Plaintiffs v First Defendant

2 The plaintiffs, Peter and Deborah Berry ("the Proprietors"), are a married couple who reside at 7 Glenbervie Road, Toorak ("the property").

3 Mr Berry is a banker. He and his wife own the property.

4 The first defendant, the Melbourne Magistrates' Court, is joined pursuant to the Rules of Court to represent the Magistrate, Mr Coburn, and in accordance with the usual practice, the Court has informed this Court that the Magistrate will not take part in the proceedings and will abide the decision.

5 The third defendant, Rosenthal Munckton & Shields Pty Ltd, carries on the business of architect ("the Architect").

6 On 16 October 1998, the Proprietors and the Architect entered into an agreement, pursuant to which the Architect was to perform architectural and like services for the Proprietors in respect of alterations and additions to their property.

7 On 27 July 2000, the Architect issued a complaint in the Magistrates' Court at Melbourne against the Proprietors, seeking the sum of $24,109.22 for work and labour done. The complaint did not specify the nature of the work and labour, and the particulars of the claim asserted that the works were done at the request of the Proprietors during the period from October 1998 to February 2000.

8 On 20 October 2000, the Proprietors, who were then acting for themselves, filed a notice of defence. The notice asserted that the Architect breached its contract in that, it failed to deliver the agreed quality of work performance and dedication of key personnel to the work, it breached the terms of "timeliness of the performance, including long periods of inaction and abandonment", it did not complete the work in respect of the stages claimed for payment, and finally, it was seeking payment which was overstated "in that it is calculated based on an excessive and inflated quotation from a potential constructor which was neither accepted nor negotiated by the defendants."

9 This document did not identify the nature of the work either.

10 The Architect's solicitors sought particulars of the defence.

11 On 8 November 2000, the Proprietors responded. The works were identified in the particulars as "architectural services" and included design work, drawings and specifications. The works also included preparation of materials for tender.

12 The Proprietors thereafter retained their present solicitors. On 16 January 2001, their solicitors wrote to the Architect's solicitors, pointing out that it was their opinion that the claim arose from a domestic building dispute within the meaning of the Domestic Building Contracts Act 1995 ("the Act") and by reason of s.57, the Victorian Civil and Administrative Tribunal (V.C.A.T.) had exclusive jurisdiction to deal with the dispute.

13 On 1 March, the Proprietors swore an affidavit in the proceeding in the Magistrates' Court in support of an application to stay the proceeding pursuant to s.57.

14 Exhibited to the affidavit was the letter of engagement between the Architect and Proprietors, dated 16 October 1998. According to the letter, the services to be provided were described as "architectural services" and the Architect proposed that the services would be in three stages, with "fees calculated as a commission at the rate of 12% of the 'total cost of the works'."

15 The services to be provided in each stage were identified as follows -

1. Schematic design and design development.
2. Contract documentation.
3. Contract administration.

16 The schematic design work was the preparation of sketch plans and sketch elevations, including advice on consultant's preliminary work, and submission for a permit. The contract documentation was described as preparation of working drawings and specifications, co-ordination and integration of consultants' works and submission of application for building approval.

17 The contract administration was described as preparation of contract documents, administration and inspection of the works.

18 The evidence revealed that the Proprietors brought the contract to an end in February 2000. At this stage, a builder had not been engaged.

19 In addition to the Proprietors' affidavit, an employee solicitor, Mr Vu Nguyen, swore an affidavit on their behalf. He detailed the discussions that he had had with the Architect's solicitor in relation to the question of the jurisdiction of the court.

20 On 6 March 2001, Mr Colman Moloney, the solicitor acting for the Architect, swore an affidavit in opposition to the application for a stay of the proceeding.

21 In his affidavit, he stated that the Architect carried on the business as an architect, that it was claiming payment of an unpaid bill, and that he had been provided with time schedules for works done which was described as "various design work for the defendants". He went on to opine the view that he had been instructed "that the work done for the defendants was design work as referred to in s.6" of the Act.

22 Attached to the affidavit was an exhibit, which set out time schedules for the services provided. The period in question runs from 27 July 1999 through to 29 February 2000. The schedule set out in some detail the nature of the services provided by the employee. The works commenced with sketch plans and elevations and working drawings. In addition to working drawings, specifications were prepared. The other works included opening and discussing tenders, preparing specifications, having discussions with the tenderers, appointing a builder, revising drawings, discussions with neighbours about works on the boundary, and having discussions with the Proprietors concerning changes and the proposed builder.

23 By 17 February 2000, the works had not in fact commenced. However, all drawings and specifications were complete and the Architect was waiting for the proposed builder to revise the tender and for the Proprietors to accept it. On 22 February 2000, a planning permit was received. On 24 February 2000, the Proprietors terminated the engagement.

24 That was the material before the Court when the matter came on for hearing before the Magistrate on 7 March 2001. The parties were represented by counsel.

25 What was before the Magistrate was an application under s.57 of the Act for a stay of the proceeding, on the basis that the proceeding was a domestic building dispute. The Magistrate considered the pleadings and affidavits, and heard submissions from counsel.

26 Section 57 provides -

"57. Tribunal to be chiefly responsible for resolving domestic building disputes

(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.

(2) The must stay any such action on the application of a party to the action if -

(a) the action could be heard by the Tribunal under this sub-division; and

(b) the Court has not heard any oral evidence concerning the dispute itself."

27 The Tribunal is V.C.A.T. and it can hear any domestic building dispute - see s.53(1).

28 If the action is stayed, then any party may apply to V.C.A.T. for an order with respect to the dispute. If a party does apply to V.C.A.T., the Tribunal must notify the Court "and on such notification the Court must dismiss the action" - see s.57(5).

29 It is noted that the procedure is, that application is made for a stay and provided the Court has not heard any oral evidence concerning the dispute itself and the Tribunal could hear the matter, the Court must stay the proceeding. If any party then makes application to the Tribunal, the Court must, upon being notified, dismiss the action.

30 Section 54 of the Act defines what is a "domestic building dispute". It covers a number of situations. One situation concerns a dispute or claim in relation to design work performed by an Architect.

31 Hence, V.C.A.T. does have jurisdiction to hear a dispute or claim arising between an Architect and building owner in relation to design work.

32 The issue before the learned Magistrate centred on s.6 and its relationship with ss.54 and 57.

33 Section 6 relevantly provides -

"6. Building work to which this Act does not apply

This Act does not apply to the following work -

(a) ...

(e) design work carried out by an Architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson."

34 A comparison of ss.6 and 54 appears to raise a problem because s.6(e) includes the Act, yet a dispute in relation to design work can be heard by V.C.A.T..

35 The submission put to the learned Magistrate by counsel for the Architect was that the Act did not apply because the work which was central to the proceeding in the Magistrates' Court was "design work carried out by an Architect".

36 The Magistrate upheld the submission and held that s.6 applied. This meant that the Act did not apply, and accordingly, there was no basis for a stay under s.57.

"This is an application by the defendant that (sic) proceeding in this Court be stayed pursuant to s.57 of the Domestic Building Contracts Act. The plaintiff is an Architect, the defendant is an owner-builder. Argument has been confined to the question as to whether the plaintiff comes within the exception set out in s.6(e) of the Act.

The arguments have been developed in this way:

Section 54(1) defines what is a domestic building dispute,

'(1) a domestic building dispute is a dispute or claim arising (a) between a building owner and (4) and (sic) Architect in relation to a domestic contract or the carrying out of domestic building work'.

The argument today has been confined to the phrase 'domestic building work'.

'Domestic Building work' is defined in the definition of the section as meaning, 'any work referred to in s.5 that is not excluded from the operation of this Act by s.6'. Section 5(1)(b) says, 'The renovation, alteration, extension, improvement or repair of a home' - much as the situation in this case, as I understand it, and (g) 'the preparation of plans or specifications for the carrying out of works referred to in paragraphs (a) to (f)."

The only evidence before me as to the work carried out (sic) in the affidavit of Mr Moloney in which he says the Architect's work is design work. Section 6 is headed Building Work to which this Act does not apply. Sub-paragraph (e) says, 'Design work carried out by an Architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson'.

The facts are pretty clear, the plaintiff is an . On the evidence before me the plaintiff was engaged in design work and therefore comes within the exception set out in s.6. The application is refused."

38 The Magistrate ordered that the application by the Proprietors for a stay of the proceeding be dismissed and he ordered that the Architect's costs of $538 be paid by the Proprietors.

39 On 10 April 2001, the Proprietors instituted a proceeding in this Court by originating motion, pursuant to Order 56 of the Rules, seeking declaratory relief and an order that the order dismissing the application be set aside or quashed, on the ground that there was an error of law made by the Magistrate.

40 As the application was for a stay of the proceeding, which was dismissed, the order was one made in an interlocutory matter, and accordingly, is not a final order within the meaning of s.109 of the Magistrates' Court Act 1989. It follows that the only avenue open to the Proprietors to contest the decision was by way of Judicial Review pursuant to Order 56 of the Rules.

41 The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.

42 The jurisdiction of the Court to review decisions of inferior courts and tribunals is limited.

43 The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review, the Court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.

44 The judicial review procedure is concerned with the legality of what was done by the Court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.

45 Judicial review is not concerned with whether the decision was fair or correct.

46 Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs, but nevertheless preserves the jurisdiction of the Court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the Court, and it is equally clear that this Court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

47 The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-76. In a joint judgment, the Court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

(Emphasis added).

48 In Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, Lord Brightman at p.1173 said -

"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

49 In R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644, Windeyer J said at p.655 -

"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant is seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition ...

I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts."

(Emphasis added).

50 The High Court in Craig's case, supra, at p.176, identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.

51 This Court is not concerned to examine whether in fact the Magistrate made the right decision, or whether he misapplied some principle of law, but is concerned to ensure that he acted within jurisdiction and that in performing his decision-making process, he complied with the law.

52 The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at pp.176 et seq, where the Court drew a distinction between administrative tribunals and inferior courts. After giving examples of jurisdictional error in an administrative tribunal, the Court said at pp.179-180 -

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error."

(Emphases added).

53 It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling in a motion such as the present. The rationale for the supervisory jurisdiction is that inferior courts must, in exercising their decision-making process, act within jurisdiction and in accordance with the law and principles of procedural fairness. But the supervisory jurisdiction is not an appeal.

54 Sometimes, there is controversy about what constitutes the record. The Rules do require, as did the common law, the production of the record.

55 The Court dismissed the Proprietors' application for a stay with costs. There is no difficulty in determining what the order is, which is the subject of the Review.

56 The record is comprised by the actual extract from the Court's register disclosing the order made, but it also includes the pleadings and the reasons for the decision, the latter by reason of s.10 of the Administrative Law Act 1974 - see Thompson v Judge Byrne (1998) 2 VR 274 at 280, and RSL v Liquor Licensing Commission [1999] VSCA 37; (1999) 2 VR 203 at 209.

57 Nevertheless, the record may be expanded to include the transcript of the proceedings, if in fact it is incorporated into the record by reference. See Craig's case, supra, at pp.181-82.

58 If an attack is made on the basis that there is an error of law on the face of the record, this Court is in fact restricted to that record, and the decision will only be quashed if it is affected by an error of law which is disclosed by that record.

59 Where the attack is made on grounds other than an error on the face of the record, then the Court can take into account any relevant material placed before it, subject, of course, to rules of procedure and evidence.

60 As the statement by the High Court set out above clearly demonstrates, where the allegation is that there has been a jurisdictional error, in a case where in fact the Court had jurisdiction and was exercising it, it is a difficult task to establish that there was jurisdictional error, even though an error is established in the course of the Court exercising the jurisdiction.

61 Ordinarily, an inferior court has jurisdiction to decide questions of law as well as questions of fact, and if it makes an error in the course of exercising the jurisdiction, it has made an error in matters which it has jurisdiction to determine. It is only where it makes an error with respect to that jurisdiction, that the Court can intervene.

62 The point was emphasised in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348, by Gleeson CJ, Gaudron and Hayne JJ who said at p.1356 -

"To misconceive the role of the Commission under s.170MW of the Act ... does not constitute jurisdictional error on the part of the Full Bench.

There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it 'misunderstood the nature of its jurisdiction' ... or 'misconceived its duty' or 'failed to apply itself to the question which the section of the Act prescribes' ... or 'misunderstood the nature of the opinion which it was to form'. The Full Bench did none of those things."

(Emphases added).

63 In RSL v Liquor Licensing Commission, supra, Phillips JA, at pp.210-211, discussed the nature of jurisdictional error and, after noting that most inferior courts are entrusted by Parliament to decide questions of law, said -

"And so in deciding, even if it goes wrong, it does not stray outside its jurisdiction. If erroneous, its decision may well be open to appeal, but it will not be subject to prerogative relief for want or excess of jurisdiction (even if amenable to such relief if error of law is disclosed on the face of a record)."

(Emphasis added).

64 His Honour, at p.215, summarised the approach when he said -

"Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction."

65 In Craig's case, supra, at p.177, the High Court defined some examples of jurisdictional error when it said -

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or a disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. ... Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. ... Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that the particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."

66 Rule 56.01(4) of the Rules of Court obliges the plaintiff to state the grounds upon which the relief is sought. The originating motion did not comply with the requirement.

67 Mr Strang of counsel, on behalf of the Proprietors, submitted that the Magistrate made two errors of law, namely, that he failed to take into account all the evidence before the Court in making his decision and secondly, that the Magistrate was wrong in law in concluding that s.6 applied to the proceeding and that the errors went to jurisdiction.

68 Further, Mr Strang submitted that there was an error on the face of the record, in that the particulars of the defence as part of the record revealed that the complaints of the Proprietors were not solely "design work".

69 The objects of the Act are set out in s.4 which includes as one of the objects -

"(b) To enable disputes involving domestic building work to be resolved as quickly, as efficiently and as cheaply as is possible having regard to the needs of fairness."

70 In delivering the second reading speech, the AttorneyGeneral, the Honourable Mrs Wade, in referring to s.57 of the Act, said this -

"The public policy rationale for this proposal is the intention to provide a single, inexpensive, time efficient and expert forum for the resolution of domestic building disputes. Domestic building disputes are a special category of dispute where timeliness of resolution is critical, and where less formal procedures are more likely to reach the heart of the matter than the full panoply of the law. Therefore, a party to the dispute should be able to have the option of taking advantage of the benefits offered by the Tribunal if the matter is brought before the courts for resolution."

71 It is significant that s.57 only applies if a party seeks to make application for a stay. A Court may hear a "domestic building dispute", but its jurisdiction may be ousted.

72 If the party is successful in obtaining a stay, the jurisdiction of the Magistrates' Court is not ousted. The jurisdiction only, ceases if, after a stay has been granted, any party to the action applies to the Tribunal for an order with respect to the dispute upon which the action was based. If that happens, the Tribunal must notify the Court, which must then dismiss the action. At that point in time, the jurisdiction of the Court to deal with that domestic building dispute ceases.

73 Section 5 of the Act sets out what type of work is covered by the Act. The Act relates to the erection or construction of a home, any associated work, the renovation, alteration, extension et cetera of a home, work such as landscaping, paving and surrounding works, demolition or removal of a home, any work associated with construction in which a building permit is required, any site work, and the preparation of plans or specifications for carrying out the work.

74 "Home" means any residential premises or any premises used as residential premises, but does not include certain residential areas which are set out in s.3.

75 However, Parliament intended that the Act should not apply to some work, which may be work involved in construction of residential premises.

76 The work to which the Act does not apply is specified in s.6.

77 Section 6(e) excludes "design work carried out by an ". The Act does not define the phrase.

78 It then becomes a question of what Parliament intended by that phrase. Unfortunately, that question is not easily answered because of the provisions of s.54 which define what is meant by "a domestic building dispute". The difficulty comes about because a domestic building dispute can arise out of design work carried out by an . This dispute can be heard by V.C.A.T.

(1) A 'domestic building dispute' is a dispute or claim arising -

(a) ...

(b) ...

(c) between a building owner or a builder and -

(i) an architect; or

(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson -

in relation to any design work carried out by the architect or building practitioner in respect of domestic building work."

(Emphasis added).

80 As "domestic building work" is work referred to in s.5 that is not excluded by s.6 from the operation of the Act (see s.3), there appears to be a direct contradiction between the provisions of s.6(e) and s.54(1)(c). How can they be reconciled? In seeking to answer the question, it is necessary to confine the deliberation to the issue before the Magistrate.

81 In the present matter, the first issue was whether the Act applied.

82 Counsel for the Proprietors sought to confine the phrase "design work" to a plan or scheme, or the preliminary conception of an idea which results in a preliminary sketch for the work or a part thereof. Counsel for the Architect submitted that the phrase "design work" not only covered the matters referred to by counsel for the Proprietors, but also covered other work, which is included in the definition in the Shorter Oxford English Dictionary to cover a preliminary sketch, and to make plans and drawings necessary for construction of a building.

83 In my opinion, there is no reason to limit the phrase "design work". There is no warrant to confine the word to preliminary sketches or schematic drawings and in my opinion, "design work" covers not only preliminary sketches and plans but also plans and drawings prepared and necessary for the construction of the building works in question, and any work incidental thereto. It would also cover the preparation of specifications for such work.

84 The question for the learned Magistrate was to decide whether the work, which was the subject of the dispute or claim by the Architect, was design work, and if, on the material placed before the Court, it answered that description, the Act did not apply and the Court did not have power under s.57 to stay the proceeding.

85 The Magistrate was exercising his jurisdiction when considering the question.

86 The record comprised the reasons, the pleadings, the request for further particulars, the further and better particulars, and the extract from the Court Register. In my opinion, there is no error on the face of the record of the Magistrates' Court. The record shows a dispute, that the Magistrate considered the issue before him and made a decision which he was obliged to do in the exercise of the Court's jurisdiction. Nothing on the face of the record reveals an error of law. The Magistrate considered the evidence and made a decision which was open to him on the record.

87 Application was made to the Magistrate for a stay pursuant to s.57. The Magistrate had jurisdiction to consider the application. He posed the question whether s.6(e) applied, considered the facts, and concluded that it did. What he did was within jurisdiction and in the exercise of that jurisdiction. Parliament entrusted the Magistrate to make the decision, which was a mixed question of law and fact. On no view did the Magistrate misconceive the Court's role in considering and determining the issue. He applied his jurisdiction and addressed the question before the Court. He did not misunderstand the nature of the task entrusted to him by Parliament. If the Magistrate did make an error in ruling that s.6(e) included the operation of the Act, it was an error made within jurisdiction. It was not one of those errors which is amenable to a prerogative-type writ. As was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 23; (2001) 75 ALJR 542 at 548:

"Adopting an incorrect interpretation is not always synonymous with jurisdictional error".

Parliament entrusted the Magistrate with the duty to construe the Act and decide whether it applied.

88 In my opinion, the Magistrate did not make any error of law with respect to jurisdiction.

89 The Magistrate was entrusted with the decision. It was open to him to be right. It was open to him to be wrong. In other words, he had the jurisdiction not only to be right but also to be wrong - see R v Governor of Brixton Prison; ex parte Armah (1968) AC 192. Lord Reid in that case, at page 234, said:-

"If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right, he has jurisdiction to go wrong."

(Emphasis added).

The Proprietors have not established jurisdictional error.

90 In my opinion, the Magistrate's decision was correct on the evidence. He considered the evidence before him. He focused upon what Mr Moloney said, which was "that the work was design work". The evidence was a conclusion and in the circumstances, was hearsay and of little weight. However, it was a conclusion that was amply supported by a consideration of the time sheets that were placed before the as to the nature of the work done by the Architect.

91 I described earlier in these reasons, the nature of the work performed by the Architect. The work, in my opinion, fell within a description of "design work by an architect." The Magistrate was entitled to come to that conclusion. In considering the application of s.6, a Court should not weigh the issue in nice scales. The issue should be determined summarily, without hearing any oral evidence of the dispute, on affidavit material and with little argument. The Act must be construed and applied to make it work in a practical fashion, and the issue of the application of s.6 should not be a drawn out contested hearing. If the work, the subject of the proceeding, answers in substance the description of "design work by an architect", then that is the end of the matter. The Act no longer applies and no stay can be granted under s.57. The work does not have to be wholly design work, and the section applies if the majority of the work answers that description.

92 There was no jurisdictional error by the Magistrate. He properly exercised his jurisdiction. It follows that in the exercise of the limited jurisdiction by the Court, the Proprietors have failed to prove jurisdictional error and the proceeding must be dismissed with costs.