Draper v Victorian Building Authority - [2022] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03775

SHANNON DRAPER	Plaintiff
v
VICTORIAN BUILDING AUTHORITY	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	4-5 August 2021, 8 and 20 June 2022
DATE OF JUDGMENT:	24 August 2022
CASE MAY BE CITED AS:	Draper v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 488

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JUDICIAL REVIEW – Victorian Building Authority decision – Show cause procedure against building surveyor and building inspector following plaintiff’s complaints – Plaintiff contracted with builder to construct a house – No disciplinary action taken – Whether VBA made jurisdictional errors – Building Act 1993 s 182; Building Regulations 2006 reg 1502(a).

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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:

Mr Shannon Draper seeks judicial review of a decision made by the defendant, the Victorian Building Authority (‘VBA’), with respect to Registered Building Inspector Mr K Wilson (the ‘RBI’). This proceeding is related to Mr Draper’s proceeding S ECI 2020 03774, in which he sought judicial review of the VBA’s decision with respect to Registered Building Surveyor Mr C Giambattista (the ‘RBS’). The proceedings were heard together with the parties addressing, with a few exceptions, similar grounds, by similar submissions.

The VBA decision was made by Ms A Smith, Delegate and Principal Decision-Maker, but I will refer to the VBA as the decision-maker unless the context requires otherwise. Ms Smith also drafted the Show Cause Notice.

To obtain judicial review remedies, Mr Draper must establish that the VBA made a jurisdictional error.

The VBA’s decision arises from the following circumstances. In August 2017, Mr Draper complained to the VBA about works carried out by the RBS and the RBI in 2014 and 2015. The VBA made inquiries and, on 28 November 2019, issued Show Cause Notices to the RBS and the RBI under s 182 of the Building Act 1993 (the ‘Building Act’). The RBS and RBI provided written responses to those notices. On 17 March 2020, the VBA decided not to take disciplinary action against either of them. Its reasons for decision were dated 8 April 2020.

Mr Draper contended that the VBA made jurisdictional errors in its decisions and seeks, among other thing, the quashing of the decisions, the making of orders or declarations to rectify perceived defects in Victoria’s building legislation, the making of orders requiring the VBA to properly perform its functions, and the making of declarations against the VBA that it failed to act as a model litigant.

Mr Wilson, the RBI, was not joined as a defendant and therefore has not had the opportunity to be heard in respect of Mr Draper’s applications.

Background

This proceeding is one of several that Mr Draper has commenced that arise from the same history which I now summarise.

In June 2014, Mr Draper entered into a contract with Simonds Homes Victoria Pty Ltd (‘Simonds…

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 Victorian Building Authority

Details

AGLC: Draper v Victorian Building Authority [2022] VSC 488
Case: [2022] VSC 488
Decision Date: 24 August 2022

CaseChat Overview and Summary

The case of Draper v Victorian Building Authority involved a dispute where the plaintiff sought judicial review of a decision made by the Victorian Building Authority (VBA). The plaintiff had lodged complaints regarding the conduct of a building surveyor and a building inspector, who were involved in the construction of the plaintiff’s house. Despite these complaints, the VBA took no disciplinary action against the surveyor and inspector. The plaintiff argued that the VBA had made jurisdictional errors in handling their complaints, and sought to challenge the decision under the Building Act 1993 and the Building Regulations 2006.

The central legal issues before the court were whether the VBA had indeed made jurisdictional errors in the handling of the plaintiff’s complaints and in the decision not to take disciplinary action against the building surveyor and inspector. The plaintiff argued that the VBA had failed to properly consider the evidence provided and had not applied the correct legal principles in reaching their decision. The VBA, on the other hand, maintained that they had correctly exercised their discretion and that the decision was not subject to judicial review.

The court found that the VBA had not made any jurisdictional errors in their decision-making process. The VBA had properly considered the evidence provided by the plaintiff and had applied the relevant legal principles in reaching their decision. The court held that the VBA’s decision not to take disciplinary action was within their lawful powers and was not subject to judicial review. The plaintiff’s argument that the VBA had failed to properly consider the evidence was rejected, as the court found that the VBA had given adequate consideration to the matter.

As a result of the court’s decision, the plaintiff’s application for judicial review was dismissed. The VBA’s decision not to take disciplinary action against the building surveyor and inspector was upheld, and no further action will be taken in relation to the complaints made by the plaintiff. The court’s judgment serves as a reminder that the decisions of regulatory bodies, such as the VBA, are generally afforded a degree of deference by the courts and are not easily subject to judicial review.

Orders