CES Queen (Vic) Pty Ltd v Thomas

CES Queen (Vic) Pty Ltd sought judicial review of a determination made by the Building Appeals Board under the Building Act 1993 (Vic). The Board had dismissed an appeal regarding the legality of a building permit issued to the applicant. The dispute hinged on whether the Board was empowered to consider a collateral challenge to the appointment of the original decision maker, who was a private building surveyor. This matter came before the court to decide if the Board's jurisdiction extended to reviewing the collateral issue and if it could substitute its own decision.

The legal issues before the court were whether the Building Appeals Board was empowered to determine a collateral challenge to the appointment of the original decision maker and whether the Board had the authority to substitute its own decision if it found the original decision maker's appointment to be invalid. The court considered Director of Housing v Sudi, which held that a tribunal cannot review a decision on a collateral ground unless expressly empowered to do so. However, the court had to determine whether the legislative scheme of the Building Act provided such an express empowerment.

The court found that while the principles in Director of Housing v Sudi applied, the legislative scheme of the Building Act distinguished this case. The court held that the Building Appeals Board was indeed empowered under the Act to determine the collateral issue regarding the appointment of the original decision maker. Furthermore, the court found that the Board had the authority to substitute its own decision if it determined that the original decision maker's appointment was invalid. The court's decision hinged on the specific language and structure of the Act, which provided the Board with the necessary jurisdiction to address the collateral challenge.

The court ultimately upheld the Building Appeals Board's determination, affirming that the Board was empowered to review the collateral issue and substitute its own decision. The applicant's challenge to the Board's authority was dismissed, and the Board's decision remained in place.