Builders Licensing Board and Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Builders Licensing Board and Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 26 Barwick C.J.

In this matter I have had the advantage of reading and considering the reasons for judgment prepared by my brother Mason. I entirely agree with his conclusion and the reasons he expresses therefor: I find no need to add anything to what he has written.

In my opinion, the appeal should be dismissed.

Stephen J.

I would dismiss this appeal for the reasons stated in the judgment of Mason J.

Mason J.

The respondent was the holder of a builder's licence under the Builders Licensing Act, 1971 N.S.W. ("the Act"). It was served with a notice to show cause pursuant to s. 27(1) of the Act alleging that it had been guilty of improper conduct in carrying out building work. The notice alleged that a complaint had been made to the appellant Board and appointed the place and date for an inquiry to be held pursuant to s. 27. The inquiry commenced before the Chairman of the Board on 25th June 1974. A solicitor appeared for the appellant for the purpose of adducing evidence to establish the grounds alleged against the respondent. Counsel appeared for the respondent to deny the charges and to say that the respondent intended to offer no evidence and that it would rely on its rights of appeal. He then withdrew, leaving the matter to proceed ex parte.

The Board made a determination adverse to the respondent. From this determination an appeal was taken to the District Court pursuant to s. 31 of the Act. There it was submitted for the respondent that notwithstanding its failure to adduce evidence before the Board, it was entitled to call evidence on the appeal and the Board was bound to call evidence in support of the grounds upon which the respondent had been required to show cause. It was argued that if no evidence were called by the Board the respondent was bound to succeed. These propositions were contested by counsel for the Board. In essence the respondent's submission was that the appeal was a hearing de novo. The learned District Court judge acceded to this submission and proceeded no further in the appeal so as to allow the correctness of his ruling to be determined in the Court of Appeal.