JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2001
DATE OF JUDGMENT:	28 September 2001
CASE MAY BE CITED AS:	Stewart v Building Practitioners Board and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 349

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Judicial review - application for mandamus – application by successful party in an appeal for costs – Board refusing to entertain application – question whether the Board's jurisdiction was exhausted – Part 3 of Schedule 3 of Building Act 1993 - jurisdiction not exhausted – order in nature of mandamus made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.R. Northrop	Deacons
For the First Defendant	No appearance	Maddock Lonie & Chisholm
For the Second Defendant	No appearance	Victorian Government Solicitor

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

History and Nature of Dispute........................................................................................................ 5

Judicial Review Jurisdiction............................................................................................................ 7

The Appeals Board and its Statutory Duties and Powers........................................................ 10

Conclusion......................................................................................................................................... 16

HIS HONOUR:

This is the return of a summons in a proceeding instituted by originating motion, in which the plaintiff seeks judicial review of a decision by an Appeals Board refusing to entertain an application for costs by the plaintiff who had been successful in the appeal.

Parties

The plaintiff, John McLean Stewart ("Mr Stewart"), is and was, at all material times, a registered building practitioner, who conducted a building business through a company called Attic Ladders Pty Ltd.

The first defendant is the Building Practitioners Board ("the Practitioners Board"), and is the body created by s.183(1) of the Building Act 1993 ("the Act").

Its functions are set out in s.183(2) of the Act, and they include any function conferred by the Act. Under s.178, it is empowered to conduct an inquiry into complaints made against a registered building practitioner. Complaints were made against Mr Stewart. The Practitioners Board held an inquiry into the complaints, found them proven and imposed a reprimand, as punishment.

Mr Stewart appealed to the second defendant against the penalty.

The second defendant, the Building Appeals Board ("the Appeals Board"), is a body established by s.166(1) of the Act. It heard the appeal by Mr Stewart in respect of the penalty, allowed the appeal and set aside the penalty. After it had published its determination, Mr Stewart's solicitors sought to make an application to the Appeals Board for an order for costs of the appeal. The Appeals Board refused to hear the application.

The defendants did not appear at the hearing before this Court.

The Appeals Board was a necessary party to the proceeding by reason of the fact that it was its decision which was the subject of review, and by reason of Rule 56.01(2)(b) of the Rules of Court. Its solicitor, the Victorian Government Solicitor, forwarded a letter to the Prothonotary, dated 15 May 2001,…

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 Stewart v Building Practitioners Board

Details

AGLC: Stewart v Building Practitioners Board [2001] VSC 349
Case: [2001] VSC 349
Decision Date: 28 September 2001

CaseChat Overview and Summary

The case of Stewart v Building Practitioners Board involved the applicant, who had successfully appealed a decision by the Board, seeking costs from the Board. The Board declined to entertain the application on the basis that its jurisdiction had been exhausted. The applicant sought judicial review of the Board's decision, arguing that the Board's jurisdiction was not exhausted and that an order should be made in the nature of mandamus to compel the Board to consider the application for costs. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Board's jurisdiction had been exhausted, and if not, whether the court should make an order in the nature of mandamus to compel the Board to consider the application for costs. The court had to consider the relevant provisions of Part 3 of Schedule 3 of the Building Act 1993 and assess whether the Board's jurisdiction was indeed exhausted. The court also needed to determine if an order in the nature of mandamus was appropriate in these circumstances.

In resolving the matter, the court found that the Board's jurisdiction was not exhausted as the provisions of the Building Act 1993 allowed for the Board to consider applications for costs after an appeal. The court held that the Board's refusal to consider the application for costs was an error of law. Consequently, the court made an order in the nature of mandamus, directing the Board to consider the applicant's application for costs. This decision underscored the importance of ensuring that the Board adheres to the proper procedures and does not dismiss applications for costs without due consideration.

The final order of the court was that the Board was directed to consider the applicant's application for costs, in accordance with the provisions of the Building Act 1993. The court's decision provided clarity on the extent of the Board's jurisdiction and emphasised the need for the Board to properly consider applications for costs in appropriate circumstances.

Orders