Appeal over a refused certificate of occupancy dismissed as frivolous and vexatious (ACAT, 2025)

What happened

The dispute began with a decision of the Construction Occupations Registrar on 28 February 2023 refusing to issue a certificate of occupancy under section 69(2) of the Building Act 2004 for a house built on the owners' property. The Registrar's position was that the property did not comply with certain statutory planning requirements. The owners wanted the certificate issued for the property as it stood. That issue had already been dealt with in earlier tribunal proceedings in 2023 brought in the tribunal's administrative review stream, which is the stream used to challenge a government decision.

In April 2025 the owners lodged a fresh application, this time on the tribunal's standard civil dispute application form, naming the person holding the Registrar's office personally and describing him as trading as the ACT government. On the form they ticked "application under other authorising laws" and listed the Building Act 2004, the Planning and Development Act 2007, the Building Regulation 2004 and the Discrimination Act 1991. They attached 84 pages of submissions, which referred at length to earlier tribunal decisions and made allegations of harassment, discrimination, abuse of public office and misconduct against various people connected with the tribunal and the ACT Government. The tribunal found none of those allegations were clearly particularised, that is, set out with specific detail.

The Registrar applied to strike the civil dispute application out. On 2 September 2025 the tribunal at first instance struck it out and dismissed the matter, giving oral reasons: the tribunal can only decide a matter under an appropriate authorising law, the laws the owners relied on did not allow a civil dispute of that kind to be brought, and the discrimination claim had not been referred to the tribunal through the process in the Human Rights Commission Act 2005.

The owners appealed on 26 September 2025. At a directions hearing on 15 October 2025 the first owner used repeated obscene and racially abusive language, recorded in the transcript, directed at the tribunal, at the solicitor for the Registrar and apparently at his wife, the second owner. The owners then applied on 5 November 2025 to have the appeal put on hold until the ACT Supreme Court decided judicial review proceedings they had lodged about five tribunal matters. They also filed documents demanding that the tribunal stop all hearings and threatening criminal proceedings, compensation of no less than $5 million per affected applicant and a minimum of ten years imprisonment for each person said to be responsible.

What each side wanted

The owners asked the Appeal Tribunal to put the appeal on hold until the Supreme Court dealt with their judicial review application, arguing jurisdictional conflict, bias, denial of procedural fairness and systemic abuse, and they objected to the appeal and the hold request being decided without an oral hearing. In the underlying matter they asked the tribunal either to issue the certificate of occupancy itself or to direct the Registrar to issue it, to order an independent inquiry into alleged misconduct by tribunal members, registry staff and ACT Government solicitors, to award costs and damages for medical, reputational, professional and personal harm, and to waive the filing fee. The Registrar asked that the appeal be dismissed as frivolous and vexatious and lacking in substance, supported deciding the matter on the documents, and also sought an order directing the owners not to bring any further application about the Registrar's decision.

What the tribunal decided

The Appeal Tribunal made three orders on 17 December 2025. First, under section 54 of the ACT Civil and Administrative Tribunal Act 2008, the owners' interim application of 5 November 2025 seeking an adjournment was to be determined on the documents filed and without further evidence. Second, the adjournment application was dismissed. Third, being satisfied that the appeal application filed 26 September 2025 was frivolous and vexatious and lacking in substance, the Appeal Tribunal dismissed the appeal under sections 32(1)(a) and 32(1)(c) of that Act.

No money was ordered to be paid either way, and the published orders do not include the order the Registrar sought preventing the owners from making further applications about the Registrar's decision. The written reasons followed on 4 February 2026 and were published on 11 February 2026. The owners were self-represented; the Registrar was represented by the ACT Government Solicitor.

Why the tribunal decided it that way

On deciding the matter without an oral hearing, the Appeal Tribunal started from section 36 of the Act, which requires the tribunal to hear each application unless it refuses to hear it, dismisses it, or decides not to hold a hearing. Section 54 lets the tribunal decide an application on the documents if it has given notice of that proposal, considered any representations, and is satisfied it is in the public interest not to hold a hearing and that it has enough information to decide. The Appeal Tribunal accepted that a fair hearing is normally open and oral and that oral hearings should not be dispensed with lightly, but noted that an oral hearing is not an absolute requirement of procedural fairness. Here no party wanted to call evidence or cross-examine anyone on the adjournment question, there was no credibility issue, both sides had put written arguments, and the owners had not identified any disadvantage from a decision in chambers. The first owner's conduct at the earlier hearing also weighed in favour of written argument, and the tribunal observed that the owners, who are professional people, were better served putting their case in writing.

On the adjournment, the Appeal Tribunal applied rule 63 of the ACT Civil and Administrative Tribunal Procedures Rules 2024 and ACAT Practice Note Number 2 of 2020, which lists the matters to be considered: the objects in section 6 and the principles in section 7 of the Act, the reason for the adjournment, disadvantage to the requesting party or the public, each party's attitude, prejudice to the other party, the length of the adjournment and any other relevant matter. The only real ground was that similar proceedings were on foot in the Supreme Court. The Appeal Tribunal held that overlap alone is not a reason to adjourn; the tribunal has a statutory duty to hear matters and to do so as quickly as is consistent with justice, no question about the tribunal's jurisdiction or power had been put to the Supreme Court, and the owners identified no prejudice from the matter continuing. The adjournment would also have been a long one, as the Supreme Court matter was listed for March 2026.

On striking out the appeal, the Appeal Tribunal applied the established test: a claim is frivolous or vexatious if it is so obviously untenable that it cannot succeed, or where there is no real question to be tried because the claim is bound to fail. It acknowledged that caution is needed with self-represented parties and that claims sometimes develop at a hearing, but held there is no point in letting a case run when, taken at its highest, it cannot succeed and the relief asked for cannot be granted. The tribunal is a creature of statute: under sections 9 and 11 it can only hear what an authorising law allows, and an appeal tribunal has the same powers as the tribunal appealed from, so it could not issue a certificate of occupancy or direct the Registrar to issue one in the civil dispute stream. The certificate question had already been dealt with in the 2023 administrative review decision, and that decision could not be revisited through a later civil claim. There was no authorising law allowing an order for an independent inquiry into alleged misconduct. Damages had not been sought in the original application, so refusal to award them could not be an error on appeal, and section 48 of the Act gives only limited costs powers, not a general discretion. A fee waiver is a matter for the registrar, not an appeal. The discrimination claim failed because the authorising law is section 53A of the Human Rights Commission Act 2005, under which it is the Commission's referral that creates the application, and there was no referral.

The Appeal Tribunal added that an appeal exists to identify and correct error, not to raise new arguments or have a second attempt, and that this was the fourth proceeding seeking the same orders about the property on similar grounds. Bringing substantively similar litigation across the tribunal's different streams, naming the office holder personally rather than the office, and using threats of criminal and civil proceedings in filed documents in a way that appeared designed to intimidate, all had the potential to be an abuse of process.

What this means if you are in a similar position

This decision shows how strictly the tribunal reads its own jurisdiction. If you are in a similar position, disputing a refusal, licence decision or certificate from a government body, the decision illustrates that the tribunal can only make an order where a specific law, called an authorising law, gives it that power, and that the stream you use and the form you lodge matter. A decision made by a regulator is normally challenged through administrative review within the time allowed, and the reasons here show that once that path has been used and finished, the same question generally cannot be reopened later by filing a civil dispute claim instead.

It also shows what the tribunal will not do. A general order that someone stop alleged misconduct, or an order for an independent inquiry into public officials, has to be anchored in a law that allows it. Damages that were never claimed at first instance cannot be added on appeal. Costs are limited by section 48 rather than being a general discretion. Discrimination claims reach the tribunal only after the Human Rights Commission refers them. And an appeal is for showing an error of fact or law in the first decision, not for running a better version of the original case. The decision is also a reminder that written argument can be enough: the tribunal may decide a question on the documents where there is no evidence to test, provided it gives notice and considers what the parties say.

In disputes of this kind, the step most people take first is a written notice or complaint to the body involved that sets out the decision, the facts and the outcome being asked for, with a deadline for a reply, and only then a formal application to the tribunal or the relevant review body if the matter is not resolved.

How to apply: our step-by-step guide to a ACAT application. More decisions: ACAT cases and other civil disputes.

Source: BOLARAM & ANOR v LHUEDE (Appeal) [2026] ACAT 9 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.