Colonial Range Pty Ltd v Akritidis - [2017] VSC 337

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2016 05299

BETWEEN:

COLONIAL RANGE PTY LTD	Plaintiff
- and -
ARISTIDIS AKRITIDIS	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2017
DATE OF JUDGMENT:	15 June 2017
CASE MAY BE CITED AS:	Colonial Range Pty Ltd v Akritidis
MEDIUM NEUTRAL CITATION:	[2017] VSC 337

NATURAL JUSTICE — Rule against bias — Reasonable apprehension of bias — Private building surveyor appointed under Building Act — Application by appointor for demolition permit — Notification process — Disagreement by adjoining owner about appropriate protection work — Statutory procedure for determination of appropriate work by surveyor ― Surveyor’s ‘advice’ to appointor about permit process ― Whether reasonable grounds for apprehension of bias — Legal and statutory and factual context of decision making.

DISCOVERY — Pre action discovery from prospective defendant — Beneficence of rule — Condition to be satisfied that applicant ‘has reasonable cause to believe’ it may have the right to obtain relief in the Court’ — ‘May have’ — Objective test on the evidence — Inadequacy of mere assertion or suspicion or conjecture — Apprehension that private building surveyor was not impartial in performing statutory functions — Whether apprehension of bias is reasonably based — Discovery sought to reveal communications with permit applicant — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Pizer QC with Mr R Chaile	SBA Law
For the Defendant	Ms S M C Fitzgerald	Dandanis & Associates

HIS HONOUR:

This application for pre-action discovery of documents against a prospective defendant under rule 32.05 is ancillary or referable to a remarkably combative state of disputations in the Building Appeals Board and the Supreme Court. It concerns a major building demolition in central Melbourne. The prospective defendant is a private building surveyor. The applicant who owns an adjoining building apprehends the surveyor is actually or apparently biased in favour of his appointor, the building owner. It wants documents from him to make an informed decision whether to sue him. At the outset, the Court will state its decision.

The application for discovery will be refused. It will be refused because the objective evidence is insufficient to establish the rule’s precondition that requires the Court to be satisfied, objectively on the evidence, that the applicant ‘has reasonable cause to believe that it has the right to obtain relief.’ The strict applicant is making far too much of a slight and explicable statement made by the respondent from which to create for itself a concern that he has not been impartial, or as I would put, has not distanced himself from the permit process. The respondent’s statement must be understood in a wide context; a context which prevails. By reference to the principles of the rule against bias, the regime in the Building Act, the nature of the decision, the identity of the decision maker, and the pragmatism of processing permit applications for a building site…

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 Colonial Range Pty Ltd v Akritidis

Details

AGLC: Colonial Range Pty Ltd v Akritidis [2017] VSC 337
Case: [2017] VSC 337
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the case of Colonial Range Pty Ltd v Akritidis, the dispute centred on the appointment of a private building surveyor under the Building Act and the process for obtaining a demolition permit. The court was tasked with determining whether the Surveyor had acted impartially in advising the applicant about the permit process, and whether there was a reasonable apprehension of bias on the Surveyor's part. Additionally, the case involved an application for pre-action discovery to obtain communications with the Surveyor from the prospective defendant, who had an interest in the demolition permit application.

The legal issues before the court were whether there were reasonable grounds for an apprehension of bias on the part of the Surveyor and whether the applicant had satisfied the conditions for pre-action discovery. The court had to consider the statutory and factual context of the Surveyor's decision-making process, including the notification process and disagreements about appropriate protection work. The court also had to assess whether the applicant's apprehension of bias was reasonably based on the evidence presented.

The court found that there were no reasonable grounds for an apprehension of bias on the part of the Surveyor, as there was no evidence to suggest that the Surveyor had acted in a biased manner. The court also found that the applicant had not satisfied the conditions for pre-action discovery, as the apprehension of bias was not reasonably based on the evidence. The court held that the applicant's apprehension was based on mere suspicion and conjecture, and that there was no objective test on the evidence that supported the apprehension of bias. The application for pre-action discovery was therefore refused.

The court's decision was that the Surveyor had not acted in a biased manner and that there were no reasonable grounds for an apprehension of bias. The court also found that the applicant had not satisfied the conditions for pre-action discovery, as the apprehension of bias was not reasonably based on the evidence. The application for pre-action discovery was therefore refused.

Orders