John Noce v The Building Practitioners Board - [2013] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 03918 of 2012

JOHN NOCE	Plaintiff
v
THE BUILDING PRACTITIONERS BOARD	Defendant

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 12 February 2013
DATE OF JUDGMENT:	3 April 2013
CASE MAY BE CITED AS:	John Noce v The Building Practitioners Board
MEDIUM NEUTRAL CITATION:	[2013] VSC 138

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ADMINISTRATIVE LAW – Judicial review – Error of law – Whether a company director and registered building practitioner has a duty to ensure building works conducted by a fellow director and registered building practitioner comply with requisite standards and are not defective – Whether breach of Building Regulations 2006 (Vic) reg 1502 requires inquiry into the specific conduct of the registered building practitioner beyond their being a company director - Denial of natural justice – Whether “to take steps to ensure” materially differs from “to ensure” – Whether the Board is required to provide evidence of incurrence or reasonableness of costs in the conduct of an inquiry – Whether the Board failed to provide adequate reasons for its decision – Whether the application for relief was out of time - Building Act 1993 (Vic) ss 16, 176(4), 178, 179 – Administrative Law Act 1978 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Margetts S.C. with Mr R Andrew	Noble Lawyers
For the Defendant	Mr R Taylor	Lander & Rogers

HIS HONOUR:

Mr John Noce seeks judicial review of the decision made by the Building Practitioners Board pursuant to s 179 of the Building Act 1993 (Vic) on 15 May 2012 finding him guilty of failing to perform his work as a registered building practitioner in a competent manner and to a professional standard. The Board reprimanded him and imposed a fine of $1,000. He was also ordered to pay 50% of the Board’s total costs incidental to the inquiry in the sum of $144,043.40.

Five grounds were raised in Mr John Noce’s amended originating motion although one (ground two) was abandoned during the hearing. Ground one was that Mr John Noce had been denied natural justice by the Board finding matters that had not been alleged against him. Ground three concerned the order for payment of costs, and in respect of that ground, Mr John Noce contended that he had been denied the opportunity to make appropriate submissions concerning the amount to be awarded against him. Ground four was that the Board had erred in law by finding him guilty on the basis that he was a director of the relevant building company notwithstanding that he was not the registered building practitioner responsible for the building project. Ground five sought to impugn the Board’s decision on the basis that the Board had failed to provide adequate reasons despite requests under s 8 of the Administrative Law Act 1978 (Vic).

A.Ground Four:Error of Law

I will deal first with ground four because it will put the other grounds in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSC 138
Decision Date: 3 April 2013

CaseChat Overview and Summary

In the case of John Noce v The Building Practitioners Board, the dispute arose from an investigation conducted by the Building Practitioners Board into the conduct of Mr Noce, a director and registered building practitioner, in relation to building works that did not comply with the requisite standards. The primary issue before the court was whether Mr Noce, as a director of a company, had a duty to ensure that the building works carried out by another director and registered building practitioner were compliant and not defective. Additionally, the court needed to determine if a breach of the Building Regulations 2006 (Vic) regulation 1502 necessitated an inquiry into the specific conduct of the registered building practitioner beyond their role as a company director.

The court considered whether there was an error of law in the Board's decision-making process, including the interpretation of the phrases "to take steps to ensure" and "to ensure" in the context of Mr Noce's duties. It also examined whether the Board was required to provide evidence of the incurrence or reasonableness of costs in conducting the inquiry. Furthermore, the court assessed whether the Board had failed to provide adequate reasons for its decision and whether the application for relief was out of time. The court concluded that there was an error of law in the Board's decision, as it had not adequately addressed the specific duties of Mr Noce and had failed to provide sufficient reasons for its decision.

The court found that Mr Noce's duty to ensure compliance went beyond merely taking steps to ensure compliance, and the Board's failure to consider this distinction constituted an error of law. Additionally, the court ruled that the Board had not adequately justified the costs incurred in conducting the inquiry. Consequently, the court quashed the Board's decision and remitted the matter back to the Board for reconsideration. The final order was that the decision of the Building Practitioners Board be quashed, and the matter be remitted for reconsideration in light of the court's findings.

Orders