JOLLEY v CONSTRUCTION OCCUPATIONS REGISTRAR No.5

Tribunal: Senior Member Dr W J Neville Date of Orders: 12 November 2025 Date of Reasons for Decision: 12 November 2025 Date of Publication: 19 November 2025 Date of Republication: 13 February 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 85/2024

BETWEEN:

ANDREW JOLLEY Applicant

AND:

CONSTRUCTION OCCUPATIONS REGISTRAR Respondent

TRIBUNAL: Senior Member Dr W J Neville DATE: 12 November 2025

ORDER The Tribunal orders that:

1. The original decision be varied, as sought by the Respondent.

2. By 10 December 2025, the parties are to provide to the Tribunal an agreed form

of rectification order, which properly and reasonably takes account of time

limits and other matters that have arisen during the “pendency of the litigation.”

3. Once agreed, the Tribunal will make that rectification order in Chambers.

4. If agreement cannot be reached, by 19 December 2025 each party is to:

a. file submissions of no more than 3 pages; and

b. request the Registrar to list the matter to determine the proper form of the

order.

……………………………….. Senior Member Dr W J Neville REASONS FOR DECISION Introduction 1. The current, and latest, issue between these parties before the Tribunal is

essentially one of statutory construction.

2. The most recent statement of the High Court regarding basal principles in relation

to statutory construction were summarised, at [4] and [5] in the plurality decision

of Gageler CJ, Gordon, Jagot and Beech-Jones JJ, in Palmanova Pty Ltd v The 1 Commonwealth (Palmanova; internal citations omitted; emphasis added):

[4] Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. … [5] That being the nature of the task to which the process is directed, the "modern approach" to statutory construction, as was explained nearly 30 years ago in CIC Insurance Ltd v Bankstown Football Club Ltd in a statement repeated and endorsed many times since: "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy". Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context.

3. The emphasis upon “context” for the purposes of aiding the relevant

constructional task is instructive and critically important in the current matter

before the Tribunal.

4. With pugilistic features (especially resilience and tenacity never to yield to an

opponent) that are somewhat akin to various forms of gladiatorial combat, the

parties here have been engaged in litigation on a regular basis for some time that

arise out of the construction of a prominent apartment complex in central

1 Palmanova Pty Ltd v The Commonwealth [2025] HCA 35. Edelman J, at [67] – [79], generally agreed with the reasons of the plurality and simply made additional comments regarding the principle of construction that concerns a presumption against surplusage or redundant language, and the use of extrinsic material. Canberra, known as Manhattan on the Park. The history, context, and

fundamental background features of the contest are set out in detail in the two

recent decisions (in February and August 2025) delivered in the ACT Supreme 2 Court by Mossop J, and in the October 2023 decision of this Tribunal. Those

detailed histories, contentions and claims, as well as the identification of various

defective work sought to be rectified by the Respondent and generally resisted by

the Applicant, make much (if any) repeated history and contentions somewhat

otiose here. Indeed, what follows, assumes familiarity with the details (factual

and legal) in the decisions noted.

5. The parties themselves contend that nothing in either of the decisions by Mossop

J relate to the issue to be determined here. While I accept the basic point advanced

by both parties regarding specific issues earlier determined and the relevance of

them here, the decisions of his Honour are, in my view, of significant importance

for providing at least proper context (among other things) for what follows,

especially in the light of the High Court’s instructions (noted above) in

Palmanova.

6. There have been multiple iterations of the principal issues to be determined in 3 this latest contest between the parties. At the end of the hearing, I directed that

both parties file a very short document that addressed the first four issues set out

in the Agreed Issues to be Determined. As something of an indication as to how

2 The most recent litigious venture between the parties before this Tribunal was in Jolley v Construction Occupations Registrar & Anor (Administrative Review) [2023] ACAT 65. That decision references other litigious contests between the parties, which need not be noted further here. Hereafter, this decision will be referred to as Jolley (2023 Admin Review). That decision was appealed to the ACT Supreme Court, which has resulted in two appeal judgments, issued by Mossop J, respectively Jolley v Construction Occupations Registrar [2025] ACTSC 55 (Jolley No.1); and Jolley v Construction Occupations Registrar (No 2) [2025] ACTSC 347 (Jolley No.2). In the most recent decision of Mossop J, his Honour determined (at [40] ff) that the rectification Order made by the Tribunal in 2023 was proper and appropriately founded, both as a matter of fact and law, and in the general exercise of the discretion of the Tribunal, and ultimately also by the Court. There was another determination in this Tribunal involving the parties in 2025, which arose out of the 2023 proceeding and related to the form of the rectification Order and an issue relating to costs. It has no direct relevance to the matters under discussion here. That decision was Jolley v Construction Occupations Registrar & Anor (No.4) (Administrative Review) [2025] ACAT 40. 3 Both parties filed detailed submissions as well as Case Outlines. Relevant documents filed by the parties are set out later in these reasons. difficult even that direction was, which required that each party provide a “three-

line” response to each of the first four agreed questions, together with their two

best cases in support, I note the following further impediment to the orderly 4 consideration of the remaining issue(s).

th

7. The Applicant’s response (filed 16 July 2025) ran to three paragraphs for each

issue, which was something of a novel approach to expand “3 lines” to 3

paragraphs. I am not sure that even the proverbial “poetic licence” could be

invoked to explain let alone to justify such a remarkable breach of the directions th of the Tribunal. These supposedly abbreviated responses, both filed on 16 July

2025, are set out below. The first agreed issue addressed was: “whether section

35(3) of the Construction Occupations (Licensing) Act 2004 (COLA)

(Republication 26) continued to apply to the making of the rectification order.”

8. The equally short answer to this question is “no”. The reasons for this conclusion

are set out in what follows. For immediate purposes, anything other than a

negative answer would require all later “republications” of COLA effectively to

be ignored, which can hardly have been the intention of the ACT legislature,

namely, to keep enacting variations of (or to) COLA simply for the sake of

passing legislation that has no actual or practical effect. Put another way, the

Applicant’s contention that, in every relevant respect, COLA Republication 26

applied to the dispute here, where that Republication was in force in 2012, would

effectively freeze or preserve this legislation in parliamentary or legislative aspic

forever and preclude the legislature from enacting any amendments to existing

legislation to make it more efficacious to meet the overall objectives of the

legislation, particularly to hold builders properly to account and to relevantly

protect the safety of the public in the form of purchasers and lessees of units in

the building in question.

9. As already intimated, in this discrete and most recent iteration of the ongoing

litigious contest, the parties agreed upon a series of questions (eight of them – of

fact and law; these are set out below) that require determination by the Tribunal,

together with a Statement of Agreed Facts (also set out below). The issues to be

4 th See Transcript for 9 July 2025 at p.92. determined can actually be limited to a single question: “Was the [second] th rectification Order made by the Respondent on 7 August 2024 properly (or

licitly) made?” All other issues identified by the parties as requiring

determination are ultimately dependent upon the answer to this single, primary

question.

10. This primary question arises from, and in the context of, the following chronology

(largely provided by the Applicant) and the relatively uncontentious facts it

contains:

st (a) 31 July 2013: the act that caused the contravention ended;

th (b) On 7 August 2013, the original builder/contractor (“Chase”) received the

last completion certificate for the fire safety works;

th (c) 13 August 2013: the final certificate of completion was issued by the

certifier (Certis ACT Pty Ltd) for the building (Manhattan on the Park);

th (d) 5 December 2018: the Respondent Registrar (“the Registrar”) received a

complaint under Part 11 of the Construction Occupations (Licensing) Act

2004 (“COLA”);

th (e) 18 March 2021: the Registrar made the first rectification Order against the

Applicant;

th (f) 7 April 2021: the Registrar received the first AED Fire Report;

th (g) 13 April 2021: the Applicant sought a review of the first rectification

Order;

st (h) 1 May 2023: the Registrar did not press “fire safety defects” at ACAT;

th (i) 30 July 2023: 10 years from the act that gave rise to contravention;

th (j) 8 August 2023: Registrar issued second notice under s.34 of COLA;

th (k) 12 August 2023: 10 years from the date when the final certificate of

completion issued;

th (l) 26 October 2023: ACAT made a rectification Order against the Applicant.

In this decision, the Tribunal noted (at par.12(g)) that the Registrar had

received a report from Diagnostech, which highlighted some potential fire safety issues, in consequence of which the Registrar directed that a fire

safety engineer be engaged to undertake a “fire safety audit of the entire

building” and to advise and rectify accordingly;

th (m) 7 August 2024: the Registrar made a second rectification Order against

the Applicant;

th (n) 8 August 2024: the supplementary one-year extension period, pursuant to

ss.35(5) and (6) of COLA R53, expired;

rd (o) 3 September 2024: the Applicant applied for a review of the second

rectification Order.

11. The Applicant contended that the Registrar was time-barred when it [purported]

to make the second rectification Order against him. The Applicant also

contended, among other things, that there having already been one rectification th Order made by the Respondent on 18 March 2021, the Registrar was/is

precluded from making any other, similar Order. Accordingly, the Applicant

sought to have the Registrar’s Order set aside. Ultimately, as noted further later

in these reasons, this line of argument was not pressed. Unsurprisingly, the

Respondent argued to the contrary.

12. For the reasons that follow, the decision by the Registrar to issue a second

rectification Order was appropriate and proper (as well as it being relevantly licit)

in all of the circumstances. Accordingly, pursuant to s.68 of the ACT Civil and

Administrative Tribunal Act 2008 (the ACAT Act), the Tribunal affirms the

Registrar’s decision, and relevantly varies it as sought by the Respondent. Within

28 days the parties are to provide the Tribunal with a form of Rectification Order

that conforms with these reasons and the Order sought by the Registrar. Once

agreed, that Order will be made by the Tribunal in Chambers.

13. By way of summary, the reasoning of the Tribunal to confirm the Registrar’s

decision is as follows:

(a) The chronology provided by the Applicant (and seemingly without question

by the Respondent) holds that the relevant date for the commencement of th what I will call the “time-bar clock” is 13 August 2013, being the date when the final certificate of completion issued by the certifier. This date

was also noted by Mossop J in Jolley No.1 at [3].

(b) Relevant notices under s.34 of COLA of the intention to make a th rectification Order having been given respectively on 19 March 2020, and th 8 August 2023, nominally as well as formally, the 10-year statutory period th under s.35(5) of COLA expired on 12 August 2023.

(c) Further, s.35(5)(b) effectively provided for a one-year extension of the

statutory limitation period of 10 years, provided that the Registrar gave a

notice under s.34 before the end of the 10-year period. The relevant notice th under s.34 was given on 8 August 2023, and was, thereby, within the 10-

year period, even if literally only by a few days.

th (d) The Registrar made a second rectification Order on 7 August 2023. The th 12-month extension expired on 8 August 2024.

(e) There are no words of limitation in ss. 35 or 38, which confine either section

only to the making of a single rectification Order (the sections simply refer

to the making of “an order”). In my view, there being no qualification, in

terms or implied in either section, it follows that more than one such Order

may be made in relation to the same construction service.

Statement of Agreed Facts nd

14. This Agreed Statement, filed 2 July 2025, was as follows (internal citations

omitted):

1. This statement of agreed facts is lodged by the parties pursuant to order 3(a) of the Tribunal’s orders dated 30 May 2025. This statement of agreed facts is for the purposes of this administrative proceeding only and the parties agree this statement shall not be used in any other current or future administrative, curial or investigative proceeding. Construction Service 2. On 14 March 2005, Chase Building Group Pty Limited ACN 113 134 964 (Chase) was registered as a corporate entity. Chase was licensed under the Construction Occupations (Licensing) Act 2004 (COLA) as a Class A builder in the ACT. 3. On 10 May 2005, Mr Andrew Jolley was appointed as a nominee of Chase. 4. On 21 April 2012, Building Approval for the ‘Balance of Works’ for New Medium Density Flat/Unit/Apartments at a residential apartment complex known as ‘Manhattan on the Park’ at Block 1 Section 52 city (Property) was issued by the delegate. 5. Between 26 April 2012 and 31 July 2013, Chase provided a construction service (Construction Service) within the meaning of s 6 of the COLA with respect to fire resistance, fire services and fire equipment works (Fire Safety Works) which formed part of the Balance of Works. 6. Between 26 April 2012 and 31 July 2013, Mr Jolley acted in his capacity as nominee of Chase with respect to the Construction Service with respect to the Fire Safety Works. 7. On 13 August 2013, a Certificate of Occupancy and Use for the Balance of Works was issued by the delegate. The Balance of the Works included the Fire Safety Works. 8. On 7 August 2024, the Registrar purported to issue Mr Jolley with a rectification order under s 38 of the COLA in respect of the Fire Safety Works. 9. The parties agree that the following defects identified in the affected areas or units specified in the rectification order do not comply with the Building Act 2004 and the Building Code of Australia as in force at the time the Building Approval Notice was issued on 26 April 2021: a. Fire doors holder open devices (Defect 1b); b. Fire door closers (Defect 1c); c. Non-fire rated doors (Defect 1d); d. Untreated or incorrectly treated sprinkler pipes through fire rated walls (Defect 2a); e. Untreated or incorrectly treated mechanical service pipes through fire rated walls (Defect 2b); f. Untreated or incorrectly treated penetrations through fire rated walls and floors (Defect 2c); g. Non-compliant fire rated walls (Defect 2d); h. Non-fire rated garbage shafts (Defect 2e); i. Incorrect installation of duct connection (Defect 2f); j. Incorrectly located and/or insufficient smoke alarms (Defect 3a); k. Smoke alarms not connected to mains power (Defect 3b); l. Non-compliant occupant warning and emergency systems (Defect 3c); m. Insufficient fire hose reel coverage (Defect 4a); n. Non-compliant installation of hydrant valves and outlets (Defect 4b); o. Non-compliant sprinkler coverage (Defect 4c); p. Non-compliant sprinkler heads (Defect 4d); q. Non-compliant handrails (Defect 5a); r. Exit signs missing from required exits and exit paths (Defect 5b).

2. Subject to any relevant comments by Mossop J in either Jolley No.1 and

Jolley No.2, in addition to these Agreed Facts, there are a number of sections in

the earlier decision by the Tribunal in Jolley (2023 Admin Review) that provide

important context and other matters relevant to the current dispute. I refer

immediately to pars.3-9, and par.12 of the Tribunal’s reasons in that matter. Those

paragraphs should be taken to be incorporated into these reasons. In particular, I

note the terms of par.12(g) of the 2023 reasons of the Tribunal:

(g) Compliance and Fire Safety Concerns: The Registrar noted that according to the Diagnostech report a number of concerns were raised that may constitute compliance and fire safety issues. The Registrar required that a Fire Engineer be engaged to undertake a fire safety audit of the entire building to advise and rectify if necessary and provide a report to the owners corporation once the work was finalised.

16. The significance of this paragraph, among other things, is that the Applicant

contended that the Respondent had changed course from that which was argued

before the Tribunal in proceeding AT21 of 2021. However, as par.12(g) makes

plain, the direction regarding further inquiry in relation to “fire safety concerns”

came from the Tribunal. As such, the protests about the Registrar’s conduct and

alleged volte face are inapposite. Further, at [7] in Jolley No.1, and although not

pressed in that proceeding, there is reference to various defects that include

“compliance and fire safety concerns.”

Joint List of Legal and Factual Issues for Determination

17. This list was as follows:

18. Whether section 35(3) of the Construction Occupations (Licensing) Act 2004 (Republication 26) continued to apply to the making of the rectification order. 2. If the answer to 1 is yes, whether the Tribunal should set aside the rectification order. 3. If the answer to 1 is no, was the rectification order made before the latest day provided by s 35(5) of the Construction Occupations (Licensing) Act 2004. 4. If the answer to 3 is no, whether the Tribunal should set aside the rectification order. 5. Whether the Tribunal has the power to determine whether the making of the rectification order was an abuse of power. 6. If the answer to 5 is yes, did the Respondent abuse the power by making the rectification order. 7. If the answer to 6 is yes, whether the Tribunal should set aside the rectification order. 8. In the event the Tribunal determines it is appropriate to make a rectification order, whether the decision under review should be varied as proposed by either the Applicant or the Respondent.

19. The parties provided brief written responses to the first four agreed issues listed

in the previous paragraph. Those responses were as follows, beginning,

appropriately, with the Applicant’s response. I should note that these responses

were directed to be very confined, of no more than 3 lines plus the best cases in

support of each proposition. As is evident, the Applicant took a significantly

expansive view of the Tribunal’s directions in this regard where “three lines”

conveniently became “3 paragraphs”:

Applicant’s Response Issue 1: whether section 35(3) of the Construction Occupations (Licensing) Act 2004 (Republication 26) continued to apply to the making of the rectification order. 1. On 31 July 2013 (the date Mr Jolley's obligations as a nominee ceased and his liability "crystallised"), Mr Jolley acquired or incurred under Part 4 of the COLA a contingent liability to have a rectification order made against him and a contingent right (by s 35(3)) not to have such order made if the act that caused the contravention ended more than 10 years before the registrar proposed to make the order. 2. Unlike other amendments to the COLA, there is no transitional provision stating that s 35(5) (which replaced s 35(3) from 10 December 2019) applies retrospectively to Mr Jolley's contravention. 3. The continued application of s 35(3) to Mr Jolley is consistent with the terms of the COLA itself, but also with the general principle that, in absence of a clear statement to the contrary, an Act is presumed not to have a retrospective operation on facts or events that have already occurred. Mr Jolley relies primarily on: (a) Cousins v Construction Occupations Registrar [2024] ACAT 48: JBA 201-244. (b) Mаxwell v Murphy (1957) 96 CLR 261: JBA 375-407. Issue 2: If the answer to Issue 1 is yes, whether the Tribunal should set aside the rectification order. 1. If the answer to issue 1 is that s 35(3) continued to apply to Mr Jolley, the parties agree that the decision to make the rectification order against him on 7 August 2024 was out of time and the registrar's decision should be set aside and substituted with a decision not to make a rectification order. Issue 3: If the answer to Issue 1 is no, was the rectification order made before the latest day provided by s 35(5) of the Construction Occupations (Licensing) Act 2004? 1 A literal reading of s 35(5) (b) calculates time once from the date when Mr Jolley "was given" "a notice under section 34"in relation to breaching the COLA on 31 July 2013 with respect to fire safety works at Manhattan on the Park. 2. In Meier the Tribunal incorrectly held that s 35(5)(b) calculates "1 year after" the "latest" date a s 34 notice was given to an entity; however, the word "latest" only appears in the chapeau to s 35(5) and therefore must be applied after the relevant dates are calculated under sub-ss (a), (b) and (c). 3. The second s 34 notice given to Mr Jolley on 8 August 2023, which related to the same contravention as the first notice given on 19 March 2020, did not alter the date already calculated under s 35(5) (b) being "1 year after the entity was given?” "a notice under section 34 before the end of the 10-year period" (18 March 2021). Mr Jolley relies primarily on: (a) Meier v Construction Occupations Registrar [2023] ACAT 47: JBA 408–487. Issue 4: If the answer to Issue 3 is no, whether the Tribunal should set aside the rectification order. 1. Section 35(5)(c) applies to provide that the “latest" date the registrar could have made a rectification order against Mr Jolley for breaching s 31(2) of COLA with respect to fire safety works at Manhattan on the Park was the end of the "10-year period”: 12 August 2023. 2. Therefore if the answer to issue 3 is "no", the registrar's decision to make a rectification order against Mr Jolley on 7 August 2024 was out of time and the correct or preferable decision would be to set aside the registrar's decision and substitute it with a decision not to make a rectification order. Respondent’s Response 1. Whether section 35(3) of the Construction Occupations (Licensing) Act 2004 (COLA) (Republication 26) continued to apply to the making of the rectification order (Order). No. Retrospectivity does not arise as the Building and Construction Legislation Amendment Act 2019 commenced after notification. COLA (R63) applied to the making the Order, subject only to s 84 Legislation Act 2001. The Applicant did not have any accrued right or immunity. The Registrar draws the Tribunal’s attention in particular to: a. Adelaide Brighton Cement Ltd v Victorian Rail Track [2007] VSCA 10, [8]-[17], [49]-[53] (Smith AJA, Buchanan and Ashley JJA agreeing); b. Yarra City Council v Metropolitan Fire and Emergency Services Board (2017) 223 LGERA 135, [1]-[2], [61]- [64], [81]-[86], [198]-[199], [204], [207], [215]-[220] (Warren CJ, Tate and Osborn JJA). 2. If the answer to 1 is yes, whether the Tribunal should set aside the rectification order. On the Registrar’s case the question does not arise, however, if the Tribunal finds that the COLA R26, s 35(3) continued to apply, then it is conceded that the Order should be set aside. 3. If the answer to 1 is no, was the rectification order made before the latest day provided by s 35(5) of the Construction Occupations (Licensing) Act 2004. Yes. It was made on 7 August 2024 - 1 year after the notice of intention (NOI) was given on 8 August 2023, per COLA, s 35(5)(b) which is an alternative to s 35(5)(a) (giving ‘or’ its ordinary disjunctive meaning) when the Registrar issues a NOI before the end of the 10-year period. 4. If the answer to 3 is no, whether the Tribunal should set aside the rectification order. On the Registrar’s case the question does not arise, however, if the Tribunal finds that the rectification order was not made before the latest day provided by s 35(5) of the COLA it is conceded that the Order should be set aside.

19. Given that the responses from the parties set out above are the most recent

articulation of their respective arguments, and, relatively speaking, the most

concise, it may reasonably be taken that they relevantly supersede earlier

submissions and Case Outlines. Accordingly, those earlier documents are not

reproduced in these reasons. I move then to the specific issues regarding the

construction of relevant sections of COLA. Part of the considerations in this regard, in accordance with the High Court instructions set out at the

commencement of these reasons in Palmanova, is to consider the context of

COLA.

Context: the decisions of the ACT Supreme Court

20. From the decision in Jolley No.1, I note the following, beginning with the helpful

background and some relevant dates noted by Mossop J at [3] – [7]:

3. Between 2012 and 2013, Manhattan on the Park was built. It is a residential apartment complex on Bunda Street near Glebe Park in the centre of Canberra. According to the Certificate of Occupation and Use dated 13 August 2013, work commenced on the premises on 10 May 2012, and the date of certification indicates that it was ready for occupation and use on 13 August 2013. Chase Building Group Pty Ltd (Chase) “managed” the building work necessary to construct the building, but did not perform any building work itself, instead arranging subcontractors to do so. Chase did, however, hold a Class A builder’s licence under s 28 of the COLA during the building of Manhattan on the Park, as did Mr Jolley personally. 4. Chase’s Class A building licence expired on 1 July 2016 and was not renewed. The company was deregistered on 18 October 2017 following a members’ voluntary winding up, was reinstated on 22 April 2021, and was deregistered a second time in the early months of 2024. 5. On 5 December 2018, solicitors for the Owners Corporation of the units plan wrote to the Registrar noting Chase’s deregistration and urged the Registrar to issue a rectification order in relation to the building to Mr Jolley and to certain others. 6. On 19 March 2020, the Registrar gave a notice of intention to make a rectification order under s 34(2) of the COLA to Mr Jolley. 7. On 18 March 2021, the Registrar issued a rectification order to Mr Jolley pursuant to s 38 of the COLA, requiring him to rectify several defects associated with the Manhattan on the Park building …

4. The dates noted between December 2018 and March 2021 are important for a

number of reasons, including the concerning delays between action being taken

by the Respondent regulator. That said, Mossop J noted in Jolley No.1, for

example at [74] that (in my words) various delays took place because of various

and multiple interlocutory Applications along the way. Particularly where, such

as here, there are complaints and applications run precisely because of either

alleged delay and/or the expiration of time limits, the reasons for any such delays

must also be properly considered. Further, in Jolley No.2, at [22], a specific and understandable reason for delay on various fronts, his Honour found, arose from

the “pendency of the administrative review proceedings.” These and other matters

are considered later in these reasons.

22. Paragraphs 28 and following in Jolley No.1 set out the statutory framework

within which the Registrar may make a rectification Order. Relevant parts of that

framework are set out below.

23. Paragraphs 58 and following deal with the Appellant’s/Applicant’s contention

regarding the expiration of the relevant limitation period. This was dealt with in

the context of sections 68 and 69 of the ACAT Act, which deal with review of

decisions, including the decisional options available to the Tribunal, for example,

to confirm or to vary the original decision. At [60], Mossop J stated:

The essential argument presented by Mr Jolley was that, although the original decision was made within the time required by s 35(5), by the time of the ACAT decision in December 2023, that period had expired. The appellant identified that any contravention occurred no later than August 2013, when Chase’s work was completed and certificates of occupancy and use had been issued. Given that the ACAT made its order in December 2023, just outside the 10-year period, the appellant argued that it was not open to the ACAT, standing in the shoes of the Registrar, to do what it did, namely substitute a different decision for that made by the Registrar.

24. Because issues relating directly to the limitation period are central to the current

Application, it is as well to set out Mossop J’s reasons in full regarding this issue,

from [69] – [86] (bold emphasis in original text; bold and underlined emphasis

added):

69. The power to engage in a review of the Registrar’s decision isgiven by s 123C of the COLA in combination with the definition of “reviewable decision” in s 123A and the Construction Occupations (Licensing) Regulation, s 42A and Sch 4 item 13. The nature of that review is not defined by the COLA but instead by the provisions of the ACAT Act. The ACAT Act itself does not explicitly describe the nature of the review. However, the nature of the review is impliedly disclosed by the terms of ss 68 and 69 which are set out above. 70. The function of conducting an administrative review which may lead to the confirmation, variation or substitution of the original decision where the decision of the Tribunal “is taken to be the decision of the decision-maker” (ACAT Act, s 69(2)(a)) allows the exercise to be characterised as one of administrative merits review. In Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51], a majority of the High Court described the equivalent jurisdiction of the Commonwealth Administrative Appeals Tribunal in the following terms: [E]xcept where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT. (Footnotes deleted, emphasis added.) 71. The context in which those remarks were made involved a question as to whether the considerations that could be taken into account by the AAT included a matter which the statute precluded the original decision-maker from taking into account, but which another statutory provision indicated might be taken into account by a tribunal. The court determined, as a matter of construction of the relevant statutes, that the AAT’s considerations were confined in the same manner that the original decision-maker’s were. 72. Frugtniet illustrates that the question is one of statutory construction. In the present case, the question is whether the limitation period in s 35(5) of the COLA applies only to the original decision by the Registrar or whether, in circumstances where the Registrar has made a decision within the relevant period, it continues to apply to the decision of the ACAT under the ACAT Act. 73. There is nothing in any extrinsic materials that would suggest that the legislature had contemplated that the 10-year limitation period would constrain the ACAT in circumstances where the Registrar had made a decision within time. To the extent that there is any indication in the extrinsic materials, they appear to be consistent with a legislative assumption that administrative review would be available and a decision may be amended or substituted notwithstanding the expiry of the limitation period prior to the ACAT decision. That arises from the (admittedly limited) terms of the Explanatory Statement for the Building and Construction Legislation Amendment Bill 2019 (ACT) (at 20) where, having referred to the limitation regime, the Explanatory Statement says: “The decision to make the order remains reviewable.” 74. Assuming for the purposes of the discussion (and contrary to the conclusion I reach below) that the appellant is correct and backdating of orders under s 69 is not available, the application of the 10-year limitation period to decisions of the ACAT where the Registrar’s decision was made within time would give rise to circumstances which would appear to be anomalous. An example is provided by the circumstances of the present case where, notwithstanding that the application for review was made well in advance of the expiry of the limitation period, as a result of interlocutory applications made by one of the parties described earlier in these reasons, the limitation period has expired during the course of the proceedings prior to the ACAT making its decision. 75. The fact that the limitation period ran out prior to the making of the ACAT’s review decision would then have consequences for the scope of the review available. Those consequences might be that the entitlement to review is denied, or it might mean that the power to make a rectification order is denied or qualified. Either way, it would be a significant qualification upon the usual regime under the ACAT Act for merits review. 76. The submissions made on behalf of Mr Jolley sought to confine consideration of this issue to circumstances in which the decision under review is “set aside” (s 68(3)(c)) as distinct from confirmed (s 68(3)(a)) or varied (s 68(3)(b)). As a starting point for his submissions, that was a problematic one in circumstances where the order made on 26 October 2023 was: “The decision of the respondent to issue a rectification order in relation to the applicant is varied by ...”. However, even if the starting point was correct, the question of statutory interpretation must be undertaken in the context of those other alternatives. As pointed out earlier, the appellant appeared to accept that, if the decision of the ACAT was to “confirm” the Registrar’s decision, then that could be done notwithstanding the expiry of the 10-year period. However, upon the appellant’s interpretation of s 69, it is not clear how that could be the case. Given that the appellant’s contention was that the default rule in s 69(2) would not permit an order to take effect as at the date of the Registrar’s decision, the confirmation of the decision under s 68(3)(a) would be, under s 69(2)(a), “taken to be the decision of the decision-maker” and, hence, would amount to the making of a rectification order after the expiry of the 10-year period. 77. It is also clear that variation of the Registrar’s decision can create difficulties either for an applicant for review or the Registrar. On the one hand, a variation may be quite minor, for example, a variation in the date for compliance having regard to the time taken in the administrative review process. On the other hand, a variation may be substantial and similar in effect to the setting aside of a decision and the making of a substitute decision. If the 10-year limitation period applied, then it is hard to see how any variation could be made even if such a variation was appropriate. It is not clear whether the application of the 10-year limitation period would disable the Tribunal from making any change, hence leaving in place the earlier decision, or if some change could be made, where the boundary between an acceptable change and an unacceptable change could be drawn. 78. Finally, in relation to setting aside the decision and making a substitute decision, on Mr Jolley’s interpretation of s 69, any such decision would be a decision which took effect after the limitation period and, hence, could not be made. That would either have the effect of denying the applicant his entitlement to merits review (if it meant that no order could be made) or alternatively denying any effect to the Registrar’s order notwithstanding that it had been made within time (if an order could be made setting aside the Registrar’s decision but no substitute decision made). 79. The effect of each of Mr Jolley’s submissions would be significant and adverse, in uncertain ways, to the regime for merits review. This needs to be considered when determining whether his submissions as to the interpretation of the relationship between s 35(5) of the COLA and the ACAT Act should be accepted. 80. It is also significant, when deciding whether the limitation period in s 35(5) continues to apply even after the Registrar has made a decision within time, to note that other statutory preconditions (such as the giving of notice under s 34 of the Act) are spent when they are complied with by the Registrar and not required to be repeated as part of the ACAT merits review regime. That arises not only from an interpretation of the relationship between s 34, s 35 and s 38, but also from the fact that such a notice would be redundant having regard to the procedural fairness of the procedures adopted by the ACAT. Although the limitation period is not a statutory precondition directly comparable to the notice requirement in s 34, the existence of statutory preconditions which apply to the decision of the Registrar but are not then applicable again when the ACAT is “standing in the shoes” of the Registrar illustrates the possibility that once complied with, a statutory precondition such as the limitation period may not apply again as part of the administrative merits review. 81. The terms of the ACAT Act defining what is involved in administrative merits review by the ACAT are not so clear as to compel an interpretation that applies the 10-year limitation period to decisions made upon an application for review. The very general language of the ACAT Act leaves open an interpretation that preserves the scope of administrative review, where the Registrar has acted within the limitation period, in a way that allows the ACAT to make one of the orders contemplated by s 68(3) without being again constrained by that limitation period. Such an interpretation avoids the significant but uncertain qualifications upon the entitlement to merits review or the power to issue rectification orders outlined above that would exist if the limitation period was applied again. It also appears to be consistent with the assumption upon which the legislature seems to have acted. It is therefore an interpretation that gives effect to the purpose of the legislation, both the COLA and the ACAT Act, more effectively than the interpretation contended for by the appellant. For that reason, it must be adopted under s 139 of the Legislation Act 2001 (ACT). To be specific, where the Registrar has made a rectification order within the time permitted by s 35(5) of the COLA, the power of the ACAT to make one or other of the orders set out in s 68(3) of the ACAT Act is not then qualified by s 35(5). The date of the decision 82. Even assuming, contrary to the above, that the COLA and the ACAT Act should be interpreted so that the limitation period also binds the ACAT in relation to its decision on review even when the Registrar had made a decision within time, s 69 permits the backdating of the ACAT decision to the date of the Registrar’s decision so as to avoid any limitation problem. 83. It is clear that the legislature has departed from the default rule that existed in the predecessor legislation in the Territory, namely s 44(11) of the Administrative Appeals Tribunal Act 1989 (ACT). It also departed from the default rule that was originally articulated in the Bill for the ACAT Act. The reasons for that change are not clear. In particular, it is not clear whether the earlier default rule was seen as creating some difficulty in relation to some aspect of the jurisdiction given to the ACAT by other legislation. 84. However, the significant point is that the default rule is just that, a rule which applies unless the Tribunal otherwise orders. The use of the language “takes effect” is insufficient to justify an interpretation which substantially restricts the generally worded powers of the ACAT to make an order that takes effect at a time appropriate having regard to the nature and consequences of the decision under review. To restrict the section in the manner contended for by the appellant would be to substantially constrain the powers of the ACAT. That is unlikely to have been the legislature’s purpose given that it was establishing a vehicle for administrative review which could be given jurisdiction under a wide variety of Territory statutes. Although the parties did not point to particular Acts apart from the COLA that supported the argument that an inability to backdate orders of the Tribunal so that they corresponded with the date of the original decision would be perceived to be anomalous, it is unlikely to have been the purpose of the legislature to constrain the generally expressed language “unless the tribunal orders otherwise”. 85. For these reasons, the appellant’s submission that s 69(2)(b) only permits the ACAT to make orders that take effect later than the day upon which the Tribunal makes the order cannot be accepted. 86. Further, even if the interpretation adopted above (at [81]) is not correct and the limitation period applies again to the decision of the ACAT, the existence of that limitation period would not be interpreted as qualifying the power in s 69(2)(b) to backdate the decision of the ACAT to the date of the Registrar’s decision. That would allow the ACAT to make a decision on the merits as to the appropriate scope of the rectification order and fulfil its review functions in a manner that was not impeded by the limitation period. In the present case, it would have the effect that, even if the ACAT had proceeded wrongly on the basis that the limitation period could not apply, it would be open to the Supreme Court, fulfilling the role of the appeal tribunal, to backdate the rectification order so that it took effect from the date of the Registrar’s decision if that was appropriate. That would have the effect of avoiding the operation of the limitation period contained within the COLA. The exercise of the discretionary power to make an order in this way would reflect the desirability of preserving the scope of merits review and avoiding outcomes which depend upon the arbitrary application of a limitation period rather than the substantive merits of the matter.

70. In my view, it was quite unfortunate, and somewhat surprising, how little (none

in fact) these detailed comments by Mossop J received in the Application before

me. In my view, many of his Honour’s comments provide not only context but

also quite some guidance to the resolution of the matter currently before the

Tribunal. This is particularly so in the light of his Honour’s comments, set out

below, from [95] in Jolley No.2.

26. From the decision in Jolley No.2, I need only note the following.

27. First, in relation to the first tranche of defects to be [re-considered] by the Court

and the re-exercise of discretion regarding the rectification Order, Mossop J

stated, at [19] – [21] (emphasis added):

19. The passage of time since the building work was carried out and the liquidation of Chase likely means that Mr Jolley must personally bear the entirety of the liability without being able to pursue claims against trade contractors who carried out defective work. However, the findings of the ACAT make it clear that Chase was undertaking rectification works over the years following the issuing of the certificate of occupancy and use issued on 8 August 2013: ACAT [3]-[5]. There is no evidence that Chase took steps to bring proceedings against those responsible for any of the defects then identified. Nor is there evidence that Mr Jolley, the sole director, secretary and shareholder of Chase, was unaware of the defects that had then manifested themselves but remained unresolved. The decision to wind up Chase was made by Mr Jolley, who had access to professional advice as to the prudence of that decision at that time. As the ACAT found: “If he did not seek advice in relation to the company’s and his potential exposure to a rectification order where there were known defects in the Manhattan Apartments when he decided to wind up Chase, he has no one to blame but himself. If he was given incorrect advice, his remedies may lie elsewhere”: ACAT [327]. These facts tend to lessen the significance of the potential inability to now bring proceedings to recover damages from any such third party. 20. Mr Jolley’s lack of awareness of the potential for a rectification order is a matter that can be considered. It, however, is not of great significance in circumstances where the law has been determined to apply, where he appears to have been aware that he was under an obligation to ensure that the building was constructed in accordance with the requirements of the Building Act, and where the rectification order provisions were in force at the relevant time. 21. Consideration of these matters leads me to conclude that, notwithstanding the significant burden that making a rectification order is likely to place upon Mr Jolley, it is appropriate to make such an order.

20. Next I note the concluding comments by Mossop J regarding the specific

rectification Order and matters relating to it at [40] and [41] (emphasis added):

40 Having regard to the findings of fact made by the ACAT and the admissions made by Mr Jolley during the course of his evidence which are recorded in the decision of the ACAT, I consider that it is appropriate as a matter of discretion to make a rectification order that extends to the rectification of the glass balustrades. In reaching that conclusion, I do not consider that the matters identified by Mr Jolley are sufficient to indicate that such an order should not be made. In addition to the matters taken into account in relation to Defects 2 and 6 (set out at [13], [17]-[20] above), I have also considered the following: … (d) The rectification process is likely to cause substantial inconvenience to the unit owners, but that will be the case whoever carries out the rectification work. (e) Chase and Mr Jolley controlled the construction process and the quality assurance processes relating to the selection of materials. The Owners Corporation and unit owners were dependent upon the builder and its nominee to achieve the standards required by the Building Act. (f) The admissions made by Mr Jolley during the course of cross-examination indicate a significant lack of engagement with his duty as a nominee in relation to the supervision of the quality of the materials used in the construction of the balustrades. That conclusion is easier to reach in circumstances where he might have put forward evidence to the ACAT or this court relevant to an assessment of his role and the systems and processes adopted in relation to quality assurance, but did not do so. (g) Although there was no evidence as to the likely cost of replacing the relevant balustrades, it is likely to be substantial. There was, however, no evidence that would suggest that Mr Jolley lacked the ability to pay any such amount or that it would be personally oppressive for him to do so. (h) For the reasons given earlier, I have not concluded that Mr Jolley was not “culpable” in relation to the defective glass. However, I also do not accept the submission by the Registrar that culpability is irrelevant to whether or not to issue a rectification order. Rather, it appears to be a subject matter open to a decision-maker to take into account. 41 Having taken these matters into account, I consider that it is appropriate to make a rectification order that extends to the rectification of the glass balustrades.

29. It remains only to record, as intimated earlier, Mossop J’s important comments at

[95] in Jolley No.2 (emphasis added):

In the circumstances of the present case, the proceedings involved complex contested issues relating to construction defects in a substantial residential development. The principally active parties were Mr Jolley (the former director, secretary and shareholder of the construction company, Chase) on the one hand and the Owners Corporation of the building in which the defects are present on the other. The underlying dispute concerns who will be required to carry out very substantial rectification works in the building. All parties were legally represented and had briefed barristers for the purposes of the proceedings in the ACAT. In addition, two out of the three parties briefed senior counsel for the purposes of the removed proceedings. I accept that the determination of the appeal has involved determination of questions of some significance for the construction industry generally. However, Mr Jolley’s motivation for the making of the application to the ACAT, and the appeal, is to avoid the liability that he would incur pursuant to the rectification order made by the Registrar. I do not accept that the case is appropriately characterised as a test case.

30. The tensions neatly identified by his Honour remain steadfastly in play, namely

the regulator seeking to ensure compliance with the public regulatory regime in

place and to protect owners and occupiers of units in the premises in question, on

the one hand, and on the other, a nominee seeking to raise various and multiple

defences and arguments to diminish if not to extinguish any actual or potential

liability he may face arising from the construction service(s), and the building,

for which he was ultimately, and directly, responsible, either through Chase (in which he was principal shareholder, director and all else as found by the Supreme

Court), and when that company was de-registered by the Applicant, Mr Jolley

became its nominee. Because the corporate structure and the actions of Mr Jolley

in relation to it are clearly outlined in the Supreme Court decisions, and notably

in the 2023 decision of this Tribunal, it is otiose to repeat matters set out there in

detail.

Statutory provisions

31. The statutory detail applicable in this matter was exhaustively set out in Jolley

No.1 relevantly from [29] and following. Again, I assume familiarity with the

terms and detail set out in his Honour’s two decisions involving the same parties

here. That said, for ease of reference, I set out below only those statutory

provisions that are directly in play in the current litigation. Thus, from COLA, I

note the following sections, beginning with s.33A (Rectification orders – exercise 5 of registrar’s powers) as they were set out in Jolley No.1:

33A Rectification orders—exercise of registrar’s powers To remove any doubt, the registrar is not prevented from having a belief on reasonable grounds, or being satisfied, about a matter mentioned in this part in relation to a construction service only because the registrar, the planning and land authority, a certifier or another entity has— (a) given a certificate, or approval under— (i) this Act or an operational Act in relation to the construction service; or (ii) the Planning and Development Act 2007 in relation to the place where, or the territory lease under which, the construction service was provided; or (b) otherwise endorsed the construction service under this Act or an operational Act. 34 Intention to make rectification order (1) This section applies if the registrar believes on reasonable grounds that— (a) a licensee or former licensee (the entity) has provided a construction service otherwise than in accordance with this Act or an operational Act; and (b) it may be appropriate to make a rectification order. Examples of licensee or former licensee

5 See [29] and following in Jolley No.1 1. a licensed builder does building work 2. a drainer who was licensed, does sanitary drainage work while unlicensed 3. a licensed gasfitter does gasfitting work and then becomes unlicensed 4. a licensed plumber, who is the nominee of a licensee that is a corporation, does or supervises plumbing work as the nominee of the licensee Note If deciding under this section whether it may be appropriate to make a rectification order, the registrar must consider the considerations mentioned in s 36. (2) The registrar may give the entity, and the land owner in relation to whose land the construction service was provided, a written notice that— (a) gives details of the rectification order that may be made; and (b) explains why the registrar intends to make the order; and (c) invites submissions about the making of the order within the time stated in the notice that is not less than 5 working days after the day the entity or land owner receives the notice; and (d) states that— (i) the registrar will not make a rectification order if— (A) the registrar is not satisfied it is appropriate to make a rectification order in relation to the entity; or (B) if the registrar accepts a rectification undertaking from the entity—the entity complies with, and does not withdraw, the undertaking; and (ii) if the registrar does not make a rectification order the Territory may authorise someone else to do the things stated in this notice, and the entity will have to pay for the things to be done. (3) A submission mentioned in subsection (2) (c) may include a rectification undertaking in relation to the construction service mentioned in the written notice. 35 When rectification order may be made (1) This section applies if— (a) the registrar has given an entity notice under section 34; and (b) the entity provided the construction service, or part of the construction service, to which the notice relates; and (c) after considering any submissions made within the time mentioned in the notice, the registrar is satisfied— (i) the entity is contravening, or has contravened, this Act or an operational Act; and (ii) it is appropriate to make a rectification order in relation to the entity; and (d) if the registrar has accepted a rectification undertaking from the entity in response to the notice—the entity has failed to comply with, or has withdrawn, the undertaking. Note 1 If deciding under this section whether it is appropriate to make a rectification order, the registrar must consider the considerations mentioned in s 36. Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104). (2) The registrar may make an order under section 38 (Rectification orders) in relation to the entity. (3) If the registrar makes an order under section 38 in relation to an entity, the registrar may also make an order under section 38 in relation to— (a) if the entity is a corporation—a director of the entity; or (b) if the entity is a partnership— (i) a partner of the partnership; or (ii) a director of a corporation that is a partner of the partnership. (4) If the entity has failed to comply with, or has withdrawn, the rectification undertaking, the registrar may make an order under section 38 in relation to the entity without giving the entity another notice under section 34. (5) However, the registrar may only make an order under section 38 in relation to the entity before the latest of the following: (a) if the registrar first became aware of the act that caused the contravention within 6 months before the end of the 10-year period—1 year after the registrar became aware of the act; or (b) if the registrar gave the entity a notice under section 34 before the end of the 10-year period—1 year after the entity was given the notice; or (c) in any other case—the day the 10-year period ends. (6) In this section: 10-year period means the period starting on the later of the following days: (a) the day the act that caused the contravention happened or ended; (b) the day any certificate was issued by the registrar under any of the following provisions of the Building Act 2004 in relation to the building the subject of the construction service: (i) section 69 (Certificates of occupancy); (ii) section 71 (2) (Certificate for building work involving demolition); (iii) section 72 (2) (Certificate for building work involving erection of structure); (iv) section 73 (Certificates of occupancy and use for owner-builders). 36 Considerations for deciding when rectification order appropriate (1) In deciding whether it is, or may be, appropriate to make a rectification order in relation to an entity that is contravening, or has or may have contravened, this Act, the registrar must consider the following: (a) any injury, loss or damage caused, or that could have been caused, by the contravention; (b) if a rectification order is proposed—how the proposed order may affect people affected by the contravention. Examples of effect of contravention, including injury, loss and damage 1. reduction in safety, reliability, durability, soundness, functionality, accessibility, serviceability, service life, usability, usefulness, amenity, aesthetic quality, value or efficiency of thing affected by contravention 2. adverse effect on health of user of thing affected by contravention (2) The registrar may consider anything else that is relevant. (3) However, the registrar need not consider whether the registrar, planning and land authority, a certifier or other entity has— (a) given a certificate, or approval under— (i) this Act or an operational Act in relation to the construction service; or (ii) the Planning and Development Act 2007 in relation to the place where, or the territory lease under which, the construction service was provided; or (b) otherwise endorsed the construction service under this Act or an operational Act. 37 Rectification order inappropriate (1) This section applies if the registrar— (a) has given an entity (other than the land owner) notice under section 34 (Intention to make rectification order); and (b) after considering any submissions made within the time mentioned in the notice, is satisfied that the entity is contravening or has contravened this Act or an operational Act; and (c) is not satisfied that it is appropriate to make a rectification order in relation to the entity, because— (i) the registrar is satisfied on reasonable grounds that the entity is not able to do a thing in the way that would be required by the order; or (ii) of the relationship between the entity and the land owner; and (d) is satisfied that the act that caused the contravention happened, or ended, less than 10 years before the day the Territory proposes to authorise someone under this section. (2) The Territory may, in writing, authorise a licensee to enter the land where the work to which the notice under section 34 related was to be done and— (a) take the action stated in the notice; or (b) start or finish the work stated in the notice. (3) The authorised licensee must— (a) give the owner of the land written notice that the licensee intends to enter the land at least 24 hours before the licensee enters the land; and (b) give a copy of the notice to the entity before entering the land. (4) However, the Territory must not authorise someone until— (a) if the entity applied for review of the decision to authorise a licensee under this section within the period for review (the review period) of the decision allowed under the ACT Civil and Administrative Tribunal Act 2008—the review is finally disposed of; or (b) the review period has ended. (5) The entity is liable for the reasonable cost incurred in doing anything under subsection (2) and the cost is taken to be a debt owing to the Territory. 38 Rectification orders

(1) The registrar may make an order (a rectification order) in relation to an entity requiring the entity— (a) to take stated action to rectify work done as part of a construction service; or (b) to demolish a building or part of a building where a construction service has been provided and provide the construction service under this Act or an operational Act; or (c) to start or finish stated work in relation to which a construction service has been, is being or was proposed to be provided. Example—stated action rectified work must comply with a stated performance requirement of the Building Code of Australia (2) The rectification order may also require the entity to give the registrar written information about a thing required to be done under the order. Examples 1. a structural engineer’s report about whether rectified work complies with relevant structural standards 2. certification from a building certifier that finished work complies with this Act (3) However, a rectification order need not state how a thing required to be done under the order is to be done. Example A rectification order requires an entity to rectify a building so that it complies with a stated performance requirement of the building code. The rectification order need not include details of how the work is to be undertaken or how the building may need to be redesigned or altered to comply with the requirement. (4) Subsection (5) applies if— (a) the order requires the entity to do a thing; and (b) the entity— (i) is not licensed, authorised or qualified to do the thing; or (ii) if a licence, authorisation or qualification is not required to do the thing—does not have appropriate experience and skill to do the thing. (5) The entity must arrange, and pay for, the thing to be done by someone who— (a) is licensed, authorised or qualified to do the thing; or (b) if a licence, authorisation or qualification is not required to do the thing—has appropriate experience and skill to do the thing. Examples 1. A rectification order requires Freddie to take stated action to rectify work he has done. The action includes having to provide written information about whether the rectified work complies with relevant structural standards. Freddie is not a structural engineer so he must arrange, and pay for, a structural engineer to prepare a report about the rectified work. 2. A rectification order requires Jo to finish building a dwelling. Jo is no longer a licensed builder, and she is not able to get a new licence. Jo must arrange, and pay for, a licensed builder to finish building the dwelling. 3. Alex is a licensed plumber who did non-compliant work on a building that caused extensive water leakage. A rectification order requires him to fix the damage caused by the leakage, including replacing render on the building’s exterior, replacing wall linings and insulation in the wall cavity, and repainting walls and replacing carpet in the interior. None of this work requires a licence or other authorisation under ACT law. Alex is able to paint the interior walls to an acceptable standard, but he has never done any of the other kind of work. He must arrange, and pay for, people with appropriate experience and skill to do the rest of the work. (6) The rectification order must state a period within which what is required to be done must be done. (7) The stated period for a rectification order other than an emergency rectification order must not be less than 1 month after the day the rectification order is given to the entity. Note Details of the rectification order must be included in the register (see s 108). (8) A copy of the rectification order must be given to the land owner. ... 40 Rectification order offence (1) A person commits an offence if the person intentionally fails to comply with a rectification order given to the person. Maximum penalty: 2000 penalty units. (2) Each partner commits an offence if— (a) the partnership is given a rectification order; and (b) the partners, or some of them, intentionally fail to comply with the rectification order. Maximum penalty: 2000 penalty units. (3) It is a defence to a prosecution for an offence against subsection (2) if the partner proves— (a) that— (i) the partner did not know about the failure to comply; and (ii) reasonable precautions were taken and appropriate diligence was exercised to avoid the contravention; or (b) that the partner was not in a position to influence the other partners in relation to the failure to comply.

41 Failure to comply with order (1) This section applies if an entity (the ordered entity) in relation to whom a rectification order is made contravenes the rectification order. (2) The Territory may, in writing, authorise a licensee to enter the land where the work to which the rectification order relates is to be done and— (a) take the action stated in the rectification order; or (b) start or finish the work stated in the rectification order. (3) The authorised licensee must— (a) give the owner of the land written notice that the licensee intends to enter the land at least 24 hours before the licensee enters the land; and (b) give a copy of the notice to the ordered entity before entering the land. (4) However, the Territory must not authorise someone until— (a) if the ordered entity applied for review of the decision within the period for review (the review period) of the decision to make the rectification order allowed under the ACT Civil and Administrative Tribunal Act 2008—the review is finally disposed of; or (b) the review period has ended. (5) The ordered entity is liable for the reasonable cost incurred in doing anything under subsection (2) and the cost is taken to be a debt owing to the Territory. Consideration

32. There are two basic arguments advanced by the Applicant here: (a) the first relates

to an alleged issue of retrospectivity; (b) the second relates to the expiration

period under s.35 of COLA, it being said that the relevant 10-year period expired

before the rectification order was made. There was also a suggestion that the

Registrar did not have relevant authority to issue more than one rectification

Order regarding the same construction service or regarding the same alleged

defect. This contention was formally rejected as not being a relevant ground of 6 review sought by the Applicant. For the reasons that follow, I reject both

arguments and grounds advanced by the Applicant.

33. The first and perhaps primary or principal argument propounded by the Applicant

here was that the statutory regime encapsulated in sections 34 and 35 of COLA,

the latter section providing for an additional 12 month limitation period that

operates before the expiration of the usual 10 year period was, in effect and in

reality, retrospective legislation which, thereby, fell foul of the [rebuttable]

presumption against retrospectivity. In this regard the Applicant relied upon

comments by Dixon CJ in Maxwell v Murphy (which I need not set out because 7 they are so well known).

31. More expansively but to the same effect were the detailed observations of French

CJ, Crennan and Kiefel JJ in Australian Education Union v General Manager of 8 Fair Work Australia, where their Honours said, at [30] – [32] (emphasis added):

[30] The preceding observations should not be taken as minimising the importance of the rationale underlying the common law principles of construction. In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations… … [32]… It is sufficient to focus upon the constructional choices which are open on the statute according to established rules of interpretation and to identify those which will mitigate or minimise the effects of the statute, from a date prior to its enactment, upon pre-existing rights and obligations.

32. It is also the case that Courts readily recognise the most basic of realities whereby

all legislation, to various and varying degrees, impinges upon existing rights and

responsibilities. It cannot therefore be said that legislation having this effect is

invariably retrospective because this is what all legislation does. As the learned th author of Statutory Interpretation in Australia (10 edition) remarks (at par.10.9):

6 See Counsel for the Applicant’s comments, among other places, at T 65. 7 Maxwell v Murphy (1957) 96 CLR 261 at 267. 8 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117. “Legislation only operates retrospectively if it provides that rights and obligations 9 are changed with effect prior to the commencement of the legislation.”

33. In the same place, the same author details and discusses multiple decisions that

record changes in legislation that have a retrospective impact upon the litigant or

party involved but which have not been overturned in the Courts. A prominent 10 example of such, and discussed by Pearce, was in Re a Solicitor’s Clerk. This

decision was cited with approval by the Full Federal Court in La Macchia v 11 Minister for Primary Industry. In this latter case, the holder of a fisherman’s

licence was convicted of an offence which, at the time of conviction, could not

result in the cancellation of his licence. The Act in question was subsequently

amended to permit cancellation for conviction. The Full Court upheld the validity

of the cancellation based on conviction that had taken place before the Act was

amended.

34. Respectfully, the retrospectivity argument advanced here is something of a “red

herring”, for the following reasons.

35. First, in addition to the remarks relied upon by the Applicant from the High Court

in Maxwell v Murphy, it is important also to record some rather more recent

comments by the High Court in Stephens v The Queen, at [33] and [34] (internal 12 citations omitted; emphasis added):

[33] Shorn of difficult-to-draw distinctions and difficult-to-apply nomenclature, the underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations. As H L A Hart explained, "the reason for regarding retrospective law-making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts". The reasonable expectations of the public give rise to a presumption against interpreting the enactments of Parliament in a manner "that would conflict with recognized principles that Parliament would be prima facie expected to respect". In this context, what is a "reasonable expectation" will necessarily be informed by

9 th Statutory Interpretation in Australia (10 edition) (D. Pearce) (Sydney: LexisNexis, 2024). 10 [1957] 1 WLR 1219. 11 La Macchia v Minister for Primary Industry (1986) 72 ALR 23. 12 Stephens v The Queen (2022) 273 CLR 635. fundamental principles of criminal law, the accusatorial process, and the law in force at the relevant time. [34] The force of this presumption may depend upon the circumstances: "[t]he inhibition of the rule is a matter of degree, and must vary secundum materiam [according to the circumstances]". The more fundamental the rights, and the greater the extent to which they would be infringed by a retrospective or retroactive law, the less likely it is that such an intention will be ascribed to Parliament. Conversely, the less a provision would defeat reasonable expectations, and the less injustice it would cause, the less force there will be in the presumption against retrospective operation. Thus, the force of the presumption is reduced where the "wrongful nature of the conduct ought to have been apparent to those who engaged in it". And the presumption will often have little or no force in relation to future trials where the law affects rights and interests only slightly and indirectly, such as by the common iterative process of adjusting legal rules of evidence or procedure in the conduct of trials.

36. As Mossop J noted in his decisions in February and August 2025, the Applicant

well knew the issues relating to various defects in the building for which he was

responsible to ensure compliance with the relevant building code. His knowledge

was both ongoing and arose quite some time ago. This is also to say that he has

never been caught by surprise regarding the need to ensure compliance with the

relevant code and to ensure, in particular, due and proper compliance regarding

the safety of the building for owners and occupiers, as well as members of the

general public who would usually be expected to visit friends and family in

residence.

37. Just so here. In the light of the High Court’s comments in Stephens v The Queen,

the “force of the presumption [against retrospectivity here] is reduced where the

wrongful conduct ought to have been [and was] apparent to those who engaged

in it.”

38. Secondly, Herzfeld and Prince note in their exhaustive tome on Interpretation

(Third Edition) at [9.570], with copious authorities in support, that a law is not 13 retrospective simply because it attaches new consequences to past events. It is

unnecessary to cite the authorities relied upon because (a) some have been

13 P. Herzfeld & T. Prince, Interpretation (Third Edition) (Sydney: Lawbook Company, 2024). referenced already (e.g. La Macchia v Minister for Primary Industry), and (b)

they are readily accessible in the text referred to.

39. Thirdly, in the current circumstances, all that occurred by operation of

sections.35(5) and (6), was to extend the limitation period by 12 months, but only

in circumstances where other provisions of COLA were complied with, notably th the giving of relevant notice under s.34, which took place on 8 August 2023.

The giving of relevant notice was within the 10-year period in any event. Further, th the actual rectification order issued on 7 August 2024, which was still within the

statutory limitation period. All of this took place in circumstances where, as noted

by Mossop J in Jolley No.2, (a) the litigation between the parties was ongoing

over many years (see his Honour’s shorthand reference, noted above, to the

“pendency of the litigation”), (b) in consequence of the focus upon other matters,

time obviously slipped by, so to speak, and (c) both parties were well aware, not

least in light of the multiple reports prepared by each party regarding various

defects, that there were ongoing defects in and with the construction of the

building/construction service. To put it a tad colloquially if not somewhat in the

vernacular, and with no disrespect to either party, given the very long, protracted

litigious history, it would be a tad “too cute” to claim at the end of the hunt, so to

speak, that there was/is a limitation period when the litigious clock itself was

rather being “run down” along the way while other matters were disputed in

different fora.

40. Fourthly, in my view, the decision of this Tribunal in Meier v Construction

Occupations Registrar (Administrative Review) is directly on point with the 14 current matter in relation to the extension of time issue. I accept the comments

by the Tribunal in that decision, at [53] and [54], regarding the operation of the

extended limitation period in sections.35(5) & (6) of COLA. Accepting the

different circumstances in the later case of Cousins, it is still somewhat surprising

that Cousins did not refer to either Meier, or to the High Court’s most recent

qualifying comments regarding retrospectivity in Stephens v The Queen.

14 Meier v Construction Occupations Registrar (Administrative Review) [2023] ACAT 47.

41. Finally, respectfully, the Applicant’s characterisation of the issues for

determination in this matter are somewhat awry. In my terms, that

characterisation related, in effect, to the Applicant being hardly done by, to speak

somewhat colloquially, in organising his affairs on the basis that the limitation

period as it stood in 2012 was his ultimate protection, so to speak, from any

further or future claims by the Respondent. This was couched further in terms of

an “accrued right”, namely, to be protected against future claims, by virtue of the

limitation period then in place. In my view, at its highest, “accrued right” is a

singularly inapt term in the circumstances here. If there was any “right”, at its

highest it was an inchoate right that could not arise until after the relevant

limitation period expired. More accurately, in my view, it was less a “right” and

more a legislated protection in certain and constrained circumstances, which must

also and always be viewed in the context of the authorities to which I have

referred, perhaps most particularly the High Court’s comments in Stephens v The

Queen. Curiously, perhaps, neither side referred to the detailed discussion in this

very recent High Court decision regarding so-called retrospective legislation.

42. In short, I accept the submissions on behalf of the Respondent regarding the first

of the agreed issues to be determined. That response (noted earlier in these

reasons) stated: “Retrospectivity does not arise [here] as the Building and

Construction Amendment Act 2019 commenced after notification. COLA (R63)

applied to the making of [of] the Order, subject only to s.84 Legislation Act 2001.

The Applicant did not have any accrued right or immunity.”

Conclusion & disposition

43. Summarised, these reasons record that, especially but not only because of the

High Court’s comments in Stephens, but also in the light of the Full Federal

Court’s decision in La Macchia, as well as the articulation of principle by both

Pearce and Herzfeld in their respective texts on interpretation set out above, I

reject the Applicant’s arguments that the amendment(s) to COLA in relation to

extending the limitation period fall foul of the rebuttable presumption against

retrospectivity. It follows, for the reasons above, that the relevant notice and

rectification order were made within time, and therefore, the rectification order

was “licit” and regular. Further, the factual and discretionary matters outlined by Mossop J in his two decisions in Jolley No.1 and No.2, and the considerations set

out above regarding the longstanding knowledge of the Applicant of the relevant

defects, all point to the making of the rectification order as sought by the

Respondent regulator.

44. In addition to the matters already canvassed above, the characterisation of COLA

(R63) and effectively the protection required for the Applicant ignores the over-

arching nature of the regulatory regime under COLA to protect

consumer/purchasers among the general public, and to ensure there is proper

accountability for builders and others who provide a “construction service” under

that Act. The Applicant’s characterisation also ignores the reality of the protracted

and diverse litigation where, as Mossop J noted in Jolley No.2 at [95], the

Applicant’s object has been to limit and/or to avoid his liability.

45. In a similar vein, the original contracting company, “Chase”, was the corporate

vehicle of and for the Applicant to undertake the building project that came to be

known as Manhattan on the Park. When the Applicant determined that it should

be de-registered, it was all at his behest, as noted in the 2023 decision of the

Tribunal, and which was also noted in the Supreme Court decisions referred to.

When the Applicant became the nominee of Chase, he remained the guiding and

controlling figure, in every relevant respect, for the construction, completion and

compliance of the construction service and the project overall. It was his

responsibility, from first to last, to ensure that there was proper and complete

compliance with the relevant building codes. As he was entitled to do, on a regular

basis, he has chosen to undertake various and regular challenges to each of the

attempts by the Respondent regulator to ensure that his responsibilities to the

consuming public were (and are) properly met.

46. For completeness, in my view, it would be utterly anomalous if the fire safety

works were confined to a very small number of units in the building as proposed

by the Applicant. To do so would render these proceedings effectively otiose.

Moreover, as Mossop J found (noted above), the Applicant was well aware of

multiple and ongoing defects in the building in question. He cannot contend, in

any relevant respect, that it is now, or at any other time, somehow “unfair” that

he should be responsible for having to rectify defects in a building for which he was responsible for ensuring it complied with the Building Code of Australia.

The rectification order that must issue is to include all units affected in the

building.

47. For the reasons given here, and also noting that I prefer and accept the

submissions of the Respondent, the original decision must be varied, as sought

by the Respondent. Given that the parties had (a) provided an agreed list of 18

areas of defects regarding fire safety works that were in breach of the Building

Act and Building Code of Australia in force at the relevant time, and (b) each

party also provided draft rectification orders, within 28 days, the parties are to

provide an agreed form of rectification order, which properly and reasonably

takes account of time limits and other matters that have arisen during the

“pendency of the litigation.” Once agreed, the Tribunal can make that

rectification order in Chambers.

48. If, for any appropriate reason, agreement cannot be reached, each party is to file

submissions of no more than 3 pages, and the matter is to be listed before a

Registrar of the Tribunal to determine the proper form of the order. In default,

one might reasonably expect that the form of the order would usually follow that

which is sought by the regulator.

……………………….. Senior Member Dr W J Neville

Date(s) of hearing 8-10 April, 7-8 July 2025

Counsel for the Applicant: Mr O Bellhouse-Smith, Wardell Chambers

Solicitors for the Applicant: Mills Oakley

Counsel for the Respondent: Mr N Oram, Key Chambers

Solicitors for the Respondent: ACT Government Solicitor Amendments

The decision dated 12 November 2025 is corrected as follows:

(a) The title of the decision is Jolley v Construction Occupations Registrar

[2025] ACAT 85, removing the reference to “no 5”.

(b) On page 35, Mr Bellhouse-Smith is to be referred to as “Counsel for the

Applicant” instead of “Solicitors for the Applicant”.

(c) On page 35, insert “Mills Oakley” as “Solicitors for the Applicant”.