“The Disparity Between an ‘Inquiry’ verses an ‘Offence’: Can the Building Practitioners Board be Time Barred?”
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
Construction industry legal reformers in Victoria have on occasion fielded calls for time limits on Building Practitioners Board Inquiries under section 178 of the Building Act 1993.
It is the writer’s view that this would be an important reform and one that should be made, not least because it would clear up one area of uncertainty, but also because there is no good reason why practitioners should have to face Inquiry allegations years down the track when memories have become diluted and documentation hard to locate. Of course, practitioners also have a legitimate expectation that misconduct proceedings or investigations will be dealt with as expeditiously as possible.
There is no compelling reason to have an ‘open ended’ period within which a Building Practitioners Board (BPB) Inquiry can be initiated, when proceedings for an offence under the Building Act 1993 can only be brought at the Magistrates Court within a period of 3 years from when the act or activity took place.
Those actions or omissions that are stated to be an ‘offence’ under the Building Act 1993 are not confined to just one part of the Act, they are found throughout the legislation, and contain within their sections prescribed maximum penalties (expressed as penalty units).
Much of the uncertainty comes from the fact that many Inquiry proceedings often allege or are based upon something that is an “offence” under the Act, for example, an offence under section 16 of the Act where works are carried out by a builder inconsistently with a building permit. There is an overlap and that has raised the question of whether or not other provisions that relate to offences also relate to Inquiries.
In the case of Rodwell v Building Practitioners Board  VSC 146, the Supreme Court of Victoria had to decide whether an “Inquiry” by the regulatory body against a building practitioner was in fact a proceeding “for an offence” against the Building Act 1993, and was therefore time-barred based on the 3 year limitation in section 241 of the Act.
Section 241(7) of the Act says: “Despite anything in any Act, proceedings for an offence against this Act or the regulations may be commenced within the period of 3 years after the commission of the alleged offence.”
Rodwell concerned a Builder who had received a Notice of Inquiry from the BPB alleging that there had been misconduct due to a breach of section 16 of the Act, namely that works were inconsistent with the building permit.
The Builder applied for a declaration from the Supreme Court that the Notice of Inquiry was invalid and for an order of ‘prohibition’ that restrained the BPB from conducting an Inquiry or taking further steps upon the Notice. His argument for doing this was that the ‘Inquiry’ under section 178 of the Act was not really a ‘disciplinary proceeding’ as purported but was actually a proceeding for an offence against the Act.
Given that the Notice of Inquiry was dated 24 July 2008, this was clearly long after the relevant works (performed between 2002 and 2004) and well outside the 3 year time bar for offence prosecution (as mandated in section 241).
As the Supreme Court noted, there was no dispute that the Inquiry constituted a “proceeding”, rather the critical question was whether or not the Inquiry was a proceeding “for an offence against [the Act]” within the meaning of section 241.
The Supreme Court went back to the principles of basic statutory interpretation, starting with the intention behind the legislation. Justice Hollingworth stated:
“Having regard to the statutory scheme, I am satisfied that the main purpose of such an inquiry is to ensure that registered builders adhere to the high standards expected of them, primarily for the protection of the public and the reputation of the building industry itself.”
The Judge went on to explain that if the BPB finds that a practitioner has failed to comply with the Act or Regulations then it can impose any one or a number of disciplinary sanctions as specified in section 179 of the Act, and that this ‘disciplinary regime’ is “separate from the provisions which create offences which are punishable through prosecution in the courts.”
The upshot of this reasoning was the Court’s finding that the Act envisages that sometimes the same conduct may have both criminal consequences (on the one hand) and disciplinary consequences (on the other). The former involve prosecutions before a court whereby there is a time limit of 3 years, but the disciplinary Inquiries before the BPB have (currently) no such time limit.
By extension, the criminal (or quasi-criminal) proceedings for an offence at court would require the prosecutor to establish guilt beyond reasonable doubt. However, a proceeding before the BPB is disciplinary in nature and the usual misconduct onus of proof of ‘reasonable satisfaction’ is needed (as a lower standard of proof).
All this may seem unfair to building practitioners as it currently stands, and we have seen in practice that sometimes practitioners will be prosecuted for an offence under the Act at the Magistrates Court, and then face a later Inquiry before the BPB based on the same facts!
In Rodwell the Builder argued the unfairness of facing the stigma of an adverse finding at the BPB, where this could be regarded as akin to an adverse finding at the Magistrates Court. To this the Court simply stated that even if this were the consequence, this is what the Act of parliament has allowed for, and this does not seem to be outside the intention of those who drafted the laws.
However, to return to the initial point of this article, if there is going to be a parallel regime of prosecutions for offences, perhaps it is time for an equitable revision of the Act to allow a time limitation for proceedings before the disciplinary body, that is consistent with the time limit imposed for court proceedings.
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© Lovegrove Smith & Cotton 2014