John Noce v The Building Practitioners Board
[2013] VSC 138
•3 April 2013
| 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 context and because it will be sufficient to dispose of the proceeding if substantiated. The basis of the Board’s decision was that Mr John Noce was exposed to disciplinary sanction because he was a director of the company which had carried out building works that did not comply with s 16(1) of the Building Act 1993 (Vic). Mr John Noce had not been the building practitioner primarily responsible for the conduct of the building works at the relevant site but the Board reasoned that he was professionally responsible by virtue of being a director of the company through which the building works had been conducted by a fellow director, notwithstanding that the fellow director was also a registered building practitioner at the time and had been registered in the category or class relevant to the building works carried out.
On 16 July 2007 Mr Andrew Urie engaged C&J Designer Homes Pty Ltd to construct a new home on his land at 15 Balmanno Crescent Strathmore Victoria. Mr John Noce was one of three directors of C&J Designer Homes Pty Ltd but was not the director responsible for the building works at 15 Balmanno Crescent Strathmore. The two other directors of the company were Mr John Noce’s father, Mr Salvatore Noce, and Mr Carlo Brando. The building contract named Mr Salvatore Noce, not Mr John Noce, as the relevant registered building practitioner for the works upon Mr Andrew Urie’s land. On 16 October 2007 a building permit was issued by the building surveyor nominating Mr Salvatore Noce, not Mr John Noce, as the responsible building practitioner to be engaged for the work. Practical completion of the building was achieved around 6 August 2008 and an occupancy permit issued on that date. A handover inspection was conducted on 18 August 2008 and the final claim was then paid by the owners.
On 22 January 2009 Mr Andrew Urie (with Ms Anne Paten) made a complaint to the Building Commission in respect of the building work carried out by C&J Designer Homes Pty Ltd. The complaint was referred to the Commission’s Audit and Investigation Unit and between April 2009 and April 2010 an investigation was undertaken into the conduct of Mr Salvatore Noce and Mr John Noce. The investigation concluded around 15 April 2010 with the Commission referring two matters to the Board to inquire into the conduct or ability to practice of Mr Salvatore Noce and Mr John Noce. Separate notices of inquiry in substantially identical terms were sent to each of Mr Salvatore Noce and Mr John Noce. The inquiry into Mr Salvatore Noce, however, was not concluded because he subsequently retired and ceased to be a registered building practitioner.
The inquiry into the professional conduct of Mr John Noce rested upon him being a director of the company which had performed the building work rather than upon him being the building practitioner actually responsible for the building work in respect of which the complaint had been made. Counsel appearing for Mr John Noce at the hearing of the Board submitted that no finding of professional misconduct could be made against Mr John Noce because he had not been the registered building practitioner responsible for the building work. A submission that the Board lacked jurisdiction to inquire into the conduct of Mr John Noce because he had not been the registered building practitioner responsible for the building work undertaken by a company of which he was a director could not succeed in light of the decision in Ktori v The Building Practitioners Board.[1] The Board decided against Mr John Noce relying in part upon observations in Ktori.[2] The Board expressed itself as being satisfied on the evidence that the two allegations had been made out against Mr John Noce on the basis that, as a director of the company that performed the work, he had a duty to ensure that the company had performed its work to the requisite standard including that the work was free of defects. On the Board’s reasoning it did not matter that another registered building practitioner and director of the company, namely Mr Salvatore Noce, had been responsible for the relevant work.
[1][2009] VSC 404.
[2]Ibid [21] (Beach J).
Section 178 of the Building Act 1993 (Vic) permits the Board to “conduct an inquiry about the conduct or ability to practise of a registered building practitioner”. Section 179 lists the decisions the Board may make in respect of an inquiry into a registered building practitioner’s conduct. Section 7 permits the Governor in Council to make regulations, and in 2006[3] building regulations were made in substitution for those then in force.
[3]Building Regulations 2006 (Vic) S.R. No. 68/2006.
The Board’s inquiry was into the conduct of Mr John Noce and not Mr Salvatore Noce. Both of the allegations against Mr John Noce were for contravention of reg 1502(a) of the Building Regulations 2006 (Vic). That regulation provides:
A registered building practitioner must –
(a) perform his or her work as a building practitioner in a competent manner and to a professional standard; …
“Building practitioner” is defined in s 3 of the Building Act 1993 (Vic) but that term does not include a company. The definition of “building practitioner” is otherwise wide and provides:
building practitioner means—
(a) a building surveyor; or
(b) a building inspector; or
(c) a quantity surveyor; or
(d) an engineer engaged in the building industry; or
(e) a draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications; or
(f) a builder including a domestic builder; or
(g) a person who erects or supervises the erection of prescribed temporary structures; or
(h) a person responsible for a building project or any stage of a building project and who belongs to a class or category of people prescribed to be building practitioners—
but does not include—
(i) an architect; or
(j) a person (other than a domestic builder) who does not carry on the business of building.
Registration of building practitioners is provided for by Part 11, with s 169(1) providing specifically that a “natural person” may apply for registration as a building practitioner.
Corporations may not be registered as building practitioners themselves but it is contemplated by the legislation that they may “hold themselves out as, and to perform the work of, builders who as individuals would require registration”[4] provided that “at least one” of the directors of the corporation is registered in the appropriate category or class under the Building Act 1993 (Vic).[5] The terms of the proviso for corporations indicates what the legislature was contemplating by the provision. The proviso is expressed to permit a corporation to hold itself out as able to perform the work of builders requiring registration:
[…] if at least one of the directors of the corporation is registered in the appropriate category or class […][6]
The proviso, therefore, contemplates a corporation holding itself out as able to perform the work of a registered builder where some directors are not registered in the appropriate category or class: a requirement that “at least one” director be appropriately registered contemplates that there be other directors of the building company who need not be appropriately registered. That fact indicates that the legislature did not intend to impose professional obligations applicable to one category or class of registration to those directors who were not registered in that, or perhaps any, category or class. The proviso indicates a legislative policy of protecting the public when dealing with corporate builders by ensuring that the company had a person at the level of director with the appropriate registration but not that all other directors would have imposed upon them the obligations attached to categories or classes for which they were not personally registered.
[4]Ktori v The Building Practitioners Board [2009] VSC 404, [21] (Beach J).
[5]Building Act 1993 (Vic) s 176(4).
[6]Ibid.
In Ktori v The Building Practitioners Board[7] this Court was called upon to consider whether the Board had jurisdiction to inquire into the conduct of a registered building practitioner in respect of works performed through a corporation where the registered building practitioner was not the person who was actually responsible for the building works. Whether the Board had jurisdiction to inquire into the conduct of a registered building practitioner is a significantly different question from whether a registered building practitioner is to be found personally at fault under reg 1502(a) of the Building Regulations 2006 (Vic) after inquiry. In Ktori Beach J held, in my respectful submission correctly, that the Board did not lack jurisdiction to inquire into the conduct of an individual company director merely because that individual was not the person actually performing the building work which was undertaken and performed through the company. As his Honour observed:
It follows from what I have said that there was no jurisdictional error, or error of law on the face of the record, in the Board inquiring into the conduct of the plaintiffs as registered building practitioners who controlled Tremaine - a company involved in building operations. It was no defence for either of the plaintiffs to say that r 15.2 has no application to them because they were not performing the building work or carrying on the business of building the units the subject of the Board's inquiries. There was no jurisdictional error (or error of law on the face of the record) in the Board inquiring into the conduct of the plaintiffs in relation to a company, over which they had control, performing building work that was not performed to an adequate or appropriate standard. While issues of control fell to be determined during the course of the Board's inquiries and issues of work performed by the plaintiffs to a particular standard fell to be determined by the Board, the mere existence of a company through which the work was actually performed could not deprive the Board of its jurisdiction to inquire into the conduct of the plaintiffs as building practitioners - which they undoubtedly were.[8]
The conclusion that the Board did not lack jurisdiction to inquire into the conduct of a director of a company undertaking building work through another person does not, however, necessarily carry the consequence that all directors of the company which undertakes the work are to be held equally responsible irrespective of the particular facts and circumstances of each individual director in relation to the works. The decision in Ktori removes any argument about the Board’s jurisdiction to inquire into the conduct of registered building practitioners operating through companies but the conclusion in the passage quoted above (that the Board has jurisdiction to inquire into the conduct of a director not himself or herself performing the work) does not necessarily mean that each director must be found automatically liable for any breach committed by the company and any other director without finding personal failing.
[7][2009] VSC 404.
[8]Ibid [23] (Beach J).
The Board reasoned, however, that the claims against Mr John Noce were established because he had a duty as a director of the company to take steps to ensure that the company performed its work to the requisite standard. The two allegations which the Board decided as having been established against Mr John Noce depended upon the finding that the building work either did not comply with s 16(1) of the Building Act 1993 (Vic) or was defective. Neither of the particulars relating to each allegation depended upon any specific conduct of Mr John Noce beyond the fact that he was a director of the company. The two allegations in the Notice of Inquiry dated 6 April 2011 were:
Allegation 1 – Ground for Inquiry – section 179(1)(b) Building Act 1993
Between 30 October 2007 and 18 November 2008, you failed to carry out your work as a building practitioner in a competent manner and to a professional standard, in contravention of regulation 1502(a) of the Building Regulations 2006 (Vic), in that:
(a)you were at all relevant times a director of C&J Designer Homes Pty Ltd (Company), which carried out the construction of a dwelling at 15 Balmanno Crescent, Strathmore (Building Work);
(b) the Building Work did not comply with section 16(1) of the Building Act 1993 (Vic) (Building Act); and
(c)as a director of the Company, you failed to ensure that the Building Work complied with section 16(1) of the Building Act.
Particulars
As to (b);
1.1 The Building Work related to the construction of a dwelling at 15 Balmanno Crescent, Strathmore (Dwelling).
1.2The width of perpends in certain of the perpend joints in the Dwelling did not comply with clause 3.3.1.7 of the Building Code of Australia, as is evidenced in the reports prepared by Raymond Martin of Build Assess Pty Ltd dated 23 December 2008 and David Cheong, building consultant, dated 19 February 2009.
1.3The sub-floor ventilation in the Dwelling did not comply with clause 3.3.1.9 of the Building Code of Australia, as is evidenced in the reports prepared by Raymond Martin of Build Assess Pty Ltd dated 23 December 2008 and David Cheong, building consultant, dated 19 February 2009.
Allegation 2 – Ground for Inquiry – section 179(1)(b) Building Act 1993
Between 30 October 2007 and 18 November 2008, you failed to carry out your work as a building practitioner in a competent manner and to a professional standard, in contravention of regulation 1502(a) of the Building Regulations 2006 (Vic), in that:
(a)you were at all relevant times a director of C&J Designer Homes Pty Ltd (Company), which carried out the construction of a dwelling at 15 Balmanno Crescent, Strathmore (Building Work);
(b) the Building Work was defective; and
(c) as a director of the Company, you failed to ensure that the Building Work was not defective.
Particulars
As to (b);
Those items identified under the headings ‘Finishing’ and ‘Dirty Exterior of House’, ‘Range Hood Duct’, ‘Return Air Vent’ and ‘General Carpentry Issues’ in the report prepared by Raymond Martin of Build Assess Pty Ltd dated 23 December 2008, as is evidenced in this report and the report prepared by David Cheong, building consultant, dated 19 February 2009.
The adverse finding against Mr John Noce in respect of each allegation was that he had failed to take steps to ensure that the company complied with its statutory obligations notwithstanding that he was not the registered building practitioner responsible for the building works and that there had been another registered building practitioner, namely his father Mr Salvatore Noce, who had been responsible for the building works.
The critical part of the Board’s reasons of 2 March 2012 in respect of the first allegation was:
1.25The Board is also satisfied that Mr Noce had certain responsibilities because he was a registered building practitioner who was a director of [C&J Designer Homes Pty Ltd]. One such responsibility was to take steps to ensure that the company complied with its statutory obligations (including the obligation under section 16(1) of the Act). Another was to take steps to ensure that the company performed its work to the requisite standard.
1.26Discharging those responsibilities is a central part of the “work” of a registered building practitioner who is a director of such a company.
1.27Consistent with that statutory framework, and in accordance with the intent of Parliament, a failure by a director to discharge those responsibilities constitutes a failure by that person to carry out his or her work as a building practitioner in a competent manner and to a professional standard under regulation 1502(a).
The relevant part of the Board’s reasoning dealing with the second allegation was to much the same effect:
2.26For the reasons set out in paragraph 1.25, 1.26 and 1.27 above, the Board is of a view that the work of a registered building practitioner – who is a director of a company that performed building work – is to ensure that the company performs that work to the requisite standard. This includes performing the work that is free of defects.
In each case the Board reasoned that a registered building practitioner operating through a company had an obligation to ensure the company’s compliance irrespective of the particular circumstances of the registered building practitioner whose conduct was being inquired into. It may be accepted that a director of a company has duties and obligations by virtue of that position, but the finding of a breach of reg 1502 requires findings specific to the person said to be in breach. A director may be found liable under reg 1502 for works in a category or class for which the director is not appropriately registered where in the specific facts and circumstances the director can be found to have failed to have done something which the inquiry reveals ought to have been done by that director notwithstanding that the director was not appropriately registered. I do not think, however, that all directors are liable personally when there has been a breach by a company without some act or omission by the director. Regulation 1502 imposes personal obligations of competent conduct and professional standards. Its focus is upon individual registered building practitioners to ensure that their personal conduct and standards meet the requisite level.
The Board’s reasoning relied in part upon his Honour’s observation in Ktori v The Building Practitioners Board[9] that:
When one looks at the purpose and objects of the Building Act and the objectives of the Regulations as they were at the time of the conduct inquired into by the Board, it is clear that those registered building practitioners who operated (or performed their work) through a company were intended to be held to the same level of competence and to the same professional standard as those who practised as individuals.[10]
This observation, however, does not necessarily carry the conclusion that a registered building practitioner performing work through a company will be liable for all defects irrespective of personal fault or failing (either by act or omission). His Honour’s observation expressed the concern that registered building practitioners acting or performing through a company continued to have the duties they had as individuals. His Honour did not say in that passage that all registered building practitioners who were company directors would automatically be liable for breaches of standards attributable to the failings of those actually responsible for the works. A building practitioner may be responsible for the failings of another where the facts specific to a case show that the registered builder had personal duties which were not met. Such a conclusion may, perhaps, be reached where the person whose conduct is inquired into is the only building practitioner registered in the relevant category or class: in such a case a lack of appropriate supervision, or lack of appropriate systems, may be inferred by the Board as an expert tribunal. The breach that would be found in such a case, however, would be a breach of a personal duty falling upon the registered building practitioner in his or her capacity as practitioner and not arising merely by virtue of being a company director. A company director has obligations flowing from that position which, if breached, may also be a breach of reg 1502. In such a case, however, the breach of duty as a company director must be such to warrant a finding of personal breach of reg 1502: the breach of reg 1502 needs to be attributable to the personal act or omission of the company director.
[9][2009] VSC 404.
[10]Ibid [21] (Beach J).
Whether or not there is a breach of reg 1502 requires an inquiry into the specific conduct of the specific registered building practitioner whose conduct is inquired into. The liability imposed by the regulation attaches to the conduct of the person inquired into and must be found in acts or omissions of that person as a builder and not found solely by virtue of that person being a company director. As his Honour observed in Ktori:
The inquiries conducted by the Board were inquiries into the conduct of the plaintiffs. Specifically, the inquiries were into the question of whether or not the plaintiffs had failed to comply with regulation 15.2(a). Those inquiries required the Board to examine the question of whether or not the plaintiffs performed their work as building practitioners in a competent manner and to a professional standard. In such inquiries, it would be open to an expert tribunal like the Board to determine that in respect of some matters (for example, a defect in a building for which the practitioner had responsibility) that the mere proof of the existence of the matter (defect) constituted a breach of regulation 15.2(a) so far as the responsible practitioner was concerned. Each matter (or allegation) would be dependent upon its own facts and circumstances.
Similarly, the question of whether a relevant registered building practitioner had sufficient control over the activities of a company to justify a finding of a breach of regulation 15.2 against that practitioner in respect of defective work performed by the company, is heavily dependent upon the facts and circumstances of the relevant matters. While the plaintiffs made extensive submissions concerning common law tests of control, impermissible attempts to pierce the corporate veil and provisions of the building act relating to reliance upon certificates, offences by bodies corporate and offences for agents to act without authority, these submissions were beside the point. The ability of the Board to inquire into the conduct of registered building practitioners and to make findings of the kind referred to in s 179(1) of the Building Act is not dependent upon common law or tortious notions of control or an ability to attribute the liability of a company to an individual. What ss 178 and 179 of the Building Act permit is an inquiry into the conduct of a registered building practitioner to see whether, amongst other things, he or she has failed to comply with the Building Act or the regulations. When one turns to regulation 15.2, the inquiry is whether the registered building practitioner performed his or her work as a building practitioner in a competent manner and to a professional standard. Depending upon the facts of the case, it is possible for a registered building practitioner to be held to be in breach of regulation 15.2 because he or she has a responsibility as a building practitioner in relation to building work being performed by another person or entity. The issue is, of course, heavily dependent upon the individual facts and circumstances of each case. All that can be said in this case is that the record does not disclose an error of law - whatever might be the outcome of an appeal in the nature of a re-hearing. [11]
[11]Ibid [36]-[37] (Beach J) (citations omitted).
In my view the Board failed to undertake the task required by reg 1502 as stated by his Honour. The Board in this case did not inquire into any conduct by Mr John Noce as a builder registered in the relevant category or class beyond the fact of him being a director of the company in common with another person registered in the appropriate class. There was no finding by the Board of any failing (whether by act or omission) by Mr John Noce of any duty upon him in the specific circumstances applicable to his case. It did not conclude, as his Honour said it might be open for the Board as an expert tribunal to conclude in some cases, that the mere proof of the existence of the defect constituted a breach of reg 1502 as far as Mr John Noce was concerned: there was, in other words, no linking by the Board of the defects and the breach of reg 1502 with, or to, Mr John Noce beyond its view that every company director had an obligation to take steps to ensure that the company perform its work without defects and without breach of their obligations. Mr John Noce was a company director and as a company director he had legal obligations in respect of the work performed by the company, however, the inquiry by the Board under reg 1502 was into his work as a building practitioner. It might, conceivably, have inquired into whether he ought to have supervised, reviewed or monitored the work undertaken by the company through his father. There was, however, no factual finding of any failure to take any actual steps by Mr John Noce to ensure the company’s performance of the work to the requisite standard. Accordingly, I consider the Board’s decision to be erroneous and should be set aside.
B.Ground One: Denial of Natural Justice
It is, therefore, not strictly necessary to consider the other grounds advanced for review of the Board’s decision, but it may be desirable for me to deal with them at least briefly.
Ground one in Mr John Noce’s amended originating motion impugned the Board’s decision on the basis that he had been denied an opportunity to deal with the Board’s finding of guilt because, as it was contended, the findings differed materially from the allegations that were to be inquired into. The alleged mismatch between allegation and finding was said to be revealed in the comparison between (a) the Board’s conclusions that Mr John Noce had failed “to take steps to ensure” the company’s performance and work and (b) the allegations (as stated in the notice of inquiry) of his alleged failure “to ensure” either that the building work complied with s 16(1) of the Building Act 1993 (Vic) (allegation one) or that the building work was not defective (allegation two). The submission depended upon the view that an allegation of failure “to ensure” something was materially different from a finding of failure “to take steps to ensure”.
I do not accept this submission. In my view it is clear from the allegations against Mr John Noce that were to be inquired into that what had been alleged against Mr John Noce was a failure attributable to the company’s obligation to comply with its statutory obligations and that its work not be defective. Sub-paragraph (c) of both allegations stated the basis of the allegation against Mr John Noce to be that “as a director of the Company, [he] failed to ensure” something required to be done by the company in relation to the building work. No other allegation or particular was given in respect of the allegations to be inquired into against Mr John Noce apart from the failures which were said to flow from him being a director of the company. A failure “to ensure” as articulated in the allegations carried with it the necessary implication that he should have done something. The conclusion of the Board that he had failed to “take steps” to ensure the things identified in sub-para (c) is in my view, necessarily encompassed by the broader allegation of a failure to ensure.
C.Ground Three:Denial of Natural Justice – Costs
The third ground relied upon by Mr John Noce was that he had been denied natural justice by the Board ordering him to pay 50% of the total costs incidental to the inquiry in the sum of $144,043.40 without the Board having produced, as was contended, any bill of costs or any other relevant documents, including the documents requested by his solicitors in their letter to the Board dated 26 March 2012.
Amongst the decisions the Board is permitted to make under s 179(2) is to require the person inquired into to “pay the costs of or incidental to the inquiry”.[12] On 2 March 2012 the Board handed down its decision finding Mr John Noce guilty of the two matters alleged. There then followed some correspondence concerning the provision of, and the adequacy of, the Board’s reasons. Around the middle of March 2012 the Board invited submissions on penalty and costs. On 23 March 2012 counsel assisting the Board, Mr Pizer, provided submissions on penalty and costs. Attached to the submissions was a summary of the costs incurred by the Board which were said to be incidental to the inquiry. A total of $288,068.79 was shown as being incurred by the Board in respect of the inquiry. The submissions explained, as is revealed by the summary itself, that the costs included those incurred by the Board, the remuneration paid to panel members for their attendance at hearings, the costs claimed by the Board’s own witnesses, and the costs incurred by the Board in serving the notice of inquiry.
[12]Building Act 1993 (Vic) s 179(2)(b).
On 26 March 2012 Mr John Noce’s solicitors wrote to the Board claiming that the submissions on costs and the summary of costs were inadequate to enable them to make submissions on behalf of their client and sought further details. The letter said:
We refer to the above matter and the submissions on costs and penalty provided to the Board by Maddocks including the “summary of costs” prepared by Maddocks.
This document is we respectfully suggest inadequate to permit the practitioner, or anyone, to assess the reasonableness of the costs claimed by Maddocks and their barrister, Mr Pizer.
Whilst the practitioner will be submitting in due course that the Board ought not make any order for costs against the practitioner, for the Board to order costs against the practitioner it must first demonstrate that the work has been performed and that the costs have been reasonably incurred.
Accordingly, please provide the following documents to us as a matter of urgency:
1. Maddocks’ invoices to the Board;
2. Maddocks’ print out from their time recording software showing the work performed by them, time spent on each task performed and the cost claimed for the same;
3. Invoices from Mr Pizer to the Board and/or Maddocks, memorandums of work performed and/or costs claimed by Mr Pizer;
4. Copies of the relevant pages from Mr Pizer’s fee book showing the work performed, time spent and costs claimed by him for each task of work performed by him;
5. Costs agreements and costs disclosure statements given to the Board by Maddocks and/or Mr Pizer together with costs agreements and costs disclosure statements given by Mr Pizer to Maddocks; and
6. Quotes and invoices for each of the rooms for which the Board claims room hire to be paid by the practitioner.
Please provide these documents to us as a matter of urgency so that we can review them and form prior to filing submissions in response to Mr Pizer’s submissions.
Our client otherwise reserves his right to request further documents as may be required following receipt of the requested documents.
There then followed further debate between the parties about whether or not the request made on Mr John Noce’s behalf by his solicitors was relevant and appropriate. For present purposes nothing may turn on that dispute since the issue before me is whether the Board’s denial of the information which had been sought resulted in Mr John Noce being denied an opportunity to make submissions. However, if it be relevant to the issue, it seems to me that the demands by Mr John Noce’s solicitors for the information which was sought misconceived the Board’s task when requiring a party to pay costs which the Board itself has incurred. The power in s 179(2)(b) of the Building Act 1993 (Vic) to require a person to pay costs is not dependant upon the Board having to produce invoices or any of the other documents which Mr John Noce’s solicitors demanded. Nor is the power dependant upon a notion of “reasonableness” applicable to the incurrence of costs in litigation. No doubt costs incurred need to be reasonably incurred in the broad sense in which reasonable is used in the context of judicial review but no more special meaning of the word “reasonable” is incorporated into the provision such as may be found in relation to the award of costs by a court as between parties to a dispute. There is, and was, no basis upon which the costs claimed could be said to have been unreasonable in the sense of permitting judicial review.
Mr John Noce was not, in any event, denied the opportunity to make submissions about costs. Further submissions were made on the question of costs on 30 March 2012 by Mr Pizer. Amongst those submissions were arguments concerning the entitlement asserted by Mr John Noce’s solicitors to the information they had sought in the letter of 26 March 2012. Notwithstanding the objection, Mr John Noce’s solicitors were given on 26 April 2012 an eight page document headed “Detailed report of costs of and incidental to the inquiry” which gave a further breakdown of the costs incurred by the Board. On 14 May 2012 Mr John Noce’s solicitors wrote to the Board claiming that the detailed breakdown did not assist “in understanding the costs claimed by the Board” and repeated the earlier request for the provision of supporting documents. The basis for the claim continued to be, in effect, that the Board was required to establish the incurrence of the costs and also that the costs had to be shown to be reasonable or necessary in the sense those words are used in the taxation of costs in litigation.
Mr John Noce relied upon the evidence in an affidavit by Ms Hedstrom, a lawyer specialising in legal costs, in support of a submission that the costs incurred were “manifestly excessive” (although her evidence was not to that effect). Ms Hedstrom’s evidence was of her difficulty in advising on the costs claimed but she largely approached the material and her task as a legal costs consultant in the context of taxation of costs by reference to approved scales of costs in litigation. The precise task she was asked to perform is not clearly revealed in her affidavit but her opinions assume an obligation on the part of the Board to establish the incurrence and reasonableness of costs claimed by the Board as if those costs had to be shown to be incurred and reasonable in the sense in which that may need to be shown in taxation of costs in court proceedings. It is understandable in that context that she may not be able to express concluded views without more detail concerning the costs incurred, but the Board was not required to prove either incurrence or reasonableness.
In my view Mr John Noce was not denied an opportunity to make submissions concerning the costs which the Board awarded against him on 15 May 2012. He was given details of the costs which the Board was claiming and the Board had no obligation to establish the matters which Mr John Noce’s solicitors had claimed on his behalf in their letter of 26 March 2012 and repeated subsequently (including on 15 May 2012). The description of the work in respect of which costs were claimed show direct and appropriate relevance to the task of the inquiry. They included reviewing transcript, interviewing witnesses, preparing summonses and very many other items of a kind plainly directed at the conduct of the inquiry.
D.Ground Five: – Inadequacy of Reasons
The last ground of challenge on behalf of Mr John Noce was that the reasons of the Board were inadequate. The ground in the amended originating motion was expressed as being that “the defendant failed to provide adequate reasons, despite requests made pursuant to s 8 of the Administrative Law Act 1978 (Vic)”. The written submissions, however, put the ground somewhat differently, namely that the reasons of the Board were “inadequate in that they [did] not disclose proper reasons for finding that the Plaintiff was responsible for the alleged defects”. In my view the ground cannot succeed on either formulation.
The short answer to this ground for judicial review is that the Board did give reasons for its decision and, indeed, that it expressed its reasons sufficiently for Mr John Noce to understand why the Board reached the decision and to challenge those reasons (as he did) in the grounds in his application for judicial review. Indeed, counsel appearing for Mr John Noce at the Board hearing had understood the point sufficiently to have challenged (perhaps more robustly than sound advocacy might suggest) the Board members by contending during argument that their construction of the law “seemed to have prejudged the matter”. The submissions under this ground (namely that the Board’s reasons were insufficient) sought to re-agitate the facts Mr John Noce had relied upon before the Board to the effect that he had not been the responsible building practitioner for the project. That however was irrelevant to the Board’s decision. It had decided, rather, that Mr John Noce’s responsibilities depended upon him being a registered building practitioner and a director of the company through which the works were undertaken. That was clearly explained in paras 1.25 – 1.27 and 2.26 in its reasons for decision. The Board might have been in error in its view, but it did not fail to supply reasons. Furthermore, as I have noted, the reasons were expressed sufficiently both for Mr John Noce to understand the basis upon which the Board reached its conclusion and also sufficiently to enable him to maintain the contention that the Board had erred in its approach to the relevant provisions and in their application of the facts.
A second answer to this ground of judicial review is that the application for relief under the Administrative Law Act 1978 (Vic) is out of time and was not brought in accordance with s 4 of that Act. Section 3 provides that a person affected by a decision of a tribunal may apply to the Supreme Court for an order calling on the tribunal or the members thereof to show cause why the decision should not be reviewed. Section 2 defines “decision”, “person affected” in relation to a decision and “tribunal” such as to apply to the Board’s decision when imposing sanction upon Mr John Noce. Section 4(1) provides the procedure for review:
An application for review shall be made ex parte not later than thirty days after the giving of notification of the decision or the reasons therefor whichever is the later) supported by evidence on affidavit showing a prima facie case for relief under section 7.
The application was, therefore required to be made within 30 days of the operative decision which was made by the Board on 15 May 2012. The reasons for the decision had been given on 2 March 2012, and no separate period of 30 days within which to apply for an order under s 3 had commenced to run because no other reasons had been provided.[13] Accordingly any application under the Administrative Law Act 1978 (Vic) should have been commenced by 15 June 2012 but was not commenced until 11 July 2012.
[13]Kuek v Victoria Legal Aid [1999] 2 VR 331.
E.Orders
Accordingly there will be orders in favour of the Plaintiff setting aside the Board’s decision and remitting the matter back to the Board. I shall otherwise hear the parties on any questions concerning costs.
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