JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2018
DATE OF JUDGMENT:	26 June 2019
CASE MAY BE CITED AS:	Carson v Turner & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 427

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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) 28 CLR 456; R v Forbes; Ex Parte Bevan (1972) 127 CLR 1; Hunter v Chief Constable of West Midlands Police [1982] AC 529; Grassby v The Queen (1989) 168 CLR 1; Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Rogers v R (1994) 181 CLR 251; Craig v The State of South Australia (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) 198 CLR 435; Johnson v Gore Wood & Co [2002] 2 AC 1; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Medical Board of South Australia v N, JRP (2006) 93 SASR 546; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (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:	Counsel	Solicitors
For the Plaintiff	Mr P J Hanks QC Mr S Stafford	Russell Kennedy
For the First and Second Defendants	Mr J D Pizer QC Mr R A Harris	Guymer Lawyers Pty Ltd
For the Third Defendant	Ms S Gory	Victorian Government Solicitor

HER HONOUR:

What is this case about?

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’).

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…

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 Carson v Turner

Details

AGLC: Carson v Turner [2019] VSC 427
Case: [2019] VSC 427
Decision Date: 26 June 2019

CaseChat Overview and Summary

In Carson v Turner, the applicant sought judicial review of a decision by the Building Appeals Board (the Board) which overturned a building order made by the Municipal Building Surveyor. The Supreme Court of Victoria was asked to review the Board’s decision, with the central issue being whether the Board had the authority to overturn the building order and whether it had committed any error of law or jurisdictional error in doing so. The case also explored the extent of the court’s jurisdiction to control what might be an abuse of process by the Board.

The court was tasked with determining whether the Board’s decision to overturn the building order amounted to an abuse of process, particularly given that the same matter had been previously decided by the Magistrates’ Court. The court also had to decide if the Board had the legal authority to remit the matter back to the Municipal Building Surveyor and whether such actions constituted an error of law or a jurisdictional error. Furthermore, the court had to consider whether it had the jurisdiction to intervene in what appeared to be an abuse of process by the Board.

The Supreme Court found that the Board did not have the authority to remit the matter back to the Municipal Building Surveyor as it had previously been decided by the Magistrates’ Court, and doing so would amount to re-litigation. The court concluded that the Board’s decision was an abuse of process and constituted a jurisdictional error. The Supreme Court exercised its inherent jurisdiction to control the abuse of process and quashed the Board’s decision, thereby affirming the original building order.

The final orders of the court were that the decision of the Building Appeals Board be quashed, and the original building order made by the Municipal Building Surveyor be reinstated. The court also noted that it would not grant any costs against the applicant, given the complexity of the legal issues involved.

Orders