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Thomas v Victorian Building Authority

Thomas v Victorian Building Authority

Case [2020] VSC 150 2 April 2020

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Statutory Interpretation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04188

BRUCE MACLEOD THOMAS	Plaintiff
v
VICTORIAN BUILDING AUTHORITY	Defendant

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20 February 2020
DATE OF JUDGMENT:	2 April 2020
CASE MAY BE CITED AS:	Thomas v Victorian Building Authority
MEDIUM NEUTRAL CITATION:	[2020] VSC 150

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JUDICIAL REVIEW AND APPEALS – Application for judicial review – Decision to refuse consent for application to surrender building registrations pursuant to s 173B of the Building Act 1993 (Vic) – Where disciplinary action on foot related to use of combustible cladding – Whether decision made for improper punitive purpose – Whether manifestly excessive – Grounds not established - Decision to issue a show cause notice under s 182 – Whether decision issued without jurisdiction – Whether Authority seeking to apply current form of legislation to acts occurring when a different regulatory regime in place – Whether liabilities or rights affected – Contrary intention appears in any event – Application dismissed – Building Act 1993 (Vic) ss 173B, 178, 179, 182, sch 8 cl 4 – Interpretation of Legislation Act 1984 (Vic) s 14(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Klempfner	Clyde & Co
Ms K Chan
For the Defendant	Mr P Hanks QC Mr G Ayres	Legal Services, Victorian Building Authority

HER HONOUR:

The plaintiff (‘Mr Thomas’) seeks judicial review of two decisions of the Victorian Building Authority (‘VBA’) as follows:

·Firstly, the VBA’s decision of 4 September 2019 to refuse its consent under s 173B of the Building Act 1993 (Vic) (‘the Act’) for Mr Thomas to surrender his building practitioner registrations (‘consent refusal decision’); and
·Secondly, the VBA’s decision to issue a ‘show cause notice’ to Mr Thomas on 28 June 2019 under s 182 of the Act in respect of proposed disciplinary action (‘show cause decision’).

The first issue before the Court is whether, in making the consent refusal decision, the VBA made an error of law on the face of the record or a jurisdictional error in that the consent refusal decision was made for an improper purpose and/or was manifestly excessive (ground 1).

Secondly, the issue is whether the defendant made the decision to issue the show cause notice ‘without jurisdiction’ in that the VBA is seeking to apply the current form of the relevant legislation to acts or omissions which occurred when a materially different regulatory regime was in force (ground 2).

The plaintiff abandoned an earlier suggestion that the reasons given for the consent refusal decision did not honestly state the true reasons for the decision.[1] Rather, the plaintiff accepted that the reasons for that decision were set out in the formal statement of reasons dated 25 September 2019 together with correspondence from the VBA of 18 July 2019 and 4 September 2019 (collectively, the ‘Reasons’).[2]
[1]See deleted particulars pursuant to paragraph 7 of the Third Amended Originating Motion.
[2]Transcript of…

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 Thomas v Victorian Building Authority

Details

AGLC: Thomas v Victorian Building Authority [2020] VSC 150
Case: [2020] VSC 150
Decision Date: 2 April 2020

CaseChat Overview and Summary

The plaintiff, Thomas, brought an application for judicial review against the Victorian Building Authority (the Authority). Thomas sought to surrender building registrations held under the Building Act 1993 (Vic) due to the use of combustible cladding on his property. The Authority had refused the application and issued a show cause notice, alleging that Thomas's application was made in bad faith and punitively, and that the Authority had jurisdiction to issue the notice.

The central legal issues before the court were whether the Authority's decision to refuse the application to surrender was made for an improper purpose, and whether it was manifestly excessive. Additionally, the court had to determine if the Authority's decision to issue a show cause notice was made without jurisdiction, and whether the Authority was attempting to apply the current legislation to conduct that occurred under a previous regulatory regime.

The court found that the Authority's decision to refuse the application was not made for an improper punitive purpose, nor was it manifestly excessive. Regarding the show cause notice, the court held that the Authority had jurisdiction to issue it and that it was not seeking to apply the current form of legislation to actions occurring under a different regulatory regime. The court also noted that the intention of the legislation did not preclude the Authority from taking action in such circumstances.

The application for judicial review was dismissed. The court found no grounds to interfere with the Authority's decision or the issuance of the show cause notice.

Orders