Draper v VCAT
[2020] VSC 720
•29 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03187
| SHANNON DRAPER | Plaintiff |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Defendant |
| -and- | |
| BUILDING PRACTITIONERS BOARD | Second Defendant |
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JUDICIAL OFFICER: | Keith JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2020 |
DATE OF JUDGMENT: | 29 October 2020 |
CASE MAY BE CITED AS: | Draper v VCAT |
MEDIUM NEUTRAL CITATION: | [2020] VSC 720 |
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APPEAL FROM VCAT – Disciplinary proceedings against Building Practitioner – Abolition of Building Practitioners Board (“Board”) and replacement with Victorian Building Authority (“VBA”) – Transition of powers and roles under Building Act 1993 (Vic) and Building Legislation Amendment (Consumer Protection) Act 2016 – Issue whether Board or VBA a relevant party to proceeding before court – Plaintiff opposed VBA being joined as party to proceeding - Supreme Court rules 4.06(1) & (2) require all effected parties to be joined to an appeal – VBA the successor entity to the Board - Legislation drafted so VBA can assume role and responsibilities of board - VBA deemed to be a relevant party under the transitional and savings provisions of the Building Legislation Amendment (Consumer Protection) Act 2016 - VBA’s application to be joined as a defendant is granted.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the First and Second Defendants | Mr J Stoller | Victorian Government Solicitors Office |
JUDICIAL REGISTRAR:
Background
In June 2014, Mr Draper, the plaintiff, entered into a domestic building contract with Simonds Homes (Vic) Pty Ltd (ACN 050 197 610) (‘Simonds Homes’) for the construction of a home in Wallan. Following the suspension of work on the home, the plaintiff commenced proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’) against Simonds Homes for, inter alia, defective works and associated damages.
On 29 April 2016, Member Kincaid found in Mr Draper’s favour.[1] Mr Draper concurrently raised various complaints with the Building Practitioners Board (‘Board’) about the conduct of the builder, Mr Vallance Simonds (‘Simonds’) in constructing the home.
[1]Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 669.
On 9 February 2015, Mr Draper requested the Board investigate his complaints. In October 2015, when the Board had not done so, Mr Draper applied to VCAT pursuant to s 182A(3)(b) of the Building Act 1993 (Vic) (‘Building Act’) for an order that the Board undertake an inquiry into Simonds’ conduct (‘2015 Application’).
On 15 September 2017, Senior Member Riegler upheld Mr Draper’s 2015 application and ordered the Board to conduct an inquiry pursuant to s 178 of the Building Act.[2]
[2]Draper v Building Practitioners Board (No 2)(Review and Regulation) [2017] VCAT 1402.
On 10 July 2018, following a delay in the Board carrying out the inquiry, Mr Draper commenced a proceeding in VCAT pursuant to section 182A(3)(a) of the Building Act (‘2018 Application’). On 3 October 2018, Senior Member Farrelly rejected Mr Draper’s 2018 Application.[3]
[3]Draper v Building Practitioners Board(Review and Regulation) [2018] VCAT 1524.
On 19 November 2018, the Board conducted the disciplinary hearing in to Simonds’ conduct, with Mr Draper in attendance as an observer. The hearing resulted in Simonds being reprimanded by the Board for seven breaches of regulation 1502(a) of the Building Regulations 2006 (Vic), was fined $3,464.64 and ordered to pay costs.
On 11 December 2018, Mr Draper requested written reasons for the Board’s decision pursuant to s 46(1) of the Victorian Civil and Administrative Act 1998 (Vic) (‘VCAT Act’). On 5 March 2019, Mr Draper received a statement of reasons from the Board.
On 13 March 2019, Mr Draper commenced an application in VCAT under s 182A(3)(c) of the Building Act for review of the Board’s decision following the disciplinary hearing of 19 November 2018 (‘2019 Application’). On 21 November 2019, Senior Member Smithers denied the plaintiff’s 2019 Application, being made out of time.[4]
[4]Draper v Victorian Building Authority(Review and Regulation) [2019] VCAT 1837.
On 27 July 2020, the plaintiff commenced a proceeding in this Court, naming VCAT and the Board as the first and second respondents respectively, seeking leave to appeal Senior Member Smithers’ decision of 21 November 2019.
The application
The Victorian Building Authority (‘VBA’) has made an application by Summons pursuant to Order 9 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to be joined as a party to this proceeding. The plaintiff opposes the VBA’s application.
In support of this application, the VBA relies on an affidavit of Jennifer Butler sworn 9 September 2020. Oral submissions by the parties were also advanced at the hearing on 16 September 2020.
This application has been referred to me for hearing and determination pursuant to the orders of the Honourable Associate Justice Daly dated 10 September 2020.
Consideration
The Building Act was amended by the Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) (‘Amending Act’). The relevant commencement day of the Amending Act was 1 September 2016.[5] One of the amendments made by the Amending Act to the Building Act was the abolition of the Board.
[5]Victoria, Government Gazette: Special, No. S261, 23 August 2016.
The VBA is established by s 193 of the Building Act. The VBA is a body corporate and may sue and be sued.[6]
[6]Building Act1993 (Vic) s 194.
Prior to 1 September 2016, the Building Act provided for the establishment and functions of the Board.[7] Part 11 of the Building Act provides for the “Registration of Building Practitioners.” Division 3 of Part 11 relates to disciplinary proceedings and actions in relation to building practitioners.
[7]Building Act 1993 (Vic) s 183, as at 4 July 2016.
Prior to 1 September 2016, the VBA did exist and the relevant provisions with respect to its powers and functions appeared in Part 12 of the Building Act entitled “Building Administration”. After 1 September 2016, the functions of the VBA[8] were amended to include for the administration under Part 11 for the registration of building practitioners;[9] the supervision and monitoring of the conduct and ability to practise of registered building practitioners and licensed building employees;[10] to make recommendations about the qualifications for registration of building practitioners;[11] and to issue certificates of consent.[12]
[8]Building Act 1993 (Vic) s 197.
[9]Building Act 1993 (Vic) s 197(ab).
[10]Building Act 1993 (Vic) s 197 (ac).
[11]Building Act 1993 (Vic) s 197 (ad).
[12]Building Act 1993 (Vic) s 197 (ae).
A comparison of the Building Act legislation in force prior to 1 September 2016 reveals these powers were formerly powers appointed to the Board.[13] The amendments made by the Amending Act in 2016 abolished the Board, and transferred to the VBA the functions that had previously been exercised by the Board.
[13]Building Act 1993 (Vic) s 183 (particularly s183(2)(a) to (ca) inclusive), as at 4 July 2016.
By virtue of s 273 of the Building Act, Schedule 8 has effect. Schedule 8 contains transitional and savings provisions of the Building Act, in light of the Amending Act coming in to force (‘Transitional and Savings Provisions’). The application by the VBA to be joined requires consideration of the Transitional and Savings Provisions contained in Schedule 8.
Clause 3 of Schedule 8 of the Building Act has the effect by subclause (1) that the Board is abolished. Subclause (2) of clause 3 provides that subclause (1) does not affect any provision dealing with proceedings before the Board, or providing for the Board to continue for certain purposes.
Clause 4 of Schedule 8 relates to proceedings dealt with by the Board. Subsection 1 states if the Board “had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.”
The application of the Transitional and Savings Provisions must have regard to the chronology of events relevant to this proceeding.
The Board had, in February 2015, received a request from Mr Draper to conduct an investigation. On 11 May 2016, the Board declined to conduct an investigation. Mr Draper filed an application for a review of that decision in VCAT.[14]
[14]The application for review was made pursuant to section 182A of the Building Act 1993 (Vic), as it was prior to 1 September 2016.
The decision of VCAT was handed down on 15 September 2017.[15] The Tribunal set aside the decision of the Board dated 11 May 2016[16] and determined an inquiry be conducted under s 178 of the Building Act into the professional conduct of Simonds.
[15]Draper v Building Practitioners Board (No 2) [2017] VCAT 1402.
[16]The Board’s published decision incorrectly shows 2015, but the reasons for the VCAT decision correctly show 2016.
The question “Who should conduct the inquiry” was considered by the Tribunal in its decision handed down on 15 September 2017.[17] That matter arose because the Amending Act had come into effect on 1 September 2016 – after the application had been made to VCAT and prior to the Tribunal’s decision for an inquiry to be held. The Tribunal considered the transitional provisions allowed for either the Board or the VBA to conduct the inquiry as directed by the Tribunal.[18]
[17]Draper v Building Practitioners Board (No 2) [2017] VCAT 1402 at [117] to [123]
[18]Draper v Building Practitioners Board (No 2) [2017] VCAT 1402 at [123].
The Tribunal referred to comments in relation to the Transitional and Savings Provisions in another proceeding also arising under the Building Act.[19] The Tribunal quoted[20] the following observation:
Transitional provisions are expected to be temporary and they are spent when the past circumstances have been dealt with. Facts and their legal consequences will fall on one side or other of the transitional line.[21]
[19]Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 per Ginnane J. At the time of the relevant VCAT decision, there was an appeal from that decision. On 28 September 2017, the appeal was dismissed (see Ross v Building Practitioners Board & Victorian Building Authority [2017] VSCA 274).
[20]Draper v Building Practitioners Board (No 2) [2017] VCAT 1402 at [122].
[21]Ginnane J in Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 at [52]. See also observations in Ross v Building Practitioners Board & Victorian Building Authority [2017] VSCA 274 at [25], including reference to paragraph 52 of the trial decision of Ginnane J.
The VCAT decision of 15 September 2017 held an inquiry was to be conducted under s 178 of the Building Act. That section was amended with effect from 1 September 2016. Prior to that date, s 178 provided the Board may conduct an inquiry regarding the conduct of a building practitioner. After that date, s 178 was amended to provide for the meaning of “disciplinary action” and the following provisions related to the conduct of such disciplinary action.
The inquiry conducted by the Board under s 178 of the Building Act could result in a decision and determination by the Board in accordance with s 179 of the Building Act, as these provisions existed prior to 1 September 2016.
In November 2018, the Board did conduct an inquiry and made findings and imposed penalties on Simonds. In conducting that inquiry and making its determinations, the Board exercised powers under ss 178 and 179 of the Building Act prior to amendment. That procedure is consistent with the view taken of the Transitional and Savings Provisions and the subject of the comments by VCAT in its decision of 15 September 2017.
The Transitional and Savings Provisions allow the Board to continue and determine an inquiry if “before the relevant commencement day the Board had commenced an inquiry but had not determined the inquiry”. The concept of “commence an inquiry” was the subject of the observations in the Ross proceedings.[22] That question is not directly in issue in the matter before me.[23]
[22]Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196; Ross v Building Practitioners Board & Victorian Building Authority [2017] VSCA 274.
[23]Mr Draper accepts this as correct. See paragraphs 20 and 32 of the affidavit of Shannon Draper dated 13 August 2020 (unsworn due to COVID-19), filed in this proceeding, indicating that the inquiry was commenced before 1 September 2016.
The comments of the Tribunal in the 15 September 2017 decision considered the Transitional and Savings Provisions. The request for the inquiry made by Mr Draper in February 2015 and the Board’s subsequent decision not to conduct an inquiry, occurred prior to the relevant commencement day of the Amending Act. Under the Transitional and Savings Provisions, the inquiry to be conducted as a result of the VCAT decision is an inquiry “commenced” before the relevant commencement date. This follows from the effect of the VCAT order to set aside the decision of the Board made in May 2016. That decision having been set aside, the decision of the Tribunal is substituted and the inquiry was held. On that basis, the Board was empowered to continue and determine the inquiry. Mr Draper appears to accept that position.
It does not then follow that the VBA should not be joined to this proceeding. The Transitional and Savings Provisions have the further effect that once the Board had conducted the inquiry, the decision of the Board is taken to be a decision of the VBA. This style of legislative drafting is recognised to allow for the implementation of a change of statutory entity.[24] The Transitional and Savings Provisions have the legislative effect that the VBA takes over any responsibility for a decision of the Board, as the Board had been abolished, and ceased to have any role once the decision on the inquiry had been made.
[24]See Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 at [52]; Ross v Building Practitioners Board & Victorian Building Authority [2017] VSCA 274 at [25].
Mr Draper, on 11 December 2018, requested a statement of reasons from the Board for its decision following the inquiry. Reasons were provided on 5 March 2019. On 13 March 2019, Mr Draper made an application to VCAT in relation to the decision of the Board. It is that proceeding from which this application for leave to appeal has now been brought.
Mr Draper commenced this proceeding as an appeal pursuant to s 148 of the Building Act and named VCAT as the first respondent and the Board as the second respondent. Mr Draper did not name the VBA as a respondent in this proceeding, despite the decision of VCAT under appeal includes the VBA as a respondent.[25]
[25]The relevant decision of VCAT is Draper v Victorian Building Authority(Review and Regulation) [2019] VCAT 1837, and is exhibit “SD-1” to the affidavit of Shannon Draper dated 13 August 2020 (unsworn due to COVID-19) and filed in the Supreme Court proceeding.
Mr Draper submits the presence of the VBA in the 2019 Application in VCAT was itself an error. It is not necessary to further consider how it came to be that the VBA was the named respondent in the Tribunal.[26] I do not base my decision on the fact the VBA was a party to the decision under appeal. Mr Draper submits he had “a preserved right to have the actions and decisions of [Board] reviewed pursuant to s182A of the old provisions.”[27] The review undertaken by VCAT is not a matter before me at this stage of the proceeding. The issue before me is whether the VBA is entitled to be joined as a party to the current Supreme Court proceeding.
[26]Affidavit of Shannon Draper dated 13 August 2020 (unsworn due to COVID-19), paragraphs 21 to 24.
[27]Affidavit of Shannon Draper dated 13 August 2020 (unsworn due to COVID-19), para 20.
The VCAT Act does not specify in s 148 the necessary parties to be named in a proceeding seeking leave to appeal from a decision of VCAT. The section requires the proceeding be commenced within 28 days after the day of the relevant order of the Tribunal and it must be made in accordance with the rules of the Supreme Court.[28] The rules of the Supreme Court direct the Notice of Appeal is to name all the persons on whom it is proposed to be served, and require that notice of the appeal be given to all persons directly affected by the appeal. The relevant rules are 4.06(1) and (2).[29]
[28]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(2).
[29]Order 4 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) concerns appeals from tribunals and by rule 4.01, expressly apply to section 148 Appeals from VCAT.
On the view I have taken of the Building Act, I consider the VBA is a person directly affected by the appeal. The VBA is directly affected because the decision of the Board, which was the subject of the 2019 Application in VCAT and hence with which this Court is now concerned, is a decision of the VBA by reason of the Transitional and Savings Provisions. The VBA now seeks to be added to the proceeding as a defendant.
The VBA relies on clause 4 of Schedule 8 of the Building Act for the purposes of establishing it is able to be joined as a party to this proceeding. The relevant part of clause 4 of Schedule 8 is subclause 4(2)(a), which provides:
A determination of the Building Practitioners Board referred to in subclause (1) is taken – in the case of a decision under section 179 of the old provisions to be a decision of the Authority under section 182E of the new provisions.[30]
[30]A similar provision exists in the case of a decision under section 180 of the old provisions of the Building Act, prior to the Amending Act coming in to force.
On this basis, the decision of the Board made following the inquiry is taken to be a decision of the VBA. The Transitional and Savings Provisions operate to allow the Board to conduct and complete an inquiry, and to make determinations as a result of that inquiry.
Clause 6 of Schedule 8 of the Building Act is also of some assistance. It provides that all decisions and actions taken by the Board before the commencement day of the Amending Act, are taken to be decisions and actions taken by the VBA in relation to any period on or after that commencement day. To the extent the history of these proceedings might have continuing significance, the decision of the Board in May 2016 to decline conducting an investigation is considered to be a decision of the VBA. This view supports the observations that the Transitional and Savings Provisions in the Building Act are designed to provide for a continuity of authority.
The Board was abolished with effect from 1 September 2016. The limited circumstances in which the Board could perform any actions after that date are subject to the provision that those actions are taken to be actions of the VBA. Accordingly, the VBA was a proper interested party in the VCAT proceedings commenced by Mr Draper in March 2019, and an interested party in this Supreme Court proceeding commenced in July 2020.
The Amending Act and the Transitional and Savings Provisions have now been operative for over four years. As was observed in Ross,[31] transitional provisions are intended to be temporary. The Building Act as amended, including the Transitional and Savings Provisions, provide the basis for my decision that the VBA should be added as a defendant in this proceeding.
[31]Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 at [52].
Mr Draper sets out in his affidavit[32] one of the grounds of his objections to the VBA being added as a party to the Supreme Court proceeding. Mr Draper considers there has been an inconsistent interpretation of legislation and conduct as to the time at which functions of the Board were taken over by the VBA. Mr Draper points out the decision of the Board was made on 19 November 2018 and asks how then could it be that the VBA took over the functions with effect from 1 September 2016.
[32]Affidavit of Shannon Draper dated 10 September 2020 (unsworn), provided by email to Chambers, paragraph 5.
The argument developed by Mr Draper included reference to the “decision maker” and the obligations imposed on the decision maker in proceedings before VCAT under the VCAT Act and the Tribunal’s applicable rules. Mr Draper submitted obligations are imposed on the decision maker, and that the VBA was not the decision maker with respect to the outcome of the inquiry. Mr Draper maintained the correct decision maker was the Board.
I do not consider any such difficulty arises. The Transitional and Savings Provisions have the effect that although the Board was empowered to undertake the relevant inquiry, the Board’s actions in having done so, for all purposes of the law, were actions of the VBA. Although the Board made the decision disciplining Simonds, the VBA is entitled to be regarded as the decision maker being by force of law, the successor to the Board. The statement of reasons provided by the Board for its decision is also explained by application of the Transitional and Savings Provisions.
In my view, the approach taken by Mr Draper in opposition to the application by the VBA arises from a misunderstanding of the operation and effect of the Transitional and Savings Provisions to the Building Act, as a result of the Amending Act. As previously indicated, the amendments took effect as and from 1 September 2016. After that date the Board would continue to be active and would perform functions in the name of the Board. However, those actions could only be in the circumstances provided for by the Amending Act and the Transitional and Savings Provisions. By virtue of the same provisions, the actions and conduct performed by the Board in accordance with those provisions are to be “taken” as actions of the VBA.
The Parliament uses such transitional provisions to provide for circumstances where one statutory entity is replaced by another statutory entity. The provision may be described in some way to create a “legal fiction” but it is in fact a legal change with force of legislation. The Transitional and Savings Provisions recognise that although the Board has been abolished, it is necessary for the Victorian Government to provide a new entity with responsibility to answer for the conduct of the former entity, being the VBA.
The use of such provisions allows for the abolition of the Board with effect from a date certain, but nevertheless provide for the Board to engage in conduct and make decisions after that date. From the date certain, new matters arising under the regulatory scheme are not part of the Board’s function but the transitional provisions dictate what functions the Board can perform and what actions it can take. As I have said, once the Board does undertake those functions, the actions are taken to be actions of the VBA. Accordingly, it follows that the VBA is an appropriate party to be joined to this proceeding.
The application by the VBA also relied on the content of the Notice of Appeal, and in particular questions 4 and 12 therein, filed in this proceeding on 27 July 2020. Both questions directly put in issue conduct of the VBA. Counsel for the VBA submitted the questions themselves supported the order that the VBA be added as a party to the proceedings.
Mr Draper responded to the effect that the questions could be withdrawn. However, for the reasons I have given, the VBA is entitled to be added as a party to the proceeding. The withdrawal of questions 4 and 12 would not change the conclusion that the VBA is a proper party. Mr Draper also sought to develop a submission that the confusion as to when an action is considered the Board’s and when it is considered the VBA’s, are questions of law which should be regarded as issues for the Board and not the VBA. However there is no merit in this submission. The proper application of the Amending Act and the Transitional and Savings Provisions indicate the VBA is a proper party for the entire Supreme Court Proceeding, including questions 4 and 12.
It is appropriate I comment on other matters raised by Mr Draper in his affidavits and in his submissions. Mr Draper relied on a sequence of events to support an argument that the VBA had engaged in inconsistent legal interpretations.[33] The events were in a period from 2017 to 2019, although some other events were mentioned in passing.
[33]Affidavit of Shannon Draper dated 10 September 2020 (unsworn), provided by email to Chambers, paragraph 6, items A to H and with reference to exhibits “SD-7” to “SD-9”.
Exhibit “SD-9” to Mr Draper’s unsworn affidavit dated 10 September 2020 is described in paragraph 6(b) and relates to events in July 2017. However, the documents contained in exhibit “SD-9”[34] are in fact dated in July 2015. By email to my Associate after the hearing, Mr Draper provided documents identified as the intended exhibit “SD-9”. The email from Mr Draper stated:
I have attached an amended copy of Exhibit SD 9 - showing the VBA declaring the BPB Inquiry manual as relevant to its making of Inquiry decisions, the very same policy which Mr Stoller seeks to have the court believe is out of date and not relevant, when trying to fend off the volumes of allegation in relation to both the VBA and BPB failing to follow proper policy and procedures.
[34]Exhibits to the Affidavit of Shannon Draper dated 10 September 2020 (unsworn), provided by email to Chambers, pages 166 to 171 (out of 308 pages).
The document attached to the email and to be relied on as exhibit “SD-9” includes an email from the VBA to VCAT in response to orders of the Tribunal that policy documents relied on for a decision of the Board should be produced. The email produced an electronic version of the Inquiry Manual. In my view, there is nothing about the communication to assist Mr Draper. The communication is consistent with: the Transitional and Savings Provisions for the amendments to the Building Act; the legislative abolition of the Board; and the vesting of powers and functions in the VBA.
Mr Draper referred to several other decisions in the course of submissions in opposition to the addition of the VBA as a defendant. Mr Draper referred to Stanbury v Victorian Building Authority.[35] In that proceeding, the Tribunal recognised the VBA was the respondent and not the Board,[36] however the Board had issued the Notice of Inquiry on 30 August 2016.[37] I do not consider there is any inconsistency in the position taken by the VBA in the proceeding before me and in Stanbury. In each matter the inquiry process commenced prior to 1 September 2016 and in both, the VBA is found to be the proper party to appear in proceedings concerning the Board’s decision.
[35][2019] VCAT 1645.
[36]Stanbury v Victorian Building Authority [2019] VCAT 1645 at [4].
[37]Stanbury v Victorian Building Authority [2019] VCAT 1645 at [1].
Mr Draper referred to Ross vBuilding Practitioners Board[38] in which this Court considered whether the Board had commenced an inquiry prior to 1 September 2016. The Court held the Board had commenced an inquiry. Both the Board and the VBA were parties to the Supreme Court proceedings. The Board adopted a “Hardiman” position and the VBA made submissions.[39] There is no inconsistency in the position taken by the VBA in these proceedings. The Ross proceedings do not assist Mr Draper.
[38]Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 per Ginnane J; Ross v Building Practitioners Board & Victorian Building Authority [2017] VSCA 274.
[39]Ross v Building Practitioners Board & Victorian Building Authority [2017] VSC 196 at [12] per Ginnane J.
Mr Draper referred to King v Victorian Building Authority,[40] another matter where an inquiry was conducted by the Board and the VBA appeared as the respondent to the VCAT proceedings.[41] The approach taken by the VBA and VCAT in the King proceedings do not assist Mr Draper or show any reason to refuse the application by the VBA to be added to this proceeding.
[40]Exhibit “SD-11” to the affidavit of Shannon Draper dated 10 September 2020 (unsworn), provided by to Chambers for use on the hearing before me. Exhibit “SD-11” is a copy of submissions apparently made by the VBA in proceedings before VCAT in April 2018.
[41]The decision of VCAT in King v Victorian Building Authority [2019] VCAT 353, is a review of the decision of the Board dated 1 November 2017 on an inquiry arising from a notice given on 30 August 2016 – prior to the amendments to the Building Act of 1 September 2016.
Mr Draper referred to a decision in which VCAT was the respondent to proceedings in the Supreme Court and in which there was no requirement to join the contradicting party. The decision was raised in an email sent to the Court by Mr Draper on 15 September 2020 and was mentioned in oral submissions before me. Mr Draper advanced the argument that, on a question of jurisdiction, the Tribunal is the appropriate respondent and the VBA is not a necessary party. The decision is Khan v Victorian Civil and Administrative Tribunal.[42] An appeal from that decision was heard by the Court of Appeal.[43]
[42][2018] VSC 549 per Champion J.
[43]Khan v Victorian Civil and Administrative Tribunal [2018] VSCA 351.
The relevant decision of VCAT in the Khan proceedings was a decision pursuant to S 71 of the VCAT Act to reject an application that Mr Khan had sought to commence. Pursuant to S 71(2), Mr Khan requested a review of the decision of the Principal Registrar of the Tribunal. The Tribunal conducted the review and upheld the Principal Registrar’s decision.[44] Accordingly, no proceeding had been commenced in the Tribunal and no other party was heard in the Tribunal. The nature of the appeal in Khan is sufficiently different to the appeal now brought by Mr Draper that no inconsistency can be found. The approach in Khan does not dictate that the VBA is not entitled to be joined in this proceeding.
[44]The history is set out by Champion J in Khan v Victorian Civil and Administrative Tribunal [2018] VSC 549 at [20] – [24].
Mr Draper argued the question at issue goes to the jurisdiction of VCAT, as it did in Khan. However, the decision under appeal in this proceeding is the decision of VCAT on 21 November 2019 to refuse an extension of time to commence Mr Draper’s application. The VBA was a party to the application for the extension of time and the VBA made submissions to the Tribunal on that question. The matter of Khan is to be distinguished.
I also observe it is not correct to argue from other cases that a particular form of procedure should be adopted in this proceeding. While I have sought to show why there is no inconsistency in approach as Mr Draper suggests, the application for an order that the VBA be added to this proceeding must be decided on the facts and law applicable to this case, and not by reference to other cases.
Accordingly, the VBA’s application to be joined as a defendant to this proceeding is granted.
ORDERS
The application by the Victorian Building Authority to be joined as a respondent in these proceedings is granted.
The directions hearing is adjourned to 11:00am on 28 October 2020.
Costs be reserved.
The parties have liberty to apply.
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