Draper v Victorian Civil and Administrative Tribunal & Ors
[2022] VSC 486
•24 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03187
| SHANNON DRAPER | Appellant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| BUILDING PRACTITIONERS BOARD | Second Respondent |
| VICTORIAN BUILDING AUTHORITY | Third Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3-4 August 2021; Further written submissions 18 and 21 July 2022 |
DATE OF JUDGMENT: | 24 August 2022 |
CASE MAY BE CITED AS: | Draper v Victorian Civil and Administrative Tribunal & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 486 |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Refusal of extension of time to commence VCAT proceeding seeking review of decision of Building Practitioners Board – Explanation for delay – Whether applicant had right to seek review – Effect of amending legislation and transitional provisions – Whether accrued right to seek review – Whether VCAT erred in law in refusing extension of time – Interpretation of Legislation Act 1984 s 14(2)(e); Building Act 1993 – 2016 s 182A(3)(a); Victorian Civil and Administrative Tribunal Act 1998 ss 5, 42, 46(1)-(2), 49, 51, 59(1)(b), 75, 102, 126, 148; Civil Procedure Act 2010 s 4(3); Building Regulations 2006 reg 1502(a).
PRACTICE AND PROCEDURE – Appellant seeking extension of time to commence Supreme Court proceeding for leave to appeal VCAT’s orders – Explanation for delay – Prejudice to respondent – Extension of time granted – Victorian Civil and Administrative Tribunal Act 1998 s 148(5).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Third Respondent | Mr J Stoller | Victorian Government Solicitor’s Office |
HIS HONOUR:
Mr Shannon Draper seeks leave to appeal an order (the ‘order’) of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’ or ‘VCAT’).[1] The order dismissed Mr Draper’s application of 13 March 2019 for an extension of time to file an application for review of a decision made by the Building Practitioners Board (the ‘BPB’) dated 19 November 2018. The BPB’s decision was made as part of an inquiry into the professional conduct of Mr Vallence Gary Simonds. The Tribunal listed a preliminary hearing of Mr Draper’s review application on 16 October 2019, when it heard his application for an extension of time to commence his application to review the BPB’s decision and the third respondent’s, the Victorian Building Authority’s (the ‘VBA’), application to summarily dismiss the review application. On 21 November 2019, the Tribunal dismissed Mr Draper’s application.
[1]See Draper v Victorian Building Authority (Review and Regulation) [2019] VCAT 1837 (‘Reasons’).
Background
This proceeding is one of several that arise from the same background which I now summarise.
In June 2014, Mr Draper entered into a contract with Simonds Homes Victoria Pty Ltd (‘Simonds Homes’) to construct a house at Wallan. Mr Draper identified defects with the construction of the house and arranged for the VBA to inspect it. He commenced civil proceedings against Simonds Homes in the Tribunal and obtained orders against the builder that:[2]
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.
[2]Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 669.
On 9 February 2015, Mr Draper requested the BPB to conduct an inquiry into the conduct of Mr 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 (the ‘pre-amendment Act’), 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 BPB conducted an inquiry hearing concerning Mr Simonds. He accepted as proved six allegations, with a seventh being proved.[3] 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.[4]
[3]Allegations 3c.i-iv were withdrawn. Allegation 3c.v was contested by Mr Simonds, but found proved against him, and a fine of $288.72 imposed (2 penalty units).
[4]Reasons, [1].
On 11 December 2018, Mr Draper requested a statement of reasons for that decision. On 28 December 2018, the VBA caused an email to be sent to Mr Draper stating that the statement of reasons would not be provided until mid-February 2019 at the earliest. Mr Draper had requested the statement of reasons under s 46 of the VCAT Act by which the reasons should have been provided to him by 8 January 2019 being 28 days from the date of his request.[5] On 12 February 2019 and 4 March 2019, Mr Draper sent follow-up emails to the VBA concerning his request for a statement of reasons. On 5 March 2019, Mr Draper received the statement of reasons which were dated 29 January 2019.
[5]See VCAT Act s 46(1).
On 13 March 2019, Mr Draper filed an application in VCAT for review of that decision, claiming that he was entitled to seek review of the BPB’s decision under s 182A(3)(a) of the pre-amendment Act.
A Registrar of the Tribunal refused to accept the application for filing, but a Deputy President of the Tribunal set aside that decision on internal review and the application was accepted. Thereafter, a Senior Member made orders in Chambers on 18 September 2019 for a preliminary hearing as follows:
1. The Tribunal has listed a preliminary hearing at 2:00pm on 16 October 2019 to hear and determine:
a.The applicant’s application under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) for an extension of time to make the application; and
b. The respondent’s application under s 75 of the VCAT Act for the application to be summarily dismissed.
2. Any further necessary orders, including as to the matters in section 49 of the VCAT Act, can be raised by the parties at the preliminary hearing.
At the preliminary hearing the VBA applied to strike out Mr Draper’s application for review on the basis that the Tribunal did not have the jurisdiction to hear it, and Mr Draper applied for an extension of time within which to commence the review application. His application was 54 days out of time. On 21 November 2019, the Tribunal refused Mr Draper’s application. It also stated that it did not accept the VBA’s application for summary dismissal as it considered that the pre-amendment Act gave Mr Draper a right of review if he had commenced it in time.
Extension of time for commencement of the Supreme Court proceeding
The Senior Member’s orders were made on 21 November 2019 and Mr Draper had 28 days thereafter in which to file an application for leave to appeal under s 148 of the VCAT Act. He did file a notice of appeal to this Court dated 19 December 2019, which was within time. Under the heading ‘Extension of time’ he stated:
–No extension of time required as application is made within prescribed period.
-**If extension required, it is necessary due to extended period of time to review filing and provide clarification regarding flawed Charter Breach inclusions.
On 29 December 2019, Mr Draper sent an email to the VBA which contained a postscript:[6]
PS, appeal against Smithers’ decision received 22 November was filed on 20 December 2019.
[6]Transcript of Proceeding (S ECI 2018 03187, Draper v Victorian Civil and Administrative Tribunal & Ors, Ginnane J, Supreme Court of Victoria, 3-4 August 2021) (‘T’) 207.
By letter of 19 February 2020, the Registry of the Court wrote to Mr Draper informing him that his notice of appeal would not be accepted for filing because some of the relief it sought was beyond the Court’s power to make under s 148(7) of the VCAT Act. He also had not complied with the requirements of the Charter of Human Rights and Responsibilities Act 2006 by not filing a notice under s 35 of the Charter. In response, on a date which does not appear, Mr Draper sought to file an amended notice of appeal. On 11 June 2020, the Registry of the Court again wrote to Mr Draper informing him that it was not accepting his notice of appeal for filing for similar reasons.
Finally, on 27 July 2020, about seven months out of time, the Registry accepted a notice of appeal filed by Mr Draper, which was still dated 19 December 2019. It appears that he served it on the VBA on 7 August 2020.
Mr Draper did not file an affidavit explaining why he had delayed filing a valid notice of appeal. However, the correspondence to which I have referred shows that he did attempt to file a notice of appeal within time and advised the VBA that he was appealing. He is self-represented, although he has commenced a number of proceedings. He sought to raise wide-ranging questions of law, grounds of appeal and claims for remedies. He responded to the Court’s letters and eventually filed an acceptable notice of appeal. It is true that he did not keep the VBA informed of what he was doing after the initial email of 29 December 2019, but no prejudice is suggested as resulting from that. He had other Supreme Court proceedings against the VBA pending, including proceeding S ECI 2018 01989.
I consider that the reasons for Mr Draper’s delay are clear and provide an acceptable explanation for it. As a self-represented litigant he experienced difficulty in filing a notice of appeal in an acceptable form. However, it appears that throughout the period from 21 November 2019 until 27 July 2020, he had not accepted the BPB’s decision and was not resting on his rights.
As I later conclude, I consider that Mr Draper should be granted leave to appeal and that his appeal should succeed. The VBA did not identify any relevant prejudice that would be suffered by the grant of an extension of time to commence this proceeding. In those circumstances, I consider it appropriate under s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’)[7] to extend the time for him to commence this until 27 July 2020, when his notice of appeal was accepted by the Registry.
[7]See also Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 r 4.05.
The legislation
The pre-amendment Act
I will refer to the Building Act as it was prior to amendments made on 1 September 2016 as the ‘pre-amendment Act’,[8] and to the Building Act as it was after those amendments as the ‘post-amendment Act’. Part 11, Division 2 of the pre-amendment Act dealt with inquiries by the BPB. Under that Division, the BPB could conduct inquiries into the behaviour or ability of a registered building practitioner to practise.[9]
[8]By the Building Legislation Amendment (Consumer Protection) Act 2016.
[9]Pre-amendment Act, s 177(1).
Section 182A of the pre-amendment Act stated:
(1) A person to whom a decision of the [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 [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 [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 VCAT Act
The following sections of the VCAT Act are relevant:
5 When are a person's interests affected by a decision?
If an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision—
…
(b) the person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.
42 What is review jurisdiction?
(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.
46 Decision-maker to give statement of reasons on request
(1) A decision-maker must give a written statement of reasons for a decision to a person as soon as practical, and in any event within 28 days or such other period as is specified in the enabling enactment, after receiving a request under section 45.
(2) Subject to this Act, the statement must set out—
(a) the reasons for the decision; and
(b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.
49 Decision-maker must lodge material
(1) If a proceeding is commenced for review of a decision, the decision-maker must lodge with the Tribunal as many copies as the rules require of—
(a) the statement of reasons given by the decision-maker under section 46(1) or, if no such statement has been given, a statement containing the matters set out in section 46(2) or, in the case of the Business Licensing Authority, section 46(2)(a); and
(b) every other document in the decision-maker's possession that the decision-maker considers is relevant to the review of the decision.
(2) Copies must be lodged under subsection (1) within 28 days after—
(a) the day on which the decision-maker received notice of the application to the Tribunal; or
(b) the day on which the decision-maker referred the decision to the Tribunal—
as the case requires.
51 Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2) In determining a proceeding for review of a decision the Tribunal may, by order—
(a)affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker—
(a) is deemed to be a decision of that decisionmaker; and
(b)subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.
(4) Subsection (3)(a) does not apply for the purposes of—
(a)an application to the Tribunal for review of the decision; or
(b) an appeal under Part 5
(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.
59 Who are the parties to a proceeding?
(1) The parties to a proceeding are –
…
(b) in a proceeding in the Tribunal’s review jurisdiction –
(i)the person who applies to the Tribunal for review of a decision, or who requests or requires a decision to be referred to the Tribunal for review; and
(ii) the decision-maker who made the decision; and
(iii)any person joined as a party to the proceeding by the Tribunal; and
(iv)any other person specified by or under this Act or the enabling enactment as a party.
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.
126 Extension or abridgment of time and waiver of compliance
(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may—
(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or
(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.
(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.
(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
(5) In this section—
relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.
The Tribunal’s discretion to grant an extension of time to commence a proceeding
Section 126 of the VCAT Act gives VCAT a discretion to extend time limits fixed by an enabling enactment for the commencement of a proceeding. Assuming the Tribunal had jurisdiction to hear his application, Mr Draper had 60 days in which to commence a proceeding seeking the review of the BPB’s decision of 19 November 2018.[10] Exercising the discretion to extend a time limit usually requires consideration of why the applicant did not commence the proceeding in time, the length of the extension sought, whether the applicant’s case has sufficient merit or strength to make an extension worthwhile and any prejudice that may be caused to the respondent by an extension of time. Section 126(4) deals with prejudice or detriment.
[10]Building Regulations 2006, reg 1605.
Wilcox J’s judgment in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment,[11] upon which the Senior Member relied, contains a statement of those factors, which the Senior Member summarised as follows:[12]
[11](1984) 3 FCR 344 (‘Hunter Valley’).
[12]Reasons, [64], quoting the respondent’s summary of the criteria in that proceeding.
(1)Whether the Applicant can show an acceptable explanation for the delay;
(2) Whether it is fair and equitable in the circumstances to extend time;
(3) The Applicant’s actions since the decision;
(4) Whether the Respondent is prejudiced by the delay;
(5)Whether the delay may result, if the extension is granted, in the unsettling of established practices;
(6) The merits of the substantial application;
(7)Considerations of fairness as between the Applicant and other persons in a like position.
The Senior Member’s decision
In written reasons, the Senior Member summarised the issues raised at the preliminary hearing and his conclusions in the following passage:[13]
In any event, even if that ability to bring a review is preserved, the VBA says that Mr Draper’s application to VCAT (on 13 March 2019) was out of time. It should have been made by 18 January 2019 (60 days after the BPB decision). It opposes Mr Draper’s extension of time application.
This is the determination of those two issues. Before dealing with the question of extension of time, it is appropriate to clarify the statutory status of the BPB’s decision of 19 November 2018, and of Mr Draper’s right to seek review of it. I find that his right to seek review was preserved by the transitional provisions. Therefore, the VBA’s application under s 75 of the Victorian and Civil and Administrative Tribunal Act 1998 (VCAT Act) for an order summarily dismissing Mr Draper’s claim on the basis of a lack of jurisdiction is refused. Next, for the reasons set out below, I have determined Mr Draper’s extension of time application should be refused.
[13]Ibid [5]-[6].
Mr Draper’s application for a s 49 statement
At the preliminary hearing, Mr Draper requested that the VBA be ordered to provide him with a s 49 statement. That is a statement of reasons and every other document in the decision-maker’s possession that the decision-maker considers relevant to the review of the decision, copies of which must be lodged within 28 days after the day on which the decision-maker received notice of the application to the Tribunal, or the day on which the decision-maker referred the decision to the Tribunal as the case requires. The Senior Member refused Mr Draper’s request for an order that the VBA provide him with a s 49 statement, stating that it was not appropriate to order it until the preliminary issues had been determined in his favour. Mr Draper relies on that fact that he did not receive a s 49 statement in his proposed grounds of appeal.
VCAT’s decision on the extension of time application
In dealing with Mr Draper’s application for an extension of time, the Senior Member stated:[14]
[14]Ibid [46]-[61] (citation omitted).
At the outset, it is important to bear in mind the nature of the review which Mr Draper seeks be carried out in this case. The review he seeks would involve a rehearing of the disciplinary proceeding brought by the BPB against Mr Simonds.
In this regard, two matters should be noted. First, this was a disciplinary process brought by the regulator against the builder. Mr Draper was not involved. Second, the only issue of substance on any VCAT review would be the question of whether a different penalty to that determined by the BPB (a reprimand, and a fine of $3,464.64, plus costs of $14,429) should be imposed.
Nature of the proceeding – disciplinary inquiry
Mr Draper was not a party to that BPB inquiry. That was in accordance with usual practice. Disciplinary proceedings are sui generis (that is, in a category of their own). Their primary purpose is the protection of the public. Generally, the role of the notifier, such as Mr Draper, is to draw the attention of the regulator to conduct of a registered practitioner which might warrant investigation and disciplinary action. It is the role of the regulator to conduct that investigation, and to act as ‘prosecutor’ in any disciplinary inquiry. Mr Draper had no role, other than in the event he was requested to provide any information in addition to that obtained by the regulator preparatory to the inquiry. (He was not required to give evidence as a witness here, since there was agreement between counsel assisting the BPB, and Mr Simonds’ representative on all factual matters.)
The proceeding in which Mr Draper did have a direct interest was of course his civil action against the builder. As noted, this had been resolved in his favour in 2017.
Here, it is Mr Simonds who is directly affected by the process. He has been the subject of an inquiry, has conceded six of the allegations raised against him, with the seventh allegation being found proved (in part) and a penalty has been imposed on him. And it is Mr Simonds who would of course be affected if a review of the BPB’s decision was to be carried out at VCAT. Although neither he, nor the respondent, seek that the disciplinary process be conducted over again before VCAT, the consequence of extending time would be that these two parties would be required to do that. And again, unless something unforeseen arises, Mr Draper will not participate in the review at VCAT which he will have caused to occur.
So the present circumstances are very different to the usual situation, where the person seeking review is the individual who has been subject to adverse disciplinary action by the regulator.
Any VCAT review would be of limited scope
Further, any such review would be of limited scope. Mr Simonds has accepted six of the allegations (being numbers 1, 2 and 4-7). The residual component of allegation 3 relates to a ‘bottom plate in an ensuite bathroom having been cut back excessively to approximately half its width’. This breach was described in the decision as being minor in nature, but nevertheless made out on the material before the BPB. The penalty imposed was a fine of $288.72. No review has been sought by Mr Simonds.
Hence any review hearing by VCAT would largely or wholly relate to the question of the penalty to be imposed.
Mr Draper’s concern is with the way in which the inquiry process was carried out. He stated in his application that his reasons for making it were:
To create a situation where a fair and unbiased MERITS review is heard into the following failings:
Jurisdictional errors by decision-maker resulting in unlawful decision.
Perceived bias during decision-making process.
Failure to follow prescribed policy.
Failure to consider all available evidence.
Failure to observe VCAT directions made in Draper v BPB.
Failure to properly perform disciplinary functions.
Misleading and deceptive conduct by decision-maker.
From his written and oral submissions, it is clear Mr Draper has long-running and broad ranging grievances against the building regulators, including the BPB and the VBA. He said:
For years I have battled to expose the wrongs I have suffered, only to be met by an unproductive, inefficient, incompetent and dare I say corrupt government agency, hellbent on minimising [the] effect of my complaint on a powerful player within the Victoria Domestic Building Industry.
As the processes have continued it seems additional grievances have arisen. As noted, the regulator’s approach of carrying out a non-statutory ‘Conduct Review’ was in effect overridden by the decision of Senior Member Riegler of 15 September 2017. Mr Draper’s submissions here included one indicating he is unhappy that the BPB information gathered in that process could not be presented at the VCAT hearing.
Mr Draper characterised the non-statutory ‘Conduct Review’ as a ‘secret deal’, which he said ‘would be a hotbed for corruption’.
He stated that his complaint to the Victoria Ombudsman’s Office has been escalated to a full-blown investigation.
He alleged that the procedures set out in the BPB’s ‘Inquiry Manual’ had not been complied with.
Thus it is clear Mr Draper’s purpose in pursuing this application is to raise issues well beyond the actual scope of a review of the hearing of the seven charges against Mr Simonds for breach of regulation 1502(a) of the Building Regulations 2006.
I asked Mr Draper during the hearing whether his concern was that Mr Simonds had not been given a severe enough penalty. His response emphasised the above matters, rather than the severity of the penalty actually handed down. He was not satisfied with the investigation on the bases summarised above, and believes that different and additional charges should have been laid against Mr Simonds.
While the Senior Member accepted Mr Draper’s explanation for his delay, he declined to grant him an extension of time because of the unusual circumstances of the case, the limited scope of the review, which would not include the issues he wished to raise, the fact that the VBA and Mr Simonds did not want a review and that it was likely that Mr Draper would not be able to participate in the review. He stated:[15]
[15]Ibid [66]-[82].
On the face of it, in relation to his own conduct, and the conduct of the respondent, Mr Draper would in normal circumstances have a good argument for an extension of time.
As noted, Mr Draper said that on 11 December 2018, he requested a statement of reasons from the BPB for the decision of 19 November 2018 in relation to Mr Simonds. He said this was framed as a request under s 46 of the VCAT Act. He said he asked again in mid-February, and that on 5 March, he received written reasons. His suspicions were raised by the fact that when the reasons were ultimately produced on 5 March 2019, they bore the date 21 January 2019. This was around the time when the 60 day review period expired. Mr Draper said there was no explanation for the delay.
The respondent did not contend that these assertions by Mr Draper were incorrect. The BPB’s counsel acknowledged the six-week discrepancy between the date on the reasons document, and the date it was given to Mr Draper. Hence it is clear the BPB produced the reasons for decision over two months after the latest date when it was required to do so under s 46 of the VCAT Act.
Also, there is merit in the argument made by Mr Draper, that it was reasonable for him to wait for these reasons, rather than simply lodge a review application, without having received the reasons. That is an acceptable explanation for his delay in making his application to VCAT. Further, Mr Draper has been pursuing this issue for some years, and there is little doubt the VBA was aware that he was not happy with the decision and that there was a high likelihood he would seek to have it reviewed. It could not be said his application to VCAT would have come as a surprise to the respondent.
In my view, however, these matters are all outweighed by the particular unusual circumstances of this case referred to above: This is a disciplinary proceeding in which Mr Draper has no involvement. Also, and more importantly, any such review would have limited scope, and would not deal with the issues which Mr Draper wishes to raise.
In my view, it is appropriate for me to take into account the fact that neither of the two protagonists in this case seek that a VCAT review be conducted. In particular, the regulator, who is given responsibility for the protection of the public in this instance, does not seek that this matter be ventilated again. There would be two unwilling parties participating in a proceeding at the behest of an absent third-party. This is undesirable.
This is a different situation to the one which pertained when Senior Member Riegler made his ruling on 15 September 2017. In that case, the decision being reviewed was the refusal of the regulator to conduct a disciplinary inquiry. The Tribunal had jurisdiction to review that decision, and on analysis, it found that there were sufficient grounds for matters relating to Mr Simonds’ conduct to be the subject of inquiry.
Senior Member Riegler carried out this analysis by considering Mr Draper’s numerous complaints against Simonds, and allocating them into 10 categories. In relation to seven of these, he found that the applicable threshold level was reached whereby further investigation was warranted. This threshold he said was not a high one, although it did require more than a bald assertion. The respondent, the BPB, accepted that the threshold was met, but contended that for other reasons, VCAT should exercise its discretion not to order an inquiry be held. These reasons included the fact that the non-statutory Conduct Review had already been undertaken, and in effect, that the key issues arising from the Wallan building project had already been dealt with. Senior Member Riegler found, however, that the allegations raised by Mr Draper went further than what was considered in the Conduct Review, and that an inquiry should be conducted.
The decision of Senior Member Riegler emphasised that the scope of the inquiry he had ordered to be conducted, and any allegations which comprise the inquiry, were matters for the BPB or the VBA to determine, not VCAT. That is, it was a matter for the BPB, or those assisting it, to determine in detail what allegations should be put as part of the inquiry, not VCAT, and not Mr Draper. That is of course consistent with the role of an agency given the task of carrying out such inquiry processes. Its job is to consider with precision which provisions might have been breached by particular conduct, and to analyse what evidence there is to support particular allegations. It is to be expected that the ultimate form in which the allegations are put will vary from the way in which the matters were raised in the initial complaint.
As noted, that process took place. The allegations raised by Mr Draper, and commented on by Senior Member Riegler were then considered, and ultimately a Notice of Inquiry was drawn up. I note that the matters in the seven categories identified by Senior Member Riegler as warranting further inquiry appear generally to have been reflected in the Amended Notice of Inquiry, which was ultimately considered by the BPB. Of course, in accordance with the statutory framework described above, those allegations did not reflect precisely what Senior Member Riegler had described, nor what Mr Draper had described.
Accordingly, the situation now is different to that which faced Senior Member Riegler. He was presented with a refusal to conduct an inquiry, and with evidence which he found justified an order that an inquiry be carried out. Now, that conduct has been analysed, distilled into allegations, and the inquiry conducted, findings made and penalties imposed. In contrast to the position in August/ September 2017, none of the matters put before me now provide any basis on which it can be concluded the decision of the BPB should be reviewed. The only basis put now is that Mr Draper wants a review to be carried out by VCAT.
Mr Draper seeks to exercise the right which he would have to apply to VCAT for a review of the BPB’s decision on the inquiry (if the application had been made in time) in order to achieve a different outcome, namely exposure of the conduct of the regulator more broadly. But he will not be able to achieve that through this review being conducted.
I accept that in terms of the conventional analysis relating to applications for extension of time, there are several factors in Mr Draper’s favour. His conduct in relation to the delay in lodging the VCAT application was meritorious. The delay in lodging the application is not long in the circumstances. The Building Act 1993 did provide for applications to be made by the person who requested that an inquiry be conducted.
I am nevertheless required to balance the factors for and against exercising the discretion to extend time, taking into account all the circumstances of the case as they appear before me here and now. The situation here is quite different from virtually all the reported cases, including cases referred to in Pizer’s Annotated VCAT Act (sixth edition, edited by E Nekvapil) in which an applicant is seeking to lodge a review out of time in a matter where they stand to be adversely affected by the outcome. Typically, this is as a registered practitioner, whose right to practise is liable to being removed, or subject to conditions, or some kind of penalty being imposed on them. Mr Draper is not in jeopardy of any kind of adverse outcome of that nature here. So the consideration which is paramount in many instances, of justice requiring to be done in relation to potential direct adverse effects on the applicant, is not present here.
The fact that neither of the parties who would be required to be involved in the VCAT review, actually wish to participate in it, together with the narrow scope of any such review, and especially the fact that it would not deal with the matters which Mr Draper has raised in his application, are determinative in this case.
The appropriate way for the matters raised by Mr Draper to be pursued is through an investigation by the Ombudsman, or other person or body with authority to investigate the carrying out of statutory functions by agencies more broadly. The Tribunal does not have a supervisory role of that type. I note Mr Draper’s statement that the Ombudsman is already investigating this matter at his request.
In reaching this conclusion I have placed limited weight on the prejudice which may be caused to Mr Simonds, due to his age (a factor the respondent urged me to take into account).
The questions of law identified by Mr Draper
The questions of law upon which Mr Draper may rely are required by s 148 of the VCAT Act to arise from the orders and reasons the subject of the appeal and cannot relate to matters outside them.[16]
[16]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72.
Mr Draper’s proposed grounds of appeal connected to his questions of law are lengthy, so I will include them in the summary of his submissions dealing with his questions of law in the next section of this judgment.
Did the Tribunal err in deferring the Third Respondent’s obligations under s 49 of the VCAT Act?
The s 49 statement questions of law
The s 49 statement questions of law read as follows:
Question 4
Whether the Victorian Building Authority, represented by Senior Lawyer Stephen Buchanan, erred at law, when refusing to exercise its functions in accordance with the law (s.49(2a) VCAT Act), when the VBA, purportedly acting for the BPB (the actual decision maker) refused to provide s.49 documents which MUST be provided within 28 days of the decision-maker receiving notification of an application for review being made under s.182A Building Act.
Question 5:
Whether VCAT committed a jurisdictional error when failing to properly exercise its powers, refusing to enforce s.49 VCAT Act, where the Victorian Building Authority, purportedly acting on behalf of the Building Practitioners Board (the actual decision maker), refused to provide s.49 documents which MUST be provided within 28 days of the decision-maker receiving notification of an application for review under s.182A Building Act.
Mr Draper’s submissions
In his proposed grounds of appeal accompanying questions of law 4 and 5, Mr Draper submitted that s 49 of the VCAT Act required the VBA to provide him a statement of reasons and every other relevant document in its possession. By refusing to do so, the VBA breached its obligations under the VCAT Act and as a model litigant. The Tribunal committed a legal error by refusing to enforce the obligations imposed by s 49. The documents must be provided within 28 days of the application being received and that time could not be extended. Production of the documents would not be a burden as they were already collected, compiled and referenced. He required the s 49 statement to address the merits of his case.[17]
[17]T 69.
VBA’s submissions
The VBA submitted that questions 4 and 5 were misconceived and disclosed no error of law by the Tribunal. It submitted that ‘the non-production of the s 49 material in these circumstances is…simply a common sense step as part of the orderly conduct of the proceeding.’[18] The Tribunal may extend any time limit fixed by the VCAT Act if the rules permit,[19] and it routinely defers the requirement to file materials.[20] The VCAT Act permits the Tribunal to decide its procedure and requires that it:[21]
…must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
[18]Reasons, [10].
[19]VCAT Act, s 126(2)(a); Victorian Civil and Administrative Tribunal Rules 2018, rule 4.25.
[20]Caves v Transport Accident Commission (Review and Regulation) [2015] VCAT 476, [30].
[21]VCAT Act, s 98(1)(d).
Analysis
The fourth question of law and the associated grounds cannot succeed as they do not contain a question of law about a decision or order of the Tribunal. Rather this question of law addresses whether the VBA breached its statutory obligations and therefore does not state a question of law arising from the Tribunal’s orders.
With respect to the fifth question of law, the Tribunal’s gave its reasons for not ordering a s 49 statement in the following passage:[22]
A third issue was raised by Mr Draper in correspondence, and at this preliminary hearing on 16 October 2019. That is his request that a statement under s 49 of the VCAT Act be provided by the respondent. No s 49 statement has been produced to date. Nor has it been ordered to be produced in any of the prior interlocutory orders which have been made. Order 2 made in chambers on 18 September 2019 noted this as a matter which could be raised at the preliminary hearing. Mr Draper expressed concern that the respondent was in breach of its obligation to produce a s 49 statement within 28 days of receipt of notification from Mr Draper that this proceeding had been commenced.
As stated during the hearing, notwithstanding that production of a set of background materials pursuant to the requirements of s 49 is generally something which the Tribunal requires at an early stage, that is not always the case. In particular, in some situations where preliminary issues have been raised, the Tribunal has not required the respondent to expend the resources necessary to produce that statement, in circumstances where, if the preliminary decision goes a particular way, production of that document will turn out to be unnecessary. The respondent readily acknowledged during the preliminary hearing that if the case proceeds, it will be required shortly to produce a s 49 statement, and assured Mr Draper that it would do so in accordance with any order made by the Tribunal.
Given that preliminary issues are raised in this case, which require the Tribunal’s determination before any ordinary merits review is to be embarked upon, I indicated I do not require a s 49 statement at this point, and would not order it to be produced until the preliminary issues have been determined. As it turns out, no s 49 statement needs to be produced, since I have determined that time should not be extended to bring this application.
Mr Draper laid great stress on this issue, and suggested it is part of what he alleges is grossly unfair and discriminatory conduct towards him by the regulator. However, the non-production of the s 49 material in these circumstances is nothing of that sort. It is simply a common sense step as part of the orderly conduct of the proceeding. Also, I note it appears Mr Draper is quite familiar with the background circumstances to the decision.
[22]Reasons, [7]-[10].
The Senior Member stated that if the case reached the point where he was satisfied that Mr Draper had a proper case, then he would require that a s 49 statement be provided to him.[23]
[23]Transcript of Proceeding (Z219/2019, Draper v Victorian Building Authority, Victorian Civil and Administrative Tribunal, 16 October 2019) 8.
VCAT does have the power to postpone the delivery of the s 49 statement in an appropriate case. However, the s 49 statement is an important right given to persons to enable them to review decisions of administrative authorities. Mr Draper was required to demonstrate the merits of his application and, in the normal course, would have been entitled to the s 49 statement to assist him in doing so. That right was not lost because he was familiar with the background circumstances to the BPB decision. As I later conclude, in my opinion, the Tribunal did not take into account as required Mr Draper’s statutory rights provided for in s 182A and by s 59(1)(b) the VCAT Act to participate in the review. It therefore did not take into account a relevant consideration. If it had, it may well have ordered the VBA to provide Mr Draper with a s 49 statement before ruling on the merits of his application.
The fifth question of law and the associated grounds of appeal are established.
Did the Tribunal err by considering the merits of the case when deciding whether to provide the extension of time?
Mr Draper’s questions of law regarding the Tribunal’s consideration of the merits of his case were as follows:
Question 6:
Whether VCAT committed a jurisdictional error by refusing to accept Draper’s application that time be extended pursuant to s.126 VCAT for Draper to make application for review under s.182A Building Act, when the reasons clearly state that Draper’s reasons for the delay in applying were meritorious, instead falling into error considering irrelevant information regarding the merits of the case.
Question 7:
Whether VCAT committed a jurisdictional error when exercising its review jurisdiction under Part 3 VCAT Act, when rejecting Draper’s application for review on an alleged lack of merit, clearly showing VCAT’s Senior Member Smithers as unfairly having pre-judged Draper’s case, prior to ever making orders to obtain or consider any submissions of the parties regarding the substantiative issues which were to be clarified as part of the applicant’s case.
Question 11:
Whether VCAT committed a jurisdictional error/ failed to recognise jurisdiction in accordance with s.42 VCAT Act, where it asked itself a wrong question/ failed to consider all relevant evidence and misrepresented submissions made by Draper, after refusing to perform its functions, which would have allowed Draper to properly make arguments regarding the merit of his case/application.
Mr Draper’s submissions
Mr Draper contended that he understood the hearing to be a preliminary hearing as the orders of 18 September 2019 stated. The VBA accepted that Mr Draper had an acceptable explanation for his delay, because of the six week delay in providing him with reasons. Mr Draper submitted that that delay put him in a position where he had to seek an extension of time. He argued that if the VBA had not acted unlawfully and had provided him with reasons within time, he would not have had to apply for an extension of time, leaving no opportunity for the Tribunal to dismiss his application at a preliminary hearing. In those circumstances, the Tribunal acted unreasonably in refusing to grant him an extension of time.
Mr Draper contended that the Tribunal only had to consider three issues and he had only been asked to consider them: the VCAT jurisdictional challenges by the VBA; the challenge in relation to his application being out of time; and the VBA’s refusal to provide s 49 documents.[24] The Tribunal was not required to consider the merits of his application. At the time of the preliminary hearing, no submissions had been made to the Tribunal about the substantive issues because the VBA had refused to provide him with the documents he was entitled to receive and which were critical to him being able to address the merits of his application. The Senior Member misdirected himself by failing to consider all of the relevant evidence and refused to order the provision of the s 49 statement. Mr Draper contended that he was not given an opportunity to present evidence or make submissions regarding the ‘merits’ of his application for review, in breach of s 102 of the VCAT Act. While accepting that the merits of the substantive application could be properly taken into account,[25] Mr Draper submitted that the Tribunal fell into error by considering irrelevant information about the merits of his case. The Senior Member should not have taken into account the fact that neither of the two protagonists sought a review of the BPB’s decision. Both stood to have acts of impropriety and non-compliance with the law exposed. Mr Draper had an interest in ensuring that the VBA and the BPB were acting, or had acted, properly and that only competent and suitably qualified building practitioners were allowed to practise in the building industry. To have refused an extension of time and to state that he had no evidence of the merits of Mr Draper’s case was unreasonable, particularly as the Senior Member had not ordered the s 49 documents to be provided.
[24]Plaintiff’s Notice of Appeal filed 27 July 2020.
[25]T 98.
Mr Draper contended that the preliminary orders did not advise him, and he was unaware, that the merits of his application were able to be raised in the preliminary hearing. He was a self-represented litigant and the Senior Member should have adjourned the hearing and ordered the VBA to provide him with the s 49 documents after which he should have been allowed to address the merits of his case. The Senior Member refused the application for an extension of time based on merit, despite Mr Draper having met every other requirement to obtain the extension.
Mr Draper described the merits of his case as including that the BPB had not conducted a proper inquiry, in which it called no expert or other evidence. The VBA refused or neglected to take a witness statement from Mr Draper. He was not called to give evidence or to provide a victim impact statement.[26] But the effect of the BPB’s findings was serious and Mr Simonds remained registered without any restriction on his registration. The BPB’s decision had not achieved the purpose of a disciplinary tribunal in protecting the public by making orders which would prevent persons who were unfit to practise from practising thereby maintaining appropriate standards in the building industry. His motives for applying for review of the BPB’s decision supported the Government’s efforts to improve the consumer protection framework within the building industry and were directed at ensuring that the BPB implemented recommendations and undertakings made to Parliament, via the Victorian Auditor-General’s Office (‘VAGO’). The Senior Member omitted to consider Mr Draper’s submission in this regard, which was based on the VAGO’s recommendations.[27]
[26]Singleton v Victorian Building Authority [2019] VSC 416, [29].
[27]The VAGO’s Report into Victoria’s Consumer Protection Framework for Building Construction (May 2015) was admitted as part of this proceeding’s Court Book: Court Book, Draper v Victorian Civil and Administrative Tribunal & Ors (Supreme Court of Victoria, S ECI 2020 03187, Ginnane J, 7 July 2021) (‘CB’) 999.
In other similar cases, the VBA had acted differently when an applicant sought an extension of time and was treating Mr Draper in a discriminatory manner. For example, in King v Victorian Building Authority,[28] the VBA did not oppose an extension of time as a matter of course.
[28][2019] VCAT 353.
VBA’s submissions
The VBA submitted that Mr Draper’s substantive application should have been summarily dismissed because he did not have standing under the post-amendment Act. I consider the issue of the Tribunal’s jurisdiction to determine Mr Draper’s application and his standing later in this judgment. But the VBA also argued that the lack of merits of Mr Draper’s application was a relevant factor in deciding his application for an extension of time. At the Tribunal hearing, the VBA did not contend that there was no acceptable explanation for Mr Draper’s delay.
The VBA submitted that the merits of Mr Draper’s substantive application were slim at best, and an extension of time would prejudice both Mr Simonds, the subject of the BPB decision, and the VBA. Since November 2018, Mr Simonds had been entitled to proceed on the basis that the BPB’s decision was final. The VBA was also entitled to act on the basis that the matter had been finalised, particularly as the BPB had been abolished and the inquiry process repealed.
If Mr Draper’s application were to proceed to hearing, the Tribunal would have to decide whether the BPB’s decision was the correct or preferable decision. Because the BPB’s decision followed Mr Simonds’ plea of guilty to all but one narrow allegation, it was principally concerned with the appropriate penalties, but Mr Draper had made no submission about that issue. When asked by the Senior Member, Mr Draper did not agree that his case was that the penalties imposed on Mr Simmonds were ‘too soft’. Rather, he sought to challenge the amended Notice of Inquiry on the ground that it did not include relevant allegations, but that was not a matter that the Tribunal could consider. His complaints about unfair and biased decision-making by the BPB and the Tribunal were conspiratorial, vexatious and without substance.
Mr Draper was not denied procedural fairness, as the VBA’s written submissions addressed the merits of his proceeding and thereby gave him notice that they were relevant to whether an extension of time should be granted.
The VBA also submitted that the Tribunal was entitled to find that there was no utility in extending time because Mr Draper wanted to argue matters other than the amount of the penalty that should be imposed on Mr Simonds, which was the one issue that he might be able to address.
Analysis
The Tribunal acknowledged and accepted Mr Draper’s explanation for his delay:[29]
I accept that in terms of the conventional analysis relating to applications for extension of time, there are several factors in Mr Draper’s favour. His conduct in relation to the delay in lodging the VCAT application was meritorious. The delay in lodging the application is not long in the circumstances. The Building Act 1993 did provide for applications to be made by the person who requested that an inquiry be conducted.
[29]Reasons, [78].
However, the Senior Member decided that, on balance, it should not exercise its discretion to extend time.[30] I have set out those parts of his reasons, but I will repeat one paragraph:[31]
The fact that neither of the parties who would be required to be involved in the VCAT review, actually wish to participate in it, together with the narrow scope of any such review, and especially the fact that it would not deal with the matters which Mr Draper has raised in his application, are determinative in this case.
[30]Ibid [79]-[83].
[31]Ibid [80].
The Senior Member noted that Mr Draper would not be at risk of an adverse outcome, in the same way as a building practitioner challenging an adverse outcome would be. He would have no involvement in any review, and he would not be able to agitate the questions that he wished to. Neither Mr Simonds nor the VBA, who would be involved in a review, wanted it to occur.
In my opinion, the Tribunal did not adequately take into account that if Mr Draper had brought his application in time, he would have been entitled to a review as of right. This was an important consideration because the Tribunal accepted his explanation that his delay was due to the late provision of the BPB’s reasons. While the Tribunal acknowledged that Mr Draper had a right under the pre-amendment provisions, if he had exercised it in time,[32] it did not adequately take this statutory right into account as a factor that might support his application for an extension of time. Rather, it placed weight on why that statutory right would be difficult to implement, because, for instance, Mr Simonds and the VBA did not want a review to occur. While Mr Draper would not be able to raise all his complaints in a statutory review, Parliament had given him the statutory right to the review and, as I later decide, it was an accrued right that he could still exercise. In my opinion, in those circumstances, it was inappropriate for the Tribunal at a preliminary hearing to determine that Mr Draper’s application for an extension of time should not be granted because of perceived issues about how the review would be conducted, what purpose it would have and whether Mr Draper could participate in it. This approach overlooked, or did not properly consider, that Parliament had given a person in Mr Draper’s position the right to seek a statutory review.
[32]Ibid [41], [77].
I also consider that, in assessing Mr Draper’s application, the Tribunal erred in concluding that ‘unless something unforeseen arises, [he] will not participate in the review at VCAT which he will have caused to occur’.[33] As Mr Draper submitted, he would be a party to the review proceeding in VCAT because of s 59(1)(b) of the VCAT Act, which provides that an applicant for review is a party to the proceeding.[34] He had applied to the Tribunal for review and the enabling provision, s 182A(3), gave him the right to a review, which, as I later conclude when considering the jurisdictional argument, is an accrued right. In any event, he could apply to the Tribunal for leave to intervene under s 73(3). He was after all the complainant whose complaint had led to the BPB decision. In failing to take this role available to Mr Draper into account, the Tribunal failed to have regard to a relevant consideration.
[33]Ibid [50].
[34]I discussed with counsel for the VBA the role that Mr Draper might play in a review by VCAT at T 141-5.
If a review occurred, the Tribunal could decide what role Mr Draper would play as a party or intervener, what issues of relevance he could raise and how long he would have to argue them as s 98 of the VCAT Act gives it wide powers over its procedures. It could decide that matters which he wished to raise were not relevant as it would not be conducting an inquiry into the Victorian building industry. If Mr Draper’s application proceeded to a hearing, the VBA would be expected to present the allegations in the Notice of Inquiry to the Tribunal and explain its case. Mr Simonds, who would need to be notified of the hearing, would be entitled to respond. He could, if he chose, repeat the admissions of contraventions that he had made to the BPB. But Mr Draper would at least have the right to be heard about the appropriate outcome of the review and present relevant evidence. He could play the role of contradictor in respect of relevant issues. With respect, I do not agree with the Tribunal that ‘unless something unforeseen arises, [he] will not participate in the review at VCAT which he will have caused to occur’.[35]
[35]Reasons, [50].
The fact that Mr Draper wished to raise issues that would not be relevant to the review, was not, in my opinion, a reason to refuse him an extension of time. If the allegations, or any of them, made against Mr Simonds were proved or admitted on review, the Tribunal would have to decide what disciplinary action to take against him. Mr Draper would be entitled to address that issue, even though it was not his top priority. His response to the Senior Member’s question to the effect that he was not saying that the penalty against Mr Simonds was ‘too soft’ has to be seen in the context that he understood that he was attending a preliminary hearing and that other issues or complaints were his priority. His response should not be taken as a relinquishment of his right to seek a review, or a right to address the issue of penalty. It is not uncommon for self-represented litigants to have difficulty in accepting the limitations of a Tribunal’s or Court’s jurisdiction or the limits of their rights. However, the Tribunal can give appropriate directions to limit any review to relevant matters and the litigant must accept those directions. Mr Draper was dissatisfied with the BPB’s decision and the case presented to it. He has broader concerns with the regulation of the building industry, but that was no reason not to let him have the review that Parliament gave him. The Senior Member noted Mr Draper was not in the same position as a builder who had been penalised, but his partly constructed house had to be demolished and that is no small thing.
Section 182A creates an unusual structure by giving Mr Draper, who was not directly involved in the BPB hearing, a right of review in VCAT, thereby becoming a party to the review. But, that is not that so surprising as Mr Draper was the original complainant whose complaint led to the BPB hearing. So Parliament had a reason for giving him a right of review and it is for VCAT to give effect to this tripartite structure. The fact that such a right does not exist under the post-amendment Act is not relevant to the present issue.
While I accept that the VBA’s submissions, which Mr Draper received, included submissions about the merits of his application, it appears that he did not fully understand what the merits entailed, or what matters were relevant at a preliminary hearing. That may have been his own fault, but he was a self-represented litigant who had not received a s 49 statement. The fact that he wanted to achieve more in the review hearing than he could was not a valid reason to prevent him exercising the rights that he had, if the Tribunal was otherwise persuaded that he should be granted an extension of time.
The discretionary principles relevant in deciding whether to grant an extension of time include the merits of the substantive application, because if it lacks merit, there is no point in granting an extension of time. But if the merits of the case are being decided at a preliminary hearing, especially in an unusual case, the Tribunal must make clear, particularly to self–represented litigants, the issues or matters they need to address.
In summary, I consider, with respect, that the Tribunal, in refusing to grant Mr Draper an extension of time to commence his proceeding, erred as to the role he might play in the Tribunal’s review of the BPB’s decision. It also failed to take adequately into account that the Building Act gave him a right of review if he made his application in time having accepted his explanation for delay. Rather, the Tribunal identified difficulties in how the review would be conducted or its utility. Those difficulties were to some extent inherent in the tripartite structure created by Parliament and were matters for the Tribunal to manage if it otherwise decided to grant an extension of time.
Questions of law 6 and 11 and the associated grounds are established, save that in the case of question of law 11, the assertion that the Tribunal misrepresented Mr Draper’s submissions has not been established. Question of law 7 has not been established, as it has not been established that the Senior Member did prejudge issues, although I have concluded that he erred in considering the extension of time application.
The orders that I will make include remitting the proceeding to the Tribunal to rehear Mr Draper’s application for an extension of time to commence his application. It will be for the Tribunal to exercise its discretion to decide that application in accordance with law. It will also be for the Tribunal to decide whether a s 49 statement should first be ordered.
Did the Tribunal err in failing to recognise or adopt a merits review process or by failing to have regard to policy?
Mr Draper’s eighth and ninth questions of law state:
Question 8:
Whether VCAT failed to properly exercise its review jurisdiction under Division 3 VCAT Act (Review jurisdiction), when it wilfully refused to conduct its ‘merits’ review proceedings in a proper inquisitorial manner and in a way that aligns with the purpose and function of ‘Merits review’ proceedings, where they instead force an adversarial contest more akin to an ‘appeal by way of re-hearing’ on parties, in place of a proper merits review proceeding.
Question 9:
Whether VCAT failed to recognise jurisdiction relating to its Merits review functions under Part 3 VCAT Act, not acting consistently in performing its functions, refusing to address or consider legally prepared, published public policy, specifically written to guide and assist the original decision-maker in Draper’s case, despite VCAT being seen to be aware of the importance of considering Policy in other like cases.
Mr Draper’s submissions
Mr Draper submitted that VCAT had refused to acknowledge the extent and scope of its review jurisdiction, being review on the merits, and the significance of relevant policy in that review. The Tribunal should have dealt with the VBA’s refusal to co-operate fully in review hearings and accepted Mr Draper’s right to act as contradictor or intervener. It should have considered all issues, not just the penalty to be imposed on Mr Simonds, as it possessed all the powers of the original decision-maker.
Mr Draper argued that the Senior Member failed to properly consider the merits of his case and take into account policy documents. He had neglected to carry out a proper merits review and to accept his role in assisting decision-makers to improve their decision making, policy and processes. Much of Mr Draper’s submissions in respect of these grounds was not relevant in this proceeding because they concerned Senior Member Riegler’s decision.
Mr Draper submitted that, if the Tribunal had properly considered policy, given proper direction to the BPB and taken a more constructive role in assisting it to properly recognise its responsibilities, the BPB may have been more likely to make a lawful decision.
Mr Draper also argued that the allegations brought against Mr Simonds did not properly cover the complaints that he had raised and the VBA had not properly investigated them. The BPB should first have considered the evidence, then drafted appropriate allegations and then decided whether those findings, or some of them, justified disciplinary action.
Mr Draper contended that VCAT had erred in directing that his criticisms of the BPB’s decision based on the ‘BPB Corporate Governance Manual’ and the ‘BPB Inquiry Manual’ were not relevant to his application for orders that BPB hold an inquiry that was ultimately determined by Senior Member Riegler. But this complaint is not relevant to the present application.
VBA’s submissions
The VBA submitted that the Tribunal was not bound to conduct a substantive hearing, because it was considering an application for an extension of time. It was for the Tribunal to decide what matters were relevant to determine the extension of time application. The Tribunal’s approach in other proceedings was not relevant. Question 8 provided no ground for impugning the Tribunal’s decision.
Analysis
The Tribunal only had jurisdiction to review the questions or issues before the BPB.
This limitation on the review function was discussed in Shi v Migration Agents Registration Authority,[36] where the High Court considered the Administrative Appeal Tribunal’s review jurisdiction, which is similar to VCAT’s. Kiefel J, with whom Crennan J agreed, said:[37]
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision.
[36](2008) 235 CLR 286.
[37]Ibid [142].
Kiefel J also said:[38]
…[I]t is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.
[38]Ibid [133].
The Tribunal is subject to the same general constraints as the original decision-maker. In Frugtniet v Australian Securities and Investments Commission,[39] the High Court emphasised that in that case the AAT could only decide the question which the original decision-maker had been required to decide. The plurality stated:[40]
The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.
[39](2019) 266 CLR 250.
[40]Ibid [51] (Bell, Gageler, Gordon and Edelman JJ).
The question for VCAT to decide was whether Mr Draper should be granted an extension of time. It was not permitted to conduct a substantive review of the BPB’s conduct or to consider policy that was not relevant to the extension. If an extension had been granted, VCAT would have had to decide whether the allegations had been proved or admitted and what penalty should be imposed.
The Tribunal’s conduct of previous directions hearings in which limitations were placed on reliance on policy documents was not relevant to the extension of time application. The Tribunal did not have to address questions of non-compliance with policy. Much of Mr Draper’s arguments in this regard concerned Senior Member Riegler’s decision and are therefore not relevant.
Questions of law 8 and 9 and the associated grounds are not established.
Did the Tribunal err in failing to recognise Mr Draper’s right to act as a contradictor or an intervener?
Mr Draper’s tenth question of law was as follows:
Question 10:
Whether VCAT made a jurisdictional error when failing to properly recognise the right of the applicant to act as ‘contradictor’ or ‘intervener’ in Merits review hearings under Part 3 VCAT Act, when s.182A Building Act clearly allows for 3 specific ‘parties’ to have standing to apply for review being; the subject of the decision, the Victorian Building Authority or the person who requested that the Inquiry be conducted.
Mr Draper’s submissions
Mr Draper argued that he would be entitled to take part in a review under s 182A and that the Senior Member erred in deciding that he would not. Section 182A gave three parties standing to apply for review of BPB decisions: the subject of the inquiry and decision, the VBA, and the person making the application. He submitted that he had a right to act as an intervener or contradictor in the matter before the Tribunal as the person who made the application and the Tribunal fell into error by not recognising that right. Under s 59(1)(b) of the VCAT Act, Mr Draper would be a party to the review proceeding and he had a right to prosecute the matter himself. He could make a victim impact statement. He argued that VCAT had previously recognised the role of an applicant as an intervener or contradictor.
VBA’s submissions
The VBA submitted that the Tribunal correctly identified the decision under review as the BPB’s decision to find allegations against Mr Simonds proved, and to impose a penalty as a result. It submitted that the Tribunal made a factual finding, based on the conduct of the inquiry, that the nature of any controversy in the Tribunal would ‘largely or wholly relate to the question of the penalty to be imposed.’[41] However, the Tribunal found that Mr Draper was seeking to address various ‘long-running and broad ranging grievances against the building regulators, including the BPB and the VBA’,[42] and that his purpose was to raise issues beyond the scope of a review of the BPB’s decision.[43] As such, the Tribunal’s finding that Mr Draper would be ‘an absent third-party’ was valid, as was its conclusion that he would only participate in the review if something unforeseen arose, such as him wanting to address on penalty.
[41]Reasons, [53].
[42]Ibid [55].
[43]Ibid [62].
The VBA submitted, in the alternative, that if there was any error of law by the Tribunal in this regard, it did not vitiate its decision, as the Tribunal had set out three determinative reasons for refusing the extension of time:[44] first, that neither of the parties who would be required to be involved in the VCAT review actually wished to participate in it; secondly, the narrow scope of any such review; and thirdly, that it would not deal with the matters which Mr Draper raised in his application.
[44]Citing Reasons, [80].
Analysis
As previously mentioned, I consider that Mr Draper was a party to the review proceeding in VCAT under s 59(1)(b) of the VCAT Act. Alternatively, he could seek leave to intervene in the proceeding. I do consider that the Senior Member erred in not giving appropriate consideration to Mr Draper’s role as a party to the review proceeding as I have explained when considering questions of law 6, 7 and 11. For the reasons that I gave in respect of those questions, I consider that Mr Draper has therefore established question of law 10 and the associated grounds.
The jurisdictional argument: did Mr Draper’s review application have to be determined under the pre-amendment or the post-amendment Act?
The VBA sought summary dismissal of Mr Draper’s application on the basis that he no longer had a right to seek review of the BPB’s decision under s 182A(3)(c),[45] and that he lacked standing under the provisions of the post-amendment Act.
[45]The application had been amended to be made under s 182A(3)(b) by order of the Tribunal made on 4 May 2017.
I accept that the VBA in responding to an application for leave to appeal may contend that the Tribunal wrongly decided that it had jurisdiction to hear and determine the application, especially when it unsuccessfully put that argument to the Tribunal.
The Senior Member described his conclusion about Mr Draper’s right to bring his review application in the following passage:[46]
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.
[46]Reasons, [40]-[41].
The Senior Member explained his conclusion as follows:[47]
[47]Ibid [23], [25], [27]-[33], [35], [38]–[41].
Thus, the BPB inquiry process which Mr Draper had instigated three and a half years before, in February 2015, was finally completed in November 2018. However, Mr Draper was not satisfied with it, and he took further steps.
…
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).
…
Tribunal’s jurisdiction to hear this application – transitional provisions
…
In my view, the most relevant transitional provision for consideration is clause 4(4). This requires that I determine what is the ‘time within which an application for review could be made under s 182A of the old provisions’. If that is on or after the relevant commencement day (being 1 September 2016) then the application may be made and dealt with in accordance with the old provisions.
It was common ground that under the old s 182A, the time limit for bringing an application to VCAT for review was 60 days after the relevant decision was made. Here, the BPB’s decision was made on 19 November 2018. Sixty days after that is 18 January 2019.
Looking first at the text of clause 4(4), the plain meaning of the words in the first two lines is that they relate to the time limit for bringing an application under the old s 182A (which was 60 days) rather than referring to the date on which s 182A was repealed.
In my view, the effect of this provision is that Mr Draper had 60 days after 19 November 2018 to lodge an application for review of the BPB’s decision on Mr Simonds’ disciplinary Inquiry of 19 November 2018.
The contrary view is that since section 182A was repealed from 1 September 2016, then the time within which an application for review could be made must have expired long before 2019. In the hearing, the example was discussed of a decision of the BPB made in late August 2016, such that an application for review could be brought was up until late October 2016.
Yet in this case, the argument runs, because the BPB decision was not made until November 2018, the time within which an application for review could be made under s 182A expired long ago. Therefore, clause 4(4) does not apply, and so the application may not ‘be made and dealt with in accordance with the old provisions’.
However, in my view, on analysis, that argument is circular, since, in seeking to determine whether or not s 182A continues to apply in the present circumstances, its starting point is an assumption that it does not, because it has been repealed. But the purpose of transitional provisions is to specify those exceptional circumstances where the repealed provisions nevertheless continue to operate.
…
In my view, for the interpretation proposed by the respondent to find favour in this case, it would be necessary to identify a point at which a person in Mr Draper’s position lost the ability to commence a VCAT proceeding. Yet on the view propounded by the respondent, no such point is apparent.
…
The respondent’s argument has the effect that while the inquiry may be properly conducted by the BPB over two years after the coming into effect of the new regime (which abolished the BPB save for transitional matters such as this), the review right which is part of the old regime is regarded as having disappeared. Rhetorically, if despite the 1 September 2016 repeal, the BPB can nevertheless continue to operate in this transitional situation, and all the provisions enabling that continue to apply during this extended period, why should the review provision be treated differently?
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.
The transitional provisions
The Building Legislation Amendment (Consumer Protection) Act 2016 commenced on 1 September 2016 and inserted Schedule 8, containing transitional provisions, into the Building Act 1993 including:
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 had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.
(2) A determination of the Building Practitioners Board referred to in subclause (1) is taken—
(a) in the case of a decision under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; 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.
The recent Court of Appeal judgment in Douglas v Harness Racing Victoria[48] concerned persons charged with serious offences under the Racing Act 1958. That Act was amended before the hearing of the alleged offences occurred and changed the right of review available to persons found to have committed serious offences. In accordance with the transitional provisions, the charges were heard under the pre-amendment scheme and the applicants were found guilty of certain charges and disqualified for specified periods. The amending Act limited their right of review to the new Victorian Racing Tribunal to questions of penalty, whereas previously they had a right of review of both liability and penalty to VCAT. The applicants applied for review of their liability and penalty to VCAT, but it decided that it lacked jurisdiction. Rights to merits review by VCAT were expressly preserved for decisions made before the commencement of the Act, but not for pending decisions, meaning when applications had been made, but no hearing or decision had occurred. The relevant question was whether the applicants had ‘an accrued right’ to merits review by VCAT by reason of s 14(2)(e) of the Interpretation of Legislation Act 1984 (‘ILA’), a provision that Mr Draper relied on in his written submissions. It provides:
[48][2021] VSCA 128 (‘Douglas’).
14 Provision as to effect of repeal etc. of Acts
…
(2) Where an Act or provision of an Act –
…
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
…
any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.
The Court of Appeal decided that a right to review by VCAT accrued when a proceeding was pending, although in that case the transitional provisions were silent as to pending decisions. The Court decided that the amending legislation and the ILA were to be read together in a single act of construction. It considered that if the right of review was not preserved, an anomalous outcome would be produced, discordant with the context and purpose of the legislation.
The Court of Appeal decided that a right of review to a tribunal accrued when a matter was before the primary decision-maker.[49] Such a right lies within the ‘rights’ to which s 14(2)(e) of the ILA applies.[50] The amending Act did not clearly provide that the right to review by VCAT, which had accrued to the applicants, was not preserved by operation of s 14(2) of the ILA, but was simply silent as to that class of case of which the present was an example. The gap was filled by s 14(2) of the ILA.
[49]Ibid [50]–[51].
[50]Ibid [52].
I gave the parties an opportunity to make written submissions about this decision as it had not been discussed at the hearing.
VBA’s submissions on jurisdiction
The VBA contended that the decision to undertake the inquiry was made by the Tribunal, standing in the shoes of the BPB on 15 September 2017. While the decision was made well after 1 September 2016, the ‘commencement date’ referred to in the transitional provisions, the decision was deemed by the effect of s 51(3)(b) of the VCAT Act to have been made on 11 May 2015, being the date on which the BPB decided not to undertake an inquiry. Thus, the BPB had the power under cl 4(1) of the transitional provisions to hear and determine the Inquiry. The Inquiry decision was made on 19 November 2018 and was a decision under s 179(1) of the pre-amendment Act. However, by operation of cl 4(2)(a) of the transitional provisions, the Inquiry decision was taken to be a decision of the VBA under s 182E of the Building Act. Put another way, because the decision was made after 1 September 2016, it was not a decision of the BPB under s 179(1) of the pre-amendment Act, but was deemed to be a decision of the VBA and made under s 182E of the Building Act:
182E Taking disciplinary action after show cause notice
(1)If the Authority believes a ground exists to take disciplinary action against the registered building practitioner, the Authority may—
(a)take the disciplinary action proposed in the show cause notice; or
(b)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).
(2)The Authority must, as soon as practicable after making its decision, give a written notice about the decision to the registered building practitioner.
(3)The notice must state the following—
(a)the decision;
(b) the reasons for the decision;
(c) that the practitioner may apply under Division 4 for review of the decision within 28 days.
(4)The decision takes effect on the later of—
(a)the day the notice is given to the registered building practitioner; or
(b) the day stated in the notice.
The VBA submitted that, as the BPB decision was to be considered as a decision of the VBA to which s 182E of the post-amendment Act applied, s 182A of the pre-amendment Act did not give Mr Draper any right of review. Any right of review available to him could only be that conferred by s 186 of the post-amendment Act, which was available to a person directly affected by a decision. But, the term ‘directly affected’ narrowed the class of persons who could seek review and did not apply to Mr Draper.
The BPB’s decision and orders were made in November 2018 more than two years after the commencement date of the amending Act of 1 September 2016, so cl 4(4) of the transitional provisions did not apply to them, as it only applied to inquiry decisions made before the commencement date. The amending legislation substituted a new scheme, abolished the BPB and transferred its function to the VBA. Mr Draper had no accrued right to review that could be preserved by s 14(2)(e) of the ILA as a right to bring a proceeding in the future is not an accrued right. The transitional provisions exhaustively provide for the circumstances in which the pre-amendment provisions operate. Parliament repealed s 182A(3) and did not include any equivalent right of review in the post-amendment Act. A person cannot revive the review rights in the pre-amendment Act by making a new application.
The VBA relied on the decision in Thomas v Victorian Building Authority,[51] (‘Thomas’) in which the VBA had issued a Show Cause Notice to Mr Thomas on 28 June 2019 under s 182 of the post-amendment Act. Kennedy J rejected the plaintiff’s argument that the inquiry process should have occurred under the pre-amendment Act as no inquiry had commenced prior to 1 September 2016. The only thing which had occurred prior to that date was the plaintiff’s conduct which was the subject of the inquiry. That conduct did not give rise to an accrued right under the ILA. In any event, there was a clear expression of contrary intention to prevent the operation of s 14(2)(e). Her Honour stated that:[52]
the legislation, including the transitional provisions, evinced an express, clear manifestation of an intention to abrogate any accrued “liability” to sanctions available under the former provisions by exhaustively providing for the circumstances in which the old provisions can operate.
[51][2020] VSC 150 (‘Thomas’).
[52]Ibid [122].
Mr Draper’s submissions as to jurisdiction
Mr Draper relied on the Senior Member’s decision that he had a right to seek review under the pre-amendment Act.
In his extensive written submissions concerning Douglas, Mr Draper submitted that his existing rights could only be limited by clear legislative intention, which was not present in this case. Even if he did not have accrued rights under s 14(2)(e), s 182A was enlivened and had been before the BPB’s decision. Because no decision had been made, he had the right to apply for review of the BPB’s failure to conduct the Inquiry within a reasonable time. He also submitted that under the transitional provisions, if the old Act applied, all its provisions applied.
Mr Draper also made submissions as to why he was an ‘affected person’ within the definition in s 184 of the post-amendment Act. He had made the complaint, which led to the Inquiry, and s 183 gave him the right to receive a Notice of Decision. He argued that if an ‘affected person’ was only a person who was ‘directly affected’ by a decision of the VBA, then s 186(2), which gave a right of review to affected persons who are not eligible to apply for internal review, had no utility as all persons ’directly affected’ have a right to make application for internal review.
Analysis of jurisdictional issues
The VBA accepted that, applying the reasoning in Douglas, Mr Draper’s contingent or inchoate right as at 31 August 2016 to seek review of the likely future decision of the Board, pursuant to s 182A(3) of the pre-amendment Act, was an accrued right within the meaning of s 14(2)(e) of the ILA. However, it argued that the post-amendment Act, including the transitional provisions contained in its Schedule 8, evinced a ‘contrary intention’ within the meaning of s 14(2) of the ILA. Therefore, any accrued right of Mr Draper to seek review of the BPB’s ultimate decision did not survive the repeal of s 182A of the pre-amendment Act.
The VBA relied on the decision in Thomas for the proposition that the transitional provisions in Schedule 8 to the post-amendment Act were exhaustive.[53] In that case, Kennedy J stated:[54]
The specificity with which these provisions are dealt with suggests very clearly that the old provisions are to have no other ongoing effect. It would otherwise be unnecessary to make such specific provision for their continuing operation.
[53]Thomas, [120]-[122].
[54]Ibid [121].
As mentioned, Thomas concerned the continued operation of the penalties or sanctions available under the pre-amendment Act. The Court of Appeal in Douglas explained its rationale as follows:[55]
Similarly, in Thomas v Victorian Building Authority, upon which the judge and the respondent also relied, no inquiry had been commenced when the relevant review provision was repealed. Again, the plaintiff had taken no step, and none had been taken against him, under the relevant regime before it was amended. Any question of review was therefore remote and entirely hypothetical.
[55][2021] VSCA 128, [48].
In this case, Mr Draper took a step under the pre-amendment Act by commencing his review application before the commencement day, a fact situation distinguishable from Thomas. The Court of Appeal’s explanation of Thomas suggests that its observations about the transitional provisions having ‘no other ongoing effect’ should be read as directed to the ongoing effect of the sanctions contained in the pre-amendment Act.
The transitional provisions in cl 2(1) provide that ‘[t]his Schedule does not affect or take away from the Interpretation of Legislation Act 1984’. In my opinion, the reasoning in Douglas establishes that Mr Draper has an accrued right under s 14(2)(e) of the ILA to seek a review of the BPB decision under the pre-amendment Act.
Accordingly, I agree with the Senior Member that Mr Draper had a right to seek review of the BPB decision before VCAT, but I do so on a different basis.
I add that I accept the VBA’s submission that the function of s 186(2) of the post-amendment Act is to provide an external review right where an ‘affected person’ has no right to seek internal review of a reviewable decision.
Remaining questions of law
Mr Draper’s remaining questions of law are as follows:
Question 1:
Whether VCAT Deputy Registrar Lee Paris, failed to properly recognise and exercise the VCAT’s review jurisdiction under Part 3 VCAT Act, when asking itself incorrect questions such as ‘whether Draper was directly affected by the decision of the original decision-maker, where s.5(b) VCAT Act states:
‘the person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.’
Question 2:
Whether VCAT made an error of law when it failed to properly perform its functions pursuant to Division 3 VCAT Act, where VCAT refused Draper’s application after determining that Draper was not a person affected by the original decision, as he was not ‘directly’ affected (as per s.184 new provisions), where such a definition is not compatible with the long standing legally accepted definitions of when a person is affected by a decision.
Question 3:
Removed under instruction from Court Registry.
Submissions
Question 1
Mr Draper contended that he was to be regarded as directly affected by the BPB’s decision as every person has an interest in government agencies acting properly.
Question 2
Mr Draper submitted that s 5 of the VCAT Act clearly stated that a person does not have to be directly affected, to be considered a person whose interests have been affected by the decision, commonly referred to as an affected person. He contended that the new definition of affected person in s 184 of the post-amendment Act was incompatible with the jurisdiction in which it was to be administered, fettered the powers of the Tribunal and caused conflicts with existing definitions of when a person’s rights were to be taken as affected.
Mr Draper submitted that the Tribunal’s Registry made an error of law in refusing to accept his application on the basis that he was not ‘directly’ affected, as that definition was inconsistent with the longstanding legal definition of when a person was affected.
The VBA submitted that, since the Tribunal Registry’s decision to refuse to accept Mr Draper’s application for review was overturned by internal review, any error in the Registrar’s approach did not arise in this proceeding.
Analysis
The Tribunal Registry’s decision to refuse to accept Mr Draper’s application no longer stands, and has no further effect on this proceeding or to a challenge to the Senior Member’s orders. Thus, Mr Draper’s question of law 1 and the associated grounds are not established.
I have decided that VCAT had jurisdiction to hear and determine Mr Draper’s application, but under the pre-amendment provisions. VCAT did not consider Mr Draper’s alternative basis relying on the post-amendment provisions and his argument that he was directly affected by the BPB decision within the meaning of the term ‘affected person’ in s 184 of the post-amendment Act. Therefore, no error about that issue affects its orders. However, for the sake of completeness, I will state that I do not consider that Mr Draper was directly affected by the BPB decision. I consider that the meaning of that term appears from the context of the legislation and is intended to narrow the class of persons who can seek review. The persons directly affected were the parties to the BPB Inquiry, Mr Simonds and the VBA.
Mr Draper relied on s 5 of the VCAT Act which gives some definition to the word ‘interests’ where an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. But s 5 cannot apply here. In the post-amendment Building Act the different term ‘affected person’ is defined by s 184 to mean that persons who are directly affected have a right of review. Section 185(2) of the post-amendment Act provides that a person who is directly affected by a reviewable decision may apply to the VBA for an internal review of the decision. Under s 186(2) an affected person, which means a person directly affected, who was not eligible to apply for internal review of a reviewable decision, may apply to VCAT for review of the review decision. The terms used in the post-amendment Act, differ from the terms used in s 5 of the VCAT Act.
Question of law 2 and the associated proposed grounds of appeal are not established.
Did the VBA’s solicitor breach the overarching obligations contained in the Civil Procedure Act 2010?
Question 12
Question of law 12 alleged breaches of the Civil Procedure Act but that cannot be a matter of appeal from VCAT.
Question 12:
Whether the evidence before the court warrants an inference that Victorian Building Authority, via lawyer Stephen Buchanan, has breached Part 2.3 – Overarching obligations - Civil Procedures Act 2010, where Buchanan:
- Despite s.18, made a claim to the Court and Tribunal that does not, on the legal and factual material, does not have proper basis.
- Despite s.20, refused to cooperate in a civil proceeding, when refusing to provide s.49 documents as required by the VCAT Act.
- Despite s.21, elected to mislead the VCAT regarding its jurisdiction, acting contrary to VBA submissions in other like for like cases.
- S.23 refusing to narrow issues that are in dispute, instead preferring the unrepresented litigant to have to endure the VBA’s arbitrary enforcement of the law.
- S.26 – despite being obligated to produce all documents relevant to the resolution of the dispute, Buchanan refused to do so, seriously disadvantaging Draper, ultimately allowing VCAT to dismiss his application and the VBA to avoid the scrutiny which Draper has right to apply.
Submissions
Mr Draper submitted that the evidence before the Court warranted an inference that the VBA breached its overarching obligations under the Civil Procedure Act 2010 (the ‘Civil Procedure Act’). In particular, he submitted that a lawyer, acting on behalf of the VBA, did not have a proper basis for his claims, refused to cooperate by providing s 49 documents, misled the Tribunal regarding its jurisdiction, refused to narrow the issues in dispute, and did not produce all documents relevant to the resolution of the dispute.
The VBA submitted that s 4(3) of the Civil Procedure Act did not apply to proceedings in the Tribunal. It also submitted that the proposed question of law did not allege any error by the Tribunal, and therefore could not be agitated in an appeal under s 148 of the VCAT Act.
Analysis
Section 4(3) of the Civil Procedure Act provides that it does not apply to any proceeding in VCAT. Accordingly, it had no operation in the underlying proceedings at the Tribunal and is outside the scope of Mr Draper’s application for review. In any event, this question does not allege any error of law on the Tribunal’s part capable of being appealed in this proceeding.
I also add that there is no evidence that the lawyer did breach any of the overarching obligations contained in the Civil Procedure Act.
Question of law 12 is not established.
The VBA’s rights to participate in the proceeding
I finally consider the issue Mr Draper raised in this and other proceedings about the VBA being a party. Mr Draper submitted that VCAT was the actual decision-maker and that it was not able to answer to the decision because it had made a Hardiman appearance. The VBA had an interest in not allowing Mr Draper to review the VCAT’s decision and was undermining that decision. By allowing the VBA to be a party to this proceeding, the Court was giving the VBA a ‘second go’ at making jurisdictional arguments that had failed before VCAT. He submitted that it was questionable whether VCAT would have made the same submission as the VBA if it had appeared in the proceeding.
Analysis
The Judicial Registrar determined that the VBA was a proper interested party in the VCAT proceedings commenced by Mr Draper in March 2019 and an interested party in this proceeding. He therefore granted the VBA’s application be joined as a party.[56] It was thereby entitled to make submissions. VCAT is not usually joined as a party to an application for leave to appeal its orders, any more than a Court is joined as a party when its orders are appealed to an appeal court. The previous decisions to which Mr Draper referred do not assist his submissions in this proceeding.
[56]See Draper v VCAT [2020] VSC 720.
Conclusion
Mr Draper has established questions of law 5, 6, 10 and the substance of question 11 and the proposed grounds of appeal attached to them. While considerable time has elapsed since the BPB decision, I consider that Mr Draper is entitled to have his extension of time application reheard by VCAT.
I therefore grant Mr Draper leave to appeal, allow the appeal, set aside the order of VCAT of 21 November 2019 and remit the extension of time application to VCAT to be reheard and determined before a differently constituted Tribunal.
It will be a matter for VCAT rehearing Mr Draper’s extension of time application to decide whether to grant it, including whether a s 49 statement should first be ordered. My judgment should not be taken as deciding those issues. They are for VCAT to determine.
I will give the appellant and the third respondent an opportunity to make written submissions about the costs of the proceeding.
3