Ktori v The Building Practitioners Board - [2009] VSC 404

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9013 of 2008

EKTORAS KTORI	Plaintiff
v
THE BUILDING PRACTITIONERS BOARD	Defendant

No. 9248 of 2008

ANDREAS KTORI	Plaintiff
v
THE BUILDING PRACTITIONERS BOARD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 & 8 September 2009
DATE OF JUDGMENT:	11 September 2009
CASE MAY BE CITED AS:	Ktori v The Building Practitioners Board
MEDIUM NEUTRAL CITATION:	[2009] VSC 404

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ADMINISTRATIVE LAW - Judicial review – Natural justice – Adequacy of reasons – Ostensible bias – Prerogative relief – Discretion to refuse – Alternative appeal remedy – Judicial review not precluded by availability of alternative remedy.

ADMINISTRATIVE LAW – Tribunals – Supervisory jurisdiction of Supreme Court – Building Practitioners Board – Building Act 1993, ss 3, 16, 143, 176(2A), 176(4) and 179 – Building Regulations 1994, r 15.2(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff Ektoras Ktori	Mr R. Andrew	Noble Lawyers
For the Plaintiff Andreas Ktori	Mr R.G. Craig	Plum Solicitors
For the Defendant	Mr P.J. Hanks QC with Mr J.D. Pizer	Maddocks

HIS HONOUR:

Introduction

Mr Ektoras (Hector) Ktori is the son of Mr Andreas Ktori. For the sake of convenience, and without meaning them any disrespect, in this judgment I propose to refer to them as Hector and Andreas. On 9 September 2008, after having conducted inquiries in respect of their conduct as registered building practitioners under the Building Act 1993, the Building Practitioners Board:

(a) reprimanded Hector, fined him $5,671 (expressed in the orders as being “the maximum fine”) and ordered him to pay 50% of the costs of or incidental to the inquiry in the sum of $33,341.89; and

(b) cancelled Andreas’ registration and imposed the same fine and order for costs on him.

The orders made by the Building Practitioners Board, the defendant in these proceedings, were consequent upon findings of guilt in relation to ten allegations made against each of Hector and Andreas. The allegations arose from the construction of three units at 275 Nott Street, Port Melbourne. While the allegations made against Andreas and Hector were not in precisely the same terms, the allegations in effect mirrored each other.

On 17 September 2008, both Hector and Andreas appealed to the Building Appeals Board. However, each now seeks to quash the decisions of the Building Practitioners Board on the basis that they were denied fair hearings and/or the decisions are infected by jurisdictional error and/or errors of law on the face of the record. The decisions sought to be impugned are decisions as to liability (described by the Board as findings of guilt) and decisions as to penalty (including decisions on costs). The appeals to the Building Appeals Board have been stayed pending the hearing and determination of these proceedings.

For the reasons given below, I am of the view that the decisions and orders of the Building Practitioners Board the subject of these proceedings should be quashed.

The allegations/charges

Before turning to the plaintiffs’…

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: [2009] VSC 404
Decision Date: 11 September 2009

CaseChat Overview and Summary

Ktori, the appellant, challenged a decision made by the Building Practitioners Board, the respondent, under the Building Act 1993. The dispute arose from the Board's decision to refuse the appellant's application for registration as a building practitioner. The Supreme Court of Victoria was tasked with reviewing this decision under the Administrative Appeals (Judicial Review) Act 1993.

The primary legal issues before the court were whether the Board's decision was vitiated by a failure to provide adequate reasons and whether the Board exhibited ostensible bias. The court was also required to consider whether the availability of an internal appeal within the Board precluded the appellant from seeking judicial review.

The court found that the Board's decision was flawed due to an inadequate explanation of the reasons for refusal. The court emphasised that when a decision-maker refuses an application, it is essential to provide clear and sufficient reasons to enable effective review. The court further determined that the Board did not exhibit ostensible bias, as there were no circumstances that would lead a reasonable observer to conclude that the decision-maker might be biased. The court also addressed the issue of alternative remedies, concluding that the availability of an internal appeal did not preclude the appellant from seeking judicial review. The court exercised its discretion to grant the relief sought by the appellant.

The Supreme Court quashed the decision of the Building Practitioners Board and remitted the matter back for reconsideration, ensuring that the Board provides adequate reasons for its decision. The court's judgment underscored the importance of clear and transparent decision-making in administrative processes, particularly in matters involving professional registration.

Orders