CES Queen (Vic) Pty Ltd v Thomas & Ors

1 The Plaintiff and Applicant in this matter, CES Queen (Vic) Pty Ltd ('CES Queen') is the registered proprietor of a property situated at 150 Queen Street, Melbourne ('CES Queen's Land'). CES Queen plans to replace the existing building on its site with a large 71 storey residential tower to be known as 'Tower Melbourne'. A planning permit has been issued for this purpose. Demolition of the present building situated on its land is necessary to make way for its proposed development.

2 Colonial Range Pty Ltd ('Colonial'), the Second Defendant and Respondent in this matter, owns the property next door. This property comprises 140 Queen Street, Melbourne and another adjoining parcel of land situated at 21-27 McKillop Street (together 'Colonial's Land'). A planning permit has been issued to build a hotel and retail premises on these sites.

3 Colonial is concerned that demolishing the building on CES Queen's Land may cause physical damage to the buildings on the adjoining properties owned by it if those properties are not adequately protected. Accordingly, the 'protection work' regime - enshrined in the Building Act 1993 ('the Act') was engaged. And under Part 7 of the Act, a relevant building surveyor may determine, in the case of a dispute, the appropriateness of the work proposed to protect the adjoining buildings.

4 Further background facts to the present proceeding have been set out in this Court's reasons for judgment given in Colonial Range Pty Ltd v Victorian Building Authority[1] and need only be summarised here.

5 Mr Stasi Galanos was initially appointed as the private building surveyor ('PBS') in relation to the development of CES Queen's Land. CES Queen applied to Mr Galanos for a number of building permits. In his capacity as the PBS he required that protection work be carried out to protect the area surrounding existing development during the building works on CES Queen's Land. Colonial then applied to the Building Appeals Board (the 'Board') in relation to protection work determinations made by Mr Galanos. At that time, both Colonial and the Board suggested that new protection work notices should be served, due to what appeared to be defects in the relevant protection work notices issued by Mr Galanos.

6 CES Queen therefore recommenced the protection work process in order to have the protection work issue determined as soon as possible. Colonial, by its solicitor, made serious allegations regarding Mr Galanos' professionalism. Mr Galanos subsequently applied to the Victorian Building Authority ('VBA') for its consent under s 81 of the Act to terminate his appointment as the PBS. In the course of correspondence relating to Mr Galanos' termination, CES Queen indicated that if Mr Galanos' appointment were terminated, it would appoint Mr Shane Leonard as PBS ('Mr Leonard').

7 On 23 December 2013, the VBA wrote to Mr Galanos consenting to the termination of his appointment, and directing that Mr Galanos provide material to Mr Leonard and for Mr Leonard to inspect the site. On 14 January 2014, Mr Leonard was appointed as the PBS for the development of CES Queen's Land.

8 On 22 January 2014, CES Queen applied to Mr Leonard for a building permit for the demolition of the existing building down to but not including the ground floor slab.

9 On 5 February 2014 Mr Leonard made a protection work determination in respect of the demolition of the plant room and the lift motor room on the roof of the existing building at 150 Queen Street (the 'Leonard Determination').

10 On 21 February 2014, Colonial appealed to the Board against the February Leonard Determination. On 5 March 2014, the Board listed Colonial's appeal for 13 March 2014.

11 On 12 March 2014, Colonial initiated judicial review proceedings in the Supreme Court for review of the VBA's decision to consent to the termination of Mr Galanos' appointment. That application led to an adjournment of the Board appeal. The Supreme Court proceeding, Colonial Range Pty Ltd v Victorian Building Authority and Ors, was heard on 1 April 2014. Colonial's proceeding was dismissed by the Court by judgment delivered on 4 April 2014.[2] The Court held that there is no requirement for the Victorian Building Authority in making a decision to consent to the termination of the appointment of a private building surveyor under s 81(1) of the Act, to afford natural justice to any owner of property adjoining the property in respect of which the private building surveyor had been appointed.

12 The Board appeal concerning the Leonard Determination then proceeded to be heard over five days starting from 7 April 2014. The Board was invited by Colonial to proceed on the basis that it had jurisdiction to consider whether Mr Leonard had been engaged in breach of s 79(1) of the Act and to conclude that by reason of a breach of s 79(1) of the Act, Mr Leonard's determination was invalid.

13 On 30 June 2014 the Board issued its determination. A slightly revised version was issued on 18 July 2014.

14 On 31 July 2014, CES Queen filed the originating motion which initiated the present proceeding.

15 CES Queen, in essence, contends that in conducting an appeal under s 141(a) of the Act against the Leonard Determination under s 87(1) of the Act, the Board had no jurisdiction to determine whether the appointment of Mr Leonard as the relevant building surveyor (RBS) under the Act was invalid. It also contends that the Board exceeded its jurisdiction when it quashed Mr Leonard's determination made under s 87(1) of the Act.

16 In its determination, the Board found that it had jurisdiction to consider the question of whether Mr Leonard was appointed in breach of s 79 of the Act. Having determined (erroneously, in the Applicant's submission) that such jurisdiction existed, the Board concluded that Mr Leonard had accepted an appointment in breach of this provision. Having purported to make that determination, the Board then said:

Having concluded the appointment is invalid; [Mr Leonard's] power to determine the appropriateness of protection work in accordance with s 87 is also invalid.

17 CES Queen also contends that, even if Mr Leonard was appointed in circumstances involving a breach of s 79 of the Act, on its true construction, a breach of this section does not invalidate the appointment of a 'Relevant Building Surveyor' ('RBS') or impact upon the validity of protection work determinations made by the appointee. It said, in this case, that the Court should accept that Mr Leonard's appointment, even if it gave rise to a breach of s 79, does not invalidate his determination.

18 The third issue concerns the effect of the Board's determination. CES Queen submitted that the Court should be satisfied that the determination of the Board is effective, except to the limited extent that the Board went outside the terms of its jurisdiction.

19 On 12 September 2014, this Court ordered that Preliminary Questions be heard as a separate trial under Rule 47.04 of the Supreme Court (General Civil Procedure) Rules (2005) (the 'Rules'). The questions which were set down for determination by the Court were these:

1. Has the Plaintiff established any of the errors referred to in Grounds 1 and 2 under the heading 'Grounds of the Originating Motion' dated 31 July 2014?
2. If Mr Leonard was appointed in breach of s 79 of the Building Act 1993 (Vic), what is the legal effect of his protection work determinations?
3. Does the determination of the Board dated 18 July 2014 (reference number 446544) vary or substitute the protection work determination of Mr Leonard the subject of that appeal?

20 Under the Act, an RBS in relation to an application to, or permit, approval, inspection, direction, notice or order issued or given by, a private building surveyor, means the private building surveyor.[3]

22 CES Queen submitted that the questions raised for separate determination should be answered to the following effect.

23 First: The Board clearly trespassed outside its statutory powers, contrary to Director of Housing v Sudi,[4] in entertaining the question of whether it was satisfied that the appointment of Mr Leonard as the relevant building surveyor for the project was valid and in purporting to quash his protection work determination (the 'Sudi error').

24 Second: The Board compounded its Sudi error by misconceiving the effect of s 79 of the Act. This provision establishes a prohibition on acceptance by a private building surveyor[5] of an appointment to perform the functions specified in s 76 in certain circumstances, and attaches a penalty for an offence against that prohibition. The Act does not expressly state what the effect of a finding of a breach of s 79 would have on a protection work determination that had been made by the relevant building surveyor in the interim. CES Queen nevertheless submitted that Part 7 and Part 10 of the Act provide no basis for any implication that the validity of such determinations would be affected by the commission of such an offence under s 79. Rather, the provisions suggest that invalidity is not the intended outcome.

25 Third: Apart from having committed the Sudi error as outlined above, CES Queen contended that the Board correctly went on to exercise its powers to review the merits of the protection work determination (and an insurance issue) that had been appealed. In exercising those powers of review, the Board purported to substitute a fresh determination in identical terms save in one respect specified by the Board or alternatively the Board varied the protection work determination in a specified respect. CES Queen submitted that these elements of the Board's determination of the appeal can be severed from the Board's invalid determination to quash Mr Leonard's determination.

26 Accordingly, the Applicant, CES Queen, contended that the questions in the preliminary trial should be answered as follows:

Yes, each of the errors referred to in Grounds 1 and 2 under the heading Grounds of the Originating Motion dated 31 July 2014 have been established.

Assuming that Mr Leonard was appointed in breach of section 79 of the Building Act, his determinations are nonetheless valid. Further the Court should be satisfied that the determination of the Board is effective, except to the extent that the Board went outside the terms of its jurisdiction, as explored in relation to Question 1, above.

The determination of the Building Appeals Board dated 18 July 2014 effectively varied or substituted the protection work determination of Mr Leonard that was the subject of that appeal.

27 Colonial's position in relation to each of the questions is as follows:

(a) Has CES Queen established any of the errors referred to in Grounds 1 and 2 under the heading Grounds of the Originating Motion dated 31 July 2014?

(b) If Mr Leonard was appointed in breach of s 79 of the Act, what is the legal effect of his protection work determinations? Colonial's answer is: Mr Leonard's protection work determinations are invalid and of no force or effect.

(c) Does the determination of the Board dated 18 July 2014 ... vary or substitute the Leonard Determination? Colonial answers: inappropriate to answer; alternatively, no.

28 The questions raised by the preliminary trial will now be considered.

Has the Plaintiff established any of the errors referred to in Grounds 1 and 2 under the heading Grounds of the Originating Motion dated 31 July 2014?

29 The Grounds 1 and 2 stated in the Originating Motion are:

1. In conducting an appeal under s 141(a) of the Act against a determination made by Mr Leonard under s 87(1) of the Act, the Board had no jurisdiction to determine whether the appointment of Mr Leonard as the relevant building surveyor (RBS) under the Act was invalid in circumstances where:

1.1 The Act does not give the Board power to undertake a form of collateral review of the validity of an administrative act that has preceded the determination that is the subject of the Board's appellate jurisdiction;

1.2 The Act does not authorise the Board to determine whether an appointment of a RBS under s 79 of the Act is valid;

1.3 The power to accept appointment as the RBS was exercised by Mr Leonard under s 78 of the Act on 14 January 2014 (and was therefore spent at the time of the Second Defendant's appeal to the Board under s 141(a) of the Act); and

1.4 There had been no challenge to the appointment of Mr Leonard as the RBS under either Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (the 'Rules') or under the Administrative Law Act 1978 (the 'Admin Law Act').

1. The Board exceeded its jurisdiction when it quashed Mr Leonard's determination made under s 87(1) of the Act in circumstances where:

2.1 The Board based its determination on its finding that Mr Leonard's appointment as the RBS was not valid;

2.2 The Board had no jurisdiction to determine that Mr Leonard's appointment as the RBS was not valid; and

2.3 The purported finding that Mr Leonard's appointment was not valid did not otherwise require that Mr Leonard's determination be quashed.

30 CES Queen put its case essentially on three grounds.

31 First, the right to appeal is against a 'determination'. The legislation makes no reference to the validity of the appointment of the decision-maker.

32 Second, the specific matter in this instance is the matter provided for under s 87 - 'the appropriateness of the work'. Section 79, however, is far removed from this matter. It concerns the circumstances in which a PBS must not accept an appointment to carry out functions set out in s 76 of the Act. In other words, s 141 is concerned with the appropriateness of the protection work - not with the appropriateness of the appointment process.

33 Third, it was put that the express reference in s 141(a) to 'section 87' should be read as limiting the jurisdiction of the Board to hear an appeal against a determination made in the exercise of the power conferred by that section. By including an express reference to s 87, it was said that Parliament has excluded the possibility that s 141(a) could be used in an appeal to examine a 'collateral matter', such as whether a PBS accepted an appointment in contravention of s 79 of the Act. These are discrete matters; the former can be appealed against under s 141(a), however the latter cannot form part of the appeal and was said to be entirely beyond the ordinary meaning of s 141(a) and beyond the power given to the Board under the Act.

34 It was further said that the purpose and function of the Board under the Act pointed away from it being conferred with a power to entertain a collateral attack against the validity of a determination of a PBS.

35 The end result contended for by CES Queen was that Mr Leonard's determination must be treated by the Board as being legally valid unless and until it is set aside by a court of competent jurisdiction.

36 Reliance was placed on the decision of the Court of Appeal in Director of Housing v Sudi[6]. The Sudi case will be addressed later in these reasons.

37 It was submitted by CES Queen that, following and applying Sudi to the facts of this case, the scheme of the Act here operates to permit consideration of the adequacy of protection work within the terms of s 141(a) of the Act but not additional or collateral matters such as, in this case, whether the PBS (who on appointment becomes an RBS) had been validly appointed in the first place.

38 Colonial submitted that the appeal - being an appeal under Part 10 of the Act - was an appeal in the nature of a rehearing[7] and the Board was required by the Act to 'consider and determine' the appeal.[8] It submitted that, unlike the position in Sudi, the Board in this case was not exercising any form of original jurisdiction. In addition, the Act made it clear that:

1. On the appeal, the Board may consider matters not raised before the decision under appeal was made;[9]
2. In considering and determining the appeal, the Board has 'all the powers of the decision-maker in relation to the decision under appeal' as well as 'its other powers'.[10] Section 149(1) of the Act provides:

1. By its determination of the appeal, the Board may -

(a) affirm the decision under appeal; or

(b) quash the decision under appeal; or

(c) vary the decision under appeal; or

(d) set the decision under appeal aside and -

i substitute its own decision; or

1. remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations it considers appropriate.

39 Colonial submitted that these features of the appeal process make it clear that, in considering and determining an appeal under Part 10 of the Act, the Board must consider the matter afresh, and make what it considers to be the correct or preferable decision.[11] Put another way, the Act makes it clear that, in considering and determining an appeal under Part 10, the Board conducts a 'merits review' of the decision under appeal.

40 In this case, Colonial submitted that the Board determined the appeal before it by exercising a power that was plainly available to it: it quashed the Leonard Determination purportedly made under s 149(1)(b) of the Act.

41 Colonial submitted that the key question that arises is whether, in considering how to determine the appeal, that Board was prohibited from considering whether Mr Leonard had been validly appointed under s 79 of the Act. It contended that this question should be answered 'no' for the following reasons:

42 First, it was submitted that Mr Leonard had the power to consider the existence and limits of his own powers under the Act before he exercised them. In particular, Mr Leonard had the power to consider whether he had been validly appointed under s 79 before deciding whether to make a determination under s 87. Since the Board had all the powers of Mr Leonard in relation to the decision under appeal,[12] it too could consider whether Mr Leonard had been validly appointed in considering how to determine the appeal.

43 Second, the Board also had the power to consider the limits of its powers on the appeal. If Mr Leonard had not been validly appointed, that would have implications for the proper determination of the appeal. The Board was entitled to consider whether Mr Leonard had been validly appointed so as to ensure that it made the correct or preferable decision on the appeal, and that it did not determine the appeal in a way that exceeded its powers.

44 I am satisfied that CES Queen has not established the errors referred to in Grounds 1 and 2 contained of its Originating Motion.

45 The Board is a creature of statute. It has its jurisdiction conferred on it by the Act. Its jurisdiction is confined to what is conferred upon it.

46 The task of determining the jurisdiction of the Board begins, as with the construction of any legislation, with the text of the Act.[13] The approach to construction of legislation is well established. As was said by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[14]

Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

47 In relation to the jurisdiction of a statutory tribunal, reference is made to the decision of the Court of Appeal in Director of Housing v Sudi.[15]

48 The Court in Sudi considered that the Victorian Civil and Administrative Tribunal ('VCAT'), in the exercise of its original jurisdiction conferred by statute to make a possession order in respect of residential premises, did not possess the implied capacity to entertain a 'collateral attack' on the validity of a decision by the Director of Housing to make application pursuant to the Residential Tenancies Act 1997 for a possession order in respect of premises occupied by Mr Sudi and his son. The Court of Appeal also found that VCAT did not possess a judicial review jurisdiction in the exercise of its original jurisdiction.

49 The Chief Justice in Sudi made observations to the effect that the relevant legislation evinced an intention to deny to VCAT the power to collaterally review the validity of a purported administrative decision which happened to be material to the tenancy dispute before it. In other words, the relevant enabling legislation evinced an intention that, in dealing with applications for possession of residential premises, VCAT should treat the initiating administrative decisions as valid, unless and until they are set aside by a court of competent jurisdiction. The Chief Justice observed that to interpret the section conferring jurisdiction on VCAT to include a power to undertake an inquiry into the validity of an antecedent decision 'would be wholly inconsistent' with the purpose of VCAT 'for the inexpensive and quick resolution of disputes under [the] Act'.[16] The Chief Justice stated that, in order to make such an inquiry:[17]

VCAT would need to leave the subject of tenancy law and enter the domain of administrative law. It would have to make difficult decisions about whether the challenge falls within the limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional. Such a complex, technical and time-consuming inquiry would destroy the advantages of litigating the tenancy dispute in VCAT rather than in a court.

50 Maxwell P, after considering the particular features of VCAT's powers, functions and procedures outlined by the Chief Justice, determined that it was 'highly' improbable that Parliament intended that the tribunal would have power to examine the legal validity of a decision by a government agency (such as the Director of Housing) to institute a proceeding in the tribunal's original jurisdiction. The President further concluded that there was no basis for implying into the relevant legislation a power in the tribunal to conduct such a collateral review.[18]

51 To similar effect, Weinberg JA determined that the question on appeal, namely whether the tribunal had the relevant power, was purely one of statutory interpretation.[19] His Honour held that, although the jurisdiction of the tribunal in Sudi was extremely broad, its powers were confined to those conferred upon it by statute, either expressly or by implication. However in his Honour's view, there was nothing in the relevant legislation which suggested that VCAT had the power to engage in a broad-ranging collateral review of the validity of the antecedent decision of the relevant agency to commence the application for possession of the premises.[20]

52 Accordingly in Sudi, the Court of Appeal confined VCAT to the powers Parliament had expressly conferred on it under the relevant Act. The Court found that VCAT could not step outside those powers and consider antecedent matters not specifically assigned to it.

53 In my opinion, however, an examination of the relevant legislation in this case points to a different conclusion. On this basis, Sudi is distinguished from the circumstances of the present case.

54 The Board in the present case, unlike the position of VCAT in Sudi, was not acting under any original jurisdiction conferred upon it by the enabling legislation. It was conducting a statutory appeal which was regulated by the Act.

55 Reference is made to the specific power of appeal that was exercised in this case which relates to, among other things, a determination under s 87 - a protection work determination. The relevant appeal power is found in s 141 of the Act. Section 141 provides:

An owner required to carry out protection work or an adjoining owner may appeal to the Building Appeals Board against -

(a) a determination under section 87 as to the appropriateness of the work; or

(b) a declaration under section 89; or

(c) a failure, within a reasonable time, or refusal to make that determination or declaration; or

(d) a requirement under section 87 to give more information.

56 It is noted that s 141(a) of the Act gives an adjoining owner the right to appeal to the Board against a determination of an RBS under s 87 as to the appropriateness of the protection work prescribed. This right was availed of in this case.

57 Reference is also made to Division 2 of Part 10 of the Act which relates to appeals to the Board. This establishes a jurisdiction which is quite different to the jurisdiction of VCAT considered by the Court of Appeal in Sudi.

58 Section 145 of the Act provides in relation to Division 2 that the division is in addition to and does not detract from other provisions of the Act in relation to appeals to the Board. Section 145 provides:

Division additional to other powers

This Division is in addition to and does not take away from any other provision of this Act about the powers or procedure of the Building Appeals Board.

59 Section 148 makes provision for the nature of an appeal to the Board. Section 148 provides:

Nature of an appeal

(1) An appeal under this Part is in the nature of a rehearing.

(2) On an appeal the Building Appeals Board may consider matters not raised before the decision under appeal was made.

60 Section 149 provides for the action that the Board may take on an appeal. Section 149 provides:

What action can be taken on appeal?

(1) The Building Appeals Board must consider and determine an appeal and by its determination may -

(a) affirm the decision under appeal; or

(b) quash the decision under appeal; or

(c) vary the decision under appeal; or

(d) set the decision under appeal aside and -

(i) substitute its own decision; or

(ii) remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.

(2) In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.

(3) Without limiting subsection (2), on an appeal under section 140 the Building Appeals Board has the same powers as the Authority has under Part 6 to give directions concerning transitional and other arrangements following a consent given by the Authority.

(3A) For the purposes of this Part, if an appeal is made to the Building Appeals Board against the refusal of a building permit or the imposition of a condition on a building permit, the decision under appeal is to be taken to include the decision or report of the relevant reporting authority if -

(a) the building permit was refused because the reporting authority refused consent or the condition was imposed as a result of a recommendation in a report of the reporting authority; and

(b) the refusal of consent, or the making of the recommendation, was based on a decision made by the reporting authority in relation to the guidelines made under section 188A.

(4) The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal.

61 I am satisfied that Mr Leonard had the power to consider whether he had been validly appointed (and was therefore empowered to make a protection work determination under s 87 of the Act). That is so because, as Brennan J put it in Adams v the Tax Agents' Board:[21]

An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body, as part of its function, forms an opinion as to the limits of its own authority.

62 In so doing, Brennan J in Adams drew a distinction between the power of a statutory tribunal to definitively pronounce upon the limits of its jurisdiction, and the competence of the tribunal to consider and reach an opinion on the question.

63 In the present case the operative part of the decision of the Board was the outcome of its consideration as to whether it had jurisdiction. The operative part of the decision was not an authoritative pronouncement on the limits of its jurisdiction.

In Bhardwaj[23] the majority of the High Court held that the Immigration Review Tribunal was permitted to disregard its own purported decision vitiated by jurisdictional error and to remake the decision afresh. The tribunal could do so even in the absence of any order by a court of competent jurisdiction quashing the original purported decision or declaring it to be invalid. In coming to this conclusion, the majority of the High Court must have accepted that the tribunal could inquire into and decide for itself whether its original purported decision was a nullity. That is to say, the majority must have accepted that the tribunal could, in effect, carry out a collateral review of its own decision.

65 In the present case Mr Leonard also had the power to consider whether his earlier purported exercise of power - to accept his appointment[24] - was affected by jurisdictional error and hence a nullity, and to recognise that it was affected in that way.

66 This conclusion is supported by the legislation. This is important because, as the Chief Justice also observed in Sudi:[25]

1. But Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal's ability, if any, to conduct such inquires remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach 'some relevant legal consequence' to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.
2. Accordingly, to determine whether VCAT can carry out collateral review, it is necessary to interpret the relevant provisions of the RTA, the VCAT Act and the Charter.

67 Mr Leonard's authority to consider whether he had been validly appointed stems from paragraph (b) of the definitions of 'relevant building surveyor' and 'private building surveyor' in s 3 of the Act, and ss 78(3), 79, 84, 85 and 87 of the Act. These provisions are set out below:

Section 3 definitions:

'relevant building surveyor' -

(a) in relation to an application to, or permit, approval, inspection, direction, notice or order issued or given by, a municipal building surveyor, means the municipal building surveyor; and

(b) in relation to an application to, or permit, approval, inspection, direction, notice or order issued or given by, a private building surveyor, means the private building surveyor; and

(c) in relation to the carrying out by the Authority of the functions of a municipal building surveyor or a function specified in section 205P, means the Authority; and

(d) in relation to the carrying out by a building surveyor authorised under section 191, 192 or 221 of the functions of a municipal building surveyor, means the authorised building surveyor;

'private building surveyor' means a building surveyor registered under Part 11 other than -

(a) a municipal building surveyor; or

(b) an officer or employee of the Crown or a public authority; or

(c) a building surveyor authorised under section 191, 192 or 221 -

in his or her capacity as such a municipal building surveyor, officer, employee or authorised building surveyor;

Section 78(3):

Subject to this Part, on and from the acceptance of an appointment under this Part in respect of a building or building work, a private building surveyor is responsible for carrying out the functions set out in section 76 in respect of that building or building work.

Section 79:

Circumstances in which private building surveyor may not act

(1) Subject to subsection (2), a private building surveyor must not accept an appointment to carry out any functions set out in section 76 in relation to a building or building work if the private building surveyor -

(a) prepared the design of the building or building work; or

(b) is, or within the prescribed period was, employed or engaged by the person or body which prepared the design of the building or building work other than an appointment to carry out a function set out in section 76; or

(c) has a direct or indirect pecuniary interest in the body which prepared the design of the building or building work; or

(d) has a direct or indirect pecuniary interest in the building or building work or in any body carrying out the building work.

(2) The Authority, on the application of a private building surveyor, may exempt the private building surveyor from all or any of the requirements of subsection (1) in respect of any particular building or building work. An exemption must be in writing.

(2A) A private building surveyor must not accept an appointment to carry out any functions set out in section 76 in relation to a building or building work if the private building surveyor -

(a) is also an officer or employee of a council and the building is situated in or the building work is to be carried out in the municipal district of that council; or

(b) is engaged by a council under section 215 to carry out the functions of municipal building surveyor and the building is situated in or the building work is to be carried out in that municipal district.

Penalty: 500 penalty units.

(3) Except as provided in this Part, a private building surveyor must not accept an appointment to complete any functions set out in section 76 in respect of a building or building work if another private building surveyor or a municipal building surveyor has already commenced to carry out functions set out in that section in respect of that building or building work.

Section 84:

Notice of building work to be given

(1) An owner who is required by the building 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, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work.

(2) The notice must include -

(a) prescribed details of the proposed building work as at the date of the notice; and

(b) prescribed details of the proposed protection work setting out the nature, location, time and duration of the protection work; and

(c) any other prescribed information.

[Emphasis added]

Section 85:

Adjoining owner must respond to notice

(1) The adjoining owner, not later than 14 days after service on the adjoining owner of the notice of proposed building work, must -

(a) give to the owner a notice agreeing to the proposed protection work; or

(b) give to the owner and the relevant building surveyor a notice -

(i) disagreeing with the proposed protection work; or

(ii) requiring more information to be given to enable the proposal to be considered by the relevant building surveyor.

(2) Subject to sections 90 and 91, an adjoining owner who fails to give a notice under subsection (1) within the required time is deemed to have agreed to the proposed protection work.

(3) A notice given under this section must contain the prescribed information.

Section 87:

Effect of disagreement or request for further information

(1) On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.

(2) If the relevant building surveyor considers it appropriate in the case of a notice under section 85(1)(b)(ii), the relevant building surveyor -

(a) may ask the owner to give more information before making a determination under subsection (1); and

(b) if more information is requested, must make a copy of that information available to the adjoining owner.

(3) In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing.

(4) The relevant building surveyor must give the owner and the adjoining owner notice in writing of a determination under this section.

68 Section 79(1) of the Act, which provides for the circumstances in which a private building surveyor must not accept an appointment to carry out any of the functions set out in s 76 in relation to a building or building work, is expressed in mandatory and clear terms.

69 As observed in Colonial Range Pty Ltd v Victorian Building Authority and Ors,[26] s 79 of the Act has the important purpose of ensuring that a private building surveyor is independent and is in a position to act impartially in undertaking the important functions assigned to this role by the legislation. The importance of the provision is reinforced by the fact that a breach of s 79 carries with it a prescribed penalty.

70 In my opinion, this legislative scheme makes it incumbent on a private building surveyor, prior to accepting an appointment as a relevant building surveyor, to satisfy himself or herself and make a decision that he or she does not fall within the prohibitions in s 79.

71 It follows that, if Mr Leonard formed the opinion that he had not been validly appointed, he then had the power to form the opinion that he could not accept an appointment as the relevant building surveyor and make a protection work determination under s 87 of the Act. That is because only a relevant building surveyor can make a s 87 determination, and he or she would only be a relevant building surveyor on and from the valid acceptance of an appointment under Part 6 of the Act.

72 Further, in considering and determining the appeal, pursuant to s 149(2) of the Act, the Board had all of these powers, being powers 'in relation to the decision under appeal'. Its authority to consider and determine the validity of Mr Leonard's appointment under s. 79 of the Act was not 'spent' by the earlier decision made by him to accept the appointment as the relevant building surveyor.

73 In this regard, it should also be noted that the decision-maker's powers referred to in s 149(2) of the Act need not be 'necessarily interdependent with the decision under review' or 'necessarily involved in the making of the decision under review'.[27] Rather, what must be shown is some relationship between the decision-maker's powers and the decision under appeal.

74 Likewise, the Board could exercise Mr Leonard's power to consider whether he could not make a protection work determination because his appointment was invalid, even though Mr Leonard did not himself reach that conclusion. Those powers are directly related to the decision under appeal, being Mr Leonard's determination, and hence could be exercised by the Board.

75 Further, the making of a determination as to compliance with s.79 of the Act, which involves a factual determination of limited compass, is well within the capacity of an expert tribunal constituted by the Board.

76 For these reasons, the Board had the power to consider and determine the validity of Mr Leonard's appointment under s 79 of the Act.

77 Secondly, given the express power of the Board on an appeal conferred by s 149(1)(b) to quash the decision under appeal, or by s 149(1)(d)(i) to set the decision under appeal aside and substitute its own decision, which both could be exercised in circumstances where the Board found that Mr Leonard accepted his appointment as the relevant building surveyor in breach of the prohibition in s 79 (with the consequence that his determination was also invalid), it was empowered to either quash or set aside Mr Leonard's determination, and had proper grounds for doing so.

78 I find that the Board did have jurisdiction to determine whether the appointment of Mr Leonard as the relevant building surveyor (RBS) under the Act was invalid, and the Board did not exceed its jurisdiction when it quashed Mr Leonard's determination made under s 87(1) of the Act.

79 In answer to the specific question to be answered in this proceeding - has the Plaintiff established any of the errors referred to in Grounds 1 and 2 under the heading Grounds of the Originating Motion dated 31 July 2014 - the answer is No.

If Mr Leonard was appointed in breach of s 79 of the Building Act 1993 (Vic), what is the legal effect of his protection work determinations?

80 CES Queen submitted that, even assuming that Mr Leonard was appointed in breach of s 79 of the Act, his determinations were nonetheless valid.

81 CES Queen advanced a number of grounds in support of this submission.

82 Colonial on the other hand submitted that if Mr Leonard was appointed in breach of s 79 of the Act, his protection work determinations are invalid and of no force or effect.

83 I find that an appointment accepted in contravention of s 79(1)(b) of the Act is invalid, and any actions purportedly taken by an invalidly appointed relevant building surveyor are also invalid.

84 The language of s 79(1) supports the conclusion that an appointment is invalid if it was accepted in contravention of s 79(1). The language is framed in clear terms: 'A private building surveyor must not accept an appointment ...'.

85 Second, the scope and purpose of the Act also supports the conclusion that an appointment is invalid if it was accepted in contravention of s 79(1).

86 The purposes of the Act include regulating building work and building standards, and providing 'an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes'.[28] The objectives of the Act include the promotion of safety and health of users of buildings, enhancing amenity, and facilitating the adoption and efficient application of national building standards and cost effective construction.[29]

87 As the Court observed in Colonial Range Pty Ltd v Victorian Building Authority,[30] building surveyors (including private building surveyors) 'play a critical role in achieving the objects of the legislation, particularly in maintaining public safety and protection in relation to the design and construction of buildings in Victoria'. The critical nature of a private building surveyor's role supports the proposition that their independence is very important.[31] In Colonial Range (at [27]) the Court said:

[s]ection 79 of the Act has the purpose of ensuring that a private building surveyor is independent and is in a position to act impartially in undertaking the important functions assigned to this role by the legislation.

88 Under the legislation, a relevant building surveyor cannot be appointed under the Act until he or she accepts an appointment to so act.[32] Thus there is no appointment until acceptance. Further, an appointment is only operative on and from acceptance.

89 The opening words of s 78(3) provide that the sub-section is to be read 'Subject to this part ...'. These words, amongst other things, incorporate the prohibition in s 79(1).

90 It follows that because s 78(3) does not confer responsibilities on a private building surveyor who accepted an appointment in contravention of s 79(1), it follows that the actions purportedly taken by that surveyor are not authorised by the Act and are therefore invalid. Accordingly, actions purportedly taken by a private building surveyor under s 87 of the Act are also invalid because they were not undertaken by a private building surveyor who was validly appointed as the 'relevant building surveyor' as s 87 requires.

91 It follows that, if Mr Leonard was appointed in breach of s 79 of the Act, as found by the Board, his protection work determinations are invalid and of no force or effect, and the answer to the second question should reflect this conclusion.

92 In answer to the specific question to be answered in this proceeding - If Mr Leonard was appointed in breach of s 79 of the Act, what is the legal effect of his protection work determinations? The answer is: Mr Leonard's protection work determinations are invalid and of no force or effect.

Does the determination of the Board dated 18 July 2014 (reference number 446544) vary or substitute the protection work determination of Mr Leonard the subject of that appeal?

93 Colonial submits that the Court should refuse to answer the third preliminary question but - if it was prepared to answer it - should conclude that the Board's determination dated 18 July 2014 did not vary or substitute the Leonard Determination in the manner CES Queen contends, and therefore should answer this third question 'no'.

94 Colonial submits that the Court should not answer this third preliminary question because:

(a) The question does not arise in this proceeding (and therefore would not be determined as part of the trial of this proceeding). As such, it cannot properly be the subject of an order under Order 47.04 of the Supreme Court Rules.[33]

(b) Moreover, the question lacks precision. It is not clear how the Board is said to have varied the Leonard Determination or substituted its own determination.

95 But if the Court was minded to answer the question, Colonial submitted that it should be answered 'no' for the reasons set out below:

(a) The Act draws a distinction between a determination made by the Board and the reasons for that determination.[34]

(b) Mindful of that distinction, the Board relevantly stated its determination and then gave its reasons for that determination.

(c) Thus, under the heading 'Determination of the Panel', the Board relevantly said this:

1. The Board was not satisfied that the appointment of Mr Leonard as the RBS for the project was valid.

3. Accordingly, the Leonard Determination is quashed.

1. However, the Panel considers that the Board has the jurisdiction to determine the matters regarding -

(a) the appropriateness of the protection work determined by the RBS

5. The Board therefore finds as follows -

(a) the protection work proposed by the owner was not appropriate,

...

96 Colonial submitted that this part of the Board's document is not - as CES Queen would have it - simply a summary of the Board's findings. Rather, it is a record or statement of the Board's determination. By that determination, the Board quashed the Leonard Determination (pursuant to s 149(1)(b) of the Act). It did not - and did not purport to - vary that determination or substitute its own decision. The language of variation or substitution is not used. No reference to s 149(1)(c) or (d) is made. For this reason Colonial contended that the Board's determination did not - and did not purport to - vary Mr Leonard's determination or substitute its own decision. It contended that the Board's reasons do not speak of replacing or varying the determination under appeal, and do not use the word 'instead', let alone 'determined instead'.

97 Colonial submitted further that the Board could not have varied Mr Leonard's determination or substituted its own decision. Section 149(1) of the Act sets out five strict alternative ways in which the Board may determine an appeal. For this reason it was put that the Board cannot quash a determination under s 149(1)(b) of the Act and then make a further determination under s 149(1)(c) or (d)(i). Once the decision under appeal has been quashed, there is nothing left to vary (in the former case) and nothing left to set aside (in the latter).

98 Accordingly, Colonial submitted it was not open to the Board to vary Mr Leonard's determination or to substitute its own decision after it had quashed the determination under s 149(1)(b) of the Act.

99 For completeness, Colonial further submitted that at no time was it ever suggested - by the Board or by any party - that the Board could:

(a) quash Mr Leonard's determination on the basis that his appointment was invalid; and

(b) then substitute or vary the determination in the manner contended for by CES Queen.

100 Accordingly, if the Board substituted or varied the Leonard Determination in the manner contended for by CES Queen (which Colonial denied was the case), Colonial contends that that substitution or variation is tainted by jurisdictional error (being a denial of natural justice) and is hence of no force or effect on this further ground.

101 For these reasons, Colonial submitted that the third question should not be answered but if the Court was to take a different view, it should conclude that the Board's determination dated 18 July 2014 did not vary or substitute the Leonard Determination in the manner CES Queen contends, which means that the third question should be answered 'no'.

102 The CES Queen submission commences with an analysis of the Board's decision. It refers to the opening segment of the Board's decision, which was to the following effect:

• The Board was not satisfied that the appointment of Mr Leonard as the RBS for the project was valid.

• Accordingly the Leonard Determination is quashed.

• However, the Panel considers that the Board has the jurisdiction to determine the matters regarding -

(a) the appropriateness of the protection work determined by the RBS;

(b) the adequacy of the survey of the adjoining buildings; and

(c) the adequacy and amount of the insurance coverage.

103 CES Queen submitted that, even though the Board accepted that it had jurisdiction to make a decision concerning the validity of Mr Leonard, and made a decision quashing his determination, it also accepted that it had power to substitute its own determination under s 149(1) of the Act.

104 It was submitted that it is evident that the Board did this, on the plain reading of its determination.

Analysis and Conclusion in Relation to the Third Question

105 Pursuant to rule 47.04 of the Rules, the Court may order that any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated.

106 The relief or remedy sought by the plaintiff in its originating motion dated 31 July 2014, in substance, sought orders quashing the determination of the Board which in turn determined that Mr Leonard's determination purportedly made under s 87 of the Act is quashed. The Plaintiff also sought a declaration that the Board lacked jurisdiction to entertain an application challenging the validity of the appointment of the relevant building surveyor under the Act. The Plaintiff also sought 'such further or other orders as the Court thinks fit'.

107 The third question is materially connected to the principal relief sought by the Plaintiff in its originating motion. It seeks to clarify the standing and effect of the determination of the Board dated 30 June 2014, insofar as it purported to make a determination in substitution for the determination of Mr Leonard, which it quashed. The parties, have addressed the third question in this part of the proceeding, and have taken opposing positions. It is a question in the proceeding, the Court is properly seized of it, and it ought to be answered.

108 It should also be answered for this practical reason: the answer will assist the parties by providing a clear pathway for them to act upon in advancing their respective development projects and removing impediments to the progress of those projects.

109 I am satisfied that s 149(2) of the Act operates in the circumstances of this case to give the Board power to consider the material before it and, as a decision-maker under s 87 of the Act, to set the decision under appeal aside and substitute its own decision. It is evident that the Board did precisely this, as demonstrated by its determination.

110 This approach was consistent with Re Brian Lawlor Automotive Pty Ltd and Collector of Customers (NSW).[35] In Brian Lawlor, the President of the Administrative Appeals Tribunal, Justice Brennan held that: [36]

Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision.

111 Section 149(2) of the Act provides that, in considering an appeal, the Board 'has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal'. As in Brian Lawlor, this section operates to confer upon the Board 'fresh authority'[37] to consider the material before it and, as a decision-maker under s 87 of the Act, to set the decision under appeal aside and substitute its own decision under s 149(1)(d)(i).

112 In the opening parts of the Board's determination under the heading 'Determination of the Panel', the Board relevantly said this:

1. The Board was not satisfied that the appointment of Mr Leonard as the RBS for the project was valid.

3. Accordingly, the Leonard Determination is quashed.

1. However, the Panel considers that the Board has the jurisdiction to determine the matters regarding -

(a) the appropriateness of the protection work determined by the RBS

...

5. The Board therefore finds as follows -

(a) the protection work proposed by the owner was not appropriate,

...

113 In its determination the Board included the following findings, which were stated under the heading 'REASONS OF PANEL' and beneath that, under the sub-heading 'Determination 4(a)'. The paragraphs under that sub-heading were in these terms:

1. The Board accepts the views of Mr Landawee that the demolition work was not 'minor' and therefore r 607 apples.
2. Whilst these provisions relate to 'precautionary measures' rather than protection of adjoining property, there is clear overlap between these requirements and it is considered inappropriate to determine the appropriateness of protection work measures when compliance with precautionary measures (specifically Australian Standard 2601:2001: The demolition of structures) has not been established.
3. The owner submitted that vibration during the demolition process could be monitored to limit the impact of cracking causing debris to fall into the street. The approach was to monitor the vibration and when it exceeded certain criteria create an alarm to workers to cease work.
4. Whilst this process does provide a means of limiting most damage, it does not deal with the possibility of a large piece of material or equipment being accidentally dropped on the structure, causing an extraordinary and unexpected vibration. In such a case, due to the fragile nature of the adjoining property, damage is certainly possible, if not likely.
5. The Board therefore considers monitoring of vibration on the adjoining property is not sufficient to protect the adjoining building from damage, or the public.
6. Therefore the facade of 150 Queen Street [later amended to 140 Queen Street] should be provided with a hoarding or fan guard, or the like to prevent any demolition debris or loose parts of the facade from impacting onto the street below.

114 The Board's finding in paragraph 30 - that the facade of 150 Queen Street [later amended to 140 Queen Street] should be provided with a hoarding or fan guard to prevent demolition debris or loose parts of the facade from impacting onto the street below - appears to have been founded on the evidence of an expert, Mr Landewee, who said in his evidence:

Based on my experience, it is my opinion that if a hoarding or fan guard were provided in the manner contemplated by the Board, that would protect the street below and, therefore, the public walking in the street and the traffic in Queen Street.

But providing that hoarding or fan guard is not protection work that would protect the façade of 140 Queen Street from damage; rather, it would protect the public if that façade were damaged. In other words, that hoarding or fan guard is to be provided on the assumption that parts of that façade might dislodge and fall and - if that were to occur - the façade has not been adequately protected.

115 In reviewing the determination of the Board, the Court should have regard its role as a specialist tribunal with technical expertise. The Court should not approach the reasons of the Board in a manner which is over zealous or designed to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In this regard, reference is made to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[38] where the Court said:[39]

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.

116 Although Wu Shan Liang concerned judicial review of an administrative decision, the principle is aptly applied to the consideration of the Board's determination in this case.

117 Accordingly, I do not consider that it is appropriate to dissect the determination of the Board into distinct component parts comprising its 'determination' on the one hand, and its 'reasons' on the other. The Board is not a court of law where a judgment or order is made as a distinct process, and reasons are given as another, but related exercise. In this case the two components were to some extent rolled together to comprise a determination made under s 148(1) of the Act.

118 I also do not accept the temporal argument advanced by Colonial to the effect that it was not open to the Board to substitute its own determination after having first quashed the determination of Mr Leonard which was the subject of the appeal.

119 The effect in law in this case of the Board quashing a determination on appeal is the same as setting it aside. Although the Board used the language of s 149(1)(b) of the Act to 'quash' the Leonard Determination, the effect of this was to set it aside. The Board may have more appropriately expressed its determination in the language of s 149(1)(d)(i) by setting the Leonard Determination aside and substituting its own decision. In practical terms this is precisely what it in fact effected. However, a failure to express its determination precisely in the exact terms of the legislative language does not detract from the clear statutory power which the Board was capable of exercising, and in fact for all practical purposes did exercise, in making its determination.

120 For these reasons, the determination of the Board is not tainted by any jurisdictional error arising from the manner in which it expressed the power it was exercising. It had clear statutory power, conferred upon it by the Act, to make the determination it did.

121 Further, on the evidence before the Court, I am not satisfied that the Board, by substituting its own determination for that of Mr Leonard, effected a jurisdictional error (being a denial of natural justice) and for this reason the Board's determination is of no force or effect. Although this was not directly raised in the questions before the Court, it may have an indirect bearing on the answer to question 3, and I will deal with it.

122 Colonial says it was denied natural justice because at no time was it ever suggested - by the Board or by any party - that the Board could first quash Mr Leonard's determination on the basis that his appointment was invalid and then proceed to substitute or vary the determination.

123 The issue of whether, even if the original determination of the private building surveyor was ruled to be invalid, the Board was in a position to step into the shoes of the original decision maker, was discussed in the hearing before the Board conducted on 9 April 2014 and on 10 April 2014. Colonial was legally represented before the Board on the appeal, and participated in this discussion with a panel member of the Board, Mr Kip.

124 The discussion opened up the possibility that the Board may take the course of substituting its own decision for the Leonard Determination, even if it was to find that Mr Leonard's appointment was invalid, and in so doing could exercise its power under s 149(1)(d)(i) of the Act. Colonial took the position that 'given the state of the documentation' before the Board '[W]e would certainly be advocating you don't step into the shoes of the decision maker'. Colonial did not take the position that the Board, if it was minded to do so, could not exercise its s 149(1)(d)(i) power. The fact that the Board in its determination expressed the exercise of its power in terms of s 149(1)(b) instead of s 149(1)(d)(i) did not result in Colonial being denied natural justice in the hearing before the Board.

125 The third question should be answered as follows: The determination of the Building Appeals Board dated 18 July 2014 effectively and validly substituted the protection work determination of Mr Leonard that was the subject of that appeal with its own determination.

126 The preliminary questions are answered as follows:

In answer to the first question - has the Plaintiff established any of the errors referred to in Grounds 1 and 2 under the heading Grounds of the Originating Motion dated 31 July 2014 - The answer is: No.

In answer to the second question - if Mr Leonard was appointed in breach of s 79 of the Act, what is the legal effect of his protection work determinations? - The answer is: Mr Leonard's protection work determinations are invalid and of no force or effect.

In answer to the third question - Does the determination of the Board dated 18 July 2014 (reference number 446544) vary or substitute the protection work determination of Mr Leonard the subject of that appeal? - The answer is: The determination of the Building Appeals Board dated 18 July 2014 effectively and validly substituted the protection work determination of Mr Leonard that was the subject of the appeal with its own determination.

127 I will hear the parties on what other orders, including orders as to costs other than that costs should be ordered in the cause, that should be made at this stage of the proceeding.

[1] [2014] VSC 272.

[2] [2014] VSC 272.

[3] Defined in s 3 of the Act. Paragraph (b) of the definition refers to private building surveyors.

[4] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559.

[6] [2011] VSCA 266.

[11] In Ktori v the Building Practitioners Board [2009] VSC 404 [51], Beach J referred (without disapproval) to the BPB's submission that the role of the Building Appeals Board is to conduct an appeal 'on the merits'.

[13] See Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ), citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 [47](Hayne, Heydon, Crennan and Kiefel JJ).

[14] [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[15] [2011] VSCA 266; (2011) 33 VR 559.

[16] Sudi [2011] VSCA 266; (2011) 33 VR 559, [34] (Warren CJ).

[17] Sudi [2011] VSCA 266; (2011) 33 VR 559, [35].

[18] Sudi [2011] VSCA 266; (2011) 33 VR 559, [62] and [63].

[19] Sudi [2011] VSCA 266; (2011) 33 VR 559, [283].

[20] Sudi [2011] VSCA 266; (2011) 33 VR 559, [284].

[21] (1976) 12 ALR 239, 242 ('Adams'). See also Trajkowski v Telstra Corp Ltd (1998) 81 FCR 459, 467-468 (Tamberlin J).

[22] [2011] VSCA 266; (2011) 33 VR 559 at [30] ('Sudi'). President Maxwell made observations to a similar effect at [88].

[23] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 [51] (Gaudron and Gummow JJ, McHugh J agreeing) and [141]-[142] (Hayne J).

[24] Mr Leonard's earlier power to accept an appointment is recognised by ss 78(3) and 79(1) of the Act.

[25] Sudi [2011] VSCA 266; (2011) 33 VR 559, [31] and [32].

[26] [2014] VSC 272 [27].

[27] See Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32, 39-40 (Hill J). See also Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 237 [29]-[30] (Finn, Emmett and Edmonds JJ).

[30] [2014] VSC 272 [16].

[31] The second reading speech to the Bill that became the Act relevantly said this: 'When the Bill becomes law, builders will be able to choose to engage a private building surveyor to carry out the building permit ... functions and responsibilities or, where available, they may choose to use the system provided by local councils. ... The private building surveyor will be required to work in a professional and impartial manner'. (Emphasis added)

[33] Burns Philp & Co Ltd v Bhagat [1993] VicRp 13; [1993] 1 VR 203, 208-209 (Brooking J).

[34] See cl 16 of Schedule 3 to the Act.

[35] (1978) 1 ALD 167 ('Brian Lawlor').

[36] Brian Lawlor (1978) 1 ALD 167 180.

[37] Brian Lawlor (1978) 1 ALD 167 181.

[38] (1996) 185 CLR 259, ('Wu Shan Liang').

[39] Wu Shan Liang (1996) 185 CLR 259 272 [31] (Brennan CJ, Toohey, McHugh and Gummow JJ)