Draper v Victorian Building Authority

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03774

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, 20 June 2022
DATE OF JUDGMENT:	24 August 2022
CASE MAY BE CITED AS:	Draper v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 487

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JUDICIAL REVIEW – Decision of the Victorian Building Authority – Plaintiff contracted with builder to build a house – Show cause procedure against building surveyor and building inspector following plaintiff’s complaint – No disciplinary action taken – Whether VBA provided notice and reasons for decision to plaintiff – Amendments to the Building Act –Validity of show cause provisions of Building Act 1993 – Whether disciplinary action should have been taken under pre-amendment or post-amendment Act – Transitional provisions – Plaintiff’s standing to bring proceeding – Whether VBA made jurisdictional errors – VBA’s power to decide the allegations to include in Show Cause Notice – Whether VBA failed to take into account relevant considerations or took into account irrelevant considerations – Whether VBA made errors of fact that were jurisdictional errors – Whether VBA’s decision unreasonable – Whether VBA’s delay amounted to a jurisdictional error – Building Act 1993–2022 ss 1, 24, 178, 179, 182, 182A, 182C, 182D, 182E, 183, 183B, 184, 185A, 193, 197, 198, 199; Building Regulations 2006 regs 301, 302, 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

TABLE OF CONTENTS

Background......................................................................................................................................... 4

The legislation.................................................................................................................................... 5

The Building Act........................................................................................................................... 5
Building Regulations.................................................................................................................... 9
The show cause process............................................................................................................... 9
The show cause process against the RBS................................................................................. 11
The Show Cause Notice allegations......................................................................................... 11

Standing............................................................................................................................................. 14

Analysis of Mr Draper’s standing............................................................................................ 15

Mr Draper’s grounds....................................................................................................................... 16

Grounds 1 and 2: Notice and reasons...................................................................................... 17
Mr Draper’s submissions.................................................................................................. 17
VBA’s submissions............................................................................................................ 17
Analysis............................................................................................................................... 18

Grounds 3 and 4: The validity of s 182 of the Building Act.................................................. 20
Mr Draper’s submissions.................................................................................................. 20
VBA’s submissions............................................................................................................ 20
Analysis............................................................................................................................... 20

Ground 12: VBA’s reliance on the post-amendment Building Act...................................... 21
Mr Draper’s submissions.................................................................................................. 21
VBA’s submissions............................................................................................................ 22
Analysis............................................................................................................................... 22

Grounds 5-10, 15-18, 20-21, & 25: Relevant and irrelevant considerations........................ 23
Grounds 5, 6 and 7: Consideration of AS 4440.............................................................. 24
Submissions........................................................................................................... 24
Analysis................................................................................................................. 25

Ground 8: Mr Draper’s statements................................................................................. 27
Submissions........................................................................................................... 27
Analysis................................................................................................................. 28

Ground 9: Personal impact statement............................................................................ 28
Submissions........................................................................................................... 29
Analysis................................................................................................................. 29

Ground 10: Alleged intimidation.................................................................................... 30
Submissions........................................................................................................... 30
Analysis................................................................................................................. 30

Ground 15: Timbertruss email......................................................................................... 31
Submissions........................................................................................................... 34
Analysis................................................................................................................. 34

Ground 16: Load of solar hot water collectors and evaporative cooler..................... 35
Submissions........................................................................................................... 35
Analysis................................................................................................................. 36

Ground 17: Other evidence and MiTek.......................................................................... 37
Submissions........................................................................................................... 37
Analysis................................................................................................................. 38

Ground 18: Section 24(2) of the Building Act................................................................ 39
Submissions........................................................................................................... 40
Analysis................................................................................................................. 42

Ground 20: Evidence of the RBS and the RBI................................................................ 45
Submissions........................................................................................................... 45
Analysis................................................................................................................. 46

Ground 21: VCAT findings.............................................................................................. 46
Submissions........................................................................................................... 47
Analysis................................................................................................................. 47

Ground 25: Purportedly varied contract........................................................................ 48
Submissions........................................................................................................... 48
Analysis................................................................................................................. 50

Grounds 19, 22, 23 & 24: Unreasonableness............................................................................ 50
Mr Draper’s submissions.................................................................................................. 51
VBA’s submissions............................................................................................................ 52
Analysis............................................................................................................................... 53

Ground 11: The VBA’s use of discretion.................................................................................. 54
Mr Draper’s submissions.................................................................................................. 54
VBA’s submissions............................................................................................................ 55
Analysis............................................................................................................................... 55

Grounds 13 and 14: Alleged delay........................................................................................... 55
Mr Draper’s submissions.................................................................................................. 56
VBA’s submissions............................................................................................................ 57
Analysis............................................................................................................................... 57

The Further Amended Originating Motion’s Additional Grounds.................................... 58
Proposed additional grounds 1 and 2: Statement of reasons...................................... 58
Submissions........................................................................................................... 58
Analysis................................................................................................................. 58

Proposed additional grounds 3, 4 and 6: Delegation................................................... 59
Submissions........................................................................................................... 60
Analysis................................................................................................................. 60

Proposed additional ground 5: Dilution of complaints............................................... 61
Submissions........................................................................................................... 61
Analysis................................................................................................................. 61

Conclusion......................................................................................................................................... 62

HIS HONOUR:

Mr Shannon Draper seeks judicial review of a decision of the defendant, the Victorian Building Authority (‘VBA’), which ended a show cause disciplinary process with respect to Registered Building Surveyor Mr C Giambattista (the ‘RBS’). This proceeding is related to, and was heard at the same time as, Mr Draper’s proceeding S ECI 2020 03775, in which he sought judicial review of the VBA’s decision which ended a show cause disciplinary process with respect to Registered Building Inspector Mr K Wilson (the ‘RBI’). Mr Draper and the VBA made the one set of submissions for both proceedings.

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.

In order to obtain judicial review remedies, Mr Draper must establish that the VBA made jurisdictional errors. It is important that the parties understand that in a judicial review proceeding the Court does not decide questions of fact afresh, whether they relate to disciplinary charges or otherwise. It only determines whether the decision-maker has made a recognized jurisdictional error and thereby failed to perform its statutory duties according to law. I must apply that principle in deciding Mr Draper’s grounds.

The show cause process followed Mr Draper’s complaints in August 2017 to the VBA about the professional conduct of the RBS and the RBI in 2014 and 2015 in connection with the construction of his house at Wallan by the builder, Simonds Homes Victoria Pty Ltd (‘Simonds Homes’). 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 the Show Cause Notices. On 17 March 2020, the VBA decided not to take disciplinary action against either of them, ending each show cause process without taking further action.

Mr Draper contended that the VBA made jurisdictional errors and sought, among other things, the quashing of its decisions and the making of any orders or declarations necessary to rectify perceived defects in Victoria’s building legislation, orders requiring the VBA to properly perform its functions, and declarations regarding its failure to act as a model litigant.

Mr Giambattista was not joined as a defendant and therefore has not had the opportunity to be heard about the orders that Mr Draper seeks.

Background

This proceeding is one of several commenced by Mr Draper arising from the same background, which I will next summarise.

In June 2014, Mr Draper entered into a contract with Simonds Homes to construct a house at Wallan. He identified defects in its construction and arranged for the VBA to inspect it when it was partially completed. Mr Draper first complained about the work on the house after the slab had been finished, at which point he asked Simonds Homes to stop work.[1] Simonds Homes ‘suspended work on the dwelling after it completed the slab and frame stages, together with the roof truss’.[2]
[1]Draper v Simonds Homes Victoria Pty Ltd [2016] VCAT 669, [15].
[2]Ibid [21].

Mr Draper commenced civil proceedings against Simonds Homes in the Victorian Civil and Administrative Tribunal (the ‘Tribunal’ or ‘VCAT’) in respect of those defects and succeeded in obtaining the following order against the builder:[3]

Pursuant to section 53(2)(g) Domestic Building Contracts Act 1995, the Respondent must rectify defective building works, by demolishing the existing slab, and laying a slab for the dwelling as enables the Finished Floor Level of the garage section of the slab to be 150 mm above a Finished Ground Level at the slab’s western edge of RL98.58 metres, in accordance with Site Plan 1.1 signed by the Applicant on 5 June 2014.

[3]Ibid Orders [1].

On 9 February 2015, Mr Draper requested the BPB to conduct an inquiry into the professional conduct of Mr Vallence Gary Simonds, the principal director of Simonds Homes and its nominated building practitioner. On 11 May 2016, the BPB told Mr Draper that it had decided not to conduct the inquiry but to conduct a ‘conduct review’ which was a non-statutory review. Mr Draper commenced a proceeding in the Tribunal under s 182A(3)(b) of the Building Act 1993, as it was before 1 September 2016, to set aside the BPB’s decision. On 11 September 2017, a Senior Member of the Tribunal set aside that decision, and ordered the BPB to conduct an inquiry into Mr Simonds’ professional conduct.

On 19 November 2018, the Building Practitioners Board (the ‘BPB’) conducted an inquiry hearing concerning the professional conduct of Mr Simonds. He accepted as proved six allegations, with a seventh being proved. The allegations related to breaches of his obligations concerning contractual documentation and procedures and construction of the house. All seven allegations alleged breach of regulation 1502(a) of the Building Regulations 2006, which requires that a building practitioner must perform his or her work in a competent manner and to a professional standard. The BPB reprimanded Mr Simonds, fined him a total of $3,464.64 and ordered him to pay $14,429 costs.

In this proceeding, and in three other proceedings,[4] Mr Draper has pursued complaints about the VBA and the now-abolished the BPB and the merits of decisions made by the VBA, the BPB and VCAT and about the regulation of the Victorian building industry.
[4]The judgments in the other three proceedings are Draper v Victorian Building Authority [2022] VSC 485, Draper v Victorian Civil and Administrative Tribunal & Ors [2022] VSC 486 and Draper v Victorian Building Authority [2022] VSC 488.

The legislation
The Building Act

The relevant sections of the Building Act, as at the time the Show Cause Notices were issued, stated:

24 Refusal of building permit
(1)Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that—
(a)the building work and the building permit will comply with this Act and the building regulations; and
(b)any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or taken to have been obtained in accordance with Schedule 2; and
(c)any relevant planning permit or other prescribed approval has been obtained; and
(d)the building permit will be consistent with that planning permit or other prescribed approval.

(2)Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit that imposes on the applicant lesser or greater standards or requirements than those prescribed by this Act or the building regulations, unless permitted to do so by this Act or the building regulations.

178     Meaning of disciplinary action
In this Division, disciplinary action in relation to a registered building practitioner means one or more of the following—
(a)       reprimand the practitioner;
(b)       direct the practitioner—
(i)to do a specified thing, including to rectify or complete specified building work; or

(ii) not to do a specified thing;
(c)require the practitioner to successfully complete a specified course of training within a specified period;
(d)impose a penalty of not more than 150 penalty units, in the case of a natural person, or 750 penalty units, in the case of a body corporate, unless—
(i)a charge has been filed in the Magistrates' Court in relation to the matter; or
(ii)the matter has been dealt with by a court exercising its criminal jurisdiction; or
(iii)the matter has been dealt with by the issue of an infringement notice;

(e)vary a condition (other than a prescribed condition), or impose a condition, on the practitioner's registration;
(f)suspend registration for not more than 3 years either wholly, or as a partial suspension in relation to a specified matter;

(g) cancel registration;
(ga)disqualify the practitioner from being a nominee director of a registered body corporate or a specified registered body corporate for a specified period not exceeding the period during which the body corporate is registered;
(gb)in the case of a registered body corporate, disqualify a registered building practitioner who is an officer of the body corporate from being a nominee director, or being otherwise involved in the management, of the body corporate for a specified period not exceeding the period during which the body corporate is registered;

(h)disqualify the practitioner for a specified period of up to 3 years from being registered in any category or class of building practitioner.

179     Grounds for disciplinary action
(1)Each of the following is a ground for which disciplinary action may be taken against a registered building practitioner—
(a)       the practitioner has contravened—
(i)        this Act or the regulations under this Act; or
(ii)the Domestic Building Contracts Act 1995 or the regulations under that Act; or
(iii)a prescribed Act or law or a prescribed provision of a prescribed Act or law;

(b)the practitioner has engaged in unprofessional conduct or has failed to comply with a code of conduct;
…
(f)the practitioner has engaged in conduct in relation to the practitioner's practice as a building practitioner that is—
(i) constituted by a pattern of incompetence; or
(ii) negligent in a particular matter;
(g)the Authority believes on reasonable grounds that the practitioner is not a fit and proper person to practise as a building practitioner;
…

(2)The Authority may make inquiries to determine whether a ground exists for taking disciplinary action under this Part.

182 Show cause notice
(1)Subject to subsection (6), if the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice).
(1A)In the case of disciplinary action on the ground set out in section 179(1)(db), the Authority must give a show cause notice by the later of the following—
(a)within 28 days of receiving the breach of dispute resolution order notice from the chief dispute resolution officer;

(b) within the prescribed period.
(2) The show cause notice must state the following—
(a)that the Authority proposes to take disciplinary action;
(b)the disciplinary action proposed to be taken;
(c)the registration in relation to which the proposed action is to be taken;
(d)the ground for the proposed action;
(e)an outline of the facts and circumstances forming the basis for the ground for the proposed action;
(f)an invitation to the registered building practitioner to show within a stated period (the show cause period) why the proposed action should not be taken.

183Notice of decisions
(1)The Authority must give notice of a decision under this Division in relation to a registered building practitioner to any person who made a complaint to the Authority about the matter to which the decision relates.
(2)If the Authority is aware that a registered building practitioner is a member of a professional association or is employed by a particular person, the Authority must cause notice of any decision concerning the practitioner made under this Division to be given to that association or employer without delay after the decision takes effect.

Section 193 of the Building Act establishes the VBA:

193Establishment of Authority
The Victorian Building Authority is established.

Sections 197 and 198 of the Building Act contain the VBA’s functions and powers:

197Functions of the Authority
(1)The Authority has the following functions—
(a)to monitor and enforce compliance with this Act and the regulations;
(ab)to administer the scheme under Part 11 for the registration of building practitioners;
(ac)to supervise and monitor the conduct and ability to practise of registered building practitioners and licensed building employees;
….

198General powers of the Authority
The Authority may do all things necessary or convenient to enable it to carry out its functions.

Building Regulations

Regulation 1502(a) of the Building Regulations 2006 concerns professional standards required of registered building practitioners and states:

1502 Professional Standards
A registered building practitioner must –
(a)perform his or her work as a building practitioner in a competent manner and to a professional standard; and
…

The show cause process

The show cause process contained in the current Building Act 1993 requires that the Show Cause Notice include an invitation to the registered building practitioner to show within a stated period of at least 14 days why the proposed action should not be taken. The practitioner may make written or oral representations about the Show Cause Notice.[5] The VBA must then decide whether a ground exists to take disciplinary action against that practitioner.[6] If it no longer believes a ground exists to take disciplinary action, the VBA may take no further action, must revoke any suspension and give notice to the practitioner that no further action will be taken about the notice.[7] If the VBA believes a ground exists to take disciplinary action against the practitioner, it may accept their undertaking and defer taking disciplinary action for a specified period, or take disciplinary action that the VBA considers to be less serious than the proposed disciplinary action or take no further action.[8] If the VBA believes a ground exists to take disciplinary action against the practitioner, it may take the disciplinary action proposed in the Show Cause Notice or:[9]

on the basis of representations made or new evidence received, take disciplinary action that the Authority considers to be less serious than the disciplinary action referred to in paragraph (a).

[5]Building Act, s 182A(1).

[6]Building Act, s 182B.

[7]Building Act, s 182C.

[8]Building Act, s 182D.

[9]Building Act, s 182E.

The VBA, as decision-maker, decides what evidence, material or documents it considers relevant to the show cause process. It is given wide powers of investigation by s 179(2) of the Building Act.

In Singleton v Victorian Building Authority,[10] Garde J dismissed an application for judicial review of a decision by the VBA not to take further disciplinary action against a building surveyor. The plaintiff sought orders that the VBA bring additional charges against the surveyor for using unregistered inspectors to inspect the building works at her property and for failing to discharge his duties as building surveyor in a professional manner. The VBA had already taken disciplinary action against the surveyor who was appealing the outcomes in VCAT. Garde J explained:[11]

Her submissions must fail. This is not a case where the authority has refused to perform its functions or denied its public duty. The authority has investigated Ms Singleton’s allegations against Mr Ross. It has given repeated consideration to the exercise of its powers to take disciplinary action against Mr Ross and held an inquiry into his conduct. It referred 383 allegations against Mr Ross to the Board for determination. Subject to review by VCAT, Mr Ross has now admitted or been found guilty of 314 allegations.
The authority’s obligations in relation to show cause notices under s 182(1) of the Building Act are plainly discretionary. First it must form a reasonable belief that one of the grounds in s 179(1) for taking disciplinary action exists, and second, propose to take action in the exercise of its discretion. The manner in which the authority performs its function is also discretionary. There is no legal basis on the evidence to interfere with the exercise of the authority’s discretion not to take further disciplinary action against Mr Ross.

[10][2019] VSC 416 (‘Singleton’).

[11]Ibid [58]-[59].

Singleton has significance to the determination of a number of Mr Draper’s grounds.

The show cause process against the RBS

As stated, the Show Cause Notice was dated 28 November 2019. The VBA ended the show cause process against the RBS by a decision dated 17 March 2020 and the reasons for decision were dated 8 April 2020.

The Show Cause Notice allegations

The first ground of the Show Cause Notice alleged that the RBS had failed to adequately respond to Mr Draper’s concerns regarding the Finished Floor Level (‘FFL’) and Finished Ground Level (‘FGL’) of the house.

The VBA found that the RBS had contravened regulation 1502(a) in respect of the first ground. It stated that ‘particularly if the owner seemed unreasonable and unwilling to accept facts, it is considered that a response in writing should have been provided to the owner to clearly explain in relation to the FFL and FGL that the plans were compliant with the [Building Code of Australia] and that the constructed slab was compliant with those plans’. However, the VBA accepted the existence of a significant personal mitigating factor relevant to the RBS’s conduct and that the contravention was a single instance relating to a best practice standard of professionalism and did not relate to a statutory function. The VBA stated:[12]

In all the circumstances, the VBA considers that taking any disciplinary action for this contravention of regulation 1502(a) would be disproportionate. While some disciplinary action might be appropriate for general deterrence purposes to signal that an adequate response to an owner’s queries about compliance is expected when performing work as a competent and professional building surveyor, the VBA considers the individual factors outweigh the general deterrence purpose in this case.

[12]Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [29].

The second ground of the Show Cause Notice concerned the RBS’s actions in issuing a building permit when he could not have been satisfied that the building of the frame would comply with the Act and the Regulations. The Show Cause Notice alleged that Condition 4 of the building permit failed to require that the roof truss/frame design documentation was provided to the RBS prior to the manufacture and installation of the frame.

However, the VBA did not accept that the RBS had breached s 24, and concluded that:[13]

On reflection, the failure to ensure that Condition 4 of the building permit required that the design documentation to be provided to you prior to manufacture of the frame does not mean that you should have refused the application for the building permit under section 24 of the Act. This failure should instead have been proposed in the Show Cause Notice as falling below the standard required of a competent and professional building surveyor under regulation 1502(a). Nevertheless, having accepted that the weight of the solar collector panels was incorporated into the engineering design, it is not considered that disciplinary action is warranted for this contravention in any event.
The VBA is not satisfied that a contravention of section 24 is established.

[13]Ibid [37]-[38].

The third ground of the Show Cause Notice was that the RBS approved the frame inspection when its design and construction were not compliant and the required approvals had not been provided. It alleged that the design of the roof truss did not allow for the additional loading of a solar hot water system and was not compliant with the endorsed drawings and specifications. The VBA concluded that:[14]

…the VBA accepts the design of the roof truss for the site allowed for the additional loading of the solar collector panels noted on the endorsed plans. On that basis, the VBA accepts it was reasonable for you to approve the frame/truss documentation as consistent with the endorsed plans.

[14]Ibid [44].

The VBA’s decision then dealt with allegations that the frame construction displayed incomplete or non-compliant items, the first being gaps in the hips/truss connections and the second being whether clout nails were missing from the bracing for the ensuite wall. It did not consider these grounds established. The next item was whether the bottom plate in the ensuite wall was excessively cut back and appeared cracked where unsupported by the slab. The issue was whether the frame was compliant with the regulations after installation of the lintel as specified in Item 21 of the frame inspection report. The VBA found that:[15]

Following the completion of Item 21, the wall frame for the external ensuite wall did not comply fully or substantially with the BCA (and therefore with the Regulations) or the frame manufacturer’s requirements. In those circumstances, your conduct in providing approving the frame inspection falls below the standard expected of a competent and professional building surveyor.

[15]Ibid [59].

However, the VBA considered this contravention was of a very minor nature. It considered that an appropriately qualified expert would have confirmed that the alternative construction met the Performance Requirement with no, or only minor, further rectification required if an alternative solution had been confirmed prior to the frame complete inspection.[16]
[16]Ibid [62].

The next item was whether roofing battens should have been installed before the frame stage was considered complete. This issue was included as a non-compliant item in the Show Cause Notice based on the opinion of Mr J Weijers, a VBA Senior Technical Adviser, that roof battens were required to be installed as part of the roof frame in accordance with the frame manufacturer’s specifications.

The VBA was satisfied that the installation of roof battens was not required for the ‘frame work’ to be considered complete. The Building Code of Australia (‘BCA’) required the roof battens to be installed in accordance with AS 1684 as part of roof cladding, not as part of the frame.

The next item concerned a 50mm slab overhang beyond the bottom plate to the side of the garage and the bedroom’s two external walls. However, the VBA accepted that it had not been decided to cut the slab, and said that it would have been preferable if the report of the frame complete inspection had noted that decision.

The VBA concluded that a contravention of regulation 1502(a) occurred in respect of the non-compliant item being the excessively cut back bottom plate on the external ensuite wall. However, as previously mentioned, it concluded that given that this very minor contravention was the only item remaining from the Show Cause Notice, it did not believe that any disciplinary action was warranted.

Standing

The VBA contested Mr Draper’s standing to bring the application. It argued that he had no more than a mere intellectual or emotional concern in the VBA’s decisions about the RBS and the RBI, using the words of Gibbs J in Australian Conservation Foundation Incorporated v The Commonwealth.[17] It argued that this proceeding should be distinguished from Mr Draper’s previous proceeding,[18] which concerned whether Mr Draper was a person affected under s 2 of the Administrative Law Act 1978 (the ‘Administrative Law Act’) for the purpose of requesting reasons for the BPB’s decision under s 8 of that Act.
[17](1980) 146 CLR 493, 530–1.
[18]See Draper v Building Practitioners Board [2020] VSC 866.

Section 184 of the current Building Act states that, for the purposes of the Division which contains the disciplinary proceedings provisions, ‘affected person’ means ‘a person directly affected by a reviewable decision’. The VBA submitted that Mr Draper was not directly affected by the disciplinary decisions involving the RBS and the RBI. His interests as a person who had made complaints did not reach the threshold required to satisfy the definition of ‘affected person’ in the current Building Act. Accordingly, he did not have the standing required to bring this proceeding.

In addition, the VBA’s decisions in the show cause process were more limited than those which the BPB could have made when inquiring into Mr Simonds’ conduct in 2018. The VBA was limited to determining whether the grounds in the Show Cause Notice were established, and if so, whether it should take the disciplinary action proposed, or a lesser form of disciplinary action or no disciplinary action.

In an earlier judgment, I accepted that Mr Draper was a person affected by the BPB’s decision within the meaning of s 2 of the Administrative Law Act.[19] He was the complainant and under the pre-amendment Act was entitled to seek a review of a BPB decision in VCAT. The VBA also accepted that the test of standing for this proceeding was relevantly the same as the test for whether a person was a person affected by a decision within the meaning of the Administrative Law Act.[20] However, the VBA submitted that, to the extent that Mr Draper’s application was brought under the Administrative Law Act, much of the conduct of which he complained, was not a ‘decision’ or ‘decisions’ within the meaning of that Act, and therefore it did not apply.
[19]Ibid [39].
[20]VBA’s Outline of Submissions dated 23 June 2021, [56].

Mr Draper submitted that from the moment he made his complaint about the RBS and the RBI, he had an accrued right under s 14(2)(e) of the Interpretation of Legislation Act 1984 (‘ILA’) to seek review of the VBA’s decision. He argued that the definition of the new term ‘affected person’, by requiring that an applicant be ‘directly affected’, was invalid because it was incompatible with the common law of Victoria.[21] What mattered was that he had standing under the Administrative Law Act.[22]
[21]Transcript of Proceeding (S ECI 2020 03774 and S ECI 2020 03775, Draper v Victorian Building Authority, Ginnane J, Supreme Court of Victoria, 4-5 August 2021) 270 (‘T’).
[22]Ibid 348–9.

Analysis of Mr Draper’s standing

I consider that Mr Draper did have standing to commence this proceeding. He was the complainant and his complaint led to the show cause procedure. He has more than a ‘mere intellectual or emotional concern’ in the VBA’s decision.[23] He has a special interest in the subject matter of the proceeding, being the validity of the VBA’s consideration of his complaints about the construction of his house, including the disciplinary action taken against the building practitioners concerned. The VBA decision concerned the quality of professional services performed by building practitioners in connection with the construction of his house. As the Court of Appeal has recently stated: ‘the standing rule based on a “special interest”, focuses on the relative position of the plaintiff when compared with the broader population’.[24] A special interest is sufficient even if it is accompanied by an emotional or intellectual concern.[25] Although Mr Draper has much broader concerns about the regulation of the Victorian building industry, they do not detract from the special interest in the subject matter of the proceeding and the validity of the VBA decision. The fact that under the post-amendment Act he no longer had a statutory right of review does not remove his common law rights of judicial review. The post-amendment Act does not expressly provide for a consumer to bring a complaint, however, s 183B makes clear that a person who lodges a complaint with the VBA in relation to a registered building practitioner is not liable for any loss, damage or injury suffered by another person if that complaint was in good faith. The VBA must give the complainant a copy of its decision ending the show cause process.[26] The post-amendment Act acknowledges the avenue by which a person may make a complaint to the VBA.
[23]Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493, 530-1.
[24]VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195, [29].
[25]Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 37 (Gibbs CJ).
[26]Building Act, s 183(1).

While the VBA is performing a regulatory function for the benefit of the community and Mr Draper cannot obtain a remedy from the VBA show cause process, he still has a special interest in ensuring that it is validly conducted. He has a greater interest in a show cause procedure arising from his complaint than other members of the public. He also has a greater connection than other members of the public in any relief that the Court might grant, if his case succeeded, including orders requiring the VBA to re-conduct the show cause procedure.

I note that in Singleton, no point was taken about the plaintiff’s standing to seek judicial review orders requiring the VBA to bring additional charges against the building practitioner under the post-amendment Act show cause procedure.[27]
[27][2019] VSC 416 [37], [39], [40]-[46], [59].

I will next consider Mr Draper’s grounds for seeking judicial review.

Mr Draper’s grounds

Mr Draper’s proceeding against the RBS in S ECI 2020 03774 contains twenty-five grounds. The proceeding against the RBI in S ECI 2020 03775 contains twenty-two grounds, all of which were also raised in S ECI 2020 03774, save for minor changes which did not alter their essence. The grounds that are unique to this proceeding and were not raised in S ECI 2020 03775 are the tenth, eighteenth, and nineteenth grounds.

I have grouped Mr Draper’s grounds into categories for the purposes of this judgment.

Grounds 1 and 2: Notice and reasons

Mr Draper’s grounds 1 and 2 are:

1. Did the Victorian Building Authority (VBA) fail to exercise its powers in accordance with the law, where it failed to provide Mr. Draper proper notification of its decision, instead providing a ‘complainant letter’ that failed to include necessary information, frustrating the review process and causing Mr. Draper disadvantage, where the VBA was aware that Mr. Draper was awaiting these proper notice of the decisions so as to cause review?
2. Did the VBA fail to exercise its functions in accordance with the law, where it refused to provide a ‘Statement of Reasons’ pursuant to s.8 Administrative Law Act, where it consistently and wilfully continues to frustrate administrative review processes, working to knowingly undermine the rights of persons affected by its decisions?

Mr Draper’s submissions

Mr Draper submitted that the VBA failed to provide him with a statement of reasons, despite being obliged to do so. Although his originating motion sought the provision of a statement of reasons, he argued at the hearing that if such a statement was provided, it ‘would be nothing more than a document of excuses concocted to protect the position of the Victorian Building Authority’.[28] Mr Draper submitted that the VBA’s letter to him of 20 April 2020 failed to provide notice of its decision, as it lacked substantial relevant information when compared to the usual, best practice notices of decision given by the VBA in related matters.
[28]T 220.

VBA’s submissions

The VBA submitted that it exercised its powers in accordance with s 183(1) of the post-amendment Act which required it to give notice of the relevant decisions to Mr Draper, although the Act and its regulations did not prescribe the form of that notice. Its letter of 20 April 2020 complied with the requirements of s 183(1) by detailing the decision made after the show cause process against the RBS.

Mr Draper was not entitled to receive reasons under the Administrative Law Act, but even if he was, it did not prescribe a time within which they had to be provided. Even if it had breached any requirement to give reasons, that would not have invalidated the underlying decision which Mr Draper challenged.

Analysis

Section 183(1) requires the VBA to give notice of a decision but does not prescribe the form or detail required. The VBA accepted that Mr Draper was entitled to receive that notice, as he was a person who made a complaint to it.

The VBA’s three page letter dated 20 April 2020 was addressed to Mr Draper and was headed ‘Outcome of Disciplinary Proceedings Regarding Mr Kevin Wilson and Mr Clem Giambattista.’ It identified the relevant disciplinary proceedings, outlined the history of the Show Cause Notices and stated the VBA’s decision on the grounds contained in the Show Cause Notice and the outcome of each process in reasonable detail. The notice complied with s 183(1) of the Building Act.

I consider that Mr Draper was a person affected by the VBA’s decision within the meaning of s 2 of the Administrative Law Act and therefore was entitled to be furnished with written reasons ‘within a reasonable time.’[29] He made the complaint that led to the show cause procedure and he was entitled to receive a copy of the VBA’s reasons. Mr Draper did not receive the reasons quickly. While they were dated 20 April 2020 in respect of decisions made on 17 March 2020, Mr Draper did not receive them until 14 August 2020, because the VBA used an out of date address to attempt to send them to him. However, on the evidence before me, it is not possible to attribute fault to either party for this error. The letter was dated 20 April 2020, which was a month after the decisions on 17 March 2020. Copies of the full statement of reasons were not sent to him until 29 April 2021, but I consider that the letter of 20 April 2020 was adequate in providing reasons. In any case, the delay does not provide a basis for granting the underlying relief Mr Draper seeks.
[29]Administrative Law Act, s 8(3).

In the previous judgment, dealing with Mr Draper’s application for reasons, I said of the adequacy of reasons:[30]
[30]Draper v Building Practitioners Board [2020] VSC 866, [45]-[48] (citations omitted).

To satisfy s 8 of the ALA, reasons must enable the Court to see whether the decision does or does not involve any error of law. The High Court decision in Yusuf in dealing with a requirement of the Migration Act 1958 (Cth) stated:
[Section] 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

The Board was neither required to give reasons for findings that it did not make, nor was obliged to make. But, it did furnish reasons which set out the findings that it did in fact make and which it considered material to the decision, namely, the conclusions of fact about the allegations that it reached. It did not have to assess other evidence or provide any written reasons concerning additional evidence. There was no obligation to provide details of why evidence was not taken into account.
The Board’s reasons, in my opinion, were sufficient and adequate to enable a court to see whether or not the decision involves any error of law. They contained the following features: (1) an acknowledgement of the evidence relevant to findings of facts, including the photographs; (2) a discussion of the probity of the evidence as a result of the passage of time; (3) which evidence was preferred; (4) conclusions about Mr Simonds’ conduct; (5) an acknowledgement of competing arguments raised by counsel for Mr Simonds and counsel assisting the inquiry; and, (7) a conclusion of fact about the allegation.
Indeed, Mr Draper was able to identify what he contended were errors of law in the reasons, including a failure to consider significant matters.

I consider that the VBA’s reasons contained in its letter of 20 April 2020 were adequate for the purpose of s 8 of the Administrative Law Act as they set out its findings concerning the grounds of the Show Cause Notice and explained the basis on which they were made. Grounds 1 and 2 are not established.

Grounds 3 and 4: The validity of s 182 of the Building Act

Mr Draper’s grounds 3 and 4 are:

3.Is s.183 Building Act compatible with human rights, existing jurisdiction and the common law, where parliament has enacted legislation (s.183 Building Act - Show Cause Process), which requires as part of the ‘show cause process’, that the VBA conduct its disciplinary proceedings in such a way that the accused is ‘guilty until proven innocent’? [31]
4.Did the VBA make a legal error, where the VBA made a ‘decision’, stating in its show cause Notice (as per the requirements of the Act) that it intended to take disciplinary action, where it had also pre-determined the ‘appropriate’ penalty, prior to giving the parties to the dispute an opportunity to be heard, resulting in a failure to afford due process and a fair hearing in all of the circumstances?
[31]The reference to s 183 appears intended to be a reference to s 182.

Mr Draper’s submissions

Mr Draper submitted that s 182 in the current Building Act was invalid because it assumed the guilt of the building practitioner before the statutory process was followed. Because the Building Act requires a Show Cause Notice to state the VBA’s intention to take disciplinary action, as well as the penalties and sanctions to be applied if the allegations are proved, the Notice deems the building practitioner to be guilty before they have had a right to be heard. Similarly, Mr Draper submitted that s 182(2) requires the VBA to act in a manner that contravenes natural justice.

VBA’s submissions

The VBA submitted that the show cause provisions of the Building Act were valid as Parliament had the power to enact them. The VBA was obliged to follow the show cause procedure. Common law obligations to provide natural justice can be excluded by clear words in legislation. The provisions of the Building Act were clearly expressed and were consistent with natural justice. They gave the practitioner the opportunity to be heard.

Analysis

Section 182(1) of the Building Act requires the VBA, if it ‘reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action’, to give that practitioner a Show Cause Notice. The VBA’s power and obligation to take disciplinary action are fettered by its need to reasonably believe that a ground exists. The Show Cause Notice must state the proposal to take disciplinary action, the proposed action, the registration relevant to the action, the ground for the proposed action, an outline of the facts and circumstances forming the basis of the ground, and invite the practitioner to show why the proposed action should not be taken. The show cause period must be for at least 14 days after the Show Cause Notice was given to the registered building practitioner.[32]
[32]Building Act, s 182(2)-(3).

Parliament has the power to enact legislation that may limit a person’s right to natural justice by clearly stating that intention. The language of the Building Act establishing the show cause process is clear and within the power of Parliament to enact. State Parliaments have the plenary power to make laws for the peace, order and good government of their State.[33] The Parliament adopted the show cause procedure, a procedure that exists in other regulatory schemes and included a right for the building practitioner to be heard by making representations after receiving the Show Cause Notice.
[33]Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9.

The VBA did not make a jurisdictional error by following the process contained in the Building Act. Grounds 3 and 4 are not established.

Ground 12: VBA’s reliance on the post-amendment Building Act

Mr Draper’s ground 12 is:

12.Did the VBA err at law, when it applied current legislation to the circumstances of Mr. Draper’s complaint, where the law and disciplinary regime and liability to conduct ‘public’ disciplinary proceedings was significantly modified by the amended legislation, which the VBA retrospectively applied to the matter, despite the offending occurring under the ‘old provisions’?

Mr Draper’s submissions

Mr Draper claimed the right to seek review of the VBA’s decision under the pre-amendment Act, which was the applicable legislative scheme at the time of his complaint. He argued that the VBA had misapplied the transitional provisions contained in the amending Act, which continued the BPB as the decision-maker and obliged it to complete any functions enlivened prior to its abolition. The VBA chose to retrospectively apply the amended legislation and thereby stripped him of his right to seek a review. The result was that two persons on the same building site contravened the same legislation at the same time, but were not dealt with under the same disciplinary regime.

VBA’s submissions

The VBA relied on the fact that Mr Draper’s complaints were made on 2 August 2017, by which time the BPB had been abolished, the inquiry process had been replaced by the show cause process, and s 182A of the pre-amendment provisions had been repealed. The Show Cause Notices were issued on 28 November 2019 and the VBA’s decisions were made after 1 September 2016 when the show cause procedure had commenced. Any disciplinary inquiry and sanctions affecting the RBS and the RBI could only be taken under the post-amendment show cause procedure.

Therefore, even if Mr Draper had made his complaints in 2015, that would not change the above analysis, as the BPB only had the power to continue and determine an inquiry under the pre-amendment Act if it had commenced that inquiry before 1 September 2016. But, it commenced that process after that date. Therefore, disciplinary action could only be taken against the RBS and RBI under the show cause process in the post-amendment Act.

Analysis

Regardless of whether Mr Draper’s complaint was to be treated as made in 2015 or on 2 August 2017, in my opinion the VBA’s analysis is correct. If the complaint was deemed to have been made in 2015, Mr Draper did not have a right to have the BPB hear it, as the BPB did not commence an inquiry, and has since been abolished. If the complaint was made on 2 August 2017, then the applicable legislation is the post-amendment Act with the show cause procedure. On the evidence, the VBA commenced an inquiry after 1 September 2016 and was correct to use the post-amendment show cause procedure. The case differs from Mr Draper’s complaint against Mr Simonds which was deemed to have commenced in May 2015 and thus was governed by the pre-amendment procedure.

Mr Draper did not have an accrued right under s 14(2)(e) of the ILA to have his complaint heard and determined under the provisions of the pre-amendment Act. The transitional provisions did not apply as the inquiry was commenced after 1 September 2016. This conclusion is consistent with the Court of Appeal’s decision in Ross v Building Practitioners Board,[34] in which the inquiry commenced no later than 30 August 2016 when the Registrar of the Board executed the notices of inquiry and thus the inquiry was to be heard and determined under the pre-amendment Act.
[34][2017] VSCA 274, [53].

Ground 12 is not established.

Grounds 5-10, 15-18, 20-21, & 25: Relevant and irrelevant considerations

Because many of Mr Draper’s grounds allege that the VBA failed to take relevant considerations into account or took irrelevant considerations into account, I will state the legal principles applicable to those grounds.

Where relevant considerations are not stated in the legislation and no consideration is mandatory, it is for the decision-maker to decide what matters are relevant having regard to the subject-matter, scope and purpose of the Act.[35] The decision-maker may also determine the importance to be given to matters, facts or evidence presented to, or available to, it. Where the decision-maker makes a finding of fact, or decides between competing accounts of a particular event, its decision can only be challenged as a jurisdictional error if there was no evidence to support it.[36] The party alleging that a decision is invalid because of jurisdictional error bears the onus of establishing the existence of that error.[37]
[35]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375.
[36]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[37]MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [84] (Gordon and Steward JJ) and [157] (Edelman J).

Grounds 5, 6 and 7: Consideration of AS 4440

Mr Draper’s grounds 5, 6 and 7 are:

5. Did the VBA make a jurisdictional error, where making a decision regarding the compliance of certain building works (timber framing) and practitioner conduct, it failed to consider AS 4440 – Installation of nail plated timber roof trusses, being the relevant Australian Standard to be applied to the works the subject of the allegation?
6.Did the VBA err at law, where it failed to uphold its duties and functions pursuant to s.197 (c) and s.197(d) Building Act, where it failed to participate in development of and monitor developments relevant to the regulation of building works, where the VBA’s ‘equivalent of reasons’ shows that the decision-maker neglected to consider (monitor the effect of) AS 4440, the National (minimum) Standard for the installation of nail-plated timber roof trusses?
7.Is the VBA continuing to err at law, where despite the VBA receiving clarification and expert advice confirming that roof battens are in fact considered part of the ‘timber frame’ from a NCC Technical Advisor, provided by Mr. Draper, the VBA continues to neglect to act to correct the notorious standard industry practice and enforce the National Standard, where this is evidence of a clear failure to exercise its functions under s.197 Building Act, as well as failing to achieve the purpose of the Act?

Submissions

In support of ground 5, Mr Draper submitted that there was no evidence that the VBA considered AS 4440 in its statements of reasons or decisions as it was required to do. He relied on the fact that he had brought AS 4440 to the VBA’s attention in his witness statement. In his complaint to the VBA, Mr Draper alleged that the RBS issued a frame stage approval that was neither complete nor compliant with the relevant building standards being AS 1684 and AS 4440, which dealt with roof batten installation. The VBA’s reasons referred to AS 1684, which deals with Residential Timber Framed Construction but, at Section 7.2.21.1, it directs the reader to AS 4440. The VBA determined that battens were not part of framing, yet AS 4440 describes roof battens as being an essential element in the stability of the roof structure and part of the frame.

In support of grounds 6 and 7, Mr Draper submitted that the VBA erred by failing to participate in the development of, and failing to monitor the developments relevant to, the regulation of building works in accordance with s 197(a) of the Building Act, which provides that a function of the VBA is to monitor and enforce compliance with the Act and the regulations. It had failed to acknowledge and recognise the effects of AS 4440 on truss and bracing (batten) installation, which were a relevant, recent development. The VBA allowed building work to fall below the minimum Australian Standards. Mr Draper had provided the VBA with information confirming that roof battens were in fact considered part of the ‘timber frame’. Mr Weijers conceded that point and also stated that the failure to install roof battens rendered the frame incomplete. The VBA obtained advice to the contrary from Mr Collina, but his report was not before the Court and Mr Draper had not been provided with it.

The VBA responded that Mr Draper had not established that it made the errors he alleged. The fact that it did not refer to AS 4440 in its reasons did not prove that it had not been taken in account. In any event, the VBA was not required to take it into account, as the Show Cause Notices did not allege a breach of any its requirements, and neither the RBS nor the RBI relied on it in their responses. It was not a mandatory relevant consideration to be taken into account. It was for the VBA to decide the allegations in the Show Cause Notice that it chose to pursue against the RBS.

Section 197 of the Building Act is a facilitative provision that sets out the VBA’s functions rather than creating obligations for it.

Analysis

Grounds 5, 6 and 7 are beyond the permissible scope of judicial review. This proceeding concerns the VBA’s decisions on matters contained in the Show Cause Notices against the RBS and the RBI. As previously mentioned, the VBA made no jurisdictional error by failing to consider any fact, item, evidence or consideration, whether it be AS 4440 or anything else, unless it was a mandatory consideration. In this case the allegations in the Show Cause Notice and the responses to them establish the matters that the VBA had to consider. It is not for the Court in a judicial review proceeding to consider whether the allegations in the Show Cause Notice were established, let alone consider matters which Mr Draper contends were relevant, but which the VBA did not allege against the building practitioner. The Show Cause Notices and the responses to them did not raise AS 4440 as a consideration.

Ground 3 of the Show Cause Notice alleged that the RBS had contravened regulation 1502(a) by approving the frame inspection in circumstances where the design and construction of the frame were non-compliant and the direction to supply the rectification instruction from the engineer regarding modification of the slab had not been provided.

A particular of ground 3 was that roofing battens were not installed. In its decision, the VBA noted that the roofing battens were not listed in the depiction of typical roof framing members in the BCA dealing with framing. However, the requirement that the fixing of roof battens and batten sizes must comply with AS 1684 was expressly mentioned in the section of the BCA which sets out the acceptable construction practice for roof cladding. The VBA concluded that:[38]

On this basis, on reflection, the VBA is satisfied that the installation of roof battens is not required for the ‘framework’ to be considered complete. The BCA requires the roof battens to be installed in accordance with AS1684 as part of roof cladding, not as part of the frame.

[38]Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [67].

The fact that the VBA did not refer to AS 4440 in this conclusion does not establish a jurisdictional error. The VBA decided the RBS did not contravene regulation 1502(a) by approving the frame inspection when roof battens had not been installed. It explained its conclusion and made no jurisdictional error in not referring to AS 4440. Because there was no mandatory requirement to refer to it, ground 5 is not established.

I also do not consider that grounds 6 and 7 have been established. I have concluded that the VBA did not make a jurisdictional error by not expressly referring to AS 4440 in its reasons. The VBA was engaged in the specific function of deciding allegations contained in the Show Cause Notices and not undertaking a general investigation of the Victorian building industry. It carried out its function and, in doing so, did not breach s 197(a), which did not deal with the manner in which it should carry out the show cause process.

Ground 8: Mr Draper’s statements

Mr Draper’s ground 8 is:

8.Did the decision maker make a jurisdictional error, where they failed to consider the evidence and statements made by Mr. Draper, the complainant and a party to the dispute, taken over a number of days by the VBA during the investigation of the allegations by VBA Investigator Joanne Schmidt?

Submissions

Mr Draper referred to his written statement made to Ms J Schmidt, a VBA Investigator, which he described as detailed and well-evidenced. He contended that the VBA had not received it, or taken it into account. As a result, it failed to properly consider the true extent of the misconduct about which he complained when making its decisions about the RBS and the RBI. His written statement addressed at least eight issues: that the RBS issued a building permit for the construction of the dwelling and garage without the FFLs being stipulated on drawings; when Mr Draper approached the RBS regarding the compliance issues, the RBS threatened him that he would use his financial advantage to limit his complaint; the RBS provided misleading information to the Mitchell Shire Council when he approved a variation to the building permit for the relocation of the hot water service, when the variation was actually used to stipulate the FFLs; the RBS accepted the roof truss design as part of the building permit when loadings associated with the air-conditioning and solar collectors had not been considered; the RBS and RBI approved the mandatory frame building inspection when the framework was incomplete and not compliant with AS 1684 and AS 4440; the RBS allowed modification of the completed slab without inspecting and approving it; the RBS and RBI allowed pre-fabricated walls to be modified on site and therefore caused the frame to not comply with the manufacturer’s specifications, without requiring the builder to justify the changes thereby undermining its structural integrity; and the RBS was sent a ‘show cause’ or ‘please explain’ letter from the Council and appeared not to have responded to it.

The VBA submitted that Mr Draper did not establish that it had made a jurisdictional error merely because it did not refer to his evidence in its reasons. The Building Act did not require that it take Mr Draper’s statement into account, but gave the VBA the task of deciding what matters to take into account. Having done so, the VBA’s task was to consider whether the grounds specified in the Show Cause Notices were established, and if so, what action should follow. It was for the VBA to decide what grounds or allegations to include in the Show Cause Notice. The VBA’s reasons in its Notice of Decision were reasons for dealing with the show cause grounds, and not reasons about issues not included in those grounds, or which were contained in Mr Draper’s statement.

Analysis

I accept the VBA’s submission on this ground and that it was given the authority to decide what evidence was relevant to the allegations raised in the RBS Show Cause Notice, and what weight to give to that evidence. The Building Act does not specify what evidence or matters the VBA must take into account in deciding allegations contained in Show Cause Notices, with the exception of the building practitioners’ responses. The VBA was not required to expressly refer to Mr Draper’s statement in its reasons. Mr Draper’s complaint initiated the show cause process. The context of the Show Cause Notice suggests that the VBA considered Mr Draper’s written complaint, which contained much of what was in his witness statement and as result prepared the grounds of the Notice. In that manner, his complaints and parts of his statement were taken into account, even if not all of them were the subject of allegations in the Show Cause Notice.

Ground 8 is not established.

Ground 9: Personal impact statement

Mr Draper’s ground 9 is:

9.Did the VBA make a jurisdictional error, where it failed to provide procedural fairness/equal treatment of both parties to the dispute and acted with bias, where the decision maker refused [the] opportunity for Mr. Draper, the victim, to provide a personal impact statement, resulting in the failure to consider aggravating circumstances, where the offender was given opportunity to provide ‘mitigating factors’, which in turn formed the basis for the VBA not properly performing its disciplinary functions?

Submissions

Mr Draper submitted that the VBA erred by allowing the RBS and the RBI to provide responses outlining mitigating factors while refusing to allow him to provide an impact statement about how the conduct of the RBS and the RBI affected him.

The VBA submitted that Mr Draper did not have a right to be heard as part of the show cause process against the RBS and RBI, because he was not party to that process. Section 182 of the Building Act gave the RBS and the RBI an entitlement to make responses to the Show Cause Notices, and the VBA was required to take them into account, including any mitigating factors that they established.

The VBA also submitted that there was no evidence that it refused to allow Mr Draper to provide a statement, and that he had not established that his personal impact statement was a mandatory relevant consideration.

Analysis

The VBA is a regulatory body exercising the statutory function of investigating and disciplining building practitioners. The Building Act did not provide for Mr Draper to make a personal impact statement, and contained no mandatory requirement that the VBA consider any such statement, although it could have chosen to accept such a statement. Although Mr Draper made the complaints that led to the Show Cause Notice, he was not party to the show cause processes against the RBS and the RBI. The RBS and the RBI were allowed to provide statements because s 182 of the Building Act gives practitioners, who are the subject of the Show Cause Notice, the right to make representations in response. The VBA’s reasons for decision acknowledged that VCAT had ordered the demolition of the slab for Mr Draper’s house arising out of his contract with the builder.

Ground 9 is not established.

Ground 10: Alleged intimidation

Mr Draper’s ground 10 is:[39]

10.Did the decision maker err at law, where it failed to consider evidence and allegations of threats and intimidation towards Mr. Draper by Mr. Giambattista, when investigating and making a decision regarding his professional conduct and ability to practice of Mr. Giambattista?

Submissions

[39]This question of law was raised only in S ECI 2020 03774.

Mr Draper alleged that the RBS attempted to intimidate him by making a comment about having ‘deeper pockets than [him]’ while refusing to act properly and address non-compliant works. He argued that this comment demonstrated that the RBS intended to contest the complaint rather than exercise his professional functions as a surveyor. The VBA did not consider this comment when making its decision regarding the RBS.

The VBA submitted that Mr Draper’s ground 10 did not identify any jurisdictional error. The alleged comment was referred to in the Notice of Decision issued to the RBS,[40] thereby indicating that the VBA had considered the RBS’s email. But it was for the VBA to determine the importance it gave to the email. It exercised a discretion in deciding what allegations were included in the Show Cause Notice and was not obliged to raise an additional allegation against the RBS concerning the email.[41]

Analysis

[40]Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [23].

[41]Citing Singleton.

The Notice of Decision issued to the RBS shows that the email containing the RBS’s comments was before the VBA. It had the task of deciding what significance to attach to it. The RBS’s comments conveyed forcefully that he would contest, and had the financial capacity to contest, allegations that he had breached his professional duties. However, the comments in the email on which Mr Draper relies, when read in the context of the email chain in August 2014 in which they appeared,[42] were not probative of matters alleged in the Show Cause Notice. Ground 10 is not established.
[42]Court Book, Draper v Victorian Building Authority (Supreme Court of Victoria, S ECI 2020 03774, Ginnane J, 30 July 2021) (‘CB’) 163-170.

Ground 15: Timbertruss email

Mr Draper’s ground 15 is:

15.Did the VBA err at law, where it considered an e-mail from a conflicted Timber Truss employee as relevant evidence, without verifying the source or the relevant qualifications of the source, being an email solicited by the offender 5 years after the fact, while neglecting to properly consider the ‘approved’ design documents which clearly stated contrary to the e-mail relied upon by the VBA, that the roof design did not include the Solar water collectors or the evaporative cooling unit?

This ground requires reference to ground 3 of the Show Cause Notice which was that the RBS approved the frame inspection when the design and construction of the frame and the required approvals had not been provided. Particular (1) of the Notice alleged:

The design of the roof truss did not allow for the additional loading for a solar hot water system. The design was not compliant with the endorsed drawings and specifications.

Timbertruss was the manufacturer of the trusses used in the construction of Mr Draper’s house. In an email of 5 February 2020 to the RBS, on which he relied in his response to the Show Cause Notice, Mr R Wallace of Timbertruss stated:[43]

Item 5. Solar collector panels are vastly different from a solar water system. Collector panels weigh around 35kg and with this weight spread across 2 or three trusses generally has no effect on the roof truss design. Solar water systems have tanks and can weigh between 200kg & 500kg [dependent] on size. As a result require major design changes to the truss designs in these area. On this particular design we did not apply any additional load. In testing the truss with an additional 20kg placed on the top chord, no changes occurred to the design of the T2 trusses.
There are thousands of people that have installed solar panels on trussed rooves that never had an allowance in the initial design!

[43]Ibid 1463.

The VBA accepted that the Timbertruss email was relevant to the roof truss design stating:[44]

The Timbertruss response provides confirmation for the speculation in the Collina Report that the weight of the solar collector panels was incorporated into the engineering design and counters the opinion expressed in the second Weijers statement that the absence of stamped members indicating additional loading for solar collector panels would be expected. Based on the Timbertruss response, the VBA accepts the design of the roof truss for the site allowed for the additional loading of the solar collector panels noted on the endorsed plans. On that basis, the VBA accepts it was reasonable for you to approve the frame/truss documentation as consistent with the endorsed plans.

[44]Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3107), [44].

Mr Weijers of the VBA prepared a statement dated 13 March 2018. He had inspected the property on 24 June 2015 and 20 July 2015 and provided a report for the VBA Building Investigations Unit ‘correlated to a complaint received by the Building Practitioners Board relating to building work carried out at the site by the Simonds Homes Pty Ltd’. He observed that the building work included a partially constructed dwelling and garage and that the concrete slab had been poured and timber framing, including roof trusses, had been erected. Guttering and fascia had been installed and the timber was showing signs of weathering. The roofing battens had not been installed; some of the trusses exhibited distorted top chords; there were large gaps between hip connections and trusses; the design did not provide for solar water panels but the trusses had been marked for ducted heating loads only; wall junctions throughout the house had not been nailed in; top plate connections at the rear of the garage wall junctions required blocks and gang nail connector plates; clout nails were needed to speed brace the wall between bedroom 3 and the bathroom; only one screw had been used to secure the metal fascia and the bottom plate of the ensuite had been excessively cut back to facilitate the fitting of the shower base and was cracked where it was unsupported by the slab.

In a further statement dated 23 August 2018, Mr Weijers contended that due to the construction being an engineered wall frame and roof truss design, AS 1684 did not strictly apply and that compliance was obtained by meeting ‘the pertaining Specification, Guidelines and Instructions of the frame and roof manufacturer at the time of construction’. The roof layout plan did not notate additional loading for a solar hot water system and the trusses had not been designed to account for such a system. He stated:

I took photos of the trusses noting the stamped impression on members dedicated for the ducted heating unit and I also noted the pipe work installed for the solar hot water system but there were no stamped members to indicate additional loading for the solar hot water panel. On that basis the trusses have not been designed to account for the solar hot water system. I confirm this item is not compliant with the endorsed drawings and specifications.
The inspector should have noted this upon his inspection. He should have linked the difference with the architectural drawings, showing that solar panels were required and the note 5 on the truss layout plan.

Note 5 on the truss layout plan stipulated that ‘trusses have not been designed to support any additional loads’.

A Building Inspector employed by the VBA, who accompanied Mr Weijers on the inspection on 24 June 2015, recorded in his statement that:

Loading of trusses with solar hot water panels had not been designed for. Trusses had been marked for ducted heating loads only. There were no markings for solar panels.

Mr P Collina prepared a Technical Report for the VBA. It is unclear when the report was prepared and it was not in evidence. Mr Draper was critical of the VBA for obtaining it. However, the RBS and RBI in their responses to Show Cause Notice quoted the following parts of the report:

In relation to the issue of the roof trusses not being designed for the air-conditioning unit and solar panels on the roof, the plans approved by the RBS as part of the original building permit issued on 26/06/14 and the amended plans approved by the RBS on 07/07/14 clearly showed on the elevations (Elevation Band Elevation C) that solar collector panels and an evaporative air conditioning unit was to be located on the roof.
It is normal practice that the manufacturer of the prefabricated timber framing designs the wait framing and roof trusses according to the information shown on the drawings. This includes any additional loads on the roof or on the ceiling such as solar collector panels and an evaporative air conditioning unit.
The Timbertruss truss layout plan Job No. 75527AAA contains a note “NB DH labelled trusses have been designed to support a ducted heating unit with max weight of 100 kg. Platform to support must be located on ALL three trusses and spread load evenly. Platform detail and supply by others”.
The Timbertruss Abbreviated Comps PDF Job No. 75527AAA dated 10/07/14 also contains a note “Additional girder loadings by user-Air-conditioning Unit>Weight (kg) 100.0, Start (mm): 3623.0, Width (mm) 600.00, No Support. Trusses: 3”. This demonstrates that the weight of the Air-conditioning unit has been allowed for in the design of the roof trusses. There is no mention of the solar panels. It is possible that the weight of these panels is incorporated in the engineering design of the trusses as the weight of the panels is significantly less than the weight of concrete roof tiles.
It is not clear from the information in the files if the Timbertruss design was provided to the RBS prior to the construction of the frame or prior to the frame inspection, although a number of items on Kevin Wilson’s frame inspection report dated 31/07/14 makes reference to truss and girder numbers which must have been shown on plans provided by Timbertruss.
There is insufficient evidence that the Building Inspector or the RBS failed in their duties with respect to the roof truss design.

Submissions

Mr Draper submitted that the VBA made a jurisdictional error by relying on the Timbertruss email, because it contained an irrelevant opinion from a conflicted manager or employee who produced the inadequate design and it was prepared five years after the fact. Mr Draper referred to engineering and design documents published by MiTek, the designer of the frame, which stated that all extra loads needed to be included in frame design computations. He submitted that Timbertruss neglected that advice and provided the email to cover up its errors. Contrary to the email, the approved design documents made clear that the roof design did not include the solar water collectors or the evaporative cooler. The VBA should have accepted those documents as the relevant evidence.

In support of ground 23, Mr Draper contended that it was unreasonable for the VBA to consider as a mitigating factor that the practitioners did not have a history of non-compliance, while also neglecting to take action for non-compliance and unprofessional conduct. He submitted that the practitioners’ clean records were reflections of the VBA’s refusal to perform its disciplinary functions.

In support of ground 24, Mr Draper contended that the VBA had sought a biased expert to contradict the position of the VBA’s own inspector, Mr Weijers, whose evidence the VBA relied on until he corrected or altered it. Mr Weijers’ evidence confirmed that failing to install roof battens rendered a frame incomplete, which exposed the VBA for allowing frames to be approved and certified before they were properly complete as required by the Australian Standards. It was unreasonable for the VBA to commission an expert report from Mr Collina to contradict its own inspector. Mr Collina had no prior involvement with the issues in the show cause inquiry. The builder had been found guilty of unprofessional conduct and breaches of the Act and the VBA had incurred significant costs, Mr Draper’s house had to be demolished and yet the VBA failed to exercise its disciplinary function and act to protect the industry and consumers from non-complaint practitioners.

VBA’s submissions

In respect of ground 19, the VBA submitted that it did not act unreasonably in not sanctioning the RBS although penalties had been imposed on Mr Simonds. Mr Simonds was charged with different contraventions of the Act and Regulations. In any event, the fact that different findings were made, in different disciplinary proceedings between different parties, where different evidence and materials were considered, did not mean that the decision in one proceeding to not take disciplinary action or impose a penalty was arbitrary or unreasonable.

In respect of ground 22, the VBA submitted that it did not find that the RBS or the RBI had clean records. It knew of the RBS’s previous disciplinary history, and that the RBI had not previously been subject to disciplinary action. These were relevant matters to take into account when considering whether to impose disciplinary action. In respect of ground 23, the VBA submitted that it was open to it take no disciplinary action against the RBS in its show cause decision, despite finding that grounds to take disciplinary action existed.

In respect of ground 24, the VBA submitted that it did not act unreasonably in commissioning or considering expert evidence from Mr Collina. It was responsible for deciding what evidence to rely on, and it was not unreasonable to commission an expert to provide further evidence, even though it had other expert evidence, including Mr Weijers’ evidence, available to it.

Analysis

The decision of a decision-maker exercising statutory power can only be challenged on the ground of unreasonableness when no reasonable decision-maker could have reached the conclusion that they did[63] or where there is no ‘evident and intelligible justification for the decision’.[64] It is a narrow area of challenge.
[63]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 377-8 [113] (Gageler J) and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 551 (Kiefel CJ).
[64]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 573 (Nettle and Gordon JJ) citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 (Hayne, Kiefel and Bell JJ).

In respect of ground 19, the Building Act did not require the VBA to sanction the RBS because it had imposed sanctions on Mr Simonds. While the matters were related, the two disciplinary proceedings involved different building practitioners, with different facts applying in each case. The VBA had to base its decision on the evidence and submissions concerning the RBS and RBI respectively in the show cause process, and any relevant disciplinary history, and not on the outcome of the BPB hearing involving Mr Simonds, or the outcome of Mr Draper’s civil claim. It was not unreasonable for the VBA to decide not to impose sanctions on the RBS, when the BPB had imposed sanctions on Mr Simonds. The difference in disciplinary outcomes between the Mr Simonds process and those involving the RBS and RBI resulted from a number of factors. There was a different decision-maker, different parties, an oral rather than a written process and different charges and evidence. Those differences were likely to have contributed to the different outcomes.

In respect of ground 22, it was not unreasonable for the VBA to consider the prior disciplinary histories, if any, of the RBS and the RBI. The disciplinary histories of practitioners the subject of disciplinary proceedings are always relevant to the penalty or sanction that may be imposed.

In respect of ground 23, it was not unreasonable for the VBA to choose not to take disciplinary action even when some of the grounds in the Show Cause Notice were established, as the Building Act gave it the express power not to take such action in those circumstances.

In respect of ground 24, the VBA did not act unreasonably in commissioning and taking into account Mr Collina’s report in reaching its decisions. The VBA possessed broad powers under s 179(2) as to how it conducted investigations and it was entitled to commission further evidence. The RBS and RBI relied on the Collina Report in their responses to the Show Cause Notices. Although the evidence does not reveal why Mr Collina’s evidence was sought, Mr Draper has not established that the VBA made a jurisdictional error in commissioning his report or taking it into account.

Grounds 19, 22, 23 and 24 are not established.

Ground 11: The VBA’s use of discretion

Mr Draper’s ground 11, which bears similarities to ground 7, is:

11.Did the VBA err at law, failing to properly perform its functions pursuant to s.197(a) Building Act, where it arbitrarily applies the relevant building law, misusing its discretionary powers in a god like fashion, choosing what laws it wants to enforce, where discretion should be limited to penalty matters and what level of action is required?

Mr Draper’s submissions

Mr Draper submitted that the VBA arbitrarily applied the Building Act and misused the discretion given by it. It failed to properly perform its functions under s 197(a) of the Building Act by not enforcing the law and thereby changing the behaviour of the offending practitioners. The VBA was required to take disciplinary action, when it believed a ground existed to do so.

VBA’s submissions

The VBA submitted that it had a discretion as to whether, and if so which, disciplinary action to take. The VBA’s exercise of discretion in the RBS and the RBI decisions was within its powers under s 182D of the Building Act.

Analysis

Section 182D(1)(b)(iii) of the current Building Act expressly allows the VBA to take no further action in cases where it believes a ground exists, other than the ground under s 179(1)(db), which was not relevant to the disciplinary processes against the RBS and the RBI. Therefore, the VBA had a discretion not to take disciplinary action, or to impose a sanction, on the RBS or the RBI.

The VBA gave reasons as to why it took no action against the RBS and the RBI and acted within its statutory powers.

Ground 11 is not established.

Grounds 13 and 14: Alleged delay

Mr Draper’s grounds 13 and 14 are:

13.Did VBA staff err at law, where they neglected to act in accordance with s.7 Public Administration Act (Public sector values), when failing to provide high quality services, failed to identify and promote best practice, failed to be open and transparent in their dealings, failed to use powers responsibly, failed to make decisions and provide advice on merit without favouritism and bias, failed to act fairly by considering all relevant facts and fair criteria, failed to implement policy equitably, failed to accept responsibility for decisions and actions, failed to achieve best use of resources, failed to submit themselves to appropriate scrutiny, lack leadership in promoting and supporting the Public Sector Values and failed to make its decisions and provide advice consistent with human rights, where fair hearings and due process are neglected?
14.Did the VBA err at law when it failed to exercise its powers and perform its duties in accordance with the law, where s.1 Building Act declares that (one of) the main purposes of the Act is to; (c) provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; where it took the VBA almost 5 years to address known non-compliance by Mr. Giambattista,[65] after which they refused to enforce the law, apply the relevant penalties for non-compliance and recoup the cost and loss caused by the need to investigate the proven non-compliance?
[65]The equivalent question in S ECI 2020 03775 refers instead to Mr Wilson but is otherwise identical.

Mr Draper’s submissions

Mr Draper submitted that the VBA had refused to address the questions that he raised and had interfered with his rights to review its decisions over a five year period. It had thereby acted in contravention of the public sector values listed in s 7 of the Public Administration Act 2004 (the ‘Public Administration Act’). The VBA had failed to achieve the purpose of the Building Act by being persistently incapable of administering an efficient and effective system for enforcing building matters and resolving building disputes.

Mr Draper’s case was that the VBA took five years to make its decisions, despite it being aware of the RBS’s and RBI’s non-compliance as early as June 2015. Further evidence of the delay was the time that it took to resolve the inquiry into Mr Simonds’ conduct. Mr Draper submitted that by that delay in addressing the non-compliance of which he complained, the VBA had failed to achieve its purposes as stated in s 1 of the Building Act:

The main purposes of this Act are—
(a) to regulate building work and building standards; and
(b) to provide for the accreditation of building products, construction methods, building components and building systems; and
(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; and
(d) to regulate building practitioners, building employees and plumbers; and

(e) to regulate plumbing work and plumbing standards; and
(f) to provide for the accreditation, certification and authorisation of plumbing work, products and materials; and

(g) to regulate cooling tower systems; and
(h) to limit the periods within which building actions and plumbing actions may be brought.

VBA’s submissions

The VBA submitted that a breach of s 7(1) of the Public Administration Act did not give Mr Draper a right to a remedy, because s 7(4)(a) expressly provided that nothing in s 7(1) ‘creates in any person any legal right or gives rise to any civil cause of action.’ The VBA also disputed that there had been a five-year delay in making the decisions about the RBS and RBI. Mr Draper’s complaints were lodged on 2 August 2017 and the decisions were made on 17 March 2020. It contended that Mr Draper had not established that any member of staff of the VBA had breached the Public Administration Act.

The VBA rejected Mr Draper’s submission that it had breached s 1(c) of the Building Act. That provision was a facilitative and not a restrictive provision and a breach of it did not provide grounds for judicial review. In any event, the two decisions against the RBS and the RBI had now been made, and any finding that the decisions were not made as quickly or efficiently as they could have been made would not render them invalid or entitle Mr Draper to a remedy in respect of them.

Analysis

Section 7(4) of the Public Administration Act makes clear that nothing in s 7(1) creates a legal right or gives rise to a civil cause of action. Mr Draper cannot rely on non-compliance with s 7(1) as a ground for his application or to obtain a remedy.

The VBA has made its decisions in respect of the RBS and the RBI and the show cause process was complete. While the VBA decisions may have been made more quickly if its attention and resources were allocated differently, that was a matter for it to consider in light of its operational circumstances. In any case, it was unclear what remedy would flow from the decisions having been made late in the absence of any other error of law.

Grounds 13 and 14 are not established.

The Further Amended Originating Motion’s Additional Grounds

At the hearing, I said that I would decide whether to grant leave to consider these additional grounds in the course of preparing my judgments.[66] I have decided not to grant Mr Draper leave to rely on the additional grounds as they do not raise arguable propositions. I next state my reasons for that conclusion.
[66]T 302.

Proposed additional grounds 1 and 2: Statement of reasons

Mr Draper’s additional grounds 1 and 2 are:

1. Whether the Victorian Building Authority failed to exercise its functions in accordance with s.8 Administrative Law Act, where it refused to provide Mr. Draper, an affected person within the definition of the Act, with a ‘s.8 Statement of reasons’ after he made a proper request?
2. Did the Victorian Building Authority fail to exercise its powers in accordance with the law, where despite the obligation to provide information (including to consumers) pursuant to s.197(f), the VBA refused to provide the information/documents requested.

Submissions

Mr Draper submitted that the VBA failed to exercise its functions in accordance with s 8 of the Administrative Law Act by refusing to provide him with a statement of reasons. He submitted that he was a person affected by a decision for the purposes of this section. At no time did the VBA provide the prescribed statement of reasons within required time limits. In respect of additional ground 2, he submitted that the VBA was required to provide information under s 197(f) of the Building Act.

Analysis

The first additional ground is substantially the same as the second ground in the amended originating motion that I have considered above.

I consider that Mr Draper was an affected person for the purposes of the Administrative Law Act, which requires reasons to be furnished ‘within a reasonable time.’ The VBA’s letter containing a summary of reasons was dated 20 April 2020, but Mr Draper did not receive it until 14 August 2020 because it was sent to an incorrect address. He did not receive the VBA’s full reasons, which had been provided to the RBS and RBI, until 29 April 2021. But, as he has not established that the reasons provided on 14 August 2020 were inadequate for the reasons I have given above, he cannot obtain a remedy. In fact, he relied on the reasons to attempt to establish jurisdictional error.

Section 197(f), upon which ground 2 relies, provides that the VBA’s functions include:

(f)to provide information and advice (including to consumers) on matters relating to—
(i) building standards and plumbing standards; and
(ii)the regulation of buildings, building work and building practitioners and licensed building employees; and

(iii) the regulation of plumbing work and plumbers…

As stated, Mr Draper has been provided reasons, and even if he had not been, he has not established his proposed ground 2 or that it would have provided a basis to grant the remedies that he seeks. To the extent that Mr Draper relied upon this section to seek access to other documents, s 197(f) does not assist him. It is directed to general information about building and plumbing standards; how buildings, building work, building practitioners and licensed building employees are regulated; and the regulation of plumbing work and plumbers. It is not directed to expert reports commissioned by the VBA for the purpose of conducting a disciplinary process. In any event, s 197 is a facilitative provision, and any contravention of it, even if established, would not provide Mr Draper with the relief he seeks.

Proposed grounds 1 and 2 could not succeed.

Proposed additional grounds 3, 4 and 6: Delegation

Mr Draper’s proposed additional grounds 3, 4 and 6 are:

3. Whether the Victorian Building Authority failed to exercise its functions in accordance with s.199 Building Act, where no evidence is on hand that the person making ‘the decision’ was properly delegated the authority to make such decisions.
4. Whether the Victorian Building Authority made a jurisdictional error, where it unreasonably delegated (purportedly) its decision making functions to a person who appears to suffer from perceived bias, where the adjudicator is involved in the assessment of the offences, is closely associated with the witnesses in the case, as well as being the person who was required, pursuant to s.182 Show Cause Process, to ‘pre-judge’ the circumstances of the case and to have made their decision prior to the parties involved receiving a fair hearing. (Apprehended bias / lack of independence of decision maker).
6. Has the VBA committed a jurisdictional error, where the authorities decision to delegate its decision making powers to Ms. Smith was so ‘unreasonable’, ‘illogical’ or ‘irrational’, that no other competent authority should have done so, being that the ‘show cause notice’ and ‘reasons for decision’ spoken to by Ms. Smith expose significant gaps and deficiencies in relevant knowledge and experience expected of person required to make judgement and assessment on such issues?

Submissions

Mr Draper submitted that the VBA failed to exercise its functions in accordance with s 199 of the Building Act, as there was no evidence that the person making the decisions was properly delegated to make them. He argued that it was unreasonable to delegate this function to one person, rather than to a panel and the delegation was unreasonably made to somebody who was biased and lacked independence. He also submitted that it was unreasonable, illogical or irrational to make the delegation to somebody whom he alleged had significant gaps and deficiencies in relevant knowledge and experience expected of a person required to make the decisions against the RBS and the RBI.

The VBA argued that Mr Draper had not established that there was any invalidity in the delegation of functions to the delegate. A delegation to one person was not unreasonable and the provisions of the Building Act, including s 185A dealing with internal reviews, make clear that the VBA may so delegate its decision-making powers.

Analysis

Section 199 of the Building Act allows the VBA to ‘delegate to any person any of its functions except a function under section 80D or 205M’. The functions delegated were not related to either of those sections. Mr Draper has not established that the VBA improperly or invalidly delegated its functions. The legislation does not prevent the delegation of decision-making powers to one person. His claim that the delegate was biased, lacked independence, or the necessary knowledge and experience were unsubstantiated. A delegation is not invalid simply because the person affected by the decision is unhappy with the delegate’s decision.

Proposed additional grounds 3, 4 and 6 could not succeed.

Proposed additional ground 5: Dilution of complaints

Mr Draper’s additional ground five is:

5. Has the VBA failed to properly exercise its functions in accordance with s.197(h) Building Act, where in place of promoting ‘the resolution of consumer complaints about work carried out by builders’, the authority wilfully and knowingly misconstrues and misrepresents the complaints made, so as to create a circumstance where complaints become so diluted that the VBA can then find excuses for not properly exercising its functions. (Failure to deal with an integer of a claim, asking itself the wrong question causing mistaken denial of jurisdiction, etc).

Submissions

Mr Draper submitted that the VBA failed to exercise its functions under s 197(h) of the Building Act by wilfully and knowingly misconstruing and misrepresenting his complaints, so as to dilute them and provide a basis for not properly exercising its functions.

The VBA submitted that it had the discretion to decide whether to issue a Show Cause Notice, and if so, which allegations to make in it. It was not obliged to issue a Show Cause Notice even if positively satisfied that a ground to do so was available.

Analysis

Section 197(h) provides that one of the VBA functions is ‘to promote the resolution of consumer complaints about work carried out by builders and plumbers’. The relevant resolution process is the show cause process, which gives the VBA a discretion about which allegations to include in the Show Cause Notice and how they should be worded. Mr Draper has not established that the VBA wilfully and knowingly misrepresented his complaints. There is no evidence that the VBA did not consider the evidence or material available to it, or that it did not include in the Show Cause Notice disciplinary grounds that it considered appropriate. No jurisdictional error has therefore been established. In any event, as previously stated, s 197 is a facilitative provision, and even if a contravention of it were established, would not provide Mr Draper with the remedies he seeks.

Proposed additional ground 5 could not succeed.

I refuse leave to Mr Draper to rely on the six proposed additional grounds.

Conclusion

Mr Draper has not established any of the grounds upon which he seeks judicial review of the VBA’s decisions. The proceeding is dismissed.

I will give the parties an opportunity to make written submissions about the costs of the proceeding.

[2022] VSC 487

24 August 2022