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Ross v Building Practitioners Board

Ross v Building Practitioners Board

Case [2017] VSCA 274 28 September 2017

Judicial Review

Statutory Interpretation

Transitional provisions

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0058

BRIAN DOUGLAS ROSS

Applicant

BUILDING PRACTITIONERS BOARD

and

VICTORIAN BUILDING AUTHORITY

First Respondent

Second Respondent

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JUDGES:	KYROU, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2017
DATE OF JUDGMENT:	28 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 274
JUDGMENT APPEALED FROM:	[2017] VSC 196 (Ginnane J)

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JUDICIAL REVIEW – Statutory Interpretation – Transitional provisions –Building Practitioners Board issued notices of inquiry into allegations against registered building practitioner – Hearing not commenced – Act amended to abolish Building Practitioners Board – Transitional provisions empowered Board to complete inquiries which commenced before specified date – Whether inquiry commenced before that date – Inquiry is a process and involves more than single event of hearing – Appeal dismissed –Building Act 1993, Building Legislation (Consumer Protection) Act 2016.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

For the First Respondent

For the Second Respondent

Mr D Collins QC with Mr J Nixon

No appearance

Ms M Richards SC with Mr J Stoller

McGuinness & Hosking

No appearance

Victorian Government Solicitor

KYROU JA
FERGUSON JA
McLEISH JA:

The applicant, Brian Ross, is a building surveyor and a registered building practitioner. In August 2016, the Building Practitioners Board (‘the Board’) endorsed its Inquiry Sub-Committee’s recommendation that the Board proceed to an inquiry into allegations against Mr Ross. On 30 August 2016, the Registrar of the Board executed three notices of inquiry addressed to Mr Ross. The notices were served on Mr Ross on 6 September 2016. A panel of Board members was appointed to conduct inquiries into the conduct of Mr Ross. The inquiries were listed for a directions hearing on 24 February 2017.

On 1 September 2016, a new disciplinary scheme for registered builders administered by the second respondent, the Victorian Building Authority (‘the Authority’), came into effect replacing the scheme that had been operated by the Board. A transitional provision empowers the Board to complete inquiries that had commenced before 1 September 2016. Mr Ross began proceedings in the Trial Division of this Court seeking a declaration that the Board did not have jurisdiction to conduct an inquiry into his conduct because it had not commenced an inquiry before 1 September 2016. A judge refused to grant him that relief. Mr Ross now seeks leave to appeal.

For the reasons which follow, we would grant leave to appeal. We would dismiss the appeal. In broad terms, Mr Ross contends that an inquiry under the legislation is an event which is to be conducted or held, not a series of procedural steps. He identifies the event as a meeting of or hearing before the Board or one of its panels appointed for the purpose of the inquiry. As will be apparent from what follows, in our opinion, an inquiry for the purposes of the legislation involves more than simply the meeting or hearing before the Board or panel. It starts no later than when the Board makes…

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.

Continue reading Ross v Building Practitioners Board

Details

AGLC: Brian Douglas Ross v Building Practitioners Board and Victorian Building Authority [2017] VSCA 274
Case: [2017] VSCA 274
Decision Date: 28 September 2017

CaseChat Overview and Summary

The respondents, the Building Practitioners Board, issued notices of inquiry to the appellant, a registered building practitioner, in relation to certain allegations. Despite the issuance of these notices, the hearings had not yet commenced when the Building Practitioners Board was abolished by legislative amendment. The appellant sought to have the notices of inquiry quashed on the grounds that the Board lacked the requisite legal authority to act following the legislative changes. The court was tasked with interpreting the transitional provisions of the new legislation to determine whether the Board had the authority to complete the inquiries that were initiated prior to a specified date.

The central legal issue before the court was whether the inquiry process had officially commenced prior to the effective date of the legislative changes, thereby granting the Board the authority to complete the inquiries under the transitional provisions. The court examined the nature of the inquiry process, considering whether it constituted a single event or an ongoing process, and determined that the inquiry process involved multiple steps beyond the mere issuance of the notice. The court concluded that since the inquiry process had not fully commenced before the legislative changes, the Board lacked the authority to proceed with the inquiries.

In dismissing the appeal, the court held that the transitional provisions did not empower the Board to complete inquiries that had not begun prior to the specified date. The court emphasised that the inquiry process was ongoing and multifaceted, and as such, it had not fully commenced prior to the legislative amendment. The transitional provisions only applied to inquiries that had been initiated in their entirety before the specified date. Consequently, the Board's attempts to continue the inquiries post-amendment were invalid. The court's interpretation of the transitional provisions upheld the legislative intent to ensure that the Board's actions aligned with the new statutory framework.

The court did not make any orders, as the appeal was dismissed on the basis of the statutory interpretation and the lack of authority under the transitional provisions. The Building Practitioners Board's notices of inquiry were consequently deemed invalid, and the appellant's application to quash the notices was successful.

Orders