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[2026] ACTSC 136
Supreme Court of the ACT
2026-05-11
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: Jolley v Construction Occupations Registrar (No 3) Citation: [2026] ACTSC 136 Hearing Date: 11 May 2026 Decision Date: 11 May 2026 Before: Mossop J Decision: (1) Order 5 of the orders made on 6 August 2025 is vacated. (2) The ‘Date of Order’ in the schedule to the orders made on 6 August 2025 is amended from 6 August 2025 to 11 May 2026. (3) Paragraph 5 of the schedule to the orders made on 6 August 2025 is amended by replacing the date 30 September 2025 with 5 July 2026. (4) Mr Jolley is to pay the costs of the Construction Occupations Registrar on a party and party basis and The Owners – Units Plan No 3941 on an indemnity basis in relation to the lifting of the stay and amendment of orders from 1 April 2026, including the costs of the hearing on 11 May 2026. (5) Liberty is reserved to the Construction Occupations Registrar and The Owners – Units Plan No 3941 to apply for a gross sum costs order on two days’ notice. Catchwords: PRACTICE AND PROCEDURE – APPEAL – Judgments and orders – application for the dissolution of a stay – where stay granted pending appeal – where appeal subsequently discontinued – held within the power of the court to amend final orders so as to secure their effectiveness at the point where the stay is dissolved Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 82, 83 Australian Capital Territory (Self ‑Government) Act 1988 (Cth), s 48A Court Procedures Rules 2006 (ACT), rr 1605(3), 1610(4), 5001, 5052(1)(a), 5052(1)(e), 6351 Supreme Court Act 1933 (ACT), ss 20, 37J(d), 37J(e), 37O(1)(b) Cases Cited: Jolley v Construction Occupations Registrar [2025] ACTSC 55 Jolley v Construction Occupations Registrar (No 2) [2025] ACTSC 347 United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 Parties: Andrew Jolley (Appellant) Construction Occupations Registrar (First Respondent) The Owners – Units Plan No 3941 (Second Respondent) Representation: Counsel No appearance (Appellant) N Oram; S Gasser (First Respondent) J Park (Second Respondent) Solicitors Self-represented (Appellant) ACT Government Solicitor (First Respondent) Clayton Utz (Second Respondent) File Numbers: SCA 7 of 2024 SCA 8 of 2024 Decision Under Appeal: Tribunal: ACT Civil and Administrative Tribunal Before: Senior Members M Orlov and T Foley Date of Decision: 26 October 2023 Case Title: Jolley v Construction Occupations Registrar & Anor (Administrative Review) Citation: [2023] ACAT 65 Tribunal File Number: AT 21 of 2021 MOSSOP J: Introduction
Chronology
On 6 August 2025, the court made orders in relation to appeals SCA 7 and 8 of 2024. The proceedings involved internal appeals within the ACT Civil and Administrative Tribunal (ACAT), which had been removed to this court under s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). The orders of the court included the making of a rectification order and a costs order against Mr Jolley: Jolley v Constructions Occupations Registrar (No 2) [2025] ACTSC 347.
The rectification order was stayed by consent for a period of 28 days and, in the event that any party filed a notice of appeal in respect of the rectification order, the stay was continued until further order of the Supreme Court or the Court of Appeal.
By notice of appeal filed on 2 September 2025, Mr Jolley appealed against the orders made on 6 August 2025.
On 5 March 2026, the solicitors for Mr Jolley wrote to the other party saying that he was suffering from Frontotemporal Dementia, was in a supported care facility, and proposed to discontinue the proceedings. The consent of the other parties was sought to orders that he discontinue, on the basis that each party bear their own costs of the appeal.
On 12 March 2026, the solicitors for The Owners – Units Plan No 3941 (the Owners Corporation) sought evidence of Mr Jolley’s diagnosis, confirmation that he intended to appoint a litigation guardian, and evidence of the appointment of a guardian, manager, or a person with power of attorney. No evidence was provided in response to this request.
On 17 March 2026 (the day before the appeal was listed for callover), the solicitors for Mr Jolley filed a notice of discontinuance in the Court of Appeal proceedings. They then wrote to the other parties indicating what they had done. They asserted that no offence of failing to comply with rectification orders could be made out because the physical element could not be shown to have been performed voluntarily. They concluded: “Given the possibility that someone might seek to argue and prove to the contrary in criminal proceedings, our client does not intend to make any further comment in relation to the issues just mentioned.”
On 25 March 2026, the Owners Corporation sought consent to the lifting of the stay orders. The Construction Occupations Registrar (the Registrar) agreed, but proposed that the dates in the schedule to the court orders be amended “to regularise compliance timeframes”.
On 1 April 2026, the solicitors for Mr Jolley said that he “has no comment to make in response to the letter” of 25 March 2026, but opposed the making of any further costs order against him. They also indicated that they had received the orders proposed by the Registrar. On the same day, they questioned the basis for variation of the orders and sought identification of the “specific and relevant statutory provisions” relied upon.
On 14 April 2026, the solicitors for the Registrar identified the orders proposed to be made by consent and made reference to the powers in rr 1605(3), 1610(4), 5052(1)(e) and 6351 of the Court Procedures Rules 2006 (ACT). They also referred to s 82(2)(e) of the ACAT Act, and s 20 of the Supreme Court Act 1933 (ACT).
On 15 April 2026, the Owners Corporation indicated its consent to the proposed orders.
On 16 April 2026, the solicitors for Mr Jolley sought identification of precisely which statutory provision was relied upon.
On 30 April and 1 May 2026, there was further correspondence in relation to the proposed consent orders, which were signed on behalf of both the Owners Corporation and the Registrar.
On 1 May 2026, the solicitors for the Registrar wrote again to the solicitors for Mr Jolley articulating the various statutory provisions which provided a basis for amendment of the orders.
On 6 May 2026, the solicitors for the Owners Corporation wrote to my associate seeking to have the matter relisted.
On 6 May 2026, the proceedings were listed before me at 9:15am today, Monday 11 May 2026.
On 7 May 2026, Mr Jolley filed a notice that he was acting in person.
On 7 May 2026, the solicitors that had represented Mr Jolley confirmed that he had been provided with all recent correspondence in relation to the matter.
On 11 May 2026, when the matter was called, Mr Jolley did not appear.
Findings
There is no probative evidence that Mr Jolley suffers from any condition that would prevent him from instructing solicitors or that would require the appointment of a litigation guardian. The evidence indicates that he was capable of instructing solicitors at least up until 7 May 2026, at which point he decided to act in person.
The timing and circumstances in which the solicitors ceased to act, and that Mr Jolley filed a notice of acting in person, are consistent with a course of conduct designed to make the proceedings following the discontinuance of Mr Jolley’s appeal as difficult for the other parties as possible. Decision
These proceedings arise from an internal appeal within ACAT under s 79 of the ACAT Act. That appeal was then removed into this court under s 83(2) of that Act: Jolley v Construction Occupations Registrar [2025] ACTSC 55 at [2]. Upon removal, this court has all the powers of the ACAT Appeal Tribunal and has a power to “make any other order that it considers appropriate”: Court Procedures Rules rr 5052(1)(a) and 5052(1)(e). The powers of the Appeal Tribunal on an internal appeal are also broad, and include “any other order it considers appropriate”: ACAT Act s 82(2)(e). In addition to those express powers, there is also the general proposition that the grant of judicial power carries with it authority to do all that is necessary to effectuate its main purpose: United Mexican States v Cabal [2001] HCA 60; 209 CLR 165. That principle is also reflected in the terms of s 48A of the Australian Capital Territory (Self ‑Government) Act 1988 (Cth) (Self ‑Government Act), the terms of which are reflected in s 20 of the Supreme Court Act. Just as an absence of power to grant a stay might mean, as pointed out in United Mexican States, that a court “might fail to do full justice to the appellant or potential appellant”, the absence of a power to amend the final orders upon dissolution of a stay by reason of the abandonment of the appeal might also result in a failure to do justice either to the appellant or respondent to an appeal. I do not consider that it is any impediment to the making of the orders that they are made in the exercise of the original jurisdiction of the court, rather than the appellate jurisdiction. They were made in the original jurisdiction in order to make the appellate jurisdiction of the court more effective: see United Mexican States at [38].
In circumstances where a single judge has, in an appeal removed from the ACAT, granted a stay of final orders pending an appeal, I consider that it is within the scope of the powers granted by either s 82 of the ACAT Act, or s 48A of the Self ‑Government Act, or a combination of both, to make orders adjusting the final orders so as to secure their effectiveness at the point where the stay is dissolved.
Having granted a stay of the orders, I consider that it is open to the court, upon the lifting of the stay, to make consequential orders adjusting the terms of the final order made by the court to accommodate the passage of time while the stay was in effect. There can be no doubt that the Court of Appeal would have had the power to make such an order adjusting the relevant dates as a result of the pendency of the stay during the existence of the appeal: Supreme Court Act s 37O(1)(b). Further, that power is one which would have been open to be exercised by a single judge: Supreme Court Act ss 37J(d) and 37J(e). I do not consider that the discontinuance of the appeal denies to the Supreme Court, which has exercised the power to stay for the benefit of the appellate jurisdiction of the Court of Appeal, an equivalent power.
The orders that have been consented to by the other parties have the effect of amending the date of the order so that it is dated at the time when the stay is lifted and giving Mr Jolley a further indulgence by allowing him a further opportunity to provide to the Registrar a program of works to be carried out. Both of those amendments are appropriate so as to ensure that Mr Jolley has a fair opportunity to comply following the abandonment of his appeal and so that, for the purposes of the respondents to that appeal, the enforceability of the order is not subject to any argument that it is adversely affected by the operation of the stay which was granted for Mr Jolley’s benefit.
I would, in any event, have amended the order pursuant to the express powers in r 1610(4) (as applied by r 5001) and r 6351 of the Court Procedures Rules.
Before I make final orders, I will hear the parties in relation to costs. [The parties were heard in relation to costs.]
So far as costs are concerned, it is appropriate that Mr Jolley pay the other parties’ costs of the application. [The parties were further heard in relation to costs.] Orders
The orders of the Court are: (1) Order 5 of the orders made on 6 August 2025 is vacated. (2) The ‘Date of Order’ in the schedule to the orders made on 6 August 2025 is amended from 6 August 2025 to 11 May 2026. (3) Paragraph 5 of the schedule to the orders made on 6 August 2025 is amended by replacing the date 30 September 2025 with 5 July 2026. (4) Mr Jolley is to pay the costs of the Construction Occupations Registrar on a party and party basis and The Owners – Units Plan No 3941 on an indemnity basis in relation to the lifting of the stay and amendment of orders from 1 April 2026, including the costs of the hearing on 11 May 2026. (5) Liberty is reserved to the Construction Occupations Registrar and The Owners – Units Plan No 3941 to apply for a gross sum costs order on two days’ notice.
I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Jolley
Construction Occupations Registrar (No 3)