Ross v Building Practitioners Board - [2017] VSC 196

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 5120

BRIAN DOUGLAS ROSS	Plaintiff
v
BUILDING PRACTITIONERS BOARD	First Defendant
- and -
VICTORIAN BUILDING AUTHORITY	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2017
DATE OF JUDGMENT:	13 April 2017
CASE MAY BE CITED AS:	Ross v Building Practitioners Board & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 196

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JUDICIAL REVIEW — Building Practitioners Board — Notices of inquiry into allegations against registered building practitioner — Amendments to principal Act — Abolition of Board — Transitional provisions — Whether inquiries commenced before commencement day of amending Act — Building Act 1993 ss 177, 178, 179, 179A, 180, 183 and 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.

STATUTES — Statutory interpretation — Amending Act — Transitional provisions — Whether inquiries commenced before commencement of new legislation — Legislative purpose — Whether interpretation would leave gap in regulation of builder’s conduct — Building Act1993 ss 177, 178, 179, 179A, 180, 183, 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M F Wheelahan QC and Mr J A J Nixon	McGuinness & Hosking Pty
For the First Defendant	Mr M P Allen	Victorian Building Authority
For the Second Defendant	Ms M J Richards SC and Ms E H Ruddle	Victorian Government Solicitor’s Office

HIS HONOUR:

Mr Brian Ross, who is a building surveyor and a registered building practitioner, seeks judicial review of a decision of the Building Practitioners Board (‘the Board’) that it can proceed with inquiries about allegations brought against him. He was subject to regulation provided for in the Building Act 1993 (‘the old Act’).

The issue to decide is whether the Board commenced inquiries into the allegations concerning Mr Ross before 1 September 2016.

Background

On 23 July 2016, the Board’s Inquiry Sub-Committee recommended that the Board proceed to an inquiry into allegations against Mr Ross. On 10 August 2016, the Board endorsed the Sub-Committee’s recommendation.

On 23 August 2016, the Board’s Inquiry Sub-Committee recommended that the Board proceed to two further inquiries into allegations against Mr Ross. Later that day, the Board endorsed the Sub-Committee’s recommendations.

On 30 August 2016, Mr J Gilmore, the Registrar of the Board executed three Notices of inquiry directed to Mr Ross, by application of his ‘electronic signature’. They were each dated 30 August 2016.

On 6 September 2016, Mr Ross was served with the three Notices of inquiry under cover of a letter dated 30 August 2016 signed by a Case Officer of the Board. By the three notices the Board gave him notice that:

(a) The Inquiries were initiated by recommendation of the Victorian Building Authority under s 177 of the Building Act 1993;

(b) The Inquiries would proceed by way of an oral…

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: Ross v Building Practitioners Board [2017] VSC 196
Case: [2017] VSC 196
Decision Date: 13 April 2017

CaseChat Overview and Summary

Ross and the Building Practitioners Board were involved in a legal dispute heard by the Supreme Court of Queensland. The primary issue at hand was whether the Board had the authority to continue with inquiries into allegations against a registered building practitioner, following amendments to the principal Act that abolished the Board and established transitional provisions. The case hinged on whether these inquiries were initiated prior to the commencement date of the new legislation.

The court needed to determine the correct interpretation of the transitional provisions outlined in the Building Legislation (Consumer Protection) Act 2016, and how these provisions interacted with the Building Act 1993. Specifically, the court had to consider whether the legislative purpose of the amendments would be thwarted if the Board was deemed unable to proceed with ongoing inquiries. The central question was whether such an interpretation would result in a regulatory gap concerning the oversight of building practitioners' conduct.

In resolving these issues, the court examined the legislative history and the purpose behind the amendments. The court found that the transitional provisions were designed to ensure continuity in the regulation of building practitioners' conduct, and that any interpretation leading to a regulatory gap would be contrary to the legislative intent. Therefore, the court concluded that the Building Practitioners Board had the authority to continue with the inquiries that were initiated before the commencement date of the new Act.

The final orders of the court affirmed the Board's ability to proceed with the ongoing inquiries, ensuring that the regulatory framework remained intact and that the legislative intent to protect consumers was upheld.

Orders