Draper v Victorian Building Authority - [2022] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01989

SHANNON DRAPER	Appellant
v
VICTORIAN BUILDING AUTHORITY	First Respondent
BUILDING PRACTITIONERS BOARD	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2021
DATE OF JUDGMENT:	24 August 2022
CASE MAY BE CITED AS:	Draper v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 485

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Application for leave to appeal VCAT orders – Plaintiff’s application to VCAT to review failure by Building Practitioners Board to conduct review of builder’s conduct within a reasonable time – Amendment of Building Act – VCAT order that Building Practitioners Board conduct inquiry – Plaintiff’s second application – Inquiry not conducted at time of plaintiff’s second application – Whether second application could be made under pre-amendment Act provisions after post-amendment Act commenced – VCAT rejected second application – Whether VCAT erred as to the existence of its jurisdiction – Whether VCAT denied the plaintiff natural justice – Whether VCAT decision illogical – Whether VCAT failed to take into account relevant material – Whether VCAT contravened the plaintiff’s rights under the Charter of Human Rights and Responsibilities 2006 – Inquiry subsequently completed – Whether utility in remitting application to VCAT for rehearing if any ground established – Proceeding dismissed – Interpretation of Legislation Act 1984 s 14(2)(e); Building Act 1993–2016 ss 178, 182A(3)(a); Building Act 1993 – 2022 Schedule 8 cl 4; Victorian Civil and Administrative Tribunal Act 1998 ss 51(3), 71, 122(1), 148(1); Charter of Human Rights and Responsibilities Act 2006 s 24.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	Mr J Stoller	Victorian Government Solicitor’s Office

HIS HONOUR:

On 10 July 2018, Mr Shannon Draper filed an application in the Victorian Civil and Administrative Tribunal (the ‘Tribunal’ or ‘VCAT’) under s 182A(3)(a) of the Building Act 1993 as in force before 1 September 2016 (the ‘pre-amendment Act’),[1] to review a failure of the Building Practitioners Board (the ‘BPB’ or the ‘Board’) to conduct an inquiry that the plaintiff requested within a reasonable time. The Tribunal dismissed Mr Draper’s application and he seeks leave to appeal its order.
[1]Sometimes referred to as the ‘Old Act’.

This proceeding is one of a number that Mr Draper has commenced arising from a building contract he entered into in June 2014 with Simonds Homes Victoria Pty Ltd (‘Simonds Homes’) to build a house at Wallan. Mr Draper was concerned that the work of the builder did not comply with the contract, the Building Act 1993 and the Building Regulations.

On 9 February 2015, Mr Draper applied to the BPB to conduct an inquiry into the conduct of Mr Vallence Gary Simonds (the ‘Inquiry’), who was Simonds Homes’ principal director and nominated building practitioner, concerning the construction of his house. On 11 May 2016, the BPB informed him that it had decided not to conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 485
Decision Date: 24 August 2022

CaseChat Overview and Summary

The plaintiff, Draper, sought leave to appeal from the Victorian Civil and Administrative Tribunal (VCAT) orders concerning the Building Practitioners Board’s failure to review the conduct of a builder within a reasonable time. Draper applied twice to VCAT, first under the Building Act 1993–2016, and a second time under the amended Building Act 1993–2022, which commenced after the first application but before the inquiry was completed. VCAT dismissed Draper’s second application on the basis that it lacked jurisdiction to hear the matter post-amendment.

The central legal issue was whether VCAT had jurisdiction to hear Draper’s second application under the pre-amendment Act provisions after the post-amendment Act had commenced. The court also considered whether VCAT erred in its jurisdictional determination, whether it denied Draper natural justice, whether the decision was illogical, whether VCAT failed to consider relevant material, and if it contravened Draper’s rights under the Charter of Human Rights and Responsibilities 2006. Ultimately, the court had to determine if there was any utility in remitting the application to VCAT for rehearing if any ground was established.

The Supreme Court held that VCAT was correct in finding it did not have jurisdiction to hear Draper’s second application under the pre-amendment Act after the post-amendment Act came into effect. The court found no error in VCAT’s jurisdictional determination, no denial of natural justice, and no illogicality in VCAT’s reasoning. The court also found that VCAT had not failed to take into account relevant material and had not contravened Draper’s rights under the Charter. The completion of the inquiry rendered the issue of remitting the application to VCAT for rehearing moot.

The application for leave to appeal was dismissed.

Orders