Supreme Court declares registration refusal void for misinterpreting 'responsible capacity' as requiring sole legal liability rather than professional duties.

[*976] 1968 September 12

REVISIONAL JURISDICTION

In the matter of Article 146 of the constitution

Andreas Kasapis,

Applicant.

and

The council for Registration of

Architects and civil Engineers,

Respondent,

Case No. 182/62

Architects - Architect by profession - The Architects and Civil Engineers Law 1962-1964 (Nos. 41 of 1962 and 7 of 1964) - Refusal of Respondent to admit or enroll Applicant as architect by profession, on the ground that he was not engaged in a “responsible capacity” as required by section 9(1)(A) (ii) of the Law - Misdirection of Respondent regarding the correct interpretation of the Law.

Words and Phrases - "In a responsible capacity”, in section 9(1)(A)(ii) of the Architects and Civil Engineers Law 1962-1964 (Nos. 41 of 1962 and 7 of 1964).

A. Triantafyllides, for the Applicant.

Mrs. I. Loizidou, for the Respondent.

JUDGMENT

The following Judgment was delivered by: -

LOIZOU.J.: By this recourse the Applicant seeks a declaration that the decision of the respondents not to grant applicant’s application for admission or enrolment as an Architect by profession is null and void and of no effect whatsoever. [*977]

The Application is based on the ground that the respondents acted contrary to section 9 of the Architects and Civil Engineers Law 1962-1964 (41/62 and 7/64). The relevant part of this section is sub-section (1)(A)(i)(ii)(iii) and it reads as follows:

"9.-(1). Ανεξαρτήτως παντός εν τω

παρόντι Νόμω διαλαμβανομένου, πας όστις είναι πολίτης της Δημο­κρατίας

δικαιούται όπως τη υποβολή αιτήσεως προς το Συμβούλιον, εν τω

νενομισμένω τύπω και τη καταβολή του νομίμου τέλους, τω παρασχεθή άδεια

ίνα καταστή:

(Α) Αρχιτέκτων εξ επαγγέλματος - εάν το Συμβούλιον πεισθή ότι είναι καλού χαρακτήρος και ότι -

(i) κέκτηται επαρκείς γνώσεις περί την εργασίαν του Αρχιτέκτονος ή Πολιτικού Μηχανικού· και

(ii) κατά την ημερομηνίαν ενάρξεως της ισχύος του

παρόντος Νόμου ενήσκει καλή τη πίστει και προσωπικώς εν τη Δημοκρατία το επάγγελμα του Αρχιτέκτονος ή του Πολιτικού Μηχανικού, ή

εν τινι υπευθύνω ιδιότητι ειργάζετο παρά

προσώπω δικαιουμένω να εγγραφή ως Αρχιτέκτων ή Πολιτικός Μηχανικός, ή εν τη υπηρε­σία της Κυβερνήσεως ή ετέρου δημοσίου οργανισμού ή αρχής˙

και

(iii) ειργάζετο ούτω δι' επτά τουλάχιστον έτη προ της ενάρξεως της ισχύος του πα­ρόντος

Νόμου." [*978]

It is not disputed that Applicant fulfils the requirements set out in sub-paragraphs (i) and (iii); what the Respondents dispute relates to the requirements under subparagraph (ii).

The undisputed facts of the case are that the applicant was since the 1st January, 1955 i.e. for a period of almost 12 years employed by Mr. P. Stavrinides, a qualified Architect; he was in charge of the drawing section of the office and he was entrusted both with the drawing of plans and the supervision of the construction of all kinds of structures.

It may be stated at this stage that this is the third recourse filed by the applicant; but I do not think that there is any point in going into this matter in any detail except to say that the decision of the respondents in one of the two other recourses was declared null and void on a ground unconnected with the ground under consideration in this case.

As it appears from the minutes (exhibit 2), the decision in the present case was taken by the Respondents on the 19th July, 1967 and was communicated to the applicant by the letter dated 12th September, 1967 (exhibit 1).

The respondents rejected applicant’s application on the ground that they did not consider that the nature of his work with Mr. Stavrinides was such as to satisfy them that the Applicant was engaged in a “responsible capacity” under Mr. Stavrinides as required by section 9(1)(A)(ii) of the Law. The reason that led respondents to this conclusion is very clearly stated both in the minutes of the meeting and in the letter addressed to the Applicant, Paragraph 3 of the letter, exhibit 2, reads as follows: [*979]

"Ο κ. Σταυρινίδης ανέθετε εις υμάς να κάμνετε

όλην την απαιτουμένην σχεδιαστικήν εργασίαν δια κάθε αντίστοιχον αρχιτεκτονικήν

μελέτην, αλλά η εργασία σας ηλέγχετο και εγένετο υπό

την ευθύνην του κ. Σταυρινίδη ο οποίος κατ' ουσίαν και κατά τύπον ήτο ο μόνος υπεύθυνος απέναντι του εργοδότου

ιδιο­κτήτου της οικοδομής. Ο κ. Σταυρινίδης σας ανέθετε να κάμνετε επί τόπου

έλεγχον της εκτελουμένης βάσει των αρχιτεκτονικών σχεδίων εργασίας, αλλά όπως

εις τα σχέδια, ούτω και εις την επίβλεψιν, την ευθύνην απέναντι του εργοδότου είχεν ο κ. Σταυρινίδης."

The same contention was made by learned counsel for the respondents at the hearing of the case. “Responsible capacity”, it was submitted, means that the employee must be in absolute charge and must not be answerable to any person, including his employer, as in the present case where applicant's work was checked by Mr. Stavrinides.

I cannot for one moment agree with this view nor do I think that sub-paragraph (ii) is capable of the construction placed upon it by the respondents; this sub-paragraph clearly makes provision for employees working with a person entitled to be registered as an Architect or Civil Engineer or in the service of the Government or other public organ or authority and it is difficult to imagine a situation where such an employee would not be subject to the directions and checking of his employer and where the employer, the Architect in the present case, who would no doubt be the contracting party, would not be himself liable either in contract or in tort to the owner of the [*980] construction or to anybody who had a claim in connection with ^ the building contract.

In my view the meaning of the words "in a responsible capacity" relate to the nature of the duties of the employee and have nothing to do with legal liability. I think that the mere fact that the Applicant may not have been personally liable in law to the owner of the house under construction or that his employer had the overall control of the building works does not in itself render his capacity any the less responsible.

I agree with learned counsel for the Applicant that the respondents have misdirected themselves regarding the correct interpretation of the law; I am further satisfied that as a result they could not and did not correctly apply the law to be undisputed facts of the case and that for this reason this recourse must succeed and the decision of the respondents must be declared null and void. (See "The Law of Administrative Acts" by Stassinopoulos

(1951) p.249).

Decision complained of is hereby declared null and void; the respondents to pay £10 towards applicant’s costs.

Order, and order as to costs,

in terms.