Mirvac Victoria Pty Ltd v Building Appeals Board

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

S ECI 2024 04274

MIRVAC VICTORIA PTY LIMITED (ACN 006 708 363)	Plaintiff
v
BUILDING APPEALS BOARD (and others according to the Schedule)	Defendants

---

JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2024
DATE OF JUDGMENT:	20 December 2024
CASE MAY BE CITED AS:	Mirvac Victoria Pty Ltd v Building Appeals Board & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 782

---

BUILDING – Protection work notice – Partial completion of prescribed form – Jurisdiction of Building Appeals Board – Natural justice – Utility of relief – Building Act 1993 (Vic) ss 4, 84(1) and (2), 85(1)–(3), 86, 87, 88, 141, 148, 149, 155; Building Regulations 2018 (Vic), r 113, sch 3 Forms 6–8; Interpretation of Legislation Act 1984 (Vic), s 53; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 316, followed; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, applied; Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695, followed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Connolly with Ms A Mobrici	Minter Ellison
For the First Defendant	Ms K Chan	Victorian Government Solicitor’s Office
For the Second and Third Defendants	No appearance

HIS HONOUR:

Introduction

The plaintiff, Mirvac Victoria Pty Ltd (ACN 006 708 363) (‘Mirvac’) is constructing a 98 unit development (‘project’) on a property which it owns at 31 Queens Road, Melbourne (‘property’). The second defendant (‘Mr Tran’) is the owner of Unit 5, 32 Queens Road, Melbourne which is an adjoining property for the purposes of pt 7 of the Building Act 1993 (Vic) (‘Act’). The third defendant, Shane Leonard, is the relevant building surveyor for the project under the Act.

By an originating motion filed 16 August 2024 (‘proceeding’), Mirvac seeks judicial review of the determination and orders of the Building Appeals Board (‘Board’) in BAB Case No 455523 (‘appeal’) made on 19 June 2024 (‘determination’).[1] The determination was made on the basis of written submissions and without an oral hearing.
[1]Tran v Leonard and others BAB Case No 455523 dated 19 June 2024 (Luke English, Chairperson).

Mirvac seeks orders of the Court quashing that part of the determination of the Board that relates to the validity of a Form 7 notice of proposed building work given by it to the relevant building surveyor, and to adjoining owners including Mr Tran on 11 August 2023.

The proceeding

The proceeding was commenced by originating motion for judicial review on 16 August 2024. Mirvac relies on two grounds which are in substance:

(a)The [determination] is affected by jurisdictional error because the Board was not vested with power in the [appeal] to determine the validity or otherwise of the [protection work notice].
(b)The determination was [affected] by a substantial and material denial of natural justice (being a jurisdictional error) on the basis that the Board failed to provide adequate notice to [Mirvac] that it intended to determine the validity of the [protection work notice] as part of its determination of the first preliminary question.

Each ground is supported by particulars.

Mirvac relies on the affidavits and exhibits of Christopher Hey, its solicitor, filed on 16 August 2024 and 30 October 2024, and Alister Reed, its project manager, filed on 16 August 2024. The Board relies on the affidavit and exhibits of Marcus Finlay, the Registrar of the Board, filed on 23 October 2024. No other defendants appeared or filed affidavits or submissions.

On 26 September 2024, I made orders for substituted service on Mr Tran. I am satisfied by the affidavit of Mr Hey filed 21 November 2024 that the orders were complied with and that substituted service was effected.

Background facts

The background facts are not in dispute before me. They are:

(a) on 17 July 2023, the relevant building surveyor determined that the project required protection work and issued a Form 6 notice to Mirvac;[2]
[2]The relevant forms are prescribed in sch 4 of the Building Regulations 2018 (Vic) (‘regulations’).

(b) on 11 August 2023, Mirvac served a protection work notice on the relevant building surveyor, and adjoining owners including Mr Tran;

(c) the notice was sent by registered mail to Mr Tran in an envelope addressed to ‘Linh Tran’ giving his street address of ‘5/32 Queens Road, Melbourne VIC 3004’. The envelope was signed and dated by Mr Julian Giardino, project engineer, as sender on behalf of Mirvac;

(d) the notice contained multiple documents and included:

(1) a covering letter providing background information;

(2) the Form 6 notice as completed by the relevant building surveyor;

(3) a Form 7 notice partially completed by Mirvac;

(4) three uncompleted Form 8 Protection Work response notices for completion by adjoining owners including Mr Tran;

(5) a Victorian Building Authority information sheet as to protection work notices; and

(6) a USB drive loaded with expert reports and plans;

(e) the USB drive contained the following material:

(1)site plans and ground floor plans;
(2)a geotechnical risk assessment;
(3)a report of a geotechnical investigation of the project including ground water measurements and site permeability testing;
(4)engineering borehole and well installation reports;
(5)material testing reports;
(6)a retention and foundation pile design; and
(7)a certificate of compliance for proposed building work under s 238(1)(a) of the Act and r 126 of the regulations.

(f)Mr Tran provided a Form 8 response notice to the relevant building surveyor dated 5 September 2023 which was received by the relevant building surveyor on 7 September 2023;
(g)on 10 September 2023, the relevant building surveyor responded to Mr Tran in terms which included:
I am unaware if your copy of the Form 7 was signed or not as I received a typical package that has been served on all relevant owners I determined as requiring protection works.
I am not in a position to make legal interpretation on behalf of any person and remain independent of the process other than make determinations as required by the building act.

(h)on 18 September 2023, the relevant building surveyor issued a building permit for soldier pile installation and capping construction;
(i)on 16 November 2023, Mr Tran appealed to the Board under s 141(c) and (d) of the Act alleging the failure or refusal of the relevant building surveyor to make a determination under s 87 of the Act;
(j)on 21 November 2023, Mr Tran amended the notice of appeal to remove reliance on s 141(d) of the Act; and
(k)on 18 December 2023, Mirvac was added as a party to the appeal.

Omissions in the protection work notice

Mr Tran identified the following deficiencies in the Form 7 notice provided by Mirvac which formed part of the protection work notice:

(a) the Form 7 was not filled in with his name and address; and

(b) the Form 7 did not set out details of his land or Mirvac’s land and was unsigned.

While the Form 7 contained these omissions, the position was also that:

(a) the envelope containing the protection work notice including the Form 7 was correctly endorsed with Mr Tran’s name and address and was signed by a duly authorised officer of Mirvac;

(b) the USB drive contained a mass of technical information including detailed site plans and work proposals clearly showing the proposed protection work; and

(c) the relevant building surveyor had no difficulty with the detailed information and plans provided by Mirvac and issued a building permit for the protection work.

Relevant statutory provisions

Section 4 sets out the objectives of the Act, and provides:

(1) The objectives of this Act are—
(a)to protect the safety and health of people who use buildings…;
…
(e)to facilitate the cost effective construction and maintenance of buildings … ;
…
(g)to aid the achievement of an efficient and competitive building … industry;
…

(2)It is the intention of Parliament that in the administration of this Act regard should be had to the objectives set out in subsection (1).

Part 7 of the Act

Part 7 of the Act provides for the protection of adjoining property before and during the carrying out of building work. Section 84 provides:

(1)An owner who is required by the building regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work for which a building permit is required must, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work.

(2) The notice must include—
(a)prescribed details of the proposed building work as at the date of the notice; and
(b)prescribed details of the proposed protection work setting out the nature, location, time and duration of the protection work; and

(c) any other prescribed information.

Section 85 provides for building owners to respond to a notice of proposed building work given under s 84. It provides:

(1)The adjoining owner, not later than 14 days after service on the adjoining owner of the notice of proposed building work, must—
(a)give to the owner a notice agreeing to the proposed protection work; or

(b) give to the owner and the relevant building surveyor a notice—
(i) disagreeing with the proposed protection work; or
(ii)requiring more information to be given to enable the proposal to be considered by the relevant building surveyor.

(2)Subject to sections 90 and 91, an adjoining owner who fails to give a notice under subsection (1) within the required time is taken to have agreed to the proposed protection work.
(3)A notice given under this section must contain the prescribed information.

Section 86 describes the effect of an actual or deemed agreement between adjoining owners and provides:

If the adjoining owner agrees or is taken to have agreed to the proposed protection work, the owner may proceed to carry out the protection work after obtaining any necessary permits or approvals required by this or any other Act or the building regulations.

Section 87 gives the relevant building surveyor various duties and powers including the power to request further information and make inquiries. It provides:

(1)On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.
(2)If the relevant building surveyor considers it appropriate in the case of a notice under section 85(1)(b)(ii), the relevant building surveyor—
(a)may ask the owner to give more information before making a determination under subsection (1); and
(b)if more information is requested, must make a copy of that information available to the adjoining owner.

(3)In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing.
(4)The relevant building surveyor must give the owner and the adjoining owner notice in writing of a determination under this section.

Section 88 prohibits the performance of building work unless various requirements have been met. It provides:

(1)An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until—
(a)the adjoining owner agrees or is taken to agree to the protection work; or
(b)the matter is determined by the relevant building surveyor under this Part; or
(c)in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board.

(2)The owner must carry out any protection work required by the building regulations—
(a)if the adjoining owner has agreed to the protection work, in accordance with that agreement; or
(b)if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination; or
(c)if the Building Appeals Board has made a determination under Part 10 in respect of the protection work, in accordance with that determination.

Part 10 of the Act

Part 10 of the Act confers jurisdiction and powers on the Board.

Section 141 of the Act provides:

An owner required to carry out protection work or an adjoining owner may appeal to the Building Appeals Board against—
(a)a determination under section 87 as to the appropriateness of the work; or

…
(c)a failure, within a reasonable time, or refusal to make that determination or declaration; or

(d) a request under section 87 to give more information.

Section 148 describes the nature of an appeal to the Board, and provides:

(1) An appeal under this Part is in the nature of a re-hearing.
(2)On an appeal the Building Appeals Board may consider matters not raised before the decision under appeal was made.

Section 149 defines the powers of the Board in considering the determining an appeal, and provides:

(1)The Building Appeals Board must consider and determine an appeal and by its determination may—
(a)       affirm the decision under appeal; or
(b)       quash the decision under appeal; or
(c)       vary the decision under appeal; or
(d)      set the decision under appeal aside and—
(i)        substitute its own decision; or
(ii)remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.

(2)In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.
…
(4)The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal.

Section 155 empowers the Board to determine disputes between an owner and an adjoining owner where they cannot agree in relation to a matter under pt 7. It provides:

If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.

Regulations

Regulation 113 makes provision for the documentation to accompany protection work notices and states:

(1)The notice required to be served by the owner on the adjoining owner and the relevant building surveyor by section 84 of the Act must be in the form of Form 7 and must be accompanied by the following—
(a)any determination of the relevant building surveyor made under regulation 111;
(b)3 copies of the notice required to be given by the adjoining owner to the owner under section 85 of the Act;
(c)a statement in a form approved by the Authority, that explains the operation of the protection work process under the Act and these Regulations and the procedure for the resolution of disputes relating to protection work;
(d)plans and specifications for any building work, building or structure that may affect the adjoining property and that contain sufficient detail to show how the proposed building work will affect the adjoining property;
(e)plans and specifications for the proposed protection work that contain sufficient detail to show how the protection work will protect the adjoining property from the effects identified in paragraph (d);
(f)one copy of an allotment plan complying with regulation 25(1)(d).

(2) For the purposes of section 84(2) of the Act—
(a) the prescribed details of the proposed building work are—
(i) the relevant details set out in Form 7; and
(ii)the details in the documents required under subregulation (1)(d); and

(b) the prescribed details of the proposed protection work are—
(i) the relevant details set out in Form 7; and
(ii)the details in the documents required under subregulation (1)(e); and

(c)the prescribed information is any information set out in Form 7 that is not a prescribed detail under paragraph (a) or (b).

Section 53 of the Interpretation of Legislation Act 1984 (Vic) provides in relation to forms:

Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law.

Notice of appeal

In his notice of appeal to the Board, Mr Tran stated:

The Nature of the proceeding. What are you appealing?
Failure of the RBS to respond to my request for further information under section 87 of the Act and failure to make a determination upon receiving my response to the protections work notice within the statutory timeframe. There is also a strong argument to say that due to the protections work notice being invalid by being unlawful and/or not disclosing mandatory information, that the owner must re-serve on me a complaint protections work notice so that the protection works process can lawfully occur.
The Grounds for commencing the proceeding. What are your reasons for the appeal?
The protection works materials must not contain the number and type of error that is present in this case. Rather, the materials must contain adequate information to identify the property and the proposed building work, and specify what protection works are proposed to secure the interests of the adjoining land owner and the timing and location of that protection work. The number of copies of notices were also short – the copies allowing for service and record keeping is important and is best abided.
…
The Relief sought. What do you want the outcome to be?
An order that the multiple errors, mistakes, and flaws in the forms, documents and materials provided to the adjoining owner … throughout the protection works process would result in all determinations and any building permit issued in reliance on the faulty protection works notice process, unlawful and invalid …. The upshot is that the protection works notice process must recommence and given the delivery receipt issued to the adjoining owner by the owner, it is recommended that an independent probity auditor be engaged by the owner to scrutinise and report on progress of a new protection works process.

In a supporting statutory declaration, Mr Tran stated:

I assert that I was not served with a lawful protection notice. Among other things, the supported Form 7 was not addressed, did not list my property details not any title details and was not signed.

Directions hearings

At a directions hearing conducted on 15 December 2023, the Board raised as a threshold issue whether it had jurisdiction to deal with the matter because it appeared that the Form 7 document was given to Mr Tran on 11 August 2023 but the Form 8 document was only returned by him on 5 September 2023.

In response, Mr Tran submitted that the Form 7 given to him was lacking as some of the mandatory fields of information had not been provided, and because it was not signed or in conformity with the regulations.

In the course of a submission by Mr Cotton, who appeared for Mirvac, the following exchange took place:

CHAIR:Well, hang on a minute. If a protection work — if a document which purports to be a protection work notice under Form 7 is given to an adjoining owner and it’s so far removed from what’s required under the regulations, then isn’t the argument, well, nothing’s been given apart from a piece of paper?

MR COTTON: Well I say that position is [contradicted] the applicants because they purported to accept that by issuing a Form 8, albeit on 5 September.
CHAIR:How does that change the situation? Because it isn’t a matter ultimately for the Board or a court to determine whether there’s been a Form 7, not whether in fact - - -
MR COTTON: There’s two aspects, sir. We say that the applicants accepted the process and accepted the validity of a Form 7 by purporting the issue a Form 8 on 5 September, and then they’ve asked — they’re now asking the building surveyor to make a determination under s 87. So how can they ask for a determination under s 87 by the relevant building surveyor if they say there’s no valid Form 7?
CHAIR:Well they might be wrong, Mr Cotton. They might - - -
MR COTTON: Well that’s a — a matter for the Board, but we — that’s a matter for the Board, we do accept that. But these are vague allegations they’re making in terms of that the deficiencies are with the protection works notice.
CHAIR:Right now, I’m looking at a document now and it’s a Form 7. It’s got nothing written on it.
MR COTTON: Well, there’s a package of documents and also a — here’s also a USB stick I understand. I’ll have to take instructions on this, but I understand there was a USB stick with relevant materials on it. So it’s not just in terms of the paperwork that was attached to the Form 7 notice. And by the way, protection works insurance documents are not required to be included with a Form 7 protection works notice. But they may have been included regardless on the USB stick that was sent regarding the Albertine development at the same time as — included as part of the package that was left in the letterbox with the initial Form 7 delivery.
CHAIR:And do you say that the service of the USB stick, providing it contains the relevant information, is sufficient to satisfy the requirements of the regulations? It doesn’t seem within the regulations in terms of the form.
MR COTTON: Well, we say it was. A Form 7 was clearly served on Mr Tran on — we say on 11 August, a Form 7. And I understand - - -
CHAIR:Do you say that the Form 7 was filled out, or not? Because, again I’m looking at a Form 7, it’s got the name of the relevant building surveyor. It doesn’t have any of the adjoining property details. It’s got the City of Port Phillip being the municipality but nothing else. The name of the owner being Mirvac. Is that the owner of the property, the builder?
MR COTTON: Yes it is, sir. Yes it is, and the developer. And it has a Mr Hamish Guthrie I think as the appointed manager in those details as well, sir, from Mirvac.
…
CHAIR:Yes, Mr Reed that is.
MR COTTON: Alister Reed, yes.
CHAIR:It’s not addressed to anyone though; just ‘The adjoining owner’.
MR COTTON: Well I think that can — that is possible under s 236 of the Act in circumstances where the adjoining owner is unknown, that you can just address it to ‘The adjoining owner’. And I understand the circumstances were, sir, that the Form 7 was served at the same time on the same date on a number of different [lot] owners for that owners corporation building.
We accept it wasn’t signed, but it does mean that the relevant manager, Mr Reed, of Mirvac as the serving party, and Mirvac is the serving party or the subject land owner. I understand, and I don’t have detailed instructions, that there was a USB stick served with the Form 7 notice as well, and information in the Form 7 about the nature of the building works and the protection works.

Following the directions hearing, the Board published an order which included:

OTHER MATTERS
A.The Applicant has filed an appeal in which they seek a review of the relevant building surveyor’s (Respondent’s) failure within a reasonable time or refusal to make a determination under s 87 of the Building Act 1983 (Vic) (the Act) (the Appeal).
B.The Respondent and the First Interested Party contend that the Respondent is not jurisdictionally empowered to make a determination under s 87 of the Act.
C.The Respondent and the First Interested Party further contend that the Applicant was served with a Notice of Protection Work (Form 7) on 11 August 2023 but that the Applicant failed to give to the First Interested Party a notice disagreeing with the proposed protection work (Form 8) until on or about 5 September 2023, being more than 14 days after the prescribed period. Consequently, they contend that the Applicant is deemed to have agreed to the proposed protection work, obviating the jurisdictional requirement to make a determination under s 87 of the Act.
D.The Applicant contends that they were served with the Form 7 on or about 25 August 2023 and that they served their Form 8 within the prescribed period. The Applicant further contends that the documents which purported to give notice of the proposed protection work were incomplete, and therefore did not constitute compliance with s 84 of the Act, in any event.
E.The parties agree that the Board’s determination of the Appeal depends on whether the Respondent was under a statutory obligation to make a determination under s 87 of the Act, which would not be the case if there was deemed agreement to the proposed protection work.
F.The Respondent advised that a building permit has been issued in respect of the ground works and that significant protection works and building work has now taken place.
G.The Applicant has indicated that they are unable to say whether the proposed protection work is appropriate because they have not had the opportunity to fully review the protection work documents or any updated construction documents.
DIRECTIONS AND ORDERS
…
3.For the avoidance of doubt:
(a)the Board has jurisdiction to determine whether the Respondent is jurisdictionally empowered to make a determination under s 87 of the Act (the Jurisdictional Question);
(b)the making of these interlocutory orders is not to be construed as a finding by the Board that there has been a failure to comply with s 84 of the Act; and
(c)the filing of this Appeal, of itself, does not operate to prevent the First Interested Party from completing protection work or the building work giving rise to the requirement for protection work.

4.This proceeding is listed for administrative mention on 25 January 2024, by which date the Applicant must advise the Board and the other parties in writing as to the status of the proceeding and whether there are any outstanding matters for determination (such as determination of the Jurisdictional Question).
5.If by 25 January 2024, no party advises the Board in writing that they wish to proceed with any outstanding matters, the Board will assume that the parties do not wish to proceed with any outstanding matters and orders will be made without further notice that the Applicant has leave to withdraw the Appeal and for the proceeding to be discontinued with no orders as to costs.

The recitals in the order largely refer to the issue raised by the relevant building surveyor and Mirvac as to whether the Board had jurisdiction to hear the appeal as the Form 8 notice was not served until after the 14 day period required under s 85(1) of the Act had expired. However the contention of Mr Tran that the Form 7 was incomplete and that the protection work notice did not comply with s 84 of the Act is identified in Recital D.

Under paragraph 4 of the order, Mr Tran was to advise the Board and the other parties as to the status of the appeal and whether there were any outstanding matters for determination such as the determination of the ‘Jurisdictional Question’. The term ‘Jurisdictional Question’ was defined in paragraph 3(a) of the order to mean whether the Board was jurisdictionally empowered to make a determination under the Act. The definition of ‘Jurisdictional Question’ used language similar to that in Recital B which referred to the contention that the relevant building surveyor was not jurisdictionally empowered to make a determination under s 87 of the Act.

On 25 January 2024, Mr Tran responded by email to paragraph 4 of the Board’s order and advised the Board and other parties as follows:

The Applicants request that this proceeding be listed as a priority. We write to you seeking an order that the Form 8 in this matter was validly served including that it was within time and that it therefore has the full force of a valid Form 8, requiring a determination be made under section 87. We consider that such order is open to the Board upon considering the documents we have already filed and served including Affidavit material. As a separate matter and owing to the circulation of materials by or on behalf of the owner pursuant to order of the BAB, and noting such materials were required to be served with the Form 7, if the Applicants are permitted by the BAB to amend the Form 8, they would seek to do so.
Please advise if you require anything further from the Applicants in relation to us asserting our rights under the Act, that we say we have been denied by the owner/RBS without proper basis, i.e. the Applicants have been locked out.

On 2 February 2024, and without further input from the parties as to the form of the threshold questions, the Board made orders which included:

1.This proceeding is listed for a preliminary hearing to determine the following threshold questions (the Threshold Questions):
(a)Did the Applicant give the owner of the Building Site, the subject of this proceeding, and the Respondent notice pursuant to s 85(1)(b) of the Building Act 1993 (the Act) within 14 days after being served with a notice pursuant to s 84 of the Act?
(b)if no to question (a), then are there any other factors or circumstances which would enliven the requirement that the Respondent make a determination under s 87 of the Act?

…
6.The Threshold Questions will be determined ‘on the papers’ on or after 26 February 2024, subject to the Board ordering otherwise or a party requesting an oral hearing to be convened in lieu thereof.

The threshold questions as formulated by the Board were responsive to the request made by Mr Tran in his email of 25 January 2024 when he sought an order that the Form 8 notice given by him was within time. They do not directly raise the question whether the protection work notice served by Mirvac was invalid.

On 12 February 2024, Mr Tran made a submission by email to the Board contending that the threshold questions should be answered in the following manner:

1(a)
Did the Applicant give the owner of the Building Site, the subject of this proceeding, and the Respondent notice pursuant to s 85(1)(b) of the Building Act 1993 (the Act) within 14 days after being served with a notice pursuant to s 84 of the Act?
Absolutely, yes.
Unless away on holidays or otherwise not living at home, our letterbox is checked without fail, every day. We have a golden retriever and no matter the weather, we pass our letterbox and check it.
I refer to my Stat Dec of 13 November 2023 and seek to rely upon it; I understand that receipt keen to Receipt of my signed notice by the owner and RBS is common ground and not disputed. Upon by evidence being preferred as to service of the PWN, the corollary is that I met the 14 day time limit prescribed by the Act and it’s only fair that this is acknowledged and any benefit of such status not be denied me.
1(b)
If no to question (a), then are there any other factors or circumstances which would enliven the requirement that the Respondent make a determination under s 87 of the Act?
If the Tribunal is against me on question 1(a), I emphasise that the PWN being signed and information included with it being complete is so critical that what was served is defective and it must be re-served (not given to me again but served as a PWN under the Act so that I can avail myself of the ability to seek advice etc within the protection process and not with the constraints of it being a private, self-funded matter.

On 16 February 2024, Mirvac’s solicitors filed submissions as to the threshold questions. The submissions highlighted that the protection work notice was served on Mr Tran on 11 August 2023 as demonstrated by Australia Post’s registered post tracking confirmation. Mirvac submitted that Mr Tran’s Form 8 response notice was delivered well outside the statutory time limit of 14 days, and that the relevant building surveyor had no power to issue a section 87 determination.

As to the failure by a Mirvac representative to sign the Form 7, Mirvac submitted:
It is not clear what practical effect flows from the Form 7 Protection Works Notice not being actually signed by a representative of Mirvac, when it is clear from that document that the Notice was sent by Mirvac Victoria Pty Ltd (the Owner) with a contact person of Hamish Guthrie, and the agent is listed as Mirvac Constructions (Vic) Pty Ltd with a contact person named as Alister Reed. Accompanying the Protection Works Notice was a letter with nearly two pages of information that advised contact details including Shane Leonard (as the Relevant Building Surveyor) and also Julian Giardino as the Site Engineer for Mirvac.
This is an omission of form only (there not being a signature) which is administrative and not substantive in nature. In no way would it prevent an adjoining owner from considering the Form 7 Protective Works Notice and associated materials and providing a Form 8 Response, should the adjoining owner have been so minded.
Mirvac submitted that the Board should answer the threshold questions in the following manner:
For all of the above reasons, it is submitted that the answers to the Threshold Questions should be answered as follows:
1(a)The Answer is ‘no’ because if service took place on 11 August 2023, and the Applicant has not discharged the evidential onus to show that service did not take place then, then any Form 8 Notice under s 85(1)(b) of the Act has to be served by the adjoining owners by 25 August 2023, and not the following month.
1(b)There are no other factors or circumstances that would enliven the requirement that the Respondent make a determination under s 87 of the Act, in our submissions. On those grounds, the answer to the question at 1(b) is also ‘no’.
Mirvac’s submission was supported by the affidavit of Julian Giardino, deposed 16 February 2024.[3] Mr Giardino deposed that he was the project engineer responsible to ensure the effective service of the protection work notice. He confirmed that the protection work notice was served on Mr Tran on 11 August 2023 as was recorded by Australia Post tracking, and that no response was received from Mr Tran until about 5 September 2023.
[3]The affidavit is inaccurately dated 16 February 2023.

Relevant building surveyor’s submission

The building surveyor also made a submission to the Board in response to the threshold questions. The submission was in substance:

(a)Did the Applicant give the owner of the Building Site, the subject of this proceeding, and the Respondent notice pursuant to s 85(1)(b) of the Building Act 1993 (the Act) within 14 days after being served with a notice pursuant to s 84 of the Act?
a.It is my view that the applicant did not provide the response notice (Form 8) within the prescribed time frame in accordance with s 85(1)(b) of the Building Act 1993 (the Act). Therefore, the answer to this question is No.
My reasons for holding this view are as follows:
i.I have relied upon evidence provided by the owners (owners agent) of 31 Queens Street Melbourne (the Owner), namely postal tracking document (see Attachment 1) indicating the Form 7 and protection works package was served upon the owners of 5/32 Queens Road Melbourne (the Adjoining Owner) on the 11 August 2023.
ii.I have subsequently received a Form 8 response notice from the Adjoining Owner dated 05/09/2023. (See Attachment 2).
iii.Clearly the Adjoining Owner has received the Form 7 and Protection Works Package as they have the relevant Form 8 in their possession and have responded on 05 September 2023. The Form 8 from the adjoining owner was not received physically and as dated not within the prescribed 14-day period set out in s 85(1)(b) of the Act even allowing for a postal adjustment of up to 10 days. Receipt of the Form 8 on the 05 September 2023 was via email.

(b)If no to question (a), then are there any other factors or circumstances which would enliven the requirement that the Respondent make a determination under s 87 of the Act?
a.There are no factors or circumstances that I am aware of which would enliven the requirement that the Respondent make a determination under s 87 of the Act?
b.Based upon the evidence noted above the Adjoining Owner is taken to have agreed to the proposed protection works.

c. I hold this view due to the following facts:
i.The Adjoining Owner has clearly received the Form 7 and Protection Works Package.
ii.The adjoining Owner has not responded within the prescribed period set out in s 85(1)(b) of the Act.
iii.S 85(2) clearly states, ‘…an adjoining owner fails to give notice under subsection (1) within the required time is taken to have agreed to the proposed protection works’.

Submissions in response

On 4 March 2024, Mr Tran submitted in response that Mirvac had failed to prove service on 11 August 2023, and that the Board should conclude that service was effected on 25 August 2023.

Board’s determination

In its determination, the Board considered the evidence as to when the protection work notice was served and found that the package containing the protection work notice was served on Mr Tran on 11 August 2023. It followed that unless there was some other disqualifying feature or defect, the response given by Mr Tran to the relevant building surveyor was not provided within 14 days after Mr Tran was served with a notice under s 84 of the Act.[4]
[4]Determination [29], [30].

This finding is not disputed before me.

Form 7 notice

The Board then considered the content of the Form 7 notice. After setting out the substance of Form 7, the Board said:

In summary, Form 7 provides space for:
(a)the name and address of the owner, and the address, and all the details, of the adjoining land; and

(b) the signature of the person serving the Form 7.
The Form 7 Notice in this case did not include any of those details. Therefore, the question is whether the lack of all of this detail invalidates the form.
The Respondent submits:
I have relied upon evidence by the owners (owners agent) of 31 Queens Street Melbourne (the Owner), namely postal tracking document (see Attachment 1) indicating the Form 7 and protection works package was served upon the owners of 5/32 Queens Road Melbourne (the Adjoining Owner) on the 11 August 2023

and does not specifically address the content of the Form 7 Notice.
The First Interested Party does not make any submissions regarding the lack of detail regarding the Applicant and the Adjoining Land. In respect of the lack of signature, the First Interested Party submits:
It is not clear what practical effect flows from the Form 7 Protection Works Notice not being actually signed by a representative of Mirvac, when it is clear from that document that the Notice was sent by Mirvac Victoria Pty Ltd (the Owner) with a contact person of Hamish Guthrie, and the agent is listed as Mirvac Constructions (Vic) Pty Ltd with a contact person named as Alister Reed. Accompanying the Protection Works Notice was a letter with nearly two pages of information that advised contact details including Shane Leonard (as the Relevant Building Surveyor) and also Julian Giardino as the Site Engineer for Mirvac.
This is an omission of form only (there not being a signature) which is administrative and not substantive in nature. In no way would it prevent an adjoining owner from considering the Form 7 Protection Works Notice and associated materials and providing a Form 8 Response, should the adjoining owner have been so minded.

Section 53 of the ILA provides:
Strict compliance with prescribed forms not necessary
Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law.

As the Board observed in Tao & Anor v Tsimikis,[5] (citing Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd):[6]
[5][2022] VBAB 17, [48].
[6](1969) 16 FLR 23 [31].
A divergence from the form would be substantial or material if it caused the statement to convey less information than the form requires or to confuse or mislead […]as to the matters which the form is designed to bring to this notice.

I do not think that the omissions that occurred in this case could confuse or mislead, rather, the question in my view is whether the Form 7 Notice conveyed less information than the Act and the Regulations require.
And, in that regard, I find that the Form 7 Notice itself must have disclosed sufficient information to enable the Applicant to understand why he was receiving the Protection Works Package and his rights in relation to it. In my view, this means that the Form 7 Notice itself must contain (relevantly) sufficient detail of:
(a)the name and address of the person to whom the Form 7 Notice was addressed;
(b)the land on which the building work is proposed to be carried out; and
(c)the land which has been identified as potentially being affected by the building work.
The Form 7 Notice in this case did not provide all that information.

I find that the complete absence of any detail of the Applicant and the Adjoining Land render the Form 7 Notice defective. In other words, while I do not necessarily think that every field in top half of the Form 7 must, in every case, be filled in, not providing any of the above information in the top portion of the Form 7 Notice leads me to the conclusion that a valid Form 7 Notice was not served.
That being the case, I find that what was served on the Applicant was not a Form 7 which complied with s 84 of the Act.

These conclusions led the Board to answer the first threshold question in the following way:

It follows from the above that the answer to the first threshold question:
Did the Applicant give the owner of the Building Site, the subject of this proceeding, and the Respondent notice pursuant to s 85(1)(b) of the Act within 14 days after being served with a notice pursuant to s 84 of the Act?

must be ‘no’.

The Board then declined to answer the second threshold question:

The answer to the first threshold question enlivens the second threshold question.
…are there any other factors or circumstances which would enliven the requirement that the Respondent make a determination under s 87 of the Act?

If the answer to the first threshold question was ‘no’ because the First Interested Party had served a valid Form 7 Notice more than 14 days before the Applicant gave the Respondent notice under s 85 of the Act, the purpose of answering the second threshold question would be to determine whether the Applicant’s application could still proceed, despite s 85(2) of the Act.
However, the answer to the first threshold question is ‘no’ because the First Interested Party has not served a valid Form 7 Notice.
None of the parties have made any submissions about what should (or could) occur in this case.
In these circumstances, I think it is better that I hear from the parties before making any further determinations. To that end, I will direct the registrar to list this matter for a directions hearing and will not answer the second threshold question at this time.

On 3 July 2024, the relevant building surveyor advised Mirvac that he would not be issuing a stop work notice until such time as the property had been brought to a stage where continued dewatering was no longer required. He said that his decision to allow the work to continue had been based on the advice provided and the potential risks in leaving the site in a temporary state of retention for any excessive period of time. He said that the sooner the basement construction was completed the safer the site would become.

Second protection work notice

At the same time, the relevant building surveyor requested Mirvac to re-issue and serve the Form 7 with all relevant supporting documentation and three blank Form 8s as required by s 84 of the Act and r 113 of the regulations. This was done by Mirvac on 12 July 2024. Mr Tran responded to the re-served protection work package on 30 July 2024 which was outside the 14 day limit in s 85(1) of the Act. As a result, Mr Tran is taken to have agreed to the proposed protection work.

On 31 July 2024, the relevant building surveyor advised Mr Tran that he could not accept his Form 8 as a valid response under s 85 of the Act. Nonetheless he assured Mr Tran that the proposed protection work was appropriate and that Mr Tran’s property had been suitably catered for.

By 29 October 2024, all protection works had been completed with the exception of the destressing of the anchors which could only be performed after the ground floor slab had been poured. This is scheduled for completion in February 2025.

Principles of statutory construction

The principles of statutory construction are well known. In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality of the High Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’... Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision...
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[7]

[7](1998) 194 CLR 355, 381–2 [69]–[71], 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted) (‘Project Blue Sky’). See also Maroondah City Council v Fletcher (2009) 29 VR 160, 168–9 [36] (Warren CJ and Osborn AJA); Commissioner of State Revenue (Vic) v Landrow Properties Pty Ltd [2010] VSCA 197; (2010) 79 ATR 800, 813–4 [51] (Neave, Harper and Hansen JJA).

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (‘Alcan’), the High Court said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[8]

[8](2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).

The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[9]

[9](2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).

In CIC Insurance Ltd v Bankstown Football Club Ltd, the plurality of the High Court said:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[10]

[10](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).

These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (‘Interpretation Act’), which requires that when interpreting an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.

Ground 1 — Is the Board vested with the power to determine the validity or otherwise of a protection work notice?

Mirvac first submitted that:

(a) the relevant building surveyor was not empowered to consider the validity of the Form 7 notice under s 87(1) of the Act;

(b) the Board standing in the shoes of the relevant building surveyor lacked the power to consider the validity of the Form 7 notice; and

(c) taken together s 85(1) and s 87(1) of the Act restrict the jurisdiction of the relevant building surveyor to circumstances where the relevant surveyor has received a Form 8 notice within the timeframe prescribed by s 85(1).

Mirvac then submitted that the limited role given by the Act to the relevant building surveyor did not leave an adjoining owner who had concerns about the level of information on a Form 7 notice without protection. The safeguards were:

(a) in the event of disagreement between Mr Tran and Mirvac as to a matter arising under pt 7, Mr Tran could refer the dispute to the Board under s 155 of the Act;

(b) Mirvac was only able to carry out the proposed protection work after obtaining all other necessary permits and approvals.[11] This required Mirvac to obtain a building permit under pt 3 of the Act. If the relevant building surveyor was of the view that the requirements of pt 7 had not been completed with a permit might be refused; and

(c) Mr Tran had the opportunity of giving Mirvac and the relevant building surveyor a notice under s 85(1)(b)(ii) requiring more information to be given in respect of a Form 7 notice. While Mr Tran did serve a Form 8 notice, it was not given in time.

[11]Act s 86.

Finally, Mirvac submitted that the Board had no incidental or implied power to determine the validity of a Form 7 notice, and that:

(a) the critical issue was whether a Form 8 notice had been issued within the requisite 14 days or whether there was a deemed agreement under s 85(2) of the Act;

(b) if the legislature had intended that either the relevant building surveyor or the Board were to have the power to determine the validity of the Form 7 notice it would have used clear words to that effect;

(c) the Board’s construction if accepted would wreak havoc on the strict timelines and overall objectives of the scheme established by pts 7 and 10 of the Act. It would permit an adjoining owner to raise a collateral attack on the validity of a Form 7 notice by issuing a Form 8 notice months after the 14 day period stipulated in s 85(1) had expired; and

(d) such a result would cause significant uncertainty and be contrary to the underlying objectives of the Act.

Powers of the Board

The Board is established under pt 10 of the Act. The Board is a creature of statute and its jurisdiction is confined to what is conferred upon it by legislation.[12] In an appeal, the Board may exercise all of the powers and discretions conferred upon the original decision-maker.[13] The power to make ancillary or incidental orders conferred by s 149(4) does not extend the power of the Board beyond the powers of the decision-maker whose decision is under appeal.[14]
[12]CES Queen (Vic) Pty Ltd v Thomas [2014] VSC 602, [45] (Vickery J).
[13]Act, s 149(2).
[14]City ofBoroondara v Building Appeals Board [2000] VSC 546, [16] (Balmford J); Carson v Turner [2019] VSC 427, [64] ( Cameron J).

An owner required to carry out protection work or an adjoining owner may appeal to the Board against a refusal or failure by the relevant building surveyor within a reasonable time, to make a determination under s 87 of the Act as to the appropriateness of the work.[15] Under s 87(1) of the Act, the relevant building surveyor on receipt of a notice under s 85(1)(b) must examine the protection work proposal and determine the appropriateness or otherwise of the proposed work. If the relevant building surveyor considers that more information is appropriate, the relevant building surveyor may ask the owner for more information, and make that information available to the adjoining owner.[16]
[15]Act, s 141(c).
[16]Act, s 87.

Jurisdiction to hear the appeal

In addition to its duties as set out in the Act, the parties were in agreement that the Board had a duty to determine whether it had been vested with jurisdiction to hear the appeal.

As the Court of Appeal said in Thurin v Krongold:

It is well established that if it is the ‘first duty’ of a court or quasi-judicial body to identify whether or not it has jurisdiction.[17]

[17](2022) 73 VR 403, [128] (McLeish, Niall, and Walker JJA) (citations omitted).

To the same effect, the High Court said in Citta Hobart Pty Ltd v Cawthorn:

Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty. If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that ‘everything which is incidental to the main purpose of a power is contained within the power itself’

The power which a court or a non-court tribunal necessarily has to ensure that it remains within the limits of its jurisdiction is not of a nature that is inherently judicial. The reason is that the exercise of the power is incapable of quelling a controversy between parties about existing legal rights. Nor is it inherently non-judicial. Rather, the power takes its nature from the nature of the power to which it is incidental: ‘[t]he nature of the final act determines the nature of the previous inquiry’

A court in which judicial power is invested therefore ‘has jurisdiction to determine — and to determine judicially — whether it has the jurisdiction to entertain a particular application or to make a particular order’. The court, in other words, has ‘jurisdiction to decide its own jurisdiction’ in the performance of which it exercises judicial power.

A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority — in the exercise of non-judicial power — to ‘make up its mind’ or ‘“decide” in the sense of forming an opinion’ about the limits of its own jurisdiction ‘for the purpose of determining its own action’. The authority is not to ‘reach a conclusion having legal effect’ but to form an opinion for the purpose of ‘moulding its conduct to accord with the law’.

The jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution on which State judicial power is conferred by State legislation is to be understood in conformity with the same principles. The State tribunal must be taken to have incidental jurisdiction to determine whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction. The Federal Court and the Court of Appeal of the Supreme Court of New South Wales have correctly so held.[18]

[18](2022) 276 CLR 216, 229-30 [21]–[25] (Kiefel CJ, Gageler, Keane, Gordon, Steward, and Gleeson JJ) (citations omitted) (‘Citta’).

It follows from these passages that the Board has the duty to decide whether it has jurisdiction to entertain a particular application or make a particular order. It has authority to form an opinion as to the limits of its own jurisdiction for the purposes of determining its own actions.

In Citta, the High Court specifically dealt with the position of a State tribunal like the Board which is not a court, and held that such a tribunal has incidental jurisdiction to decide whether the hearing and determination of a particular claim or complaint was within the legislated limits of State jurisdiction.[19]
[19]Ibid 230-231 [25].

The duty imposed on a court or tribunal to determine whether there is jurisdiction to hear an appeal or proceeding should not be confused with a collateral attack or review.[20] Rather a finding that jurisdiction exists is a central requirement of an appeal or proceeding which must be established before the court or tribunal can proceed and which involves the directly affected parties.
[20]See Ousley v The Queen (1997) 192 CLR 69, 98-99 (McHugh J); Orr v Director of Proceedings on behalf of the Health Ombudsman [2024] QCA 67, [44]–[45] ( Mullins P, Bond JA and Fraser AJA).

Invalidity

The leading case in Australia which sets out the currently adopted test to determine whether compliance with a statutory provision is mandatory or directory, and therefore whether non-compliance with the statutory provision invalidates what the person involved has done is Project Blue Sky[21] where the plurality of the High Court importantly stated:

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’. [22]

[21]Project Blue Sky (n 7).

[22]Project Blue Sky (n 7) 389-390 [92] (McHugh, Gummow, Kirby, and Hayne JJ) (citations omitted); 374-5 [41] (Brennan CJ).

Project Blue Sky has been followed or applied on innumerable occasions. In determining whether statutory provisions are mandatory or directory, it focuses attention on the purpose of the legislation and the intention of Parliament. In the present case, the question becomes whether it was the intention of Parliament that a non-compliance with s 84 or with r 113 should have the effect of invalidating the protection work notice.

In Ian Street Developer Pty Ltd v Arrow International Pty Ltd, each member of the Court of Appeal applied the Project Blue Sky test with Maxwell P discussing the difficulties and uncertainties of its application.[23] In Bare v IBAC, the Court of Appeal observed that the use of the term ‘unlawful’ does not necessarily connote invalidity. The fact every that an invalid act is an ‘unlawful act’ does not entail that every unlawful act is invalid.[24] In Ko v Hall, the Court of Appeal held that the failure of a medical panel to comply with an apparently mandatory time limit contained in a provision in the Wrongs Act 1958 (Vic) did not invalidate the decision of a medical panel.[25]
[23][2018] VSCA 294, [43]–[44] (Maxwell P); [89] (McLeish JA); [92] (Niall JA).
[24](2015) 48 VR 129, 327 [617] (Warren CJ, Tate and Santamaria JJA).
[25](2020) VSCA 224, [38-46] (Maxwell P, Beach and McLeish JJA).

The starting point is to examine the purposes of the Act found in s 1. They include providing an efficient and effective system for issuing building permits, administering and enforcing related building and safety matters and resolving disputes.[26] Under pt 7 of the Act, the rights of adjoining owners are balanced against the rights of owners to perform building work. For this reason, adjoining owners have limited rights of review and appeal under pt 7 and 10 of the Act, and are subject to strict time limits.
[26]Act, s 1(c)).

Adjoining owners have other important safeguards. including the power of the relevant building surveyor to issue or refuse to issue a building permit for the protection work under pt 3; to carry out inspections of building work under pt 4; and to refer certain disputes to the Board under pt 10 of the Act. An adjoining owner who has complied with the time limits in the Act can appeal under s 141 or refer a dispute to the Board under s 155.

It is hard to identify any reason why Parliament would intend that an owner who substantially complies with the requirements of s 84 and r 113 but fails to provide some particular or detail that was required should find that the protection work notice was thereby invalidated. To the contrary, the protection work and response notice system should operate in a practical, sensible and efficient manner, as would be expected in a fast-track system.

An important indicator of the intention of Parliament is s 87(2). If a protection work notice is deficient in any respect, the relevant building surveyor if he or she considers it appropriate, can request further information under s 87(2) or make inquiries under s 87(3). This is a convenient means by which the relevant building surveyor can obtain additional or missing information.

A second important indicator is that the relevant building surveyor is required to make a determination under s 87(2) if and only if a response notice is received from an adjoining owner within the 14 day time limit specified in s 85(1). Plainly the legislature intended a speedy process for the commencement of protection work.

And as I have said, the relevant building surveyor can decline to issue a building permit under pt 3, or decline to make a determination under s 87(1) on the basis that the information provided in the protection work notice was inadequate or unsatisfactory. The relevant building surveyor can also inspect the building work or refer certain disputes to the Board.[27] An adjoining owner can refer a dispute to the Board.[28] These provisions are all available should there be missing information in a protection work notice.
[27]Act pt 3 and pt 10.
[28]Act s 155.

A protection work notice under s 84(1) and (2) of the Act is not a simple stand-alone form. The Form 7 notice is but one document in a comprehensive array of documentation that constitutes the protection work notice. The Form 7 notice should not be viewed in isolation, but as one of many documents which must be served on the relevant building surveyor and on adjoining owners nominated by the relevant building surveyor in the Form 6 notice given to the owner.

The documents and information contained in the protection work notice are crucial to the examination of the proposal by the relevant building surveyor under s 87 of the Act. Some documents provided in a protection work notice will be of a technical character. They will be the principal focus of attention by the relevant building surveyor.

Omissions and failures

It is easy to envisage the wide variety of circumstances that may arise concerning a protection work notice: :

(a) in the ideal case, the protection work notice is complete and compliant with pt 7 and the regulations;

(b) however the protection work notice may be incomplete or lacking in some respects or may be insufficient in content to satisfy the requirements of r 113;

(c) the documents which constitute the protection work notice may be delivered to the relevant building surveyor or adjoining owners at different times or in tranches of documents; or

(d) the relevant building surveyor may direct that more information is to be provided by the owner and given to adjoining owners under s 87(2)(a) and (b) of the Act.

Under the principle stated in Najarian v Minister for Immigration and Multicultural Affairs,[29] an incomplete form can become a valid application when the omitted information is supplied.[30] The principle provides a simple pathway by which an incomplete application may be made complete.
[29](2000) 175 ALR 695 [35]–[36] (Merkel J) (‘Najarian’).
[30]Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908, [55] (Hill J); Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, 499 [19-21] (Spender J), 509 [72] (Gyles J) Applicant in V471 of 2000 v Minister for Immigration and Multicultural Affairs [2001] FCA 1463 (Ryan J).

In City of Port Adelaide Enfield v Minister for Transport and Urban Planning, Debelle J said:

I do not think that Parliament intended that the obligations of regs 68 and 69 should require strict compliance so that a failure strictly to comply with them would invalidate a decision approving development. That must, I think, be the consequence of the fact that the Commission has the power vested in it by s 49(4) to seek additional information. One can readily imagine cases where the initial application lacks sufficient particulars to enable the Commission to assess the development and the Commission requests and obtains further information which it then accepts as adequate. In those circumstances, it would be absurd to suggest that any approval consequent upon a report by the Commission is invalid merely because the application as originally lodged did not contain all relevant information. In other words, if the Commission reports upon an approval to the Minister, it is reasonable to infer that the Commission had sufficient information to prepare the report.[31]

[31](1999) 73 SASR 22, 30 [26].

A similar approach has been adopted in the Victorian Civil and Administrative Tribunal in planning applications. In ML Design Pty Ltd v Boroondara City Council, Deputy President Gibson said:

What are the implications of incomplete information accompanying an application or request to amend an application? In [Najarian] the Federal Court of Australia held that an incomplete form can become a valid application when the omitted information is supplied. In reaching this conclusion in Najarian, Merkel J agreed with the views and conclusion expressed by Hill J in Nader v Minister for Immigration and Multicultural Affairs[32] where his Honour said:
In my view, there was a valid application, not when the Application Form in its incomplete state was submitted, but once the information foreshadowed in the incomplete form was provided to the Minister. While it is clear, in accordance with the existing case law, that the information supplied could not operate retrospectively to validate the invalid application, it operated to complete the inchoate application and produce then, for the first time, a valid application. Thus Mr Nader had made a valid application for a protection visa to be granted to him and had done so before the application was considered by the Minister.[33]

[32](2000) 175 ALR 695.

[33][2005] VCAT 2088.

In Bensons Funds Management Pty Ltd v Stonnington City Council, Deputy President Gibson again applied the Najarian principle when considering the provisions of the Planning and Environment Act1987 (Vic).[34]
[34][2015] VCAT 726; see also Kairouz Architects v Darebin City Council [2017] VCAT 2099; Plenty & Dundas Pty Ltd v Yarra City Council [2023] VCAT 69

Like the Tribunal, the Board has legislative requirements to proceed with as little formality and technicality as the requirements of the Act and the regulations and the proper consideration of the matter before it permits.[35]
[35]Act s 166(6); sch 3 cl 15(3)(f).

The legislative history of the Act and previous legislation is helpfully collected by Digby J in Colonial Range Pty Ltd v CES Queen (Vic) Pty Ltd[36] and highlights the need for a one-stop shop or fast-track system to be administrated in an expeditious and practical manner devoid of legal technicalities wherever possible. The history of the legislation suggests that Parliament did not intend that the omission of some information in a substantially complete protection work notice should render the entire notice invalid and bring the building approval process to a halt.
[36][2017] VSC 317, [172]–[189].

I conclude that it is not a purpose of the Act or the regulations to invalidate a substantially complete protection work notice merely because some information required by s 84, r 113 or Form 7 is omitted. The protection work notice provided by Mirvac was comprehensive and omitted relatively minor information in the context of an array of detailed accompanying technical reports and plans, supported by advisory correspondence and contact information, and a correctly addressed and signed envelope.

The question before the Board was whether the protection work notice was substantially complete when given to Mr Tran on 11 August 2023 so as to set the clock running and trigger the commencement of the 14 day period in s 85(1) of the Act.

I am of the opinion that the protection work notice served on Mr Tran on 11 August 2023 was substantially complete and was sufficient to constitute a protection work notice for the purposes of pt 7 of the Act. In total, it was a formidable body of relevant technical information and plans with accompanying letters and advices which were readily understood by laypersons. It contained a certificate by a registered building practitioner that the proposed work was compliant with the Act and regulations.

The information omitted in the Form 7 was largely overcome by the correct name and street address on the envelope containing the protection work notice sent to Mr Tran. He would have been in no doubt that the protection work notice was addressed to him as the owner and occupier of Unit 5, 32 Queens Road, Melbourne. The letters, explanations and information contained in the protection work notice and the signature of an authorised Mirvac employee on the envelope left him in no doubt that the proposed work was authorised by Mirvac. There were contact details for the relevant building surveyor and Mirvac personnel including Mirvac’s agent and the site engineer. There were advisory letters, technical reports and detailed plans. Mr Tran had no practical difficulty in responding to the protection work notice.

Mr Tran was the registered proprietor of Unit 5, 32 Queens Road, Melbourne where he resided with another person. The omission of his title details on the Form 7 was hardly significant as he was the registered proprietor and one might expect him to be familiar with the title details of his own property. In addition, the extensive plans and maps and other detailed geotechnical information in the protection work notice were sufficient to overcome any doubt as to the location of the protection works to be performed by Mirvac.

Answer to Ground 1

The Board has power to determine the validity or otherwise of a protection work notice where that is necessary to determine whether it has jurisdiction to hear an appeal under s 141 of the Act. The powers of the relevant building surveyor and those of the Board only arise if the relevant building surveyor receives a response notice under s 85(1)(b) of the Act. The adjoining owner will have given a notice to the relevant building surveyor under s 85(1)(b) of the Act only if the adjoining owner’s response notice is given no less than 14 days after the service on the adjoining owner of the protection work notice. In the event of an appeal, this entails an examination by the Board as to when it was that a protection work notice was given under s 84 of the Act.

However it is not the intention of Parliament in enacting pt 7 of the Act to invalidate protection work notices where they are substantially complete when served because of some omission or deficiency in complying with s 84, r 113 or Form 7. Where there are omissions or deficiencies, the relevant building surveyor, if he or she considers it appropriate, can exercise the powers in s 87 of the Act and obtain additional information. Likewise, the Board can exercise its own powers and obtain additional information should that be needed.

In the present case, the protection work notice was substantially complete and valid and Mr Tran’s response notice was not served within the 14 day period. The relevant building surveyor was not empowered to make a determination under s 87(1) and he did not.

For its part, the Board has no jurisdiction to hear the appeal.

Ground 2 — Did the Board fail to provide adequate notice to Mirvac that it intended to determine the validity of the protection work notice as part of its determination of the first preliminary question?

Both Mirvac and the Board agreed that the Board was obliged to provide procedural fairness to the parties.[37]
[37]Act s 166(6); sch 3 cl 15(3)(c).

On 2 February 2024, the Board listed two threshold questions for hearing. Neither clearly or directly raised the issue of whether the protection work notice was valid.[38]
[38]Above [33].

The form of the first threshold question concerned the issue raised by Mr Tran in his email of 28 January 2024.[39] He sought an order that his response notice was validly served within time. He did not in the email seek an order that the protection work notice was invalid. The other parties received this email.
[39]Above [32].

Before me, both parties accepted that the issue whether the protection work notice was valid was a live issue in the proceeding. However, Mirvac submitted that it was unaware that the Board proposed to deal with this issue at the preliminary hearing on the papers ordered on 2 February 2024. It had been a party to the appeal only since 18 December 2023.

In the event, the relevant building surveyor did not address the validity of the protection work notice in his submission to the Board at all despite the fact that if the protection work notice were invalid it would mean that Mirvac had not properly undertaken the pt 7 process. For its part, Mirvac mentioned the issue in two paragraphs in its written submissions but did not make detailed submissions or arguments about it.

The Board noted in its determination that the relevant building surveyor made no submissions on the issue.[40] It referred to the paragraphs in Mirvac’s submission that dealt with the same issue.[41] However the Board did not draw the conclusion that neither the relevant building surveyor or Mirvac understood that they were expected to deal with the issue in their written submissions.
[40]Above [44].
[41]Ibid.

As to the second threshold question, the Board concluded that it should hear from the parties before answering the second threshold question or making any further determination.[42]
[42]Above [46].

Before me, the Board submitted:

(a) Mirvac was given a reasonable opportunity to present its case;

(b) natural justice required only a reasonable opportunity and not an optimal one;

(c) Mirvac was given adequate notice that the validity of the partially completed Form 7 was a live issue in the appeal;

(d) Mr Tran attacked the validity of the Form 7 notice from the outset;

(e) at the directions hearing conducted on 15 December 2023, Mirvac’s solicitor discussed this issue with the Board;

(f) Mirvac directly addressed matters going to the validity of the Form 7 notice in its written submissions dated 16 February 2024; and

(g) Mr Tran was not obliged to bring his complaint about the validity of the Form 7 notice through an application under s 155 of the Act.

The Board is required to act in accordance with the rules of natural justice.[43] The obligation to afford natural justice is a flexible one to adopt fair procedures that are appropriate to the circumstances of the case. The statutory framework of the statute in question is of critical importance as are the relevant facts and circumstances.[44] The aggrieved party must show that the breach of the obligation gave rise to ‘practical injustice’.[45]
[43]Act, sch 3, cl 15(3)(c).
[44]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160–161 (Gleeson CJ, Kirby, Hayne, Callinan, and Heydon JJ).
[45]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [38], 445 [45]–[46] (Bell, Gageler and Keane JJ); Minister for Immigration, Citizenship and Indigenous Affairs v NDBR [2024] FCAFC 114, [40] (Katzmann, Snaden, and Raper JJ); AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSCA 283, [65] (Emerton P, Beach and Kyrou JJ).

It is a fundamental requirement of natural justice that decision-makers provide affected persons with adequate notice of the issues to be determined including as to preliminary questions.[46] The content of the notice must be such as to allow its recipient to participate fully and effectively in whatever manner is found to be appropriate in the circumstances of the case. It is well established that the seriousness of a decision for an affected person is one of the main considerations in determining the application of procedural fairness. Generally speaking, the requirements of procedural fairness are heightened in proportion to the consequences involved.[47] The notice must be such as to make the recipient aware of, and have the opportunity to address the critical issues and factors on which the decision is likely to turn.[48]
[46]Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78, 99 [115] (Weinberg J) (‘Gribbles’).
[47]Ibid 100 [117].
[48]Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82, 113 [175] (Middleton and Wigney JJ) (citations omitted).

Where a question is to be determined on the papers without an oral hearing, the questions to be decided must clearly and unambiguously identify the issues that the parties are to address. There is no opportunity to correct any misunderstanding as to what will be decided..

It is plain that if Mirvac had been notified that the Board intended to determine the validity of the Form 7 notice, it would have made comprehensive submissions to the Board on this issue. The issue was important to Mirvac as it was at risk of a finding that it had performed unauthorised work contrary to s 88 of the Act prior to 31 July 2024 when Mr Tran was taken to have agreed to the second protection work notice.[49] It had strong reason to make submissions as to the validity of the protection work notice if the issue was pressed.
[49]The Board had authorised the completion of protection work or the building work giving rise to the requirement for protection work in its order of 18 December 2023.

It is significant that the Board, in making its determination, does not refer to Project Blue Sky or the numerous subsequent decisions that have applied the test adopted in this leading High Court decision. The Board did not consider the status of the extensive information in the USB drive given to Mr Tran under s 8(1)(b) of the Electronic Transactions (Victoria) Act 2000 (Vic). The Board was largely unassisted when it held that the Form 7 notice was invalid.

It is not sufficient that the validity of the Form 7 notice was raised as an issue in the appeal prior to the setting down of two issues for determination as threshold questions. It was necessary that the issue of the validity of the protection work notice be clearly and unambiguously identified as a threshold question. Unless an issue is clearly identified, a party cannot be expected to deal with the issue in written submissions. In fact, neither the relevant building surveyor or Mirvac addressed the issue in any detail in their written submissions. The lack of notice was a significant practical injustice.

The authorities illustrating the requirements of natural justice are many. Mirvac relied on in Commissioner of Police v Thayli Pty Ltd, where the Western Australian State Administrative Tribunal fell into error when it decided that an aspect of the proceeding be heard and determined separately by the determination of a preliminary issue of law. The Tribunal however went on to deal with other issues and did not give either the party the opportunity to be heard on some issues. Smith J held that the Tribunal had acted in breach of the hearing rule of natural justice.[50]
[50][2020] WASC 43, [145]–[147]; appeal dismissed [2021] WASCA 46.

I am satisfied that there was a failure to comply with the requirements of natural justice by the Board. The issue of the validity of the protection work notice including the Form 7 notice is not clearly and unambiguously raised by the threshold questions and was not addressed at all by the relevant building surveyor or in any substantive way by Mirvac. The result is that paragraphs [38]–[50] of the Board’s determination, the Board’s answers to the threshold questions at paragraphs [51]–[56] and its orders made on 19 June 2024 must be quashed.

Utility of remitter to the Board

There is no utility in remitting the appeal back to the Board for the following reasons:

(a) it is clear from the findings of fact by the Board, and from what I have said above, that the Board has no jurisdiction to entertain the appeal. It would be futile and inappropriate to remit the appeal back to the Board;

(b) Mirvac has rectified any possible deficiencies in the protection work notice by serving a second protection work notice as requested by the relevant building surveyor.[51] Mr Tran’s response to the second notice was out of time, with the result that he is deemed to have agreed to the protection work described in the second protection work notice. From about 31 July 2024, Mirvac was unquestionably entitled to carry out protection work at the property.[52]
[51]Above [48]–[49].
[52]Above [14].

(c) Mirvac completed all protection work by 29 October 2024 with the exception of the destressing of the anchors. This can only be performed after the ground floor slab is poured. This is scheduled for completion in February 2025.

(d) Mr Tran did not file an appearance in the Court in this proceeding or respond to orders for substituted service. He has had no role in this proceeding since its commencement and has not sought to communicate with the Court in any way.

(e) If the appeal were remitted to the Board there could be only one result — an order for the dismissal of the appeal.

Criticism of the Board

Mirvac made some criticisms of the role of the Board in this proceeding. However, in this proceeding there is no contradictor and the jurisdiction powers and procedures of the Board were under challenge. It is consistent with the decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman[53] and the decision of Kyrou J in Johnson v Director of Consumer Affairs[54] that the Board should in such circumstances play a more active role, and make submissions on the issues raised. I have found the Board’s submissions to be helpful and well-directed.
[53](1980) 144 CLR 13.
[54](2011) 34 VAR 447.

Orders

The only possible result before the Board is the dismissal of the appeal. As there is no utility in remittal of the appeal back to the Board, and having paid due regard to what the High Court said in Osland v Secretary to the Department of Justice,[55] it is appropriate for me to make orders finalising the appeal. This will avoid the incurrence of further costs.
[55](2010) 241 CLR 320, 332 [20] (French CJ, Gummow and Bell JJ); see Leeda Projects Pty Ltd v Zeng (2020) 61 VR 384, 386 [2] (Tate JA); 433-35 [196]–[205] (McLeish JA, Kaye JA agreeing).

I will make orders to the effect that:

(a) there be an order for certiorari quashing paragraphs [38]–[50] and the Board’s answers to the threshold questions at paragraphs [51]–[56] of the Board’s determination, together with its orders made on 19 June 2024 in the appeal; and

(b) there be an order that the appeal to the Board be dismissed.

---

SCHEDULE OF PARTIES

MIRVAC VICTORIA PTY LIMITED (ACN 006 708 363) Plaintiff

- and –

BUILDING APPEALS BOARD First Defendant

LINH TRAN Second Defendant

SHANE LEONARD Third Defendant

[2024] VSC 782

20 December 2024