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Supreme Court of Victoria |
Last Updated: 25 August 2022
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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JUDICIAL REVIEW – Decision of the Victorian Building Authority
– Plaintiff contracted with builder to build a house –
Show cause
procedure against building surveyor and building inspector following
plaintiff’s complaint – No disciplinary
action taken – Whether
VBA provided notice and reasons for decision to plaintiff – Amendments to
the Building Act –Validity
of show cause provisions of Building Act
1993 – Whether disciplinary action should have been taken under
pre-amendment or post-amendment Act – Transitional provisions
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Plaintiff’s standing to bring proceeding – Whether VBA made
jurisdictional errors – VBA’s power to
decide the allegations to
include in Show Cause Notice – Whether VBA failed to take into account
relevant considerations or
took into account irrelevant considerations –
Whether VBA made errors of fact that were jurisdictional errors – Whether
VBA’s decision unreasonable – Whether VBA’s delay amounted to
a jurisdictional error – Building Act 1993–2022 ss 1, 24,
178, 179, 182, 182A, 182C, 182D, 182E, 183, 183B, 184, 185A, 193, 197, 198,
199; Building Regulations 2006 regs 301, 302, 1502(a).
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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For the Defendant
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Victorian Government Solicitor’s Office
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TABLE OF CONTENTS
HIS HONOUR:
1 Mr
Shannon Draper seeks judicial review of a decision of the defendant, the
Victorian Building Authority (‘VBA’), which
ended a show cause
disciplinary process with respect to Registered Building Surveyor Mr C
Giambattista (the ‘RBS’). This
proceeding is related to, and was
heard at the same time as, Mr Draper’s proceeding S ECI 2020 03775,
in which he sought judicial
review of the VBA’s decision which ended a
show cause disciplinary process with respect to Registered Building Inspector Mr
K Wilson (the ‘RBI’). Mr Draper and the VBA made the one set of
submissions for both proceedings.
2 The VBA decision
was made by Ms A Smith, Delegate and Principal Decision-Maker, but I will refer
to the VBA as the decision-maker
unless the context requires otherwise. Ms Smith
also drafted the Show Cause Notice.
3 In order to
obtain judicial review remedies, Mr Draper must establish that the VBA made
jurisdictional errors. It is important that
the parties understand that in a
judicial review proceeding the Court does not decide questions of fact afresh,
whether they relate
to disciplinary charges or otherwise. It only determines
whether the decision-maker has made a recognized jurisdictional error and
thereby failed to perform its statutory duties according to law. I must apply
that principle in deciding Mr Draper’s
grounds.
4 The show cause process followed Mr
Draper’s complaints in August 2017 to the VBA about the professional
conduct of the RBS
and the RBI in 2014 and 2015 in connection with the
construction of his house at Wallan by the builder, Simonds Homes Victoria Pty
Ltd (‘Simonds Homes’). The VBA made inquiries and, on 28 November
2019, issued Show Cause Notices to the RBS and the
RBI under s 182 of the
Building Act 1993 (the ‘Building Act’). The RBS and RBI
provided written responses to the Show Cause Notices. On 17 March 2020, the VBA
decided not to take disciplinary
action against either of them, ending each show
cause process without taking further action.
5 Mr
Draper contended that the VBA made jurisdictional errors and sought, among other
things, the quashing of its decisions and the
making of any orders or
declarations necessary to rectify perceived defects in Victoria’s building
legislation, orders requiring
the VBA to properly perform its functions, and
declarations regarding its failure to act as a model
litigant.
6 Mr Giambattista was not joined as a
defendant and therefore has not had the opportunity to be heard about the orders
that Mr Draper
seeks.
7 This proceeding is one of several
commenced by Mr Draper arising from the same background, which I will next
summarise.
8 In June 2014, Mr Draper entered into a
contract with Simonds Homes to construct a house at Wallan. He identified
defects in its
construction and arranged for the VBA to inspect it when it was
partially completed. Mr Draper first complained about the work on
the house
after the slab had been finished, at which point he asked Simonds Homes to stop
work.[1] Simonds Homes
‘suspended work on the dwelling after it completed the slab and frame
stages, together with the roof
truss’.[2]
9 Mr
Draper commenced civil proceedings against Simonds Homes in the Victorian Civil
and Administrative Tribunal (the ‘Tribunal’
or ‘VCAT’)
in respect of those defects and succeeded in obtaining the following order
against the builder:[3]
Pursuant to section 53(2)(g) Domestic Building Contracts Act 1995, the Respondent must rectify defective building works, by demolishing the existing slab, and laying a slab for the dwelling as enables the Finished Floor Level of the garage section of the slab to be 150 mm above a Finished Ground Level at the slab’s western edge of RL98.58 metres, in accordance with Site Plan 1.1 signed by the Applicant on 5 June 2014.
10 On 9 February 2015, Mr Draper
requested the BPB to conduct an inquiry into the professional conduct of Mr
Vallence Gary Simonds,
the principal director of Simonds Homes and its nominated
building practitioner. On 11 May 2016, the BPB told Mr Draper that it had
decided not to conduct the inquiry but to conduct a ‘conduct review’
which was a non-statutory review. Mr Draper commenced
a proceeding in the
Tribunal under s 182A(3)(b) of the Building Act 1993, as it was before 1
September 2016, to set aside the BPB’s decision. On 11 September 2017, a
Senior Member of the Tribunal
set aside that decision, and ordered the BPB to
conduct an inquiry into Mr Simonds’ professional
conduct.
11 On 19 November 2018, the Building
Practitioners Board (the ‘BPB’) conducted an inquiry hearing
concerning the professional
conduct of Mr Simonds. He accepted as proved six
allegations, with a seventh being proved. The allegations related to breaches of
his obligations concerning contractual documentation and procedures and
construction of the house. All seven allegations alleged
breach of regulation
1502(a) of the Building Regulations 2006, which requires that a building
practitioner must perform his or her work in a competent manner and to a
professional standard. The
BPB reprimanded Mr Simonds, fined him a total of
$3,464.64 and ordered him to pay $14,429
costs.
12 In this proceeding, and in three other
proceedings,[4] Mr Draper has pursued
complaints about the VBA and the now-abolished the BPB and the merits of
decisions made by the VBA, the BPB
and VCAT and about the regulation of the
Victorian building industry.
The Building Act
13 The relevant sections of the Building Act, as at the time the Show Cause Notices were issued, stated:
24 Refusal of building permit
(1) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that—(a) the building work and the building permit will comply with this Act and the building regulations; and
(b) any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or taken to have been obtained in accordance with Schedule 2; and
(c) any relevant planning permit or other prescribed approval has been obtained; and
(d) the building permit will be consistent with that planning permit or other prescribed approval.
(2) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit that imposes on the applicant lesser or greater standards or requirements than those prescribed by this Act or the building regulations, unless permitted to do so by this Act or the building regulations.
178 Meaning of disciplinary action
In this Division, disciplinary action in relation to a registered building practitioner means one or more of the following—
(a) reprimand the practitioner;
(b) direct the practitioner—
(i) to do a specified thing, including to rectify or complete specified building work; or
(ii) not to do a specified thing;
(c) require the practitioner to successfully complete a specified course of training within a specified period;(d) impose a penalty of not more than 150 penalty units, in the case of a natural person, or 750 penalty units, in the case of a body corporate, unless—
(i) a charge has been filed in the Magistrates' Court in relation to the matter; or
(ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or
(iii) the matter has been dealt with by the issue of an infringement notice;
(e) vary a condition (other than a prescribed condition), or impose a condition, on the practitioner's registration;
(f) suspend registration for not more than 3 years either wholly, or as a partial suspension in relation to a specified matter;
(g) cancel registration;
(ga) disqualify the practitioner from being a nominee director of a registered body corporate or a specified registered body corporate for a specified period not exceeding the period during which the body corporate is registered;(gb) in the case of a registered body corporate, disqualify a registered building practitioner who is an officer of the body corporate from being a nominee director, or being otherwise involved in the management, of the body corporate for a specified period not exceeding the period during which the body corporate is registered;
(h) disqualify the practitioner for a specified period of up to 3 years from being registered in any category or class of building practitioner.
179 Grounds for disciplinary action
(1) Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner—
(a) the practitioner has contravened—
(i) this Act or the regulations under this Act; or
(ii) the Domestic Building Contracts Act 1995 or the regulations under that Act; or(iii) a prescribed Act or law or a prescribed provision of a prescribed Act or law;
(b) the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct;
...
(f) the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is—
(i) constituted by a pattern of incompetence; or
(ii) negligent in a particular matter;
(g) the Authority believes on reasonable grounds that the practitioner is not a fit and proper person to practise as a building practitioner;
...
(2) The Authority may make inquiries to determine whether a ground exists for taking disciplinary action under this Part.
182 Show cause notice
(1) Subject to subsection (6), if the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice).
(1A) In the case of disciplinary action on the ground set out in section 179(1)(db), the Authority must give a show cause notice by the later of the following—
(a) within 28 days of receiving the breach of dispute resolution order notice from the chief dispute resolution officer;
(b) within the prescribed period.
(2) The show cause notice must state the following—(a) that the Authority proposes to take disciplinary action;
(b) the disciplinary action proposed to be taken;
(c) the registration in relation to which the proposed action is to be taken;
(d) the ground for the proposed action;
(e) an outline of the facts and circumstances forming the basis for the ground for the proposed action;
(f) an invitation to the registered building practitioner to show within a stated period (the show cause period) why the proposed action should not be taken.
- Notice of decisions
(1) The Authority must give notice of a decision under this Division in relation to a registered building practitioner to any person who made a complaint to the Authority about the matter to which the decision relates.
(2) If the Authority is aware that a registered building practitioner is a member of a professional association or is employed by a particular person, the Authority must cause notice of any decision concerning the practitioner made under this Division to be given to that association or employer without delay after the decision takes effect.
14 Section 193 of the Building Act establishes the VBA:
The Victorian Building Authority is established.
15 Sections 197 and 198 of the Building Act contain the VBA’s functions and powers:
(1) The Authority has the following functions—(a) to monitor and enforce compliance with this Act and the regulations;
(ab) to administer the scheme under Part 11 for the registration of building practitioners;
(ac) to supervise and monitor the conduct and ability to practise of registered building practitioners and licensed building employees;
....
- General powers of the Authority
The Authority may do all things necessary or convenient to enable it to carry out its functions.
16 Regulation 1502(a) of the Building Regulations 2006 concerns professional standards required of registered building practitioners and states:
1502 Professional Standards
A registered building practitioner must –
(a) perform his or her work as a building practitioner in a competent manner and to a professional standard; and
...
17 The show cause process contained in the current Building Act 1993 requires that the Show Cause Notice include an invitation to the registered building practitioner to show within a stated period of at least 14 days why the proposed action should not be taken. The practitioner may make written or oral representations about the Show Cause Notice.[5] The VBA must then decide whether a ground exists to take disciplinary action against that practitioner.[6] If it no longer believes a ground exists to take disciplinary action, the VBA may take no further action, must revoke any suspension and give notice to the practitioner that no further action will be taken about the notice.[7] If the VBA believes a ground exists to take disciplinary action against the practitioner, it may accept their undertaking and defer taking disciplinary action for a specified period, or take disciplinary action that the VBA considers to be less serious than the proposed disciplinary action or take no further action.[8] If the VBA believes a ground exists to take disciplinary action against the practitioner, it may take the disciplinary action proposed in the Show Cause Notice or:[9]
on the basis of representations made or new evidence received, take disciplinary action that the Authority considers to be less serious than the disciplinary action referred to in paragraph (a).
18 The VBA, as decision-maker, decides
what evidence, material or documents it considers relevant to the show cause
process. It is
given wide powers of investigation by s 179(2) of the Building
Act.
19 In Singleton v Victorian Building
Authority,[10] Garde J dismissed
an application for judicial review of a decision by the VBA not to take further
disciplinary action against a building
surveyor. The plaintiff sought orders
that the VBA bring additional charges against the surveyor for using
unregistered inspectors
to inspect the building works at her property and for
failing to discharge his duties as building surveyor in a professional manner.
The VBA had already taken disciplinary action against the surveyor who was
appealing the outcomes in VCAT. Garde J
explained:[11]
Her submissions must fail. This is not a case where the authority has refused to perform its functions or denied its public duty. The authority has investigated Ms Singleton’s allegations against Mr Ross. It has given repeated consideration to the exercise of its powers to take disciplinary action against Mr Ross and held an inquiry into his conduct. It referred 383 allegations against Mr Ross to the Board for determination. Subject to review by VCAT, Mr Ross has now admitted or been found guilty of 314 allegations.
The authority’s obligations in relation to show cause notices under s 182(1) of the Building Act are plainly discretionary. First it must form a reasonable belief that one of the grounds in s 179(1) for taking disciplinary action exists, and second, propose to take action in the exercise of its discretion. The manner in which the authority performs its function is also discretionary. There is no legal basis on the evidence to interfere with the exercise of the authority’s discretion not to take further disciplinary action against Mr Ross.
20 Singleton has significance to the determination of a number of Mr Draper’s grounds.
The show cause process against the RBS
21 As stated, the Show Cause Notice was dated 28 November 2019. The VBA ended the show cause process against the RBS by a decision dated 17 March 2020 and the reasons for decision were dated 8 April 2020.
The Show Cause Notice allegations
22 The first ground of the Show Cause
Notice alleged that the RBS had failed to adequately respond to Mr
Draper’s concerns regarding
the Finished Floor Level (‘FFL’)
and Finished Ground Level (‘FGL’) of the house.
23 The VBA found that the RBS had contravened
regulation 1502(a) in respect of the first ground. It stated that
‘particularly
if the owner seemed unreasonable and unwilling to accept
facts, it is considered that a response in writing should have been provided
to
the owner to clearly explain in relation to the FFL and FGL that the plans were
compliant with the [Building Code of Australia]
and that the constructed slab
was compliant with those plans’. However, the VBA accepted the existence
of a significant personal
mitigating factor relevant to the RBS’s conduct
and that the contravention was a single instance relating to a best practice
standard of professionalism and did not relate to a statutory function. The VBA
stated:[12]
In all the circumstances, the VBA considers that taking any disciplinary action for this contravention of regulation 1502(a) would be disproportionate. While some disciplinary action might be appropriate for general deterrence purposes to signal that an adequate response to an owner’s queries about compliance is expected when performing work as a competent and professional building surveyor, the VBA considers the individual factors outweigh the general deterrence purpose in this case.
24 The second ground of the Show Cause
Notice concerned the RBS’s actions in issuing a building permit when he
could not have
been satisfied that the building of the frame would comply with
the Act and the Regulations. The Show Cause Notice alleged that Condition
4 of
the building permit failed to require that the roof truss/frame design
documentation was provided to the RBS prior to the manufacture
and installation
of the frame.
25 However, the VBA did not accept
that the RBS had breached s 24, and concluded
that:[13]
On reflection, the failure to ensure that Condition 4 of the building permit required that the design documentation to be provided to you prior to manufacture of the frame does not mean that you should have refused the application for the building permit under section 24 of the Act. This failure should instead have been proposed in the Show Cause Notice as falling below the standard required of a competent and professional building surveyor under regulation 1502(a). Nevertheless, having accepted that the weight of the solar collector panels was incorporated into the engineering design, it is not considered that disciplinary action is warranted for this contravention in any event.
The VBA is not satisfied that a contravention of section 24 is established.
26 The third ground of the Show Cause Notice was that the RBS approved the frame inspection when its design and construction were not compliant and the required approvals had not been provided. It alleged that the design of the roof truss did not allow for the additional loading of a solar hot water system and was not compliant with the endorsed drawings and specifications. The VBA concluded that:[14]
...the VBA accepts the design of the roof truss for the site allowed for the additional loading of the solar collector panels noted on the endorsed plans. On that basis, the VBA accepts it was reasonable for you to approve the frame/truss documentation as consistent with the endorsed plans.
27 The VBA’s decision then dealt with allegations that the frame construction displayed incomplete or non-compliant items, the first being gaps in the hips/truss connections and the second being whether clout nails were missing from the bracing for the ensuite wall. It did not consider these grounds established. The next item was whether the bottom plate in the ensuite wall was excessively cut back and appeared cracked where unsupported by the slab. The issue was whether the frame was compliant with the regulations after installation of the lintel as specified in Item 21 of the frame inspection report. The VBA found that:[15]
Following the completion of Item 21, the wall frame for the external ensuite wall did not comply fully or substantially with the BCA (and therefore with the Regulations) or the frame manufacturer’s requirements. In those circumstances, your conduct in providing approving the frame inspection falls below the standard expected of a competent and professional building surveyor.
28 However, the VBA considered this
contravention was of a very minor nature. It considered that an appropriately
qualified expert
would have confirmed that the alternative construction met the
Performance Requirement with no, or only minor, further rectification
required
if an alternative solution had been confirmed prior to the frame complete
inspection.[16]
29 The
next item was whether roofing battens should have been installed before the
frame stage was considered complete. This issue
was included as a non-compliant
item in the Show Cause Notice based on the opinion of Mr J Weijers, a VBA Senior
Technical Adviser,
that roof battens were required to be installed as part of
the roof frame in accordance with the frame manufacturer’s specifications.
30 The VBA was satisfied that the installation of
roof battens was not required for the ‘frame work’ to be considered
complete. The Building Code of Australia (‘BCA’) required the roof
battens to be installed in accordance with AS 1684
as part of roof cladding, not
as part of the frame.
31 The next item concerned a
50mm slab overhang beyond the bottom plate to the side of the garage and the
bedroom’s two external
walls. However, the VBA accepted that it had not
been decided to cut the slab, and said that it would have been preferable if the
report of the frame complete inspection had noted that
decision.
32 The VBA concluded that a contravention
of regulation 1502(a) occurred in respect of the non-compliant item being the
excessively
cut back bottom plate on the external ensuite wall. However, as
previously mentioned, it concluded that given that this very minor
contravention
was the only item remaining from the Show Cause Notice, it did not believe that
any disciplinary action was warranted.
33 The VBA contested Mr Draper’s
standing to bring the application. It argued that he had no more than a mere
intellectual or
emotional concern in the VBA’s decisions about the RBS and
the RBI, using the words of Gibbs J in Australian Conservation Foundation
Incorporated v The
Commonwealth.[17] It argued that
this proceeding should be distinguished from Mr Draper’s previous
proceeding,[18] which concerned
whether Mr Draper was a person affected under 
s 2 
of the Administrative Law
Act 1978 (the ‘ Administrative Law Act ’) for the purpose of
requesting reasons for the BPB’s decision under s 8 of that
Act.
34 Section 184 of the current Building Act
states that, for the purposes of the Division which contains the disciplinary
proceedings provisions, ‘affected person’
means ‘a person
directly affected by a reviewable decision’. The VBA submitted that Mr
Draper was not directly affected
by the disciplinary decisions involving the RBS
and the RBI. His interests as a person who had made complaints did not reach the
threshold required to satisfy the definition of ‘affected person’ in
the current Building Act. Accordingly, he did not have the standing required to
bring this proceeding.
35 In addition, the
VBA’s decisions in the show cause process were more limited than those
which the BPB could have made when
inquiring into Mr Simonds’ conduct in
2018. The VBA was limited to determining whether the grounds in the Show Cause
Notice
were established, and if so, whether it should take the disciplinary
action proposed, or a lesser form of disciplinary action or
no disciplinary
action.
36 In an earlier judgment, I accepted that
Mr Draper was a person affected by the BPB’s decision within the meaning
of s 2 of the Administrative Law
Act .[19] He was the complainant and
under the pre-amendment Act was entitled to seek a review of a BPB decision in
VCAT. The VBA also accepted
that the test of standing for this proceeding was
relevantly the same as the test for whether a person was a person affected by a
decision within the meaning of the Administrative Law
Act .[20] However, the VBA submitted
that, to the extent that Mr Draper’s application was brought under the
Administrative Law Act , much of the conduct of which he complained, was not a
‘decision’ or ‘decisions’ within the meaning of that
Act, and therefore it did not apply.
37 Mr Draper
submitted that from the moment he made his complaint about the RBS and the RBI,
he had an accrued right under s 14(2)(e) of the Interpretation of Legislation
Act 1984 (‘ILA’) to seek review of the VBA’s
decision. He argued that the definition of the new term ‘affected
person’, by requiring
that an applicant be ‘directly
affected’, was invalid because it was incompatible with the common law of
Victoria.[21] What mattered was that
he had standing under the Administrative Law
Act .[22]
Analysis of Mr Draper’s standing
38 I consider that Mr Draper did have
standing to commence this proceeding. He was the complainant and his complaint
led to the show
cause procedure. He has more than a ‘mere intellectual or
emotional concern’ in the VBA’s
decision.[23] He has a special
interest in the subject matter of the proceeding, being the validity of the
VBA’s consideration of his complaints
about the construction of his house,
including the disciplinary action taken against the building practitioners
concerned. The VBA
decision concerned the quality of professional services
performed by building practitioners in connection with the construction of
his
house. As the Court of Appeal has recently stated: ‘the standing rule
based on a “special interest”, focuses
on the relative position of
the plaintiff when compared with the broader
population’.[24] A special
interest is sufficient even if it is accompanied by an emotional or intellectual
concern.[25] Although Mr Draper has
much broader concerns about the regulation of the Victorian building industry,
they do not detract from the
special interest in the subject matter of the
proceeding and the validity of the VBA decision. The fact that under the
post-amendment
Act he no longer had a statutory right of review does not remove
his common law rights of judicial review. The post-amendment Act
does not
expressly provide for a consumer to bring a complaint, however, s 183B makes
clear that a person who lodges a complaint
with the VBA in relation to a
registered building practitioner is not liable for any loss, damage or injury
suffered by another person
if that complaint was in good faith. The VBA must
give the complainant a copy of its decision ending the show cause
process.[26] The post-amendment Act
acknowledges the avenue by which a person may make a complaint to the
VBA.
39 While the VBA is performing a regulatory
function for the benefit of the community and Mr Draper cannot obtain a remedy
from the
VBA show cause process, he still has a special interest in ensuring
that it is validly conducted. He has a greater interest in a
show cause
procedure arising from his complaint than other members of the public. He also
has a greater connection than other members
of the public in any relief that the
Court might grant, if his case succeeded, including orders requiring the VBA to
re-conduct the
show cause procedure.
40 I note that
in Singleton, no point was taken about the plaintiff’s standing to
seek judicial review orders requiring the VBA to bring additional charges
against the building practitioner under the post-amendment Act show cause
procedure.[27]
41 I
will next consider Mr Draper’s grounds for seeking judicial review.
42 Mr Draper’s proceeding against
the RBS in S ECI 2020 03774 contains twenty-five grounds. The proceeding against
the RBI in
S ECI 2020 03775 contains twenty-two grounds, all of which were also
raised in S ECI 2020 03774, save for minor changes which did
not alter their
essence. The grounds that are unique to this proceeding and were not raised in S
ECI 2020 03775 are the tenth, eighteenth,
and nineteenth
grounds.
43 I have grouped Mr Draper’s grounds
into categories for the purposes of this judgment.
Grounds 1 and 2: Notice and reasons
44 Mr Draper’s grounds 1 and 2 are:
s.8
Administrative Law Act , where it consistently and wilfully continues to
frustrate administrative review processes, working to knowingly undermine the
rights
of persons affected by its decisions?45 Mr Draper submitted that the VBA failed to provide him with a statement of reasons, despite being obliged to do so. Although his originating motion sought the provision of a statement of reasons, he argued at the hearing that if such a statement was provided, it ‘would be nothing more than a document of excuses concocted to protect the position of the Victorian Building Authority’.[28] Mr Draper submitted that the VBA’s letter to him of 20 April 2020 failed to provide notice of its decision, as it lacked substantial relevant information when compared to the usual, best practice notices of decision given by the VBA in related matters.
46 The VBA submitted that it exercised
its powers in accordance with s 183(1) of the post-amendment Act which required
it to give
notice of the relevant decisions to Mr Draper, although the Act and
its regulations did not prescribe the form of that notice. Its
letter of 20
April 2020 complied with the requirements of s 183(1) by detailing the decision
made after the show cause process against
the
RBS.
47 Mr Draper was not entitled to receive
reasons under the Administrative Law Act , but even if he was, it did not
prescribe a time within which they had to be provided. Even if it had breached
any requirement to
give reasons, that would not have invalidated the underlying
decision which Mr Draper challenged.
48 Section 183(1) requires the VBA to
give notice of a decision but does not prescribe the form or detail required.
The VBA accepted
that Mr Draper was entitled to receive that notice, as he was a
person who made a complaint to it.
49 The
VBA’s three page letter dated 20 April 2020 was addressed to Mr Draper and
was headed ‘Outcome of Disciplinary
Proceedings Regarding Mr Kevin Wilson
and Mr Clem Giambattista.’ It identified the relevant disciplinary
proceedings, outlined the history of the Show Cause Notices and stated the
VBA’s decision
on the grounds contained in the Show Cause Notice and the
outcome of each process in reasonable detail. The notice complied with
s 183(1)
of the Building Act.
50 I consider that Mr Draper
was a person affected by the VBA’s decision within the meaning of s 2 of
the Administrative Law Act and therefore was entitled to be furnished with
written reasons ‘within a reasonable
time.’[29] He made the
complaint that led to the show cause procedure and he was entitled to receive a
copy of the VBA’s reasons. Mr Draper
did not receive the reasons quickly.
While they were dated 20 April 2020 in respect of decisions made on 17 March
2020, Mr Draper
did not receive them until 14 August 2020, because the VBA used
an out of date address to attempt to send them to him. However, on
the evidence
before me, it is not possible to attribute fault to either party for this error.
The letter was dated 20 April 2020,
which was a month after the decisions on 17
March 2020. Copies of the full statement of reasons were not sent to him until
29 April
2021, but I consider that the letter of 20 April 2020 was adequate in
providing reasons. In any case, the delay does not provide a basis for
granting the underlying relief Mr Draper seeks.
51 In the previous judgment, dealing with Mr
Draper’s application for reasons, I said of the adequacy of
reasons:[30]
To satisfy
[Section] 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. ... A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
The Board was neither required to give reasons for findings that it did not make, nor was obliged to make. But, it did furnish reasons which set out the findings that it did in fact make and which it considered material to the decision, namely, the conclusions of fact about the allegations that it reached. It did not have to assess other evidence or provide any written reasons concerning additional evidence. There was no obligation to provide details of why evidence was not taken into account.
The Board’s reasons, in my opinion, were sufficient and adequate to enable a court to see whether or not the decision involves any error of law. They contained the following features: (1) an acknowledgement of the evidence relevant to findings of facts, including the photographs; (2) a discussion of the probity of the evidence as a result of the passage of time; (3) which evidence was preferred; (4) conclusions about Mr Simonds’ conduct; (5) an acknowledgement of competing arguments raised by counsel for Mr Simonds and counsel assisting the inquiry; and, (7) a conclusion of fact about the allegation.
Indeed, Mr Draper was able to identify what he contended were errors of law in the reasons, including a failure to consider significant matters.
52 I consider that the VBA’s
reasons contained in its letter of 20 April 2020 were adequate for the purpose
of s 8 of the Administrative Law Act as they set out its findings concerning the
grounds of the Show Cause Notice and explained the basis on which they were
made. Grounds
1 and 2 are not established.
Grounds 3 and 4: The validity of s 182 of the Building Act
53 Mr Draper’s grounds 3 and 4 are:
54 Mr Draper submitted that s 182 in the current Building Act was invalid because it assumed the guilt of the building practitioner before the statutory process was followed. Because the Building Act requires a Show Cause Notice to state the VBA’s intention to take disciplinary action, as well as the penalties and sanctions to be applied if the allegations are proved, the Notice deems the building practitioner to be guilty before they have had a right to be heard. Similarly, Mr Draper submitted that s 182(2) requires the VBA to act in a manner that contravenes natural justice.
55 The VBA submitted that the show cause provisions of the Building Act were valid as Parliament had the power to enact them. The VBA was obliged to follow the show cause procedure. Common law obligations to provide natural justice can be excluded by clear words in legislation. The provisions of the Building Act were clearly expressed and were consistent with natural justice. They gave the practitioner the opportunity to be heard.
56 Section 182(1) of the Building Act
requires the VBA, if it ‘reasonably believes a ground for taking
disciplinary action against a registered building practitioner
exists and
proposes to take that action’, to give that practitioner a Show Cause
Notice. The VBA’s power and obligation
to take disciplinary action are
fettered by its need to reasonably believe that a ground exists. The Show Cause
Notice must state
the proposal to take disciplinary action, the proposed action,
the registration relevant to the action, the ground for the proposed
action, an
outline of the facts and circumstances forming the basis of the ground, and
invite the practitioner to show why the proposed
action should not be taken. The
show cause period must be for at least 14 days after the Show Cause Notice was
given to the registered
building
practitioner.[32]
57 Parliament has the power to enact legislation
that may limit a person’s right to natural justice by clearly stating that
intention. The language of the Building Act establishing the show cause process
is clear and within the power of Parliament to enact. State Parliaments have the
plenary power
to make laws for the peace, order and good government of their
State.[33] The Parliament adopted
the show cause procedure, a procedure that exists in other regulatory schemes
and included a right for the
building practitioner to be heard by making
representations after receiving the Show Cause
Notice.
58 The VBA did not make a jurisdictional
error by following the process contained in the Building Act. Grounds 3 and 4
are not established.
Ground 12: VBA’s reliance on the post-amendment Building Act
60 Mr Draper claimed the right to seek review of the VBA’s decision under the pre-amendment Act, which was the applicable legislative scheme at the time of his complaint. He argued that the VBA had misapplied the transitional provisions contained in the amending Act, which continued the BPB as the decision-maker and obliged it to complete any functions enlivened prior to its abolition. The VBA chose to retrospectively apply the amended legislation and thereby stripped him of his right to seek a review. The result was that two persons on the same building site contravened the same legislation at the same time, but were not dealt with under the same disciplinary regime.
61 The VBA relied on the fact that Mr
Draper’s complaints were made on 2 August 2017, by which time the BPB had
been abolished,
the inquiry process had been replaced by the show cause process,
and s 182A of the pre-amendment provisions had been repealed. The Show Cause
Notices were issued on 28 November 2019 and the VBA’s decisions
were made
after 1 September 2016 when the show cause procedure had commenced. Any
disciplinary inquiry and sanctions affecting the
RBS and the RBI could only be
taken under the post-amendment show cause procedure.
62 Therefore, even if Mr Draper had made his
complaints in 2015, that would not change the above analysis, as the BPB only
had the
power to continue and determine an inquiry under the pre-amendment Act
if it had commenced that inquiry before 1 September 2016.
But, it commenced that
process after that date. Therefore, disciplinary action could only be taken
against the RBS and RBI under
the show cause process in the post-amendment
Act.
63 Regardless of whether Mr
Draper’s complaint was to be treated as made in 2015 or on 2 August 2017,
in my opinion the VBA’s
analysis is correct. If the complaint was deemed
to have been made in 2015, Mr Draper did not have a right to have the BPB hear
it,
as the BPB did not commence an inquiry, and has since been abolished. If the
complaint was made on 2 August 2017, then the applicable
legislation is the
post-amendment Act with the show cause procedure. On the evidence, the VBA
commenced an inquiry after 1 September
2016 and was correct to use the
post-amendment show cause procedure. The case differs from Mr Draper’s
complaint against Mr
Simonds which was deemed to have commenced in May 2015 and
thus was governed by the pre-amendment
procedure.
64 Mr Draper did not have an accrued
right under s 14(2)(e) of the ILA to have his complaint heard and determined
under the provisions of the pre-amendment Act. The transitional provisions
did
not apply as the inquiry was commenced after 1 September 2016. This conclusion
is consistent with the Court of Appeal’s
decision in Ross v Building
Practitioners Board,[34]
in which the inquiry commenced no later than 30 August 2016 when the
Registrar of the Board executed the notices of inquiry and thus the inquiry
was
to be heard and determined under the pre-amendment Act.
65 Ground 12 is not established.
Grounds 5-10, 15-18, 20-21, & 25: Relevant and irrelevant considerations
66 Because many of Mr Draper’s
grounds allege that the VBA failed to take relevant considerations into account
or took irrelevant
considerations into account, I will state the legal
principles applicable to those grounds.
67 Where
relevant considerations are not stated in the legislation and no consideration
is mandatory, it is for the decision-maker
to decide what matters are relevant
having regard to the subject-matter, scope and purpose of the
Act.[35] The decision-maker may also
determine the importance to be given to matters, facts or evidence presented to,
or available to, it.
Where the decision-maker makes a finding of fact, or
decides between competing accounts of a particular event, its decision can only
be challenged as a jurisdictional error if there was no evidence to support
it.[36] The party alleging that a
decision is invalid because of jurisdictional error bears the onus of
establishing the existence of that
error.[37]
Grounds 5, 6 and 7: Consideration of AS 4440
68 Mr Draper’s grounds 5, 6 and 7 are:
69 In support of ground 5, Mr Draper
submitted that there was no evidence that the VBA considered AS 4440 in its
statements of reasons
or decisions as it was required to do. He relied on the
fact that he had brought AS 4440 to the VBA’s attention in his witness
statement. In his complaint to the VBA, Mr Draper alleged that the RBS issued a
frame stage approval that was neither complete nor
compliant with the relevant
building standards being AS 1684 and AS 4440, which dealt with roof batten
installation. The VBA’s
reasons referred to AS 1684, which deals with
Residential Timber Framed Construction but, at Section 7.2.21.1, it directs the
reader
to AS 4440. The VBA determined that battens were not part of framing, yet
AS 4440 describes roof battens as being an essential element
in the stability of
the roof structure and part of the frame.
70 In
support of grounds 6 and 7, Mr Draper submitted that the VBA erred by failing to
participate in the development of, and failing
to monitor the developments
relevant to, the regulation of building works in accordance with s 197(a) of the
Building Act, which provides that a function of the VBA is to monitor and
enforce compliance with the Act and the regulations. It had failed to
acknowledge and recognise the effects of AS 4440 on truss and bracing (batten)
installation, which were a relevant, recent development.
The VBA allowed
building work to fall below the minimum Australian Standards. Mr Draper had
provided the VBA with information confirming
that roof battens were in fact
considered part of the ‘timber frame’. Mr Weijers conceded that
point and also stated
that the failure to install roof battens rendered the
frame incomplete. The VBA obtained advice to the contrary from Mr Collina,
but
his report was not before the Court and Mr Draper had not been provided with
it.
71 The VBA responded that Mr Draper had not
established that it made the errors he alleged. The fact that it did not refer
to AS 4440
in its reasons did not prove that it had not been taken in account.
In any event, the VBA was not required to take it into account,
as the Show
Cause Notices did not allege a breach of any its requirements, and neither the
RBS nor the RBI relied on it in their
responses. It was not a mandatory relevant
consideration to be taken into account. It was for the VBA to decide the
allegations in
the Show Cause Notice that it chose to pursue against the
RBS.
72 Section 197 of the Building Act is a
facilitative provision that sets out the VBA’s functions rather than
creating obligations for it.
73 Grounds 5, 6 and 7 are beyond the
permissible scope of judicial review. This proceeding concerns the VBA’s
decisions on matters
contained in the Show Cause Notices against the RBS and the
RBI. As previously mentioned, the VBA made no jurisdictional error by
failing to
consider any fact, item, evidence or consideration, whether it be AS 4440 or
anything else, unless it was a mandatory
consideration. In this case the
allegations in the Show Cause Notice and the responses to them establish the
matters that the VBA
had to consider. It is not for the Court in a judicial
review proceeding to consider whether the allegations in the Show Cause Notice
were established, let alone consider matters which Mr Draper contends were
relevant, but which the VBA did not allege against the
building practitioner.
The Show Cause Notices and the responses to them did not raise AS 4440 as a
consideration.
74 Ground 3 of the Show Cause Notice
alleged that the RBS had contravened regulation 1502(a) by approving the frame
inspection in
circumstances where the design and construction of the frame were
non-compliant and the direction to supply the rectification instruction
from the
engineer regarding modification of the slab had not been
provided.
75 A particular of ground 3 was that
roofing battens were not installed. In its decision, the VBA noted that the
roofing battens were
not listed in the depiction of typical roof framing members
in the BCA dealing with framing. However, the requirement that the fixing
of
roof battens and batten sizes must comply with AS 1684 was expressly mentioned
in the section of the BCA which sets out the acceptable
construction practice
for roof cladding. The VBA concluded
that:[38]
On this basis, on reflection, the VBA is satisfied that the installation of roof battens is not required for the ‘framework’ to be considered complete. The BCA requires the roof battens to be installed in accordance with AS1684 as part of roof cladding, not as part of the frame.
76 The fact that the VBA did not refer to
AS 4440 in this conclusion does not establish a jurisdictional error. The VBA
decided the
RBS did not contravene regulation 1502(a) by approving the frame
inspection when roof battens had not been installed. It explained
its conclusion
and made no jurisdictional error in not referring to AS 4440. Because there was
no mandatory requirement to refer
to it, ground 5 is not
established.
77 I also do not consider that grounds
6 and 7 have been established. I have concluded that the VBA did not make a
jurisdictional
error by not expressly referring to AS 4440 in its reasons. The
VBA was engaged in the specific function of deciding allegations
contained in
the Show Cause Notices and not undertaking a general investigation of the
Victorian building industry. It carried out
its function and, in doing so, did
not breach s 197(a), which did not deal with the manner in which it should carry
out the show cause process.
Ground 8: Mr Draper’s statements
79 Mr Draper referred to his written
statement made to Ms J Schmidt, a VBA Investigator, which he described as
detailed and well-evidenced.
He contended that the VBA had not received it, or
taken it into account. As a result, it failed to properly consider the true
extent
of the misconduct about which he complained when making its decisions
about the RBS and the RBI. His written statement addressed
at least eight
issues: that the RBS issued a building permit for the construction of the
dwelling and garage without the FFLs being
stipulated on drawings; when Mr
Draper approached the RBS regarding the compliance issues, the RBS threatened
him that he would use
his financial advantage to limit his complaint; the RBS
provided misleading information to the Mitchell Shire Council when he approved
a
variation to the building permit for the relocation of the hot water service,
when the variation was actually used to stipulate
the FFLs; the RBS accepted the
roof truss design as part of the building permit when loadings associated with
the air-conditioning
and solar collectors had not been considered; the RBS and
RBI approved the mandatory frame building inspection when the framework
was
incomplete and not compliant with AS 1684 and AS 4440; the RBS allowed
modification of the completed slab without inspecting
and approving it; the RBS
and RBI allowed pre-fabricated walls to be modified on site and therefore caused
the frame to not comply
with the manufacturer’s specifications, without
requiring the builder to justify the changes thereby undermining its structural
integrity; and the RBS was sent a ‘show cause’ or ‘please
explain’ letter from the Council and appeared not
to have responded to it.
80 The VBA submitted that Mr Draper did not
establish that it had made a jurisdictional error merely because it did not
refer to his
evidence in its reasons. The Building Act did not require that it
take Mr Draper’s statement into account, but gave the VBA the task of
deciding what matters to take
into account. Having done so, the VBA’s task
was to consider whether the grounds specified in the Show Cause Notices were
established,
and if so, what action should follow. It was for the VBA to decide
what grounds or allegations to include in the Show Cause Notice.
The VBA’s
reasons in its Notice of Decision were reasons for dealing with the show cause
grounds, and not reasons about issues
not included in those grounds, or which
were contained in Mr Draper’s statement.
81 I accept the VBA’s submission on
this ground and that it was given the authority to decide what evidence was
relevant to
the allegations raised in the RBS Show Cause Notice, and what weight
to give to that evidence. The Building Act does not specify what evidence or
matters the VBA must take into account in deciding allegations contained in Show
Cause Notices,
with the exception of the building practitioners’
responses. The VBA was not required to expressly refer to Mr Draper’s
statement in its reasons. Mr Draper’s complaint initiated the show cause
process. The context of the Show Cause Notice suggests
that the VBA considered
Mr Draper’s written complaint, which contained much of what was in his
witness statement and as result
prepared the grounds of the Notice. In that
manner, his complaints and parts of his statement were taken into account, even
if not
all of them were the subject of allegations in the Show Cause
Notice.
82 Ground
8 is not established.
Ground 9: Personal impact statement
84 Mr Draper submitted that the VBA erred
by allowing the RBS and the RBI to provide responses outlining mitigating
factors while
refusing to allow him to provide an impact statement about how the
conduct of the RBS and the RBI affected him.
85 The
VBA submitted that Mr Draper did not have a right to be heard as part of the
show cause process against the RBS and RBI, because
he was not party to that
process. Section 182 of the Building Act gave the RBS and the RBI an entitlement
to make responses to the Show Cause Notices, and the VBA was required to take
them into account,
including any mitigating factors that they
established.
86 The VBA also submitted that there
was no evidence that it refused to allow Mr Draper to provide a statement, and
that he had not
established that his personal impact statement was a mandatory
relevant consideration.
87 The VBA is a regulatory body
exercising the statutory function of investigating and disciplining building
practitioners. The Building Act did not provide for Mr Draper to make a personal
impact statement, and contained no mandatory requirement that the VBA consider
any
such statement, although it could have chosen to accept such a statement.
Although Mr Draper made the complaints that led to the
Show Cause Notice, he was
not party to the show cause processes against the RBS and the RBI. The RBS and
the RBI were allowed to
provide statements because s 182 of the Building Act
gives practitioners, who are the subject of the Show Cause Notice, the right to
make representations in response. The VBA’s
reasons for decision
acknowledged that VCAT had ordered the demolition of the slab for Mr
Draper’s house arising out of his
contract with the builder.
88 Ground 9 is not established.
Ground 10: Alleged intimidation
89 Mr Draper’s ground 10 is:[39]
90 Mr Draper alleged that the RBS
attempted to intimidate him by making a comment about having ‘deeper
pockets than [him]’
while refusing to act properly and address
non-compliant works. He argued that this comment demonstrated that the RBS
intended to
contest the complaint rather than exercise his professional
functions as a surveyor. The VBA did not consider this comment when making
its
decision regarding the RBS.
91 The VBA submitted
that Mr Draper’s ground 10 did not identify any jurisdictional error. The
alleged comment was referred
to in the Notice of Decision issued to the
RBS,[40] thereby indicating that the
VBA had considered the RBS’s email. But it was for the VBA to determine
the importance it gave
to the email. It exercised a discretion in deciding what
allegations were included in the Show Cause Notice and was not obliged to
raise
an additional allegation against the RBS concerning the
email.[41]
92 The Notice of Decision issued to the RBS shows that the email containing the RBS’s comments was before the VBA. It had the task of deciding what significance to attach to it. The RBS’s comments conveyed forcefully that he would contest, and had the financial capacity to contest, allegations that he had breached his professional duties. However, the comments in the email on which Mr Draper relies, when read in the context of the email chain in August 2014 in which they appeared,[42] were not probative of matters alleged in the Show Cause Notice. Ground 10 is not established.
The design of the roof truss did not allow for the additional loading for a solar hot water system. The design was not compliant with the endorsed drawings and specifications.
95 Timbertruss was the manufacturer of the trusses used in the construction of Mr Draper’s house. In an email of 5 February 2020 to the RBS, on which he relied in his response to the Show Cause Notice, Mr R Wallace of Timbertruss stated:[43]
Item 5. Solar collector panels are vastly different from a solar water system. Collector panels weigh around 35kg and with this weight spread across 2 or three trusses generally has no effect on the roof truss design. Solar water systems have tanks and can weigh between 200kg & 500kg [dependent] on size. As a result require major design changes to the truss designs in these area. On this particular design we did not apply any additional load. In testing the truss with an additional 20kg placed on the top chord, no changes occurred to the design of the T2 trusses.
There are thousands of people that have installed solar panels on trussed rooves that never had an allowance in the initial design!
96 The VBA accepted that the Timbertruss email was relevant to the roof truss design stating:[44]
The Timbertruss response provides confirmation for the speculation in the Collina Report that the weight of the solar collector panels was incorporated into the engineering design and counters the opinion expressed in the second Weijers statement that the absence of stamped members indicating additional loading for solar collector panels would be expected. Based on the Timbertruss response, the VBA accepts the design of the roof truss for the site allowed for the additional loading of the solar collector panels noted on the endorsed plans. On that basis, the VBA accepts it was reasonable for you to approve the frame/truss documentation as consistent with the endorsed plans.
97 Mr Weijers of the VBA prepared a
statement dated 13 March 2018. He had inspected the property on 24 June 2015 and
20 July 2015
and provided a report for the VBA Building Investigations Unit
‘correlated to a complaint received by the Building Practitioners
Board
relating to building work carried out at the site by the Simonds Homes Pty
Ltd’. He observed that the building work included
a partially constructed
dwelling and garage and that the concrete slab had been poured and timber
framing, including roof trusses,
had been erected. Guttering and fascia had been
installed and the timber was showing signs of weathering. The roofing battens
had
not been installed; some of the trusses exhibited distorted top chords;
there were large gaps between hip connections and trusses;
the design did not
provide for solar water panels but the trusses had been marked for ducted
heating loads only; wall junctions throughout
the house had not been nailed in;
top plate connections at the rear of the garage wall junctions required blocks
and gang nail connector
plates; clout nails were needed to speed brace the wall
between bedroom 3 and the bathroom; only one screw had been used to secure
the
metal fascia and the bottom plate of the ensuite had been excessively cut back
to facilitate the fitting of the shower base and
was cracked where it was
unsupported by the slab.
98 In a further statement
dated 23 August 2018, Mr Weijers contended that due to the construction being an
engineered wall frame and
roof truss design, AS 1684 did not strictly apply and
that compliance was obtained by meeting ‘the pertaining Specification,
Guidelines and Instructions of the frame and roof manufacturer at the time of
construction’. The roof layout plan did not notate
additional loading for
a solar hot water system and the trusses had not been designed to account for
such a system. He stated:
I took photos of the trusses noting the stamped impression on members dedicated for the ducted heating unit and I also noted the pipe work installed for the solar hot water system but there were no stamped members to indicate additional loading for the solar hot water panel. On that basis the trusses have not been designed to account for the solar hot water system. I confirm this item is not compliant with the endorsed drawings and specifications.
The inspector should have noted this upon his inspection. He should have linked the difference with the architectural drawings, showing that solar panels were required and the note 5 on the truss layout plan.
Note 5 on the truss layout plan
stipulated that ‘trusses have not been designed to support any additional
loads’.
99 A Building Inspector employed by
the VBA, who accompanied Mr Weijers on the inspection on 24 June 2015, recorded
in his statement
that:
Loading of trusses with solar hot water panels had not been designed for. Trusses had been marked for ducted heating loads only. There were no markings for solar panels.
100 Mr P Collina prepared a Technical Report for the VBA. It is unclear when the report was prepared and it was not in evidence. Mr Draper was critical of the VBA for obtaining it. However, the RBS and RBI in their responses to Show Cause Notice quoted the following parts of the report:
In relation to the issue of the roof trusses not being designed for the air-conditioning unit and solar panels on the roof, the plans approved by the RBS as part of the original building permit issued on 26/06/14 and the amended plans approved by the RBS on 07/07/14 clearly showed on the elevations (Elevation Band Elevation C) that solar collector panels and an evaporative air conditioning unit was to be located on the roof.
It is normal practice that the manufacturer of the prefabricated timber framing designs the wait framing and roof trusses according to the information shown on the drawings. This includes any additional loads on the roof or on the ceiling such as solar collector panels and an evaporative air conditioning unit.
The Timbertruss truss layout plan Job No. 75527AAA contains a note “NB DH labelled trusses have been designed to support a ducted heating unit with max weight of 100 kg. Platform to support must be located on ALL three trusses and spread load evenly. Platform detail and supply by others”.
The Timbertruss Abbreviated Comps PDF Job No. 75527AAA dated 10/07/14 also contains a note “Additional girder loadings by user-Air-conditioning Unit>Weight (kg) 100.0, Start (mm): 3623.0, Width (mm) 600.00, No Support. Trusses: 3”. This demonstrates that the weight of the Air-conditioning unit has been allowed for in the design of the roof trusses. There is no mention of the solar panels. It is possible that the weight of these panels is incorporated in the engineering design of the trusses as the weight of the panels is significantly less than the weight of concrete roof tiles.
It is not clear from the information in the files if the Timbertruss design was provided to the RBS prior to the construction of the frame or prior to the frame inspection, although a number of items on Kevin Wilson’s frame inspection report dated 31/07/14 makes reference to truss and girder numbers which must have been shown on plans provided by Timbertruss.
There is insufficient evidence that the Building Inspector or the RBS failed in their duties with respect to the roof truss design.
101 Mr Draper submitted that the VBA made
a jurisdictional error by relying on the Timbertruss email, because it contained
an irrelevant
opinion from a conflicted manager or employee who produced the
inadequate design and it was prepared five years after the fact. Mr
Draper
referred to engineering and design documents published by MiTek, the designer of
the frame, which stated that all extra loads
needed to be included in frame
design computations. He submitted that Timbertruss neglected that advice and
provided the email to
cover up its errors. Contrary to the email, the approved
design documents made clear that the roof design did not include the solar
water
collectors or the evaporative cooler. The VBA should have accepted those
documents as the relevant evidence.
102 The VBA
accepted that it had received the Timbertruss email as part of the RBS’s
and the RBI’s responses to the Show
Cause Notices. As a result, the VBA
was required to consider it and decide the importance to give it. The VBA noted
that both the
second Weijers statement and the Collina Report pointed out that
the truss layout plan established that the trusses had not been
designed to
support additional loads and that it had been marked for ducted heating and not
for solar hot water/solar collector panels.
103 The VBA relied on the Timbertruss
email as providing confirmation of the speculation in the Collina Report that
the weight of
the solar collector panels had been included in the design
drawings.[45]
104 The
VBA was obliged to consider the Timbertruss email submitted by the RBS and the
RBI in response to the Show Cause Notices and
to draw its own conclusions about
the accuracy of its comments and conclusions. The VBA referred to Mr
Weijers’ opinion but
considered that he ‘did not identify what
apparatus was to be placed on the roof’ i.e. whether the solar collectors
or
the solar hot water system. It also referred to the Collina Report. It
decided that the design of the roof truss allowed for the
additional loading
solar collector panels noted on the endorsed plans. The VBA’s findings
were primarily of fact which it reached
after it had considered the relevant
evidence. Such findings of fact do not give rise to a jurisdictional error.
Ground 15 is not
established.
Ground 16: Load of solar hot water collectors and evaporative cooler
106 Mr Draper submitted that the VBA had
made a jurisdictional error by asking itself the wrong question of whether the
roof was designed
to include only the loading of the solar hot water collectors,
and failing to address the evidence which showed that a larger load
caused by
the installation of the evaporative cooling unit was not included in the
engineering design.
107 As mentioned, the
first allegation in ground 3 of the Order to Show Cause was: Approving the frame
inspection when the design and construction of
the frame was not compliant and
the required approvals were not provided. The first particular of this
allegation was:
Both the Weijers second statement and the Collina Report point out that the truss layout plan notes that trusses had not been designed to support additional loads and that it was marked for ducted heating but not for solar hot water/solar collector panels.
110 The VBA submitted that Mr Draper, in
effect, was seeking the inclusion of a different ground of disciplinary action
in the Show
Cause Notice, being that the VBA should have alleged that the roof
was not designed to carry the extra load, rather than that it
was not capable
of, or did not allow for, carrying that load.
111 The VBA again submitted that it had the
discretion to decide which grounds it would include in a Show Cause Notices
issued to
the RBS and the RBI.[47]
112 As previously mentioned, Singleton
establishes that the VBA has the discretion to determine which grounds it
relies on as part of disciplinary action against building
practitioners. It was
open to the VBA to decide to state the relevant ground as whether the roof
allowed for the extra load rather
than whether it was designed to carry the
extra load.
113 The VBA relied on Mr Weijers’
second statement and the Collina Report in reaching the conclusion that the
truss layout plan
noted that the trusses had not been designed to support
additional loads and it was marked for ducted heating but not for solar hot
water/collector panels. The VBA treated the issue as whether the design of the
roof truss incorporated the solar water panels into
the engineering design. It
found that the Collina Report and the Timbertruss email supported the conclusion
that it did. It was for
the VBA to decide whether to draw that conclusion from
that evidence rather than make a decision based on the design drawings.
114 The VBA’s decision did not refer to the
evaporative cooling unit to which ground 16 refers but focused on the solar hot
water system and the solar collector panels. Mr Weijers’ statements
mention only the solar hot water system and the collector
panels. The Show Cause
Notice raises the solar hot water system and panels but not the cooler. The VBA
stated:[48]
The VBA accepts your submission that Mr Weijers did not identify the apparatus to be placed on the roof and that he uses two terms (”solar hot water system” and “solar hot water panels”) in the second Weijers statement. Overall, it is considered the second Weijers statement expresses an opinion regarding the absence of evidence of stamped members indicating additional loading for solar hot water panels.
115 Ground 16 is not established.
Ground 17: Other evidence and MiTek
117 Mr Draper submitted that there was no
evidence that the VBA obtained any information regarding MiTek’s
engineering design
of the frame other than from the Timbertruss email. As a
result, it did not carry out an independent investigation, or seek evidence
about these matters. It already had Mr Weijers’ evidence and did not need
to obtain evidence from Mr Collina.
118 While
Timbertruss manufactured the trusses, they had to be installed in accordance
with AS 4440 and the specifications published
by MiTek, which was the design
engineer of the roof structure. It produced a frame design software which was
used by most truss and
off-site wall manufacturers. The building designer was
responsible for documenting the overall design specifications, including all
loads carried by the roof structure. The Australian Standards required solar
panels and evaporative coolers, which were to be placed
on a roof, to have been
approved as part of the engineering design. The relevant design documents
recorded that the design did not
include any other roof load than that marked.
The VBA erred in concluding that the solar panels were included in the design.
119 The VBA submitted that Mr Draper had not
established that the only evidence that it considered about the design frame was
the
Timbertruss email. The VBA’s reasons demonstrated that the delegate
had considered other evidence, including the opinions of
Mr Weijers and Mr
Collina. The VBA was not obliged to obtain the further information from MiTek to
which Mr Draper referred and was
empowered to decide the evidence on which it
would rely. The VBA’s reasoning on this point was clear in the following
passage:[49]
Based on the Timbertruss response, the VBA accepts the design of the roof truss for the site allowed for the additional loading of the solar collector panels noted on the endorsed plans. On that basis, the VBA accepts it was reasonable for you to approve the frame/truss documentation as consistent with the endorsed plans.
120 It is important to note that
jurisdictional errors are rarely established by contentions that a
decision-maker has not had regard
to evidence or material, unless they concern
mandatory considerations. Mr Draper has not established that the VBA made a
jurisdictional
error by not seeking or obtaining information from MiTek or from
the person who put the data into the software. The Building Act did not contain
any such mandatory requirement. The VBA was required to consider Mr
Weijers’ statements and Mr Collina’s
report because they were relied
on by the RBS and the RBI.
121 While discrepancies
may exist between MiTek’s designs and Timbertruss’ designs, it was
not unreasonable for the VBA
to rely on the Timbertruss email. Even if the VBA
had received material from MiTek, it was still open to it to prefer the evidence
from Timbertruss. The Timbertruss response stated that the design of the roof
allowed for the additional loading of solar collector
panels, which were
relatively light compared to solar hot water systems and did not need to be
expressly indicated on its designs.
This approach was consistent with the
Collina Report.[50] While other
MiTek materials and the second Weijers statement said that the Timbertruss
design documents should have indicated additional
loading for solar hot water
panels, it was open to the VBA to rely on the Timbertruss email, the Collina
report, and the RBS’s
response to conclude that the RBS acted reasonably
in approving the frame and truss documentation. Ground 17 is not
established.
Ground 18: Section 24(2) of the Building Act
122 Mr Draper’s ground 18 is:[51]
On 2 June 2014, you contravened section 24(1)(a) of the Act because you issued a building permit for the site in circumstances where you could not have been satisfied that the building of the frame would comply with the Act and Regulations.
Particulars:
- The application for the building permit did not contain sufficient information and documentation to enable you to be satisfied the construction of the frame would comply with the Act, Regulations and permit.
- The inclusion of Condition 4 to the building permit was not sufficient to ensure the construction of the frame would comply because Condition 4 did not require the relevant information and documentation to be provided to you for approval prior to the construction and installation of the frame.
Prior to the Mandatory Frame Inspection Stage, the builder shall supply the engineered design documentation for any prefabricated Walls (including bracing design), Floors and/or Roof Truss Computations to the Relevant Building Surveyor.
125 Mr Draper submitted that the VBA erred by taking into account ‘special conditions’ added to the building permit, which he claimed were in breach of s 24(2) of the Building Act and regulations 301 and 302. Section 24 states:
24 Refusal of building permit
(1) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that—(a) the building work and the building permit will comply with this Act and the building regulations; and
(b) any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or taken to have been obtained in accordance with Schedule 2; and
(c) any relevant planning permit or other prescribed approval has been obtained; and
(d) the building permit will be consistent with that planning permit or other prescribed approval.
(2) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit that imposes on the applicant lesser or greater standards or requirements than those prescribed by this Act or the building regulations, unless permitted to do so by this Act or the building regulations.
...
126 Regulations 301 and 302 stated:
301 Applications for building permits
(1) An application for a building permit may be in accordance with Form 1.(2) The prescribed information to be contained in the application is the information set out in Form 1 (other than the notes).
(3) An application for a building permit must contain sufficient information to show that the building work will comply with the Act and these Regulations and the relevant provisions of this Part.
302 Application for permit to construct building
(1) An application for a building permit to construct a building must be accompanied by—(a) 3 copies of drawings showing the plan at each floor level, elevations, sections, dimensions, the sizes and locations of structural members to a scale of not less than 1:100, together with any details that are necessary to show compliance to a scale of not less than 1:20, or other approved scales; and
(b) 3 copies of specifications describing materials and methods to be used in the construction; and
(c) 3 copies of allotment plans to a scale of not less than 1:500 or other approved scale showing the matters set out in subregulation (2); and
(d) a statement of the use or intended use of all buildings shown on allotment plans; and
(e) a copy of any computations or reports necessary to demonstrate that the building will, if constructed in accordance with the computations and reports, comply with the Act and these Regulations.
(2) ... (allotment plans)
(3) An application for a building permit to construct a building must also be accompanied by any additional copies of the documents set out in subregulation (1) that the building surveyor reasonably requires.
127 Mr Draper submitted that the VBA made
a jurisdictional error by not enforcing s 24(2) of the Building Act. It
incorrectly considered ‘notes’ on the permit which were contrary to
the requirements in s 24(1)(a) of the Building Act and regulations 301 and 302.
Regulation 302 requires that the building permit application includes all the
necessary or prescribed
information. The RBS was obliged by law not to
issue a building permit that imposed lesser standards or requirements than those
prescribed by the
regulations. The permit application was required to include
copies of computations that complied with the Act and Regulations. Adding
Condition 4 to the building permit allowed important documents to be provided
after its issue was unlawful and was not permitted
by s
24(2).
128 Mr Draper also argued that the RBS
approved a design that did not properly consider point loads on the truss roof
including the
air conditioner and solar water collectors. The designing of the
roof prior to the installation of wall frames might have required
changing them,
if the roof loading with evaporative coolers or solar units created new point
loads.
129 The VBA responded by again relying on
its discretion to decide what allegations to include in the Show Cause Notice.
It had included
in the Show Cause Notice an allegation that the RBS had breached
s 24 of the Building Act. The Court could not compel it to pursue additional
grounds against the RBS.[52]
130 The VBA’s Show Cause Notice
alleged that the RBS had contravened s 24 of the Building Act, but the VBA,
after considering the RBS’s response, found that allegation was not
established. The RBS in his response to the
Show Cause Notice submitted that it
was not possible to determine whether the frame design complied with the Act and
regulations
prior to the construction or installation of the frame.
131 The VBA’s Notice of Decision stated that
the RBS’s failure to ensure that Condition 4 of the building permit
required
that the design documentation be provided to him prior to manufacture
of the frame did not mean that he should have refused the application
for a
building permit under s 24 of the Act. The VBA said that this failure should
instead have led to an allegation in the Show Cause Notice of conduct falling
below
the standard required of a competent and professional building surveyor
under regulation 1502(a). The VBA
stated:[53]
Section 16(1) of the Act at the relevant time provided that building work must be carried out in accordance with the Act, the building regulations and the permit. As expressed, Condition 4 of the building permit allowed the frame and trusses to be manufactured by Timbertruss off-site and installed at the site prior to you being provided with the design documentation.
After considering your written representations, the VBA is satisfied that the weight of the solar collector panels was incorporated into the engineering design by Timbertruss...This is a significant mitigating factor concerning the failure to ensure that Condition 4 was expressed to require the design documentation prior to manufacture.
However, the VBA notes that if a design prepared by a prefabricated frame manufacturer did not in fact allow for the loads specific to the site or, say, the design specified the incorrect wind classification or incorrect roofing or ceiling materials, you are not in a position to be satisfied the construction (i.e. manufacture) of the frame/truss will comply unless you consider the design documentation prior to manufacture of the frame. In effect, you are trusting Timbertruss to design in accordance with the plans provided without checking the design is consistent with the plans prior to manufacture.
You raised the VBA’s Practice Note 2014-62 that directs that the roof truss system design and installation drawings must be submitted to the RBS prior to construction of the wall framing, and that the RBS must include a condition on the building permit that the roof truss details and layout plans are submitted prior to the installation of the wall framing. Your written representations correctly identify that the issue raised in the Show Cause Notice is the failure to express Condition 4 of the permit to require that the roof truss/frame design documentation was provided to you prior to construction and installation of the frame. You draw a distinction between the construction of the frame (occurring off-site in a factory) and installation of the frame on the building (on site), and say the latter is considered the construction of the frame for the site. You state that the correct installation of the frame is the sole purpose of the framing stage, and that the only method by which a building surveyor can be satisfied that the installation of the frame will comply is to inspect it when the frame is installed.
While it is agreed that inspection after installation is the only method by which the building surveyor can be satisfied that the installation of the frame complies with acceptable construction practice and manufacturer’s installation requirements, the RBS must also be satisfied that the manufacture of the frame will be in accordance with the permit documentation in order to comply with the Act. Of course, any discrepancy between the endorsed plans and the design documentation can, and should, be identified at the frame inspection; however, the VBA maintains that the building surveyor should be in a position to identify any such discrepancy prior to manufacture.
On reflection, the failure to ensure that Condition 4 of the building permit required that the design documentation to be provided to you prior to manufacture of the frame does not mean that you should have refused the application for the building permit under section 24 of the Act. This failure should instead have been proposed in the Show Cause Notice as falling below the standard required of a competent and professional building surveyor under regulation 1502(a). Nevertheless, having accepted that the weight of the solar collector panels was incorporated into the engineering design, it is not considered that disciplinary action is warranted for this contravention in any event.
The VBA is not satisfied that a contravention of section 24 is established.
132 The question is whether the VBA made
a jurisdictional error by deciding that the RBS did not contravene s 24 of the
Building Act. Section 24(1) of the Building Act requires the relevant building
surveyor to be ‘satisfied’ that the building permit will comply with
the Building Act and its regulations. Mr Draper submitted that the inclusion of
Condition 4, which allowed for the Timbertruss engineered design documentation
to be provided at a later stage, was inconsistent with the Building Act and gave
greater leeway than s 24 permitted.
133 The RBS, in
his response to the Show Cause Notice, said that he had issued thousands of
permits and inspected thousands of Timbertruss
frames and trusses in his career.
He was aware that they utilised computer calculations and engineering standards
on all the items
they manufacture and that they comply with the requisite
standards. His practice was used by ‘countless other building surveyors
in
Victoria’. He referred to Mr Weijers’ statement and the Collina
Report for the proposition that this approach was
common practice. He emphasised
that there was no evidence that the supplied frames did not comply with the
legal requirements or
were not fit for
purpose.
134 On the basis of the RBS’s
response, it was open to the VBA to conclude that the RBS was entitled to be
satisfied that the
building of the frame would comply with the Building Act and
the regulations for the purposes of s 24, taking into account his experience and
the industry practice. The Court cannot re-decide that issue in a judicial
review proceeding.
The VBA’s decisions cannot be challenged by judicial
review unless there is no evidence on which it could have reached the
conclusion
that it did. That is not the case here.
135 Mr
Draper submitted that the issue of the building permit without the computations
in it was a contravention of regulations 301
and 302, and that the addition of
Condition 4 was unlawful because it allowed these computations to be provided
after the issue of
the permit. However, Mr Weijers reviewed the documentation
lodged with the Council and found it to be generally compliant with those
regulations, ‘thereby providing suitable information for the [RBS] to be
satisfied under s 24(1)(a) of the [Building Act] to issue a building
permit.’ Mr Weijers said that the level of documentation provided to the
Council
was consistent with industry practice, as well as with the drawings and
specifications provided in the contract. Based on these statements
and this
understanding of industry practice, it was open to the VBA to decide that
including the further computations was not ‘necessary
to demonstrate that
the building will...comply with the Act and [the
Regulations].’[54]
136 In
my opinion, VBA made no jurisdictional error by finding that ground 2 of the
Notice to Show Cause had not been established.
It found that the terms of
Condition 4 had not been breached. It also found that the failure of Condition 4
to require the relevant
information and documentation be provided to the RBS for
approval prior to the construction and installation of the frame was not
a
breach of s 24. The VBA did not consider that it could have found a breach of s
24 until the frame had been manufactured, but that did not prevent a building
permit being issued.
137 The VBA retains a general
discretion about the disciplinary grounds it includes in a show cause notice.
While it may have been
appropriate for the VBA to include an allegation that the
RBS contravened regulation 1502(a) by failing to perform his work ‘in
a
competent manner and to a professional standard’, the VBA was under no
obligation to do so. It was open to it to include
grounds with the more specific
allegation of contravening s 24 of the Building Act. Ground 18 is not
established.
Ground 20: Evidence of the RBS and the RBI
139 Mr Draper submitted that the VBA
erred by considering evidence from the RBS and the RBI and challenged their
qualifications to
make the statements that they did. The RBI ordered
modification of the frame due to non-compliant frame work, without the necessary
qualification to give such direction without the approval from the engineer,
surveyor, builder or Mr Draper or without seeking or
providing any evidence that
the solution met the performance standards or AS 1684, which provides for lintel
dimensions. This resulted
in the design no longer complying with the permitted
drawings and designs.
140 The VBA argued that it
was required to give each of the RBS and the RBI an opportunity to respond
before making its decisions
and it was required to take their submissions into
account. The RBI in his response to the Show Cause Notice disputed that he had
approved any part of the construction as that was the role of the RBS.
141 Section 182(2)(f) requires the VBA to
include in a Show Cause Notice an invitation to the registered building
practitioner to show within a stated
period why the proposed disciplinary action
should not be taken. The VBA was required to consider the representations
received from
the registered building practitioner. It made no jurisdictional
error by carrying out the duties that the Building Act required in that
regard.
142 The VBA did not accept all of the
RBS’s response. For example, it did not accept the RBS’s explanation
as to why he
did not respond to some of Mr Draper’s questions. It
concluded that his duties as an RBS to perform his work were not limited
to
statutory functions. It found that the RBS had contravened regulation 1502(a) in
respect of a non-compliant item relating to the
excessively cut back bottom
plate on the external ensuite wall, although it decided not to impose a penalty.
143 Ground 20 is not established.
144 Mr Draper’s ground 21 states:
145 Mr Draper submitted that the VBA did
not properly consider VCAT’s findings made in his civil
proceeding,[55] and that it
misrepresented the issues in question, despite VCAT finding that they met the
threshold for further investigation. It
ignored VCAT’s findings that
certain documents were unlawful variations of the contract and could not be
relied on and ignored
the sworn testimony of Mr Weijers about the roof batten
and instead relied on Mr Collina’s opinion and thereby made a
jurisdictional
error. It did not mention that his house was demolished on
VCAT’s orders which demonstrated that the defects were major. It
failed to
make its own decision as to the severity of the RBS’s non-compliance. It
did not consider the regulations when performing
its disciplinary functions,
misrepresented his allegations and asked itself the wrong questions. The VBA
policy and literature stated
that VCAT rulings could be used as a relevant
consideration when performing its disciplinary
functions.
146 The VBA submitted that it did not
make a jurisdictional error by failing to consider the findings in Mr
Draper’s civil VCAT
proceeding. It had a discretion as to the evidence it
considered, as well as the weight it would give to it. It would only be required
to consider VCAT’s reasons if they were relied upon by the RBS and the
RBI. It argued that, in any event, it did consider the
VCAT’s decision in
deciding the show cause procedure.
147 As previously mentioned, it was for
the VBA to determine what evidence to take into account and the importance to
give it. It
was not required to adopt all of VCAT’s findings. Rather, it
had to form its own opinion based on the evidence and submissions
before it, not
on the evidence and submissions before VCAT in the civil proceeding. It could
take into account VCAT’s findings
where there was an overlap of issues,
but it was not obliged to.
148 The VBA did refer to
the VCAT decision and in the Show Cause Notice it described the outcome of the
VCAT proceeding.[56] In its
decision, it ‘acknowledged that VCAT ordered demolition of the slab
arising out of the contractual arrangements between
the builder and the
owner’.[57] As previously
mentioned, it was entitled to refer to, and take into account, Mr Weijers’
and Mr Collina’s statements
as the RBS and RBI had referred to them in
their responses to the Show Cause Notices.
149 While the VCAT decision could be used to give
context, it could not be treated as deciding the allegations raised in the Show
Cause Notice. The VCAT decision was based on different evidence and was a
proceeding between Mr Draper and the builder. The VBA was
deciding a
disciplinary proceeding which raised different issues to the civil proceeding.
Ground 21 is not established.
Ground 25: Purportedly varied contract
151 Mr Draper submitted that the VBA
erred in considering the plans and contracts that the Tribunal, the BPB and the
VBA’s investigators
had deemed to be unlawfully varied. The Tribunal
decided that the addition of the FFL to the plans, without following the
contract
variation procedures, which gave Mr Draper the right to object,
unlawfully varied the contract. The variation did not form part of
the contract,
had no legal effect and should not have been taken into
account.
152 In Mr Draper’s civil proceeding,
the Tribunal stated:[58]
Also, I find that Simonds failed to inform Mr Draper that if the FFLs [finished floor level] in the Amended Site Plan were adopted, the effect of Part 3.1.2.3 of the BCA would be that it would not be possible for the FGL [finished ground level] at slab edge to be at RL 98.58 metres. This is because that Part prescribes, in effect, that the distance between the FFL of a slab and the FGL at slab edge must be no less than 150 mm.
These matters, occurring in early July 2014, lie at the heart of Mr Draper’s complaints about Simonds’s conduct in relation to the construction of his dwelling. They are matters that I have concluded, on the evidence, have caused Mr Draper no small degree of indignation concerning the way Simonds conducted itself during the contract and final design phases.
...
In this circumstance, in my view Simonds was required to give Mr Draper a notice pursuant to clause 23.0 of the Contract, setting out those matters described in clause 23.2 of the Contract, including the effect of the proposed variation will have on the contract works. I find that Simonds failed to do so.
It follows from clause 23.4 of the Contract that, in the absence of a signed consent from Mr Draper to a request for a variation, attaching a notice required by Clause 23.2 of the Contract, Simonds was not entitled to construct the slab to the FFLs stipulated in the Amended Site Plan, since it meant that Simonds would be in breach of its contractual obligation to provide an FGL at slab edge of RL 98.58 metres.
Because of the existence of the terms of the Contract that set out Simonds’s express obligations to Mr Draper, in the case of what I have found to be a variation to the Contract. I do not accept Simonds’s submissions that by his signing the Final Construction Drawings on 4 July 2014, Mr Draper assented to those drawings forming part of the Contract.
It follows that Simonds was in breach of contract in laying a slab that prevents Mr Draper from having an FGL at slab edge of RL 98.58 metres.
Mr Draper does not claim damages arising from this breach, and therefore he led no evidence as to damages.
153 Clause 23 dealt with variations to the Contract and cl 23.4 stated:[59]
Subject to Sub-Clause 23.1, the Builder must not give effect to any variation unless the Owner gives the Builder a signed consent to or request for the variation attached to a copy of the notice referred to in Sub-Clauses 23.2 and 23.3.
154 The VBA again submitted that it had to decide what evidence to consider, and that it could take into account the contract, even if it had been unlawfully varied by Simonds Homes. It was appropriate to consider the terms of the contract as varied in considering the professional conduct of the RBS and the RBI, as the slab of Mr Draper’s house had been constructed following the purported variation.
155 Ground 1 of the Show Cause Notice concerned the RBS’s failure to adequately respond to Mr Draper’s concerns regarding the FFL and FGLs. Particular 1 alleged that:
The owner asked for your assistance and advice regarding the FFL of the slab constructed in comparison to the FGL forming part of his contract with Simonds in the context of requirements of the BCA.
156 The Show Cause Notice recited that on
7 July 2014 the RBS issued a variation to the building
permit.
157 The terms of the varied contract
provided the context in which Simonds Homes carried out building work, including
constructing
the slab. The VBA’s reference to the varied contract was not
a jurisdictional error because it was part of the context in which
the
RBS’s and RBI’s conduct had to be considered. The references to the
varied contract do not indicate that the VBA
made a jurisdictional error. The
issue of the purported variation to the contract was dealt with by VCAT in the
civil decision quoted
above.
158 Ground 25 is not
established.
Grounds 19, 22, 23 & 24: Unreasonableness
159 Mr Draper’s grounds 19, 22, 23 and 24 state:
160 In support of ground 19, Mr Draper
argued that it was unreasonable to punish Mr Simonds for misconduct that could
have been overcome
by the RBS if he had performed his functions, and yet not to
also punish the RBS. He submitted that both parties, Mr Simonds and
the RBS,
should have been held accountable as both contravened the Act resulting in
demolition of Mr Draper’s house, yet the
RBS escaped disciplinary action.
The RBS made problems worse by not properly performing his own functions and by
not refusing to
issue the building permit when the documentation provided was
inadequate. The primary purpose of a building surveyor is to ensure
that permits
are not issued for incomplete and inadequate designs.
161 In support of ground 22, Mr Draper contended
that it was unreasonable for the VBA to consider the clean record of the
practitioners
and the evidence of past disciplinary actions, where that evidence
might not accurately represent their true record. He submitted
that the
VBA’s practice of not disciplining practitioners meant that they would
have misleadingly clean records, and that therefore
an apparently clean record
would not be a reliable indicator of the practitioner’s
history.
162 In support of ground 23, Mr Draper
contended that it was unreasonable for the VBA to consider as a mitigating
factor that the
practitioners did not have a history of non-compliance, while
also neglecting to take action for non-compliance and unprofessional
conduct. He
submitted that the practitioners’ clean records were reflections of the
VBA’s refusal to perform its disciplinary
functions.
163 In support of ground 24, Mr Draper
contended that the VBA had sought a biased expert to contradict the position of
the VBA’s
own inspector, Mr Weijers, whose evidence the VBA relied on
until he corrected or altered it. Mr Weijers’ evidence confirmed
that
failing to install roof battens rendered a frame incomplete, which exposed the
VBA for allowing frames to be approved and certified
before they were properly
complete as required by the Australian Standards. It was unreasonable for the
VBA to commission an expert
report from Mr Collina to contradict its own
inspector. Mr Collina had no prior involvement with the issues in the show cause
inquiry.
The builder had been found guilty of unprofessional conduct and
breaches of the Act and the VBA had incurred significant costs, Mr
Draper’s house had to be demolished and yet the VBA failed to exercise its
disciplinary function and act to protect the industry
and consumers from
non-complaint practitioners.
164 In respect of ground 19, the VBA
submitted that it did not act unreasonably in not sanctioning the RBS although
penalties had
been imposed on Mr Simonds. Mr Simonds was charged with different
contraventions of the Act and Regulations. In any event, the fact
that different
findings were made, in different disciplinary proceedings between different
parties, where different evidence and
materials were considered, did not mean
that the decision in one proceeding to not take disciplinary action or impose a
penalty was
arbitrary or unreasonable.
165 In
respect of ground 22, the VBA submitted that it did not find that the RBS or the
RBI had clean records. It knew of the RBS’s
previous disciplinary history,
and that the RBI had not previously been subject to disciplinary action. These
were relevant matters
to take into account when considering whether to impose
disciplinary action. In respect of ground 23, the VBA submitted that it was
open
to it take no disciplinary action against the RBS in its show cause decision,
despite finding that grounds to take disciplinary
action existed.
166 In respect of ground 24, the VBA submitted that
it did not act unreasonably in commissioning or considering expert evidence from
Mr Collina. It was responsible for deciding what evidence to rely on, and it was
not unreasonable to commission an expert to provide
further evidence, even
though it had other expert evidence, including Mr Weijers’ evidence,
available to it.
167 The decision of a decision-maker
exercising statutory power can only be challenged on the ground of
unreasonableness when no reasonable
decision-maker could have reached the
conclusion that they did[63] or
where there is no ‘evident and intelligible justification for the
decision’.[64] It is a narrow
area of challenge.
168 In respect of ground 19, the
Building Act did not require the VBA to sanction the RBS because it had imposed
sanctions on Mr Simonds. While the matters were related, the two
disciplinary
proceedings involved different building practitioners, with different facts
applying in each case. The VBA had to base
its decision on the evidence and
submissions concerning the RBS and RBI respectively in the show cause process,
and any relevant
disciplinary history, and not on the outcome of the BPB hearing
involving Mr Simonds, or the outcome of Mr Draper’s civil claim.
It was
not unreasonable for the VBA to decide not to impose sanctions on the RBS, when
the BPB had imposed sanctions on Mr Simonds.
The difference in disciplinary
outcomes between the Mr Simonds process and those involving the RBS and RBI
resulted from a number
of factors. There was a different decision-maker,
different parties, an oral rather than a written process and different charges
and evidence. Those differences were likely to have contributed to the different
outcomes.
169 In respect of ground 22, it was not
unreasonable for the VBA to consider the prior disciplinary histories, if any,
of the RBS
and the RBI. The disciplinary histories of practitioners the subject
of disciplinary proceedings are always relevant to the penalty
or sanction that
may be imposed.
170 In respect of ground 23, it was
not unreasonable for the VBA to choose not to take disciplinary action even when
some of the grounds
in the Show Cause Notice were established, as the Building
Act gave it the express power not to take such action in those circumstances.
171 In respect of ground 24, the VBA did not act
unreasonably in commissioning and taking into account Mr Collina’s report
in
reaching its decisions. The VBA possessed broad powers under s 179(2) as to
how it conducted investigations and it was entitled to commission further
evidence. The RBS and RBI relied on the Collina Report
in their responses to the
Show Cause Notices. Although the evidence does not reveal why Mr Collina’s
evidence was sought, Mr
Draper has not established that the VBA made a
jurisdictional error in commissioning his report or taking it into
account.
172 Grounds 19, 22, 23 and 24 are not
established.
Ground 11: The VBA’s use of discretion
173 Mr Draper’s ground 11, which bears similarities to ground 7, is:
174 Mr Draper submitted that the VBA arbitrarily applied the Building Act and misused the discretion given by it. It failed to properly perform its functions under s 197(a) of the Building Act by not enforcing the law and thereby changing the behaviour of the offending practitioners. The VBA was required to take disciplinary action, when it believed a ground existed to do so.
175 The VBA submitted that it had a discretion as to whether, and if so which, disciplinary action to take. The VBA’s exercise of discretion in the RBS and the RBI decisions was within its powers under s 182D of the Building Act.
176 Section 182D(1)(b)(iii) of the
current Building Act expressly allows the VBA to take no further action in cases
where it believes a ground exists, other than the ground under s 179(1)(db),
which was not relevant to the disciplinary processes against the RBS and the
RBI. Therefore, the VBA had a discretion not to take disciplinary action,
or to impose a sanction, on the RBS or the
RBI.
177 The VBA gave reasons as to why it took no
action against the RBS and the RBI and acted within its statutory
powers.
178 Ground 11 is not established.
Grounds 13 and 14: Alleged delay
179 Mr Draper’s grounds 13 and 14 are:
180 Mr Draper submitted that the VBA had
refused to address the questions that he raised and had interfered with his
rights to review
its decisions over a five year period. It had thereby acted in
contravention of the public sector values listed in s 7 of the Public
Administration Act 2004 (the ‘Public Administration Act’). The
VBA had failed to achieve the purpose of the Building Act by being persistently
incapable of administering an efficient and effective system for enforcing
building matters and resolving building
disputes.
181 Mr Draper’s case was that the VBA took
five years to make its decisions, despite it being aware of the RBS’s and
RBI’s
non-compliance as early as June 2015. Further evidence of the delay
was the time that it took to resolve the inquiry into Mr Simonds’
conduct.
Mr Draper submitted that by that delay in addressing the non-compliance of which
he complained, the VBA had failed to achieve
its purposes as stated in s 1 of
the Building Act:
The main purposes of this Act are—
(a) to regulate building work and building standards; and(b) to provide for the accreditation of building products, construction methods, building components and building systems; and(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; and
(d) to regulate building practitioners, building employees and plumbers; and
(e) to regulate plumbing work and plumbing standards; and(f) to provide for the accreditation, certification and authorisation of plumbing work, products and materials; and
(g) to regulate cooling tower systems; and(h) to limit the periods within which building actions and plumbing actions may be brought.
182 The VBA submitted that a breach of s
7(1) of the Public Administration Act did not give Mr Draper a right to a
remedy, because s 7(4)(a) expressly provided that nothing in s 7(1)
‘creates in any person any legal right or gives rise to any civil cause of
action.’ The VBA also disputed that there
had been a five-year delay in
making the decisions about the RBS and RBI. Mr Draper’s complaints were
lodged on 2 August 2017
and the decisions were made on 17 March 2020. It
contended that Mr Draper had not established that any member of staff of the VBA
had breached the Public Administration Act.
183 The
VBA rejected Mr Draper’s submission that it had breached s 1(c) of the
Building Act. That provision was a facilitative and not a restrictive provision
and a breach of it did not provide grounds for judicial review.
In any event,
the two decisions against the RBS and the RBI had now been made, and any finding
that the decisions were not made as
quickly or efficiently as they could have
been made would not render them invalid or entitle Mr Draper to a remedy in
respect of
them.
184 Section 7(4) of the Public
Administration Act makes clear that nothing in s 7(1) creates a legal right or
gives rise to a civil cause of action. Mr Draper cannot rely on non-compliance
with s 7(1) as a ground for his application or to obtain a remedy.
185 The VBA has made its decisions in respect of
the RBS and the RBI and the show cause process was complete. While the VBA
decisions
may have been made more quickly if its attention and resources were
allocated differently, that was a matter for it to consider in
light of its
operational circumstances. In any case, it was unclear what remedy would flow
from the decisions having been made late
in the absence of any other error of
law.
186 Grounds 13 and 14 are not established.
The Further Amended Originating Motion’s Additional Grounds
187 At the hearing, I said that I would decide whether to grant leave to consider these additional grounds in the course of preparing my judgments.[66] I have decided not to grant Mr Draper leave to rely on the additional grounds as they do not raise arguable propositions. I next state my reasons for that conclusion.
Proposed additional grounds 1 and 2: Statement of reasons
188 Mr Draper’s additional grounds 1 and 2 are:
Administrative Law Act , where it refused to provide Mr. Draper, an
affected person within the definition of the Act, with a ‘ s.8 Statement of
reasons’ after he made a proper request?189 Mr Draper submitted that the VBA
failed to exercise its functions in accordance with s 8 of the
Administrative Law Act by refusing to provide him with a statement of reasons.
He submitted that he was a person affected by a decision for the purposes
of
this section. At no time did the VBA provide the prescribed statement of reasons
within required time limits. In respect of additional
ground 2, he submitted
that the VBA was required to provide information under s 197(f) of the Building
Act.
190 The first additional ground is
substantially the same as the second ground in the amended originating motion
that I have considered
above.
191 I consider that Mr
Draper was an affected person for the purposes of the Administrative Law Act ,
which requires reasons to be furnished ‘within a reasonable time.’
The VBA’s letter containing a summary of reasons
was dated 20 April 2020,
but Mr Draper did not receive it until 14 August 2020 because it was sent to an
incorrect address. He did
not receive the VBA’s full reasons, which had
been provided to the RBS and RBI, until 29 April 2021. But, as he has not
established
that the reasons provided on 14 August 2020 were inadequate for the
reasons I have given above, he cannot obtain a remedy. In fact,
he relied on the
reasons to attempt to establish jurisdictional
error.
192 Section 197(f), upon which ground 2
relies, provides that the VBA’s functions include:
(f) to provide information and advice (including to consumers) on matters relating to—
(i) building standards and plumbing standards; and
(ii) the regulation of buildings, building work and building practitioners and licensed building employees; and
(iii) the regulation of plumbing work and plumbers...
193 As stated, Mr Draper has been
provided reasons, and even if he had not been, he has not established his
proposed ground 2 or that
it would have provided a basis to grant the remedies
that he seeks. To the extent that Mr Draper relied upon this section to seek
access to other documents, s 197(f) does not assist him. It is directed to
general information about building and plumbing standards;
how buildings,
building work, building practitioners and licensed building employees are
regulated; and the regulation of plumbing
work and plumbers. It is not directed
to expert reports commissioned by the VBA for the purpose of conducting a
disciplinary process.
In any event, s 197 is a facilitative provision, and any
contravention of it, even if established, would not provide Mr Draper with
the
relief he seeks.
194 Proposed grounds 1 and 2 could
not succeed.
Proposed additional grounds 3, 4 and 6: Delegation
195 Mr Draper’s proposed additional grounds 3, 4 and 6 are:
196 Mr Draper submitted that the VBA
failed to exercise its functions in accordance with s 199 of the Building
Act, as there was no evidence that the person making the decisions was properly
delegated to make them. He argued that it was unreasonable
to delegate this
function to one person, rather than to a panel and the delegation was
unreasonably made to somebody who was biased
and lacked independence. He also
submitted that it was unreasonable, illogical or irrational to make the
delegation to somebody whom
he alleged had significant gaps and deficiencies in
relevant knowledge and experience expected of a person required to make the
decisions
against the RBS and the RBI.
197 The VBA
argued that Mr Draper had not established that there was any invalidity in the
delegation of functions to the delegate.
A delegation to one person was not
unreasonable and the provisions of the Building Act, including s 185A dealing
with internal reviews, make clear that the VBA may so delegate its
decision-making powers.
198 Section 199 of the Building Act
allows the VBA to ‘delegate to any person any of its functions except a
function under section 80D or 205M’. The functions delegated were not
related to either of those sections. Mr Draper has not established that the VBA
improperly
or invalidly delegated its functions. The legislation does not
prevent the delegation of decision-making powers to one person. His
claim that
the delegate was biased, lacked independence, or the necessary knowledge and
experience were unsubstantiated. A delegation
is not invalid simply because the
person affected by the decision is unhappy with the delegate’s decision.
199 Proposed additional grounds 3, 4 and 6 could
not succeed.
Proposed additional ground 5: Dilution of complaints
200 Mr Draper’s additional ground five is:
201 Mr Draper submitted that the VBA
failed to exercise its functions under s 197(h) of the Building Act by wilfully
and knowingly misconstruing and misrepresenting his complaints, so as to dilute
them and provide a basis for not properly
exercising its
functions.
202 The VBA submitted that it had the
discretion to decide whether to issue a Show Cause Notice, and if so, which
allegations to make
in it. It was not obliged to issue a Show Cause Notice even
if positively satisfied that a ground to do so was available.
203 Section 197(h) provides that one of
the VBA functions is ‘to promote the resolution of consumer complaints
about work carried out by builders
and plumbers’. The relevant resolution
process is the show cause process, which gives the VBA a discretion about which
allegations
to include in the Show Cause Notice and how they should be worded.
Mr Draper has not established that the VBA wilfully and knowingly
misrepresented
his complaints. There is no evidence that the VBA did not consider the evidence
or material available to it, or that
it did not include in the Show Cause Notice
disciplinary grounds that it considered appropriate. No jurisdictional error has
therefore
been established. In any event, as previously stated, s 197 is a
facilitative provision, and even if a contravention of it were established,
would not provide Mr Draper with the remedies he
seeks.
204 Proposed additional ground 5 could not
succeed.
205 I refuse leave to Mr Draper to rely on
the six proposed additional grounds.
206 Mr Draper has not established any of
the grounds upon which he seeks judicial review of the VBA’s decisions.
The proceeding
is dismissed.
207 I will give the
parties an opportunity to make written submissions about the costs of the
proceeding.
[1] Draper v Simonds Homes Victoria Pty Ltd [2016] VCAT 669, [15].
[2] Ibid [21].
[3] Ibid Orders [1].
[4] The judgments in the other three proceedings are Draper v Victorian Building Authority [2022] VSC 485, Draper v Victorian Civil and Administrative Tribunal & Ors [2022] VSC 486 and Draper v Victorian Building Authority [2022] VSC 488.
[10] [2019] VSC 416 (‘Singleton’).
[11] Ibid [58]-[59].
[12] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [29].
[13] Ibid [37]-[38].
[14] Ibid [44].
[15] Ibid [59].
[16] Ibid [62].
[17] (1980) 146 CLR 493, 530–1.
[18] See Draper v Building Practitioners Board [2020] VSC 866.
[19] Ibid [39].
[20] VBA’s Outline of Submissions dated 23 June 2021, [56].
[21] Transcript of Proceeding (S ECI 2020 03774 and S ECI 2020 03775, Draper v Victorian Building Authority, Ginnane J, Supreme Court of Victoria, 4-5 August 2021) 270 (‘T’).
[22] Ibid 348–9.
[23] Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493, 530-1.
[24] VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195, [29].
[25] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 37 (Gibbs CJ).
[27] [2019] VSC 416 [37], [39], [40]-[46], [59].
[28] T 220.
[29] Administrative Law Act , s
8(3).
[30] Draper v Building Practitioners Board [2020] VSC 866, [45]-[48] (citations omitted).
[31] The reference to s 183 appears intended to be a reference to s 182.
[32] Building Act, s 182(2)-(3).
[33] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 9.
[34] [2017] VSCA 274, [53].
[35] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40; Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, 375.
[36] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.
[37] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [84] (Gordon and Steward JJ) and [157] (Edelman J).
[38] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [67].
[39] This question of law was raised only in S ECI 2020 03774.
[40] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [23].
[41] Citing Singleton.
[42] Court Book, Draper v Victorian Building Authority (Supreme Court of Victoria, S ECI 2020 03774, Ginnane J, 30 July 2021) (‘CB’) 163-170.
[43] Ibid 1463.
[44] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [44].
[45] Ibid.
[46] Ibid [41].
[47] Citing Singleton.
[48] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [43].
[49] Ibid [44].
[50] RBS’s response dated 18 February 2020 to the Show Cause Notice.
[51] This question of law was raised only in S ECI 2020 03774.
[52] Citing Singleton.
[53] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [32]-[38].
[54] Reg 302(1)(e) of the Building Regulations: CB 129.
[55] See Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 91 and Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402.
[56] At [20] of the Show Cause Notice to the RBS.
[57] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [17].
[58] Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 669, [145]-[146], [153]-[157].
[59] Ibid [150].
[60] This question of law was raised only in S ECI 2020 03774.
[61] The equivalent question in S ECI 2020 03775 refers instead to Mr Wilson but is otherwise identical.
[62] The equivalent question in S ECI 2020 03775 refers instead to Mr Wilson and addresses his failure ‘to properly address compliance issues’ rather than ‘to properly oversee compliance issues’, but is otherwise identical.
[63] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 377-8 [113] (Gageler J) and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 551 (Kiefel CJ).
[64] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 573 (Nettle and Gordon JJ) citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 367 (Hayne, Kiefel and Bell JJ).
[65] The equivalent question in S ECI 2020 03775 refers instead to Mr Wilson but is otherwise identical.
[66] T 302.
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