Singleton v Victorian Building Authority - [2019] VSC 416

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00691

MARGARET SINGLETON	Plaintiff
v
VICTORIAN BUILDING AUTHORITY	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2019
DATE OF JUDGMENT:	26 June 2019
CASE MAY BE CITED AS:	Singleton v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2019] VSC 416

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JUDICIAL REVIEW – Mandamus – Defective domestic building work certified by building surveyor – Allegations against builder and building surveyor referred by authority to Building Practitioners Board – Powers of authority as to disciplinary action against building surveyors – Whether court will grant mandamus against authority – Where power is discretionary – Where relevant building surveyor has been dealt with by the relevant authorities – Where disciplinary actions are pending appeal in VCAT – No proper basis to grant mandamus requiring authority to take further disciplinary action – Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) pt 3 div 2 – Building Act 1993 (Vic) ss 76, 171(d), 179, 182, 183(1), 205M, 205N, 241(7).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff was self-represented
For the Defendant	Ms M Fitzgerald	Legal Services, Victorian Building Authority

HIS HONOUR:

Introduction

Ms Margaret Singleton applies for judicial review of a decision by the Victorian Building Authority (‘the authority’) dated 12 March 2019 not to take further disciplinary action against Brian Ross, a building surveyor. Ms Singleton seeks that additional charges be preferred by the authority against Mr Ross for using unregistered inspectors to inspect the building works at her property at 51 Seaview Parade, Kalimna (‘the property’), and for failing to discharge his duties as a building surveyor in a professional manner.

In 2016, the authority referred 383 allegations against Mr Ross to the Building Practitioners Board (‘the Board’), including two allegations relating to the construction of a dwelling at the property (‘the dwelling’). Ms Singleton says this is inadequate and does not sufficiently address the failures of Mr Ross to discharge his professional duties in relation to the construction of the dwelling.

Ms Singleton seeks prerogative and injunctive relief in the following form:

(a)an order in the nature of mandamus that the authority discharge its statutory duty as mandated by Parliament, and in accordance with the Building Act 1993 (Vic) (‘the Building Act’) by taking disciplinary action against Mr Ross for the serious defects in the construction of the dwelling that have not been acted on by the authority; and
(b)an order that the authority direct Mr Ross under s 205M of the Building Act to discharge his duties and revisit the mandatory stages of inspection as set out in the building permit to bring the dwelling into compliance; or
(c)alternatively an order directing the authority to become the municipal building surveyor and bring the dwelling into compliance.

The authority resists the application, and submits that the orders sought by Ms Singleton should not be made.

Factual background

On 11 June 2009, Ms Singleton signed a domestic building…

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 Singleton v Victorian Building Authority

Details

AGLC: Singleton v Victorian Building Authority [2019] VSC 416
Case: [2019] VSC 416
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the matter of Singleton v Victorian Building Authority, the dispute centred on the failure of the respondent to take disciplinary action against a building surveyor who certified defective building work. The applicant, Singleton, sought a writ of mandamus compelling the Victorian Building Authority to take action against the surveyor. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the authority had discretion in deciding whether to take disciplinary action against a building surveyor and, if so, whether the court should compel the authority to exercise that discretion. The applicant argued that the authority had a duty to take action against the surveyor, while the authority contended that its decision not to act was within its discretion.

The court held that the authority's decision not to take action against the surveyor was within its discretion and that the applicant had not established a proper basis for the court to compel the authority to exercise its discretion. The court noted that the authority had referred the matter to the Building Practitioners Board, and disciplinary actions were pending appeal in the Victorian Civil and Administrative Tribunal. The court found that the authority's decision not to act was not an abuse of its discretion, and therefore, the applicant's claim for mandamus was dismissed.

The court made no orders as to costs.

Orders