JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2019
DATE OF RULING:	30 October 2019
CASE MAY BE CITED AS:	Argyrou v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2019] VSC 721

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INJUNCTION – Application for interlocutory injunction to restrain defendant conducting disciplinary proceedings – Serious issue to be tried as to whether defendant has jurisdiction to undertake disciplinary proceeding – Application brought at early stage of disciplinary proceeding – Plaintiff entitled to exercise rights of internal review and appeal to Victorian Civil and Administrative Tribunal if dissatisfied with outcome of disciplinary proceeding – Application for injunction refused – Building Industry Act 1993 (Vic) ss 179, 182B, 182E, 185, 186, 187 sch 8 cls 3, 4 – Interpretation of Legislation Act 1984 (Vic) s 14(2) – Victorian Civil and Administrative Tribunal Act 1998 ss 51, 148, 187 – Supreme Court (General Civil Procedure) Rules 2015 o 56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Pizer QC and Mr R A Minson	Pinsent Masons
For the Defendant	Mr L T Brown and Ms E Smith	Victorian Government Solicitor

HIS HONOUR:

By summons filed on 28 October 2019, the plaintiff applies for an interlocutory injunction:

(a) To restrain the defendant (‘the Authority’) until further order from:

(i) deciding that a ground exists to take disciplinary action against the plaintiff pursuant to s 182B of the Building Act1993 (Vic) (‘Act’); or

(ii) taking disciplinary action against the plaintiff pursuant to s 182E of the Act in reliance upon a show cause notice PDU/7/3097 dated 31 July 2019 (‘the notice’); or

(b) Alternatively to require the Authority to extend the show cause period for the notice until a date after the final determination of this proceeding.

The factual background of the proceeding is conveniently summarised in the plaintiff’s outline of submissions:

The Plaintiff is a building practitioner registered in the category of builder and class of commercial builder (unlimited) under Part 11 of the Act. He has been a registered building practitioner since 5 May 1995 and has never had disciplinary action taken against him by the Defendant or its predecessor, the Building Practitioners Board (the former Board).
From 18 January 2000 to 1 March 2017, Mr Argyrou was a director of Hickory Developments Pty Ltd, one of the companies in the Hickory Group (Hickory).
Hickory, which the Plaintiff and his brother established in 1991, is a leading builder and developer of commercial retail and residential buildings in Melbourne and Sydney with approximately 1000 employees.
Since 2009, Hickory has completed over 50 major construction projects. One of those was the construction of the Anstey Apartments at 597-605 Sydney Rd, Brunswick, which was completed on 27 September 2010.
In March 2017, a fire occurred on the balcony of an apartment on an upper storey…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Argyrou v Victorian Building Authority

Details

AGLC: Argyrou v Victorian Building Authority [2019] VSC 721
Case: [2019] VSC 721
Decision Date: 30 October 2019

CaseChat Overview and Summary

In this case, Argyrou sought an interlocutory injunction against the Victorian Building Authority, aiming to restrain the Authority from conducting disciplinary proceedings against him. The dispute centred on whether the Authority had jurisdiction to undertake these proceedings and whether the Authority's actions were unlawful. The matter was brought before the Supreme Court of Victoria.

The legal issues before the court involved interpreting the Building Industry Act 1993 (Vic) and determining whether the Authority had the jurisdictional power to proceed with the disciplinary action. Additionally, the court needed to consider whether the plaintiff had an adequate alternative remedy available to him through the Victorian Civil and Administrative Tribunal (VCAT) if he was dissatisfied with the outcome of the disciplinary proceedings.

The court found that the plaintiff had not established a serious issue to be tried regarding the Authority's jurisdiction. The court also noted that the plaintiff had the right to exercise his internal review and appeal rights with VCAT if he was dissatisfied with the outcome of the disciplinary proceedings. Consequently, the application for an interlocutory injunction was refused.

No further orders were made by the court. The plaintiff was left to pursue his internal review and appeal rights under the Building Industry Act 1993 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 if he wished to challenge the outcome of the disciplinary proceedings.

Orders