Plaintiff v Defendant

2 The VBA decision was made by Ms A Smith, Delegate and Principal Decision-Maker, but I will refer to the VBA as the decision-maker unless the context requires otherwise. Ms Smith also drafted the Show Cause Notice.

3 To obtain judicial review remedies, Mr Draper must establish that the VBA made a jurisdictional error.

4 The VBA's decision arises from the following circumstances. In August 2017, Mr Draper complained to the VBA about works carried out by the RBS and the RBI in 2014 and 2015. The VBA made inquiries and, on 28 November 2019, issued Show Cause Notices to the RBS and the RBI under s 182 of the Building Act 1993 (the 'Building Act'). The RBS and RBI provided written responses to those notices. On 17 March 2020, the VBA decided not to take disciplinary action against either of them. Its reasons for decision were dated 8 April 2020.

5 Mr Draper contended that the VBA made jurisdictional errors in its decisions and seeks, among other thing, the quashing of the decisions, the making of orders or declarations to rectify perceived defects in Victoria's building legislation, the making of orders requiring the VBA to properly perform its functions, and the making of declarations against the VBA that it failed to act as a model litigant.

6 Mr Wilson, the RBI, was not joined as a defendant and therefore has not had the opportunity to be heard in respect of Mr Draper's applications.

7 This proceeding is one of several that Mr Draper has commenced that arise from the same history which I now summarise.

8 In June 2014, Mr Draper entered into a contract with Simonds Homes Victoria Pty Ltd ('Simonds Homes') to construct a house at Wallan. Mr Draper identified defects with the construction of the house and arranged for the VBA to inspect it. Mr Draper later commenced civil proceedings against Simonds Homes in the Victorian Civil and Administrative Tribunal (the 'Tribunal' or 'VCAT') and successfully sought relief in respect of those defects. The Tribunal's orders included:[1]

Pursuant to section 53(2)(g) Domestic Building Contracts Act 1995, the Respondent must rectify defective building works, by demolishing the existing slab, and laying a slab for the dwelling as enables the Finished Floor Level of the garage section of the slab to be 150 mm above a Finished Ground Level at the slab's western edge of RL98.58 metres, in accordance with Site Plan 1.1 signed by the Applicant on 5 June 2014.

9 In this proceeding and in three other proceedings,[2] Mr Draper has raised complaints about the VBA and the now-abolished Building Practitioners Board (the 'BPB'). Mr Draper has also raised concerns about the merits of decisions made by the VBA, the BPB and VCAT, as well as the regulation of the Victorian building industry.

10 The VBA issued the Show Cause Notice to the RBI at the same time as the Show Cause Notice to the RBS. The Show Cause Notice to the RBS proposed three grounds for disciplinary action. The Show Cause Notice to the RBI contained only the equivalent of the third ground in the Show Cause Notice to the RBS, although with some modifications.

11 In the Show Cause Notice, the VBA alleged that the RBI had contravened Building Regulation 1502(a) in connection with the frame completion inspection of the home. In issue was whether the inspected building was not compliant with the endorsed plans or inconsistent with the roof truss design. The Show Cause Notice stated:

The grounds for disciplinary action are as follows:

Ground 1: Approving frame inspection when design and construction of frame was not compliant and engineer's design instruction not provided.

...

On 14 August 2014, you contravened regulation 1502(a) of the Regulations because you approved the frame inspection in circumstances where the design and construction of the frame was non-compliant, and the direction to supply the rectification instruction from the engineer regarding the modification of the slab (item 28) had not been provided.

Your approval of the approved frame inspection falls below the standard expected of a reasonably competent and professional building inspector in the performance of your work on behalf of the RBS.

13 Regulation 1502(a), at the time of the Show Cause Notice, was:

A registered building practitioner must -

(a) perform his or her work as a building practitioner in a competent manner and to a professional standard...

14 The first two particulars of ground 1 of the Show Cause Notice alleged that '[t]he design of the roof truss did not allow for the additional loading for a solar hot water system'. It alleged that the design was not compliant with the endorsed drawings and specifications. There was no evidence that the frame/roof truss design was approved by the RBS. At the approved frame inspection, the frame construction displayed incomplete or non-compliant items.

15 The VBA considered the first two particulars together and decided that they had not been established. It concluded that the contents of an email from Timbertruss**,** the manufacturer of the truss**,** confirmed 'the speculation in the Collina report' that the weight of the solar collector panels had been incorporated into the engineering.[3]

16 The Show Cause Notice then alleged that 'at the approved frame inspection, the frame construction displayed incomplete or non-complaint items'. The first was the existence of large gaps in the hips/truss connections which were non-compliant. The VBA concluded that this allegation was not established.[4]

17 The next particular alleged that there were insufficient clout nails to secure the bracing for the ensuite wall. The VBA accepted that there was insufficient evidence to conclude that clout nails were missing from the speed bracing on the ensuite wall at the time of the RBI's frame completion inspection.

18 The next particular alleged that the bottom plate of the ensuite was excessively cut back and appeared cracked when unsupported by the slab. The VBA considered that this non-compliant item was of a very minor nature.

19 The next particular alleged that the roofing battens should have been installed before the frame stage was considered complete. The VBA accepted that the installation of roof battens was not required for the 'frame work' to be considered complete. The Building Code of Australia required that roof battens be installed in accordance with AS 1684 as part of the installation of roof cladding, not as part of the frame.

20 The next particular alleged that the 31 July 2014 frame inspection listed a defect noting an excessive slab of 50mm overhang beyond the bottom plate to the side of the garage and the second bedroom external walls referred to in Item 28 which needed to be cut back. The Show Cause Notice stated:

The approved frame inspection should not have been approved because the design did not comply with the endorsed plans, there were items which did not comply with the Regulations or the Timbertruss specifications, and the direction to provide the engineer's rectification design for modifying the slab was not provided.

21 The VBA accepted that this item had been attended to, although it maintained that it would have been preferable for the RBI's report of the complete inspection of the frame to have documented that Item 28 was complete because a determination was made not to cut the slab. However, the VBA accepted that such a determination had occurred.

22 The VBA concluded that the RBI contravened regulation 1502(a) in respect of the non-compliant item relating to the excessively cut back bottom plate on the external ensuite wall. However, the VBA regarded this as a very minor contravention. It was the only item remaining listed in the Show Cause Notice that had been established. As the RBI had not previously been the subject of the disciplinary action, the delegate did not take any disciplinary action against him.

23 For the reasons given in my judgment in S ECI 2020 03775, I consider that Mr Draper has standing to bring this proceeding.

24 Mr Draper's proceeding against the RBI raised twenty-two grounds, all of which, with only minor changes, were also raised in S ECI 2020 03774, concerning the VBA's decision regarding the RBS. The grounds that were unique to S ECI 2020 03774 and that were not raised in S ECI 2020 03775 were the tenth, eighteenth, and nineteenth grounds. Mr Draper also sought leave to add and rely on six additional grounds.[5]

25 Mr Draper's grounds included in his amended originating motion were:

1. Did the Victorian Building Authority (VBA) fail to exercise its powers in accordance with the law, where it failed to provide Mr. Draper proper notification of its decision, instead providing a 'complainant letter' that failed to include necessary information, frustrating the review process and causing Mr. Draper disadvantage, where the VBA was aware that Mr. Draper was awaiting these proper notice of the decisions so as to cause review?[6]
2. Did the VBA fail to exercise its functions in accordance with the law, where it refused to provide a 'Statement of Reasons' pursuant to s.8 Administrative Law Act, where it consistently and wilfully continues to frustrate administrative review processes, working to knowingly undermine the rights of persons affected by its decisions?[7]
3. Is s.183 Building Act compatible with human rights, existing jurisdiction and the common law, where parliament has enacted legislation (s.183 Building Act - Show Cause Process), which requires as part of the 'show cause process', that the VBA conduct its disciplinary proceedings in such a way that the accused is 'guilty until proven innocent'?[8]
4. Did the VBA make a legal error, where the VBA made a 'decision', stating in its show cause Notice (as per the requirements of the Act) that it intended to take disciplinary action, where it had also pre-determined the 'appropriate' penalty, prior to giving the parties to the dispute an opportunity to be heard, resulting in a failure to afford due process and a fair hearing in all of the circumstances?[9]
5. Did the VBA make a jurisdictional error, where making a decision regarding the compliance of certain building works (timber framing) and practitioner conduct, it failed to consider AS 4440 - Installation of nail plated timber roof trusses, being the relevant Australian Standard to be applied to the works the subject of the allegation?[10]
6. Did the VBA err at law, where it failed to uphold its duties and functions pursuant to s.197 (c) and s.197(d) Building Act, where it failed to participate in development of and monitor developments relevant to the regulation of building works, where the VBA's 'equivalent of reasons' shows that the decision-maker neglected to consider (monitor the effect of) AS 4440, the National (minimum) Standard for the installation of nail-plated timber roof trusses?[11]
7. Is the VBA continuing to err at law, where despite the VBA receiving clarification and expert advice confirming that roof battens are in fact considered part of the 'timber frame' from a NCC Technical Advisor, provided by Mr. Draper, the VBA continues to neglect to act to correct the notorious standard industry practice and enforce the National Standard, where this is evidence of a clear failure to exercise its functions under s.197 Building Act, as well as failing to achieve the purpose of the Act?[12]
8. Did the decision maker make a jurisdictional error, where they failed to consider the evidence and statements made by Mr. Draper, the complainant and a party to the dispute, taken over a number of days by the VBA during the investigation of the allegations by VBA Investigator Joanne Schmidt?[13]
9. Did the VBA make a jurisdictional error, where it failed to provide procedural fairness/equal treatment of both parties to the dispute and acted with bias, where the decision maker refused opportunity for Mr. Draper, the victim, to provide a personal impact statement, resulting in the failure to consider aggravating circumstances, where the offender was given opportunity to provide 'mitigating factors', which in turn formed the basis for the VBA not properly performing its disciplinary functions?[14]
10. Did the VBA err at law, failing to properly perform its functions pursuant to s.197(a) Building Act, where it arbitrarily applies the relevant building law, misusing its discretionary powers in a god like fashion, choosing what laws it wants to enforce, where discretion should be limited to penalty matters and what level of action is required?[15]
11. Did the VBA err at law, when it applied current legislation to the circumstances of Mr. Draper's complaint, where the law and disciplinary regime and liability to conduct 'public' disciplinary proceedings was significantly modified by the amended legislation, which the VBA retrospectively applied to the matter, despite the offending occurring under the 'old provisions'?[16]
12. Did VBA staff err at law, where they neglected to act in accordance with s.7 Public Administration Act (Public sector values), when failing to provide high quality services, failed to identify and promote best practice, failed to be open and transparent in their dealings, failed to use powers responsibly, failed to make decisions and provide advice on merit without favouritism and bias, failed to act fairly by considering all relevant facts and fair criteria, failed to implement policy equitably, failed to accept responsibility for decisions and actions, failed to achieve best use of resources, failed to submit themselves to appropriate scrutiny, lack leadership in promoting and supporting the Public Sector Values and failed to make its decisions and provide advice consistent with human rights, where fair hearings and due process are neglected?[17]
13. Did the VBA err at law when it failed to exercise its powers and perform its duties in accordance with the law, where s.1 Building Act declares that (one of) the main purposes of the Act is to; (c) provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; where it took the VBA almost 5 years to address known non-compliance by Mr. Wilson, after which they refused to enforce the law, apply the relevant penalties for non-compliance and recoup the cost and loss caused by the need to investigate the proven non-compliance?[18]
14. Did the VBA err at law, where it considered an e-mail from a conflicted Timber Truss employee as relevant evidence, without verifying the source or the relevant qualifications of the source, being an email solicited by the offender 5 years after the fact, while neglecting to properly consider the 'approved' design documents which clearly stated contrary to the e-mail relied upon by the VBA, that the roof design did not include the Solar water collectors or the evaporative cooling unit? [19]
15. Did the VBA make a jurisdictional error, where it asked itself a wrong question, asking itself if the roof was designed to include only the loading of the solar hot water collectors, failing to address the evidence which showed that a larger load caused by the installation of the evaporative cooling unit was also not included in the engineering design?[20]
16. Did the VBA make a jurisdictional error, where it neglected to consider all available evidence produced by the persons who are legally responsible for the design and certification of the timber frame, being MiTek engineers (the software developer) which could also include the person who inputs the necessary data into the computation software, which shows the decision maker to have failed to make its own independent assessment of the engineer's advice and the relevant design computations instead rely blindly on unverified comments made by manufacturing staff, not the engineers who certify the design?[21]
17. Did the VBA err at law, where it relied on evidence from an unsuitably qualified person whose reckless unauthorised directions caused the timber frame to no longer be consistent with the design documents, approved with the Building permit, despite the decision maker recognising that no proper evidence was provided with the opinion that the changes were permitted (variation to contract) or would achieve compliance with the performance provisions of the NCC? [22]
18. Did the VBA make a jurisdictional error, where it neglected to consider the findings made in civil proceedings (Draper v Simonds Homes) (Draper vs BPB), despite VBA policy/literature stating that VCAT rulings can be a relevant consideration when performing its disciplinary functions? [23]
19. Did the VBA err at law, where its reasons for its decision are illogical, being that it considered the 'clean record' of the practitioners to be a mitigating factor and reason not to take action, yet proceed to acknowledge that although Mr. Wilson is accepted by the decision-maker as being guilty of non-compliance and unprofessional conduct, he will continue to have a clean record, indicating that a 'clean record' is not reliable evidence that the person has not been found guilty of unprofessional conduct and non-compliant works in the past?[24]
20. Was the decision of the VBA so unreasonable that no other competent decision maker could make the same decision such that it constitutes an error of law, being that the practitioners were both found guilty of unprofessional conduct and breaches of the Act, significant cost to the agency in conducting investigations was incurred, Mr. Draper's home had to be demolished due to the failures by Mr. Wilson to properly address compliance issues, yet the VBA still refused to exercise its disciplinary functions and take action to protect the industry and consumers from these non-compliant practitioners and to discourage the behaviour?[25]
21. Did the VBA err at law, where its actions and decision were so unreasonable that no other competent decision maker would act in such a way, where despite VBA Inspector Jon Weijers, the inspector who inspected building works having provided evidence and opinion of non-compliance which was tested and addressed in VCAT proceedings, evidence was sought by unknown actors from a Mr. Collina (who had no involvement in inspections or other proceedings), prior to investigations even commencing, so as to be able to added to the investigation file and contradict Mr. Weijers reporting and testimony, which due to correction made under oath before VCAT, was unfavourable to the practitioners whom the VBA was seeking to protect as well as Mr. Weijers exposing the VBA's negligence regarding AS4440 and the Building Code of Australia?[26]
22. Did the decision maker make a jurisdictional error, where it considered unlawfully varied contract documents as evidence to support compliance, where the issue of unlawful variations to plans and contract documents had been addressed by higher authority, declaring that the documents which had the FFL added in without proper variation procedures giving Mr. Draper right to object, were unlawfully varied and were therefore not part of the contract and must have no legal effect? [27]

26 I have considered all of Mr Draper's grounds on which he relies in this proceeding in my reasons given in S ECI 2020 03774, and adopt those reasons as my judgment in this proceeding.

27 I also adopt my reasons for refusing leave to add the additional 6 grounds upon which Mr Draper sought to rely and which are set out in my judgment in S ECI 2020 03774.

28 For the reasons given in S ECI 2020 03774, I have reached the conclusion that Mr Draper has not established any of the grounds upon which he relies in this proceeding.

30 I will give the parties an opportunity to make written submissions about the costs of the proceeding.

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

[2] The judgments in the other three proceedings are Draper v Victorian Building Authority [2022] VSC 485, Draper v Victorian Civil and Administrative Tribunal & Ors [2022] VSC 486 and Draper v Victorian Building Authority [2022] VSC 487.

[3] Victorian Building Authority, Notice of Decision Ending Show Cause Process Without Action (VBA REF: PDU/7/3109), [24].

[5] These proposed additional grounds are discussed beginning at [187] of Draper v Victorian Building Authority [2022] VSC 487.

[6] The equivalent ground in S ECI 2020 03774 (ground 1) is discussed beginning at [44] of Draper v Victorian Building Authority [2022] VSC 487.

[7] The equivalent ground in S ECI 2020 03774 (ground 2) is discussed beginning at [44] of Draper v Victorian Building Authority [2022] VSC 487.

[8] The equivalent ground in S ECI 2020 03774 (ground 3) is discussed beginning at [53] of Draper v Victorian Building Authority [2022] VSC 487.

[9] The equivalent ground in S ECI 2020 03774 (ground 4) is discussed beginning at [53] of Draper v Victorian Building Authority [2022] VSC 487.

[10] The equivalent ground in S ECI 2020 03774 (ground 5) is discussed beginning at [68] of Draper v Victorian Building Authority [2022] VSC 487.

[11] The equivalent ground in S ECI 2020 03774 (ground 6) is discussed beginning at [68] of Draper v Victorian Building Authority [2022] VSC 487.

[12] The equivalent ground in S ECI 2020 03774 (ground 7) is discussed beginning at [68] of Draper v Victorian Building Authority [2022] VSC 487.

[13] The equivalent ground in S ECI 2020 03774 (ground 8) is discussed beginning at [78] of Draper v Victorian Building Authority [2022] VSC 487.

[14] The equivalent ground in S ECI 2020 03774 (ground 9) is discussed beginning at [83] of Draper v Victorian Building Authority [2022] VSC 487.

[15] The equivalent ground in S ECI 2020 03774 (ground 11) is discussed beginning at [173] of Draper v Victorian Building Authority [2022] VSC 487.

[16] The equivalent ground in S ECI 2020 03774 (ground 12) is discussed beginning at [59] of Draper v Victorian Building Authority [2022] VSC 487.

[17] The equivalent ground in S ECI 2020 03774 (ground 13) is discussed beginning at [179] of Draper v Victorian Building Authority [2022] VSC 487.

[18] The equivalent ground in S ECI 2020 03774 (ground 14) is discussed beginning at [179] of Draper v Victorian Building Authority [2022] VSC 487. This ground in S ECI 2020 03774 refers instead to Mr Giambattista but is otherwise identical.

[19] The equivalent ground in S ECI 2020 03774 (ground 15) is discussed beginning at [93] of Draper v Victorian Building Authority [2022] VSC 487.

[20] The equivalent ground in S ECI 2020 03774 (ground 16) is discussed beginning at [105] of Draper v Victorian Building Authority [2022] VSC 487.

[21] The equivalent ground in S ECI 2020 03774 (ground 17) is discussed beginning at [116] of Draper v Victorian Building Authority [2022] VSC 487.

[22] The equivalent ground in S ECI 2020 03774 (ground 20) is discussed beginning at [138] of Draper v Victorian Building Authority [2022] VSC 487.

[23] The equivalent ground in S ECI 2020 03774 (ground 21) is discussed beginning at [144] of Draper v Victorian Building Authority [2022] VSC 487.

[24] The equivalent ground in S ECI 2020 03774 (ground 22) is discussed beginning at [159] of Draper v Victorian Building Authority [2022] VSC 487. This ground in S ECI 2020 03774 refers instead to Mr Giambattista but is otherwise identical.

[25] The equivalent ground in S ECI 2020 03774 (ground 23) is discussed beginning at [159] of Draper v Victorian Building Authority [2022] VSC 487. This ground in S ECI 2020 03774 refers instead to Mr Giambattista and addresses his failure 'to properly oversee compliance issues' rather than 'to properly address compliance issues', but is otherwise identical.

[26] The equivalent ground in S ECI 2020 03774 (ground 24) is discussed beginning at [159] of Draper v Victorian Building Authority [2022] VSC 487.

[27] The equivalent ground in S ECI 2020 03774 (ground 25) is discussed beginning at [150] of Draper v Victorian Building Authority [2022] VSC 487.