Plaintiff v Defendant

1 Ms Margaret Singleton applies for judicial review of a decision by the Victorian Building Authority ('the authority') dated 12 March 2019 not to take further disciplinary action against Brian Ross, a building surveyor. Ms Singleton seeks that additional charges be preferred by the authority against Mr Ross for using unregistered inspectors to inspect the building works at her property at 51 Seaview Parade, Kalimna ('the property'), and for failing to discharge his duties as a building surveyor in a professional manner.

2 In 2016, the authority referred 383 allegations against Mr Ross to the Building Practitioners Board ('the Board'), including two allegations relating to the construction of a dwelling at the property ('the dwelling'). Ms Singleton says this is inadequate and does not sufficiently address the failures of Mr Ross to discharge his professional duties in relation to the construction of the dwelling.

3 Ms Singleton seeks prerogative and injunctive relief in the following form:

(a) an order in the nature of mandamus that the authority discharge its statutory duty as mandated by Parliament, and in accordance with the Building Act 1993 (Vic) ('the Building Act') by taking disciplinary action against Mr Ross for the serious defects in the construction of the dwelling that have not been acted on by the authority; and

(b) an order that the authority direct Mr Ross under s 205M of the Building Act to discharge his duties and revisit the mandatory stages of inspection as set out in the building permit to bring the dwelling into compliance; or

(c) alternatively an order directing the authority to become the municipal building surveyor and bring the dwelling into compliance.

4 The authority resists the application, and submits that the orders sought by Ms Singleton should not be made.

5 On 11 June 2009, Ms Singleton signed a domestic building contract with Geoffrey Lawrence, a local builder in the East Gippsland region ('the builder') to construct a

2-storey home at the property. The builder engaged Mr Ross as the building surveyor to issue the building permit, and to carry out four mandatory inspections required by the permit:

6 On 3 September 2009, Mr Ross issued a building permit for the construction of the dwelling. The permit imposed numerous standard conditions, and required all works authorised by the permit to comply with the provisions of the Building Act, the Building Regulations 2006 (Vic), the Building Code of Australia 2008 and local laws. Variations from the approved plans were not permitted without the consent of Mr Ross.

7 Following the commencement of building works, inspections were purportedly carried out by Mr Ross on the following dates:

(b) inspection of steel for slab - 14 September 2009;

(c) inspection of framework - 13 November 2009; and

(d) inspection for occupancy permit - 10 January 2011.

8 During construction, Ms Singleton observed that the project had faltered, and that there were numerous problems and non-compliances. She retained a building consultant who inspected the building works on 11 March 2010. She made complaints about the builder and Mr Ross to the authority and to Consumer Affairs Victoria. She also claimed against the builder in the Victorian Civil and Administrative Tribunal ('VCAT').

9 The consultant's report described the result of the building works as 'most unsatisfactory'. The report listed numerous defects, which were said not to be exhaustive, including:

(a) wheelchair access for Ms Singleton's husband, who had suffered a stroke in 1999, had not been provided;

(b) high steps had been constructed despite the advice of the treating occupational therapist;

(c) drainage discharge was to a creek at the rear of the property and not the front-street drain; and

(d) defects relating to the slab, brickwork, chimney, tiling, sewerage and fittings.

10 The report advised that the builder should not be allowed to carry out the rectification works, but a new contractor engaged. In some cases, the defective works could be rectified, but in others this was impossible without rebuilding the whole house. Rectification costs exceeded $68,000. The result in any case would be totally unsatisfactory as the dwelling constructed did not match the contract.

11 On 22 May 2012, Ms Singleton's claim against the builder in VCAT was settled at a mediation. She received the sum of $15,000 on an all-in basis.

12 In early September 2013, the authority was in receipt of an external technical report from an inspector concerning the works. Many of Ms Singleton's complaints were accepted, whilst others were not. Some complaints could not be determined by the inspector, while others were considered to be of a contractual rather than a compliance nature.

13 On 15 August 2014, the authority advised Ms Singleton that it had referred the builder to the Board for an inquiry into his conduct.

14 On 14 July 2015, the Board found the builder guilty of six allegations concerning the construction of the dwelling, fining him a total of $6,500. Although the allegations contained many particulars, in general terms, they were:

(a) carrying out building work which did not comply with the building permit;

(b) demanding and recovering sums for work in excess of the contract price;

(c) varying the specifications of the works without giving notice of variation;

(d) failing to specify the layout of drains to the point of discharge in the plan; and

(e) failing to carry out works to a competent and professional standard.

15 On 1 September 2015, the authority advised Ms Singleton that the investigation of her complaint into the conduct of Mr Ross had been finalised. The authority also advised that it was now in the process of a much broader investigation into his conduct. The matters identified during the investigation into her complaint would form part of that broader investigation. The investigation was ongoing, and would take some time to complete.

16 By June 2016, the authority had concluded its investigation into Mr Ross, and the results were under internal legal review. At that time, as a result of legislative changes, the Board was due to be abolished on 1 September 2016.[1] Thereafter, a new 'show cause' notice procedure would be available for disciplinary action against a building practitioner. However, if a notice of inquiry had been issued before 31 August 2016, the Board had power to conduct an inquiry under the law as it was before 1 September 2016.

17 On 30 August 2016, the authority made three referrals of 383 allegations of misconduct by Mr Ross to the Board. Two allegations related to the works on the property.

18 On 6 September 2016, the Board served three notices of inquiry on Mr Ross. He challenged the jurisdiction of the Board in the Supreme Court. He was unsuccessful.[2] He then appealed to the Court of Appeal and was again unsuccessful.[3]

19 Of the two allegations relating to the building works on the property referred to the Board, the first allegation related to the issue of the building permit despite the fact that the plan did not show the layout of drains to the point of discharge on the property. The second was to the effect that an unqualified person had performed a mandatory framework inspection.

20 In an email dated 17 November 2016, Ms Singleton expressed concern that only two allegations were referred to the Board against Mr Ross. She said that six allegations were upheld against the builder, and that it was Mr Ross who had permitted the builder to get away with defective workmanship. She said that the cumulative effect of the breaches had significantly impacted on the standard and integrity of the dwelling, contending that it was the role of the regulator to ensure that the relevant building surveyor was held accountable.

21 In an email dated 28 November 2016, the authority responded that it was committed to a thorough investigation of complaints and a legally sound disciplinary process through which substantiated allegations were tested through the inquiry process. However, where the evidence did not substantiate a complaint or allegation, it would be improper for the authority to represent otherwise. The authority said that the investigation into Mr Ross had been intensive and lengthy and that it was committed to protecting consumers and maintaining proper standards within the building industry.

22 To the extent that the allegations against Mr Ross did not include all specific aspects of Ms Singleton's complaint, the authority said that this was likely because:

(a) the allegations were not substantiated to the standard required under legislation and case law; and

(b) the allegations were to the building work undertaken by the builder rather than the functions of the building surveyor.

23 The authority said that findings of guilt against the builder were not automatically findings against Mr Ross. The allegations against Mr Ross had to be considered in the light of the specific obligations imposed by the Building Act on a building surveyor.

24 Ms Singleton continued to press for additional disciplinary action by the authority against Mr Ross. In an email of 25 November 2016, she said it was under Mr Ross' supervision that breaches occurred, including:

(a) the dwelling was not positioned on the site in accordance with the approved plan in the building permit;

(b) the plan did not specify the layout of drains to the point of discharge;

(c) the height of the garage door was less than the height specified in the approved drawings in the building permit;

(d) the garage floor slab was poured level with the internal floor, but the plans that went to the Council and formed part of the building permit showed a step-down garage;

(e) the chimney in the dwelling was of different dimensions to that specified;

(f) the bricklaying around the entire dwelling was not of a competent and professional standard;

(g) the surveyor engaged an unqualified person to inspect the frame stage of construction (and possibly final inspection);

(h) the finish of the walls did not exhibit the uniformity and gloss expected of a three coat finish;

(i) the upstairs wastewater system involved six 90-degree turns before exiting on the opposite side of the house, and was non-compliant as to venting; and

(j) no electrical and plumbing certificates of compliance were issued with the certificate of occupancy in 2011. This documentation had to be obtained by her.

25 On 6 December 2016, the Board Chair advised Ms Singleton that as a result of the legislative amendments, the Board's role was now confined to hearing the allegations made against Mr Ross before 30 August 2016.

26 On 21 March 2017, the authority advised that the Board had not seen fit to suspend Mr Ross' registration as a building practitioner from the outset of the inquiry. It was not now in a position to do so.

27 Ms Singleton continued to do all she could to obtain more action against Mr Ross concerning the works on the property. On 23 May 2017, and again on 26 June 2017, she emailed the Chief Commissioner of the authority requesting his intervention to ensure that additional allegations were preferred against Mr Ross.

28 On 16 July 2017, the Chief Commissioner responded. In substance, he said that he was unable to respond to matters still under investigation, or as to the allegations before the Board, or whether the Board ought have immediately suspended Mr Ross' registration. The inquiry concerning Mr Ross was a complex inquiry with litigation on a number of fronts.

29 On 16 October 2017, the authority advised that there was no ability to add new allegations or matters to those already referred to the Board. A complainant could provide a personal impact statement to the Board when a penalty was under consideration. The authority said it could no longer prosecute Mr Ross at the Magistrates' Court, or the unqualified persons who had assisted him, as the three year limitation period had expired.[4] Finally, the authority advised that it was the responsibility of the relevant building surveyor to ensure that the building works were compliant - it was not the authority's role or function to bring the dwelling into compliance.

30 Over the next eight months, Ms Singleton made more requests for the authority to take additional disciplinary action against Mr Ross.

31 On 22 June 2018, the authority advised that proceedings against Mr Ross relating to the use of unregistered building inspectors at the property were pending with the Board, and that the Board was the appropriate forum to decide what the disciplinary consequences should be. The authority stated that it would be inappropriate for the authority to commence a show cause process for the same conduct. While additional allegations could have been brought against Mr Ross, they were unlikely to change the outcome of the Board's disciplinary procedures.

32 The Board conducted its inquiry hearing on 28 June 2018.

33 On 2 July 2018, in response to a further email from Ms Singleton, the authority stated that it would not be reviewing the allegations to see whether additional allegations should be preferred under the show cause process. It had determined that only two of the allegations relating to the works were supported by evidence. They were the allegations already referred to the Board as part of the broader inquiry into the conduct of Mr Ross. According to the authority, there was not sufficient evidence based on numerous technical reports to support some of Ms Singleton's allegations to the standard required in disciplinary proceedings. Mr Ross had been found guilty, and it was not in the public interest to pursue any further disciplinary action against him.

34 On 5 July 2018, the Board issued a notice of decision. Mr Ross was reprimanded and fined a total of $21,438.85. He was ordered to pay $56,700, being two-thirds of the total cost of the inquiry. Of the total of 383 allegations, 69 were withdrawn by the Board and 314 allegations were admitted by Mr Ross, or found proven by the Board. These included the two allegations relating to the property.

35 In its reasons, the Board noted that Mr Ross had issued 627 building permits in the last 12 months, and had issued over 20,000 building permits during his career. At the time of the contraventions, he operated four regional offices, and employed 17 people.

36 On 2 August 2018, Mr Ross appealed to VCAT against the decision of the Board.

37 On 17 August 2018, solicitors retained by Ms Singleton wrote to the authority repeating her earlier requests for the authority to initiate a show cause process in relation to the unreferred allegations against Mr Ross. They included:

(a) the use of other unauthorised persons to conduct inspections, including the final inspection;

(b) the absence of documentation as to further inspections or compliance with directions;

(c) the failure to identify non-compliances with the approved plans, including the location of the slab and defects in brickwork prior to the issue of the occupancy permit; and

(d) the failure of Mr Ross to discharge his duties in a professional manner.

38 Ms Singleton issued the proceeding on 16 February 2019.

39 On 12 March 2019, the authority replied to the solicitors' letter of 17 August 2018. It advised that it had decided not to pursue a separate show cause process against Mr Ross following careful consideration of all relevant factors, including her complaints. The authority stated that the Board had already taken disciplinary action against Mr Ross for using unregistered inspectors at numerous properties, including Ms Singleton's property, and for failing to discharge his functions as a building surveyor in a professional manner. It was not in the public interest to take further disciplinary action for the same type of breaches.

40 Section 76 of the Building Act sets out the functions of a private building surveyor:

A private building surveyor may be appointed to carry out all or any of the following functions under this Act -

(a) the issuing of building permits;

(b) the carrying out of inspections of buildings and building work under Part 4;

(c) the issuing of occupancy permits and temporary approvals under Part 5.

41 Section 171 of the Building Act sets out the requirements for an applicant to be registered as a building practitioner. Amongst others, the applicant is required to be a fit and proper person.[5]

42 Section 179 of the Building Act lists the grounds for which disciplinary action may be taken against a registered building practitioner.

43 Under s 182 of the Building Act, a show cause notice must satisfy the following requirements:

(1) Subject to subsection (6), if the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice).

...

(2) The show cause notice must state the following -

(a) that the Authority proposes to take disciplinary action;

(b) the disciplinary action proposed to be taken;

1. the registration in relation to which the proposed action is to be taken;

(d) the ground for the proposed action;

(e) an outline of the facts and circumstances forming the basis for the ground for the proposed action;

(f) an invitation to the registered building practitioner to show within a stated period (the show cause period) why the proposed action should not be taken.

...

(6) The Authority is not required to give the registered building practitioner a show cause notice if -

(a) the Authority has issued a notice of immediate suspension under section 180A(2); and

(b) the Authority does not propose to take any other disciplinary action.

44 Under s 183(1), a complainant must be given notice of the authority's decision in relation to a registered building practitioner.

45 Under s 205M of the Building Act, the authority can give directions to a municipal building surveyor or a private building surveyor:

(1) If it considers it necessary for the purposes of this Act or the regulations, the Authority may direct a municipal building surveyor or private building surveyor to carry out his or her functions under this Act or the regulations -

(a) in accordance with this Act or the regulations; or

(b) within a period specified in the direction.

...

(3) If it considers it necessary for the purposes of this Act or the regulations, the Authority may recommend to the person who appointed a municipal building surveyor or private building surveyor that the person take action specified by the Authority.

(4) Subject to subsection (4B), before giving a direction or making a recommendation under this section, the Authority must give the municipal building surveyor or private building surveyor concerned a written notice stating -

(a) the Authority's intention; and

(b) the period (being not less than 7 days after the giving of the notice) within which the building surveyor may make submissions to the Authority about the matter.

46 The authority can also carry out the functions of a municipal building surveyor under s 205N:

(1) The Authority may carry out the functions of a municipal building surveyor under this Act and the regulations in relation to -

(a) any application for a building permit made to the Authority under Part 3; and

(b) any matter referred to the Authority by a private building surveyor under Part 8; and

...

(2) The Authority's functions under subsection (1) are in addition to any function of a municipal building surveyor conferred on the Authority under Division 1.

47 It is convenient to commence by summarising the well settled case law relating to mandamus.

48 Mandamus is a discretionary remedy and may only issue to command the fulfilment of a public duty which remains unperformed.[6] Where an officer purports to have performed a public duty, but what is done amounts in law to no performance because of a misconception of duty, or involves a failure to comply with a requirement essential to the valid performance of the duty, the officer may be ordered to execute the duty according to law.[7] Mandamus is also available where a public officer wrongly refuses jurisdiction, or if there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right.[8]

49 In deciding whether to grant mandamus, it is fundamental to consider the nature of the public duty sought to be enforced. If the duty is a legal duty, and amounts to an obligation to act imposed by law, it is generally mandatory. If the public duty refers to the functions of an office, the manner of performance of the functions is generally regarded as discretionary. This is because the courts are reticent to intervene where there are competing policy objectives and limited resources.[9] Determining the presence, nature and scope of a function of office is a contextual inquiry.[10] In general, mandamus will not command the performance of duty in a particular way if there is a discretion as to how the duty is to be performed.

50 In Weaven v The Secretary, Department of Justice, Macaulay J summarised the law relating to mandamus in the following passage:

The performance of a public legal duty may be enforced by mandamus in certain circumstances, as stated by Latham CJ in Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic):

It is a well-established principle that mandamus will go to compel the performance of a public or quasi-public legal duty which the person who is subject to the duty has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. When it is the duty of a public officer to exercise a discretion, the court may order the officer to perform his duty by exercising his discretion, but it will not control the exercise of the discretion by directing that it be exercised in a particular manner not expressly required by law ...

The limits on the remedy of mandamus have recently been set out in Knight v Hastings (Commissioner, Corrections Victoria) in which Williams J stated:

An order for relief in the nature of mandamus will only compel the performance of a statutory duty, not direct how it is to be discharged ...

In order to maintain a proceeding for relief in the nature of mandamus it is necessary to demonstrate that the defendant public body is required by law to perform a mandatory public duty, and that such duty has not been performed according to law. When that is established, the Court does not grant relief enforcing the result which the plaintiff contends should have arisen upon a lawful exercise of the public duty. The appropriate relief is to order a re-exercise of the public duty; not to compel the manner of performance of that duty.

Mandamus is a discretionary remedy which does not lie as of right. The remedy may be refused 'if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made'.[11]

51 In Beling v Legal Services Commissioner, Derham AsJ said:

Mandamus is a judicial command instructing the defendant to perform a public duty. It may be granted to a plaintiff of sufficient standing who proves that the defendant has actually or constructively failed to perform a duty of a public nature. Further:

(a) an order in the nature of mandamus might be made whenever there was a specific legal right to require the performance of a statutory duty, and no specific legal remedy was provided for enforcing that right;

...

(c) a public duty must be performed in accordance with the law, but mere error in performance does not afford a ground for the grant of an order in the nature of mandamus. There must have been an error of such a kind that the duty had not in law been performed at all. That amounts to a constructive failure to perform the duty ... [12]

(a) Section 171(d) of the Building Act requires that a building practitioner be a fit and proper person to practise as a building practitioner, having regard to all relevant matters, including the character of the person.

(b) The authority is responsible for the supervision of registered building practitioners.[13] It has the obligation to ensure that private building surveyors carry out their duties under the Building Act.

(c) There were many failures by Mr Ross concerning the building works on the property. He failed to ensure that the building work complied with the Building Act, regulations or the building permit, and failed to discharge and complete his statutory duties.

(d) The Board could have suspended Mr Ross' registration as a building practitioner pending an inquiry under s 178(f) of the Building Act (now repealed) but did not do so.

(e) The authority had evidence that Mr Ross engaged three unregistered persons to assist him in relation to the four mandatory stages of inspection of the works and other breaches of the Building Act. Only two allegations were referred to the Board. Most of Ms Singleton's allegations were not referred to the Board.

(a) Under s 182(1) of the Building Act, the obligation to give a show cause notice will only arise where the authority:

(1) forms a reasonable belief that one of the grounds in s 179(1) for taking disciplinary action exists; and

(b) There is no power in the Building Act that would permit the authority to carry out, or direct Mr Ross to carry out, further work to bring the home into compliance.

54 The authority also relied on other defences. It is not necessary in the circumstances of this case to consider them.

55 Ms Singleton is a victim of defective building work. She lives in a dwelling permanently impaired by low standards of construction. Mr Ross, the relevant building surveyor, did not ensure that proper standards were observed by the builder in accordance with the plans. He used unqualified persons to undertake his own professional responsibilities. The works suffered from many basic deficiencies when Mr Ross issued the mandatory certificates and the occupancy permit. Given her ongoing situation, it is not in any away surprising that Ms Singleton seeks for the further disciplinary action against Mr Ross.

56 The injustice that has been suffered by Ms Singleton does not mean that the Court can or should order mandamus against the authority.

57 Ms Singleton's complaint is not that the authority has done nothing, but that it should have done more to punish Mr Ross. She says that the preferment by the authority of only two allegations against Mr Ross relating to the property is not enough and that other allegations should have been referred.

58 Her submissions must fail. This is not a case where the authority has refused to perform its functions or denied its public duty. The authority has investigated Ms Singleton's allegations against Mr Ross. It has given repeated consideration to the exercise of its powers to take disciplinary action against Mr Ross and held an inquiry into his conduct. It referred 383 allegations against Mr Ross to the Board for determination. Subject to review by VCAT, Mr Ross has now admitted or been found guilty of 314 allegations.

59 The authority's obligations in relation to show cause notices under s 182(1) of the Building Act are plainly discretionary. First it must form a reasonable belief that one of the grounds in s 179(1) for taking disciplinary action exists, and second, propose to take action in the exercise of its discretion. The manner in which the authority performs its function is also discretionary.[14] There is no legal basis on the evidence to interfere with the exercise of the authority's discretion not to take further disciplinary action against Mr Ross.

60 In the course of the extensive correspondence that has taken place between Ms Singleton and the authority, the authority has given its reasons why it declines to take additional disciplinary action against Mr Ross:

(a) it has already taken disciplinary action against Mr Ross for using unregistered inspectors at numerous properties, and for failing to discharge his functions as a building surveyor in a professional manner;

(b) it was not in the public interest to take further disciplinary action for the same breaches;

(c) there is not sufficient evidence based on numerous technical reports to support some of Ms Singleton's allegations to the standard required in disciplinary proceedings;

(d) it was inappropriate for the authority to commence a show cause process for the same conduct as was already referred to the Board; and

(e) additional allegations are unlikely to change the outcome of the Board's disciplinary procedures.

61 There are two additional factors why it would be inappropriate for the authority to initiate a show cause process against Mr Ross at this time.

62 The first is the advanced stage of the existing proceedings against Mr Ross. The Board has completed its hearing, imposed fines and made orders as to costs. Mr Ross has engaged the review jurisdiction of VCAT. It is highly undesirable to interfere with or obstruct the VCAT review process. To take the requested additional disciplinary action against Mr Ross would divert the existing proceedings, and cause further delays and costs to be incurred. It is likely that fresh disciplinary action would be stayed pending the completion of the current disciplinary action.

63 The second factor is that 10 years have passed since the Singletons contracted with the builder, and over eight years since Mr Ross issued the occupancy permit. While not in any way the fault of Ms Singleton, the delay is very substantial, and inevitably affects the conduct of proceedings. Witnesses will have reduced, if any memory of relevant events and conversations. Technical experts may have left the employ of the authority or be unavailable. The authority has a discretion to decide when disciplinary action against Mr Ross should be concluded, and has done so.

64 I accept the submissions of the authority that the relief sought should not be granted.

65 For the reasons I have given above, the first order sought by Ms Singleton cannot be made.

66 The second and third orders are inappropriate. It would be wrong for the Court to order the authority to revisit the mandatory stages of inspection which Mr Ross certified almost a decade ago, or to order Mr Ross to perform further surveying or building work on the property. It would be equally wrong for the Court to order the authority to become the municipal building surveyor to take steps to bring the dwelling into compliance. All building and surveying work at the property has long since ceased. It is not for the municipal building surveyor or any other building surveyor to have to undertake building rectification works.

67 The Court has the utmost sympathy for Ms Singleton and the way she has been treated. However, there is no proper legal basis on which the Court can grant orders in the nature of mandamus. The proceeding must be dismissed.

[1] Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) pt 3 div 2.

[2] Ross v Building Practitioners Board [2017] VSC 196 (Ginnane J).

[3] Ross v Building Practitioners Board & Anor [2017] VSCA 274 (Kyrou, Ferguson and McLeish JJA).

[4] Building Act s 241(7).

[5] Building Act s 171(d).

[6] R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 242 (Rich, Dixon and McTiernan JJ).

[8] R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 398.

[9] DPP v Zierk [2008] VSC 184, [18] (Warren CJ).

[11] [2012] VSC 582, [8]-[11] (citations omitted).

[12] [2016] VSC 180, [39] (citations omitted).

[13] Building Act s 197(ac).