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Supreme Court of Victoria |
Last Updated: 27 June 2019
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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DIANE TURNER
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Second Defendant
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BUILDING APPEALS BOARD
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Third Defendant
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JUDGE:
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WHERE HELD:
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Melbourne
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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 Building Appeals Board – Building order overturned – Remitter to Municipal Building Surveyor – Prior decision of the Magistrates’ Court – Whether an attempt to re-litigate – Whether an abuse of process – Powers of the Building Appeals Board – Whether error of law by Building Appeals Board – Whether jurisdictional error by Building Appeals Board – Proper remedy – Jurisdiction of Supreme Court to control abuse of process – Remitter – Building Act 1993 (Vic) ss 111, 116, 117, 118, 142, 148 149, 253; Magistrates’ Court Act 1989 (Vic) s 135 considered - R v Hibble; Ex parte BHP Co Ltd [1920] HCA 83; (1920) 28 CLR 456; R v Forbes; Ex Parte Bevan [1972] HCA 34; (1972) 127 CLR 1; Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Rogers v R [1994] HCA 42; (1994) 181 CLR 251; Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163; State Bank of NSW v Stenhouse [1997] Aust Torts Reports 81-423; Pelechowski v Registrar, Court of Appeal (New South Wales) [1999] HCA 19; (1999) 198 CLR 435; Johnson v Gore Wood & Co [2002] 2 AC 1; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Medical Board of South Australia v N, JRP [2006] SASC 19; (2006) 93 SASR 546; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; Ambridge Investments Pty Ltd (in liq) v Baker [2010] VSC 59; CES Queen (Vic) Pty Ltd v Thomas & Yip & Anor [2015] VSC 564 referred to.
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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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Russell Kennedy
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For the First and Second Defendants
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Guymer Lawyers Pty Ltd
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For the Third Defendant
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Ms S Gory
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Victorian Government Solicitor
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What is this case about?
1 Mr Carson, the Municipal Building Surveyor (‘MBS’) for the City of Baw Baw (the ‘Council’ – the plaintiff), asks this court to quash a determination of the Building Appeals Board (the ‘Board’).
2 The determination of the Board relates to a building order issued by the MBS. That order required the demolition of buildings on land owned by Warren and Diane Turner (the ‘Turners’ – the first and second defendants), which had fallen into disuse and disrepair. The Turners’ appeal to the Board followed a prosecution and several orders of the La Trobe Magistrates’ Court imposing fines for non-compliance with the building order, and ordering completion of works aimed at rectifying the land.
3 Mr Carson says that the appeal constituted an abuse of process and, in any event, the Board’s determination is the product of jurisdictional error or an error of law on the face of the record.
Background facts
4 The background facts are not materially disputed by the parties.
5 The Turners are the owners of land located at 121 Queen Street Warragul (the ‘Land’). They have been the owners of the Land since 2007. The Land contains the former Bonlac milk factory, and several ancillary buildings (collectively the ‘Buildings’), which have been disused for some years. There have been several complaints and incidents regarding public safety of the Land and the associated buildings.
6 On 17 October 2012 the MBS issued and served a building notice pursuant to s 106 of the Building Act 1993 (the ‘Building Act’), requiring the Turners to show cause why the Buildings should not be demolished and removed within 60 days.
7 On 14 February 2013 the MBS issued a building order pursuant to s 111 of the Building Act (the ‘Building Order’). The Building Order stated that insufficient cause had been shown and required the Turners to demolish and remove all buildings from the Land within 150 days. The Turners did not comply with the Building Order and were each charged with an offence under s 118 of the Building Act.
The proceedings
The Magistrates’ Court proceedings
8 A contested hearing of the charges took place before the La Trobe Magistrates’ Court on 15 and 16 September 2014. At that hearing the Turners contested the charges on the basis that the Building Order was defective because it ordered demolition of all buildings, and failed to consider an objection made by them on 17 December 2012 which advocated a more moderate program of works.
9 On 16 September 2014 the Turners were each found guilty of one charge of failing to comply with the Building Order. The Court made further orders pursuant to s 253 of the Building Act requiring the Turners to demolish and remove the Buildings, and obtain a building permit to do so, within 180 days. The Turners did not comply with the s 253 order, and the MBS brought an enforcement action pursuant to s 135 of the Magistrates’ Court Act 1989.
10 Between December 2015 and October 2016 various further orders were made under ss 253 and 135, with which the Turners failed to comply. In addition to requiring the Turners to take steps to demolish the Buildings, those orders typically required them to pay fines for non-compliance and to pay costs. The Turners applied for leave to appeal against the original s 253 order, as well as the subsequent orders, to the County Court. Leave was not granted on the basis that the appeal was out of time and there were no circumstances which would justify an extension.
11 On 6 June 2017 the Magistrates’ Court made further orders requiring complete demolition of the Buildings on the Land by 31 January 2018. The orders are in the following terms:
Application GrantedWD Turner (Accused) ordered to pay costs in the amount of $3795.00
1. THAT BY 8 NOVEMBER 2017, BUILDING WORK AT 121 QUEEN ST, WARRAGUL BE COMPLETED IN ACCORDANCE WITH STAGE 1 ACTIVITY ON DEMOLITION SCHEDULE DATED 19/1/16 AND FORMING PART OF BUILDING PERMIT NUMBER BS-U1274/2016876/1, DATED 23/3/16.
2. THAT BY 31/1/18, BUILDING WORK AT 121 QUEEN ST, WARRAGUL BE COMPLETED IN ACCODANCE WITH STAGE 2 ACTIVITY ON DEMOLITION SCHEDULE DATED 19/1/16 AND FORMING PART OF BUILDING PERMIT NUMBER BS-U1274/2016876/1.
Further order:
3. THAT THE FURTHER HEARING OF THIS MATTER BE LISTED FOR SPECIAL MENTION ON ON [sic] 22/11/17 AT THE LA TROBE VALLEY MAGISTRATES COURT.
4. THAT THE SPECIAL MENTION REFERRED TO IN PARAGRAPH 3 MAY BE ADJOURNED BY THE COURT UPON NOTIFICATION BY THE PARTIES TO A FURTHER SPECIAL MENTION ON OR AFTER 14/2/18.
5. THAT THE SPECIAL MENTION ON 14/2/18 MAY BE VACATED IF THE COURT RECEIVES NOTICE FROM BOTH PARTIES THAT ALL ORDERS HAVE BEEN COMPLIED WITH.
These are the current orders, the operation of which the parties agreed to stay pending the appeal to the Board.
The Building Appeals Board proceedings
12 On 3 May 2017 the Turners, by their solicitors, requested that the MBS cancel the Building Order due to an alleged change in circumstances. The alleged change in circumstances involved remedial works undertaken on the Buildings subsequent to the Building Order. The report of an expert engineer, Mr Smith, dated 10 October 2016 recorded the works undertaken in the Land and a supplementary report, dated 24 March 2017, commented specifically on the relevance of those works to the Building Order. Mr Smith produced a further report concerning the Land, dated 29 November 2017. Although those reports make out a change in circumstances, little turns on their specific content for the purposes of the present appeal. The Turners also referred to the evidence of an expert building surveyor, Mr Leonard. Again, there is no need to explore in detail the content of Mr Leonard’s evidence for the purpose of the present appeal.
13 On 30 May 2017 the Turners filed Appeal no 449966 with the Board pursuant to ss 142(2)(c) and (d) of the Building Act (the ‘Appeal’). The Turners’ appeal sought review of the refusal or failure of the MBS to cancel or amend the Building Order as requested on 3 May 2017.
14 On 10 August 2017 it was agreed that the question of the Board’s jurisdiction was to proceed as a preliminary issue. At that hearing the MBS submitted that the Appeal should not proceed because, inter alia, it would constitute an abuse of process. On 20 September 2017 the Board gave its decision that the Appeal did not constitute an abuse of process and set down the substantive appeal to be heard (the ‘Jurisdiction Decision’). For present purposes, the operative paragraphs of the Jurisdiction Decision were paragraphs 11, 17 and 19, which provide:
[11] The Board has reviewed the recording of the Magistrates’ Court proceedings on 26 October 2016. The Board is satisfied that the substantive issue sought to be put before the Board – namely a change in circumstances – has not been put before the Court. The Court was not asked to consider whether the Building Order should be set aside based on a change in circumstances. Nor could it. Change in circumstances is not a relevant matter to the substantive questions before the Court in section 253 of the Act prosecution proceeding – namely whether there has been a breach, or threatened or apprehended breach, of the Building Order....
[17] The Board does not consider that the potential for different practical outcomes (as opposed to conflicting decisions) is sufficient justification for the Board to refuse to consider whether there has been a change in circumstances that would justify the cancellation or amendment of the Building Order. The Board accepts that its determination is not binding on the Court. However, if the Board were to determine that the Building Order should be set aside or amended on the basis of changed circumstances, the Board would expect that the Court would take this into consideration in its decision.
...
[19] For the reasons set out above, the Board does not accept that the Appeal seeks to raise the same issues as those that have been (or could be) raised before the Court in the prosecution proceedings. Nor does it seek to re-litigate issues that have been determined in the prosecution proceedings. The Board is being asked to consider a different question to that considered by the Court.
15 The Board heard the substantive appeal on 9 November and 4 December 2017. The MBS further submitted at that hearing that the conduct of the Appeal constituted an abuse of process. The Board decided that it would make a decision regarding those further submissions after hearing the Appeal.
16 The Board gave its determination on 13 February 2018 (the ‘Determination’). The Board’s determination was as follows:
Following the Hearing of 4 December 2017 and subsequent deliberations, the Building Appeals Board (the Board) determines pursuant to s149(1)(d)(ii) of the Act, that the building order is cancelled and the matter remitted to the municipal building surveyor with the direction to issue a building order (“the order”) in accordance with the following...
17 Included in the building order directed by the Board, (the ‘Direction’) were the following terms, which are at issue in this appeal:
(a) Paragraph 1.1:
The order is made on the condition that the site is not to be occupied.
(b) Paragraph 3.6:
[3] The owners are required within 60 days from the date of service of the order to:...
[3.6] Obtain a report from a suitably qualified fire engineer regarding the fire safety of the building referred to as “1” on the aerial photographs presented at the hearing (that is, the western-most laboratory building). This report must principally consider fire safety with regard to the adjacent sites to the west, to identify any unusual hazards and to recommend any required remedial works. The chief consideration of the report should be the identification of hazards during the anticipated period that the site remains unoccupied. A review of compliance with current regulations or standards is not required. Any remedial works recommended should be of a practical nature.
18 The Board’s reasons for that determination constituted the following findings:
(a) that the conduct of the Appeal did not constitute an abuse of process, at paragraph 1 of the Board’s reasons:
The Board does not consider that the manner in which the Appellants have conducted the appeal constitutes an abuse of process. The arguments raised alleging abuse of process at the hearing are similar to those raised at the earlier directions hearing and have been substantially dealt with in the Board’s determination of [20 September 2017].[1]
(b) that the Building Order dated 14 February 2013 was cancelled (the ‘Cancellation Decision’), at paragraph 8 of the Board’s reasons:
The Board is satisfied that the matters outlined above constitute changes in circumstances within the meaning of section 116(1) of the Act, and that those changes in circumstances justify cancellation of the building order and its replacement with a new, alternative building order in the form outlined above.
(c) the MBS must issue a new building order in terms set out in the Direction, at paragraph 9 of the Board’s reasons:
The Board does not consider that the building order should be cancelled without being replaced by an alternative order. Further works have been recommended by Mr Smith... and according to the evidence of both Mr Smith and Mr Leonard, ongoing maintenance will be required to keep the buildings in a safe condition. It appears that there was a history of inadequate maintenance and supervision of these buildings by the Appellants leading up to the issuing of the various orders. The Board considers it appropriate that an amended building order remain in place, to ensure that there is a legally enforceable mechanism to require completion of the required works.
Claims made and orders sought
19 The Council’s Further Amended Originating Motion presents several alternative avenues for relief. Mr Pizer QC, counsel for the Turners, helpfully characterised the Council’s alternative cases under three headings, a characterisation with which the Court agrees:
(a) The Council’s primary case is that the Board erred in finding that the Appeal did not constitute an abuse of process. The primary case comprises two elements:
(i) first, that the Board had jurisdiction to set aside the Appeal as an abuse of process; and
(b) The Council’s secondary case is that this Court ought to decide for itself that the Appeal constituted an abuse of process and requests relief in the nature of certiorari or prohibition, or declaratory relief.(c) The Council’s tertiary case is that the Board’s Direction is tainted by jurisdictional error, or was incorrect in law.
20 The Turners oppose all three alternative cases presented by the Council. With respect to the Council’s tertiary case the defendants ask this Court, in the alternative, to remit the Direction to the Board for reconsideration.
Orders sought by the Council
21 The Council seeks the following relief:
(a) an order in the nature of certiorari to quash the Determination made by the Board on 13 February 2018 on the basis that it erred in finding that the Appeal did not constitute an abuse of process; or(b) in the alternative to (a), an order in the nature of certiorari to quash the Determination on the ground that the proceeding before the Board constituted an abuse of process; or
(c) in the alternative to (b), a declaration that the making of each of the Cancellation Decision and the Direction constitutes an abuse of process of the Board’s jurisdiction and neither is enforceable; or
(d) In the further alternative to (b), an order in the nature of prohibition restraining the Board and the first and second defendants from enforcing each of the Cancellation Decision and the Direction; and
(e) an order in the nature of prohibition restraining the Board from hearing any further appeal in relation to the Building Order; or
(f) in the alternative, an order in the nature of certiorari to quash the Board’s direction dated 13 February 2018 that the Council issue a new building order in the terms set out in the Determination, on the basis that the Direction constitutes a jurisdictional error; or
(g) in the alternative to (f), an order in the nature of certiorari to quash the Direction on the ground of error of law on the face of the record; or
(h) in the alternative to (g), a declaration that the making of the Direction constitutes a jurisdictional error and is not enforceable; or
(i) in the alternative to (h), a declaration that the Direction is affected by an error of law on the face of the record and is not enforceable;
Orders sought by the Turners
22 The first and second defendants request this Court to dismiss the appeal to this Court with costs, or, in the event that an error is found with respect to the Direction, remit to the Board for reconsideration.
Issues to be determined
23 On the basis of the parties’ submissions the following questions fall to be determined:
(a) Does the Board have jurisdiction to set aside proceedings as an abuse of process?(b) If yes, did the Board err in failing to find that the Appeal constituted an abuse of process?
(c) If not, should this Court in any event find that the Appeal constituted an abuse of process?
(d) If the Board did not so err, did the Direction constitute:
(i) jurisdictional error; or
The Court’s supervisory jurisdiction
24 Before turning to consider each of the issues identified above, it is necessary to say something briefly of the Supreme Court’s jurisdiction in judicial review proceedings. These principles are well established, and I do not understand them to be contentious as between the parties.
25 This Court has a general supervisory jurisdiction over the administration of justice in Victoria. That jurisdiction is exercised to ensure that lower courts and tribunals do not exceed their jurisdiction, and properly observe the law in reaching decisions.[2] The Court’s jurisdiction is supervisory, not appellate by way of review of the decision of the lower court or tribunal, and the Court does not substitute its own decision for that below.[3] That is, the Court is concerned ‘not with the decision, but the decision making process.’[4]
26 Historically, the Supreme Court’s supervisory jurisdiction was exercised by means of the prerogative writs of certiorari, prohibition, mandamus, information quo warranto and habeas corpus. Those powers are preserved by s 85(3) of the Constitution Act 1975 (Vic), now exercisable by making orders in the nature of each of the prerogative writs under r 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[5]
27 Certiorari applies to quash the legal effect or legal consequences of a decision of a lower court or tribunal. In Craig v The State of South Australia the High Court authoritatively explained the basis of certiorari as follows:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.[6]
28 Prohibition is also predicated upon some error on the part of the inferior court. Prohibition is available where an inferior tribunal has exceeded its authority, or has assumed jurisdiction that it did not possess in order prevent that tribunal from proceeding further. The purpose of the remedy is:
... not merely to prevent an individual being vexed by an order which might affect him in his person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it.[7]
29 As reflected in the extracts above, established grounds of review include jurisdictional error, error of law on the face of the record, fraud, or a failure to observe procedural fairness. Here, the Council seeks certiorari, prohibition and declaratory relief (of which more will be said below) on the basis of alleged jurisdictional error and errors of law on the face of the record.
30 Jurisdictional error exists when a court or tribunal ‘mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.’[8] It is not sufficient for a party seeking review of a decision to simply assert that there was an error, that error must go to the decision maker’s jurisdiction.
31 An error of law must be established by reference to the record of proceedings before the lower court. An error must be apparent on the face of the record, not by reference to extrinsic evidence. Section 10 of the Administrative Law Act 1978 (Vic) provides that the record includes the reasons of the inferior court, whether oral or in writing. Additional material may be included by implication in the reasons given, or where it is necessary to have regard to other material to understand those reasons.[9]
Declaratory relief
32 The Court’s power to grant declaratory relief is set out in s 36 of the Supreme Court Act 1986 and r 23.05 of the Supreme Court Rules. Declaratory relief sits alongside the prerogative writs of certiorari and prohibition, and can be enlivened where no power exists to grant relief of that nature.[10] In Ambridge Investments Pty Ltd (in liq) v Baker,[11] Vickery J examined the nature of the Court’s power to grant declaratory relief and made several observations, which are summarised as follows in Williams’ Civil Procedure:
(a) section 36 is modelled on s 50 of the Chancery Procedure Act 1852 (UK) and its successor, O 25 r 5 of the Supreme Court Rules 1883 (UK). Rule 23.05 of Ch 1 of the Rules is to the same effect;(b) superior courts have an unfettered inherent discretionary power to grant such relief. The jurisdiction is a very wide one. Indeed, where it is a question of defining the rights of two parties, it is almost unlimited except by its own discretion;
(c) although such relief is discretionary in nature, it is not a form of equitable relief, but statutory relief. Neither does it depend upon, nor is it confined to, claims for equitable relief;
(d) strictly it may be that a declaration is not an exercise of “power” at all, it is simply a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs (which may be of fact or law or mixed fact and law). It does not create rights capable of enforcement without a further order of the court and is to be contrasted with an executory, in other words, coercive, judgment which can be enforced by the courts. The enforceability of a declaratory order is its weak spot, as there is no sanction built into declaratory relief;
(e) nevertheless, a declaration is not “a mere opinion devoid of legal effect...[it] operates in law either as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal”.[12]
33 Of course, a grant of certiorari or prohibition, or a declaration, are matters which are subject to the exercise of the Court’s discretion.
The statutory scheme
34 It is also necessary to set out the relevant aspects of the legislative regime relating to the issuance and enforcement of building orders, as well as the jurisdiction and powers of the Board. Those provisions were, at the relevant time, found variously in the Building Act, the Building Regulations 2006 (Vic), the Building Interim Regulations 2017 (Vic) and the Magistrates’ Court Act 1989 (Vic).
Building orders
35 Section 111 of the Building Act provides for the making of building orders by the MBS. That section falls within Part 8 of the Act, entitled ‘Enforcement of safety and building standards’. Section 111 provided, at the relevant time:
(1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.
(3) A building order under this section may—
(a) direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and
(b) if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times.
(4) A building order under this section may prohibit any person from entering, using or occupying a building, land or a place of public entertainment for a specified period unless permitted by the municipal building surveyor.
(5) A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place.
(6) A building order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time.
(7) A building order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested (other than destructively tested) by a specified person within a specified time.
36 Section 116 of the Act provides a mechanism for an owner to request amendment to, or cancellation of, a building order:
(1) An owner who is required to comply with a building order may, if there is a change in circumstances after the service of the order, request the relevant building surveyor to amend or cancel the building order.(2) On a request being made, the relevant building surveyor may—
(a) amend or cancel the building order; or
(b) refuse to amend or cancel the building order.
(3) The relevant building surveyor is deemed to have refused a request under this section if he or she has not decided the request within the prescribed time.
37 Pursuant to Regulation 906(2) of the Building Regulations the ‘prescribed time’ within which the MBS is deemed to have refused a request is 14 days.
38 Section 117 of the Act provides that a building order remains in force until it is complied with or cancelled by the MBS or the Board. Section 118 creates an offence for failing to comply with a building order.
39 Section 253 of the Act is an enforcement provision, which empowers the court to make further orders requiring compliance with a building order, or restraining non-compliance. At the relevant time, s 253 provided:[13]
(1) The Authority or a municipal building surveyor or any other prescribed body or person may bring proceedings in any court of competent jurisdiction for an order under this section in the event of a breach, or threatened or apprehended breach, of this Act or the regulations or a notice, permit, order or determination issued or made under this Act (including a notice or order or determination of the Building Appeals Board).(2) The court, if it is satisfied that a breach, or threatened or apprehended breach, has been or will be committed or is likely to be committed, may make any one or more of the following orders—
(a) an order to restrain the breach or other conduct by the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed;
(b) an order requiring building work or protection work to be carried out;
(c) an order requiring the payment of money into court in respect of any building work carried out by, or to be carried out by, the municipal building surveyor;
(d) any necessary ancillary orders.
(3) An application for an order under this section may be made during proceedings for an offence under this Act or the regulations and an order may be made instead of or in addition to any penalty imposed in those or any other proceedings.
(4) An application may not be made under this section as to a notice or order or other matter that is subject to a proceeding before the Building Appeals Board that has not been finally disposed of.
40 Section 135 of the Magistrates’ Court Act provides the Magistrates’ Court with a further general power to restrain or compel an act which would aid in the enforcement of its own orders.
The Building Appeals Board
41 Part 10 of the Building Act establishes the Building Appeals Board, and provides rights of appeal for, among others, owners served with building orders. The powers conferred by Part 10 are supplemented by Schedule 3 to the Act.
42 Section 142(2) of the Act relevantly provides as follows:
(2) The owner of a building or land may appeal to the Building Appeals Board against—(a) the making of a building order under Division 2 of Part 8 applying to that building or land; or
(b) the imposition of any condition in that order; or
(c) a refusal to amend or cancel that order; or
(d) a failure, within a reasonable time, to amend or cancel that order; or
(e) a requirement under Division 3 of Part 8 that the building order be fully complied with.
43 Pursuant to s 148 of the Act an appeal is deemed to be in the nature of a re-hearing, and the Board is expressly enabled to consider matters which were not raised before the MBS.
44 The Board’s powers on an appeal are prescribed by s 149 as follows:
(1) The Building Appeals Board must consider and determine an appeal and by its determination may—(a) affirm the decision under appeal; or
(b) quash the decision under appeal; or
(c) vary the decision under appeal; or
(d) set the decision under appeal aside and—
(i) substitute its own decision; or
(ii) remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.
(2) In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.
(3) Without limiting subsection (2), on an appeal under section 140 the Building Appeals Board has the same powers as the Authority has under Part 6 to give directions concerning transitional and other arrangements following a consent given by the Authority.
(3A) For the purposes of this Part, if an appeal is made to the Building Appeals Board against the refusal of a building permit or the imposition of a condition on a building permit, the decision under appeal is to be taken to include the decision or report of the relevant reporting authority if—
(a) the building permit was refused because the reporting authority refused consent or the condition was imposed as a result of a recommendation in a report of the reporting authority; and
(b) the refusal of consent, or the making of the recommendation, was based on a decision made by the reporting authority in relation to the guidelines made under section 188A.
(4) The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal.
45 The provisions of Schedule 3 to the Building Act relate to the conduct of hearings before the Board, as well as the nature and enforcement of its determinations. Of particular relevance among those provisions are the following:
(a) Clause 15(3)(f):
(3) The Building Appeals Board—...
(f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit;
...
(b) Clause 16(3):
(3) The determination may include any other incidental order or direction that the Building Appeals Board considers is necessary.
(c) Clause 19:
A determination of the Building Appeals Board may be enforced as if it were a judgment or order of a court of competent jurisdiction.
Does the Board have power to dispose of an appeal on the basis that it is an abuse of process?
The parties’ submissions
46 On the eve of the trial of this matter, the Turners made it known to the Council that they intended to make a submission that the Board did not have the power to entertain an argument that the Appeal was an abuse of process. That submission had not been raised or foreshadowed in prior submissions. The essence of the submission was as follows:
(a) The Board’s function under s 149 of the Building Act is limited to considering and determining the appeal before it.(b) Pursuant to s 148(1) of the Building Act, that appeal is in the nature of a rehearing. The Board’s function, therefore, is to consider and determine that appeal on the merits.
(c) As a creature of statute, the Board’s powers are limited to those expressly conferred upon it. The Board has no inherent or implied powers.
47 In further written submissions, responsive to those filed by the Board, the Turners elaborated as follows:
(a) The Court is not faced with a choice between implication of a power or not. The question is one of statutory construction.(b) Section 149(1) of the Building Act provides that the Board ‘must consider and determine an appeal’. That provision reflects the Board’s statutory function, and does not provide it with a choice. The Board’s express procedural powers must be understood in that light.
(c) The Board has no express power to dispose of an appeal as an abuse of process, nor should a power be implied which would prevent the Board from exercising its statutory function. The implication of a power to dispose of an appeal on abuse of process grounds is inconsistent with that function as it is impossible for the Board to ‘consider... an appeal’ if it does not consider the substance or merits.
(d) The provisions of the Building Act do not confer broad powers on the Board which would support the implication of a power to set aside proceedings as an abuse of process, specifically:
(i) Section 1(c) of the Act, which states that the Act’s purpose is to provide an efficient and effective system for enforcing building and safety matters, is of no assistance in construing the nature and extent of the Board’s powers under the Act and cannot be read in a manner that is contrary to the Board’s statutory function.(ii) Section 161 concerns the Board’s original, rather than appellate jurisdiction, and confers broad jurisdiction upon the Board only when a dispute is referred to it for determination.
(iii) Schedule 3 to the Act must not be read in a way that derogates from the Board’s statutory function, that is, the express obligations and powers of the Board must be exercised in light of the requirement that the Board ‘consider and determine’ an appeal.
48 The Board filed responsive submissions, which were adopted by the Council. The Board considers that an implied power is ancillary to or necessary for the effective exercise of the powers conferred on it by the Building Act, for the following reasons:
(a) The Act confers broad powers that readily accommodate, and support, an implied power to dispose of an appeal on abuse of process grounds, namely:
(i) section 1(c) provides that the Act’s purpose is to provide an efficient and effective system for issuing building occupancy permits, administering and enforcing building and safety matters and disputes;(ii) section 161 confers upon the Board broad power to consider and determine an application and make any order that it considers appropriate; and
(iii) the terms of Schedule 3 to the Act require that the Board efficiently and effectively dispose of matters before it and provide the Board with a broad discretion to make incidental orders as it deems necessary.
(b) There is no inconsistency between the Board possessing that implied power and the direction in s 149 of the Building Act that the Board ‘must’ consider and determine an appeal. The concept of a ‘determination’ is not limited to a determination on the merits, provided that it involves the ‘ending of a controversy or suit’.[14] Section 149 does not expressly provide that the Board must consider the merits of an appeal. This is consistent with the fact that the Board ‘may’ (but is not obliged to) grant relief.(c) A construction in favour of implying a power on the part of the Board ought to be preferred, because the alternative would likely lead to impractical and inconvenient consequences. In particular, the conclusion that no such implied power exists would cast serious doubt upon the Board’s capacity to regulate proceedings before it and would hamper its efficiency and effectiveness in resolving disputes.
Legal principles - implied powers
49 The distinction between inherent jurisdiction and implied jurisdiction of a decision making body was described as follows by Menzies J of the High Court of Australia in R v Forbes; Ex Parte Bevan:
“Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have “inherent jurisdiction”.[15]
50 In Grassby v The Queen,[16] the High Court held that a magistrate had no discretionary power to stay committal proceedings as an abuse of process, as the Justices Act 1902 (NSW) left no room for implication of such a power. In the leading judgment of Dawson J his Honour observed that, although inferior courts were not able to draw upon the inherent powers vested in superior courts,[17] such jurisdiction could arise by implication ‘upon the principle that a grant of power carries with it everything necessary for its exercise’.[18]
Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.[19]
52 In Pelechowski v Registrar, Court of Appeal (New South Wales)[20] Gaudron, Gummow and Callinan JJ endorsed Dawson J’s guidance and further explained that ‘necessary’ in that context is to be understood as:
... identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement ... In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.[21]
53 An examination of the Board’s functions and obligations under the Building Act is therefore required in order to determine whether an implied power to stay proceedings as an abuse of process is reasonably necessary for the effective exercise of those functions in the relevant sense.
Medical Board of South Australia v N, JRP
54 It is necessary to say something about the decision of the Full Court of the Supreme Court of South Australia in Medical Board of South Australia v N, JRP (‘Medical Board v N’),[22] which featured in the oral and written submissions of the first and second defendants. In that case the question arose whether the South Australian Medical Practitioners Conduct Tribunal had the inherent or implied power to stay proceedings as an abuse of process.
55 The question arose in the context of a complaint by the Medical Board of South Australia against a medical practitioner on the grounds of unprofessional conduct. Much like the Board in this case, the Tribunal was a creature of statute, created by the Medical Practitioners Act 1983 (SA). Under s 58 of that Act, the Medical Board was the only party with standing to bring complaints before the Tribunal. Besanko J described this as giving rise to a two-tiered structure whereby an individual may make a complaint to the Board, which will enquire into the subject matter and may then bring that complaint before the Tribunal.[23]
56 Besanko and Layton JJ, in majority, held that the Tribunal possessed no implied power to stay proceedings as an abuse of process. Their Honours, rightly, approached the issue as a matter of statutory construction, noting that:
The question in this case is not whether it would be convenient or desirable for the Tribunal to have the power to stay proceedings before it, or whether it would be more convenient for a party to be able to make such an application to the Tribunal rather than institute an action in this Court. The question is whether as a matter of statutory construction such a power should be implied.[24]
57 Engaging in the exercise of statutory construction of the Medical Practitioners Act Besanko J made the following observations in support of his conclusion:
(a) Section 58(2) provided that the Tribunal ‘shall inquire into the subject matter of a complaint.’ His Honour considered that the use of the term ‘shall’ implied that the power to inquire must be exercised. Besanko J considered that a power to stay proceedings as an abuse of process would be inconsistent with such an obligation.[25](b) Although not expressly stated in the Act, the Board could dismiss a complaint that it considers frivolous or vexatious. The fact that the Board was able to do so, but the Tribunal could not, suggested a legislative intent that the Tribunal could not decline to inquire into the subject matter of a complaint. The two-tiered complaints procedure meant that such claims could be ‘filtered out’ by the Board.[26]
(c) Finally, by reference to the fact that certain orders and acts of the Tribunal were enforceable only by further court order, Besanko J observed that Parliament must not have considered the Tribunal to be a body with wide-ranging implied powers.[27]
58 Besanko J concluded, on that basis, that it could not be said that a power to stay proceedings on the ground of abuse of process was legally ancillary to any power given to the Tribunal under the Act, nor was such a power reasonably required for the exercise of its express powers.[28]
59 In its written submissions the Board argued that Medical Board v N was distinguishable from the present case. The Board submitted that Besanko J’s conclusion was based upon the following factors:
(a) the statutory scheme had chosen a particular two-tiered structure by which frivolous and vexatious complaints would be capable of dismissal by the Medical Board prior to their referral to the Tribunal;(b) the Tribunal had an imperative obligation to “inquire into the subject matter of a complaint”; and
(c) certain orders and acts of the Tribunal were only enforceable through orders of the Supreme Court of South Australia.
60 In contrast, the Board says that the statutory scheme applicable under the Building Act exhibits none of those features. More specifically:
(a) The statutory scheme does not contain any filtering mechanism by which patently unmeritorious and undeserving appeals can be efficiently disposed. The absence of any express filtering mechanism emphasises, rather than undermines, the need to imply particular powers. This need is particularly acute in circumstances where the Board is principally responsible for the effective regulation of building work throughout Victoria, which places it in a different position to that of the Tribunal.(b) The Board is not required to inquire into the subject matter of any appeal. Its obligation is to ‘consider and determine’ an appeal and a power to dispose of an appeal on the basis that it constitutes an abuse of process is entirely consistent with that obligation. There is no requirement for the Board to direct its attention to the subject matter or substance of an appeal.
(c) The acts and orders of the Board are immediately enforceable as though they are orders of a court, without any need to obtain further orders. It cannot be said that the statutory scheme indicates any parliamentary intent that the Board would not possess wide-ranging powers.
Analysis
61 In my opinion, the Board has no power to dispose of an appeal as an abuse of process.
62 It is uncontroversial that the Board is a creature of statute and has no inherent jurisdiction. It is seized with specific powers as set out in the Building Act. The legislative framework specifically mandates that the Board should proceed with as little formality and technicality and as much expedition as possible, subject of course to the requirements of the Building Act and the Regulations.
63 The Board is not bound by the rules of evidence although it is bound by the rules of natural justice. Most importantly, for present purposes, a determination of the Board ‘may include any other incidental order or direction that the Board considers necessary.’[29]
64 As a non-curial body the Board’s main functions, as referred to, are to consider and determine the practical matters that come before it. It is not weighed down by practice or procedure. It is to that end that it has the power, as I have noted, to make incidental orders or directions. In my opinion, and is plain on the face of the Building Act, this power is in furtherance of a determination made by the Board on the merits. On the proper construction of the Act, in my opinion, it merely aids the Board in ensuring that its determinations can be readily understood and implemented in an efficient manner.
65 It is submitted that to deny the Board the ability to dismiss a matter before it as an abuse of process is inconsistent with its functions – the Board cannot discharge its functions as mandated if it cannot regulate its own processes, it is said. I disagree. As observed the Board’s statutory function is to ‘consider and determine’ an appeal.[30] I agree with the submissions of the Turners that it cannot discharge that function in the absence of proper consideration, it ‘must’ do so. The Board has no express powers to dispose of an appeal without considering it. It cannot be maintained, on a proper reading of the Building Act, that the Board is discharging its statutory function if it dismisses an appeal without considering its merits.
66 It is also submitted that, faced with a constructional choice, the Court ought determine that the proper course is to imply that the Board has the power to determine that a matter brought before it is an abuse of process as otherwise ‘impractical and inconvenient’ consequences would result. I do not consider, on the proper reading of the Act (the provisions to which I have referred) that any implied powers that the Board may have extend beyond those that are incidental to its express powers and functions.[31] I do not consider that a power to dismiss proceedings as an abuse of process is reasonably necessary for, or incidental to, its statutory function as prescribed by the Building Act – no matter how convenient or desirable it may be.
67 Although there are several points of distinction between the statutory scheme considered in Medical Board v N and the Building Act, the statutory function performed by both tribunals is strikingly similar. Section 58(2) of the Medical Practitioners Act provided that the Tribunal ‘shall inquire into the subject matter of a complaint’. Section 149 of the Building Act provides that the Board ‘must consider and determine an appeal.’ The use of the terms ‘shall’ and ‘must’ indicate that the power to inquire is a mandatory function. A power to stay proceedings as an abuse of process would be inconsistent with such an obligation.
68 For those reasons I do not consider that the Board has the power to dismiss an appeal as an abuse of process.
Did the Board err in failing to find that the Appeal constituted an abuse of process?
69 In light of the Court’s findings above, it is unnecessary to consider the second aspect of the Council’s primary case; that is, whether the Board’s finding that the appeal did not constitute an abuse of process was in error.
Should this Court in any event find that the Appeal constituted an abuse of process?
70 For the reasons outlined above, I agree that the Board has no power to dismiss proceedings before it on the basis that they amounted to an abuse of process. It remains necessary to consider the Council’s secondary case, that this Court ought nonetheless overturn the Board’s Determination as an abuse of process in the exercise of its inherent jurisdiction.
71 The parties agreed, and it is trite law, that it is within the inherent power of the Supreme Court to stay proceedings of lower courts and tribunals as an abuse of process before those proceedings are determined. The question, for present purposes, is what are the powers of this Court where the Tribunal has already made a determination, including a determination on that very issue? The Council contends that this court can make orders:
(a) in the nature of certiorari to quash the tribunal’s decision;(b) in the nature of prohibition restraining the defendants from enforcing the Determination; or
(c) declare that the Board’s Determination was an abuse of process.
72 The Turners respond as follows:
(a) that the Appeal was not an abuse of process for the reasons recognised by the Board;(b) in any event, the relief requested by the Council is unavailable as there has been no error on the face of the record, which would enliven the Court’s prerogative powers; and
(c) the form of declaratory relief sought, a declaration that the Board‘s Determination itself was an abuse of process, is inappropriate.
73 With respect to the alleged abuse itself the Council submits that Turners’ appeal to the Board was an attempt to re-litigate an issue that had already been decided by the Magistrates’ Court. The Council submits that the alleged change in circumstances formed a central part of the Turners’ defence before the Magistrates’ Court. The exact nature of that defence was not fully explored before me but the Council says, by reference to affidavit evidence, that the defendants:
(a) challenged the substance of the Building Order based on the building notice;(b) challenged the need for total demolition of the Buildings based on their structural integrity at the time of issuing the Building Order; and
(c) identified steps that had been taken as impugning the necessity for the Building Order.
74 The Council further submits that the practical outcome of the Tribunal’s finding means that the Board’s Cancellation Decision and the Direction may be enforced under clause 19 of Schedule 3 to the Building Act, in terms that are incompatible with the current s 253 order. The Council contends that this incongruous outcome is manifestly unfair, or would otherwise bring the administration of justice into disrepute.
75 The Turners maintain that the proceedings before the Board are sufficiently distinct from those before the Magistrates’ Court that they do not amount to an attempt to re-litigate issues decided by the Magistrate. They say that the Magistrates’ Court was concerned solely with the question whether they had complied with the Building Order dated 14 February 2013. The Court was not asked to, and was unable to, consider whether there had been a change of circumstances because:
(a) the alleged change in circumstances occurred well after the time period which was relevant to the Court’s enquiry into breach of the 14 February 2013 order;(b) no request was made to the MBS to cancel or amend the Building Order pursuant to s 116 of the Building Act before the Magistrates’ Court gave judgment;
(c) the matter was not raised for consideration by the Magistrates’ Court; and
(d) the Court did not have the power to make a determination as to whether there was a change in circumstances, as that matter fell to the Board.
Legal principles – prerogative writs
76 I refer to and repeat the observations made above at [24] to [33] with respect to the Court’s jurisdiction in judicial review proceedings and the nature of the remedies sought by the Council. Particularly pertinent to the Council’s secondary case are those observations made concerning the nature of the remedies of certiorari and prohibition.
Legal principles - abuse of process
77 It is well accepted that the principal of abuse of process applies equally in the context of proceedings before a tribunal as it does in proceedings before a superior court. It was said by the majority of the High Court of Australia in Walton v Gardiner[32] that there was ‘broad correspondence’ between the circumstances which would constitute abuse of process of a tribunal, and that which would constitute an abuse of process of a superior court.[33]
78 The classic articulation of the court’s jurisdiction to prevent abuse of process is that of Lord Diplock in Hunter v Chief Constable of West Midlands Police:
[T]he inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal interpretation of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.[34]
79 His Lordship described the circumstances in which abuse of process can arise as ‘very varied’,[35] and courts have consistently ensured that the principles are not applied in an unduly rigid or technical manner. In Jago v District Court of New South Wales,[36] Gaudron J described the court’s power to control its own process and proceedings as one which ‘is not restricted to defined and closed categories, but may be exercised as and when the administration of justice so demands’.[37]
80 One recognised category of abuse of process is that which may arise through re-litigation of issues already decided in proceedings.[38] That category of abuse of process may apply even if none of res judicata, issue estoppel or Anshun estoppel arises. The public policy rationale for that power was explained by Lord Bingham of Cornhill in Johnson v Gore Wood & Co as follows:
But Henderson v Henderson[39] abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.[40]
81 Similarly, Deane and Gaudron JJ of the High Court of Australia observed in Rogers v the Queen:
From the earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against “the scandal of conflicting decisions”. Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud.[41]
82 In determining whether re-litigation of a previously decided issue will amount to an abuse of process the court will have regard to several factors, summarised by Giles CJ in State Bank of NSW v Stenhouse as follows:
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...
(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[42]
Analysis
83 In my opinion, no abuse of process is to be found in this matter and, in any event, the relief sought by the Council is inappropriate in the circumstances.
84 I say this in light of the authorities to which I have referred, and for the following reasons:
(a) The Magistrates’ Court proceedings were limited to the enforcement of the Building Order, which was based on the condition of the Land at a point in time. The condition of the Land changed prior to the appeal to the Board.(b) Were it to be the case that there was no change in circumstances, different considerations would have weighed upon this Court. However in my opinion, subsequent expert reports revealed a clear change in circumstances – the state of the property was different than it was before the Honourable Magistrate.
(c) Section 253, as it applied at the relevant time, was limited in its application to providing a mechanism for the MBS to bring proceedings in the event of a breach of a building order in order to secure a court order that the building work is to be carried out. It is not concerned with the bringing of proceedings for orders cancelling or amending a building notice. Amendment and cancellation of building notices is addressed by ss 116 and 117 of the Building Act respectively.
(d) Section 135 of the Magistrates’ Court Act is similarly limited only to enforcement of a final order. That provision applies only to empower the Magistrates’ Court to make further orders to aid in the enforcement of a prior order, it does not provide a general power to impeach those prior orders in the event of a change in circumstances.
(e) The mechanism for the owner of a building to challenge, inter alia, the making of a building order is that contained in Part 10 of the Building Act. That right rests solely with the owner, and is exercised by way of appeal to the Board.
(f) The Magistrate therefore was not empowered to consider the change in circumstances which was the subject of the Appeal. It cannot be said that the Appeal, which required the Board to consider whether there had been a change in circumstances, was an attempt to re-litigate matters before the Magistrates’ Court, which concerned the enforcement of a Building Order which pre-dated the alleged change in circumstances.
(g) The Court does not consider that there is an inconsistency between the Turners’ right to challenge the making of the Building Order and the Council’s right to bring enforcement proceedings. As was observed by the Board, the Determination is not binding upon the Magistrates’ Court In the event that the underlying order is amended or cancelled it does not affect that order’s validity prior to amendment or cancellation. Fines and costs orders imposed by the Magistrates’ Court remain payable by the Turners where they were imposed before the change in circumstances.
(h) In any event, I accept the submission of the Turners that the relief sought by the Council is inappropriate in the circumstances. There has been no established error on the part of the Board which would enliven relief in the nature of certiorari or prohibition. Although a declaration is available in the absence of identified error, the form of the declaration sought by the Council in this case is that the Board’s Determination itself was an abuse of process. Even assuming that the relief sought is a declaration that the Appeal, rather than the Board’s Determination, was the relevant abuse of process, such an abuse is not established for the reasons outlined above.
Did the Direction constitute jurisdictional error or an error of law?
85 The Council’s tertiary case sits separately from its allegations that the Appeal constituted an abuse of process. The tertiary case does not challenge the Board’s decision to set aside the Building Order, or its finding of a change in circumstances. Rather, the Council submitted that the form of the Direction was beyond the power exercisable by the Board, or was otherwise the result of an error of law on the face of the record.
The parties’ submissions
The Council’s submissions
86 The Council submits that in making the Direction the Board exceeded the power conferred upon it by ss 111 and 149 of the Building Act because:
(a) remitting the matter to the MBS, with a direction as to the content of the revised order, falls outside of the power to remit a matter for ‘reconsideration’ pursuant to s 149(1)(d)(ii) of the Building Act. Although the Board has the power to make both directions and recommendations upon remitting a matter to the MBS, the form of the direction was clearly mandatory in nature. In contrast to a ‘recommendation’, a ‘direction’ concerns an exercise of control;(b) in making the Direction, the Board was limited to directing the MBS to issue a revised building order within the power available under s 111; and
(c) the Direction requires the Council to issue a building order which would go beyond the powers conferred by s 111 of the Act.
87 The Council specifically contends that paragraphs 1.1 and 3.6 of the revised building order cannot be supported by s 111.
88 As to paragraph 1.1 the Council says that s 111 does not authorise the MBS to make an order conditional on the premises not being occupied. Although s 111(4) provides that a building order ‘may prohibit any person from entering, using or occupying a building, land or a place of public entertainment for a specific period unless permitted to do so by the municipal building surveyor’, it does not authorise an order to be made to prohibit occupation indefinitely. As paragraph 1.1 does not specify a definite period of prohibition, the Council says that the form of the Direction is beyond the power conferred by s 111(4).
89 As to paragraph 3.6 the Council says that the direction in the penultimate sentence that ‘[a] review of compliance with current regulations and standards is not required’ requires the MBS to issue a building permit that would be in breach of the Building Act. Section 24 of the Act provides, in part, that a building surveyor must not issue a building permit that imposes lesser standards than those prescribed by the Act or the building regulations. The Council says that the form of order contained in the Direction would require an order that imposes lesser standards than those contained in regulation 608 of the Building Interim Regulations 2017, now regulation 233 of the Building Regulations 2018 (Vic), which incorporates the Building Code of Australia. Regulation 233 demands that any remedial works comply with certain performance requirements in order to bring them into compliance. Regulation 233(4)(ii) specifically states that, in determining whether to consent to remedial work, the MBS must take into account ‘the requirements necessary to make reasonable provision for... avoiding the spread of fire to or from any adjoining building.’ The Council recognises that regulation 233 does empower the MBS to consent to partial compliance, but says it cannot not exempt that work from the application of the regulations altogether.
90 Alternatively, the Council says that the Direction is vitiated by an error of law, in that it is inconsistent with ss 111 and 149 of the Building Act.
The Turners’ submissions
91 The Turners say that it was well within the power of the Board under s 149 of the Building Act to cancel the Building Order made 14 February 2013 and remit it back to the MBS with a direction to issue an amended building order in accordance with, but not restricted by, the matters in the Direction. In contrast to the Council’s submission, the Turners characterise the Direction as suggestive but not mandatory in nature as it does not strictly limit the MBS to the language of the Direction, provided the revised Building Order is made ‘in accordance’ with it.
92 The Turners further submit that the Board was not limited by the matters in s 111 of the Building Act when making the Direction, because s 111 is limited in its application to orders made by an MBS, not those made by or at the direction of the Board.
93 Even if s 111 applies, the Turners say that paragraphs 1.1 and 3.6 of the Board’s direction fall within the type of building order that an MBS is permitted to make under s 111 of the Building Act.
94 The Turners say that paragraph 1.1 of the Direction falls squarely within the type of order envisaged by s 111(4) to prevent a site from being occupied. They submit that s 117(a) of the Building Act, which has the effect that any prohibition will be released upon compliance with the Building Order, provides a natural end-point to the prohibition on occupation, even if no date is specified in the Building Order. The natural end-point is also acknowledged in paragraph 3.6, which recognises that the chief consideration of the fire warden’s report ought to be the identification of hazards ‘during the anticipated period that the site remains unoccupied’.
95 With respect to paragraph 3.6 of the Direction the Turners submit that although a review of compliance ‘is not required’, neither they or the MBS would be prevented from requesting that the fire engineer do so if they determined that a review was necessary. They say that the form of the direction would also not prevent a fire engineer from doing so themselves if the engineer considered that a review was necessary.
96 In any event, the Turners submit that the works contemplated by paragraph 3.6 of the Direction are not ‘building work’ to which s 24 of the Act would apply. They submit that paragraphs 4 and 5 of the Direction distinguish between the ‘works’ contemplated in paragraph 3.6 and ‘building work’. In the event that any remedial works were recommended by the fire engineer, such works may require a building permit (which would constitute ‘building work’) in future. As s 24 is concerned only with ‘building work’ the Turners submit that it has no application to the orders envisaged by paragraph 3.6.
Remitter
97 Should this Court consider that paragraphs 1.1 and 3.6 of the Direction are defective, the Turners submit that the proper approach is to remit those paragraphs to the Board for re-determination in accordance with the limits of the Building Act. In support of that submission they refer to the decision of Vickery J in CES Queen (Vic) Pty Ltd v Thomas & Yip & Anor,[43] wherein his Honour made orders remitting to the Board the question of the appropriateness of certain protection works under the Building Act.[44] The Turners say that the practical reality is that the directions ought to be dealt with easily by the Board, and that it is in the public interest to do so.
98 The Council challenges the defendants’ reliance on CES Queen as, in that case, the deficiency lay in the uncertainty as to the meaning of the Board’s determination. They say that it was in that context that Vickery J remitted the matter to the Board, so that it could remedy that uncertainty. Here, there is no uncertainty as to the meaning of the Board’s Direction. The Council says that in those circumstances the appropriate remedy is to quash the direction in its entirety.
Analysis
99 In my opinion, s 149 of the Building Act does confer power upon the Board to cancel a building order, in this case the Building Order made 14 February 2013, and remit it back to the MBS. That much appears to be uncontroversial between the parties. The parties did, however, disagree on the question of whether the Direction was suggestive as to its terms or mandatory. In my opinion, the Direction was suggestive in its terms. It did not purport to mandate that any revised building order remitted by it would be made precisely in the terms of the Direction, provided it was made ‘in accordance’ with it.
100 In my opinion, the Direction of the Board ought be construed having regard to the entirety of the document. As observed, even giving full weight to the Council’s submissions in relation to Clause 1.1 of the Direction, it is clear by the plain and ordinary meaning of Clause 3.6 that the Direction never purported to have an effect that the site would be permanently unoccupied. That is consistent with the effect of s 117 of the Building Act, which provides a natural end point to the operation of Clause 1.1 in a manner that is within the power conferred by s 111(4).
101 Consistently with the flexible and informal approach to the Board’s process as referred to in Schedule 3 to the Building Act, a direction made by the Board ought not be subject to such severe scrutiny that it encourages an over-technical approach to the interpretation of its orders. To do so, in my opinion, would completely undermine its functions and defeat its purposes and reduce its utility as encapsulated in the Act and Regulations. The Board’s approach and indeed the formal action of the Direction is completely consistent with the flexible and responsive charter conferred upon the Board.
102 It is in the context of the Board’s flexible charter that Clause 3.6 of the Direction must be construed. Clause 3.6 requires that the Turners obtain a report from a suitably qualified fire engineer, the chief consideration of which should be ‘the identification of hazards during the anticipated period that the site remains unoccupied.’ In my opinion, Clause 3.6 is an interim measure which gives effect to the Board’s observations as to the need for ongoing maintenance to keep the Buildings in a safe condition. Clause 3.6 balances the need for identification of any required remedial works in the near term with the recommendation of practical solutions. It would not be consistent with the practical and pragmatic nature of that exercise to require a full compliance review at this stage.
103 Clause 3.6 merely requires an inspection to be conducted which may result in practical recommendations for remedial work to be done in the future. The power to include such a requirement within a building order is expressly conferred by s 111(6) of the Building Act. It may be the case that future ‘building work’ will arise from the recommendations contained in the engineer’s report, but unless and until such work is recommended s 24 of the Building Act has no application. At this stage, Clause 3.6 does not specify any ‘building work’ to be undertaken, nor does it require the MBS to consent to anything which imposes lesser standards than those prescribed by the Act.
Conclusion
104 For the reasons I have given and the authorities upon which I have relied, the appeal is dismissed.
105 I will hear the parties on the form of orders and the question of costs.
[1] The Board’s determination refers to a previous determination of 15 August 2017. I infer from the context of that paragraph that this date is recorded in error, and that the Board intended to refer to its pervious determination on 20 September 2017.
[2] R v Nat Bell Liquors Ltd [1922] 2 AC 128, 156 (Lord Sumner, giving the advice of the Judicial Committee of the Privy Council); Kuek v Wellens [2000] VSC 326, [15] (Gillard J); Lednar v Magistrates’ Court (2000) [2000] VSC 549, [201] (Gillard J).
[3] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), extracted below. See also, by way of example, Stojanoski v Northern Meat & Poultry Supplies Pty Ltd [2001] VSC 229, [30]-[33] (Gillard J); Velissaris v The Magistrates’ Court of Victoria [2013] VSC 23, [12] (Macaulay J); Agar v McCabe (No 3) [2015] VSC 542, [16] (Derham AsJ); Ness v County Court of Victoria [2016] VSC 342, [5] (T Forrest J).
[4] Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, 1173 (Lord Brightman).
[5] Except for relief in the nature of habeas corpus, which is dealt with separately in r 57.01.
[6] [1995] HCA 58; (1995) 184 CLR 163, 175-176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[7] R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83; (1920) 28 CLR 456, 463 (Knox CJ, Duffy J).
[8] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[9] See O’Connor v County Court of Victoria & Anor [2014] VSC 295, [30] (Kaye J).
[10] XX v WW and Middle South Area Mental Health Service [2014] VSC 564, [45] (McDonald J).
[11] [2010] VSC 59, [61]-[78].
[12] LexisNexis Butterworths, Civil Procedure: Victoria, vol 2 (at Service 313) [458.1].
[13] Section 253 has since been repealed and replaced by a revised procedure under ss 234E-234J of the Building Act.
[14] Citing Freeman v Medical Practitioners Board of Victoria [2000] VSC 547, [25]-[27] (Balmford J) and Select Plant Hire Pty Ltd v John Hollard Construction & Engineering Pty Ltd [1998] VSC 102, [33]-[34] (Balmford J). Both of those cases concern the slightly different question of the distinction between a “decision” and a “determination” by local government authorities.
[15] [1972] HCA 34; (1972) 127 CLR 1, 7 (Menzies J).
[16] [1989] HCA 45; (1989) 168 CLR 1.
[17] See also Martin v Fasham Johnson Pty Ltd [2008] VSC 289, [27] in which Kyrou J held that the VCAT, as a creature of statute, has no inherent jurisdiction but may have implied powers that are incidental to its functions.
[18] [1989] HCA 45; (1989) 168 CLR 1, 16-17 (Dawson J, Mason CJ, Brennan, Deane and Toohey JJ agreeing).
[19] Ibid 17 (Dawson J).
[20] [1999] HCA 19; (1999) 198 CLR 435.
[21] Ibid 452 [51].
[22] [2006] SASC 19; (2006) 93 SASR 546 (‘Medical Board v N’).
[23] Ibid 562 [58] (Besanko J, Layton J agreeing), see also 550 [13] (Debelle J).
[24] Ibid 565 [73].
[25] Ibid 565 [75].
[26] Ibid 565-566 [76].
[27] Ibid 566 [77].
[28] Ibid 566 [80].
[29] Building Act, Sch 3, cl. 16(3).
[31] Martin v Fasham [2008] VSC 289, [27] (Kyrou J).
[32] (1993) 177 CLR 378.
[33] Ibid 390 (Mason CJ, Dawson and Deane JJ).
[34] [1981] UKHL 13; [1982] AC 529, 536C. That statement has been repeatedly affirmed by the High Court of Australia: Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Dawson and Deane JJ); Rogers v R [1994] HCA 42; (1994) 181 CLR 251, 256 (Mason CJ); 286 (McHugh J); D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 28 [74] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75, 93 [28] (French CJ, Gummow, Hayne and Crennan JJ).
[35] [1981] UKHL 13; [1982] AC 529, 536D.
[36] [1989] HCA 46; (1989) 168 CLR 23.
[37] Ibid 74.
[38] Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529, 540H-541B, 541H-542A (Lord Diplock), citing Stephenson v Garnett [1898] 1 QB 677, 680-681 (Smith LJ) and Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 273-274 (Deane and Gaudron JJ, Mason CJ agreeing).
[39] This type of abuse of process has developed under the guise of ‘Henderson v Henderson abuse of process’ in the United Kingdom. That name derives from the decision of Sir James Wigram, VC in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313, which is regarded as first describing the principle. In that case his Lordship held that a party could not re-litigate an issue in subsequent litigation which ought properly have been raised in a previous action. His Lordship addressed his reasoning to res judicata, however the principle has since expanded, under the doctrine of abuse of process, in its own right. In Australia that situation is now dealt with by the separate but related doctrine of Anshun estoppel, which has developed separately to the more general doctrine of abuse of process.
[40] [2002] 2 AC 1, 31A-E.
[41] [1994] HCA 42; (1994) 181 CLR 251, 273-274.
[42] [1997] Aust Torts Reports 81-423, 64,089. Those factors were referred to with approval by the Victorian Court of Appeal in Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 153-154 [97] (Robson AJA), by reference to the decision of Robson J in Re AWB (No 10); ASIC v Lindberg [2009] VSC 566; (2009) 76 ACSR 181, at 228–229. The factors were also recently approved by J Forrest J, in the context of enforcement of a foreign judgment, in Doe v Howard [2015] VSC 75, [201].
[44] Ibid [101]-[102].
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