Fekete v Construction Occupations Registrar [2013] ACTSC 45

1. It was not disputed that both the Supreme Court and ACAT had jurisdiction to determine the issues raised in the originating application. The defendant relied upon s 8(2)(b) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) that provides:

(b) the Supreme Court may in its discretion, refuse to grant an application for review of a matter under section 5, section 6 or section 7 if-

(ii) adequate provision is made by a law other than this Act under which the applicant is entitled to seek a review of that matter;

1. In dealing with the defendant's application to dismiss the originating application, the issue therefore was whether this court should allow the matter to proceed.
2. The defendant drew my attention to a number of authorities. Those to which I gave particular attention were: A E Bishop Associates Pty Limited v Trade Practices Commission (1989) 11 ATPR 50,741; Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 329; Brell v Willmot & Ors (1998) 17 ALD 462; Kelly v Coats & Ors [1981] FCA 58; (1981) 51 FLR 69; Brock v Deputy Child Support Registrar (1995) 38 ALD 255. I noted that in a number of these authorities the entity that was held to be the more appropriate forum was one that dealt with specialised areas of the law. This contrasted with the general jurisdiction in administrative decision-making conferred on ACAT.
3. The defendant's contention, which I accepted, was that these authorities established three propositions that were relevant to these proceedings:
   1. The onus was on the defendant to persuade the court to exercise its discretion under section 8(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act.
   2. As a general rule matters for which there is adequate provision should be heard in ACAT.
   3. Applying the general rule to the facts in this case, the issue was whether it concerned a matter that properly should be before ACAT.

10. I would add one further principle, namely, that exceptional circumstances are not required before the court will embark on the hearing of an application: Kelly v Coats, Toohey J at p.70.

11. The defendant pointed to proceedings that were already commenced by the plaintiff in ACAT within the time limit provided for in the ACT Civil and Administrative Tribunal Act. The plaintiff apparently took this step to preserve his rights in the event that he was not permitted to proceed in the Supreme Court. The proceedings are currently stayed pending the outcome of the defendant's application. The plaintiff stated that he intended to discontinue the ACAT proceedings if the originating application was permitted to proceed in this court.

12. The defendant submitted that the ACAT proceedings allowed for a review of all aspects of the decision and allowed the Tribunal to exercise all of the powers of the defendant. He was said that the application before ACAT was ready to proceed.

13. On the question of the relief available, the defendant claimed that, that if the matter proceeded in the Supreme Court and defects were found to exist, the court's only remedy was to refer the decision to the defendant for further consideration in accordance with the law. He submitted that ACAT, on the other hand, had power to make its own decision on the issues and that this was a more effective outcome.

14. I did not accept that this was an accurate summary of the powers of the Supreme Court in relation to applications for orders of review. Section 17(1) of the Administrative Decisions (Judicial Review) Act provides as follows:

17 Powers of Supreme Court in relation to applications for order of review

1) On an application for an order of review in relation to a decision, the Supreme Court may, in its discretion, make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision with effect from the date of the order or from the earlier or later date that the court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to the directions that the court considers appropriate;

(c) an order declaring the rights of the parties in relation to any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, anything to do justice between the parties.

15. The defendant contended that matters appropriate for determination by the Supreme Court should be limited to those where there was no real argument about the facts and where the answer to principles or questions of law that were raised would be determinative of the outcome.

16. The plaintiff pointed to two of the grounds set out in his originating application that dealt with matters of principle. The first was the extent of the power of the Registrar under s 38(1)(a) of COLA to require a building certifier to remedy defects in building works. The second related to the procedural requirements of s 34 and s 35 of COLA and the extent to which they must be observed by the Registrar before making a decision to issue a rectification order, the nature of which was similar in its effect to a mandatory injunction or an order for specific performance. It was argued that these provisions provided statutory protections to those who might potentially be the recipients of rectification orders.

17. I concluded that in respect of at least these two issues the originating application raised of matters of particular significance. I accepted that those issues extended beyond the facts of this case and that they had potentially far reaching consequences to those engaged generally in the building industry and particularly those responsible for certifying building work and their professional indemnity insurers.

18. They also met the defendant's test of matters appropriate for determination in that there is no significant argument about the facts and further, the Supreme Court's decision on these issues will be determinative of the outcome.

19. I concluded therefore that it was appropriate that the matter proceed in the Supreme Court.

20. It followed logically that, until the procedures and powers of the Registrar to direct the plaintiff to rectify defects in building work that was the subject of his certification were clarified, the requirement to comply with the rectification order should be stayed.

2. The orders made in the rectification order issued to the plaintiff on 8 November 2012 under the Construction Occupations (Licensing) Act 2004 (ACT) in respect of the premises at Block 6 Section 28, Page are stayed until further order.

3. The matter is to be listed for further directions to deal with the issue of costs and for the purpose of fixing a hearing date.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.

Solicitor for the Respondent: ACT Government Solicitor