SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Helkeast Pty Ltd v Ruckschloss

Citation: [2017] ACTSC 65

Hearing Date: 2 March 2017

Decision Date: 31 March 2017

Before: Walmsley AJ

Decision: 1. Neither of the Plaintiffs’ claims is a building action pursuant to the Building Act 2004 (ACT).

2. The question of costs is reserved.

3. The matter is adjourned to the Registrar’s list for further directions. .

Catchwords: BUILDING, ENGINEERING AND RELATED CONTRACTS – Damages - Limitation of Actions – Negligence – Misleading and Deceptive – Engineering – Building Work – Construction Work

Legislation Cited: Architects Act 2004 (ACT)

Building Act 1993 (VIC) s 3

Building Act 2004 (ACT) ss 6, 7, 25A, 25B, 25C, 28, 42, 43, 47, 49, 53, 86, 134A, 134B, 140, 142,

Building (General) Regulation 2008 (ACT) reg 33

Construction Occupations (Licensing) Act 2004 (ACT) ss 34, 38

Australian Consumer Law (Act) ss 18, 29

Legislation Act 2001 (ACT)

Cases Cited: Brirek v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165

Diploma Constructions (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28

Texts Cited: Building Code of Australia

Building Bill 2003 Explanatory Statement (ACT)

Parties: Helkeast Pty Ltd (First Plaintiff)

Josip Tokich (Second Plaintiff)

Jan Ruckschloss (Defendant)

Representation: CounselMr P Greenwood SC; Mr J Pappas (First and Second Plaintiff)

Mr S Hausfeld (Defendant)

SolicitorsAulich Civil Law (First and Second Plaintiff)

Moray & Agnew (Defendant)

File Number: SCC 384 of 2016

Walmsley AJ:

The Issue

1. The issue on this application is, in summary, whether preparation of engineering plans is “building work”.

Background

2. By their originating claim the plaintiffs claimed damages from the defendant for negligent preparation of engineering design documentation and for negligently issuing a certificate of structural sufficiency for a building called Soho Apartments, at 10 Burke Street, Kingston, ACT.

3. By his defence of 7 October 2016, the defendant pleaded inter alia that the claim against him was out of time because it is a building action, and s 142 of the Building Act 2004 (ACT) (‘the Act’) bars such actions if they are commenced more than ten years after the date of the certificate of completion for the building. In this case the certificate of completion was issued on 26 May 2006 and the action begun on 18 August 2016, almost three months out of time.

4. On 11 November 2016, the plaintiffs, who say s 142 does not bar their action, applied for an order that the Court decide the limitation issue as a separate question.

5. On 25 November 2016, the Court ordered by consent that it would decide the limitation question separately from and before any other question arose in the proceedings.

6. Each party filed and served written submissions. Both parties asked that the question be decided on the basis of an agreed statement of facts.

7. However on the hearing of the application Mr S Hausfeld, who appeared for the defendant, also read an affidavit of the defendant. Over the objection of Mr P Greenwood SC who, with Mr J Pappas, appeared for the plaintiffs, I allowed the affidavit to be read.

8. In that affidavit the defendant described the work of an engineer, making it plain an engineer’s duties may go beyond the preparation of plans and certificates, and continue throughout the course of a building’s construction.

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The Agreed Facts

9. These are the agreed facts as formulated by the parties:

10. The first plaintiff (‘Helkeast’) is lawfully incorporated and, as such, able to sue in and by its corporate name and style.

11. At all times material to these proceedings Helkeast held a Class A ACT Builder’s Licence, number 19802152.

12. At all times material to these proceedings the second plaintiff (‘Tokich’) held a Class A ACT Builder’s Licence, number 1970121.

13. At all times material to these proceedings Grandeur Constructions Pty Limited, ACN 107 949 351, (‘Grandeur’) was the registered proprietor in leasehold of land at Kingston in the Australian Capital Territory, more particularly described as Block 5, Section 14 Kingston (‘the Land’).

14. On a date prior to 30 April 2004, Grandeur contracted with Helkeast for the construction of a five storey residential development upon the land consisting of 54 Class 2 residential apartments and a Class 7a basement car park, subsequently known and identified as the Soho Apartments (‘the Development’).

15. At all material times thereafter Tokich was and remained the sole nominee of Helkeast pursuant to the provisions of the Act.

16. The architectural drawings and documentation for the Development were prepared by the firm Foskett Architects.

17. The company Sellick Consultants Pty Limited, ACN 105 264 980, (‘Sellick’) was retained to undertake the structural, civil and hydraulic engineering design documentation in relation to the Development.

18. On or about 30 April 2004, Mr Ian Anelzark of BCA Solutions (Australia) Pty Ltd, ACN 085 504 696, (‘BCA’), pursuant to s 28 of the Act, issued a building approval number 041674 for the construction of the Development.

19. On or about 24 September 2004, Mr Ian Anelzark and BCA were retained by Grandeur as a private certifier for the construction of the Development and remained in that role until completion of the construction in or about May of 2006.

20. At all times material to these proceedings and up until 18 July 2010 the defendant was a director of Sellick and provided his services as a practising structural engineer to Sellick, either as a director of that company or as an employee or both.

21. At a time unknown to the plaintiff, but prior to 5 May 2006, the defendant personally, or employees of Sellick under his supervision and direction, designed the structural system for the Development so as to facilitate construction in accordance with the architectural plans in a way or ways which would comply with performance criteria of the Building Code of Australia; the Act and all relevant rules, regulations and other legal requirements (the engineering documentation).

22. The construction of the Development was completed in about May 2006.

23. In or about May 2006, Mr Ian Anelzark, as certifier for the Development, requested the first plaintiff, pursuant to s 47 of the Act, to provide him with a certificate by a professional engineer about the structural sufficiency, soundness and stability of the

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building under construction for the purposes for which the building was to be occupied or used.

24. On or about the 5 of May 2006, the defendant, at the request of Grandeur, provided to the certifier a “Certificate of Structural Sufficiency Design/Inspections” (‘the Certificate’). The certifier conducted his final inspection of the Development on 11 May 2006.

25. The Certificate stated that:

I have designed and inspected the above building consisting of a Basement, Ground Floor, Level 1 to 4 slabs with Lower and Upper Roofs, retaining walls, stairs and façade.  In designing the work, I have paid attention to the structural integrity of the proposed building elements.  The strength and serviceability requirements comply with the Building Code of Australia, AS1170.1, AS1170.2, AS3600, AS2870, AS4100 and AS3700.  I confirm that all load bearing partition walls, columns, beams and floors comply with the fire rating requirements set out in table 3 of BCA.

26. The certifier gave a certificate of completion concerning the Development on 26 May 2006.

27. A Certificate of Occupancy and Use pursuant to the Act was issued on 29 May 2006.

28. On 30 October 2014, Mr David Middlemiss, the Construction Occupations Registrar of the Australian Capital Territory, issued an Emergency Rectification Order pursuant to s 38 of the Construction, Occupations (Licencing) Act 2004 (ACT) (‘Construction Act’) addressed to both the first and second plaintiffs, requiring each of them to undertake rectification work more fully described therein in respect of the Development.

29. The plaintiffs carried out the rectification work described in the Emergency Rectification Order.

30. A Certificate of Occupancy was issued on 18 September 2015 in respect of the works described in the Emergency Rectification Order.

31. On 19 November 2015, Mr Josh Turk, Deputy Construction Occupations Registrar of the Australian Capital Territory, issued a Notice of Intention to Make Rectification Order pursuant to s 34 of the Construction Act addressed to the first and second plaintiffs foreshadowing an intention to require each of them to undertake rectification work more fully described therein in respect of the Development.

32. The question (as formulated by the parties) is:

Is each of the plaintiffs’ claims a ‘building action’ pursuant to the Act?

33. For the reasons which appear below, I have decided the answer to that question is no.

The Pleaded Case

34. In their statement of claim the plaintiffs allege the defendant was negligent in his preparation of the design and documentation of the method of construction for the building, an event which occurred before 5 May 2016. Further, he was negligent in issuing on 5 May 2016 a certificate of Structural Sufficiency.

35. Additionally, by preparing and providing the design documentation and issuing the certificate, the defendant:

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(a) engaged in conduct which was misleading and deceptive, contrary to s 18 of the Australian Consumer Law (ACT)

(b) made false and misleading representations about ‘goods and services”, contrary to s 29 of the said Law.

36. The defendant says all actions are barred by a ten year limitation set by a combination of ss 140 and 142 of the Building Act.

37. Sections 140 and 142 provide relevantly:

140 Meaning of building action for pt 9 In this part:

building action—

(a) means an action (including a counterclaim) for damages for loss or damage in relation to—

(i) defective building work; or

(ii) defective construction work other than building work; or

(iii) the negligent exercise by a licensed construction practitioner of a function as a certifier, or the negligent failure to exercise such a function; but

(b) does not include an action for damages for death or personal injury.

142 Limitation of liability for building actions (1) A building action may not be brought more than 10 years after—

(a) if a certificate of completion of the relevant building work has been given under this Act—the day the certifier gives the certificate; or

(b) if paragraph (a) does not apply, but the certifier has, in the course or on completion of the building work, inspected it—the day when the last inspection took place; or

(c) if neither paragraph (a) nor paragraph (b) applies—the day the relevant building was 1st occupied or used.

(2) Also, a building action in relation to building work may not be brought more than 10 years after—

(a) if an entity has given a notice under section 24 (2) that the entity’s appointment as certifier for the building work has ended—the day the entity gave the notice; or

(b) if an entity’s appointment as certifier for the building work has ended under section 19D and the entity need not give notice under section 24 (2)—the day the entity’s appointment ended.

(3) Subsections (1) and (2) do not apply to a building action if a shorter limitation period applies to the building action under another Territory law.

(4) In this section:

building, in relation to building work that consists of, or includes, the alteration of a building, means the building as altered.

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Defendant’s Submissions

38. Mr Hausfeld submitted I ought have regard to the policy behind the 10 year limitation period as explained in Brirek v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 from [103] especially at [118]. There the Court of Appeal of Victoria (Redlich, Whelan and Santamaria JJA) observed, at [105], that the problem with building actions is that it can be unclear when damage was first sustained, so that where, as with actions in negligence, damage is the gist of the action, it can be hard to tell when the cause of action first arose:

Concealed or latent defects may not be discovered for some time. Further, the loss and damage sustained may not be physical so much as ‘pure economic loss’. Those involved in designing, surveying and building found that their ability to get insurance was affected by the spectre of long-tail claims.

39. Mr Hausfeld submitted each of the actions arising from the “engineering work preparatory and by way of certification for the erection” of the building is a “building action”. The claims are all claims for damages for defective work.

40. These are also actions for damages “in relation to defective building work”. The engineering work done by his client was “building work”.

41. Conceding the meaning to be given to the expression “in relation to” must depend on context, Mr Hausfeld submitted that given where the words sit in Section 140, they must mean all aspects of building, including preparation of engineering drawings, notwithstanding they may have been prepared before any application for building approval was made.

42. He argued that what his client had done was closely connected with the erection of the building. So it was “in relation to” the erection of the building.

43. Mr Hausfeld referred to the dictionary to the Legislation Act 2001 (ACT), which says:

in relation to includes the following:

(a) in respect of;

(b) with respect to;

(c) in connection with;

(d) in regard to;

(e) with reference to;

(f) relating to;

(g) for or with respect to.

44. He also referred to cases which had considered the expression “in relation to”, to support his client’s position.

45. For example in Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 at [217] Kiefel J said:

The expression "in relation to" is of wide and general import and should not be read down in the absence of some compelling reason for doing so… [T]he words are prima facie broad and designed to catch things which have a sufficient nexus

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to the subject. The question of nexus is dependent upon statutory context….[The words] import the existence of a connection or association…

46. Thus the process of construction should begin with examining the context of the provision in question.

47. Mr Hausfeld submitted nothing requires any reading down of s 140. The expression “in relation to” should be construed broadly.

48. Mr Hausfeld submitted his client’s evidence shows an engineer’s work is not done when plans are handed over: there is, he said, contrary to Mr Greenwood’s submissions, much continuing “hands on” building work by an engineer. Further, it can be inferred that much of an engineer’s work is also the work of a certifier, and certifiers are regulated by the Act.

49. He argued that had the drafter intended the Act’s reach to be confined to what happens after plans are approved, the Act would have been said so explicitly.

50. He submitted that since engineering plans are part of what are approved in the approval process, it cannot be said the Act does not regulate engineers.

51. In support of that proposition he referred me to s 47 of the Act under which a certifier may be asked to obtain an engineer’s report.

52. He submitted no strained construction is involved in construing what his client did as “building work.”

53. In the alternative to his argument that the work was building work, Mr Hausfeld submitted it was “construction work”. The term “construction work” is not defined, he noted, but it must mean something other than building work. It is a wide term which accommodates the work process which includes engineering work.

54. So construction work can include preparation of engineering drawings.

55. Designing and construction are not necessarily mutually exclusive concepts, he submitted. As long as “construction” is involved, the Act catches the defendant’s pre construction activities.

56. Mr Hausfeld submitted that all of the claims by the plaintiffs are for damages for allegedly defective building or construction work, and the answer to the question posed should be “yes”.

Plaintiff’s Submissions

57. The plaintiffs submitted that the statutory limitation applies only to a “building action”, and their actions are not such actions. They arise neither from building work nor construction work.

58. If s 142 applies it must be because theirs are actions for “defective building work” or “defective construction work”. Strained meanings of those expressions would be needed for the sections to apply, they argued.

59. Further, the Explanatory Memorandum accompanying the Building Bill shows engineers were not intended to be regulated by the Act. There is also support for that view in the second reading speech.

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60. Analysis of the construction of the Act (which their arguments minutely referred to), and the regulations, shows overwhelmingly the Act was not concerned to regulate work such as engineering drawings created before any application for a building permit has been lodged.

Consideration

61. In Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [381] McHugh, Gummow, Kirby and Hayne JJ said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by a reference to the language of the instrument viewed as a whole. In Commissioner for Railways v Agalianos, Dixon CJ pointed out that the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus the process of construction must always begin by examining the context of the provision that is being construed.

62. Construing the Act with those principles in mind persuades me it was not intended to and does not, regulate engineering designs created before building consent is applied for. Further, I do not consider it regulates the creation of a certificate of the type sued on. In short, neither activity was “building work” or “construction work”, and neither activity was “in relation to” either “building work” or “construction work”.

63. The plaintiffs’ submissions persuade me that support for those propositions comes from an examination of a number of the Act’s provisions. Section 6(2) defines “building work” as:

6 Meaning of building work (1) In this Act:

building work means—

(a) work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated—

(i) by the alteration of a building other than a building excluded under the regulations; or

(ii) by the demolition of a building (but not part of the building); or

(b) work in relation to repairs of a structural nature to a building.

Note Building work, for pt 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates) does not include work in relation to the demolition of a whole building (see s 84).

(2) The regulations may—

(a) exempt a kind of work from the definition of building work; or

(b) include a kind of work in the definition of building work.

64. Regulation 5 of the Building (General) Regulation 2008 extends the meaning of “building work” to include work involved in the removal of asbestos.

65. Section 7(1) defines “building” as follows:

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7 Meaning of building (1) In this Act:

building includes—

(a) a structure on or attached to land; and

(b) an addition to a building; and

(c) a structure attached to a building; and

(d) fixtures; and

(e) part of a building, whether the building is completed or not.

Example of part of building

footings poured for a building that is being built

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, building does not include—

(a) a vehicle or craft that is not used or adapted for use as a class of building or structure classified under the building code; or

(b) a transportable building, mobile home, caravan or similar that—

(i) is not used for long-term habitation; and

(ii) is readily transportable without being disassembled or removed from associated components including a footing, pier, stump, rigid annexe or an attached building or similar; or

(c) if on the ground and not inside a building—paving, a driveway or a road; or

(d) a surface-level carpark that is not inside a building; or

(e) a ground treatment; or

(f) vegetation; or

(g) ground excavations or fillings; or

(h) fittings, other than fittings included in a building—

(i) to make the building comply with the building code; or

(ii) that cause the building to not comply with the building code; or

(i) fixtures that are not integral to the building, but are fixed to the building to prevent theft or for some other reason not related to the building; or

(j) something exempted under the regulations.

7A Meaning of site work In this Act:

site work is development that is—

(a) building work; and

(b) work other than building work that—

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(i) physically affects the place (the building site) where the building work is being carried out; and

(ii) if not carried out at the building site, is carried out near, and connected with, the building site.

66. The above provisions suggest that the Act has as its focus the physical aspects of the creation of a building, or, as Mr Greenwood put it, the “hands on” work.

67. Sections 25A, 25B and 25C, all set out below, also support the view that the Act’s concern is with the physical or hands on aspects of the construction of a building, at a time after approval for it has been granted. Section 25A for example contemplates that certifiers, who give approval for buildings, must be provided with the plans with the application for approval.

25A Overview—div 3.3 (1) This division deals with building approvals for building work carried out

on land and how the owner of the land may apply for building approval.

(2) Section 27 to section 30A affect the issue of building approvals as follows:

(a) section 27 provides that a certifier must not consider an application for building approval unless, among other things, the accompanying plans comply with the requirements prescribed by regulation;

(b) section 28 provides that an application for building approval must be approved if the plans meet each approval requirement under section 29, and deals with how the approval is given;

(c) section 28A sets out how a building approval is marked on plans;

(d) section 29 sets out the approval requirements for the plans;

(e) section 30 and section 30A set out when an application for building approval must be refused.

25B Why are building approvals necessary? (1) A building approval is necessary because—

(a) section 42 (1) (d) requires building work to be carried out in accordance with approved plans (which may have to comply with this Act in relation to asbestos); and

(b) approved plans are plans that relate to building work for which a building approval is in effect.

(2) Section 42 provides that building work must not be carried out except in accordance with the requirements set out in the section.

(3) Not complying with section 42, for example—

(a) is an element of offences against section 42A (Contravention of requirements for building work involving asbestos) and section 51 (Carrying out building work in contravention of s 42); and

(b) is a ground for giving a notice to a building licensee under section 44 (2) (a) (Stage inspections); and

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(c) is a ground for giving a notice to carry out building work under section 62 (see s 61 (b)).

Note 1 Not complying with s 42 may also be grounds for occupational discipline under the Construction Occupations (Licensing) Act 2004.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

25C Building approvals apply to building work To remove any doubt—

(a) a building approval only relates to building work shown on the approved plans under the approval, other than building work—

(i) identified in the plans as not forming part of the approval; and

(ii) on a parcel of land other than a parcel to which the application for approval relates; and

(b) the issue of a building approval does not indicate that carrying out work other than building work identified in the plans is consistent with the law or lease provisions applying to carrying out the work.

Example of work other than building work shown in approved plans Approved plans show a multi-unit townhouse development. As well as

showing the townhouse buildings, the plans include landscape plans and structural engineer’s plans for structural elements, brickwork screen walls, paling fencing and reinforced concrete pedestrian surface paving. The building approval only relates to the townhouse buildings (including their structural elements), the retaining walls, the screen walls and the fencing.

Example of building work on parcel of land other than parcel to which application relates

1 Approved plans show a shop which is proposed to have an awning over the footpath in front of the shop. The awning is over unleased territory land, while the rest of the shop is on leased land. An application for building approval may only be made by the owner of the parcel of land for approval to carry out building work on the land. If only the owner of the leased land applies for building approval and the building approval is issued, the building approval can relate only to building work on the leased land and not to the awning. However, if the Territory and the owner of the leased land jointly apply for building approval and the approval is issued, the approval can relate to building work on both the awning and the leased land. But, if the Territory grants the applicant a permit for the awning to be over a public place, the permit-holder is, under this Act, taken to be the owner and may apply for building approval for all the building work, including the awning.

2 Approved plans show proposed demolition of a fence and a party wall. The wall and fence straddle a common boundary shared by 2 land parcels. The building approval can not operate in relation to only 1 of

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the parcels. If building approval is required for the demolition, it must relate to both parcels of land.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

68. The combination of sections 25B and 25C supports the view the production of plans must precede any work which could be described as building work. For example section 25C shows that the plans themselves must identify what the building work is to be. It is hard to see how building work could occur before being first identified in plans.

69. Sections 42 and 43, which are, relevantly, as follows, also support the view creation of plans is not building work.

42 Requirements for carrying out building work (1) Building work must not be carried out except in accordance with the

following requirements:

(a) the materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;

(b) the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;

(c) the building work must be carried out in a proper and skilful way;

Note The considerations to be taken into account to decide when work is carried out in a proper and skilful way may be prescribed under the regulations (see s (2)).

(d) building work must be carried out—

(i) in accordance with approved plans; or

(ii) if the building work involves handling asbestos or disturbing friable asbestos—in accordance with approved plans that comply with this Act in relation to the asbestos;

(e) for building work required to be done only by a licensed builder—

(i) the building work must be carried out by or under the supervision of the builder mentioned in the building commencement notice; and

(ii) the builder’s licence must authorise the doing of the building work;

(f) the building licensee in charge of the building work must take—

(i) all the safety precautions stated in or with the application for the building approval; and

(ii) any other safety precaution that a certifier or building inspector may require the building licensee to take under section 46.

(2) The regulations may prescribe considerations to be taken into account to decide whether building work is carried out in a proper and skilful way.

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43 Stages of building work (1) A regulation may prescribe—

(a) stages of building work; and

(b) exceptions to allow building work to proceed beyond a stage without a stage inspection; and

(c) conditions for building work to proceed beyond a stage without a stage inspection.

Note Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

(2) A building licensee in charge of building work must give the certifier a required written notice when building work reaches a stage of building work.

(3) …

70. Section 42 is concerned with work and material quality.

71. It seems to me an absurd proposition that the building code should apply to materials such as the computer used by an engineer to create drawings.

72. Further, s 42(1)(d) apparently treats building work as something separate from approved plans. It strongly suggest plans must have come into existence before the building work has commenced.

73. It is difficult to see how s 43(2) can apply to an engineer preparing drawings. No building licensee or certifier is appointed at that early stage. The written notice requirement cannot be complied with if there is no licensee and no certifier.

74. Then, as appears further from s 43, the stages of building work may be the subject of a regulation. Regulation 33 of the Building (General) Regulation 2008 (ACT), set out below, shows those stages:

33 Stages of building work—Act, s 43 (1) (a) Note The Act, s 43 requires certain things to be done before building

work proceeds beyond a prescribed stage.

The stages of building work are—

(a) completion of excavation, placement of formwork and placement of steel reinforcing for the footings before any concrete for the footings is poured; and

(b) for a class 1, class 10a or class 10b building—

(i) completion of the structural framework before the placement of any internal lining; and

(ii) completion of placement of formwork, and placement of steel reinforcing, for any reinforced concrete member before any concrete for the member is poured; and

(c) for a building other than a class 1, class 10a or class 10b building—

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(i) completion of any structural framework stated by the certifier in the relevant building approval, before the placement of any internal lining; and

(ii) completion of the placement of formwork and steel reinforcing for any reinforced concrete member stated by the certifier in the relevant building approval, before any concrete for the member is poured; and

(d) completion of the building work approved in the relevant building approval.

75. As is apparent, the first stage of building work is “completion of excavation, placement of formwork and steel reinforcing for the footings”. None of the stages appear to contemplate engineering drawings being part of the process. All of the stages suggest a physicality different from preparation of a set of plans.

76. Then s 47 and s 49 provide:

47 Structural engineer’s certificate (1) The owner of a parcel of land where building work is being, or has been,

carried out must, if requested by the certifier, give the certifier a certificate by a professional engineer about the structural sufficiency, soundness and stability of the building as erected or altered for the purposes for which the building is to be occupied or used.

(2) The certifier may request a certificate only if satisfied on reasonable grounds that it is desirable to do so in the interests of people who occupy or use, or are likely to occupy or use, the building or part of the building that is being, or has been, erected or altered.

(3) The certifier may request a certificate at any time before or after the completion of building work.

49 Complying with building code (1) A person commits an offence if the person—

(a) is a licensed builder; and

(b) carries out building work; and

(c) either—

(i) knows the building work does not, or will not, result in a building that complies with the building code; or

(ii) is reckless about whether the building work does or will result in a building that complies with the building code. Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) A person commits an offence if—

(a) the person is a licensed builder; and

(b) the person carries out building work; and

(c) the building work does not, or will not, result in a building that complies with the building code.

Maximum penalty: 50 penalty units.

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(3) An offence against subsection (2) is a strict liability offence.

(4) For an offence against subsection (2), building work is taken not to result in a building that complies with the building code if, for any provision of the building code with which the building must comply—

(a) the building does not, or will not, comply with the deemed-to-satisfy provision of the building code; and

(b) the approved plans for the building work do not state an alternative solution under the building code.

Example A building that is being constructed has approved plans showing that

the building will comply with the performance standard for fire safety systems in the building code by using the deemed-to-satisfy provisions. However, the parts of the fire safety system that have been installed do not comply with the deemed-to-satisfy provisions. There is no approved alternative solution for the building and so the building work is taken not to result in a building that complies with the building code.

Note 1 Although some provisions of the building code may not apply to a building work, every provision of the building code that does apply to the building work must be complied with.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(5) A person commits an offence if the person—

(a) carries out building work; and

(b) intends to carry out the building work in a way that will not result in a building that complies with the building code.

Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

(6) For this section, building work is taken to result in a building that complies with the building code if—

(a) the building complies with the building code as in force at the time the approved plans for the building work were approved; or

(b) if there are no approved plans for the building work or approved plans are not required for the building work—the building complies with the building code as in force at the time the building work is carried out.

77. As the drafter of s 49 is concerned with ensuring compliance with the building code, it is not easy to see how that has any concern for work done by an engineer in the original plans.

78. Section 53(1) allows for a stop notice to be given if building work is carried out:

(a) without a building approval or

(b) which is not being done “in accordance with the approved plans”.

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79. The section gives examples such as a concrete truck about to deliver concrete when no plan has yet been approved for any building.

80. The section also suggests the Act has no concern for the part played by engineers in designing plans. The provision of plans is however a necessary precondition for the enforcement of the requirement that the work accord with plans.

81. There is further support for the exclusion of the Act’s cover for the defendant’s work, in s 86 which is as follows:

86 Cost of building work for pt 6 (1) For this part, the cost of building work is—

(a) if a contract has been entered into for carrying out of the building work—the cost of the work as fixed by the contract; or

(b) in any other case—

(i) an amount agreed between the construction occupations registrar and the builder; or

(ii) if an amount is not agreed—an amount worked out by the registrar.

(2) For subsection (1), the cost of building work—

(a) includes the cost of any engineering service in relation to the land where the building work is to be carried out; but

(b) does not include the cost of the land where the building work is to be carried out.

82. Section 86 creates an extended meaning of “building work”, to include engineering work for a particular purpose, namely when it is necessary to calculate the cost of building a house for statutory insurance purposes. The fact the drafter considered it necessary to add this qualification suggests the Act would not otherwise regard such work as “building work”.

83. Finally, it is illuminating to look at the significant provisions permitting inspectors to enter premises and conduct tests.

84. Section 134 allows an inspector to inspect “a building” or “building work”, and gives the inspector the right to enter premises where “building work is being or has been carried out.” Section 134A gives wide powers to inspectors of “building work” to, for example, take measurements or samples, and s 134B gives power to inspectors to seize items if the inspector is satisfied on reasonable grounds they are connected with an offence against the Act.

85. As Mr Greenwood submitted, it simply does not make any sense that such provisions could apply to permit an inspector to enter an engineer’s offices when the drawings for a proposed building are in the course of preparation, and when no application for building approval has even been lodged.

86. All of the above provisions, to which Mr Greenwood drew my attention in the course of his submissions, present a powerful argument for the proposition that the defendant’s work which is sued on was not “building work.”

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87. I find persuasive, too, Mr Greenwood’s argument that the setting in which the Act was passed suggested no inclination on the part of the legislators to regulate the work of engineers.

88. The Act replaced the Building Act 1972 (ACT). The Bill for the Act was presented at the same time as the Construction Occupations (Licensing) Bill 2003 (ACT).

89. The Bill set up a system of licensing for what it calls “construction occupations”. They are builder, building surveyor, drainer, electrician, gas fitter, plumber and plumbing plan certifier. Neither engineers nor architects are included in the definition.

90. The explanatory statement for the Building Bill said at page 4 in relation to the definition of building work:

Clause 6 defines the term building work. It explains that it means work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated by the alteration of a building other than a building excluded under the regulations, or by the demolition of a building and it includes work in relation to repairs of a structural nature to a building. The clause also allows regulations to exempt a kind of work from the definition of building work, or to include a kind of work in the definition of building work. It is intended that the term refer to the doing of the above-mentioned work rather than refer to the building materials or building parts that the work is in respect of.

91. I find that of some persuasive value.

92. I accept Mr Greenwood’s submission that the final sentence shows an intention that what was intended to be covered by the Act was the hands on or physical, construction, work.

93. Mr Greenwood also referred me to the following, from the second reading speech for the Building Bill of the then Minister, Mr Simon Corbell MLA, who said:

This package of legislative reforms represents a significant proposal to improve the regulation of trades in the construction industry…This was the culmination of a long process of reform…since 1998, the year when a paper discussed options for moving to a single licensing regime to cover architects, builders, electricians, plumbers, drainers and gas fitters. Following that discussion a national competition policy review was undertaken. The review did not include consideration of the regulation of architects as that profession was dealt with under a subsequent Productivity Commission report…The occupational licensing reforms set out in the legislation will affect builders, electricians, plumbers, drainers and gas fitters, building surveyors, and plumbing plan certifiers. The architectural profession has not been included in the present legislation as consultation with the profession has confirmed that there are particular issues that require consideration through a separate reform process.

94. In 2004 the Australian Capital Territory passed legislation to regulate architects, the Architects Act 2004 (ACT).

95. I accept Mr Greenwood’s submission that there was significance in the omission of any reference in the speech to engineers. I accept the logic of Mr Hausfeld’s argument that it does not follow that because engineers were not mentioned it was not intended they be regulated by the Act. But that is by no means the end of the matter. The specific reference to architects in the speech, and their omission from the Act, and their omission from the list of construction occupations in the Construction Act supports the

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view that including the work of engineers in “building work” was not in the contemplation of the legislators.

96. Both counsel drew my attention to the building legislation of the States and of the Northern Territory. Some jurisdictions have extended the reach of their building legislation to engineers or draftspersons or designers.

97. For example, s 3 of the Building Act 1993 (Vic) contains a definition of “building practitioner” which includes a number of occupations including “an engineer engaged in the building industry”, and “a draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications”.

98. Other jurisdictions, such as South Australia, do not include the work of engineers in the definition of “building work.”

99. As there is no uniformity in the way the States and the Territories have sought to regulate engineers in the context of building work, I do not find comparisons with the legislation of other jurisdictions helpful in construing the Act.

100. Having regard for the purpose and language of the Act, and having considered it as a whole, I am persuaded that the work of the defendant in preparing the design plans and the certificate was not “building work”.

101. I have also considered whether the work could be “construction work other than building work”.

102. Before me there was debate about what difference the drafter meant to convey between building work and construction work.

103. As Mr Hausfeld contended, the legislature must have contemplated that construction work be something different from building work. Otherwise, it is hard to see why it is there.

104. I am inclined to the view, as put by Mr Greenwood, that “construction work” is meant to refer to the work done on the site, whereas building work is a broader expression, intended to cover all aspects of the building.

105. But it is unnecessary to resolve that issue. For the same reasons I am persuaded the defendant’s work was not building work, I am persuaded it was not construction work.

106. I have considered Mr Hausfield’s submission that the plaintiffs’ actions were “in relation to” defective building or construction work.

107. Obviously, depending on the level of abstraction used, there was a link between the concepts.

108. But given the context in which the expression appears the link is too distant for the actions to be “in relation to” either building or construction work.

109. I have considered the evidence of the defendant in his affidavit about the engineering work he did in addition to the plans and the certificate. But I do not consider it is relevant to the issue before me. I have no doubt engineers do not stop working on a project when plans are approved, or that some of their work is similar to the work of certifiers. But the issue here concerns work done at other times and of a different kind.

110. Both parties referred me to Diploma Constructions (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Mitchell J), an appeal from the State Administrative Tribunal

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which had ordered a builder to remedy inadequate storm water storage. There was evidence the engineers had prepared plans for the stormwater works, but they had been built by the builder. The tribunal had jurisdiction over disputes with builders but not engineers. His Honour held it did not matter that the builder had merely followed the engineer’s drawings. There was still a dispute involving a builder, so the tribunal had jurisdiction.

111. It was in that context that his Honour said the following at [43], on which Mr Hausfield relied:

[T]here is no basis for distinguishing between the engagement of an engineer to provide advice on design from the engagement of a tradesperson to install pipework and soakwells. In both cases the relevant work has been ‘carried out’ by the builder for the purposes of the Act.

112. What was, in my view, more apposite, was the following, at [29], relied on by Mr Greenwood:

[T]he preparation of plans for a building, without any implementation of the plans, is not ‘building work’ within the meaning of the Building Act…The drawing of plans without more cannot constitute building work, and therefore the drawing of plans without more does not constitute carrying out a regulated building service for the purpose of the Act. If the only activity undertaken is the preparation of plans, then there has been no construction of a building to which the Act could apply.

Conclusion

113. The Act regulates and controls the construction of buildings in the ACT by imposing statutory requirements and standards and rules and supervision but, at the earliest, from the point when building plans are approved, and not before.

114. Thus I answer the question, “No.”

Orders

115. I make the following Orders:

1. Question is answered “no”.

2. Reserve the question of costs.

3. Adjourned to the Registrar’s list for further directions.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Wamsley.

Associate:

Date: 31 March 2017

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