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Relevant chronology of the construction at 23B Dumaresq Street

6. Mr Morgan is the sole owner of the property at Dumaresq Street. He is also a licensed builder, and he was the builder responsible for the construction. A development application for the construction was approved in July 2023. By May 2025, Mr Morgan was satisfied the works were complete. Thereafter he made a number of applications to have a certificate of occupancy and use issued by the Registrar: (a) He first applied on 6 May 2025 seeking the issue of a certificate pursuant to s 69(2) of the Building Act 2004 (ACT). His application was refused on 29 October 2025. (b) Mr Morgan applied again on 11 November 2025. This time he asked for a certificate pursuant to s 69(1) of the Building Act. His application was refused on 14 November 2025. (c) Mr Morgan then re-lodged his earlier applications via email on 15 and 18 December 2025 respectively. The Registrar has not responded to either of the re-lodged applications as he does not accept they were validly submitted.

7. On 11 November 2025 Mr Morgan lodged an application seeking ACAT review of the Registrar’s decision to reject his first application for a certificate made pursuant to s 69(2) of the Building Act. He subsequently withdrew that application in the week of 2 March 2026, prior to the hearing on 13 March 2026. Ms Morgan contends the application was withdrawn because the ACAT is not empowered to compel the issuing of a certificate of occupancy. She explains the difficulty in this way: Do we have an alternative? No. This is the only court that can order an occupancy certificate. The tribunal is an endless loop of sending it back to the same delinquent defendant as we’ve done it twice. 6 February he takes six months to the 29 October, not notified till early November. (Transcript, 13 March 2026 at 26.10-14 [sic].)

8. These proceedings seeking prerogative relief were commenced by way of originating application lodged on 23 December 2025.

9. The Registrar seeks summary dismissal, on two grounds, following the withdrawal of ACAT proceedings. The first ground is the absence of an extant decision-making process. The Registrar says the two validly lodged applications have been determined and dismissed. There is no scope for mandamus relief in those circumstances. The second ground is based on this court’s residual discretion to refuse to provide such relief. The Registrar says relief should be refused in circumstances where a merits review process is available via the ACAT. He says it is immaterial whether Mr Morgan chooses to avail himself of the merits review process. The fact of its availability mitigates against the granting of relief of the kind sought in this court.

The pathways to issue of a certificate of occupancy

10. It is important to understand there are a number of different bases upon which a certificate of occupancy may be issued by the Registrar. The process is regulated by s 69 of the Building Act: 69 Certificates of occupancy (1) The construction occupations registrar must issue a certificate of occupancy for building work that involves the erection or alteration of a building if, on application by the owner of the parcel of land where the building work was carried out, the registrar is satisfied that— (a) the building work has been completed in accordance with the prescribed requirements for the building work; and (b) the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work. (2) If building work involving the erection or alteration of a building as completed is not strictly in accordance with the prescribed requirements for the building work but is substantially in accordance with the requirements, the construction occupations registrar may, on application made by the owner of the parcel of land where the building work has been carried out, issue a certificate that the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work. (2A) The owner of a parcel of land where building work was carried out may apply for a certificate under subsection (2B). (2B) The construction occupations registrar may issue a certificate in relation to a building that the building as erected or altered is fit for occupation and use as a building of the class stated in the certificate if— (a) the registrar is not satisfied on reasonable grounds that building work involving the erection or alteration of the building has been completed in accordance, or substantially in accordance, with the prescribed requirements for the building work; and (b) the applicant has completed any certification process prescribed by regulation in relation to the building or building work; and (c) the building, or building work, is not excluded by regulation from this subsection. (2C) A certificate mentioned in subsection (2B) in relation to a building must include a statement to the effect that— (a) the construction occupations registrar is not satisfied on reasonable grounds that building work involving the erection or alteration of the building has been completed in accordance, or substantially in accordance, with the prescribed requirements for the building work; and (b) the giving of the certificate does not affect the liability of anyone to comply with the provisions of a territory law (including this Act) in relation to the building; and (c) part 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates) may not apply to the building work. (3) If part of a building has been erected in accordance with the prescribed requirements so far as they relate to the part of the building, the construction occupations registrar may, on an application made by the owner of a parcel of land where the building is being erected, issue a certificate that the part of the building is fit for occupation and use as a part of a building of the class stated in the approved plans in relation to the building work. (4) A regulation may prescribe— (a) matters that must be considered by the construction occupations registrar in deciding whether a building is fit for occupation and use; and (b) requirements that must be satisfied before a certificate of occupancy may be issued. (Notes omitted.)

11. Section 69 of the Building Act provides three pathways by which a certificate of occupancy may issue: (a) Section 69(1) of the Building Act provides the applicant must satisfy the Registrar the works have been completed in accordance with the prescribed requirements for the works, and the building as erected (or altered) is fit for occupation and use as a building of the class stated in the approved plans. Where those requirements are satisfied the Registrar must issue a certificate. The s 69(1) pathway is the most stringent because it requires full compliance with the applicable requirements. (b) Section 69(2) of the Building Act provides the applicant need only satisfy the Registrar the building works are substantially, as opposed to strictly, in accordance with the requirements. The Registrar has a discretion to issue a certificate where he is satisfied the building works are substantially compliant. (c) Section 69(2B) of the Building Act provides where on reasonable grounds the Registrar is not satisfied the building works are substantially in accordance with the prescribed requirements he may still issue a certificate if the applicant has completed any certification processes prescribed by regulation, and the building works are not expressly excluded by regulation. Section 66 of the Building Act sets out the prescribed requirements. Relevantly from the perspective of the Morgans, where the third pathway is chosen the certificate of occupancy issued by the Registrar must include a statement of the Registrar’s dissatisfaction with the compliance of the building works. As the Registrar concedes, a “2B” certificate is sometimes referred to as a “dirty certificate” and may impact the value of the subject property.

12. The pathway under s 69 of the Building Act that is chosen is at the discretion of the applicant: s 26(2)(b) of the Building Act.

When is a writ of mandamus available?

13. Mandamus is a mechanism for obtaining the enforcement of a public duty by judicial command, where a superior court directs an inferior authority to perform a duty it holds. The duty of the inferior authority may exist under statute or under the common law. Mandamus arises where there is a failure, or a demonstration of unwillingness, by an authority to perform a particular duty. The failure may be actual or overt, or it may be constructive. The distinction between an actual and constructive failure was described in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [41] (Gummow J): With respect to mandamus, there are two species of failure to act or to decide: actual failure and constructive failure. Delay may be such as to show that there has been an abdication or abandonment of the statutory function to proceed in the matter. Further, there will be a constructive failure to exercise jurisdiction where a decision has been given but what purports to be the performance of a duty to decide is vitiated because the decision-maker misconceived its role, misunderstood the nature of its jurisdiction (including the nature of the opinion which it was to form), or failed to apply itself to the questions which the relevant statute prescribed. (Footnotes omitted.)

14. In short, the duty must have been underperformed before mandamus will have work to do – there may be a constructive failure or an actual failure: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242 (Rich, McTiernan and Dixon JJ) and NAIS at [41]. Mandamus may arise in the context of the failure to exercise a duty involving discretion. In those circumstances the court may order the authority to perform its duty by exercising its discretion, but it will not control the manner in which the discretion is exercised: Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53; 60 CLR 714 at 749 (Latham CJ).

15. A decision about whether or not a certificate of occupancy should be issued pursuant to s 69 of the Building Act is clearly a decision of a kind a superior court may compel an authority to perform where there has been an actual or constructive failure to do so.

Is there a decision the authority has underperformed?

16. The Registrar contends there is no extant decision. Each of the two applications lodged and accepted as valid applications were considered by the Registrar and rejected. In relation to the more recently lodged applications, the Registrar argues they were not validly lodged. He therefore argues there is no decision he has failed to perform.

17. In relation to the two rejected applications the Morgans argue they are consequent upon a lack of good faith by the Registrar. In essence the Morgans argue the Registrar has failed to have regard to documents provided in support of the applications and has failed to fairly assess the applications lodged.

18. Some uncertainty arises in relation to the recently lodged applications. There is no substantive evidence before me concerning the circumstances of the lodgement or, whether, and if so, how they were processed by the Registrar. A question arises as to whether they should properly be regarded as applications presently before the Registrar. The initial two applications are in an appropriate form as required to be lodged with the Registrar for review and are therefore in compliance with s 26 of the Building Act.

19. The documentation relied upon by Ms Morgan, and the submissions of the Registrar lead me to conclude the two December applications were simply email communications re-attaching the earlier lodged applications and providing additional documents, either said by the Registrar to be missing at the time of the earlier applications or otherwise provided in further support of them. They were not fresh applications in compliance with the requirements of s 26 of the Building Act.

The power to dismiss an application for prerogative relief

20. Rule 3566 of the Rules empowers the court to stay or dismiss an application for prerogative relief in certain circumstances. Rule 3566 is in the following terms: 3566 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— (a) it would be inappropriate— (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 (b) the application is incompetent; 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. (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. (4) The court may receive evidence on the hearing of an application for an order under this rule. (notes omitted by this court)

21. In assessing whether it is appropriate to dismiss the application, it is necessary to consider each of the grounds relied upon by the Registrar. Is there an extant decision-making process?

22. Dealing first with the two applications the Registrar accepts as lodged in accordance with the requirements of the legislation, but rejected by the Registrar purportedly in accordance with those requirements, there can be no suggestion of an active failure by the Registrar to perform his duty. Each of the applications was explicitly rejected. A constructive failure to perform the duty may still arise where the Registrar misconceived his role, failed to understand the jurisdiction he was called upon to exercise or failed to apply himself to the questions the statute prescribed. The complaints of the Morgans appear directed not to matters falling into any of those categories, but to the way in which the Registrar applied himself to the task. That is, the adequacy or validity of the assessment process itself. Accepting there is often a fine line between a failure of a decision-maker to apply themselves to the task required of them and an erroneous performance of the task, I am not satisfied the criticism in this case rises above the latter. That is, the complaints of the Morgans assert error in the exercise of the duty rather than a failure to acquit the duty. As a consequence, in relation to the first two applications there is no actual or constructive failure to perform a duty and consequently no extant decision-making process.

23. As for the latter two applications: (a) The application on 15 December 2025 is in the form of an email attaching various documents including each of the two previously issued applications, and reads: Hello Construction Occupations Registrar Mr Nick Lheude, Attached are ALL the documents needed for your early issue of Certificate of Occupancy & Use, COU, for long completed home, B15 S26, 23b Dumaresq St DICKSON ACT 2602. All look forward to early receipt of COU Regards Morgan [sic]

(b) Similarly, the application on 18 December annexed the previous application, together with a series of documents identified as allegedly missing when the previous application was lodged.

24. The Registrar contends the latter two applications are not valid. It is not sufficient to simply re-lodge by email a previously lodged application, after it has been rejected, whether that is done with the provision of additional documents or otherwise. Each application must be lodged in compliance with the legislative requirements. That is by completion of the appropriate form under s 151 of the Building Act which is to be signed by the builder and submitted together with documents relied upon in support of the application. For the latter two applications that did not occur. I am not satisfied they constitute valid fresh applications requiring consideration by the Registrar. As a consequence, no active or constructive failure to make a decision is demonstrated in relation to them.

Is there another basis for granting prerogative relief?

25. The Morgans make various allegations of fraud, bad faith and abuse of authority on the part of the Registrar in his handling of the applications. Those allegations are not clearly particularised or articulated. Attempting to distil those assertions down to the essence of the argument made, the Morgans contend the Registrar had, or has, before him all of the documents necessary to satisfy him the construction is compliant, so a certificate of occupancy and use should issue. They say there are errors in his assessment of the documents before him or a failure to consider documents before him. There is, the Morgans argue, no utility in proceeding with an ACAT review because the ACAT is not empowered to issue a certificate of occupancy and use. This court should review the documents produced to the Registrar and direct him to issue a certificate. To the extent the Morgans make allegations of fraud and bad faith, those allegations are not particularised beyond the broad assertions summarised above. They are not of themselves demonstrative of any fraud or bad faith on the part of the Registrar. They may well be illustrative of error on the part of the Registrar in his consideration of the applications. But error of that kind does not, for the reasons already identified, warrant the intervention of this court by way of an order for prerogative relief.

26. With due regard to the oral and written arguments presented by the Morgans, the real issue of contention is whether the construction is substantially compliant with the regulations. Although the second application was made pursuant to s 69(1) of the Building Act, the thrust of the application before me was in arguing the construction was substantially compliant such that a certificate should issue pursuant to s 69(2) of the Building Act. The issuing of a certificate pursuant to that section is a discretionary matter. Mr Morgan by his application seeks not only the discretion be exercised, but asks this court to regulate the manner in which it is exercised, namely, to direct the Registrar to approve the construction and issue a certificate. As the authorities make clear, mandamus will not extend to requiring a primary decision-maker to exercise a discretionary power to deliver a particular result in favour of a claimant: Re Coldham; Ex parte Brideson [1989] HCA 2; 166 CLR 338 at 347-8 (Wilson, Deane and Gaudron JJ).

27. Additionally, as the Registrar contends, it is well-established where the statute provides an alternative means of relief for an aggrieved applicant, the court will be disinclined to intervene by way of judicial review: Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 427 (Walsh J in dissent, but regularly cited with approval).

28. See also Swee Yen Tay v Migration Review Tribunal [2009] FCA 515; 178 FCR 1 at [41] (Besanko J).

29. An alternative means is provided here in the form of a full merits review in the ACAT. Item 7 of Sch 4 of the Building (General) Regulation 2008 (ACT) makes clear any decision under the Building Act is a reviewable decision. An aggrieved claimant confronted with a refusal to issue a certificate of occupancy and use is thus entitled to contest the decision by way of full merits review in the ACAT. Ms Morgan argues the ACAT has no power to direct the issue of a certificate and is confined to remitting the matter to the Registrar for further determination according to law. However, the powers of the ACAT upon conducting a merits review clearly extend beyond the power to remit the matter to the Registrar. Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) provides: 68 Review of decisions (1) This section applies if the tribunal reviews a decision by an entity. (2) The tribunal may exercise any function given by an Act to the entity for making the decision. (3) The tribunal must, by order— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal. (Notes omitted.)

30. Remittal to the decision-maker is only one of the options available to the ACAT upon review. The ACAT power to set aside the decision and make a substitute decision would, in this case, encompass a power to substitute the decision of the Registrar rejecting the application with his own decision granting the application and requiring the issue of a certificate.

31. In circumstances where judicial review proceedings were commenced in relation to a rectification order made by the Registrar, with a merits review process also pending in the ACAT, Master Mossop (as his Honour then was) said in Koundouris v Construction Occupations Registrar [2014] ACTSC 68 at [16(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.

32. I am mindful where the exercise of discretion by this court under r 3566 of the Rules to dismiss an application is sought, the onus rests with the Registrar to persuade me that it is inappropriate to exercise the discretion for judicial review: Fekete v Construction Occupations Registrar [2013] ACTSC 45. The onus is satisfied in this instance where no failure to perform a duty is identified, and a merits review process is available to Mr Morgan. The ACAT review is a process that affords him an opportunity to place evidence before the tribunal that may not have been available to the Registrar at the time of his decision and by which the ACAT is empowered to substitute its own decision for that of the Registrar including a decision directing the issue of a certificate of occupancy and use.

33. For the reasons given above Mr Morgan has not identified a duty that remains to be performed by the Registrar. Of the four applications upon which he places reliance, the first two have been determined and the second two are not validly lodged and cannot be regarded as applications in respect of which the Registrar has a duty to determine. As to the other criticisms raised against the Registrar in the nature of bad faith, they are not particularised in a way that requires further consideration. The Registrar has demonstrated in the absence of an extant decision and in circumstances where the decisions that have been made are prospectively subject to a full merits review in the ACAT, it is appropriate to order the dismissal of the present application.

Orders

34. I make the following orders: (1) The originating application lodged on 23 December 2025 is dismissed. (2) The plaintiff is to pay the costs of the Construction Occupations Registrar.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: