Ariss v Building Practitioners Board - [2010] VSC 295

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST

No. 629 of 2010

STEPHEN ARISS	Plaintiff
v
BUILDING PRACTITIONERS BOARD	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2010
DATE OF JUDGMENT:	25 June 2010
CASE MAY BE CITED AS:	Ariss v Building Practitioners Board
MEDIUM NEUTRAL CITATION:	[2010] VSC 295

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ADMINISTRATIVE LAW – occupational licensing – building practitioners – Building Practitioners Board – inquiries and disciplinary action – whether board has jurisdiction where builder’s registration is suspended after inquiry was commenced – Building Act 1993, ss 175, 177, 178, 179 and 179A – Building (Amendment) Act 2001.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr J Pizer	Mr D Grace QC
For the defendant	Ms C Kirton	Maddocks

HIS HONOUR:

INTRODUCTION

Stephen Ariss was a registered building practitioner. The Building Practitioners Board commenced an inquiry into his building practises. Before it was completed, Mr Ariss’s registration was compulsorily suspended for failing to pay a modest statutory fee. He said the board thereby lost its jurisdiction to continue the inquiry.

The board rejected that contention. It decided that, under the relevant legislation, it retained jurisdiction, for Mr Ariss was registered when the inquiry commenced. If its jurisdiction was lost, an unscrupulous builder could avoid scrutiny of its practices by orchestrating the suspension of its registration before the inquiry was completed.

This is an application for judicial review of the board’s decision. Mr Ariss submits the board has exceeded its jurisdiction and committed an error of law on the face of the record by misinterpreting the legislation. He asks the court to quash the decision and restrain the board from continuing the inquiry.

REGULATING BUILDING PRACTITIONERS

The Building Act 1993 makes provision for the registration and regulation of building practitioners. The main purpose of the Act is to protect the public by regulating the industry and ensuring proper standards of building and construction. As Beach J held in Ktori v The Building Practitioners Board,[1] the legislation operates for ‘the protection of the public … from delinquents and wrongdoers.’
[1][2009] VSC 404, [22].

In Rodwell v Building Practitioners Board,[2] Hollingworth J held, and I respectfully agree, that these purposes must be kept in mind when interpreting and applying the legislation:[3]

The court’s task is to construe the Act, in accordance with the relevant principles of statutory construction. A construction that would promote the purpose or object underlying the Act, whether or not expressly stated in the Act, is to be preferred to a construction that would not promote that purpose or object.[4]

[2](2009) 21 VR 683.

[3]Ibid [12].

[4]In a footnote, her Honour referred to s 35(a) of the Interpretation of Legislation Act 1984 and the modern approach to statutory construction discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

Part 11 of the Act gives effect to those purposes by making provision for inquiries into…

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.

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Details

Case: [2010] VSC 295
Decision Date: 25 June 2010

CaseChat Overview and Summary

In the case of Ariss v Building Practitioners Board, the dispute arose between the Building Practitioners Board and Mr. Ariss, a registered building practitioner, concerning the Board's jurisdiction to conduct an inquiry into Mr. Ariss's conduct following the suspension of his registration. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the Building Practitioners Board had the authority to proceed with an inquiry into Mr. Ariss's conduct after his registration as a building practitioner had already been suspended. This question involved interpreting the relevant provisions of the Building Act 1993 and the Building (Amendment) Act 2001.

The court considered the provisions of the Building Act 1993, including sections 175, 177, 178, 179, and 179A, which outline the Board’s powers in relation to inquiries and disciplinary actions. The court examined whether the suspension of Mr. Ariss's registration prior to the inquiry affected the Board's jurisdiction to continue with the disciplinary process. The court also had to determine whether the subsequent amendments introduced by the Building (Amendment) Act 2001 altered the Board's powers in any way. The court's analysis focused on the statutory framework and the legislative intent behind the provisions in question.

The Supreme Court of Victoria found that the Building Practitioners Board retained its jurisdiction to conduct an inquiry even after Mr. Ariss's registration had been suspended. The court held that the suspension of registration did not nullify the Board’s authority to pursue disciplinary proceedings as provided by the Building Act 1993. The court concluded that the legislative intent was to ensure that the Board could take necessary actions to address concerns about the conduct of registered building practitioners, irrespective of any interim measures such as suspension. As a result, the Board was entitled to proceed with the inquiry.

Orders