| \S FEDERAL COURT OF AUSTRALIA Vonborse..... DISTRICT REGISTRY t . Qresasel .2--- DIVISION | TITLE OF action . 2c 88; parted wwe. Pe, Cabbort, Tee, Warr Pe ee ee eee ee wee bose e errr urveeeseeee neve s see seceesas Date(s) of hearing iy) SA rh, 26 shy . Date judgment delivered. SMM. Counsel and ( LA OS ( ( - Solicitors for ( cence eee e eee een ee te avec ene cteeeeateces cee eeeteers ' ( 6 Mee, BS Wessel OC... sed ath, bon Counsel and Solicitors for NO ON Oe tt te Bd re De ee is a a) egeded, Este Ay Coronet Goan hater, Signed ..c.... se Wheres cet eeceee (Associate) Date: Tarhhs: eee em ee ee wD Oe Fame One (yor: To be despatched to Trincipal Registry, fydney for on-forvarding to lav publishers) ve Man ben Nembangign cose cnccceeereee Coase. (A CATCHWORDS Appeal from refusal of order nisi for writs of Prohibition and Certiorari - Alteration to building made without approval - Failure to comply with restoration notice of Building Controller - Validity of reg.11(1) of Canberra Building Regulations. S.T.A.N. Constructions Pty. Ltd. v. Gilbert Frank Williams No. 14 of 1977 Coram: Smithers, Connor and' Franki JJ. Date: < November 1979 Canberra, IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY F.C. No. 14 of 1977 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: S.T.A.N. CONSTRUCTIONS PTY. LIMITED Appellant AND: GILBERT FRANK WILLIAMS Respondent ORDER JUDGES MAKING ORDER : Smithers, Connor and Franki JJ. DATE OR ORDER : 4 November 1979 WHERE MADE : Canberra. . THE COURT ORDERS THAT: The appeal be dismissed, IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY No. F.C. 14 of 1977 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: S.T.A.N. CONSTRUCTIONS PTy. LTD. Appellant AND: GILBERT FRANK WILLIAMS Respondent Coram: Smithers, Connor and Franki JJ. November 1979 REASONS FOR JUDGMENT SMITHERS J.: In this matter I have had the advantage of reading the Reasons fcr Judgment prepared by my brothers Connor and Franki JJ. I agree with those reasons and have nothing further to add. C costifss Mat Lis Pegs (So Nee. copy of ee Coasont fer Thala mente here ua oP Se. Hote ratte. Mr Duster SruFters Asseccofie! 'a Mets Wess TF REASONS FOR JUDGMENT OF CONNOR AND FRANKI JJ. This is an appeal from the Supreme Court of the Australian Capital Territory in the following circumstances. The appellant, S.T.A.N. Constructions Pty. Limited instituted an appeal from the Building Review Committee constituted under the Building Ordinance 1972 and in that appeal certain facts were agreed which included the following: a) b) qd) The appellant is the owner of certain leasehold land at Red Hill in the Australian Capital Territory and the successor in title of Agua Marga Pty. Limited. A certificate of fitness for occupation and use had been issued on 7 October 1967 under the provisions of the Canberra Building Regulations as then existing. Not later than 21 February 1968 alterations to the building were carried out without approval having been obtained under the Canberra Building Regulations. On or about 4 February 1975 the respondent, as Building Controller under the Building Ordinance 1972, served a notice on the appellant requiring it to restore the building to the condition in which it was when the certificate of fitness for occupation and use was issued. This involved the demolition of or making good of such of the alterations as had not been demolished or made good by 4 February 1975. ' e) The notice had not been complied with. £) The appellant, within the prescribed time, lodged notice of objection to the said notice and the matter came before the Building Review Committee established under the Buildang Ordinance 1972 ' and that Committee dismissed the objection. The learned judge before whom the appeal came ' dismissed it for want of jurisdiction and there is no appeal from that dismissal. However, at the hearing before the learned judge the appellant applied for an order nisi for a writ of certiorari or a writ of prohibition against the respondent, alleging that the notice was invalid. By consent and with the approval of the learned judge the merits of the matter were argued as if an order nisi had been granted, The learned judge refused the application for orders nisi for writs of prohibition and certiorari and ordered the appellant to pay the respondent's taxed costs. The appellant has appealed from those orders to this Court. Senior counsel for the respondent argued that this Court did not have jurisdiction to entertain the appeal for a number of reasons. Because we have reached a clear conclusion that the appeal should fail we do not consider it is necessary to deal in any detail with the arguments presented to us on this i - MY ooenreny a — — vw aspect but we can see no reason why the Court has not jurisdiction to entertain this appeal. Whatever may be the position in relation to an appeal from a refusal by a judge to grant an order nisi, in this case the learned judge did far more than that in that he determined the real issue between the parties, although he did reserve liberty to the respondent to add further argument on the return of any order nisi. The learned judge concluded by refusing the orders nisi sought and ordering the appellant to pay the taxed costs of the respondent. It will be seen therefore that the learned judge made an order as to costs and also went much further than merely refusing an order nisi for the writs sought in the way in which that usually happens in such applications. In any event an appeal from a refusal of an application for an order nisi was heard in Testro Bros. Pty. Limited v. Tait (1963) 109 C.L.R. 353. By a majority of three to two the High Court dismissed the appeal; but all five judges treated the appeal as competent. When this matter was first before us detailed consideration was given to the historical position of the Canberra Building Regulations between the date when they were made under the Building and Services Ordinance 1924 on 16 October 1924 and the date of the Seat of Government Administration Act 1930. A number of difficult questions of law were posed for our consideration but substantially no attention was given to the position after 1930. The Canberra Building Regulations of 1924 were referred to in argument but although regulation 11 was referred to, no detailed examination of it was made by either of the parties. At the end of supplied to us and upon abundantly clear in our be said to provide that the hearing the regulations were examination of regulation 11 it is opinion that that regulation could not any permission was required for the ¥Y Pp alteration of a building. Regulation 11(1), which under the 1924 regulations read, "No builder shall commence any building unless he has obtained a written permit from the proper authority to erect the building." was omitted and in its stead the following regulation was inserted by No.3 of 1965: "A person shall not carry out any work on the construction of, or alteration to, a building unless the proper authority has issued a written permit authorising the erection or alteration of the building by that person." This substituted regulation was made on the same day as ordinance No.19 of 1964, called the Building Ordinance 1964, came into operation. It seemed necessarv that this matter should be re-listed to enable the parties to make any submissions they might wish to make upon the position as it emerged after we had reserved our judgment. This course seemed particularly desirable ey since litigation in respect of what appeared to have been the same alterations to the same building had been heard by the Supreme Court of the Australian Capital Territory in Agua Marga Pty. Limited v. Minister of State for the Interior (1973) 22 F.L.R. 136. It was common ground that in that case the \ learned trial judge had not been referred to the existence of the Federal Capital Commission's Powers Ordinance 1924 and the Building and Services Ordinance 1925 which, when this matter was first argued before us, were said to be relevant for our consideration.' When the matter was re-listed before us counsel for the respondent submitted that regulation 11 of the 1924 regulations was irrelevant to these proceedings, although when the matter was first before us the respondent relied in particular on that regulation. Because of the short notice which we gave the parties , when we re-listcd the matter we invited written submissions which we have now considered. It is clear that the only issue really before us which we need to consider is whether the new regulation 11(1) which was substituted in the Canberra Building Regulations in 1965 was valid. Whatever may be the effect of s.4 of the Building Ordinance 1964, s,22 provides: "The Minister may make regulations not inconsistent with this Ordinance prescribing all matters which are When one examines the provisions of s.22 and ss.8 and 11 of that Ordinance, which specifically refer to the necessity for permits for alterations, it appears perfectly clear that necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance." regulation 11(1) is valid. The notice which was issued on or about 4 February 1975 was issued pursuant to s.46(1)(a) of the Building Ordinance 1972, as amended by No.38 of 1974, which provided: "Where ... building work has been carried out ... before ... the commencement of this Ordinance, without a permit for that building work having been issued under the Canberra Building Regulations ... the Building Controller may serve on the owner of the parcel of land on which the building work has been carried out ... a notice directing him to carry out such building work (including demolition) on that parcel of land asis specified in the notice ...". "Building work" is defined as follows: alterations were carried out no permit had been obtained and "In relation to a building, means work in connection with the erection, alteration or demolition of the building." It is common ground that at the time when the therefore in our opinion the only question for our determination is whether or not the substituted regulation 11(1) of 1965 was valid. In view of what we have said we think that there is no doubt about its validity. w— 7. Therefore we would dismiss this appeal. In view of the unfortunate history of this matter we think it is appropriate to leave each side to pay their own costs of | this appeal. . . , SNK , . : L © eres a aes alt | vee cee Qownet , | \ AsBotints rotedt Atlo7¢ mere Wo. . ee Leortify that thisandthe "=~ ' previaing pages are a true cupy of the ' Peecons for Judgment herein of his Honour Me fustice few' H "CO prer ' "Associate ' bated: TUL T4 ; a rrr nner .