Cremorne Commercial No 1 Pty Ltd v Prince

[2017] VSC 714

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

PRACTICE COURT

S CI 2017 04666

CREMORNE COMMERCIAL No 1 PTY LTD (ACN 605 088 113) and CREMORNE COMMERCIAL No 2 PTY LTD (ACN 605 088 122)	Plaintiffs
v
ARNOLD PRINCE (in his capacity as Municipal Building Surveyor)	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2017
DATE OF JUDGMENT:	17 November 2017 (Revised)
CASE MAY BE CITED AS:	Cremorne Commercial No 1 Pty Ltd v Prince
MEDIUM NEUTRAL CITATION:	[2017] VSC 714

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JUDICIAL REVIEW – Building damaged by fire – Building Surveyor’s Emergency Works Order – Refusal to cancel order – Judicial review sought of making of order and refusal to cancel it – Application to stay order – Stay refused – Building Act 1993 ss 102, 105.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Pizer QC and Mr B Jellis	Holding Redlich
For the Defendant	No appearance

HIS HONOUR:

1. Cremorne Commercial No 1 Pty Ltd and Cremorne Commercial No 2 Pty Ltd have commenced this proceeding against the Municipal Building Surveyor of the City of Yarra in respect of an Emergency Works Order (‘the Order’) made under s 102 of the Building Act 1993 in respect of a building located at 2 Gough Street, Cremorne, which was damaged by fire last Sunday.

1. The Municipal Building Surveyor issued the Order on Tuesday 14 November 2017, and it contains requirements for work to be carried out by the plaintiffs, including providing to the satisfaction of the Surveyor, its protection works methodology for the protection of the public and any adjoining properties. The southern wall was demolished, apparently, on the previous Sunday after the fire. In a letter accompanying the Order, the Surveyor stated that the remainder of the perimeter walls of building B6 did not form part of the Emergency Order and that meant that there was no requirement to demolish them. The letter also stated that no building work other than the work specified in the Emergency Order was to be carried out, unless carried out under a building permit.

1. The plaintiffs applied to the Building Surveyor yesterday to cancel the Emergency Order. The plaintiffs rely on reports by Irwinconsult, structural engineers, in which it reiterated that the methodology to safely prop and/or remediate the fire damaged masonry walls could not be achieved in a safe working manner based on the extent of the fire damage caused to the masonry elements. The masonry walls pose a high risk of danger to any workers entering the damaged buildings and/or working in close proximity to the fire damaged masonry walls. Irwinconsult did not accept the City of Yarra’s assessment that the remaining B6 perimeter walls posed little threat to the safety of the public or that the completion of propping/retention works or stabilising works could be conducted without placing the workers concerned in an unsafe and unpredictable site. The plaintiffs’ position is that the remaining walls should be demolished in one or more stages.

1. I have indicated in discussions with senior counsel for the plaintiffs that the Court cannot determine their judicial review application finally today. That application seeks orders quashing the issuing of the Order, the refusal to cancel it and an order in the nature of mandamus to compel the Building Surveyor to exercise the powers conferred by s 102 and s 105B of the Act in accordance with law.

1. The grounds of the application are that the Building Surveyor’s order and his refusal to cancel it render those decisions as legally unreasonable and/or irrational and/or lacking in any intelligible justification. The second ground is that in making the order and/or refusing to revoke it, the Building Surveyor failed to have regard to a relevant consideration to which he was bound to have regard, being whether or not the Order is capable of being safely complied with and/or can be achieved in a safe working manner. The third ground is that the Building Surveyor erred in refusing to cancel the Order because he failed to consider matters raised in the plaintiffs’ request and thereby failed to have regard to relevant considerations to which he was bound to have regard and therefore failed to accord the plaintiffs procedural fairness and failed to exercise the jurisdiction conferred by s 105B of the Act.

1. The plaintiffs’ application has been brought urgently because the Order had a 72 hour requirement, which expires, I am told, at 1.38 pm today, 17 November. The Building Surveyor was given very limited notice of the application and has not appeared. Apparently, discussions occurred earlier today between the plaintiffs’ solicitors and the Building Surveyor. I accept that the case should be speedily determined and the Court will take all reasonable measures to enable an early hearing.

1. I have discussed with senior counsel whether a later finding that the Order was invalid would mean that the plaintiffs could not be held liable for failing to comply with it. I will not express any concluded view about that question, but senior counsel submitted, as I understood it, that the Order would have had no valid force if it were later found to have been not authorised by the Act.

1. The question then is whether the Court should stay the Order pending the determination of the proceeding. A stay would not permit the plaintiffs to demolish the remaining walls. It will only stay the operation of the Order until the final determination of the proceeding. Senior counsel has pointed to a risk that the Surveyor may engage contractors to carry out the emergency works and might seek the costs of any such work from the plaintiffs. The plaintiffs also submit that if the Surveyor went ahead and had the work required by the Order performed, then someone might be killed or seriously injured while it was being performed. Thirdly, it is said that while the building remains in in its present damaged condition the plaintiffs are potentially exposed to damages claims if any accidents were to occur.

1. In determining the stay application, I consider it is significant that the Emergency Works Order does not deal, one way or the other, with whether the plaintiffs can demolish the remaining walls of the building. It does not require that step nor does it permit it. I have to take into account that there is clearly a difference of opinion between Irwinconsult and the Building Surveyor as to the appropriate measures required to make the building safe.

1. The Court has a broad discretion as to whether or not to grant a stay. I agree with senior counsel that the balance of convenience is a critical factor. However, I am not persuaded that it is appropriate to stay the Order. The stay application does not affect a main issue between the parties which is whether the remaining walls of building B6 should be demolished. I consider the appropriate step is to give the parties an early hearing. I therefore refuse the application for a stay.

1. The orders I make are to refuse to determine the whole judicial review application today and to refuse a stay and I will make directions for a speedy a hearing as possible. I will reserve today’s costs. If the originating motion has not yet been served, it needs to be served, together with a copy of the order I make today.