Ehrke v Australian Building and Construction Commissioner [2020] FCA 267

Ehrke v Australian Building and Construction Commissioner [2020] FCA 267

The Examination Notice was not invalid. The BCI Act and BCI Regulations prescribe the form and content of Form 3 examination notices, leaving no independent requirement that the notice disclose on its face that the Deputy President was entitled to issue it. Although Part 3 of Form 3 required particulars of the suspected conduct and not merely the statutory section, the notice contained sufficient particulars, including the provisions, place, dates, suspected contraveners, affected entity and broad nature of the suspected contraventions, to allow at least a number of obviously relevant questions. Whether any particular question is relevant cannot be determined until it is asked. The...

Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking a Declaration That an Examination Notice Issued Under the Building and Construction Industry (improving Productivity) Act 2016 (cth) Was Invalid and Other Relief / Final Hearing; Application Dismissed
Outcome
Application dismissed; Administrative Appeals Tribunal ceased to be a party.
Legal Topics
['validity of Examination Notice' 'prescribed Form and Content of Examination Notice' 'coercive Statutory Notices' 'relevance of Questions in Examination' 'proper Respondent to Proceeding']
['administrative Law' 'building and Construction Industry Regulation' 'industrial Law'] ['validity of Examination Notice' 'prescribed Form and Content of Examination Notice' 'coercive Statutory Notices' 'relevance of Questions in Examination' 'proper Respondent to Proceeding']

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking a Declaration That an Examination Notice Issued Under the Building and Construction Industry (improving Productivity) Act 2016 (cth) Was Invalid and Other Relief / Final Hearing; Application Dismissed

Legal Issues

  1. 1 ['Whether the Examination Notice was invalid because it failed to disclose whether the investigation was into a matter the Commissioner was entitled to investigate.' 'Whether the Examination Notice was invalid because it did not provide sufficient particulars to allow the applicant to determine whether questions asked at an examination would be relevant to the investigation.' 'Whether the Examination Notice complied with the prescribed Form 3 under the Building and Construction Industry (Improving Productivity) Regulations 2017 (Cth).' 'Whether Part 3 of Form 3 required only identification of the statutory provision suspected to have been contravened or required particulars of the suspected conduct.' 'Whether the Administrative Appeals Tribunal or Deputy President Forgie was the proper respondent in respect of the issue of the Examination Notice.']

Ratio Decidendi

The Examination Notice was not invalid. The BCI Act and BCI Regulations prescribe the form and content of Form 3 examination notices, leaving no independent requirement that the notice disclose on its face that the Deputy President was entitled to issue it. Although Part 3 of Form 3 required particulars of the suspected conduct and not merely the statutory section, the notice contained sufficient particulars, including the provisions, place, dates, suspected contraveners, affected entity and broad nature of the suspected contraventions, to allow at least a number of obviously relevant questions. Whether any particular question is relevant cannot be determined until it is asked. The...

Court Disposition

Application dismissed; Administrative Appeals Tribunal ceased to be a party.

Orders

  • ['The Administrative Appeals Tribunal cease to be a party.' 'The application is dismissed.']