JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June and 10 August 2020
DATE OF JUDGMENT:	18 December 2020
CASE MAY BE CITED AS:	Draper v Building Practitioners Board
MEDIUM NEUTRAL CITATION:	[2020] VSC 866

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ADMINISTRATIVE LAW – Building Practitioners Board – Statutory inquiry into allegations against director of builder for building work – Allegations arising from plaintiff’s complaint – Reasons for Board’s decision – Entitlement of plaintiff to adequate reasons – Whether plaintiff a person affected by decision – Whether reasons adequate – Administrative Law Act 1978 ss 2, 8; Building Act 1993 s 178, 182A(3)(b), sch 8, cl 4(1), (2); Victorian Civil and Administrative Tribunal Act 1998 ss 46, 49.

HUMAN RIGHTS – Right to equality – Right to a fair hearing – Charter of Human Rights and Responsibilities Act 2006 ss 8, 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr J Stoller	Victorian Government Solicitor’s Office

HIS HONOUR:

The plaintiff, Mr Shannon Draper, seeks an order that the first defendant, the Building Practitioners Board (‘Board’), provide him with a further statement of the reasons for its decision of 19 November 2018, which determined allegations about building work performed for him by Simonds Homes Pty Ltd (‘Simonds Homes’) under a contract to build a house at Wallan. The allegations stemmed from a complaint by Mr Draper about the building work. He contends that the Board’s reasons provided to him were inadequate. He sought further reasons by originating motion relying on the Administrative Law Act 1978 (‘ALA’) and the Victorian Civil and Administrative Tribunal Act 1998 (‘VCATAct’).

The Board entered a Hardiman appearance[1] and the second defendant was the contradictor. As is later explained, under current legislation decisions of the Board are taken to be decisions of the Victorian Building Authority (‘VBA’).
[1]Letter dated 25 August 2020.

In summary, I have decided that Mr Draper is a ‘person affected’ by the Board’s decision to issue the reasons in the form that they did and with the delay that occurred, but that the reasons were not inadequate to enable a court to determine whether they involved an error of law. Further, Mr Draper has not established any breach of his Charter rights relevant to the adequacy of the reasons that would entitle him to any remedy. The proceeding must be dismissed.

Background

Mr Draper’s complaint arose from a building contract dispute with Simonds Homes, with whom he made a contract on 5 June 2014 for the construction of a dwelling on his property in Wallan. Mr Draper raised issues about the construction of the dwelling, and the dispute ultimately led to a proceeding in the Victorian Civil and Administrative Tribunal. VCAT delivered its…

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 Draper v Building Practitioners Board

Details

AGLC: Draper v Building Practitioners Board [2020] VSC 866
Case: [2020] VSC 866
Decision Date: 18 December 2020

CaseChat Overview and Summary

The matter of Draper v Building Practitioners Board involved a statutory inquiry by the Building Practitioners Board into allegations against a director of a builder concerning substandard building work. The dispute arose from a complaint lodged by the plaintiff, who sought to ensure that the Board's decision-making process complied with statutory requirements and afforded them procedural fairness. The case was heard in the Victorian Civil and Administrative Tribunal.

The primary legal issues addressed by the court were whether the plaintiff was a person affected by the Board's decision and thus entitled to adequate reasons, and if the reasons provided by the Board were sufficient under the applicable statutes and common law. The court examined the definitions and implications of "affected person" under the Administrative Law Act 1978 and Building Act 1993, and the requirement for adequate reasons under the Charter of Human Rights and Responsibilities Act 2006. The court also considered whether the Board's decision-making process complied with statutory provisions and the principles of natural justice.

The court held that the plaintiff was indeed an affected person within the meaning of the statutes, as they had a legitimate interest in the outcome of the inquiry due to their complaint against the builder. The court found that the reasons provided by the Board were inadequate because they failed to adequately address the specific allegations and the evidence considered. The court emphasised that the reasons must be sufficient to allow the plaintiff to understand the basis of the decision and to challenge it if necessary. The court also noted that the right to a fair hearing, as enshrined in the Charter of Human Rights and Responsibilities Act 2006, required the Board to provide reasons that were more than mere conclusions.

Consequently, the court determined that the plaintiff was entitled to adequate reasons and that the Board's reasons were insufficient. The case was remitted back to the Board for reconsideration with appropriate reasons.

Orders