine of $1000. He was also ordered to pay $2000 “towards the costs of, and incidental to, the inquiry of the Board”.22 The Board has
no power to award costs in favour of any complainant who may appear before it.23
19 Ibid, reg 15.
20 Section 318 of the Building Act 2004 provides for the disciplinary sanctions that may be imposed on a licensed building practitioner.
21 Re Beattie (Building Practitioners’ Board) 22 April 2014, D Clark, B Nightingale, D Johnson, C
Orchiston and W Smith.
22 Re Beattie (Building Practitioners’ Board) 7 August 2014, D Clark, B Nightingale, C Orchiston, R Merrifield and W Smith at para 6.1.
23 Building Act 2004, s 318(4) limits the power to order costs and expenses to those of or
incidental to the Board’s inquiry.
The security for costs decision of the District Court
[11] Mr Beattie appealed to the District Court against the Board’s findings that he had acted negligently or incompetently, to suspend him, and to order he pay a fine and costs.24 The appeal is brought under s 330(2)(b):
330 Right of appeal
…
(2) A person may appeal to a District Court against any decision of the
Board—
…
(b) to take any action referred to in section 318.
[12] At a conference held after the appeal was filed, Judge McDonald made an order joining the Council and calling on Mr Beattie “to advise why … security for costs should not be ordered” in favour of the Council. Judge McDonald’s written decision records that the joinder was without opposition from Mr Beattie. As in this Court, Mr Beattie attended the conference in person. I accept that Mr Beattie had no understanding of the consequences of that order on the Court’s jurisdiction to direct that he give security for costs. In those circumstances, his lack of opposition to joinder is not a factor that should tell against him on the security for costs appeal.
[13] Judge de Ridder considered whether security for costs should be ordered by reference to r 18.13 of the District Courts Rules 2014. Leaving to one side the formula to be applied in determining what amount should be fixed, r 18.13 relevantly provides:
18.13 Security for appeal
(1) This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act 2011.
(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.
…
24 Ibid, s 330(2)(b), read in conjunction with s 318(1)(b) and (f), (2) and (4).
(4) Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.
(5) If the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.
….
[14] Mr Beattie sought a direction that no security was required. The Council opposed. The application was dealt with on the papers, following agreement by both Mr Beattie and Mr Dawson, for the Council, at a telephone conference held on 13
February 2015.
[15] Judge de Ridder applied principles set out in the judgment of the Court of Appeal in RIG v The Chief Executive of the Ministry of Social Development,25 in which Glazebrook J (sitting alone) said:
[3] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs. Security for costs will be waived where it is in the interests of justice to do so. Given that the normal rule is that security must be provided, exceptional circumstances are needed to justify waiver.
[4] The circumstances of the appeal are relevant, in the sense that the appellant must honestly intend to pursue it and it must be arguable. Respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined. Impecuniousity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.
(footnotes omitted)
[16] RIG was concerned with questions of discretion, rather than points of legal principle. Glazebrook J proceeded on the basis that respondents to an appeal “should not face the threat of hopeless appeals without provision for security”.26 She was not dealing with the type of situation that has arisen in this case, where the
Council actively sought to be joined as a respondent, yet obtains an order for security
25 RIG v The Chief Executive of the Ministry of Social Development [2010] NZCA 370. Judge de Ridder observed that the approach of the Court of Appeal had been approved by the Supreme Court in G v The Chief Executive of the Ministry of Social Development [2010] NZSC 141 when leave to appeal was refused.
26 RIG v The Chief Executive of the Ministry of Social Development [2010] NZCA 370 at para [4], set out at para [15] above. See also, in relation to the countervailing access to justice considerations, Reekie v Attorney-General [2014] 1 NZLR 737 (SC).
for its costs. That is a distinct point of principle. It was not, however, a legal point raised before Judge de Ridder. He dealt with the application purely as a question of discretion.
[17] In giving his decision, Judge de Ridder said:
[20] The proceedings are properly categorised as Category 2 in accordance with Rule 14.3 and it appears likely that the hearing will take two – three days. On that basis the calculation for security for costs provided for in Rule 18.13(3) will be in the vicinity of $150 - $2,325. Given the very modest level of those costs, and sparse detail provided by Mr Beattie I am simply unable to conclude that it is in the interests of justice that no security is required. No exceptional circumstances have been advanced by Mr Beattie to justify a direction that no security is required.
[21] In the circumstances I fix security for costs in the sum of $2,000 which is to be paid by the appellant by 30 April 2015. Mr Beattie’s attention is drawn to Rule 18.13(5) which provides that if security for costs is not paid by 30 April 2015 the Council may apply for an order dismissing his appeal.
Appeal to the High Court
[18] By agreement, I am dealing with the appeal on the papers. I am satisfied that the appeal can be determined on a point of principle. For that reason, even though Mr Beattie submitted information about his financial situation, I do not intend to refer to it.
[19] Mr Dawson submits that because the Council is a party to the appeal and the Act enables the District Court to make an award of costs in favour of one party against another, it is appropriate for an order for security for costs to be made. As to the discretion to award costs on appeal, Mr Dawson refers to s 338 of the Act:
338 Orders as to costs
On an appeal under this subpart, the [District Court] may order any party to the appeal to pay to any other party to the appeal any or all of the costs incurred by the other party in respect of the appeal.
[20] Mr Dawson puts emphasis on the Council’s own administrative regulatory and compliance obligations under the Act. In a situation, such as this, where the Council considers the conduct sufficiently serious to have initiated a complaint, the Council “[felt] compelled to participate” in the appeal.
[21] With respect, I consider that the approach taken by Mr Dawson conflates the question whether security for costs should be given with the ability of the Court to award costs in favour of another party if the appeal were unsuccessful. While it is understandable that the Council considers it has a public duty to be represented on the appeal to defend the Board’s decision,27 the fact remains that it elected to do so. It is difficult to see why, as a matter of principle, Mr Beattie should be put in a situation in which he may not be able to progress a lawful appeal against the Board’s decision because the complainant has decided to participate and has obtained an
order for security for costs in its favour, which cannot be met.
[22] The point of the security for costs regime is to protect a person who is required to appear to defend a decision given at first instance in his or her favour for the costs that he or she may incur in the event that the first instance decision is upheld. There is no need for such an order to protect a person who elects to participate in an appeal, though under no legal obligation to do so. In this case, an order requiring security for costs to be paid was wrong in principle, when viewed in the context of a statutory framework by which:
(a) The Council did not need to appear before the Board in support of its own complaint;
(b)The Board had no jurisdiction to make an order for costs in favour of the Council when it upheld the complaint;
(c) Mr Beattie was not required to serve the Council with his notice of appeal; and
(d)The Council could only be heard on the appeal if it successfully applied for joinder.
[23] In allowing the appeal, I intend no criticism of the Judge. This point on which I have found in favour of Mr Beattie was not raised for his consideration.
27 The general principle is that a judicial authority will not appear to defend its own decision: see
Attorney-General v Maori Land Court [1999] 1 NZLR 689 (CA) at 695.
Result
[24] The appeal is allowed. The decision requiring security for costs in the District Court is set aside and in substitution an order is made dispensing with the need to provide security.28
[25] I make no order as to costs on appeal to this Court.
P R Heath J
Delivered at 2.00pm on 12 August 2015
28 District Courts Rules 2014, r 18.12(2), set out at para [13] above.
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