Victorian Building Authority v Jim Tsaganas - [2017] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0010

VICTORIAN BUILDING AUTHORITY	Applicant
v
JIM TSAGANAS	Respondent

---

JUDGES:	TATE, OSBORN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2017
DATE OF JUDGMENT:	12 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 248	Second Revision: 8 April 2019 (n [17])
JUDGMENT APPEALED FROM:	[2016] VCAT 1732 (Dyer J)

---

ADMINISTRATIVE LAW – Appeal pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998 – Disciplinary action – Professional misconduct by building practitioner – Appeal from decision of Victorian Civil and Administrative Tribunal (VCAT) on review of Building Practitioners Board – Whether decision to suspend rather than cancel professional registrations consequent on findings that practitioner had failed to carry out professional duties in a manner envisaged by the Act resulting in ‘real and apparent risk of injury or death to persons’ and that practitioner was ‘not a fit and proper person to practise as a building practitioner’ vitiated by errors of law – Whether decision so unreasonable it lay outside range of decisions VCAT was authorised to make under s 179 of the Building Act 1993 – Whether suspension manifestly inadequate to serve overriding purposes and objectives of Building Act 1993 and thereby failed to take into account relevant considerations – Building Act 1993 ss 178, 179 – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Hanks QC with Mr A Woods	Victorian Building Authority
For the Respondent	Mr C Winneke QC with Mr A Anderson	Fairweather Legal

TATE JA:
OSBORN JA:
KAYE JA:

The respondent, Jim Tsaganas, was registered as a building surveyor and building inspector[1] under the Building Act 1993 (‘the Act’) in January 1996 and he practised continuously in those professions until the matters giving rise to this appeal. Between 2012 and 2015 the applicant’s predecessor, the Building Practitioners Board (‘the Board’)[2] conducted three inquiries into the professional conduct of the respondent pursuant to s 178 of the Act.[3] The three inquiries came to be known as ‘Cromwell No. 1’, ‘Cromwell No. 2’ and ‘the Consolidated Proceedings’. The conduct the subject of the inquiries spanned the period 2004 to 2013, and comprised some 47 initial allegations (of which four were withdrawn) in respect of works at 12 properties.
[1]Both registrations were classed as ‘unlimited’.
[2]Pursuant to cl 5, sch 8 of the Act (version no. 107), the appellant, the Victorian Building Authority, has been substituted for the Board as the respondent to the proceeding in the Tribunal which is subject to review.
[3]Prior to these inquiries, on 22 July 2005, the respondent had been fined $500 and ordered to pay $250 in costs for one contravention of reg 15.2(a) of the Building Regulations 1994 for failing to carry out his work as a building surveyor in a competent manner and to a professional standard by issuing a building permit for building work when he was aware that the building work had been completed on or about 11 April 2002. This…

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.

Keep reading for free

Create a free CaseChat account to read Victorian Building Authority v Jim Tsaganas and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 248
Decision Date: 12 September 2017

CaseChat Overview and Summary

The appeal before the court involved the Victorian Building Authority and Jim Tsaganas, a building practitioner. The crux of the dispute was the decision by the Victorian Civil and Administrative Tribunal (VCAT) to suspend rather than cancel Tsaganas' professional registrations following findings of professional misconduct. The findings included that Tsaganas had failed to carry out his professional duties in a manner consistent with the Building Act 1993, leading to a real and apparent risk of injury or death to persons, and that he was not a fit and proper person to practise as a building practitioner. The Building Authority sought to appeal this decision, arguing that the tribunal's decision to suspend Tsaganas' registrations, rather than cancelling them outright, was unreasonable and a manifest inadequacy in addressing the overriding purposes and objectives of the Building Act 1993.

The central legal issues revolved around whether the VCAT's decision was vitiated by errors of law, whether it was so unreasonable that it lay outside the range of decisions VCAT was authorised to make under the Building Act 1993, and whether the decision to suspend rather than cancel Tsaganas' registrations failed to take into account relevant considerations. The court had to consider whether the tribunal had properly applied the statutory criteria and whether the decision was within the scope of its authority under the Building Act 1993. Furthermore, the court examined if the suspension was manifestly inadequate in achieving the Act's objectives.

In its reasoning, the court held that the VCAT's decision was not vitiated by errors of law and was well within the range of decisions it was authorised to make. The tribunal had considered the relevant statutory criteria and had exercised its discretion in a manner consistent with the objectives of the Building Act 1993. The court found that the suspension was an appropriate response given the circumstances and did not amount to a manifest inadequacy in achieving the Act's objectives. Consequently, the appeal was dismissed, affirming the VCAT's decision to suspend Tsaganas' registrations rather than cancelling them.

Orders