Koundouris v Construction Occupations Registrar [2014] ACTSC 68

2. The Construction Occupations Registrar has brought an interlocutory application seeking to have the proceedings dismissed. Although the application, on its face, identifies rule 1147(2)(c) of the Court Procedures Rules 2006 (ACT) as being the basis for the application, that is a provision relating to summary judgment for a defendant and is not appropriate for an application of this type.

3. Ultimately the application proceeded on the basis that it was an application under rule 3566 and section 8(2) of the Judicial Review Act.

1. Judicial review - power of the court to stay or dismiss applications in certain circumstances

(1) The court may, by order, stay or dismiss a judicial review application, or a claim for relief in a judicial review application, if the court considers that -

(i) for the proceeding in relation to the application or claim to be continued; or

(ii) to grant the application or claim (including, for an application for a statutory order of review, because the Judicial Review Act, section 8 (2) (b) (Effect of Act on other rights) applies); or

(c) no reasonable basis for the application or claim is disclosed; or

(d) the application or claim is frivolous or vexatious; or

(e) the application or claim is an abuse of the court's process.

Note The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents - noncompliance with rules etc) or if it is an abuse of the court's process or is frivolous or vexatious (see r 6142 (Rejecting documents - abuse of process etc)).

(2) A power of the court under this rule may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.

(3) The court may make an order under this rule on application by a party to the proceeding or on its own initiative.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order.

(4) The court may receive evidence on the hearing of an application for an order under this rule.

(1) The rights given by section 5, section 6 and section 7 to a person to seek an order for review -

(a) are additional to the rights of the person to seek a review in another way; and

(b) must be disregarded for the Ombudsman Act 1989, section 6 (6).

(a) the Supreme Court or any other court may, in a proceeding brought otherwise than under this Act, refuse to grant an application for review in relation to a matter if an application for review of that matter has been made to the Supreme Court under section 5, section 6 or section 7; and

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

(i) the applicant has sought a review by a court including the Supreme Court of the matter otherwise than under this Act; or

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

(iii) the matter to which the application relates arises under the Planning and Development Act 2007 or the Heritage Act 2004 and is a matter being reviewed, or for which application has been made for review, under a law other than this Act, whether on the application of the person who has made application to the Supreme Court for review of the matter under this Act or anyone else.

(a) a review by way of reconsideration, rehearing or appeal; and

(c) the making of a prerogative order, declaration or other order.

6. The plaintiff accepts, consistently with the assumption upon which rule 3566 was drafted, that there is an equivalent power in relation to the claim for prerogative relief as exists in relation to the proceedings under the Judicial Review Act. The plaintiff did not contend that the principles to be applied in relation to claims for prerogative relief differed from those to be applied in relation to the Judicial Review Act proceedings.

7. Such an approach has been adopted in relation to relief available under section 39B of the Judiciary Act 1903 (Cth): see CSL Australia Pty Limited v Minister for Infrastructure and Transport (2013) 133 ALD 507 at [28] and in the absence of argument to the contrary I proceed on the basis that the position adopted by the plaintiff is correct.

8. The proceedings are in the Supreme Court. The originating application alleges that the defendant either exceeded or failed to exercise his jurisdiction for the following reasons:

(a) "Section 35(3) of the COLA operated to prevent an order being made under section 38 of the COLA because the acts that were the subject of any alleged contravention were performed and completed more than ten years before the date of the Order and Decision."

(b) "The defendant failed to reach the requisite level of satisfaction in order to be satisfied as to the alleged contraventions of an operational act and as to each of [the] provisions of the Building Code of Australia as referred to in the Order and Decision."

(c) "The defendant misunderstood and misapplied the provisions of the Building Code of Australia as referred to in the Order and Decision because those provisions are silent as to the duration of their applicability following completion of a building and the defendant did not have regard to the passage of time in relation to any provisions referred to and any alleged contravention".

(d) "The defendant failed to provide sufficient particulars in accordance with section 34 of the COLA as to the alleged conduct giving rise to the contravention of an operational act".

(e) "The Order and Decision do not provide sufficient particulars in accordance with section 38 of the COLA as to conduct giving rise to any contravention of an operational act and the Order and Decision do not specify with reasonable certainty or at all the action that is required to ensure compliance."

9. It can be observed at this stage that the ground in paragraph (a) above raises a discrete legal issue as to the operation of section 35 of the COL Act. Ground (b) involves matters which very clearly open up questions of fact based on the material that was before the decision maker. Ground (c) raises a question of interpreting various provisions of the Building Code of Australia. Grounds (d) and (e) raise failures to provide particulars of conduct or remedial actions.

10. There are presently proceedings for review of the defendant's decision on foot in the ACT Civil and Administrative Tribunal ("ACAT"). Those proceedings were commenced on 16 December 2013. An application for a stay of the decision was heard on 19 December 2013 and an undertaking not to enforce the decision against the plaintiff for a specified period was given by the defendant.

11. Also on that day, three individual unit owners were joined as parties to the proceedings. The body corporate of the relevant building was also subsequently joined as a party to the proceedings. A mediation occurred but did not resolve the proceedings. On 21 March 2014, an application for removal of the proceedings into the Supreme Court pursuant to section 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("ACAT Act") brought by the plaintiff was refused by the Tribunal. On that day, the general president of the Tribunal made directions requiring statements of facts and contentions to be filed by the plaintiff and the defendant.

12. The defendant submits that it is appropriate to dismiss the proceedings because the plaintiff has available to it and has exercised its entitlement to full merits review of the defendant's decision in ACAT. The plaintiff submits that the proceedings should not be dismissed because a discrete question of law has the potential, if resolved in the way the plaintiff contends it should be, to completely resolve the dispute between the parties.

13. The plaintiff contends that the making of the decision by the defendant in the present case was precluded by the operation of section 35(3) of the COL Act. That section provides:

(3) However, the registrar may not make an order under section 38 in relation to the entity if a submission is made that satisfies the registrar that the act that caused the contravention happened, or ended, more than 10 years before the day the registrar proposes to make the order.

A builder built a house without a building approval. The registrar is satisfied that the building of the house started 12 years ago and finished 9 years ago. The registrar may make a rectification order in relation to the construction service of building the house.

14. The starting point must be that section 8 of the Judicial Review Act indicates an applicant may rely upon any or all of the available remedies because section 8 makes it clear that the rights given under the Judicial Review Act are: "additional to the rights of the person to seek review in another way".

15. However, recognition must be given to the specific provisions of the Act and the Rules. A similar application was considered by Sidis AJ in Fekete v Constructions Occupation Registrar (2013) ACTSC 45. In that case, her Honour, at paragraphs [9] and [10] summarised the authorities to which she was referred as indicating that the onus was on the defendant to persuade the Court to exercise its discretion under section 8(2)(b) of the Judicial Review Act. As a general rule, matters for which there is adequate provision should be heard in ACAT and hence the question in that case was whether it concerned a matter that properly should be before ACAT. Her Honour added that exceptional circumstances were not required before the Court would embark on the hearing of an application for judicial review where an alternative form of review was available. In that case, her Honour was persuaded that at least two issues in the originating application raised matters of particular significance that:

had potentially far reaching consequences to those engaged generally in the building industry and particularly those responsible for certifying building work and their professional indemnity insurers.

She also identified that there was no significant argument about the facts and that the decision of the Supreme Court on those issues would be determinative of the outcome.

16. In the present case, I am satisfied that I should stay or dismiss the proceedings under rule 3566. My reasons for that conclusion are as follows.

(1) Of fundamental importance is the fact that there is an entitlement to full merits review in ACAT and that entitlement has been exercised by the plaintiff. The ACAT has the power to determine all issues relating to proceedings in a manner which will allow it to find the relevant facts, decide questions of law and cure any of the procedural defects outlined in issues (d) and (e) above.

(2) While on the plaintiff's case the matter can be determined on a question of law, care must be taken in assessing the contention that there is a simple question of law which will resolve the proceedings. As pointed out in the authorities that I summarised in Medici Clinics (Australia) Pty Ltd v Patel (2014) ACTSC 29 at [8]-[17], the long experience of courts indicates that the allure of separate determination of questions is often greater than its ultimate utility. There are a number of particular matters which, in the present case, make me cautious about the submission that there is utility in maintaining the judicial review proceedings in order to determine a construction point relating to section 35(3).

(i) I am not satisfied that the question of law can be determined without the determination of contested questions of fact. While the plaintiff submitted that he was content to deal with the question of law on the basis of the facts to the extent that they were found by the Registrar, I am not confident that the question of law can be dealt with on that basis and there would not be contested facts which needed to be found. The interpretation of, and application of, a provision such as section 35(3) may be significantly influenced by the Court's appreciation, at a relatively fine grained level, of the factual context. The correspondence between the parties that was in evidence gives me no confidence that there could be an agreement as to the relevant facts if the judicial review proceedings continued.

(ii) Unless the question of law is determined completely in favour of the plaintiff, it will not resolve the proceedings and the other issues raised by the plaintiff in his application will need to be determined. If, as the plaintiff contended, the 10 year period ran from the precise moment when some specific item of building work was performed and there was no act on the part of the builder that continued after that work was performed up to the point where it was certified fit for occupation and use, then it is likely that would resolve the matter completely in favour of the plaintiff and would determine the proceedings. However, in the event that the interpretation was not adopted, then that would not necessarily resolve the proceedings in favour of the defendant. Not only would the plaintiff be able to pursue the other issues outlined at (b), (c), (d) and (e) above but whatever interpretation was adopted may or may not give rise to the need to determine other factual issues.

(iii) The question of law itself is not as clear as the plaintiff put in his submissions in that the sub-section relied upon only provides a barrier to the making of a rectification order in circumstances where the registrar is satisfied of the matters referred to in that sub-section. Where the registrar is not so satisfied, then no prohibition appears to arise: see Eastman v Miles [2004] ACTSC 32; (2004) 181 FLR 418. It appears therefore that rather than being a clear jurisdictional threshold, if the prohibition in sub-section (3) is dependent upon the state of satisfaction, then the claim of the plaintiff would most likely need the application to be based on section 6 rather than section 5 of the Judicial Review Act. This does not necessarily present any insuperable barrier but does tend to indicate that the issues thrown up may turn out to be more complicated than the plaintiff's submissions assume.

(iv) In the event that the proceedings in the Supreme Court continued, the means by which the legal issue identified by the plaintiff would be determined would be a separate question determined under rule 1521. Because of the fact the proceedings have been docketed to the master rather than one of the judges of the Court, a decision on a separate question under rule 1521, which is an interlocutory decision, would be subject to an appeal to a single judge and only then to the Court of Appeal. While other judges and the former master have remarked on the difficulties that this creates for litigants and the Court, it remains the law. There is therefore a real prospect that if proceedings were determined in the simple manner for which the plaintiff contends, that would lead to an interlocutory appeal and the fragmentation of the judicial review proceedings.

All of these matters concerning the discrete question of law said by the plaintiff to be a means of resolving the overall dispute mean that the principal utility, so far as the plaintiff's submissions were concerned, is not clearly established.

(3) Counsel for the plaintiff indicated that if proceedings were not stayed then the proceedings in ACAT would be discontinued. Because of the limited nature of the proceedings in the Supreme Court, that would mean that the plaintiff was required to forego any factual contentions that he would have been able to advance in ACAT. For example, he would be required to forego the factual argument that even if the registrar had the power to make the rectification order, he should not have because the problems currently present were the result of faulty maintenance rather than faulty construction. If the plaintiff was, indeed, prepared to forego the factual arguments potentially available to him in ACAT in order to speed up and reduce the cost of resolution of the dispute, then it cannot be said that if the judicial review proceedings were dismissed the ACAT proceedings would necessarily be long and complicated. In the ACAT proceedings, it would be open to the plaintiff to not pursue all possible factual issues and to focus on having limited issues crystallised and determined. If the plaintiff adopted the same position in ACAT that he has indicated he would adopt in the Supreme Court, the ACAT proceedings would necessarily be less complicated than the plaintiff submitted. It would be open to the plaintiff to focus his arguments on the legal issue and have that, and any necessary facts, determined by ACAT so as to determine that issue and then allow it, if necessary, to be tested in the Supreme Court. If on the other hand, the plaintiff does not wish to give up his other factual contentions in the ACAT proceedings, then that merely illustrates that the full form of review involving factual issues in contention is one which has value that goes beyond the scope of the Supreme Court proceedings.

(4) The proceedings in ACAT also involve additional parties, namely owners of units and the unit's corporation. Those parties may participate in the ACAT proceedings with a smaller risk as to costs than if they were to be joined as parties to the judicial review proceedings. There is, in my view, a public interest in permitting interested parties to be heard in relation to decisions such as this with a lower costs exposure than would occur in Supreme Court proceedings. I take into account the interests of those other parties as a relevant factor in determining whether or not the Supreme Court proceedings should be stayed or dismissed.

(5) I accept that there is potential for significant costs to be incurred in the ACAT proceedings. The plaintiff pointed to the inability of the ACAT to conclusively determine questions of law between the parties and the difficulties which may be created as a consequence of the existence of an internal appeal within the Tribunal. I accept that the ACAT, in its administrative review jurisdiction, does not have the capacity to conclusively determine between the parties a question of law in a manner that prevents that decision from being subject to collateral attack. However, decisions of the Tribunal will bind the parties unless set aside on judicial review or appeal. Conclusively binding decisions in the sense referred to may be achieved by means of an appeal at the conclusion of the ACAT proceedings or, alternatively, by way of a referral of a question of law under s 84 of the ACAT Act. Once again, whether or not there is such a referral depends on how the matter proceeds in the Tribunal and, in particular, whether it appears to the Tribunal to be an appropriate way of dealing with the matter having regard to the scope of the matter as illuminated by the process of filing statements of facts and contentions. If it emerges that there is a discrete question of law which can be articulated on the basis of agreed facts or facts found by the Tribunal, then the procedure under s 84 is available.

I also accept that there is potential for an internal appeal within ACAT which may give rise to uncertainty as to its scope and a duplication of time and expense if the parties ultimately need a determination of an identified question of law. However, there is the capacity for parties to agree to removal of the proceedings into the Supreme Court: see s 83, or the appeal president may decide not to hear the appeal: see s 85, giving the appellant an entitlement to appeal to the Supreme Court. Thus, although there is a risk of additional costs being incurred by reason of an internal appeal within ACAT, that will not necessarily be the case.

(6) While the proceedings are likely to involve determination of the scope of section 35(3), that does not appear to me to be an issue of broader significance of the kind referred to by Sidis AJ in Fekete.

(7) Contrary to the submissions of the plaintiff, I am not satisfied that the case of CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) FCAFC 10 is analogous. In that case, the significant factor for Allsop CJ and Mansfield J in permitting the judicial review proceedings to continue was the existence of a question of law which had been previously determined by Robertson J that was at the heart of the decision of the delegate. Because the decision of Robertson J would bind the AAT, there was less utility in the AAT review which would be substantially determined by the decision of Robertson J which CSL contended was wrong. It therefore made the case a more appropriate one to permit judicial review and avoid further AAT proceedings in circumstances where there was a presently binding decision of a single judge: see CSL at [236] and [237].

17. For these reasons, I am satisfied that section 8(2)(b)(ii) applies in that adequate provision is made by the COL Act and the ACAT Act under which the plaintiff is entitled to seek review of the decision of the registrar. I am also satisfied that as a matter of discretion, I should refuse to grant the application for review under the Judicial Review Act. For the same reasons, I am satisfied that it is inappropriate for the prerogative relief proceedings to be continued.

18. As a consequence, I propose to exercise the power under rule 3566. That power is a power to stay or dismiss the proceedings. I propose to exercise the power by dismissing the proceedings. That will make it clear that the proceedings have been finally determined. I do not see any utility in staying, as opposed to dismissing, the proceedings.

19. In relation to costs, the parties accepted that the costs of the interlocutory application would follow the event. I will therefore order the plaintiff pay the costs of the interlocutory application dated 14 March 2014. I will hear the parties as to the costs of the balance of the proceedings. The orders that I propose to make therefore are (1) the proceedings are dismissed, (2) the plaintiff is to pay the defendant's costs of the interlocutory application dated 14 March 2014.

[The parties were heard in relation to costs and the following orders were made].

2. The plaintiff is to pay the defendant's costs of the interlocutory application dated 14 March 2014.

3. The plaintiff is to pay the defendant's costs of the proceedings.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Counsel for the plaintiff: C Erskine SC, K M Katavic

Solicitors for the defendant: ACT Government Solicitor