1. Having regard the Tribunal's orders and Reasons dated 24 July 2014, the Tribunal further orders:
   • (a) The penalty decision of the Building Practitioners Board dated 30 May 2013 made under s 179(2) of the Building Act 1993 is set aside and substituted with the following decision:
     • (i) The Applicant is reprimanded.
     • (ii) The Applicant is fined $4,000.
   • (b) The costs decision of the Building Practitioners Board dated 30 May 2013 is set aside.
2. No order as to the costs of this review proceeding.

1. On 24 July 2014, I partly determined an application filed by the Applicant, in which he sought a review of a determination made by the Building Practitioners Board ('the BPB'), following an inquiry into his professional conduct as a building surveyor. In particular, I ordered:
   1. The decision of the Building Practitioners Board dated 30 May 2013 is set aside and substituted with the following decision:

(a) Allegation 1 is proven and the decision of the Applicant is affirmed.

(b) Allegation 2 is dismissed.

(c) Allegation 3 is withdrawn.

1. This proceeding is listed for further hearing at 10.00 am on 11 September 2014 at 55 King Street, Melbourne, at which time the Tribunal will hear submissions in respect of penalty and costs, having regard to Order 1 of these orders and attached Reasons.
2. The proceeding, the subject of my determination dated 24 July 2014, concerned the issuing of a building permit by the Applicant for domestic building work undertaken at a residential property located in Hampton. The allegation charged against the Applicant, which I found proven, stated:

Allegation 1 - ground for enquiry - paragraph 179 (1) (b)

1. On or about 8 September 2009 you failed to comply with regulation 1502(a) of the Building Regulations 2006 in that, as the appointed relevant building surveyor to building work at ... Hampton, being the construction of a carport, Gazebo and front fence, you failed to carry out your work in a competent manner and to a professional standard as required by regulation 1502(a) of the Building Regulations 2006 in that you issued a building permit with a specified cost for the proposed work when the cost of the proposed building work was substantially higher than the amount specified in the building permit.
2. The facts surrounding Allegation 1 are set out in detail in my Reasons dated 24 July 2014. In summary, I determined that the Applicant had breached the Building Regulations 2006, by issuing a building permit to an owner builder in circumstances where the permit application had grossly undervalued the estimated cost of the proposed building work.
3. In particular, I found that the cost of the proposed building work, if undertaken by a registered building practitioner, would have exceeded $40,000. However the declared estimated value of work, which was accepted by the Applicant on the face of the permit application, was only $11,000. I further found that even if the home owner who had applied for the building permit had undertaken the work himself, rather than contracting with a registered builder, the likely value of the building work would still be more than double what had been declared on the permit application.[1]
4. After hearing evidence from a number of witnesses, I found that the Applicant's conduct in issuing the building permit fell short of the standard observed by members of his profession of good repute and competency, which was contrary to reg 1502 of the Building Regulations 2006.
5. Given that I had found Allegation 1 to be proven, the proceeding was returned before me on 11 September 2014 to consider what further orders were to be made, having regard to the various decisions which the Tribunal may make under s 179(2) of the Building Act 1993 ('the Act').

1. Having found that the Applicant failed to comply with the Building Regulations 2006, the Tribunal is vested with jurisdiction to make any of the decisions set out in s 179(2) of the Act, which largely concern the imposition of various types of sanctions. As at the time of the breach, s 179 of the Act stated, in part:

(1) On an inquiry into the conduct of a registered building practitioner, the Building Practitioners Board [or the Tribunal on review] may make any one or more of the decisions mentioned in subsection (2) if it finds that the registered building practitioner -

...

(b) has failed to comply with this Act or the regulation; or...

(2) The following are the decisions which the Board [or the Tribunal on review] may make -

(a) to reprimand the person;

(b) to require the person to pay the costs of or incidental to the inquiry;

(c) to require the person to give an undertaking not to do a specified thing;

(ca) to require the person to complete a specified course of training;

(d) to impose a fine of not more than 100 penalty units unless -

(i) a charge has been filed in the Magistrates Court in respect of the matter; or

(ii) the matter has been dealt with by a court exercising its criminal jurisdiction; or

(iii) the matter has been dealt with by the issue of an infringement notice;

(e) to suspend registration for not more than 3 years;

(f) to cancel registration;

(g) to disqualify the person from being registered for a specified period of up to 3 years.

1. Mr Mitchell, counsel for the BPB, submitted, correctly in my view, that the use in s 179(1) of the words any one or more of the decisions mentioned in subsection (2) establishes Parliament's intention that in making a final order, the Tribunal may make more than one of the various decisions set out in s 179(2) of the Act. Therefore, by way of example, it is open for the Tribunal to order that a building practitioner be reprimanded and fined and required to pay the costs of the inquiry if the Tribunal considered that to be an appropriate decision to make.

1. The BPB contends that in the present case, it would be appropriate for the Tribunal to impose a fine and a reprimand; and to leave undisturbed the order made by the BPB at first instance that the Applicant pay the costs of the initial inquiry.
2. By contrast, Ms Fitzgerald of counsel, who appeared on behalf of the Applicant, submitted that the appropriate decision was to impose a requirement that the Applicant give an undertaking in the following terms:

The Applicant undertakes that where a contract price is not included in a permit application that he is considering for approval and the construction drawings accompanying the application indicate a non-standard variety of that building-type, he will either:

(a) assess the stated price using the industry reference Rawlinsons; or

(b) request further information from the permit applicant as to how the building costs were calculated so as to assess the stated price using that further information.

1. Ms Fitzgerald further submitted that the Applicant should have his costs of the review hearing paid by the BPB, on the ground that the finding made by the Tribunal was more favourable to him.

1. The term penalty is often used when referring to sanctions that might be imposed following an adverse finding in a disciplinary inquiry. However, notwithstanding that the decisions available under s 179(2) of the Act may, in effect, sanction a person, the purpose of those decisions is not to punish but rather, to maintain the purpose and objectives of the Act.
2. Mr Mitchell drew my attention to the judgment of the Full Court of the Federal Court of Australia in Hardcastle v Commissioner of Police.[2] That case concerned an appeal of a decision made by the Federal Police Disciplinary Tribunal, relating to the conduct of a member of the Australian Federal Police. In Hardcastle, the applicant argued that the institution of proceedings in relation to a disciplinary offence, where the conduct relied on amounted to the commission of a criminal offence, exposed the member of the police force to double jeopardy. In rejecting that argument, the joint judgment of Bowen CJ, Gallop and Lockhart JJ stated:

In our opinion there is no substance in this submission. It misconceives the character of disciplinary proceedings in general and under the Discipline Regulations in particular. The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v Law Society of New South Wales (1975) 49 ALJR 362 per Barwick CJ at 364; 7 ALR 227) or to exact retribution (see Ex parte Attorney-General (Cth); Re a Barrister and Solicitor (1972) 20 ALR 234 per Fox, Blackburn and Woodward JJ at 244.[3]

1. Ms Fitzgerald referred me to Medical Practitioners Board v Sweica,[4] where the Tribunal considered the decisions available under s 59(2)(g) of the Health Professions Registration Act 2005 and observed:

[48] Although often termed a 'penalty', when considering what determination is appropriate, the Tribunal should not consider its determination as punishment. As has been indicated in other cases, the objectives of the determination are primarily the protection of the public and the maintenance of professional standards in the eyes of the public, although the general role of deterrence in protecting the public is a factor to be taken into account in this consideration. We also considered the degree to which the practitioner has insight into his or her professional misconduct or unprofessional conduct is also of potential relevance to the determination.

1. As I have previously highlighted in my Reasons dated 24 July 2014, the purpose and objectives of the Act include:
   • (a) protecting the safety and health of people who use buildings and places of public entertainment;[5]
   • (b) regulating building work and building standards;[6] and
   • (c) providing for the efficient and effective system of issuing building and occupancy permits and administering and enforcing related building and safety matters and resulting building disputes.[7]
2. Consistent with the observations of the Full Court of the Federal Court of Australia in Hardcastle and this Tribunal in Sweica, I consider that the range of decisions available under s 179(2) of the Act operate as a mechanism by which the purpose and objectives of the Act are to be maintained. With that in mind, I now turn to consider s 179(2) of the Act, in light of the Applicant having been found to breach reg. 1502 of the Building Regulations 1996.

1. Ms Fitzgerald submitted that the Act distinguishes contravention of its provisions by making some breaches an offence while others the subject of disciplinary action. She argued that the classification of some provisions as offence provisions and others not, indicates the legislative intention that the breach of some provisions is to be treated far more seriously than others. Although I accept that the Act may treat some breaches far more seriously than others, I do not consider this factor to be altogether relevant in determining which of any of the decisions under s 179(2) should be imposed. Section 179(2) is, in effect, self contained. If the Tribunal finds that a building practitioner has failed to comply with the Act or the regulations (amongst other things) the Tribunal is vested with power to make any of the decisions set out under s 179(2). The fact that there may be other provisions within the Act which make certain conduct an offence is beside the point.
2. Ms Fitzgerald further submitted that the conduct of the Applicant, which led to the finding that he had failed to perform his work as a building practitioner in a competent manner and to a professional standard [8] was not conduct which offended the objectives of the Act as listed under s 4(1) of the Act. Therefore, she argued that this factor supported the imposition of a lenient penalty.
3. I do not accept that the conduct of the Applicant did not offend the objectives of the Act. Further, as I have already indicated above, the purpose of s 179(2) is to maintain not only the objectives of the Act but also its purpose as set out under s 1.
4. In my view, there were two immediate and direct consequences of the Applicant's failure to comply with the Act. First, the correct amount of the permit levy fee was not charged. Second, the owner builder was not required to obtain a certificate of consent from the BPB under s 25B of the Act before commencing the building work, given that a certificate of consent was only required if the cost of the proposed work was over $12,000.
5. Although the amount of the uncharged permit levy fee was, in the present case, not significant, one must consider the contravention in light of the broader objectives of the Act; namely, to raise revenue for the administration of the Act.[9] If the practice of underestimating the value of work was simply ignored, because each individual case represented only a minute amount of money undercharged, the aggregate cost could be significant. Therefore, in my view, the mere fact that the undercharged permit levy was, in the present case, not significant is not a factor that I place significant weight on.
6. More importantly, however, the contravention of the Act has led to a situation where the owner builder was permitted to carry out domestic building work without a certificate of consent being issued by the BPB, in circumstances where a certificate of consent was required under the Act.
7. Section 25B makes it an offence punishable by 50 penalty units for an owner builder to carry out domestic building work if the cost of the work is more than $12,000 and the owner builder has not been issued with a certificate of consent from the BPB. Adopting the point made by Ms Fitzgerald above, the fact that some breaches of the Act constitute an offence indicates Parliament's intention to treat those breaches seriously.
8. Therefore, I do not consider that the conduct of the Applicant in underestimating the value of the proposed building work can be classified as a trivial misdemeanour of the Act. There are significant and immediate ramifications that flow from the breach of the Act, even though those ramifications might not directly relate to the safety and health of people who use the building.

1. Mr Mitchell submitted the general deterrence is a key element in selecting an appropriate decision under s 179(2) of the Act. He referred to Stirling v Legal Services Commissioner, a decision of the Victorian Supreme Court of Appeal.[10] Stirling concerned an appeal of a decision by the Tribunal relating to the professional conduct of a legal practitioner. On the question of deterrence, the Court observed:

Secondly, as the Tribunal is acting as a professional disciplinary tribunal, the deterrent effect is a key element in assessing an appropriate penalty. In Quinn, Maxwell P noted the role of both specific and general deterrence in determining an appropriate penalty in these types of proceedings:

The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

1. Mr Mitchell pointed to the ramifications of the Applicant's conduct. He argued, consistent with the view I have already taken, that although the amount of the levy may not of itself be significant, if the practice of underestimating the cost of work were to become universally accepted, the levies underpaid when multiplied across all of the building permits issued across the State, may turn out to be very significant.
2. He further pointed to the fact that a registered building surveyor acts as a gatekeeper to ensure compliance with s 25B. As I have already indicated, this is a significant factor, given the punitive consequences of undertaking building work in contravention of s 25B.
3. In my view, both these factors are important elements in the administration of the Act and weigh in favour of a making a decision sanctioning the conduct of the Applicant.

1. Mr Mitchell submitted that the Applicant demonstrated a lack of contrition. He argued that throughout the review proceeding, the Applicant maintained his position that the estimate of $11,000 was not an underestimate.
2. By contrast, Ms Fitzgerald submitted that the non-compliance was accidental. I do not accept that submission. In my view, the Act imposed a positive obligation on the Applicant to estimate the value of the proposed work. However, the Applicant approached that task by simply taking the view that the declared value of the proposed works was within what he considered to be the 'ball park' for that type of work.
3. Moreover, the Applicant maintained a position that the value of the work did not exceed $12,000, even when a number of witnesses, including a quantity surveyor, had estimated the value of the work to grossly exceed that figure. What is of concern is the fact that no evidence was led by the Applicant to support his position, apart from his own evidence.
4. Therefore, I do not accept that this is a situation where a building practitioner has inadvertently made a mistake in calculating or estimating the value of work. In the present case, the Applicant's evidence was that no costing calculation was made prior to the issue of the building permit. In my view, this factor also weighs in favour of making a decision sanctioning the conduct of the Applicant.

1. Mr Mitchell tendered a number of Notice of Decisions made by the BPB concerning the Applicant's professional conduct, which he summarised in his Outline of Submissions on Penalty and Costs as follows:

19/4/12

(on review by the Building Appeals Board on 19 April 2012)

1. Mr Mitchell submitted that the frequency of the contraventions of the Act which have been proven against the Applicant have demonstrated a poor understanding of the operation of the Act and regulations made under it.
2. Ms Fitzgerald pointed to the fact that no details were provided concerning the allegations set out in the 15 November 2004 and 7 April 2005 Notice of Decision, nor was any evidence given as to what those allegations related to, save that they triggered the power to make a decision under s 179(2) of the Act. In those circumstances, she submitted that it was difficult to draw any inference that the proven allegations related to a poor understanding of the operation of the Act or the regulations made under it.
3. Nevertheless, the Notice of Decision dated 8 November 2006 set out the particulars of the eight allegations made against the Applicant. The allegations found proven related to three separate properties and concerned the following:
   • (a) Failing to comply with reg 15.2(a) of the Building Regulations 2004 (as they then existed) by issuing a building permit without being satisfied that a planning permit had been obtained.
   • (b) Failing to comply with s 24(1)(b) of the Act by issuing a building permit without being satisfied that the consent and report of the reporting authority had been obtained in accordance with reg. 5.3 (4) of the Building Regulations 1994.
   • (c) Contravening reg 15.2(a) of the Building Regulations 2004 by failing to identify the need for protection work.
   • (d) Contravening reg 15.2(a) of the Building Regulations 2004 by not undertaking enforcement action subsequent to the municipal building surveyor notifying the Applicant of the potential dangers associated with the building site; and which ultimately led an Emergency Building Order being issued by the municipal building surveyor.
   • (e) Contravening reg 15.2(a) of the Building Regulations 2004 by issuing a building permit when the approved plans did not comply with the Building Code of Australia - Parts C and D.
   • (f) Contravening reg 15.2(a) of the Building Regulations 2004 by incorrectly classifying the relevant building as a Class 10a building when it should have classified as a Class 6 building.
4. The Determination of the Building Appeals Board dated 19 April 2012 concerned a review of a determination made by the BPB on 27 October 2011, which again related to the Applicant's professional conduct. Of the eight allegations that were the subject of the inquiry before the BPB, only one allegation was set aside on review. The proven allegations related to three separate properties and again generally concerned a failure to appreciate various regulatory requirements when issuing the relevant building permits and administering statutory functions under the Act.
5. Having regard to the previous allegations found to be proven by the BPB and Building Appeals Board, I accept that it is open to infer that the Applicant has either a poor understanding of the Act or a failure to appreciate the important role and functions that he played in the administration of the Act. I consider this to be a relevant factor in the exercise of my discretion.

1. Mr Mitchell correctly submitted that that the Tribunal may take into account mitigating circumstances to reduce the severity of the decision that would otherwise be imposed.
2. In that regard, Mr Mitchell pointed to the fact that the conduct, the subject of this review hearing, occurred more than five years ago and that the initial inquiry before the BPB was heard and determined almost four years after the contravening conduct occurred.
3. In R v Merrett & Ors,[11] Maxwell P stated:

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes a powerful mitigating factor. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:

... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence did not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of the rehabilitation.

... The very fact of a long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly 4 years is rightly prayed in aid on his behalf.

As Vincent A.J.A. pointed out in R v Schwabegger, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely fashion...[12]

1. I accept that in the present case, the delay in initiating the original inquiry of almost four years is too long and results in a legitimate sense of unfairness. It is a factor that I take into account in mitigation.
2. However, insofar as the lapse in time is relevant to rehabilitation, no evidence was led to demonstrate that the Applicant had adopted any particular procedure so as to ensure that there was no repetition of what had occurred or how the Applicant intended to comply with his obligations under s 201(5) of the Act, which required:

(5) The relevant building surveyor must estimate the cost of the building work for which the application is sought (including the cost of labour and materials), having regard to the information given under subsection (4)(a) or (b), and must without delay give written notice of the estimate of the amount of the levy payable to the applicant.

1. In my view, evidence in the nature of the Applicant having undertaken a procedure similar to what is contemplated in the undertaking proposed by Ms Fitzgerald, would have gone some way in support of arguments based on mitigation. The absence of such evidence, however, weighs against a finding that the delay is a factor that justifies any significant discount on a punitive decision that would otherwise be ordered.

1. Both Mr Mitchell and Ms Fitzgerald have indicated that there is a lack of statistics indicating what decisions have been imposed in comparable cases. Ms Fitzgerald submitted that the Victorian Building Authority's Disciplinary Register indicated that on 28 May 2014, another registered building surveyor was reprimanded but not fined when found guilty of two allegations in relation to a failure to pay all amounts of levy received from permits issued during the month. She argued that the Applicant's conduct in the present case should be considered less blameworthy.
2. It is difficult to gain any practical guidance from the above case, given that the particulars of the circumstances surrounding the finding are not known. Therefore, I do not regard that case as being materially relevant to the exercise of my discretion.
3. In my view, the conduct of the Applicant indicates extreme tardiness on his part in the way in which he has purported to fulfil his functions under the Act. The fact that he has on previous occasions been found guilty of conduct also illustrative of a failure to properly exercise his functions under the Act is of some concern. Moreover, the lack of any evidence to demonstrate that procedures have been adopted by him to avoid a similar situation from occurring is equally concerning.
4. In my view, estimating the value of work in a permit application is an important function bestowed upon building surveyors under the Act. The failure to exercise that function, although not at the highest level of culpability, is still a matter which can justify punitive sanctions, so as to deter repetition of such conduct.
5. I do not accept that in the present case it would be appropriate to order that the Applicant provide an undertaking in the form suggested by Ms Fitzgerald. Ultimately, it is a matter for the Applicant to adopt what he considers to be the most appropriate procedure to ensure compliance with the Act, having regard to the cost, time and other factors relevant to his business. It is not appropriate to order an undertaking in the form proposed as that would unduly fetter the manner in which he operates his business. Moreover, as Mr Mitchell pointed out, that form of order would require supervision by the Tribunal in perpetuity.
6. Consequently, it is my view that the appropriate decision of the Tribunal is to:
   • (a) affirm the determination of the BPB to reprimand the Applicant; and
   • (b) set aside the imposition of a fine of $6,500 and in substitution thereof, impose a fine of $4,000.
7. In forming the view that the original decision of the BPB to reprimand the Applicant should be affirmed, I am mindful that a reprimand, to a professional person, has the potential for serious adverse implications and is not to be regarded as a trivial sanction.[13]

1. As I have already indicated, the BPB submits that the parties' costs of the review hearing should lie where they fall; but that the BPB's determination that the Applicant pay the costs of the initial inquiry, fixed in the amount of $3,117, should not be disturbed. By contrast, Ms Fitzgerald submitted that the cost of the review hearing should be paid by the BPB and that the decision of the BPB concerning the costs of the initial inquiry should be set aside.
2. The cost claims made by each of the parties give rise to the following questions:
   • (a) Is the Tribunal vested with power to make an order concerning the costs of and incidental to the initial inquiry?
   • (b) Does the Act empower the Tribunal to make an order concerning the costs of and incidental to the review hearing or alternatively, is the power to order costs of the review hearing confined to the relevant sections of the Victorian Civil and Administrative Tribunal Act 1998?

1. Mr Mitchell submitted that s 179(2)(b) of the Act gives the BPB or the Tribunal power to order the Applicant to pay the costs of and incidental to the initial inquiry or mutatis mutandis, the review hearing. He further submitted that the power to order costs under s 179(2)(b) is independent of the Tribunal's power to also order costs under s 109 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Section 182A of the Act states, in part:

(1) A person to whom a decision of the Building Practitioners Board under Division 1 or 2 applies may apply to the Victorian Civil and Administrative Tribunal for a review of -

(a) that decision; or

(b) a failure of the board to make that decision within a reasonable time.

1. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998, states:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or ...

1. In my view, s 51 of Victorian Civil and Administrative Tribunal Act 1998 vests the Tribunal with power to make an order in respect of the costs of and incidental to the initial inquiry, it being a power that was also vested with the BPB at first instance under s 179(2)(b) of the Act.
2. In re Wilkinson and Crimes Compensation Tribunal,[14] the predecessor of this Tribunal, the Administrative Appeals Tribunal, considered a similar issue in a review of a decision of the then Crimes Compensation Tribunal, the predecessor of the Victims of Crime Assistance Tribunal:

Section 25(2) of the Administrative Appeals Tribunal Act provides that upon hearing an appeal this Tribunal has all the powers of the respondent in making its determination, and of course in the present instance, one of the powers exercised by the Crimes Compensation Tribunal is to make an order as to costs.

Moreover, there are reported instances of the Administrative Appeals Tribunal making orders of the sort I have contemplated, and I mention, for instance, Re O'Keefe and Crimes Compensation Tribunal (1986) 1 VAR 245.

The failure to reverse the costs ordered below, would, in my view, be an injustice. The order was made on what is now a false premise, namely, that the applications have been unsuccessful. For the reason given, I believe, the Tribunal does have jurisdiction to deal with this issue and I would vary the decision of the respondent such that in each appeal an award of costs with regard to the proceedings before the Crimes Compensation Tribunal is made in favour of the applicant in accordance with the Scales applied by the Crimes Compensation Tribunal.

1. Re Wilkinson and Crimes Compensation Tribunal was extensively cited by this Tribunal in Tun v Victims of Crime Assistance Tribunal,[15] wherein the Tribunal concluded:

[17] In my view, the correct approach is that VCAT on review has jurisdiction to make an award of costs incurred before the VOCAT. It is well accepted that on review, VCAT "stands in the shoes" of the original decision-maker and re-makes the decision with all the powers and functions of the original decision maker (s 51(1)). The power exercised by VOCAT to award costs is incidental to its power to award assistance. The power that VCAT has to award these costs is incidental to its powers to carry out its functions on review or under s 59 of VOCA Act.

1. Consistent with the approach adopted in Re Wilkinson and in Tun, I am of the view that the Tribunal has jurisdiction under s 51 of the Victorian Civil and Administrative Tribunal Act 1998 to affirm the decision of the BPB, insofar as it related to the payment of costs or alternatively, vary that decision; or make another decision in substitution for it.
2. Nevertheless, and notwithstanding the power to affirm the costs decision of the BPB, I do not consider that this would be a just outcome in the present case. In my view, it is appropriate to set aside the decision made by the BPB relating to the costs of and incidental to the initial inquiry. I have formed that view because the review hearing has, to some extent, resulted in a different outcome which is more favourable to the Applicant than was previously the case. The initial inquiry commenced with three allegations being charged against the Applicant. One allegation was withdrawn prior to commencement of the hearing, with the remaining two allegations being proven. However, how much time was spent in proving those two allegations is unknown.
3. In my view, it would be unjust to affirm a decision requiring the Applicant to pay the costs of and incidental to an inquiry concerning three allegations, when only one allegation has ultimately been proven. Given that no evidence was adduced to indicate how much time was taken up in proving that one allegation, I consider it unsafe to make any assessment as to whether the Applicant should pay the costs of that initial inquiry. In particular, it may be that most of the preliminary investigations and hearing time was occupied in prosecuting the two allegations which were ultimately found to be unproven. In those circumstances, I do not consider it appropriate that the costs of and incidental to the inquiry should be borne by the Applicant. The decision of the BPB that the Applicant pays the costs of and incidental to the enquiry will be set aside.

1. As indicated above, the Applicant seeks an order that his costs of the review hearing be paid by the BPB. In that regard, he relies upon s 181 of the Act, which states:

If on an inquiry the Building Practitioners Board makes a finding favourable to a registered building practitioner, it may pay the practitioner's reasonable costs of and incidental to the inquiry.

1. In my view, s 181 of the Act is directed at what the BPB can do at the conclusion of an inquiry before it. The section is not expressed in a manner where it would apply to a review hearing conducted by the Tribunal under s 182A of the Act.
2. The words if on an inquiry the Building Practitioner's Board makes a finding gives the section narrow application. It covers a situation, for example, where all allegations, the subject of an inquiry before the BPB, are dismissed. In that sort of case, the section permits the BPB to pay the building practitioner's costs of and incidental to the initial inquiry.
3. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal with the same powers that the original decision-maker had. However, that does not mean that the Tribunal is empowered under s 181 of the Act to order costs of the review hearing because a review hearing is not an inquiry where the Building Practitioner's Board makes a finding. It is a review hearing of an inquiry where the Tribunal makes a finding.
4. Section 181 was introduced into the Act in 1997. It was not amended at the time when s 182A was inserted into the Act in 2013. Had Parliament intended that the operation of s 181 extend to review hearings conducted by the Tribunal, it could have amended that section at the time when the Tribunal was given its review jurisdiction. This did not occur, presumably because the Tribunal was already vested with power to order the costs of a review hearing pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998. Therefore, I do not consider that s 181 of the Act applies to a review hearing conducted by the Tribunal.
5. Even if s 181 of the Act applied to a review hearing, I do not consider that, in the present case, costs should be awarded under that section. In particular, Ms Fitzgerald submitted that the outcome of the review hearing resulted in a finding more favourable to the Applicant. In my view, that submission misconstrues s 181 of the Act. It is not that the review hearing results in an outcome more favourable than the initial inquiry, which appears to be the premise upon which that submission is based. The question is whether the inquiry makes a finding favourable to the registered building practitioner.
6. In the present case, the review hearing has not made a finding favourable to the registered building practitioner. In fact, the finding made by the Tribunal is that the Applicant failed to comply with reg 1502 of the Building Regulations 2006. In my view, the fact that one allegation was ultimately found to be unproven does not necessarily detract from the proposition that the outcome of the hearing is not favourable to the Applicant. An outcome favourable to the Applicant would, in most cases, be illustrated by all allegations being dismissed, which has not occurred in any event.
7. As I have indicated, I am of the view that the Applicant's application for costs of the review hearing fall to be determined pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998. In the present case both parties have succeeded to some extent and in those circumstances, I do not consider that it would be fair to make any order for costs. Accordingly, there will be no order for the costs of the review hearing.

SENIOR MEMBER E RIEGLER

[1] [2014] VCAT 902 at [85].

[2] [1984] FCA 105; (1984) 53 ALR 593.

[4] [2009] VCAT 419.

[8] Reg. 1502 of the Building Regulations 2006.

[9] See s 201 of the Building Act 1993.

[10] 2013] VSCA 374.

[11] (2007) 14 VR 292.

[13] Peeke v Medical Board of Victoria [1994] VSC 7 at 6.

[14] (1995) 9 VAR 127.

[15] [2009] VCAT 2479.