Supple v Building Appeals Board
[2015] VSC 83
•12 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 04471
BETWEEN
| STEVEN JEFFREY SUPPLE AND KATARZYNA SUPPLE | Plaintiffs |
| and | |
| BUILDING APPEALS BOARD | First Defendant |
| and | |
| GERARD COUTTS | Second Defendant |
| and | |
| ROBERT MAYBIN | Third Defendant |
| and | |
| JOHN ATHANASIOU | Fourth Defendant |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2015 |
DATE OF JUDGMENT: | 12 March 2015 |
CASE MAY BE CITED AS: | Supple & Anor v Building Appeals Board & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 83 |
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ADMINISTRATIVE LAW — Determination of panel of Building Appeals Board — Panel member becoming unavailable before all matters before it decided — Whether matters so far decided must be reconsidered by new panel — Whether second defendant an adjoining owner — Whether Board had jurisdiction — Whether reasons adequate — Whether failed to take into account a relevant consideration.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr T Margetts QC and Mr S Stafford | Noble Lawyers |
| For the Third Defendant | Mr R Niall QC and Mr N Andreou | LMS Lawyers |
HIS HONOUR:
The plaintiffs, by originating motion, seek relief in the nature of judicial review in respect of a determination by the first defendant, the Building Appeals Board (‘the Board’), dated 30 June 2014.
Background facts
In June 2012, the plaintiffs purchased unit 8, 36 Brighton Road, Balaclava. The third defendant is the owner and occupier of unit 9 at that address, which is located immediately above the plaintiffs’ unit.
Upon purchasing the unit, the plaintiffs decided to carry out alterations to it, consisting of creating an opening in the brick wall between the bedroom and the living room, and creating an opening in the brick wall between the kitchen room and the water closet. For that purpose, on 24 September 2012, they appointed the fourth defendant as the relevant building surveyor under the Building Act 1993 (‘the Act’). On 29 September, the plaintiffs, pursuant to s 84(1) of the Act, served a works protection notice on the third defendant.
In turn, the third defendant, on 1 October 2012, served a response on the plaintiffs, requesting five items of additional information, pursuant to s 85(1)(b)(ii) of the Act. As the issues raised by that response were not resolved, the fourth defendant, as the relevant building surveyor, made a determination in relation to those matters dated 12 December 2012, pursuant to s 87 of the Act.
On 21 December 2012 the third defendant lodged an appeal with the Board against the determination of the fourth defendant pursuant to s 141 of the Act. There is a dispute, in the affidavits, whether notice of that appeal was served on the plaintiffs and the fourth defendant on 21 December (as maintained by the third defendant) or whether it was not served until 25 January 2013 (as maintained by the plaintiffs). However, it is not necessary for me to resolve that issue.
In the meantime, between 26 December and 31 December 2012, the first plaintiff, as an owner/builder, carried out and completed the proposed building works. He removed the final structural support to the works on 7 January 2013. I note that the plaintiffs had not obtained a building permit to carry out that work.
Pursuant to the appeal lodged by the third defendant, the Board constituted a panel of three members, one of whom was Mr Stephen Kip. A number of directions hearings were heard by the panel in the course of 2013. In March 2014, the plaintiffs objected to the jurisdiction of the Board to hear the appeal. On 6 May 2014, the panel issued a written determination in which it rejected the jurisdictional objection made by the plaintiffs.
After that issue was disposed of, the panel continued to hear the substantive issues in the proceedings. In the course of the proceeding, the first plaintiff gained access to the roof space above the third defendant’s property, in order to obtain further information relating to roof loads and other matters. He provided that information to his expert, Mr Harry Carlin-Smith of BSC Consulting Engineers. Mr Carlin-Smith incorporated that information in a further report dated 26 May 2014, which the plaintiffs provided to the Board on 27 May 2014.
On 30 June 2014, the panel delivered its written determination. A particular complaint made by the plaintiffs in the present proceeding is that the determination of the panel did not take into account Mr Carlin-Smith’s expert report, which, it is maintained, was relevant to the question whether the protection work, that the plaintiffs undertook in December 2012, was adequate.
On 28 July 2014, the first plaintiff forwarded a letter to the Board requesting that the Board provide written reasons for its determination pursuant to clause 16(5) of Schedule 3 to the Act (‘Schedule 3’).
On 11 August 2014, the Registrar of the Board sent an email to the parties advising them that one of the panel members (Mr Kip) was no longer available. The registrar requested the parties, in accordance with clause 8(6) of Schedule 3, to indicate whether they consented to the proceeding being completed by the remaining members.
The plaintiffs’ solicitors responded to that communication by letter dated 18 August 2014, by which they notified the Board that the plaintiffs did not consent to the remaining panel members completing the proceeding. The plaintiffs’ solicitors maintained that, accordingly, the matter must be reconsidered by a new panel, and that the determination of the Board of 30 June 2014 was of no effect.
On 25 August 2014, the Registrar of the Board wrote a letter to the plaintiffs’ solicitors, advising that adequate reasons were provided within the written determination, and that further reasons would be provided, if the request for further reasons were clarified. The registrar also stated, in the letter, that the Board considered that the determination of 30 June 2014 was valid and continued to have effect, and that the Board would constitute a new panel for the purposes of considering the outstanding questions of compensation pursuant to s 159 of the Building Act 1993 and costs.
The Board’s determination
At the commencement of its written determination, under the subheading ‘nature of appeal’, the panel set out the six matters that were before it in the appeal, namely:
(1)An appeal, pursuant to s 141(a) of the Act, by the third defendant against the determination by the fourth defendant under s 87 of the Act as to the appropriateness of the building work.
(2)A dispute, pursuant to s 152 of the Act, between the plaintiffs and the third defendant, about the nature and amount of the cover to be provided under the proposed contract of insurance under s 93 of the Act.
(3)A dispute, pursuant to s 153 of the Act, between the plaintiffs and the third defendant, about how and when a survey is to be carried out under s 94 of the Act, or a dispute about the adequacy of a survey carried out under that section.
(4)A dispute, pursuant to s 154 of the Act, between the plaintiffs and the third defendant, about the costs and expenses necessarily incurred by the third defendant in assessing and supervising the protection works under Part 7 of the Act.
(5)A dispute, pursuant to s 155 of the Act, between the plaintiffs and the third defendant, in relation to a matter arising under Part 7 of the Act, where the Board does not have jurisdiction to deal with the matter under any other provision of Part 10 of the Act.
(6)Other proceedings, pursuant to s 159 of the Act, in relation to an application for an order determining the amount (if any) of compensation for any inconvenience, loss or damage suffered by the third defendant during the carrying out of protection work under Part 7 of the Act.
The determination then set out the orders that the panel made, which may be summarised as follows:
(1)That the determination of the fourth defendant, under s 87(1) of the Act, dated 12 December 2012, be set aside, and that it be remitted to the fourth defendant for reconsideration in accordance with four specified directions.
(2)That the plaintiffs consider and determine the necessary protection work required to be undertaken to satisfy the structural requirements contained in a report of McLeod Consulting, and that they re-issue and serve a form 3 on the third defendant, and obtain appropriate insurance for a value of not less than $5,000,000 for the permanent and temporary protection work in accordance with the requirements of the Act.
(3)That the plaintiffs and the third defendant must in good faith seek to arrange a survey of the third defendant’s property by 1 August 2014.
In its remaining directions, the panel directed the parties to file and serve submissions relating to three outstanding issues, namely:
(a) What order the panel should make under s 154 of the Act relating to the costs and expenses incurred by the third defendant in assessing or supervising the protection work of the plaintiffs.
(b) What order the panel should make under s 159 of the Act regarding the compensation that should be paid to the third defendant pursuant to s 159 of the Act.
(c) What order the panel should make relating to the costs of the proceedings.
Having pronounced those orders, the panel then set out its ‘reasons’ for its determination. I shall return to those reasons later in this judgment.
The issues
The originating motion, and the submissions on behalf of the plaintiffs, raise four issues, namely:
(1)Whether the determination by the Board is of no effect. That issue arises because, it is submitted, the panel of the Board, which made the determination, is no longer available to continue and complete the proceeding.
(2)Whether the Board had jurisdiction to determine the application. The resolution of that issue depends on whether, at the time of the proceeding before the Board, the third defendant was an ‘adjoining owner’ as defined in the Act.
(3)Whether the panel failed to take into account relevant matters. That issue particularly concerns whether the panel failed to take into account the report of Mr Carlin-Smith dated 26 May 2014 (which was forwarded to the Board on 27 May 2014) and, if so, whether it thereby erred in law.
(4)Whether the reasons given by the panel for its determination were adequate. That issue also concerns whether the panel was obliged to give, and whether it gave, reasons as to why it did not accept the facts concerning the conditions in the roof space which were addressed in the report of Mr Carlin-Smith.
The Building Act
Before considering those issues, it is convenient, first, to set out some of the relevant provisions of the Act.
Part 7 of the Act contains provisions relating to the protection of adjoining property during proposed building works. Section 84(1) requires that an owner, who is required by the regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work, for which a building permit is required, must, first, serve on the owner of the adjoining property, and the ‘relevant building surveyor’, notice of the proposed building work. Section 85(1) provides that the adjoining owner must, within 14 days, give notice to the owner agreeing to the proposed protection work, or give notice to the owner and the relevant building surveyor either disagreeing with the proposed protection work or requiring more information. Section 87(1) provides that on receipt of a notice under s 85(1)(b), the relevant building surveyor must examine the proposal for protection work and make a determination as to the appropriateness or otherwise of the work. As I stated, it was the determination of the relevant building surveyor (the fourth defendant) which was the subject of an appeal, by the third defendant, to the Board in this case.
Part 10 Division 1 of the Act contains a number of provisions (in particular, section 141) enabling an appeal to be made to the Board in particular circumstances. In addition, Part 10 Division 3 of the Act contains a number of provisions which enable disputes, in particular circumstances, to be referred to the Board. In particular, disputes between an owner and an adjoining owner concerning insurance (s 152), the survey of the adjoining property (s 153), and the costs and expenses of the adjoining owner in supervising the protection work (s 154), and any other disputes between owners and adjoining owners (s 155), may be referred to the Board.
Section 166(1) establishes the Board as an entity. Section 166(6) provides that Schedule 3 has effect with respect to the membership and procedure of the Board.
Clause 8(1) of Schedule 3 provides that, for the purposes of performing any of its functions, the Board may be constituted by one or more panels of its members. Clauses 8(6)(a), 8(7) and 9 are particularly relevant to the submissions made by the parties. They provide:
8(6)If, after a proceeding has commenced before a panel of two or more members, a member of the panel becomes unavailable —
(a)if the parties to the proceeding agree, the proceeding may be continued and completed before the remaining members of the panel;
…
8(7)If the parties do not agree to continue a proceeding under subclause (6) the chairperson of the Building Appeals Board must arrange for the matter to be reconsidered by another panel, and that other panel may have regard to the earlier proceedings.
9 An act or decision of a Board is not invalid only because —
(a)of a defect or irregularity in the appointment of a member or acting member; or
(b) of a vacancy in its membership; or
(c)the occasion for the appointment of an acting member has ceased to existed.
Clause 16 of Schedule 3 is concerned with determinations by the Board and the reasons given for those determinations. Clause 16(1) provides that a determination of the Board must be in writing. Clauses 16(5) and (6) provide as follows:
16(5)Within one month after being served with a copy of the Building Appeals Board’s determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its determination.
16(6)The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it.
Clause 17 provides that unless the Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs.
The first issue: whether the determination of the Board is of no effect
Mr Margetts QC, who appeared with Mr Stafford for the plaintiffs, submitted that the determination published by the Board dated 30 June 2014 is of no effect, because the proceeding before the Board was incomplete at the time that Mr Kip ceased to be a member of the panel. As the plaintiffs did not agree to the proceeding continue before the remaining members of the panel, it follows that, under clause 8(7) of Schedule 3, the Board was required to arrange for the proceeding to be recommenced by a new panel.
Mr Margetts submitted that, for the purposes of clause 8(6), there was one proceeding before the panel, albeit that it comprised an appeal, a number of referred disputes, and an application by the third defendant for compensation under s 159. He submitted that the panel, in its determination of 30 June 2014, only determined some of those matters, and, in particular, that it did not determine the dispute as to the costs and expenses of the third defendant under s 154 of the Act, the application by the third defendant for compensation under s 159, and the question of the costs of the proceeding before the Board under clause 17 of Schedule 3. Accordingly, Mr Margetts submitted that the determination, being incomplete at the time at which Mr Kip ceased to be a member of the panel, was of no effect, and must be reconsidered by another panel pursuant to clause 8(7) of Schedule 3.
Alternatively, Mr Margetts submitted that, if there was more than one proceeding before the panel, nevertheless none of those proceedings were complete, because the issue of the parties’ costs, in respect of each of the proceedings before the panel, had not been determined by the panel. Again, he submitted that, in the absence of any agreement by the plaintiffs, the determination of the panel dated 30 June 2014 was of no effect, and each of those proceedings must be reconsidered by another panel under clause 8(7) of Schedule 3.
Mr Margetts further submitted that where, as in this case, a party has made a request of the Board for reasons for its decision under clause 16(5), the proceeding (whether it be one proceeding or a number of proceedings) could not be complete until written reasons are provided by the Board pursuant to clause 16(6). In this case, Mr Margetts submitted, it is not possible for the Court to make an order in the nature of mandamus in favour of the plaintiffs, because the panel, which made the determination, can no longer be constituted, as Mr Kip has ceased to be a member of the Board.
In response, Mr Niall QC, who appeared with Mr Andreou for the third defendant, submitted that the panel had before it a number of separate proceedings, comprising the appeal under s 141, the referred disputes, and the application by the third defendant for compensation under s 159 of the Act. Those proceedings were dealt with together pursuant to clause 15(3)(i) of Schedule 3. Thus, the determination of the panel, dated 30 June 2014, comprised a determination in respect of the appeal under s 141 of the Act, as well as determinations in respect of the disputes referred to it under s 152 and s 153. He submitted that the rights of the parties, in relation to those proceedings, have been fixed by the determinations made by the panel on 30 June 2014. Further, he contended the application by the third defendant for the costs of the proceedings is itself a separate proceeding under clause 17 of Schedule 3.
Mr Niall further submitted that the validity of the determination (or determinations) made by the panel on 30 June 2014, could not, logically, be affected by a subsequent request by a party, under clause 16(5) to be given reasons for the determination. He submitted that the Board, by answering such a request for reasons, is not continuing or completing the proceeding or the determination of the proceeding. Rather, at the time the determination was delivered to the parties on 30 June 2014, the proceeding was complete.
Mr Niall further noted that the obligation to give written reasons, under clause 16(5), is imposed on the Board, rather than on the panel. Where, as in this case, a member of a panel, which made a determination, is no longer available, clause 16(6) required the Board to inform itself, as best it can, as to the reasons of the panel for the determination. In support of his submissions, Mr Niall referred to the decision of Gobbo J in State Electricity Commission v Commissioner for Equal Opportunity & Ors[1], in which his Honour held that a successor to a Commissioner for Equal Opportunity, who had made a decision, could comply with the request for reasons under s 8 of the Administrative Law Act, by providing the reasons of the original decision maker.[2]
[1][1992] 1 VR 79.
[2]See also WAKJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1336, [27] and following (French J).
Analysis and conclusion on first issue
It is common ground that clause 8(6), and thus clause 8(7), of Schedule 3, apply where, firstly, a proceeding has been commenced before a panel of two or more members, and, secondly, before the proceeding is completed, a member of the panel becomes unavailable. Accordingly, in order to determine the first issue, it is necessary to resolve two questions, namely:
(1)Did the determination of the panel that at 30 June 2014 concern one proceeding, or more than one proceeding.
(2)If the determination concerned more than one proceeding, were any of those proceedings completed, at the time at which Mr Kip, the member of the panel, became unavailable after 30 June 2014?
The first question — whether there was more than one proceeding before the panel — depends essentially on a construction of the noun ‘proceeding’ in the Act. In my view, it is plain that there was more than one proceeding, and indeed there were five separate proceedings, before the panel which were the subject of consideration in its determination dated 30 June 2014.
Section 3 of the Act defines proceeding in the following terms:
Proceeding, in relation to a proceeding of the Building Appeals Board, means —
(a) an appeal to that Board under Divisions 1 and 2 of Part 10; or
(b) a matter referred to that Board under Division 3 of that Part; or
(c) an application to that Board under Division 4 of that Part; or
(d)any other matter within that Board’s jurisdiction that, by the Act or regulation conferring jurisdiction, is declared to be a proceeding.
That definition, of its own, implies that each appeal, each matter referred to the Board under Division 3, and each application to the Board under Division 4, is a separate proceeding. In this case, the third defendant appealed to the Board against a determination by the relevant building surveyor, pursuant to s 141 of the Act. Division 1 and Division 2 of Part 10 of the Act govern the conduct and disposition of appeals to the Board under s 141. In addition, the panel had before it a referral of a dispute about the nature of the insurance cover in respect of the works (under s 152), a referral of a dispute as to the survey to be carried out of the third defendant’s property (under s 153), and a referral of a dispute about the costs and expenses necessarily incurred by the third defendant in supervising the protection works (under s 154). The provisions relating to the referral, to the Board, of those disputes, are to be found in Part 10 Division 3 of the Act. In addition, the panel had before it an application by the third defendant for compensation, for inconvenience, loss or damage arising out of the carrying out of the protection work, under s 159 of the Act. That section is found in Part 10 Division 4.
The appeal, each referral, and the application for compensation, could each have been the subject of separate hearings before the Board. However, understandably, they were dealt with together under clause 15(3)(i) of Schedule 3, which provides that the Board may deal with proceedings together if they relate to the same parties, the same building, the same work, or the same or related subject matter.
In that way, it is clear that the Board had before it the five proceedings which it outlined at the commencement of its determination. By its determination, the Board made substantive orders in relation to three of those proceedings. First, it ordered (under s 146) that the determination of the relevant building surveyor under s 87 of the Act was set aside, and was remitted to the surveyor with specific directions. That order dealt with the proceeding consisting of the appeal to the Board under s 141 of the Act. Secondly, it ordered that the plaintiffs obtain appropriate insurance for a value of not less than $5,000,000 for the permanent and temporary protection work in accordance with the requirements of the Act. That order dealt with the proceeding consisting of the referral to it of the dispute under s 152 of the Act. Thirdly, the Board made orders in relation to arranging a survey of the third defendant’s property. That order determined the dispute referred to the Board as to the survey of the third defendant’s property under s 153 of the Act. On the other hand, the Board did not determine the dispute, under s 154 of the Act, about the costs and expenses incurred by the third defendant in supervising the protection work, or the third defendant’s application for compensation under s 159 of the Act. Instead the Board gave directions as to the filing of submissions, and like matters, pertaining to those disputes. Thus, the proceedings relating to those two disputes, fall within clause 8(6) of Schedule 3, being proceedings which had not been completed before a member of the panel, considering those disputes, became unavailable.
For those reasons, I consider that the appeal to the Board under s 141, the referral of the dispute under s 152, and the referral of the dispute under s 153, were each separate proceedings. The fact that the two other proceedings, namely, the referral of the dispute under s 154, and the application for compensation under s 159, had not been determined at the time at which the member of the panel became unavailable, does not, accordingly, affect the question whether the appeal under s 141, and the referrals under ss 152 and 153, were complete at that time.
The second issue, then, is whether those three proceedings — the appeal, and the referrals under ss 152 and 153 — had been completed when the member of the panel became unavailable. The determination of that question involves, in turn, the resolution of two issues, namely, first, the effect of the issue relating to the costs of each of those proceedings not being resolved when the panel member became unavailable, and, secondly, the effect of the obligation of the Board, on request, to provide reasons for a determination under clause 16(5) of Schedule 3. In this case, that request could only be complied with after the member of the panel had become unavailable.
In respect of the first issue, Mr Niall submitted that a claim for costs is a proceeding that is separate to each of the other proceedings, and, in this case, the appeal, and the referred disputes. I do not accept that argument. Ordinarily, an order for costs is an order that is incidental to, and not separate from, the proceeding in which it is made. That principle clearly applies to costs which might be ordered by the Board under clause 17 of Schedule 3. That clause, to which I have earlier referred, provides that unless the Board otherwise determines, ‘a party to a proceeding before the Board must bear his, her or its own costs’. It is clear from the text of that clause that any order for costs is made in the proceeding, and not in a separate proceeding.
For that reason, clause 8(6) of Schedule 3 does apply to each of the three proceedings to which I have referred, and which were the subject of the determination dated 30 June 2014. Those proceedings had not been completed, because the question of costs relating to them had been left for further argument and decision. However, on its proper construction, clause 8(7) does not, as a consequence, compel the conclusion contended for for the plaintiffs, namely, that each of those three proceedings must be reconsidered, including the aspects of the proceedings that were already the subject of determination by the panel by its decision of 30 June 2014.
Clause 8(7) provides that if the parties do not agree to continue ‘a proceeding’ under subclause (6), the chairperson of the Board must arrange for ‘the matter’ to be reconsidered by another panel. It is important to note that, in the event postulated in subclause 8(7), the chairperson does not arrange for ‘the proceeding’ to be reconsidered by the second panel. Rather, what is to be reconsidered is ‘the matter’. The use of the two different nouns — ‘matter’ and ‘proceeding’ — in clause 8(7) implies that a ‘matter’ is clearly intended to refer to something other than a ‘proceeding’ in that clause.
In considering what is contemplated by the phrase ‘the matter’ in clause 8(7), it is important to bear in mind the purpose of the dispute resolution regime constituted by Part 10 of the Act. Section 1(c) of the Act provides that one of the main purposes of the Act is to ‘… provide an efficient and effective system for … resolving building disputes’. In Part 10, the Act contains a number of provisions enabling that purpose to be put into effect. In particular, the legislation establishes a regime by which parties, involved in a building dispute, are not compelled to proceed to litigation, but, rather, are directed to a system which involves a practical and expeditious method of resolving their disputes. In that vein, clause 15(3) of Schedule 3 provides (inter alia) that the Board is not bound by any rule or practice as to evidence, that it must proceed with as little formality and technicality and with as much expedition as the requirements of the Act permit, and that it may inform itself in any manner it thinks fit. Clause 9 of Schedule 3 provides that an act or decision of a Board is not invalid only because of a defect or irregularity in the appointment of a member or acting member, a vacancy in the Board’s membership, or the occasion for the appointment of an acting member of a Board having ceased to exist.
In the context of that clear purpose of the Act, it is understandable that clause 8(7) differentiates between a ‘matter’ (which must be reconsidered by another panel) and the ‘proceeding’ in which the matter arises. It would be contrary to the purpose of the Act to require a determination of a panel to be reconsidered, if, at the time at which a member of a panel became unavailable, all the disputes between the parties had been resolved by the determination, save for an outstanding question, such as the costs of the proceeding or proceedings. In my view, it is for that reason, that the language of clause 8(7) specifically differentiates between a ‘proceeding’ and a ‘matter’, so that where a proceeding is incomplete when a member of a panel becomes unavailable, only the unresolved matter or matters in the proceeding must be reconsidered by a new panel.
The second issue, raised by Mr Margetts, concerns the effect of clause 16 of Schedule 3. As I stated, Mr Margetts submitted that where a request for reasons of a determination of the Board has been made under clause 16(5), the proceeding is not completed until those reasons are provided. In this case, the panel cannot be reconstituted, as one member is unavailable. Thus, it is submitted, the Board is unable to give reasons under clause 16(6). Accordingly, Mr Margetts contended, the proceeding is incomplete, and it must be reconsidered by another panel under clause 8(7).
The short answer to that submission is that the proceeding, consisting of the appeal to the Board under s 141 of the Act, was complete (apart from the resolution of the question of costs) upon the delivery by the panel of its determination on 30 June 2014. It is the determination which finalises the rights of the parties who were the subject of the appeal. Reasons, subsequently provided for that determination, cannot alter or qualify the determination, or the orders made in it. Rather, the reasons do no more than reveal the path of reasoning of the panel for its decision. Thus, the process provided by clause 16, for a party to request reasons, and for the Board to provide those reasons, does not constitute a continuation of the proceeding in which the reasons for a determination are sought.
That answer is sufficient to dispose of Mr Margetts’ submission. However, the premise upon which the submission is based is also flawed. That premise is that the request for reasons under clause 16(5) cannot be complied with.
By clause 16, it is the Board which is required to respond to any request for reasons for its decision. In a case in which a panel is appointed, that panel constitutes the Board, pursuant to clause 8(1). However, a number of provisions contained in Schedule 3, including clauses 10(1), 11(1)(a), and 18(1) and (2), differentiate between the Board, on the one hand, and a panel which may constitute the Board in a particular case. It is significant that clause 16 provides that the request for reasons be made to the Board, and that it is the Board which must comply with the request. Thus, in the present case, it is not the panel, but rather the Board, which was required to respond to any request for reasons made on behalf of the plaintiffs. In circumstances in which one of the members of the panel, who made the determination, is no longer available, the Board could still consider the request and provide reasons. In such a case, it would be necessary for the Board to inform itself, as best it can, as to the reasons of the panel for the determination.[3]
[3]Compare State Electricity Commission v Commissioner for Equal Opportunity & Ors [1992] 1 VR 57, 86 (Gobbo J).
For those reasons, I reject the submission made on behalf of the plaintiffs that the determination of the panel, in respect of the appeal under s 141 of the Act, and the disputes referred to it under ss 152 and 153 of the Act, are of no effect.
The second issue: whether the Board had jurisdiction to determine the application
The second issue, whether the Board had jurisdiction to determine the application, was only the subject of relatively brief submissions before me. The submission of the plaintiffs was that the Board did not have jurisdiction to hear the appeal under s 141, because, at the time of the appeal, the third defendant was no longer an “adjoining owner” for the purposes of the Act.
Section 3 of the Act defines ‘adjoining owner’ to mean ‘the owner of an adjoining property’. In turn, the phrase ‘adjoining property’ is defined to mean:
[L]and … which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work.
In short, the plaintiffs submitted that at the time at which the appeal came before the Board, the relevant building work had been completed, and therefore there was no building work ‘to be carried out’ on the plaintiffs’ site for the purposes of the definition of ‘adjoining property’.
The submission by the plaintiffs as to the jurisdiction of the Board to hear the disputes was rejected by the panel in its decision dated 6 May 2014. The plaintiffs did not commence the present proceeding seeking relief, in respect of that decision, until 27 August 2014. Accordingly, it is necessary for the plaintiffs, first, to apply for an extension of time in respect of the decision pursuant to Rule 56.02(3) of the Rules of the Supreme Court. That rule provides that the court shall not extend the time for commencement of such a proceeding ‘except in special circumstances’. With some reservations, I would extend time in this case. The decision of the panel related to its jurisdiction, under the Act, to hear and determine the dispute. If that decision were wrong in law, it should not stand, notwithstanding the delay by the plaintiffs in seeing relief in relation to it.
On the other hand, I do not consider that there is any substance in the submission made on behalf of the plaintiffs. I have reached that conclusion for two reasons.
First, the critical issue in contention is a temporal issue, namely, at what stage must the third defendant’s property (unit 9) be an ‘adjoining property’ to the plaintiffs’ property (unit 8). In my view, as a matter of statutory construction, the relevant stage, for the purposes of determining that question, is the time at which the plaintiffs proposed to undertake works on their own unit which required them to carry out relevant protection work in respect of unit 9. It was at that stage that the plaintiffs were required, by s 84 of the Act, to serve a notice of the proposed building work on the owner of unit 9, the third defendant. Each successive stage, for dealing with that notice, was concerned with issues lying between the owner of the adjoining property (that is, the adjoining property at the time of the provision of the notice) and the owner of the property who intended to carry out the particular building works. Thus s 85 required the adjoining owner (the owner of the adjoining property, unit 9) to respond to the notice. Section 87 provided that the relevant building surveyor make a determination, where the owner (the plaintiffs) and the adjoining owner (that is, the owner of unit 9) were in dispute concerning the notice. It is that determination which is necessarily the subject of an appeal under s 141 to the Board. In other words, an appeal under s 141, lies against a determination of a relevant building surveyor in respect of an issue between the owner of a property, who proposes works, and the owner of a property that adjoined it at the time the works were proposed, and the notice, under s 84 of the Act, was required to be served.
Accordingly, as a matter of statutory construction, the question whether unit 9 was an ‘adjoining property’ to unit 8 is to be determined by reference to the time at which the plaintiffs served the notice on the third defendant under s 84 of the Act. The contrary view would be productive of anomalous consequences. In particular, if the conclusion contended for by the plaintiffs were accepted, an owner could readily subvert the rights of an adjoining owner by unilaterally carrying out the proposed works, without authorisation, before the adjoining owner had the opportunity to appeal against a decision of the relevant building surveyor. Such an obvious anomalous position could not have been contemplated by the legislature. Rather, the clear legislative intention is that the status of a property, as an ‘adjoining property’, for the purposes of the Act, is to be determined at the time at which an owner of a property, proposing to carry out works on a property, is required to serve a notice under s 84 of the Act.
The second reason, for rejecting the submissions made by the plaintiffs in respect of the second issue, is that those submissions are based on a false factual premise. In essence, Mr Margetts submitted that at the time at which the appeal was commenced, the plaintiffs had completed their works. The appeal was lodged by the third defendant on 21 December 2012. The first plaintiff commenced the works on 26 December 2012. There is a dispute as to whether the notice of the appeal was served on the plaintiffs, and the fourth defendant, at that time, or later in January 2013, after the plaintiffs had completed their works. However, clause 13 of Schedule 3 provides that a person may ‘commence’ a proceeding before the Board by serving an application, a notice of appeal or notice of referral of a matter, on the Board. Clause 13(3) provides that a person ‘who serves a document (on the Board) commencing a proceeding’ must ‘without delay’ serve a copy of the document on the decision maker, and (inter alia) on any other party concerned. Those provisions make it clear that the appeal, in this case, from the decision of the relevant building surveyor, was commenced on 21 December 2012, upon the third defendant lodging the appeal with the Board. At that time, the plaintiffs had not commenced (or completed) the building works on unit 8. For those reasons, the factual premise to the submission made by Mr Margetts fails.
For the above two reasons, I reject the submissions made on behalf of the plaintiffs that the Board did not have jurisdiction to hear and determine the matters which were the subject of the determination dated 30 June 2014.
The third issue: whether the Board failed to take into account relevant matters and the fourth issue: whether the Board failed to give adequate reasons for its decision
Mr Margetts addressed the third and fourth issues together, as the plaintiffs’ arguments in relation to them were closely interrelated.
In their written submissions, counsel for the plaintiffs contended that the Board had failed to take into account the results of the first plaintiff’s investigation of the roof space, and the report of Mr Carlin-Smith which was based on that investigation. Alternatively, it was put that the reasons of the Board were inadequate, because they did not provide an explanation as to why the Board did not accept the facts concerning the conditions in the roof space, and the expert evidence of Mr Carlin-Smith.
In oral submissions, Mr Margetts contended that the determination of the Board failed to contain adequate reasons, because it did not disclose adequately the pathway of reasoning by which the Board reached the conclusions stated in the determination. In particular, Mr Margetts referred to paragraph 21 of the determination, in which the Board stated that it would not be appropriate to rely on the structural design certificates provided by the relevant building surveyor, and that the structural work undertaken did not meet the requirements of the building permit or the Building Code of Australia. Mr Margetts submitted that the determination failed to disclose the reasoning by which the Board reached those particular conclusions. Further, Mr Margetts submitted that, in reaching those conclusions, the Board failed to take into account the further information provided by the first plaintiff in relation to the roof space, and the further report of Mr Carlin-Smith which was provided to the Board on 27 May 2014.
In the course of his oral submissions, Mr Margetts (correctly) accepted that the Board was not obliged, under clause 16(1) of Schedule 3, to give reasons when delivering its determination. However he submitted that the Board, in providing its determination, gave reasons which were not adequate. He then submitted that it is not possible to ‘remit’ the matter back to the Board for further reasons, because a member of the panel, who made the decision, is no longer available. When I pointed out that, on a proceeding by way of Order 56, the court does not have power to ‘remit’ a matter to a Board or tribunal, Mr Margetts then, somewhat tentatively, applied for leave to amend the originating motion to include relief by way of mandamus requiring the Board to provide reasons for the decision of the panel. However, when that application was opposed by Mr Niall, Mr Margetts withdrew it.
In response, Mr Niall relied on five propositions which, he submitted, answered the argument made by the plaintiffs. In particular, he submitted:
(a) There is a critical difference between a determination and the reasons for the determination.
(b) The fact that the Board may have given some reasons, within the determination, did not involve jurisdictional error by the Board. In support of that proposition, Mr Niall referred to the decision of the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme[4].
[4](2003) 216 CLR 212, 226 [48] (Gleeson CJ, Gummow and Heydon JJ).
(c) Where a Board or tribunal is required, by statute, to provide reasons for its decision, the provision of inadequate reasons may constitute an error of law on the face of the record.[5] However, the Act does not require that, in delivering a determination, the Board provide reasons for that determination. Rather, the provision of such reasons depends upon a subsequent request by a party pursuant to clause 16(5) of Schedule 3.
(d) Where a Board or tribunal is required to give reasons, it is not necessary that those reasons contain an explanation by the Board or tribunal for rejecting evidence or a proposition which may be contrary to its conclusion.[6]
(e) Where a Board or tribunal is required to give reasons, but does not do so, the appropriate relief is by way of mandamus. A party may not shortcut that relief by seeking relief in the nature of certiorari based on the absence of such reasons.
[5]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 (French CJ, Crennan, Bell, Gageler and Keane JJ) (‘Wingfoot’).
[6]Ibid, 79-80 [56].
Mr Niall further submitted that, in any event, if the determination of the Board dated 30 June 2014, constituted its reasons, those reasons were sufficient. He pointed out that the determination expressly required that the rectification work, to the structural work, be undertaken in the manner described in the report of McLeod Consulting dated 12 May 2014. Mr Niall noted that the report of Mr McLeod provided sufficient detail as to the deficiencies in the structural work, and provided detailed computations supporting his conclusions. Mr Niall submitted that the Board, by its determination, expressly adopted Mr McLeod’s conclusions, and his reasons for reaching those conclusions. Thus, he submitted that, in any event, the Board, in its determination, provided adequate reasons for its conclusion.
Mr Niall further submitted that the Board was not obliged to take into account Mr Carlin-Smith’s report. In its ruling on the issue of jurisdiction on 16 May 2014, the Board gave detailed directions as to the filing of further documents and submissions by the parties. Those directions did not cater for the provision of any further evidentiary material by either side. After the Carlin-Smith report was provided to the Board, the third defendant objected to the filing and service of that report. On 28 May 2014, the Board notified the parties that it would only determine the matters before it taking into account submissions which were consistent with the original directions given on 20 May 2014.
Finally, Mr Niall submitted that, in any event, the report of Carlin-Smith was not a ‘relevant consideration’, but, rather, constituted, at best, part of the evidence before the Board. If the Board failed to take that report into account, it did not, thus, fail to take into account a relevant consideration, and accordingly it did not commit any error of law.
Analysis and conclusions on the third and fourth issues
It is well established that, in the absence of a specific legislative requirement, there is no obligation by a decision maker, such as the Board, to provide reasons for its decision. That proposition was put beyond argument by the decision of the High Court in Public Service Board of New South Wales v Osmond[7]. In that case, the New South Wales Court of Appeal ordered the appellant board to give reasons for dismissing an appeal made to it by an unsuccessful applicant for promotion in the public service. The statute, under which the appeal was brought, did not contain any provision requiring the Board to give reasons for its decision. The High Court unanimously allowed the appeal of the Board. Gibbs CJ (with whom Brennan and Dawson JJ agreed) stated:
With the greatest respect to the learned judges and the majority in the Court of Appeal, the conclusion which they have reached is opposed to overwhelming authority. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.[8]
[7](1986) 159 CLR 656 (‘Osmond’).
[8]Ibid, 662.
The principle, thus stated in Osmond, was recently affirmed by the High Court in Wingfoot.[9]
[9](2013) 303 ALR 64, 76 [43].
The Building Act does not contain any provision requiring the Board, in delivering a determination in respect of an appeal, or a referred dispute, to give reasons for that determination. Rather, it is clear from clause 16 of Schedule 3 that the Board is not required to give such reasons. As I have already noted, clause 16(1) requires that the determination of the Board be in writing. The Board is only required to give reasons if, subsequent to the delivery by it of its determination, a party to the proceeding requests the Board to give written reasons for that determination under clause 16(5). Thus the Act, by clause 16, specifically retains the dichotomy between, on the one hand, the determination of the Board, and, on the other hand, the subsequent provision of reasons for that determination. It was for that reason that Mr Margetts, in the course of oral submissions, accepted (correctly) that the Board was not obliged to provide any reasons for its determination of 30 June 2014.
Rather, Mr Margetts submitted that, notwithstanding that it was not obliged to do so, the Board, in its determination, embarked on giving reasons, and that in doing so, it failed to give adequate reasons for its conclusions.
However, assuming that the Board did provide reasons which were inadequate, that does not have the effect that the Board, thereby, made an error of law in its determination. The position would be different if the Board was required, by statute, to provide reasons for its decision. In such a case, the provision of inadequate reasons would constitute an error of law on the face of the record. Thus, where a medical panel, which is obliged by s 68(2) of the Accident Compensation Act 1985 to give reasons for its decision, gives inadequate reasons for its decision, the court may grant relief by way of certiorari to quash the panel’s decision.[10] However, in this case, there was no legal obligation for the Board to provide reasons for its determination. It follows that if the determination contained reasons, and if those reasons were inadequate, that would not constitute an error of law by the Board.
[10]Wingfoot, 79 [53].
The considerations, that I have just discussed, are sufficient to dispose of the fourth issue raised by the plaintiffs, namely, the adequacy of the reasons provided by the Tribunal for its decision. However, in any event, I agree with Mr Niall that the determination of the Board does, in fact, adequately disclose the path of reasoning that it adopted to reach its particular conclusion.[11]
[11]Ibid, 77 [48].
Paragraph 21 of the determination states (inter alia) that the Board considered that the structural work undertaken did not meet the requirements of the building permit or the Building Code of Australia, and that the rectification work described in the report of McLeod Consulting dated 12 May 2014 must be undertaken; that the fire resistance of new load bearing elements should meet the requirements of the Building Code; but that the earthquake resistance of new load bearing elements did not need to meet the requirements of that code as progressive upgrade of earthquake resistance is not practically achievable and Melbourne is not a significant earthquake region. The report of McLeod Consulting, to which the Board referred, contained a detailed analysis of the defects in the structural work so far undertaken. In particular, it concluded that brick pier number one had insufficient robustness, as it had no compression capacity. It attached its computations for reaching that conclusion. It pointed out that the plaintiffs’ engineer’s calculations had been based on a superseded version of the code and was therefore erroneous. The report of McLeod Consulting stated that FB2 was not stiff enough, and that none of the lintels had been galvanised as required by the Australian Standards, that are the minimum acceptable standard. The report further stated that one of the lintels (FB2) should be installed with appropriate wedges to preload it to mitigate its low stiffness.
In those circumstances if, which is not the case, the Board were required to provide reasons for its determination, in my view the reasons so provided by the Board would be adequate. One of the complaints made by Mr Margetts in this regard is that the Board failed to state, in its reasons, why it did not accept the conclusions of Mr Carlin-Smith. However, as pointed out by Mr Niall, the report of Mr Carlin-Smith was the subject of successful objection by the third defendant. In addition, where a tribunal is obliged at law to provide reasons, that obligation does not require the tribunal to explain why it did not accept evidence or a contention contrary to the conclusion that it reached.[12]
[12]Ibid, 79-80 [56].
That conclusion brings me to the third, related, issue, namely, the contention of behalf of the plaintiffs that the Board failed to take into account relevant circumstances in reaching its determination of 30 June 2014. In particular, it is submitted that the Board failed to take into account the report of Mr Carlin-Smith, and the matters raised as a result of the first plaintiff’s investigations in the roof space.
The plaintiffs’ submissions in respect of that issue are rejected for three reasons. First, as I have stated, the determination by the Board did not constitute its reasons. Thus, it is not possible to determine, from the determination alone, whether, and to what extent, the Board took into account the report of Mr Carlin-Smith and the plaintiffs. Secondly, in any event, as I have stated, insofar as the Board’s determination contains reasons, it is well established that a tribunal, in providing reasons, is not obliged to expressly deal with material or evidence which may be contrary to its conclusion.
Thirdly, the plaintiffs’ submission fails to take into account the critical distinction between, on the one hand, relevant considerations, and, on the other hand, pieces of evidence before the tribunal. It is well established that a tribunal may make an error of law, if it fails to take into account a consideration that it was bound to take into account.[13] The considerations that a particular tribunal must take into account are determined by the issue which the tribunal must determine, and the statutory context in which the tribunal makes its determination.[14] On the other hand, a tribunal does not make an error of law by failing to consider or take into account particular pieces of evidence put before it. In order to establish relevant error, the plaintiffs must demonstrate a failure by the Board to take into account a relevant consideration that it was obliged to take into account, as distinct from a piece or pieces of evidence put before the Board in respect of the issues which it was determining.[15] The distinction between relevant considerations on the one hand, and evidence on the other hand, is important, as it is not the jurisdiction of this Court, on judicial review, to engage in a review of the merits of the decision of the tribunal in question.[16]
[13]See for example Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (Mason J).
[14]Ibid.
[15]See for example Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, 417 [36] (McHugh J); Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736, [15] (Gyles J); Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416, [15] (Nicholson J).
[16]Abebe v Commonwealth of Australia (1999) 162 ALR 1, 53-54 [195] (Gummow and Hayne JJ).
In the present case, the matters contained in Mr Carlin-Smith’s report, and the material put before the Board in respect of the inspection of the roof space by the first plaintiff, fall squarely within the category of evidence, rather than relevant considerations, for the purposes of determining whether there was jurisdictional error or error on the face of the record by the Board. For that additional reason, if the Board did not take those matters into account, it did not thereby make an error of law on the face of the record or commit jurisdictional error.
Accordingly, I do not accept the submissions made by the plaintiffs in support of the third and fourth issues.
Summary of conclusions
For the foregoing reasons, I have reached the following conclusions:
(1)The determination of the first defendant, the Building Appeals Board, dated 30 June 2014, in respect of the appeal to it under s 141, and in respect of the disputes referred to it under ss 152 and 153, of the Building Act 1993, are effective, and do not require to be reconsidered by a new panel of the Board under clause 8(7) of Schedule 3 to the Act.
(2)The Board had jurisdiction to hear the matters that were the subject of its determination dated 30 June 2014. In particular, the third defendant was, at all material times, an adjoining owner for the purpose of the dispute that was the subject of that determination.
(3)The Board, in making its determination, did not fail to take into account a relevant matter.
(4)The Board did not make an error of law by failing to give adequate reasons for its determination.
It follows that the plaintiffs have failed to establish a ground entitling them to relief by way of judicial review. The proceeding must therefore be dismissed. I shall hear counsel on the question of costs.
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