Draper v Victorian Building Authority
[2022] VSC 485
•24 August 2022
| 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 the Inquiry but had decided to conduct a non-statutory ‘conduct review’.
Later in 2015, Mr Draper commenced a proceeding in the Tribunal under s 182A(3)(b) of the pre-amendment Act to set aside the BPB’s decision.
On 11 September 2017, the Tribunal set aside the BPB’s decision and determined:[2]
…pursuant to s 182A of the Building Act 1993 that an inquiry be conducted under s 178 of the Building Act 1993 into the professional conduct of Vallence Gary Simonds (DB-U 5403).
[2]Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402.
In other proceedings, Mr Draper commenced a civil action in VCAT and obtained an order against Simonds Homes that the slab be demolished and rebuilt in the following terms:[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]Draper v Simonds Homes Victoria Pty Ltd [2016] VCAT 669.
Mr Draper was concerned with the BPB’s delay in commencing the Inquiry and in May 2018 sought an order under s 122(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’) to enforce the Tribunal’s orders for the holding of an inquiry by filing a copy of VCAT’s order in the Supreme Court. His application described the Act and the section of the Act under which he was making his application as follows:[4]
Building Act 1993 section 182A(3)(a). Application by the person who requested the inquiry to review a failure by the board to conduct an inquiry, within a reasonable time, into the matter referred to it.
[4]Draper v Building Practitioners Board (Review and Regulation) [2018] VCAT 1524, [20].
On 29 June 2018, the BPB signed a Notice of Inquiry into Mr Simonds’ professional conduct.
On 6 July 2018, the Principal Registrar of VCAT rejected Mr Draper’s application stating that:[5]
Section 122 of the VCAT Act provides that the principal registrar can provide a certificate stating that the order is appropriate for filing in the Supreme Court. I note the letter from VBA dated 9 May 2018 indicates that they will have concluded investigations by June 2018 and will be in a position to set the matter down for a hearing.
On this basis, I am not satisfied that the order has not been complied with, and in the circumstances, it is not appropriate to issue a certificate under s 122.
[5]Ibid [19].
Four days later, on 10 July 2018, Mr Draper filed a new application in VCAT seeking an inquiry and identifying that his application was made under s 182A(3)(a) of the pre-amendment Act, which provided:
(3) A person who requested the Building Practitioners Board to conduct an inquiry under Division 2 may apply to the Victorian Civil and Administrative Tribunal for a review of—
(a) a failure by the Board to conduct the inquiry within a reasonable time…
On 8 August 2018, the delegate of the Principal Registrar notified Mr Draper in writing that his new application had been rejected. The letter stated:[6]
Your application has been rejected because the section of the Building Act 1993 you are making your application under was substituted in 2016. As a result there are no provisions for this application to be dealt with by the Tribunal.
[6]Ibid [24].
The delegate rejected this new application under the powers contained in s 71 of the VCAT Act on the basis that s 182A(3)(a) of the pre-amendment Act had been repealed with effect from 1 September 2016 and its effect not preserved by the transitional provisions and, therefore, Mr Draper was not entitled to make the application.
Mr Draper sought a review of the delegate’s decision under s 71 of the VCAT Act, which required a Tribunal Member to carry out that review by making a fresh decision. Section 71 states:
71 Principal registrar or the Tribunal may reject certain applications
(1) Unless otherwise provided for in the rules, the principal registrar may reject an application that—
(a) is made by a person not entitled to make it; or
(b) is lodged after the expiry of the period specified in the enabling enactment; or
(c) does not otherwise comply with this Act, the regulations or the rules.
(2) If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.
…
(5) On a referral under subsection (2), the Tribunal must review the rejection and may—
(a) confirm the rejection; or
(b) order the principal registrar to accept the application.
Senior Member decision of 3 October 2018: the subject of this proceeding
By order of 3 October 2018, a Senior Member of the Tribunal confirmed the Principal Registrar’s decision and Mr Draper seeks leave to appeal from that order. The Building Act 1993 as in force from 1 September 2016 (the ‘post-amendment Act’) made no provision for a person to apply to VCAT for the failure of the VBA to conduct an inquiry within a reasonable time or the VBA’s refusal to conduct an inquiry as s 182A(3)(a) and (b) of the pre-amendment Act had. Mr Draper argued that the transitional provisions of the post-amendment Act allowed for the continuation of a review application under the procedures of the pre-amendment Act if it had been made before the commencement of the post-amendment Act. He contended that the transitional provisions allowed the BPB to continue those functions when they were part performed:[7]
Clause 4 of those transitional provisions allow for inquiries conducted prior to 1 September 2016 to be continued by the Board. Those transitional provisions also allow for review hearings to be conducted under the old Building Act, if initiated before the commencement of the new Act. Clearly, the purpose of those transitional provisions is to allow the board to continue its functions where those functions are part performed…
[7]Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402, [119], quoted in Draper v Building Practitioners Board (Review and Regulation) [2018] VCAT 1524, [13].
The Senior Member rejected Mr Draper’s submission that, because the order requiring the conduct of the Inquiry was made under the pre-amendment Act and because the transitional provisions under the post-amendment Act gave force to the review decision order, it remained open to him to bring an application under s 182A(3)(a) of the pre-amendment Act to review the failure of the BPB to conduct an inquiry within a reasonable time.
The Senior Member considered that Mr Draper was purporting to bring the application under a provision of the Building Act which had ceased to be operative from 1 September 2016. He explained:[8]
Mr Draper brought an application under the old Act. The application was heard and determined with a final decision, the review decision, handed down on 15 September 2017. The transitional provisions in the new Act accommodate the carrying out of the review decision order. However, in my view this does not mean that section 182A(3)(a) of the old Act can be revived for the purpose of bringing a new application.
[8]Draper v Building Practitioners Board (Review and Regulation) [2018] VCAT 1524, [31] (underlining in the original).
On 19 November 2018, the BPB held a hearing in its Inquiry into Mr Simonds’ professional conduct. In its decision made that day, Mr Simonds was reprimanded and fined a total of $3,464.64 and ordered to pay $14,429 costs.
Mr Draper’s application to this Court
Mr Draper seeks leave to appeal the Senior Member’s order of 3 October 2018 under s 148 of the VCAT Act, which is limited to questions of law. To succeed, he must establish that the Senior Member’s orders involved an error of law.
During argument Mr Draper identified the issues as:[9]
(a) whether the Senior Member ‘mistakenly reasoned that the [pre-amendment] Act ceased to be operative in July of 2016 in respect of [the] review application’;[10] and
(b) if yes, whether because the VBA Inquiry has now been completed, as a matter of discretion, Mr Draper’s application of 10 July 2018 should not be referred back to VCAT for further hearing, even if an error of law was made.
[9]Transcript of Proceedings, Draper v Victorian Building Authority & Anor (Supreme Court of Victoria, S ECI 2018 01989, Ginnane J, 3 August 2021) 31 (‘T’).
[10]Ibid.
Mr Draper’s questions of law
In summary, Mr Draper’s questions of law as stated in his notice of appeal concerned whether the Senior Member mistakenly denied his jurisdiction or whether his decision was illogical or ignored relevant material. Mr Draper summarised his proposed grounds of appeal relating to jurisdiction as follows:[11]
In short, the VCAT ordered that the BPB hold an Inquiry pursuant to the ‘old provisions’. Therefore, as declared by both the Transitional Provisions and the Interpretation of Legislation Act, all rights, liabilities, etc given or accrued by the old provisions shall apply. The definition [as] I understand it being that they MUST apply. If the Tribunal wished for the old provisions not to apply, then they should have ordered the VBA to act (under the new provisions which had taken effect prior to the hearing), and not ordered action under the old provisions.
The Tribunal mistakenly denied their jurisdiction (again) and ignored relevant material when interpreting the legislation and its intent to ensure peoples’ rights to review/appeal/etc are maintained, even after legislation is amended.
[11]Mr Draper’s Notice of Appeal dated 30 October 2018.
Mr Draper described the questions of law on which relied in the following terms in his affidavit of 8 November 2018:
Did VCAT commit a jurisdictional error;
- when concluding that the old provisions ‘ceased to be operative’ as of 1 September 2016, when in fact they continue to be ‘operative’ via Transitional provisions for ongoing matters?
- when mistakenly denying that they have no jurisdiction to conduct a merits review under the old provisions, after the Tribunal itself ordered that certain parts of the old provisions continue to apply to this matter, being s.178 of the old provisions?
- by ignoring the rules of natural justice and sharing information regarding these matters with persons other than the respondent in these matters, then allowing itself to be influenced by these unofficial interactions when making decisions regarding separate matters?
- by acting illogically when ordering that an Inquiry be held pursuant to the old provisions, via the Transitional provisions, yet then not allowing a person to pursue the right to have those actions reviewed under the same provisions?
- by ignoring relevant material such as the findings of Ginnane J in Ross v BPB, where the opinions expressed suggest that amending of legislation should not create a situation where matters are able to fall between the two acts, being the old and new Building Acts in this case?
…
Should the Court overturn the VCAT decision and remit the matter back to the Tribunal, ordering that VCAT accept the application for review pursuant to s.182A Building Act (the ‘old provisions’) and that they are to properly exercise their Merits review functions?
In his submissions, Mr Draper framed his questions of law as follows:
1) Whether the parliament acted illogically when reconstructing the longstanding statutory definition of what constitutes a ‘person affected’ by an administrative decision, by choosing to narrow the scope and change the meaning of the English words used in the existing definition?
2) Whether the parliament breached the civil and constitutional rights (s.8 CHRRA 2006) of consumers and potential complainants, when reconstructing the new building provisions and narrowing the scope for review of agency decisions in such a way as to deny certain individuals the right to apply checks and balances on the relevant agencies’ decisions, yet offer and extended right to review to only their registered practitioners, creating inequality under the law?
3) Whether an original-decision maker refusing a party to a dispute the right to be heard or make submissions, therefore not conducting a fair hearing, constitutes a breach of the fair hearing rule and therefore a contravention of the parties’ civil rights (s.24 Fair Hearing – CHRRA 2006)?
4) Whether a proper construction of Schedule 8 – Building Act 1993, gives Draper standing to apply for a review pursuant to s.182A(3)(a) Building Act 1993?
5) Whether VCAT failed to properly exercise its review jurisdiction, when confirming the Principal Registrar’s decision to reject Draper’s review application?
6) Whether the Tribunal refusing to take into account relevant policy documents, created by government with the specific purpose of assisting the original decision-maker when completing a ‘review on the merits’, constitutes a failure by the Tribunal to take into account relevant considerations, resulting in a failure to properly exercise its merits review jurisdiction?
7) Whether a decision-maker, when acting in their legislated capacity can conduct a private hearing (‘the Conduct Review’), where only the accused is present, the applicant is denied the right to make submissions, the offender is offered immunity before the facts of the case are properly known, the decision-maker assists the offender to make good the non-compliant practices with assistance from agents working under instruction from the decision-maker, acting outside of legislated powers (Draper v BPB – Reason #110) and then refused to publish their decisions/findings, where all of these actions conflict with s.8 and s.24 CHRRA 2006? (Is the ‘Conduct Review Process’ relied upon by both the Board, and not challenged by the Tribunal as being such, a lawful process and afford both parties their proper rights?)
Mr Draper’s proposed grounds of appeal related to his questions of law, as set out in his submissions dated 28 June 2019, are lengthy and I will summarise them. He challenged Parliament’s redefinition of the term a ‘person affected’ and sought that the Court order be amended to reflect the longstanding definition of that term, contending that Parliament had breached the civil rights of the users of the services of building practitioners, including rights under the Charter of Human Rights and Responsibilities 2006, by adopting the new provisions and definition. He submitted that the Court should address this by way of orders that required the VBA to allow both parties, including the complainant, the opportunity to be heard in any future proceedings and treat the complainant as a party to the inquiry, because a failure to do so would breach the fair hearing rule. He submitted that the BPB had conducted its own investigations and had assisted the offender to ‘make good’ non-compliance findings. He argued that the Tribunal erred in law and misconstrued the relevant statute, thereby failing to recognise his rights to review under the enabling Act. The Tribunal had wrongly refused to consider and assess policy documents upon which the decision-maker relied when making its decision, whereas a Tribunal undertaking merits review should pay regard to such a policy, although not bound by it. When the Tribunal gave directions in his application to VCAT, it paid no regard to the contents or existence of the relevant BPB policy, including the Corporate Governance Manual and Inquiry Manual. He argued that if the Court does not assist and direct the Tribunal to properly understand and exercise its review jurisdiction, the Victorian building industry, through poor management and flawed policy, will continue to see failures such as had occurred in his case. He was committed to pursuing the illegality of the conduct review because he considered that it demonstrated both the failure of policy and the BPB not following the required process.
The legislation
Significant amendments to the Building Act commenced on 1 September 2016,[12] including the abolition of the BPB and the transfer of its functions, powers and responsibilities to the VBA and the replacement of Divisions 2 and 2A of Part 11, being ss 177-187 with new Divisions 2, 3, 4 of Part 11, containing the new ss 177-187.
[12]Pursuant to the Building Legislation Amendment (Consumer Protection) Act 2016.
The provisions of the pre-amendment Act
Part 11, Division 2 of the pre-amendment Act dealt with inquiries by the BPB into the behaviour or ability of a registered building practitioner to practise.[13]
[13]Pre-amendment Act, s 177(1).
Section 182A of the pre-amendment Act provided:
(1) A person to whom a decision of the Building Practitioners Board under Division 1 or 2 applies may apply to the Victorian Civil and Administrative Tribunal for a review of—
(a) that decision; or
(b)a failure of the Board to make that decision within a reasonable time.
(2) If the Authority referred a matter to the Building Practitioners Board for inquiry under Division 2, the Authority may apply to the Victorian Civil and Administrative Tribunal for a review of—
(a) a failure by the Board to conduct an inquiry, within a reasonable time, into the matter referred to it; or
(b) a refusal by the Board to conduct the inquiry; or
(c) a decision by the Board on the inquiry.
(3) A person who requested the Building Practitioners Board to conduct an inquiry under Division 2 may apply to the Victorian Civil and Administrative Tribunal for a review of—
(a) a failure by the Board to conduct the inquiry within a reasonable time; or
(b) a refusal by the Board to conduct the inquiry; or
(c) a decision by the Board on the inquiry.
The transitional provisions
The transitional provisions contained in Schedule 8 of the post-amendment Act include the following:
3 Abolition of Building Practitioners Board
(1) On the relevant commencement day –
(a) the Building Practitioners Board is abolished and its members go out of office; and
(b) any subcommittee of the Building Practitioners Board is abolished and its members go out of office.
(2) Subclause (1) does not affect any other provisions of this Part –
(a) dealing with proceedings before the Building Practitioners Board; or
(b) providing for the Building Practitioners Board to continue for certain purposes.
(3) If, under this Part, the Building Practitioners Board continues for certain purposes, the old provisions relating to the membership and procedure of the Board continue to apply for those purposes.
4 Proceedings – Building Practitioners Board
(1) If, before the relevant commencement date, the Building Practitioners Board has commenced an inquiry into the conduct of a building practitioner but the Board has not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.
(2) A determination of the Building Practitioners Board referred to in subclause (1) is taken –
(a) in the case of a determination under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; or
(b) in the case of a decision under section 180 of the old provisions, to be a decision of the Authority under section 181 of the new provisions.
(3) An application for a review that has been made under section 182A of the old provisions but not determined before the relevant commencement day may be continued and completed in accordance with the old provisions.
(4) If the time within which an application for review could be made under section 182A of the old provisions had not expired before the relevant commencement day, the application may be made and dealt with in accordance with the old provisions.
…
6 Decisions and actions of Building Practitioners Board
On the relevant commencement day, all decisions and actions taken by the Building Practitioners Board under this Act before the relevant commencement day are taken to be decisions and actions taken by the Authority in relation to any period on or after the relevant commencement day.
Ross v Building Practitioners Board
Both parties referred to the judgment in Ross v Building Practitioners Board (‘Ross’),[14] in which the Court of Appeal considered the nature of an inquiry under the pre-amendment Act. The Court rejected the argument that an inquiry was a single event, deciding that it was a process comprised of a series of steps, stating:[15]
…in our opinion the preferable construction is that an inquiry comprises a number of components; it is not just the final hearing or meeting of the Board. An inquiry, like a proceeding, is a process.
[14][2017] VSCA 274.
[15]Ibid [53].
The Court also held that the inquiry in that case commenced, at the latest, when the BPB executed its notice of inquiry, stating:[16]
There remains for consideration the alternative argument of Mr Ross, that even if an ‘inquiry’ is not a single event but a process, that process ‘commences’ when notice of the Board’s decision to conduct an inquiry is served upon the practitioner rather than when the decision is made. In our view the trial judge was correct to characterise the giving of notice as a step for the provision of procedural fairness, rather than the formal commencement of an inquiry. There is no analogy with the commencement of a legal proceeding by service of originating process; here the process is commenced by the Board and the Board may properly have given the subject matter of the inquiry extensive consideration before deciding to give notice of the allegations to the practitioner. The inquiry in the present case therefore commenced no later than 30 August 2016 when the Registrar of the Board executed the notices of inquiry. It is not necessary to decide whether it happened at any earlier time.
[16]Ibid [54].
Because the Court of Appeal held that the inquiry had commenced before 1 September 2016, it could be continued under the provisions of the pre-amendment Act.
I will consider the substance of the grounds on which Mr Draper seeks to rely by grouping them into categories.
Mr Draper’s questions of law and grounds
Validity of the post-amendment Act provisions
Mr Draper’s challenges to Parliament’s authority to enact the provisions of the post-amendment Act cannot succeed. VCAT cannot determine a challenge to the validity of legislation of the Victorian Parliament, therefore that issue cannot give rise to a question of law for the purposes of s 148 of the VCAT Act. In any event, the Victorian Parliament possessed power to enact the amendments to the Building Act, including altering the rights of review of the BPB’s decision, as it could pass laws for the ‘peace, order and good government’ of Victoria.[17]
Did the Tribunal commit an error of law or a jurisdictional error by misconstruing the provisions of the pre-amendment Act?
[17]Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1.
This question concerns whether VCAT had jurisdiction to accept Mr Draper’s application for review under s 182A of the Building Act prior to its amendment and whether the Senior Member mistakenly reasoned that the pre-amendment Act ceased to be operative in September 2016 in its effect on Mr Draper’s review application.
Mr Draper’s submissions
Mr Draper explained that his application to VCAT under s 122 followed months of waiting for the VBA to hold the Inquiry that Senior Member Riegler had ordered on 15 September 2017. But the VCAT Registrar contacted the VBA, accepted its explanation as to why the Inquiry had not been held, and then refused to issue a certificate allowing enforcement of the orders in the Supreme Court under s 122. So on 10 July 2018, Mr Draper again applied for a review under s 182A of the Building Act. The Deputy Registrar refused his application on 8 August 2018 and the Senior Member confirmed his decision.
Mr Draper also submitted that the Tribunal erred in law when it misconstrued the meaning of the transitional and savings provisions in Schedule 8 of the post-amendment Act,[18] as limiting his right to apply for review pursuant to s 182A(3)(a) of the pre-amendment Act. Clause 2 of Schedule 8 states:
If this Part provides that an old provision continues to apply to any matter or thing, then any regulation or other instrument having effect for the purposes of that provision also continues to apply to that matter or thing.
[18]Schedule 8 – Transitional and savings provisions relating to the Building Legislation Amendment (Consumer Protection) Act 2016.
Mr Draper contended that the effect of cl 2 was that as the BPB was ordered to conduct the inquiry pursuant to s 178 of the pre-amendment Act, then all other rights and liabilities accrued under the pre-amendment Act applied. He also relied on the provisions of s 14(2)(e), (f) and (g) of the Interpretation of Legislation Act 1984 (‘ILA’).
Mr Draper argued that the Senior Member erred by deciding that the pre-amendment Act provisions no longer applied to his application for a review when the effect of s 51(3) of the VCAT Act. He argued that although Senior Member Riegler’s order that an inquiry be held was made on 11 September 2017, it was deemed to take effect on 11 May 2016, the day the Board notified Mr Draper that that it would not conduct an inquiry but instead a ‘conduct review’. Mr Draper contended that the continued operation of s 182A(3)(a) of the pre-amendment Act permitted the Tribunal to consider his application of 10 July 2018 for an order that an inquiry be conducted. The Tribunal erred in finding that the pre-amendment Act ceased to operate on 1 September 2016, when the new provisions commenced. Those new provisions included the transitional provisions, which allowed certain matters to be dealt with under the pre-amendment Act. Senior Member Riegler’s orders required the BPB to conduct an inquiry under the pre-amendment Act and, if it did not do so within a reasonable time, Mr Draper was entitled to seek a review by the Tribunal under s 182A(3)(a) of the pre-amendment Act. No time limit was attached to such applications, so his application to the Tribunal under that provision for review was within time.
Mr Draper contended that his right to seek a review was legally enlivened after a ‘reasonable time’ to make a decision had elapsed without a decision being made. The transitional provided for all matters affected by the pre-amendment Act to be completed under its provisions. The Court of Appeal decision in Douglas v Harness Racing Victoria[19] established that a pending decision enlivened review rights and not the actual making of the decision.[20]
[19][2021] VSCA 128.
[20]These submissions were made in Mr Draper’s submissions of 18 July 2022, which were permitted by leave granted to the parties to make submissions about Douglas v Harness Racing Victoria [2021] VSCA 128 for the purposes of proceeding S ECI 2020 03187. However, Mr Draper sought to apply his submissions to the other proceedings, including the present proceeding. As these additional submissions were logically connected to the submissions he had previously made in this proceeding, I have taken them, and the VBA’s responses, into account.
Mr Draper argued that the Senior Member incorrectly focused on the order or remedy that he wanted the Tribunal to make, when these were matters to be addressed during and after the review. Mr Draper wanted the Tribunal ‘to check up on the agency, on behalf of all who are affected by incompetence and improper behaviour by government agencies who are put in place to protect us’.
Ross established that the decision of the Board to proceed to conduct an inquiry was determined to be the commencement of the proceeding. Likewise, the day of the deemed refusal to conduct an inquiry became the day that the inquiry was commenced. In this instance, that was 11 May 2016, when the BPB declined to conduct a statutory inquiry, but to conduct a non-statutory conduct review. The BPB decision on 19 November 2018 did not cure its previous defective decisions. Mr Draper’s complaint was not that an inquiry had not been conducted, but that the BPB failed to conduct it within a reasonable time.
Mr Draper relied on VCAT decisions in which applications were accepted under s 182A of the pre-amendment Act well after the post-amendment Act had commenced. In Stanbury v Victorian Building Authority,[21] Mr Stanbury’s professional conduct in 2013 and 2014 was the subject of a disciplinary inquiry following the issue of a notice of inquiry dated 30 August 2016. On 8 March 2018, the Board found him guilty of the conduct alleged and subsequently imposed penalties. He applied to VCAT for review of the Board’s decision pursuant to s 182A of the pre-amendment Act. The Tribunal noted that, because of changes to the Act which came into effect on 1 September 2016, the VBA, rather than the BPB, was the named respondent to Mr Stanbury’s review application, but affirmed the BPB’s decision finding him ‘guilty’ of the conduct alleged. No suggestion was made that the review in VCAT could not be conducted under s 182A of the pre-amendment Act rather than under s 186 of the post-amendment Act.
[21][2019] VCAT 1645 (‘Stanbury’).
King v Victorian Building Authority[22] was decided by the same Senior Member whose decision is the subject of this proceeding. In that case, the BPB served on a builder a notice of inquiry dated 30 August 2016, containing three allegations. The BPB, having conducted the hearing under the pre-amendment Act, found each of the allegations proved and imposed a penalty. On review, VCAT on 13 March 2019 set aside the BPB’s decision and dismissed the allegations. The Senior Member stated:[23]
The inquiry hearing was conducted before the Board on 1 November 2017. Changes to the Act which came into effect on 1 September 2016 included the abolition of the Board and the transfer of its functions, powers and responsibilities to the Victorian Building Authority (‘VBA’). Transitional provisions allow the Board to continue to perform functions which were part performed, such as the inquiry in this case.
…
Mr King subsequently made application under the Act, section 182A as it then was, for a review of the inquiry decision. (By reason of the changes to the Act which came into effect on 1 September 2016, the VBA rather than the Board is the named respondent to Mr King’s review application). Under section 51 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal has the power to affirm, vary or set aside the inquiry decision. If the inquiry decision is set aside, the Tribunal may provide a substitute decision or it may remit the matter to the VBA for reconsideration in accordance with directions provided by the Tribunal.
[22][2019] VCAT 353 (‘King’).
[23]Ibid [3], [5].
In another of the cases commenced by Mr Draper and heard at the same time as this proceeding,[24] he seeks leave to appeal VCAT’s orders refusing him an extension of time to apply to review the BPB’s order of 19 November 2018. However, the Senior Member who decided that application accepted Mr Draper’s submission that if he had commenced the proceeding within time, he would have been able to seek review of the BPB’s decision under the pre-amendment Act. The Senior Member stated that:[25]
On 13 March 2019 he submitted this application to VCAT for review. As noted, his previous two applications had been under the old s 182A(3)(b) of the Building Act, and the old s 182A(3)(a) respectively. This application was made under the third of these provisions, the old s 182A(3)(c).
[24]Draper v Victorian Civil and Administrative Tribunal & Ors [2022] VSC 486 (S ECI 2020 03187).
[25]Draper v Victorian Building Authority (Review and Regulation) [2019] VCAT 1837, [25].
The Senior Member decided that the transitional provisions permitted Mr Draper to make an application under s 182A(3) of the pre-amendment Act. He stated:[26]
It was said during argument on behalf of the respondent that it was assuming that clause 4(1) of the transitional provisions had applied in relation to the enquiry conducted here. I do not accept that is the case, however. Sub-clauses 4(1) and (2) relate to inquiries which had commenced by the BPB but not been determined before 1 September 2016.
That is not what occurred here. Rather, it is sub-clauses 4(3) and (4) which have had application in this instance. These relate to applications to VCAT for review. Mr Draper’s first application for review was made in October 2015, prior to the commencement day. So, in accordance with clause 4(3), the inquiry was continued and completed (after the commencement day) ‘in accordance with the old provisions’. After that occurred, clause 4(4) has the effect that any application for review by VCAT, lodged within the applicable time limit, is also dealt with in accordance with the old provisions.
As a consequence of my finding that Mr Draper was able to bring this application to the Tribunal under the old section 182A(3)(c), I refuse the application for summary dismissal under s 75 of the VCAT Act, which was brought on the basis that the Tribunal lacks jurisdiction.
[26]Ibid [39]-[41].
In Mr Draper’s proceeding S ECI 2020 03187 in this Court, the VBA challenged the Senior Member’s conclusion about the operation of the transitional provisions. I have decided, in a judgment delivered at the same time as this judgment, that Mr Draper had an accrued right under s 14(2)(e) of the ILA to have VCAT decide his application to review the BPB decision made under the pre-amendment Act.
Also of relevance to the jurisdictional issues is Singleton v Victorian Building Authority,[27] a case arising from allegations of defective building work certified by a surveyor. The Board conducted its inquiry on 28 June 2018, and on 5 July 2018 issued a notice of decision. Ms Singleton challenged the VBA’s decision not to issue further charges under the show cause scheme in the post-amendment Act. Garde J dismissed the proceeding, but stated in respect of the applicable provisions:[28]
By June 2016, the authority had concluded its investigation into Mr Ross, and the results were under internal legal review. At that time, as a result of legislative changes, the Board was due to be abolished on 1 September 2016. Thereafter, a new ‘show cause’ notice procedure would be available for disciplinary action against a building practitioner. However, if a notice of inquiry had been issued before 31 August 2016, the Board had power to conduct an inquiry under the law as it was before 1 September 2016.
[27][2019] VSC 416.
[28]Ibid [16].
Mr Draper argued that by accepting applications in Stanbury and King as engaging the pre-amendment provisions, but not in this case, VCAT had given building practitioners more rights than he, as a consumer, possessed.
Mr Draper argued that when exercising its review power under s 182A(3)(a), VCAT had a general right of review and was not limited to reviewing a failure of the BPB to make a decision. The outcome of VCAT’s review might benefit not only the applicant for review, but the Victorian public, as the Parliament and the decision-maker might learn valuable lessons and gain significant insights from the review. Therefore, Mr Draper submitted that an order remitting his application to VCAT for rehearing would not be academic, rather the current state of the Victorian building industry made such an order in the public interest.
VBA’s submissions
The VBA submitted that the Senior Member did not make an error of law by confirming the Principal Registrar’s decision to refuse Mr Draper’s application. The Tribunal did not have jurisdiction to receive an application under s 182A(3)(a) at any time after the BPB had decided whether or not to conduct an inquiry. Senior Member Riegler, exercising the powers of the BPB, had ordered on 11 September 2017 that an inquiry be conducted. That order was made 10 months before Mr Draper’s application on 10 July 2018. Therefore, the VBA had not failed or refused to undertake the inquiry that VCAT ordered and the Tribunal had no power to consider Mr Draper’s new application under s 182A(3)(a) of the pre-amendment Act, whether or not that provision’s effect was preserved by the transitional provisions in the amending Act. Once the Board decided to conduct an inquiry, or refused to conduct an inquiry, no application for review could be brought under s 182A(3)(a).
The VBA argued, in the alternative, that Mr Draper’s application could not have succeeded and he was therefore not a person entitled to bring the application within the meaning of s 71(1)(a) of the VCAT Act. The VBA had not refused to conduct an inquiry or rejection of the application at the time of Mr Draper’s application, he was not a person entitled to bring the application under s 71(1)(a) of the VCAT Act.
The VBA also contended that even if VCAT had made a legal error which vitiated its decision, nothing would be gained by remitting the proceeding for reconsideration, since the BPB had completed its inquiry.
It also argued that Mr Draper’s submissions were not assisted by the VCAT decisions in King or in Mr Draper’s 2019 case, being S ECI 2020 03187, because the applications in those cases had been made before 1 September 2016 and thus could continue under the old provisions.
The VBA disputed Mr Draper’s contention that the word ‘review’ in s 182A(3)(a) required a ‘formal assessment of something with the intention of instituting change if necessary’. Rather the word ‘review’ had its standard usage in the context of an administrative review by a court or tribunal, being a judicial re-examination of the decision or proceeding in a case. The Tribunal did not have power to conduct a broad ranging commission of inquiry. The focus of a review under s 182A(3) was either a decision of the Board, or the failure or refusal of the Board to make a decision.
Analysis
In my opinion, the Senior Member’s decisions as to jurisdiction and his conclusion that Mr Draper could not bring an application under the pre-amendment Act were correct. Mr Draper’s application on 10 July 2018 was a new application that he sought to make under s 182A(3)(a) of the pre-amendment Act. But that provision had been repealed, except insofar as it was continued in operation by the transitional provisions. Those provisions permitted the BPB to continue and determine an inquiry in accordance with the old provisions if it had been commenced before the commencement day,[29] and permitted an application for review under s 182A of the pre-amendment Act if the time in which such an application for review could be made under s 182A had not expired before the commencement date.[30] Neither provision applied here. Mr Draper’s application was a new application for the purposes of s 182A(3)(a). But because that section had been repealed, the application could not be made and Mr Draper had no legal right to make it.
[29]Post-amendment Act, Sch 8 cl 4(1).
[30]Ibid Sch 8 cl 4(4).
Although the transitional provisions do partially preserve the operation of the pre-amendment Act, they do not preserve the operation of the old section, s 182A(3)(a), for new applications made after the commencement day of 1 September 2016. The transitional provisions allow for applications for review, made under s 182A of the pre-amendment Act but not yet determined before 1 September 2016, to be continued and completed under the pre-amendment Act’s provisions. But they do not permit a fresh application under s 182A(3)(a) of the pre-amendment Act to be made after 1 September 2016.
The Senior Member was correct to find that Mr Draper had no right to bring the application as it did not come within the transitional provisions, and therefore, VCAT had no jurisdiction to conduct the review.
For the sake of completeness, I note that the word ‘review’ in s 182A(3)(a) must be read in context. Nothing in that context suggests that ‘review’ should be read other than as referring to an administrative review on the merits. The section does not provide a right to seek a formal inquiry of an institution or its practices.
While Stanbury supports the proposition that a person affected by the decision or the person who made the initial complaint can make an application to VCAT under s 182A(3)(a), it does not assist Mr Draper in this case because the transitional provisions do not apply to his new application made after the commencement date on 1 September 2016. Nor, for similar reasons, does King assist Mr Draper’s case.
Section 14(2)(e) of the ILA does not assist Mr Draper. For the reasons given above, he did not have an accrued right to make a new application.
Did the Tribunal ignore the rules of natural justice?
Mr Draper submitted that the Tribunal contravened the rules of natural justice by sharing information regarding his application with other persons. He claims that these interactions allowed the Tribunal to be improperly influenced. He made various other natural justice claims based on the procedure adopted by the BPB, the exclusion of relevant parties from the hearing and the refusal to accept any submissions from him and the bias displayed by the decision-maker in conducting its own conduct review.
Analysis
These natural justice grounds do not appear to be directed to the decision of the Senior Member which is now under appeal. There is no evidence that the Senior Member treated Mr Draper unfairly or in any manner contrary to the rules of natural justice. He carried out a fresh consideration of Mr Draper’s application and made a fresh decision. Any unfairness caused by Registry staff contacting the VBA cannot be relied on to challenge the Senior Member’s decision. There is no evidence that any conduct by VCAT staff had any effect on the Senior Member’s decision or that a reasonable person with relevant knowledge would have concluded that it had such an effect.
Did the Senior Member act illogically when denying the application?
Mr Draper submitted that the Senior Member acted illogically when, on the one hand, Senior Member Riegler ordered that an inquiry be held pursuant to the provisions of the pre-amendment Act, in accordance with the transitional provisions, but on the other hand, the Senior Member would not allow Mr Draper to pursue his right to have the review carried out under the same provisions.
Analysis
As explained above, the transitional provisions did not provide a basis for Mr Draper’s new application to be made under s 182A(3)(a) of the pre-amendment Act after 1 September 2016. The terms of cl 4(3) of the transitional provisions make clear that the application for a review has to have ‘been made…but not determined before the relevant commencement day’. In this instance, Mr Draper filed his application on 10 July 2018 in respect of the Inquiry that had been ordered on 11 September 2017. The Senior Member’s decision was consistent with the legislative scheme and its jurisdiction in force at the time and was not illogical.
Did the Tribunal ignore relevant material?
Mr Draper submitted that the Tribunal refused to take into account relevant policy documents. He stated that he applied to the Tribunal believing that he was participating in a merits review and with expectations based on a report by the then Tribunal President about VCAT considering policy in performing its review function.
Analysis
Mr Draper was participating in a review of a decision made under s 71 of the VCAT Act. There is no evidence that the Senior Member failed to take into account any relevant policy material that he was required to take into account for the purposes of reviewing the Registrar’s decision to accept Mr Draper’s application for filing. Mr Draper’s application did not raise issues of policy, but of the jurisdiction of the Tribunal to accept his new application.
The judgment in Ross does not support Mr Draper’s submissions, because in that case the inquiry commenced before the commencement date of 1 September 2016.
Did the Tribunal contravene the Charter of Human Rights and Responsibilities Act 2006?
Mr Draper submitted that the BPB’s refusal of his right to be heard or make submissions was a failure to conduct a fair hearing, and therefore a contravention of ss 8 and 24 of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’). He also submitted that the conduct of a private hearing where only the alleged offender was present and the applicant was denied the right to make submissions, and where the alleged offender was offered immunity before the facts of the case were established, and where the Tribunal assists the alleged offender involved contraventions of ss 8 and 24 of the Charter. This submission appears to have been directed at the hearing by the BPB and not at the hearing before the Senior Member.
Analysis
I have to decide whether to grant leave to appeal from the Senior Member’s orders and to do so, Mr Draper must establish that he made an error of law in making those orders.
Mr Draper’s allegations about breach of Charter rights do not affect the Senior Member’s orders, which were based on questions of jurisdiction. In any event, there was no satisfactory evidence that the Senior Member’s conduct of the application contravened the provisions of the Charter.
Should this Court allow the appeal and remit the matter to the Tribunal for consideration under the provisions of the pre-amendment Act?
Mr Draper’s submissions
Mr Draper submitted that, because of the legislation and the alleged errors of law in the Tribunal’s decision, the matter should be remitted to the Tribunal to be considered under the provisions of the pre-amendment Act. He cited concerns about the public risks of underqualified and undereducated building professionals remaining registered and being allowed to practise without evidence of their systemic processes being corrected or improved.[31]
[31]Submissions of Mr Draper dated 6 July 2020, 16.
VBA’s submissions
The VBA submitted that there would be no utility in remitting the matter to the Tribunal, as such an order would have no practical or legal consequences in the circumstances. Even if s 182A(3)(a) of the pre-amendment Act empowered the Tribunal to entertain an application to review the failure of the Board to commence, or conclude an inquiry, nothing could be achieved by remitting the matter to the Tribunal to conduct a review, as the Inquiry concluded on 19 November 2018. The Tribunal’s review jurisdiction is concerned with the review of decisions rather than undertaking a broader inquiry.
Analysis
For reasons I have given above, Mr Draper did not have the right to make the second or new application under s 182A(3)(a) of the pre-amendment Act. Accordingly, there would be no point in remitting his application it to VCAT.
In any event, there is no utility in remitting the proceeding to VCAT for rehearing. The Tribunal is not a board or commission of inquiry. Its role is to review decisions and make orders affirming or varying decisions, substituting new decisions, or setting aside decisions if appropriate. Mr Draper had legitimate concerns about the time taken to conduct the Inquiry. However, as the Inquiry has concluded, the Tribunal could not make any orders on the application to conduct a new inquiry that would have utility.
The VBA as a party
Mr Draper expressed concerns that the VBA had been joined as a party to this proceeding when it was not a party to the VCAT proceeding. He described this proceeding as between him and VCAT.[32] He did not consider it appropriate that the VCAT had made a Hardiman appearance.[33]
[32]T 8-10.
[33]T 10.
Mr Draper submitted that VCAT should have been able to address this Court and state that it had recognised that he has jurisdiction to make an application under s 182A and therefore, on the basis that he succeeded in this proceeding, agree that the matter should be remitted for rehearing.[34] Rather, the Court allowed the VBA to argue a position about his standing that was contrary to VCAT’s decision. Mr Draper submitted that he was forced by the Court to substitute the VBA for VCAT as a respondent, something he did not want to do.[35]
[34]T 21.
[35]T 47.
The VBA referred to the orders of Clayton JR of 12 December 2018 that stated:[36]
The appellant have leave to file and serve an amended Notice of Appeal replacing the “Victorian Civil and Administrative Tribunal” as respondent with the “Victorian Building Authority” and/or the “Building Practitioners Board”…
[36]Court Book, Draper v Victorian Building Authority & Anor (Supreme Court of Victoria, S ECI 2018 01989, Ginnane J, 1 September 2020), 341-2.
The VBA submitted that the attendances recorded in the Judicial Registrar’s order showed that Mr Draper appeared in person, and the respondent as it was at that time, the VCAT, provided a Hardiman letter. The order did not indicate that Mr Draper was compelled by the Court to amend the notice of appeal to replace the respondent with the VBA.
Analysis
In my opinion, it was appropriate for the VBA to be joined as party to provide a contradictor in the proceeding. In circumstances where the BPB had ceased to exist, except for proceedings continued by the transitional provisions, it was necessary to have a contradictor.
Conclusion
None of the errors alleged in the questions of law or associated grounds of appeal have been established. In any event, there would be no utility in remitting the proceeding to the Tribunal. Leave to appeal the Senior Member’s orders is refused and the proceeding dismissed.
I will give the appellant and the first respondent an opportunity to make written submissions about the costs of the proceeding.
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