Noce v Building Practitioners Board - [2011] VSC 350

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 3695 of 2011

JOHN NOCE AND SALVATORE NOCE	Plaintiffs
v
BUILDING PRACTITIONERS BOARD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2011
DATE OF RULING:	20 July 2011
CASE MAY BE CITED AS:	Noce v Building Practitioners Board
MEDIUM NEUTRAL CITATION:	[2011] VSC 350

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INTERLOCUTORY INJUNCTION – Application to restrain hearing of Building Practitioners Board – Related interlocutory appeal to Building Appeals Board – Unavailability of counsel – Proposed absence of party on holiday – Procedural fairness – Balance of convenience – Weak case – Potential prejudice to Board from long adjournment – Short adjournment to ensure availability of counsel – Convenience in respect of proposed holiday disregarded – Temporary injunction granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Gibson	Noble Lawyers
For the Defendant	Mr J Pizer	Lander and Rogers

HIS HONOUR:

Introduction

In this matter the plaintiffs seek to restrain the Building Practitioners Board (‘the Board’) from conducting a hearing which is fixed to commence tomorrow morning. In the circumstances, it is necessary that the Court deal with the matter on an urgent basis and these reasons will take a somewhat more summary form than they otherwise might.

The Building Act 1993 provides for the registration and regulation of building practitioners. The main purpose of the Act is to protect the public by regulating the industry and ensuring proper standards of building and construction. Part 11 of the Act gives effect to the purpose of the Act by providing for inquiries into the practices of registered building practitioners and the standard of their work.

Background

This proceeding relates to such an inquiry into the conduct of the plaintiffs in respect of a project at Strathmore. The background to this matter is set out at paras [7]-[31] of the submissions of Mr Pizer, who appeared as counsel for the Board.

7.John and Salvatore Noce are directors of C & J Designer Homes Pty Ltd (‘CJD Homes’). On 16 July 2007, Andrew Urie signed an agreement with CJD Homes to building a double-storey dwelling and attached garage at 15 Balmanno Crescent, Strathmore (‘the Property’).
8.On 30 October 2007, building work commenced at the Property.
9.On 18 August 2008, Mr Urie and his wife, Anne Paten, moved back into the Property. The three-month period after handover finished on 18 November 2008.
10.In early 2009, Mr Urie and Ms Paten made a complaint to the Building Commission about the work carried out by CJD Homes at the Property. That complaint was investigated.
11.On 15 April 2010, the Building Commission referred two matters to the Board for inquiry: the first concerned John’s conduct or ability to practise, and the second concerned Salvatore’s conduct or ability to practise.
12.On 14 July 2010, the Board resolved that it would conduct inquiries in relation to John and Salvatore’s conduct.
13.On 5 August 2010, the original Notices of Inquiry were…

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: [2011] VSC 350
Decision Date: 20 July 2011

CaseChat Overview and Summary

In the case of Noce v Building Practitioners Board, the applicant sought an interlocutory injunction to restrain the Building Practitioners Board from hearing a matter against the applicant. The application was made in the context of an interlocutory appeal to the Building Appeals Board. Key issues included the unavailability of counsel, the applicant's proposed absence on holiday, procedural fairness, the balance of convenience, the strength of the applicant's case, and potential prejudice to the Board from a long adjournment. The court was required to weigh these factors in determining whether to grant the injunction.

The central legal issues that the court had to decide were whether the applicant's proposed absence on holiday justified a long adjournment, whether the lack of available counsel warranted a short adjournment, and whether the balance of convenience favoured the applicant. Additionally, the court had to assess the strength of the applicant's case and the potential prejudice to the Building Practitioners Board if the hearing was delayed. The court needed to balance these considerations against the principles of procedural fairness and the convenience of the parties involved.

The court found that the unavailability of counsel was a significant factor that warranted a short adjournment to ensure the applicant could be properly represented. While the applicant proposed a long adjournment due to a planned holiday, the court disregarded this in light of the importance of ensuring the availability of counsel. The court also noted that the applicant's case appeared weak, which further influenced the decision. The potential prejudice to the Board from a long adjournment was considered to be a substantial factor in favour of the applicant. Consequently, the court granted a temporary injunction to restrain the hearing until the applicant's counsel was available, and the application for an extended adjournment was denied.

The final orders included granting a temporary injunction to restrain the hearing until the applicant's counsel was available, and denying the application for an extended adjournment. The court's decision highlighted the importance of ensuring legal representation and the need to balance the convenience of the parties against the potential prejudice to the Building Practitioners Board.

Orders