1. The Principal Registrar's decision, dated 8 August 2018, to reject the applicant's application is confirmed.

1. I direct the Principal Registrar to send a copy of these orders to the Victorian Building Authority, marked to the attention of 'Mr D Honey, reference FOL/16/439' by email to: David.Honey@vba.vic.gov.au

1. In 2014, the applicant, Mr Draper, entered into a domestic building contract with Simonds Homes Victoria Pty Ltd ('the builder'). During the course of the works, Mr Draper and the builder fell into dispute. That dispute lead to litigation in this Tribunal which culminated in a determination favouring Mr Draper dated 29 April 2016.[1]
2. Concurrent with that litigation, Mr Draper had also raised complaints with the Building Practitioners Board ('the board') regarding the conduct of the builder. In particular, Mr Draper sought that the board conduct an inquiry into the conduct of the builder's principal director and nominated registered building practitioner, Mr Vallence Simonds.
3. On 11 May 2016, the board notified Mr Draper that it had determined not to conduct an inquiry into the professional conduct of Mr Simonds (or his ability to practice as a building practitioner), but that it had instead determined to conduct a 'conduct review' in lieu of full inquiry.
4. Dissatisfied with that determination, Mr Draper commenced a proceeding in this Tribunal seeking a review of the board's determination ('the review proceeding').
5. At the time Mr Draper commenced the review proceeding, Division 2 of Part 11 (sections 177 - 182) of the Building Act 1993 ('the Building Act') included provisions as to the board's power to conduct inquiries into the conduct of registered building practitioners and the decisions the board might make. Division 2A of the Act (s182A), as it then was, provided for applications to this Tribunal to review board decisions and actions:

(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 -

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

(2) If the Authority referred a matter to the Building Practitioners Board for inquiry under Division 2, the Authority may apply to the Victorian Civil and Administrative Tribunal for a review of -

(a) a failure by the Board to conduct an inquiry, within a reasonable time, into the matter referred to it; or

(b) a refusal by the Board to conduct the inquiry; or

(3) A person who requested the Building Practitioners Board to conduct an inquiry under Division 2 may apply to the Victorian Civil and Administrative Tribunal for a review of -

(a) a failure by the Board to conduct the inquiry within a reasonable time; or

(b) a refusal by the Board to conduct the inquiry; or

1. The review proceeding was heard in August 2017, and on 15 September 2017 the Tribunal handed down its decision[2] ("the review decision") by which the following orders were made:
   1. The decision of the Building Practitioners Board dated 11 May 2015 is set aside.
   2. The Tribunal determines pursuant to s182A of the Building Act 1993 that an inquiry be conducted under s178 of the Building Act 1993 into the professional conduct of Vallence Gary Simonds (DB-U 5403).
   3. Liberty to apply on the question of costs.
2. The review decision sets out in some detail the history of Mr Draper's dispute with the builder and his complaints regarding the builder and Mr Simonds. I need not reiterate those matters here. Ultimately, the Tribunal found that the board's decision to not conduct an inquiry into the professional conduct of Mr Simonds was not justified, and the Tribunal ordered that an inquiry be conducted.
3. The Building Legislation Amendment (Consumer Protection) Act 2016, which came into effect fully by 1 September 2016, made a number of amendments to the Building Act, including:
   • - the abolition of the board and the transfer of the board's functions powers and responsibilities to the Victorian Building Authority ('the VBA');
   • - the replacement of Divisions 2 and 2A of part 11 (sections 177 - 187) with new Divisions 2,3 and 4 of Part 11 (new sections 177 - 187).
4. For ease of reference, I shall refer to the Building Act, as it was prior to the amendments, as 'the old Act', and as it became after the amendments as 'the new Act'.
5. The replacement divisions in the new Act mate provision for, amongst other things, the VBA's power to make inquiries and take disciplinary action in respect of registered building practitioners. Certain of the VBA's decisions (so called 'reviewable decisions') may, upon application by a person directly affected by the decision, be referred for internal review by the VBA. There are further rights to seek review in this Tribunal in respect of the VBA's internal review decisions or, in some cases, reviewable decisions.
6. But there is nothing in the new Act similar to s182A(3)(a) or s182A(3)(b) in the old Act. The new Act makes no provision for application to this Tribunal for review of a refusal of the VBA to conduct an inquiry or for review of the failure of the VBA to conduct an inquiry within a reasonable time.
7. The review decision was handed down after the new Act came into operation, however transitional provisions under the new Act [3] allow for continuation and completion of a review application pursuant to the old Act when the review application was made before the commencement of the new Act. The transitional provisions include the following:

(1) If, before the relevant commencement day, the Building Practitioners Board had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.

(2) A determination of the Building Practitioners Board referred to in subclause (1) is taken -

(a) in the case of a decision under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; or

(b) in the case of a decision under section 180 of the old provisions, to be a decision of the Authority under section 181 of the new provisions.

(3) An application for a review that has been made under section 182A of the old provisions but not determined before the relevant commencement day may be continued and completed in accordance with the old provisions.

(4) If the time within which an application for review could be made under section 182A of the old provisions had not expired before the relevant commencement day, the application may be made and dealt with in accordance with the old provisions.

1. As noted by Senior Member Riegler in the review decision[4]:

Clause 4 of those transitional provisions allow for inquiries conducted prior to 1 September 2016 to be continued by the Board. Those transitional provisions also allow for review hearings to be conducted under the old Building Act, if initiated before the commencement of the new Act. Clearly, the purpose of those transitional provisions is to allow the board to continue its functions where those functions are part performed...

1. Senior Member Riegler subsequently went on to say that the transitional provisions allowed for either the board or the VBA to conduct the inquiry, and that it was a matter for those bodies to determine which of them should do so.[5]
2. Some considerable time after the review decision was handed down, Mr Draper became frustrated at the perceived lack of action in respect of the ordered inquiry. Although there is little material before me, it seems that the board/VBA was slow to commence the inquiry and had little communications with Mr Draper.
3. In around May 2018, Mr Draper sought the Tribunal's assistance to enforce the orders of review decision.
4. Section 122 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') provides for the enforcement of a non-monetary order of the Tribunal as follows:

(1) A person may enforce a non-monetary order by filing in the Supreme Court -

(a) a copy of the order certified by a presidential member or the principal registrar to be a true copy; and

(b) that person's affidavit as to the non-compliance with the order; and

(c) a certificate from a judicial member or the principal registrar stating that the order is appropriate for filing in the Supreme Court.

(2) No charge is to be made for filing a copy of an order, an affidavit or a certificate under this section.

(3) On filing, the order must be taken to be an order of the Supreme Court, and may be enforced accordingly.

1. It is apparent from the Tribunal's file that, as part of the assessment as to whether certification pursuant to section 122 of the VCAT Act was appropriate, the Principal Registrar received a copy of an email communication from the VBA to Mr Draper dated 9 May 2018 wherein the VBA:
   • - confirmed that the timing of an inquiry hearing is dependent on a number of factors such as the availability of investigators and prospective witnesses to give evidence to the investigators;
   • - confirmed that it had previously estimated that a hearing would be held in April 2018, however for reasons beyond its control it was taking longer than anticipated to undertake the investigations required to address the matters raised in the review decision; and
   • - confirmed that it anticipated it would conclude its investigations and drafting of particulars of allegations by June 2018, following which it might be in a position to set the matter down for a hearing in June or July 2018 provided all relevant parties are available.
2. By email letter to Mr Draper dated 6 July 2018, the Tribunal's principal registrar notified Mr Draper of her decision that it was not appropriate to provide certification under section 122 of the VCAT Act. The letter states in part:

Section 122 of the VCAT Act provides that the principal registrar can provide a certificate stating that the order is appropriate for filing in the Supreme Court. I note the letter from VBA dated 9 May 2018 indicates that they will have concluded investigations by June 2018 and will be in a position to set the matter down for a hearing.

On this basis, I am not satisfied that the order has not been complied with, and in the circumstances, it is not appropriate to issue a certificate under s122.

1. After receiving the principal registrar's above-mentioned decision, Mr Draper filed a new application form dated 10 July 2018. The application form requests an applicant to identify the Act and the section of the Act under which the application was being made. In this section of the form, Mr Draper states:

'Building Act 1993 section 182A(3)(a) Application by the person who requested the inquiry to review a failure by the board to conduct an inquiry, within a reasonable time, into the matter referred to it'

1. It is apparent that the reference to s182(3)(a) is a reference to that section under the old Act.
2. It is also apparent from other statements in the application form and the accompanying material filed with the application that Mr Draper's reason for bringing the application was the board's delay in conducting the inquiry ordered by the review decision. However, Mr Draper did not specify any particular remedy or orders sought.
3. Relevant parts of section 71 of the VCAT Act provide:

(1) Unless otherwise provided for in the rules, the principal registrar may reject an application that -

(a) is made by a person not entitled to make it; or

(b) is lodged after the expiry of the period specified in the enabling enactment; or

(c) does not otherwise comply with this Act, the regulations or the rules.

(2) If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.

(3) If the principal registrar rejects an application, he or she must inform the applicant of the right of referral under subsection (2).

(5) On a referral under subsection (2), the Tribunal must review the rejection and may -

(b) order the principal registrar to accept the application.

1. By letter to Mr Draper dated 8 August 2018, the principal registrar's delegate notified Mr Draper that his new application had been rejected. The letter states, amongst other things:

Your application has been rejected because the section of the Building Act 1993 you are making your application under was substituted in 2016. As a result there are no provisions for this application to be dealt with by the Tribunal.

1. The letter went on to notify Mr Draper of his right to seek a review of the decision under section 71 of the VCAT Act, and that if he sought a review he may be asked to attend a hearing.
2. On around 13 August 2018, Mr Draper confirmed to the Tribunal that he sought a review of the decision to reject his application. The Tribunal subsequently listed the matter for review hearing. It is that matter which comes before me, that is, a review of the decision of the principal registrar to reject Mr Draper's new application.

1. In my view, the principal registrar's decision to reject the application is correct.
2. Mr Draper purports to bring the application under a provision of the old Act, a provision which ceased to be operative from 1 September 2016.
3. Mr Draper submits that because:
   • - the review decision order requiring the conduct of an inquiry into the professional conduct of Mr Simonds was made pursuant to the provisions in the old Act, and
   • - the transitional provisions under the new Act give force to the review decision order, including allowing for the continued existence of the board for the purpose of conducting the ordered inquiry,

it remains open to him to bring an application under s182A(3)(a) under the old Act.

1. I do not accept the submission.
2. Mr Draper brought an application under the old Act. The application was heard and determined with a final decision, the review decision, handed down on 15 September 2017. The transitional provisions in the new Act accommodate the carrying out of the review decision order. However, in my view this does not mean that section 182A(3)(a) of the old Act can be revived for the purpose of bringing a new application.
3. It may well be appropriate, if the review decision order is not complied with, to seek enforcement of the order.
4. I accept that Mr Draper has reason to be frustrated. An order was made on 15 September 2017 for the conduct of the inquiry. The VBA have apparently taken some steps as part of the inquiry, but the progress has been very slow.
5. In view of the delay/inaction on the part of the VBA, Mr Draper sought to enforce the review decision order pursuant to section 122 of the VCAT Act. He was unsuccessful because the principal registrar, having been informed that the VBA was taking steps to progress the inquiry, did not consider it appropriate to provide certification for filing of the order in the Supreme Court.
6. The principal registrar's decision in this regard is not, and cannot be, a reviewable decision before me. The matter before me is a review of the decision of the principal registrar to reject the applicant's new application dated 10 July 2018. For the reasons discussed above, I find that such decision is correct.
7. Finally I note that, in my view, there is no bar to Mr Draper making further request in the future pursuant to s122 of the VCAT Act. The board/VBA must comply with the review decision order, and if it does not, enforcement of the order pursuant to section 122 of the VCAT Act may well be appropriate. In the event a further request pursuant to section 122 is made, the principal registrar will assess such request on the basis of such further information as may be presented by, or sought from, the parties.
8. For the above reasons, I will order that the principal registrar's decision, dated 8 August 2018, to reject the applicant's application is confirmed. I will also order that a copy of these reasons be sent to the VBA.

[1] Draper v Simonds Homes Victoria Pty Ltd [2016] VCAT 669

[2] Shannon Draper v building practitioners board (number two) (review and regulation) [2017] VCAT 1402.

[3] the transitional provisions are contained in the schedule 8 to the new Act

[4] paragraph 119 in the review decision

[5] paragraph 123 in the review decision