Noce v Building Practitioners Board
[2011] VSC 350
•20 July 2011
| 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 sent to John and Salvatore. Those notices were amended in January 2011, but the subject matter of the allegations remained the same.[1]
[1]The Notice of Inquiry in relation to John was further amended in April 2011 to correct a minor slip.
14.The inquiries were first listed for a two-day hearing commencing on 11 November 2010. By reason of matters raised by the Noces’lawyers on 5 November 2010 and the unavailability of witnesses, the final hearing was adjourned (‘the first adjournment’), and a directions hearing was conducted on 11 November 2010.
15.At that directions hearing, the Board, at the Noces’ request, listed the inquiries for a two-week period commencing on 14 March 2011. The Board also refused to issue certain subpoenas requested by the Noces.
16.More than two months later, the Noces brought a proceeding in this Court seeking to challenge the refusal of the Board to issue the subpoenas. No explanation was given for the delay.
17.The Board sought expedition of the first Supreme Court proceeding on the basis that Salvatore and John could avoid the inquiry process by allowing their registration as a building practitioner to become suspended.[2]
[2]See the affidavit of Simone Holding dated 21 February 2011, which is exhibit SH-15 to Ms Holding’s affidavit dated 19 July 2011.
18.By reason of the first Supreme Court proceeding, the hearing of the inquiries – which were scheduled to commence on 14 March – was adjourned (‘the second adjournment’).
19.On 18 March 2011, the first Supreme Court proceedings settled.
20.On 4 April 2011, the Board conducted a second directions hearing. At that directions hearing:
20.1counsel for the Noces indicated that it was not the Noces’ present intention to give evidence in the inquiries;
20.2the Board listed the inquiries for a 10-day period commencing on 20 June 2011; and
20.3the Board ordered that, in accordance with Schedule 3, clause 15(5) of the Act, the Hearing Book is to include any advice which has been provided to the Board in accordance with Schedule 3, clause 15(3)(j) by counsel assisting the Board. (This order was complied with – see paragraph 57 of Ms Holding’s affidavit).
21.On 5 May 2011, the Noces made two applications to the Board.
21.1the first was that Maddocks not be retained as counsel assisting the Board in the inquiries on the basis that the Noces considered that Maddocks had demonstrated a lack of independence; and
21.2the second was that the Board provide the Noces with copies of all advices received from Maddocks (or counsel briefed by Maddocks).
22.This led to a third directions hearing being conducted on 18 May 2011. At that directions hearing, the Board:
22.1decided that it was properly constituted (having been requested to so determine by counsel for the Noces).
22.2dismissed the application that Maddocks not be retained as counsel assisting the Board; and
22.3reserved its decision in relation to the Noces’ application that the Board provide all advice received from Maddocks pending receipt of written submissions. (It went on to dismiss that application on 30 June.)
23.On 2 June 2011, the Noces appealed to the Building Appeals Board (‘BAB’) in relation to the decision that the Board was properly constituted, and the decision to dismiss the application that Maddocks not be retained as counsel assisting the Board. The Noces did not appeal the decision about the advices, as that decision had not yet been made.
24.On 7 June 2011, the Noces asked the Board to adjourn the hearing scheduled to commence on 20 June 2011.
25.On 9 June 2011, Salvatore’s registration as a building practitioner was suspended (with that suspension to take effect on 8 August 2011 – exhibit SH-52).
26.On 16 June 2011, the Board granted an adjournment of the hearing scheduled to commence on 20 June (‘the third adjournment’) pending the determination of the BAB appeal. The Board noted, however, that ‘this matter will be rescheduled immediately upon the decision of the BAB being handed down and that this inquiry will be set down to run as soon as practicable’.[3]
27.On 5 July 2011, the BAB decided that it did not have jurisdiction to entertain the appeal brought by the Noces.
28.Accordingly, on 11 July 2011, the Board notified the Noces that the hearing of the inquiries would commence on 21 July 2011, and would continue on 22 July, 27 July, 28 July, 29 July and 1 August 2011. One of the key witnesses – Mr Ray Martin – is only available on 21 and 22 July.
29.On 12 July 2011, the Noces’ lawyer wrote to the Board alleging that it was inappropriate to proceed with the inquiries on the dates specified.
30.On 15 July 2011, the Noces commenced this proceeding.[4] The main relief they seek is an interlocutory injunction restraining the Board from commencing to hear the inquiries on 21 July.
[3]Mr Pizer’s emphasis.
[4]The affidavit in support was not served until after 6.30 pm on Tuesday 18 July.
As I understand it, this summary is substantially accepted as accurate by the plaintiffs, save that it is contended the adjournment of the hearing which occurred in November 2010 did not occur by reason of the conduct of the plaintiffs. The plaintiffs assert that they were ready to proceed with a hearing at that time. Further, it was submitted Salvatore’s suspensions must be deemed to have commenced 60 days after Salvatore’s failure to renew his registration on 18 May 2011 in accordance with s 172 of the Act (see ss 172(3) and 146). As a consequence, he has not been a registered building practitioner (see s 175) since 17 July 2011, rather than 8 August as stated in the summary.
Insofar as the summary generally is concerned, it can be seen that, without seeking to apportion any blame between the parties, the proceeding already has a complicated and to some extent unfortunate history.
Grounds for injunctive relief sought
The primary relief now sought by the plaintiffs is an order restraining the Board from proceeding to hear inquiries into the conduct of the plaintiffs as registered building practitioners under s 176 of the Building Act 1993 until further order of the Court.
That relief is sought on the basis of a combination of three circumstances. First, that the Appeals Board should not be accepted as having properly determined the appeal the plaintiffs made to it in respect of the matters agitated by notice of appeal on 2 June 2011.
Second, it is submitted that counsel retained on behalf of the plaintiffs with respect to the conduct of the inquiry is unable to appear on the dates now fixed for hearing.
Third, it is submitted that the second plaintiff has an interstate holiday booked during these dates and that those dates are materially inconvenient to him.
Mr Pizer concedes that taken together these factors raise a serious question to be tried[5] as to whether the Board should be restrained from proceeding tomorrow, namely whether commencing and conducting the hearing on the dates proposed would in all the circumstances involve a denial of procedural fairness. However, he opposes such relief because he submits the balance of convenience does not favour it as:
[5]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
(a) the Board will be prejudiced in its capacity to conduct an inquiry with respect to Salvatore if it is delayed indefinitely as the plaintiffs request;
(b) the plaintiffs' prospects of success are weak;
(c) the plaintiffs can avoid the prejudice which the Board would suffer by an adjournment by agreeing to a particular course and in turn avoid prejudice to themselves by obtaining an adjournment on that basis; and
(d) the points raised by the plaintiffs relate essentially to interlocutory objections which are properly dealt with by the Board in the first instance and ultimately following the determination of the inquiries, would be susceptible of an appeal within the context of an informed understanding of the outcome of the proceeding as a whole.
Prospects of success
It is convenient first to say something concerning the plaintiffs' prospects of success. In my view the case based on the alleged failure of the Appeals Board to properly determine the case before it is weak for a number of reasons. First, without purporting to finally decide the matter, the right of appeal to the Appeals Board on its face seems to me to be confined to final decisions and not interlocutory rulings of the type in issue. Secondly, no sensible basis for sustaining either of the grounds stated in the relevant notice of appeal to the Appeals Board was advanced to me. Thirdly, the argument which was focussed on in submissions before this Court was based on a reference in the claim for relief in the notice of appeal to the production of advice from the solicitors assisting the Board to it. I accept the extent of the Board's obligation under sch 3, cl 15 of the Act is not free from potential debate but it does not seem to me that this question is directly raised by the relevant notice of appeal. Nor was any substantive basis articulated as to why the plaintiffs were entitled to further documentation beyond that which the Board has, after due consideration, directed they be supplied with.
I will turn then to the question of the unavailability of counsel. I accept that this matter has had, as I have said, a somewhat tortuous history, and that retention of counsel previously retained in the matter should be facilitated if practicable. Nevertheless, I am not persuaded that the law requires the hearing should be postponed, for other than a period strictly necessary to enable proper representation.
I accept Mr Pizer's submission that the matter has been fixed following what on the face of it would ordinarily be a reasonable notice, but I also accept that the position in which the counsel who has previously acted in the matter finds himself is one of real difficulty. It seems to me that in all the circumstances which have eventuated the unavailability of counsel does favour some adjournment of the matter.
Insofar as Salvatore's holiday is concerned, I do not accept that this can be regarded as a significant consideration having regard to the history of the matter and the public interest in having it finalised.
The conclusions I have reached with respect to the apparent weakness of the plaintiff's case suggest that the proper course is simply to restrain the board from proceeding for a period of seven days, until Wednesday 27 July.
It was submitted on behalf of the Board that such a course will embarrass it with respect to the ability to call evidence from an expert who is currently scheduled to give evidence on Friday of this week. I am not persuaded that this potential embarrassment is sufficient to justify denying the plaintiffs a short adjournment.
I have had regard to the evidence of Ms Holding with respect to the real complexity of the matter in reaching this conclusion and it seems to me that the probability is that arrangements will be able to be made to enable the witness to give evidence relatively shortly after the date which I have suggested may be appropriate.
Potential loss of jurisdiction – Prejudice to the Board
The major matter debated before me was the effect of the provisions considered by Justice Bell in the case of Ariss v Building Practitioners Board,[6] when those provisions are applied to the circumstances of the current case. Mr Pizer contends that the effect of the provisions will be to constrain the ambit of the potential enquiry if it does not proceed forthwith.
[6][2010] VSC 295, especially at [23]-[31].
Mr Gibson submits that the effect of the provisions is that the ambit of potential enquiry into Salvatore's conduct has already crystallised. The question is not free from difficulty and I do not find it necessary to express a view upon it, despite the force with which the parties' respective positions were advanced. In my view, the potential detriment which Mr Pizer submits may occur is best avoided simply by limiting any postponement of the hearing. (In so saying I am not endorsing Mr Pizer’s construction of the relevant sections. It may well be that, as Mr Gibson says, the Board cannot enlarge its jurisdiction to enquire by delay in formally implementing a suspension.)
In my view, the long history of this matter coupled with the public interest underlying proceedings of this nature justifies expedition of the inquiry even if the prejudice postulated by Mr Pizer is not, on proper analysis, ultimately found to be a legal consequence of any substantial adjournment. Insofar as the Board's submission that prejudice to it could be avoided if Salvatore again registered as a builder, such a course would result in substantial prejudice to Salvatore if Mr Gibson's construction of the relevant provisions is to be preferred. I do not accept that such a requirement should be imposed upon Salvatore as the condition of a short adjournment. It would be unreasonable to so require.
Interlocutory nature of application
Finally, I note Mr Pizer’s submission that the better view is that after the completion of the inquiry, the factors now raised would remain available for agitation either on appeal to the Appeals Board or, as I understand it, upon the further hearing of any application for judicial review to this Court.
I accept that this is so with respect to what I will call the Appeals Board point and to that extent may be regarded as tending to support what I have said as to the consequences of my view concerning the apparent strength of the plaintiffs’ case relating to this issue. The point is, in effect, one of interlocutory procedure and this tends to support the view that an indefinite adjournment of the inquiry should not be required by injunction.
Parliament has vested in the Board a statutory jurisdiction which it plainly intends the Board to exercise independently where it deems appropriate. This Court should be reluctant to interfere with the exercise of that jurisdiction unless persuaded that it is necessary to do so.
Insofar as the unavailability of counsel is concerned, however, the balance of convenience favours a short adjournment enabling appropriate representation to be obtained. Conversely, if the absence of counsel tomorrow were hereafter regarded as resulting in a want of procedural fairness, then a matter which could have been readily addressed will potentially invalidate the outcome of the proposed enquiry. When the matter is looked at from this perspective, the consequences of the interlocutory nature of the application, in my view, do not count against the granting of some limited relief.
Conclusion
Accordingly, I propose to make the procedural orders contained in paras [1] and [2] of the summons on originating motion dated 15 July 2011, and to further order that the defendant be restrained from proceeding to hear enquiries into the conduct of the plaintiffs as registered building practitioners under s 176 of the Building Act 1993, until Wednesday 27 July 2011. I will reserve costs and I will reserve liberty to apply.
In my view, the limited injunction I propose carries with it the least risk of injustice to the parties arising out of the matters agitated before me today.[7]
[7]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, [35].
I should add that I propose to reserve the costs because although the plaintiffs have achieved some relief, that relief falls far short of that for which they principally contended, and I have, in substance, come down partially in favour of the plaintiffs, and partially in favour of the defendant. Further, it seems to me that the question of the appropriate resolution of the question of costs should await the final outcome of the proceeding if and when it is further prosecuted.
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