Draper v Building Practitioners Board (No 2)

[2021] VSC 384

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04645

SHANNON DRAPER	Plaintiff
v
BUILDING PRACTITIONERS BOARD	First Defendant
VICTORIAN BUILDING AUTHORITY	Second Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	30 June 2021
CASE MAY BE CITED AS:	Draper v Building Practitioners Board (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 384

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ADMINISTRATIVE LAW – Costs – Building Practitioners Board – Adequacy of reasons for Board’s decision – Proceeding dismissed – Plaintiff successful on significant issue – Issues based approach to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Second Defendant	Mr J Stoller	Victorian Government Solicitor’s Office

HIS HONOUR:

1. When I ordered that this proceeding be dismissed and published my reasons,[1] I made directions for written submissions as to costs. This judgment provides my decision on costs. The usual rule is that costs follow the event, which would require Mr Shannon Draper to pay the costs of the Victorian Building Authority (‘VBA’) on a standard basis.

   [1]See Draper v Building Practitioners Board [2020] VSC 866.

1. In the proceeding, Mr Draper sought an order that the first defendant, the Building Practitioners Board (‘BPB’), provide him with a further statement of the reasons for its decision of 20 November 2018, determining an inquiry into the conduct of Mr V Simonds, the principal director of Simonds Homes Pty Ltd, who had entered into a contract with Mr Draper to construct a house at Wallan. Mr Draper had lodged a complaint with the BPB against Mr Simonds.

1. I decided that Mr Draper was a ‘person affected’ by the Board’s decision, as defined in s 2 of the Administrative Law Act 1978 and therefore had standing to bring the proceeding seeking further reasons. However, I decided that the Board’s reasons were not inadequate and so, despite having established his standing, Mr Draper was ultimately unsuccessful in obtaining the orders he sought. I also found that he did not establish any breach of his Charter rights related to the adequacy of the reasons which would entitle him to any remedy.

1. The second defendant, the VBA, seeks costs on the ground that costs should follow the event.

Mr Draper’s submissions

1. Mr Draper advanced a number of reasons why he and the VBA should each bear responsibility for their own costs. I will summarise them now.

1. He argued that the findings made by the Court justified him in bringing the case. He argued that the Court’s decision about the meaning of the term ‘person affected’ was a matter of public interest, and that made this an important case.

1. Mr Draper argued that the failure of VBA to respond to his requests to obtain clarification of what a statement of reasons must contain led to confusion. He was required to bring the proceedings to obtain clarification. The Court had accepted that statements on page 2 of the ‘statement of reasons’ provided by the primary decision maker was likely to cause confusion.

1. He argued that the VBA’s actions persistently breached the Model Litigant Guidelines as well as its overarching obligations requiring it to be fair and consistent in the handling of claims and litigation. He referred to the VBA challenging his standing, failing to act within statutory time frames, and failing to respond to correspondence.

1. He submitted that the VBA did not act fairly or consistently in seeking costs when he had not sought them in the past. He also contended that the VBA had disproportionately used resources and unnecessarily incurred costs. He argued that the VBA had made misleading claims and submissions, which it later withdrew. It was still refusing to allow him to exercise his rights. In summary, he said it would be unfair for him to have to pay the VBA’s costs and that if it had not interfered with his rights to seek review by VCAT, the case would never have come before the Court.

VBA’s submissions

1. The VBA submitted that as the successful party in the proceeding, it was entitled to its costs in accordance with the customary rule that costs follow the event.[2] The event was the dismissal of Mr Draper’s proceeding. Mr Draper did not obtain any of the relief or orders that he sought and nothing in the course of the proceeding warranted a departure from the usual order as to costs.

   [2]Citing Northern Territory of Australia v Sangare (2019) 265 CLR 164.

1. Mr Draper did not succeed in his application and the Court did not find that any decision of the defendants was affected by error of law on the face of the record. The VBA accepted that Mr Draper successfully established that he was a ‘person affected’, but submitted that the issue of standing occupied only a very small part of the proceeding and was not of high public importance. While it accepted that public interest litigation can justify departures from the usual costs orders, it maintained that such a departure was not warranted in this instance. It submitted that the majority of the material submitted by Mr Draper went to the question of the adequacy of reasons and the lawfulness of various actions by the defendants, their representatives and their employees. He had not succeeded on these issues. The VBA had already provided its reasons before the proceeding was commenced and therefore had not withheld them because Mr Draper was not a person affected.

Analysis

1. I commence with the principle that costs follow the event, which would mean that as Mr Draper’s case was dismissed, he would be ordered to pay the VBA’s costs on a standard basis. Most of the grounds on which he relied did not succeed and many of them could only have been raised in a judicial review proceeding, if at all.

1. However, he was successful on the question of whether he was a ‘person affected’. This was a significant issue in this proceeding and may possibly have significance and effect in similar cases, where people make complaints to regulatory authorities that result in disciplinary hearings in which they, the original complainants, are not parties.[3]

   [3]See Oshlack v Richmond River Council (1998) 193 CLR 72.

1. While the argument on that issue may not have occupied a substantial amount of time, it was important as it determined whether Mr Draper had standing to commence this proceeding. The VBA’s view, that he was not a person affected, may have played a part in the delay in providing him with reasons.

1. After balancing the considerations and the submissions advanced, I consider that I should award the VBA a substantial part of its costs on a standard basis because the proceeding has been dismissed. However, I also consider that adopting an issues basis approach to the exercise of the costs discretion, that I should give some significance to the fact that I accepted Mr Draper’s argument that he was ‘person affected’ by the BPB’s decision and therefore had standing to bring the proceeding.

1. In all the circumstances, I consider that it is appropriate to order that Mr Draper pay two-thirds of the VBA’s costs of the proceeding on a standard basis to be assessed by the Costs Court in default of agreement.

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