Turner, S.J. v. Wyrdeman, P. [1987] FCA 353

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

No. ACT G 46 of 1987

GENERAL DIVI

JUDGE MAKING DATE _ OF ORDER

WHERE MADE

THE COURT OR

we yeuerv rw

SION

BETWEEN : STEPHEN JOHN TURNER Applicant AND: PETER WYRDEMAN, the Building

Controller appointed under

s.7 of the Building Ordinance 1972 (A.C.T.)

Respondent

MINUTE OF ORDER

ORDER

Neaves J.

10 July 1987

Canberra

DERS THAT:

1.

Pursuant to section 15 of the Administrative

Decisions (Judicial Review) Act 1977 (Cth) the operation of the decision of the respondent

suspending the applicant's builder's licence be stayed until further order on the following conditions -

- the applicant shall furnish to the Building Controller not later than the close of business on Tuesday 14 July 1987 details of all current contracts with the applicant, Sogalo Holdings Pty Ltd or Pool Fab (A.C.T.) for the construction of swimming pools in the Australian Capital Territory specifying the block and section number of the land on which the swimming pool is to b constructed, the date (1f any) up which the plans and specifications f the swimming pool were approved and tkK¢ date of issue of any relevant bur ld ing . uf | permit. Va pee i

eA no t ~' LA

Note:

the applicant shall give to the Building Controller forty-eight hours' notice of the intention to commence work on the construction of any swimming pool in respect of which construction work has not yet commenced.

the applicant shall furnish to the Building Controller, within seven days or the contract being entered into, details as specified above in respect of each new contract entered into by the applicant, Sogalo Holdings Pty Ltd or Pool Fab (A.C.T.) for the construction of a swimming pool in the Australian Capital Territory.

The respondent is to have liberty to apply on forty-eight hours' notice to remove the stay hereby granted in the event of the applicant, Sogalo Pty Limited or Pool Fab (A.C.T.) fa1rling to comply with the conditions referred to or constructing a swimming pool otherwise than in accordance with approved plans and specifications and the relevant building permit.

The costs of the application be reserved.

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) } No. ACT G 46 of 1987 DISTRICT REGISTRY ) ) )

GENERAL DIVISION

BEIWEEN: STEPHEN JOHN TURNER Applicant AND: PETER WYRDEMAN, the Building Controller appointed under s.7 of the Building Ordinance 1972 (A.C.T.)

Respondent

CORAM: Neaves J.

DATE: 10 July 1987

REASONS FOR JUDGMENT

Stephen John Turner ("the applicant") has filed an application in the Court seeking an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision made on 2 July 1987 by the respondent, Peter Wyrdeman, the Building Controller appointed under s.7 of the Building Ordinance 1972 (A.C.T.) ("the Building Ordinance"), suspending the applicant's builder's licence pursuant to sub-s.18(4) of the Building Ordinance. The application at present before the Court is an application, by motion on notice, that the decision to suspend the applicant's builder's licence be stayed until the hearing and determination of the substantive application. The motion

is opposed.

Section 14 provides for four classes of bu2rlder's licences. A Class D licence authorises the person to whom it

1s granted -

"to carry out such specialist building work as is specified by the Building Controller by endorsement on the licence."

"Building work" in relation to a building, means work in connexion with the erection, alteration or demolition of the building. ""Building" includes a structure upon or attached to land. "Structure" includes a swimming pool (sub-s.5(1)). A builder's licence, unless sooner cancelled, remains in

force for twelve months (sub-s.17(7)).

A licensee is not to carry out any building work unless he is the holder of a builder's licence that authorizes hin to carry out that building work

(sub-s.14(7)).

Sub-section 18(1) sets out in nine lettered paragraphs the grounds for the cancellation of a builder's licence. The condition specified in paragraph (d) is as

follows:

"(d) that - (i) the holder of the licence has; or

(ii) the person working under the direction and supervision of the holder of the licence has, with the knowledge of the holder,

contravened or failed to comply with, a provision of this Ordinance;".

Sub-sections (2) - (10) of section 18 should be set out in

full. They provide:

"(2) Where 1t appears to the Building Controller that there exists one or more of the grounds specified in the last preceding sub-section for the cancellation of a builder's licence, the Building Controller may, by notice in writing served on the holder of the licence, require the holder to show cause before the Review Committee why his licence should not be cancelled.

(3) A notice under the last preceding sub-section shall -

(a) contain full particulars of the facts or circumstances on which the Building Controller has formed his opinion that the ground exists or the grounds exist;

(b) specify atime not less than ten days after the date of the service of the notice within which the holder of the licence may give to the Building Controller notice of his intention to show cause before the Review Committee why his licence should not be cancelled.

(4) The Building Controller may, if he considers the circumstances justify him in so doing, suspend a builder's licence, and in that case, the Building Controller shall give notice of the suspension to the holder of the licence in the notice under sub-section (2) of this section.

(5S) Where the holder of a builder's licence on whom a notice under sub-section (2) of this section has been served gives, within the time specified in that notice or within such further time as the Chairman of the Review Committee, on an application made before or after the time so specified, allows, to the Building Controller notice of his intention to show cause why the licence should not be cancelled, the Building Controller shall refer the matter to the Chairman of the Review Committee, who shall fix a time and place for the holding by the Review Committee of

' 4.

an inquiry at which the holder of the licence may show cause.

(6) The Chairman of the Review Committee shall give notice of the time and place fixed for the inquiry to the holder of the licence.

(7) Where the Review Committee 15, after having held an Inquiry under this' section, satisfied that, in relation to the holder of the builder's licence, a ground referred to in sub-section (1) of this section exists, the Review Committee may -

(a) suspend the licence for such period as the Review Committee sees fit;

(b) cancel the licence; or

(c) if the Review Committee is satisfied that, in the circumstances, the licence should not be suspended or cancelled, reprimand the holder of the licence.

(8) Where the holder of a licence on whom a notice under sub-section (2) of this section has been served does not, within the time specified in that notice, give to the Building Controller notice of his intention to show cause why his licence should not be cancelled, the Building Controller may cancel the licence.

(9) A suspension of a builder's licence under sub-section (4) of this section remains in

force -

(a) in a case where the holder of the licence gives notice under sub-section (5) of this section - until the Review Comnittee hears and determines the matter; or

(b) in any other case - until the Building Controller revokes the suspension or cancels the licence.

(10) A builder's licence shall, during the

period for which it is suspended under this section, be deemed not to be in force."

"The Review Committee" means the Building Review Committee

established under s.10(1) of the Ordinance.

Building work 1s not to be commenced or carried out unless a building permit for the work has been granted (sub-s.30(1)(a)). A building permit may not be granted unless plans and specifications in respect of the work have been approved by the Building Controller (sub-s.31(1)). The grant of a building permit 1s subject to the conditions set out 1n s.40. A person is not to occupy or use, or permit another person to occupy or use a building or portion of a building unless' the Building Controller has issued a certificate that that building or that portion of the

building is fit for occupation and use (sub-s.54(1)(a)).

The applicant is the holder of a Builder's Licence Class D (swimming pools only). On 2 July 1987 the Building Controller signed a notice addressed to the applicant in the

following terms:

"TAKE NOTICE that whereas a Class 'D' (swimming pools only) builder's licence and registered as Folio No.2557 was granted to you STEPHEN JOHN TURNER on 23 October 1986 and will expire on 24 October 1987 under Section 16 of the said Ordinance.

Now I, PETER WYRDEMAN, BUILDING CONTROLLER, pursuant to the powers vested in me by Section 18 of the said Ordinance HEREBY REQUIRE YOU TO SHOW

CAUSE BEFORE THE BUILDING REVIEW COMMITTEE WHY YOUR BUILDER'S LICENCE SHOULD NOT BE CANCELLED.

The grounds that are relied on for the cancellation of your builder's licence are set

out in Paragraph 18(1)(d) of the Building Ordinance 1972 and are:

1. That you contravened or failed to comply with a provision of ora requirement made pursuant to the Building Ordinance 1972, namely the provisions of section 30(1)(a).

6.

That you contravened or failed to comply with a provision of ora requirement made pursuant to the Burlding Ordinance 1972, namely the provisions of section 54(1)¢(a).

That a person working under your direction and supervision has, with your knowledge, contravened or failed to comply with a provision of or a requirement made pursuant to the Building Ordinance 1972, mamely the provisions of section 30(1)(a).

That a person working under your direction and supervision has, with your knowledge, contravened or failed to comply with a provision of or a request made pursuant to the Building Ordinance 1972, namely the provisions of section 54(1) (a).

Particulars of the facts and circumstances. on

which I have formed my opinion that these grounds exist are

(a)

(b)

(c)

(d)

(e)

(f)

On or about 22 January 1987 you lodged an application for a building permit for the construction of swimming pools on block 14 section 2 Pialligo.

On or about 22 January 1987 you lodged plans for approval by the SBuilding Controller for the installation of three (3) swimming pools on block 14 section 2 Pialligo.

The Building Controller had not approved any plans for the installation of 3 swimming pools on block 14 section 2 Pialligo, prior to 1 June 1987.

The Building Controller had not granted you a building permit for the anstallation of swimming pools on block 14 section 2 Pialligo, prior to 1 June 1987.

You installed three (3) swimming pools on block 14 section 2 Pialligo between 14 January 1987 and 1 June 1987.

The Building Controller has not issued a Certificate of Fitness for Occupancy and Use in respect of the three (3) swimming pools installed by you on block 14 section 2 Pialligo.

7.

(g) You have filled the swimming pools installed by you on block 14 section 2 Pialligo with water.

and TAKE NOTICE that I HEREBY suspend your builder's licence pursuant to Section 18(4) of the said Ordinance.

If you wish to show cause before the Building Review Committee why your builder's' licence should not be cancelled you are required to notify the Building Controller before 5 pm on 12 July 1987. Failure to do so may result in the cancellation of your licence pursuant to Section 18(8) of the said Ordinance."

The notice was served on the applicant under cover

of a letter dated 2 July 1987 reading as follows:

"Following consideration of your performance as a licensed builder I advise that your Class D (swimming pools only) buirlder's licence and registered No.2557 has been suspended.

I have attached a copy of a Notice under Section 18 of the Building Ordinance served on you today setting out the full particulars of the facts and circumstances on which I have formed my opinion that grounds exist for you to show cause before the Review Committee why your licence should not be cancelled and the suspension of your licence.

The suspension of the licence remains in force until the Review Committee has heard and determined the matter or until the suspension has been revoked.

In the meantime all work undertaken by you on building sites for which you were granted a building permit must cease immediately.

You may respond to me within the time specified in the Notice whether you intend to show cause before the Review Committee alternatively the licence may be cancelled."

On 3 July 1987, pursuant to s.15 of the Judicial

Review Act, I suspended until 4.00 p.m. on 6 July 1987 the

operation of the decision suspending the

applicant's

. 8.

building licence. I also directed that the applicant file and serve not later than 10.00 a.m. on that day an application under the Judic1al Review Act and a notice of motion returnable at 2.15 p.m. on that day for the continuation of the order under s.15 of the Judicial Review Act. The motion, supported by an affidavit of the applicant, came on for hearing at 2.15 p.m. on 6 July 1987. After hearing argument, I reserved my decision and directed that the order made under s.15 of the Judicial Review Act

continue until judgment on the motion was given.

The applicant is a sub-lessee of Urban Constructions Pty. Limited which company is the lessee from the Commonwealth of certain land being Block 14, Section 2, Division of Pialligo in the Australian Capital Territory. He carries on the business of a swimming pool contractor. In pars 5 - 8 inclusive of his affidavit sworn on 6 July 1987 he sets out the circumstances in which he constructed three fibreglass display swimming pools on that land in circumstances where the plans and specifications for those pools had not been approved and no building permit had been issued in respect thereof. I allowed these paragraphs to be read subject to objection. On reflection, they are not admissible on any issue which arises on the motion before

the Court and I reject them.

The applicant further deposes that on 11 June 1987

Urban Constructions Pty Ltd as such lessee was served with a

notice pursuant to s.46(1)(a) of the Building Ordinance

requiring the company to -

"empty the said swimming pools of water as discussed with Mr S. Turner, the occupant of the said site and because of the grave public danger to the general public."

On the afternoon of 12 June 1987, after a _ telephone conversation hetween the applicant's legal adviser and the Building Controller, discussions apparently took place on the site as a result of which agreement was' reached that certain modifications be carried out to the fencing of the pools by 5.00 p.m. on that day. As a result of the work carried out, the Building Controller apparently withdrew the

notice that the pools be emptied of water.

Revised plans and specifications for the construction of the pools and certain additional engineering details were subsequently lodged and the plans and specifications were approved, ex post facto, on 22 June

1987.

The applicant also deposes to the fact that, at no time prior to the service upon him of the notice dated 2 July 1987, had he been made aware that the question of the suspension of his licence was under consideration nor had he been given any opportunity to put his views to the Building Controller on any proposed suspension of his licence. Some

question may arise about this on the substantive hearing

10.

but, for present purposes, I propose to accept that

statement as being accurate.

The applicant asserts that there is a_ serious question to be tried whether he was entitled to be heard before the decision to suspend his licence was taken. I do not understand that to be seriously challenged though, of course, the Building Controller asserts that, reading the provisions of s.18 as a whole and because of the public safety issues involved, the legislation 1s not to be read as

imposing any such requirement.

On the balance of convenience, the applicant says that, to suspend his licence indefinitely, will cause him considerable financial loss and will damage the goodwill of his business. He asserts that the business 1s_ the sole source of income for his family and himself. He says he has contracts on hand for the construction of thirty swimming pools, of which thirteen are partly constructed. He says he has thirteen full time contractors and approximately seven sub-contractors working for him. His current gross weekly income he puts at $60,000 approximately. He further says that, if the licence remains suspended, it will be necessary

to liquidate the business.

When the motion came on for hearing, oral evidence was adduced on behalf of the Building Controller, the general effect of which was that the decision to suspend the

applicant's builder's licence was not based on the matters

. ll.

referred to in the notice dated 2 July 1987, or at least not based solely on those matters. The Building Controller says that he had before him a number of complaints concerning a number of swimming pools constructed in suburban Canberra. He says that an examination of the Building Controller's records led him to conclude that the applicant had, over the

period from October 1984 to June 1987 -

» constructed or partly constructed swimming pools for which no plans and specifications had been approved and no building permit had been issued.

- constructed swimming pools without adequate safety fencing or child-proof self closing and latching pool gates.

- constructed swimming pools in respect of which no certificate that the pool was

fit for occupation and use had been issued.

I am not, of course, in a position to make any finding in relation to these matters at this stage of the proceedings. It may be accepted, however, that the Building Controller has a_ serious concern whether, if the applicant is allowed to continue with his building operations, pools will be constructed which present a safety hazard to members of the

public. Whether that concern is well founded I cannot say.

However, inthe light of the evidence given on behalf of the Bu1rlding Controller, a serious question arises in addition to that concerning the requirements of natural justice. That question is whether it is open to the

Building Controller, having regard to the terms of the

. i2.

notice dated 2 July 1987 and the letter which accompanied 1t, to rely upon matters additional to those concerning the

display swimming pools constructed on the Pialligo land.

The matter was not fully argued and I express no definitive opinion upon it but the prima facie view would seem to be that sub-s.18(4) providing for the suspension of a licence 1s ancillary to the power of cancellation conferred by s.18 read as a whole. The notice of 2 July 1987 would ordinarily be read as limiting its operation qua suspension to the grounds there set out and when one has regard to par.2 of the letter Which accompanied it, any

other conciusion is hardly open.

It 21s mot for the Court to advise the Building Controller as to the course he should follow in order that the real issue between the parties, namely whether the applicant's building licence should be cancelled, should be brought to an early resolution before the Building Review Committee. That could best be achieved, one would think, by withdrawing the notice dated 2 July 1987 and serving on the applicant a notice which accurately reflects the matters on

which the Building Controller wishes to rely.

In the light of these considerations I think the balance of convenience requires that the order made under s.15 of the Judicial Review Act should be continued until

further order. However, 1n view of the public safety

. 13.

factors involved, I propose to make the order conditional

upon the applicant -

furnishing to the Building Controller not later than the close of business on Tuesday 14 July 1987 details of all current contracts with himself, Sogalo Holdings Pty Ltd or Pool Fab (A.C.T.) for the construction of swimming pools in the Australian Capital Territory specifying the block and section number of the land on which the swimming pool 1s to be constructed, the date (if any) upon which the plans and specifications for the swimming pool were approved and the date of issue of any relevant building permit.

. giving to the Building Controller forty-eight hours' notice of the intention to commence work on the construction of any swimming pool in respect of which construction work has not yet commenced.

- furnishing to the Building Controller, within seven days of the contract being entered into, details as specified above 1n respect of each new contract entered into by the applicant, Sogalo Holdings Pty Ltd or Pool Fab (A.C.T.) for the construction of a swimming pool in the Australian Capital Territory.

The respondent is to have liberty to apply on forty-eight hours' notice to remove the suspension hereby granted in the event of the applicant, Sogalo Pty Limited or Pool Fab (A.C.T.) failing to comply with the conditions referred to

or constructing a swimming pool otherwise than in accordance

. 14.

with approved plans and specifications and the relevant

building permit.

The costs of this application are reserved.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the

Honourable Mr Justice Neaves. fy p> Vuelo fourth tu. Associate

Dated: 10 July 1987

Counsel for the applicant : Mr I. Nash Solicitors for the applicant Gallens

Mr C. Erskine Australian Government Solicitor

Counsel for the respondent Solicitor for the respondent

Date of hearing 6 July 1987

oo