Plaintiff v First Defendant

HUMAN RIGHTS - Right to equality - Right to a fair hearing - Charter of Human Rights and Responsibilities Act 2006 ss 8, 24.

1 The plaintiff, Mr Shannon Draper, seeks an order that the first defendant, the Building Practitioners Board ('Board'), provide him with a further statement of the reasons for its decision of 19 November 2018, which determined allegations about building work performed for him by Simonds Homes Pty Ltd ('Simonds Homes') under a contract to build a house at Wallan. The allegations stemmed from a complaint by Mr Draper about the building work. He contends that the Board's reasons provided to him were inadequate. He sought further reasons by originating motion relying on the Administrative Law Act 1978 ('ALA') and the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').

2 The Board entered a Hardiman appearance[1] and the second defendant was the contradictor. As is later explained, under current legislation decisions of the Board are taken to be decisions of the Victorian Building Authority ('VBA').

3 In summary, I have decided that Mr Draper is a 'person affected' by the Board's decision to issue the reasons in the form that they did and with the delay that occurred, but that the reasons were not inadequate to enable a court to determine whether they involved an error of law. Further, Mr Draper has not established any breach of his Charter rights relevant to the adequacy of the reasons that would entitle him to any remedy. The proceeding must be dismissed.

4 Mr Draper's complaint arose from a building contract dispute with Simonds Homes, with whom he made a contract on 5 June 2014 for the construction of a dwelling on his property in Wallan. Mr Draper raised issues about the construction of the dwelling, and the dispute ultimately led to a proceeding in the Victorian Civil and Administrative Tribunal. VCAT delivered its decision on 29 April 2016, requiring rectification of defective building works, demolition of an existing slab and the laying of a new slab.[2]

5 At about the same time as his proceeding in VCAT, on 9 February 2015, Mr Draper lodged a complaint with the Board against Mr V Simonds, the principal director of Simonds Homes.[3]

6 On 18 March 2015, the Board responded to Mr Draper confirming that pursuant to s 177 of the Building Act 1993 ('Building Act' or 'Pre-amendment Act'), it had appointed a person engaged by the VBA to assess the matters raised by him. At that time, s 177 of the Building Act stated:

177 Preliminary assessment

(1) The Building Practitioners Board may appoint a person to report and make recommendations to it on whether or not it should hold an inquiry into the conduct or ability to practise of a registered building practitioner.

(2) The appointment may be made on the initiative of the Board or after the Authority has referred a matter to the Board or a person has requested the Board to hold an inquiry.

(3) The appointed person must investigate the matter referred by the Board, and report and make recommendations to the Board in accordance with the terms of the appointment.

7 The investigator recommended that an inquiry be conducted pursuant to s 178 of the Building Act. On 2 March 2016, the Board notified Mr Draper that it had determined to undertake a conduct review into Mr Simond's conduct. On 11 May 2016, following the conduct review, the Board notified Mr Draper that it would not continue with a s 178 inquiry into Mr Simond's conduct ('May Decision').

8 Mr Draper, being dissatisfied with this outcome, commenced a proceeding in VCAT pursuant to s 182A(3)(b) of the Building Act seeking a review of the May Decision. Section 182A(3)(b) of the Building Act then provided:

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 refusal by the Board to conduct the inquiry.

9 The Tribunal reviewed the decision of the Board in August 2017 and on 15 September 2017 published its decision and made orders to the following effect:

1. The decision of the [Board] dated 11 May 2015 is set aside.

1. The Tribunal determines pursuant to s182A of the Building Act 1993 that an inquiry be conducted under s 178 of the Building Act 1993 into the professional conduct of [Mr] Simonds.
2. Liberty to apply on the question of costs.[4]

10 The Building Legislation Amendment (Consumer Protection) Act 2016 ('Amendment Act') came into full effect on 1 September 2016. As a result of transitional provisions, Mr Draper's application, that had been initiated prior to the commencement of the Amendment Act, remained governed by the Building Act in its pre-amendment form.

11 Under the Amendment Act, the Board's powers, functions and responsibilities were transferred to the Victorian Building Authority, including the power to undertake a s 178 inquiry. Sections 177 to 187 of the Building Act were replaced with new provisions and the right to review a decision of the Board at VCAT pursuant to s 182A was replaced by s 186 which provides that:

(1) An affected person who has applied for an internal review of a reviewable decision under Subdivision 2 and is dissatisfied with the review decision may apply to VCAT for review of the review decision.

(2) An affected person who was not eligible to apply for an internal review of a reviewable decision may apply to VCAT for review of the reviewable decision.

12 However, unlike the old s 182A, the post-amendment Building Act did not provide a right to apply to VCAT for review of the Board's refusal to conduct an inquiry. But Mr Draper was still entitled to have the Board's refusal to conduct an inquiry reviewed by VCAT, he did so and VCAT made the orders that I have mentioned.

13 The Board was slow to commence the s 178 inquiry pursuant to VCAT's order and in May 2018, dissatisfied by the Board's conduct, Mr Draper again sought VCAT's assistance to enforce the orders made in its May Decision by requesting that a certificate issue under s 122 of the VCAT Act, to enforce the order that the Board conduct an inquiry.

14 The Principal Registrar of the Tribunal refused to issue the certificate because, according to correspondence dated 6 July 2018:

[T]he 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 s 122.[5]

15 The letter of 9 May 2018 referred to provided reasons why the inquiry had been delayed and stated that it was anticipated that the inquiry would be likely to occur in June or July 2018.

16 On 10 July 2018, Mr Draper filed a fresh application in VCAT to review the Board's May Decision. The form required him to identify the statutory provision under which the application was brought. He wrote:

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.[6]

17 At the time Mr Draper filed his application, s 182A(3)(a) no longer existed.

18 On 8 August 2018, the Principal Registrar rejected Mr Draper's application and by letter confirmed that:

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.[7]

19 On 13 August 2018, Mr Draper commenced an application seeking review of the decision of the Principal Registrar refusing to accept his new application. On 26 September 2018, the Tribunal heard the application and affirmed the decision of the Principal Registrar.[8]

20 On 19 November 2018, over three and a half years after Mr Draper first sought the Board's intervention, the s 178 inquiry into Mr Simond's conduct occurred. A notice of the Board's decision was issued on 20 November 2018.

21 The chronology of Mr Draper's request for reasons is as follows. On 11 December 2018, he sent an email to the Board requesting a statement of reasons for its decision, citing ss 45 and 46 of the VCAT Act and s 8 of the ALA. On 28 December 2018, the VBA responded stating that it would not be providing a response until mid-February 2019 at the earliest due to the Christmas period. Mr Draper sent two follow-up emails foreshadowing further action on 12 February 2019 and 4 March 2019. On 5 March 2019, 80-days after the initial request, the VBA provided him with a statement of reasons. But he did not receive documents referred to in the reasons, including counsel assisting's outline of submissions. He only received those submissions as an exhibit to a VBA affidavit filed in May 2020.

22 On 13 March 2019, Mr Draper filed a further application in VCAT seeking review of the decision of the Board of 20 November 2018 determining the s 178 inquiry. This application again listed the old s 182A(3)(c) of the Building Act. A Senior Member determined that Mr Draper was entitled to bring the application under the pre-amendment Building Act by virtue of the transitional provisions.[9]

23 But, Mr Draper's application was made out of time and the VBA opposed an extension. The Senior Member acknowledged that there were circumstances supporting an extension of time, including Mr Draper's need to wait for the reasons before deciding whether to make the application. But he was persuaded not to grant an extension by the fact that Mr Draper was not a party to the disciplinary proceeding and that the subject of the review would be of limited scope, given that Mr Simonds had admitted most of the charges and the parties to the inquiry, Simonds Homes and the VBA, did not want a review.

The appropriate way for the matters raised by Mr Draper to be pursued is through an investigation by the Ombudsman, or other personal body with authority to investigate the carrying out of statutory functions by agencies more broadly. The Tribunal does not have a supervisory role of that type. I note Mr Draper's statement that the Ombudsman is already investigating this matter at his request.[10]

25 VCAT's decision is of added significance because many of the matters that Mr Draper raised in this proceeding would more appropriately have been raised in a VCAT review or a judicial review proceeding and not in this application for a further statement of the Board's reasons.

Board's reasons for decision of 20 November 2018

26 The Board provided reasons of 14 pages together with two appendices of another six pages. They contained a summary of the method by which the hearing was conducted, including acknowledgement of counsel assisting the Board and the fact that Mr Simonds was represented; confirmation of the evidence received; a summary of the allegations and preliminary matters concerning those allegations; a summary of Mr Simonds' plea of guilty to six of the seven allegations; a summary of the Board's findings on each allegation, all of which were findings of guilt; findings with respect to the final allegation to which Mr Simonds entered a plea of not guilty; discussion of the appropriate penalty and reasons for the penalties imposed. The penalties were a reprimand, a fine of $3,464.64, plus costs of $14,429. The reasons also annexed the amended notice of inquiry and counsel assisting's evidence matrix. Mr Draper was provided with the 14 pages of reasons in March 2019.

27 Mr Draper's case is that the Board's reasons were grossly inadequate and did not explain its reasoning processes. The reasons were inadequate for a court to consider if any error of law had been made as the ALA requires. He seeks a concise statement of the evidence that the Board considered in making its decision and noted that its reasons did not refer to the extensive brief of evidence that was before it. He criticised aspects of the reasons and said that the Board had misrepresented allegations and issues that required further investigation. He criticised the Board's conclusions about the roof design and trusses. He also criticised the submissions of counsel assisting the Board and noted that counsel's oral submissions were not properly reflected in the Board's reasons. The Board had been incorrectly informed in submissions by counsel assisting that he had declined to sign a statement of his evidence, when no statement was ever taken.

28 Mr Draper seeks an adequate statement of reasons to be provided by the Board or VBA for the decision made on 20 November 2018 pursuant to s 8(4) of the ALA which empowers this Court to order a tribunal to issue a statement of reasons or a further statement of reasons. The relevant sections of the ALA state:

1. Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

...

(3) The statement of reasons shall be in writing and furnished within a reasonable time.

(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.

(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.

29 As the Board provided reasons to Mr Draper in March 2019, he can only obtain an order for further reasons under s 8(4) if he establishes that he is a person affected by the decision made and that the reasons already provided do not 'enable a Court to see whether the decision does or does not involve any error of law'. Section 8 of the ALA does not permit a declaration to be made about the timing of publication and preparation of the reasons already furnished. There is no time limit on requesting further reasons, but the Court in exercising the discretion to order further reasons may take into account any delay that has occurred.

30 Mr Draper described his complaints, not just about the Board's reasons, but about its relationship with the VBA and what he said was its lack of independence. He contended that the Board did not act independently and counsel assisting was instructed by the VBA. He considered that there had been no valid s 178 inquiry as the VBA was not authorised to investigate matters on behalf of the Board. He considered that the Board's hearing in November 2018 was unsatisfactory, in particular he pointed to aspects of the submissions of counsel assisting. His evidence was not before the Board and counsel's submissions wrongly stated that he would not sign a statement of his evidence. He also raised procedural matters, arguing that the Board's decision was not properly authenticated and not signed by the Board members and the Registrar. He also said that the VBA had discriminated against him, by treating him differently from other litigants by opposing his application in VCAT for a review of the Board's decision of 20 November 2018.

31 Pursuant to a direction, Mr Draper filed submissions to clarify the relief or remedy that he seeks. He saw the core issue in dispute as whether or not the statement of reasons provided to him in March 2019 was adequate for a court to consider if any errors of law had been made.

32 Mr Draper submitted that when acting on behalf of the Board, without proper authority, the VBA refused to provide a statement of reasons within the time required by the law and severely disadvantaged him. The VBA refused to comply both with s 46 of the VCAT Act which obliged it to provide reasons within 28 days after a request was made, but then it refused to comply with s 49 which required an applicant to be provided with materials by the decision maker. VBA had wrongly submitted that he had abandoned his claim for further reasons. The reasons he received were dated two months after the hearing, rather than the same day of the hearing as in other cases. Even then, only in March 2019, was he provided with the reasons but was not given the two appendices.

33 The VBA submitted that Mr Draper's real purpose was to seek a general inquiry into the conduct of the Board and the VBA. He had unsuccessfully sought an extension of time in VCAT to review the Board's decision.

34 The Board's reasons were adequate and set out the findings that it did make. It was not obliged to do anything more. It could not be dictated to and told to consider other material or make findings about them.[11]

Issue 1(a) - Does Mr Draper have standing under the ALA?

35 To obtain the relief sought, Mr Draper must first demonstrate that he is a 'person affected'. Person affected is defined in s 2 of the ALA as:

in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal.

36 The VBA submitted that Mr Draper was not a person affected and accordingly did not have standing under s 8(4) of the ALA. He did not have an interest above that of the general public because he no longer owned the Wallan property and has already obtained civil remedies. It relied on the decision of the High Court in Australian Conservation Foundation v Commonwealth[12] for the principle that a person is not interested, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.[13]

37 Mr Draper submitted that by virtue of the Board hearing his complaint and publishing and providing reasons it had accepted that he was a person affected by the decision and has standing under the ALA. He also made submissions in reference to Part 33 of the Building Practitioners Board Inquiry Manual which states that 'a person affected could, depending on the circumstances of the inquiry, be ... the complainant'.[14]

38 In Charlton v Members of the Teachers Tribunal, McGarvie J considered the meaning of the phrase 'substantial degree' in the ALA and used words such as 'considerable, big or weighty', and 'being more than trifling' when framing the concept of 'substantial'.[15] Ultimately, his Honour considered it unnecessary to decide the precise test for and definition of 'substantial degree'.

39 I consider that Mr Draper is a person affected by the Board's decision as defined in s 2 of the ALA. He made the complaint that led to the Board's hearing and decision and under the pre-amendment legislation was entitled to seeks a review in VCAT. He sought a review, but was not granted an extension of time. The then s 182A(3)(b) treated him as a person affected because he was the person who requested the Board to conduct an inquiry.[16] He was therefore entitled to bring this application for further reasons.

40 To obtain relief, Mr Draper must satisfy the Court that, pursuant to s 8(4) of the ALA, the reasons already provided are 'not adequate to enable a Court to see whether the [VBA's] decision does or does not involve any error of law'.

41 At the inquiry, Mr Simonds pleaded guilty to six of the seven allegations. The Board provided reasons for the penalty that it imposed. They describe the legal principles of sentencing, consider aggravating and mitigating circumstances, assessed the antecedents of the practitioner and provided detailed reasons of several factors which weighed on their decision. The reasons in respect of those six allegations were adequate, bearing in mind that they were admitted. The Board referred to, and appended to its reasons, the Amended Notice of Inquiry which described the allegations in detail. The Board noted on page 13 that:

Fine

Fines serve as a general and specific deterrent to all Practitioners to ensure that they comply with the professional requirements and obligations of Registration.

The Panel consider that fines are an appropriate penalty in this case.

The basis of the system of Practitioner registration in Victoria is founded on the need to ensure fairness and confidence in the building professions and to provide consumer protection.

In the view of the Panel, the Practitioner's actions, in relation to the proven allegations, significantly impacted the home owner and these actions required the application of specific deterrent in the form of a fine.[17]

42 Mr Simonds pleaded not guilty to allegation three, but the Board found him guilty of it. It gave the following reasons for that finding:

The evidence for the Board to consider in this matter is limited, particularly as the frame was later demolished. Differing photographs and observations of this alleged breach were recorded by Mr Weijers, Mr Sherriff and Mr Draper. However, the information from Messrs Weijers and Sherriff was recorded at a time well after the frame had been erected and Mr. Draper's photographs were recorded soon after the completion of the frame.

Notwithstanding this, apparently defective notching of the bottom plate was able to be seen in the photographs by Mr Draper and the Board felt that this evidence was compelling.

The opinion of Counsel for the Practitioner suggested that, even if the notching did occur, the level of breach could not be considered as more than minor in relation to the frame as a whole. This opinion was also supported by Counsel Assisting the Inquiry.

Having considered the evidence, the Board was satisfied, to a requisite standard of proof, that despite being minor in nature, the breach was sufficiently made out, to find that the Practitioner was guilty of Allegation 3c(v).[18]

43 Counsel for the VBA submitted that the reasons were adequate and identified why the Board reached its conclusion. Section 8(4) of the ALA did not require the Board to discuss all the evidence in respect of each of its findings. He relied on the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf ('Yusuf').[19]

44 Mr Draper submitted that the reasons showed that the Board had failed to consider the volumes of evidence and did not reveal the evidence it relied on in reaching its decision about allegation three. In oral submissions, he pointed out that there was no reference to an investigation report by Ms J Schmidt, a VBA investigator.[20] The Board's reasons were insufficient to permit this Court to identify any error of law.

45 To satisfy s 8 of the ALA, reasons must enable the Court to see whether the decision does or does not involve any error of law. The High Court decision in Yusuf in dealing with a requirement of the Migration Act 1958 (Cth) stated:

[Section] 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. ... A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.[21]

46 The Board was neither required to give reasons for findings that it did not make, nor was obliged to make. But, it did furnish reasons which set out the findings that it did in fact make and which it considered material to the decision, namely, the conclusions of fact about the allegations that it reached. It did not have to assess other evidence or provide any written reasons concerning additional evidence. There was no obligation to provide details of why evidence was not taken into account.

47 The Board's reasons, in my opinion, were sufficient and adequate to enable a court to see whether or not the decision involves any error of law. They contained the following features: (1) an acknowledgement of the evidence relevant to findings of facts, including the photographs; (2) a discussion of the probity of the evidence as a result of the passage of time; (3) which evidence was preferred; (4) conclusions about Mr Simond's conduct; (5) an acknowledgement of competing arguments raised by counsel for Mr Simonds and counsel assisting the inquiry; and, (7) a conclusion of fact about the allegation.

48 Indeed, Mr Draper was able to identify what he contended were errors of law in the reasons, including a failure to consider significant matters.

49 Mr Draper did not receive the Board's reasons until March 2019. They were not put into written form until January, two months after the hearing. The explanation given for not providing them to him at an earlier time was that the VBA considered that, based on an earlier VCAT decision, Mr Draper did not have a right to seek review of the decision before VCAT.[22] But as VCAT held, he did have that right under s 182A of the Pre-amendment Act. He should have been provided with the reasons soon after the Board's decision on 20 November 2018.

50 Mr Draper said that he did not receive the submissions of counsel assisting until about a month before this proceeding was heard, when he received exhibits to a VBA affidavit. The reasons of 14 pages had six pages of annexures, being Appendix A and B. On page 2 of the reasons two statements appear. First, that Appendix A as counsel assisting's submissions was included in the document as Appendix A and secondly, that an Appendix to the Decision was the Amended Notice of Inquiry, the contents of which was described in the reasons. On page 5 of the reasons, the Board stated:

Counsel Assisting provided a written submission in the form of an Evidence Matrix, detailing matters within the Brief of Evidence that supported the assertions of breaches within the (remaining sections of) Allegation 3. (A copy of the submission is included in this document as Appendix B.)[23]

51 The submissions of counsel assisting that Mr Draper only received a month or so before the hearing are eleven pages in length. Therefore, I am satisfied that they did not form an Appendix to the reasons for decision and that the first statement on page 2 of the Reasons, to which I have referred, that they were Appendix A was incorrect. VBA's counsel stated that Mr Draper 'was provided right from the outset' with Appendix A, being the Amended Notice of Inquiry and Appendix B, being the Matrix of Facts.[24] He was also provided with the transcript of the hearing.[25]

52 I find that Mr Draper did receive a complete copy of the Board's reasons, both the 14 main pages and, at an earlier point, the documents that were contained in the two appendices. I do however accept that the statements on page 2 of the reasons were likely to cause confusion as to the content of Appendix A.

Issue 1(c) - Should the Court exercise its discretion to refuse relief in any event?

53 Although I have concluded that the reasons were adequate, I will continue and consider, whether in any event, I would have refused to order a further statement of reasons on discretionary grounds. The VBA argued, in the alternative, that the Court as a matter of discretion should not order the Board to provide a further statement of reasons. It referred to Lewenberg v Victoria Legal Aid ('Lewenberg')[26] where the Court exercised its discretion, and refused to make an order under s 8(4) of the ALA.[27]

54 While there is no time period specified to bring a s 8(4) application, the VBA referred to Byrne v The Legal Services Commissioner ('Byrne') where Ashley JA, stated:

Ordinarily, one would expect expedition on the part of the person affected by a decision; and it should be expected that the Supreme Court would not give tacit approval to delay by exercising its discretion under s 8(4) to order further reasons.[28]

55 The VBA argued that Mr Draper did not act expeditiously in bringing this application, as this proceeding was commenced almost seven months after he was provided with a statement of the Board's reasons for decision. Delay is a relevant consideration on which the Court can refuse judicial review remedies. But Mr Draper did seek further reasons before commencing this proceeding.

56 The authorities support the proposition that an application under s 8(4) has to be made within reasonable time after a request for a failure to provide reasons.[29] Mr Draper was provided with the Board's statement of reasons on 5 March 2019 and he commenced this proceeding almost seven months later, on 4 October 2019.

57 As a matter or discretion, I would not have ordered the Board to provide further reasons in any event. Two of the three Board members who made the decision on 20 November 2018 are no longer members, so further reasons could not be granted and two years have passed since the inquiry hearing. The passage of time would have led me to refuse to order a further statement of reasons.

58 However, I do not consider that any other discretionary consideration advanced by the VBA was persuasive. Nor would the matters contained in s 8(5) of the ALA have been determinative, as if I had otherwise thought it was appropriate to order a further statement of reasons, I would not have considered that the interests of Mr Simonds were a reason to refrain from doing so.

59 The VBA referred to the decision in Kuek[30] in which the Court exercised its discretion to refuse to permit the filing of a summons, as the relevant decision-making body had been disbanded, meaning there was no existing entity from whom the Court could order reasons pursuant to s 8(4). In Kuek, the decision making body had no successor in title or function.[31] Although, the Board has the VBA as a successor, as two members of the three-member Panel are no longer appointed, the ordering of further reasons pursuant s 8(4) could not be implemented.

Issue 1(d) - Is Mr Draper entitled to any remedy?

60 Mr Draper seeks two remedies. First, he desires this Court to order the Board to furnish a further set of reasons on the basis that those previously provided are inadequate. Secondly, he seeks declaratory relief that the statement of reasons issued is inconsistent with the Board's status as a model litigant given the delay in providing them.

61 With respect to the latter, the VBA submitted that Mr Draper has not identified in his originating motion the source of the Court's power to grant such a declaration. I do not accept this submission, as the Court has power to grant declaratory relief.[32]

62 I have found that the reasons were sufficient to enable this Court to see whether the Board's reasons involved any error of law. Therefore, the preliminary condition to order the VBA to furnish further reasons has not been triggered and this Court cannot order further reasons be provided. I do not consider that as the focus of this proceeding is on the adequacy of reasons, I should grant any declaratory relief. For similar reasons, it is not appropriate to make any declaration in this proceeding about the VBA's submissions in the VCAT decision in 2019 refusing Mr Draper an extension of time to commence a review.

Mr Draper's other submissions about the Board's inquiry

63 Mr Draper identified a number of 'jurisdictional' issues with Board's s 178 inquiry. These were not grounds contained in his originating motion. While I permitted him to put these submissions, but they can only be considered if they relate to the adequacy of the reasons. The Court is not hearing a judicial review application, let alone conducting a review of the Board's handling of Mr Draper's complaint against Mr Simonds.

64 Mr Draper's submissions about the lack of independence of the Board and the role of counsel assisting it, do not relate to the adequacy of reasons. They were more about whether the Board acted within power. That issue at best could be raised in a judicial review application. They cannot be raised in this proceeding.

65 As the VBA submitted, Mr Draper's submissions were really judicial review submissions. He was well out of time for making such an application, whether it was under the ALA or under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.

66 However, I do consider it appropriate to consider Mr Draper's submissions that concern the Board's reasons provided to him. He relied on the fact that the Board members did not sign the reasons as was required and that he was sent a copy of them by the Registrar of the VBA. These matters do concern the adequacy of the reasons, on a broad view of that issue.

67 The VBA submitted that the inquiry into Mr Simond's conduct occurred under s 178 of the old Act, and the Board's power ended when it made the decision. The obligation to provide notice of the decision was in s 182(1) of the old Act which stated:

Without delay after the Building Practitioners Board makes a decision on an inquiry, the Registrar must give written notice of the decision to ... (c) any person who requested the Board to hold the inquiry.

68 The VBA also relied on cl 4(2)(a) of sch 8 of the transitional provisions to demonstrate that it was required to communicate the outcome of the decision.[33]

69 Clauses 4(1) and (2) of the transitional and savings provisions relating to the Building Legislation Amendment (Consumer Protection) Act 2016 of the Act state:

4 Proceedings - Building Practitioners Board

(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.[34]

70 Mr Draper sued the VBA as the second defendant and it was the proper contradictor. It has responsibility under the current Building Act for administering the registration of building practitioners. Clause 4.2 of the transitional provisions provided that the inquiry decision was a decision of the VBA. After 1 September 2016, decisions of the Board were decisions of the VBA.

71 But, given the transitional provisions, once the Board made a decision, it was deemed to be a decision of the VBA that was required to take the next step of communicating the decision.

72 In any event, whether or not the notice and the reasons were properly provided any defect would not invalidate the Board's decision. The Registrar of the Board was a member of the staff of the VBA.

73 I accept the VBA's submissions about the effect of the transitional provisions.

74 In any event, the requirement for the reasons being authenticated provided for by cl 11 of sch 3 was purely permissive. It provides:

11 Authentication of documents

(1) A document required or authorised to be prepared by a Board must be taken to be authenticated by the Board if -

(a) in the case of a document of a panel of the Building Appeals Board, it is signed by the Registrar of the Building Appeals Board and either the chairperson of the panel or the chairperson of the Building Appeals Board; or

(b) in any other case, it is signed by the chairperson or deputy chairperson of the Board and the Registrar of the Board or another person employed for the purposes of this Act and designated by the Board for that purpose.

(2) The production of a document purporting to be a copy of a record of an act or decision of a Board and purporting to be signed by the Registrar is evidence and, in the absence of evidence to the contrary, is proof that a decision in those terms was duly made by the Board or that the stated act was duly done by the Board.

75 It does not establish the only way in which the document may be authenticated. Mr Buchanan's affidavit filed on behalf of the VBA proved that the reasons provided to Mr Draper were the reasons of the Board.

76 Procedural rules are rarely so significant that their breach should result in the invalidity of a decision. The procedural error must be jurisdictional for it to have that effect. This was a permissive provision and there is no indication that failure to comply with its requirements rendered the decision invalid.[35]

77 Mr Draper made extensive submissions relying on rights under the Charter of Human Rights and Responsibilities Act ('Charter').[36] These arguments were only relevant insofar as they had a connection to the adequacy of reasons contention. He had served a Charter notice, but there was no intervention as a result of it.

78 Having received those submissions, it is my task to decide what relevance they have to the issues in this proceeding. It has to be kept in mind that this proceeding is not a review of the Board's and VBA's dealings with Mr Draper, but concerns his claim that the Board provided him with inadequate reasons.

79 The VBA submitted that given that Mr Draper's Charter claims are not accompanied by, or sustainable by, non-Charter claims of unlawfulness, s 39 of the Charter prevents him seeking Charter remedies.

80 Section 39(1) of the Charter states:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

81 Section 39(1) refers to an act or decision of a public authority. In this case, the claimed unlawful act is the Board providing him with inadequate reasons. To be able to be taken into account, the Charter breaches he asserts must relate to the argument that the reasons provided by the Board were inadequate. The only act or decision that can be considered for the purposes of considering breaches of Mr Draper's Charter rights is the act of the Board in providing reasons to him.

82 I have concluded that the Board's reasons were adequate, but Mr Draper was not provided with the two appendices when given the 14 page reasons section of the document. In any event, his claim for further reasons on the ground that the reasons provided to him did not comply with s 8 of the ALA was a non-Charter claim of unlawfulness within the meaning of s 39 of the Charter. He is entitled to attempt to seek relief or remedy on a ground of unlawfulness arising because of the Charter.[37] So I will consider Mr Draper's Charter claims insofar as they relate to his claim for further reasons.

83 But few of Mr Draper's Charter arguments do relate to the adequacy of reasons issue and I will only mention those that arguably do. He did submit that the Board and VBA refused to treat him equally to other persons before the law, as required by s 8 of the Charter. Specifically, he argued that he has been discriminated against when compared to other complainants before the Board citing, among other cases, Ross v Building Practitioners Board ('Ross'),[38] Elliott v Simonds Homes Pty Ltd ('Elliott')[39] and King v Victorian Building Authority ('King')[40] in support.

84 Mr Draper claimed that the VBA discriminated against him on the basis that he was not a registered building practitioner, which was an employment activity and was not given the same right as other persons to pursue review. Accordingly, he received unequal treatment before the law in breach of s 8 of the Charter. He submitted that in circumstances involving applications by practitioners, the VBA has not opposed the applications, but in his circumstance they did. It did not treat people equally and act impartially and discriminated.

85 Next he argued that the Board, the VBA and VCAT had breached his fair hearing right under s 24 of the Charter by seeking to undermine his standing rights and questioning the Court's jurisdiction, rather than acting as an unbiased and impartial contradictor assisting the Court. The VBA wilfully delayed provision of a statement of reasons, attacked his rights to apply for review, including in seeking an extension of time. The VBA preferred a closed and secretive process, it was not impartial and had decided not to act against others who were guilty of allegations connected to those committed by Mr Simonds.

86 In the extension of time application, VCAT denied him a fair hearing by refusing discovery of documents, did not allow him to make submissions about the merits and prejudged the case as lacking merit. He submitted that the VCAT Registry contacted with VBA without simultaneously providing a copy of that correspondence to him. No evidence of such correspondence is before this Court. In any event, the decision of the Registrar of VCAT is of no operative effect given it was reviewed by a VCAT member. Most significantly, Mr Draper cannot challenge findings of VCAT in this proceeding.

87 The VBA argued that Mr Draper was not discriminated against because he was not treated differently on the basis on any protected attribute. Each case was considered by the Board on its own merits. There was also no breach of s 24 of the Charter even if Mr Draper could rely on it. The proceedings before the Board were dealt with in its customary manner and in accordance with the Building Act. VCAT's decision cannot be challenged in this proceeding.

88 Mr Draper's application was markedly different to the cases to which he drew this Court's attention. The cases referred to by Mr Draper, do not reveal a disparity between the Board or VCAT's treatment of the applicants in those cases and of Mr Draper. For instance, in King, the applicant was a building practitioner who had been fined by the Board, a case that raised quite different issues to Mr Draper's. There is no evidence that Mr Draper was discriminated against in connection with the Board's provision of reasons because of a protected attribute. He was not a party to the Board's inquiry. Nor is there evidence that the delay in providing Mr Draper with reasons was because of a protected attribute. It appears more due to the fact that he was not a party to the inquiry.

89 Although it is not directly connected with the adequacy of the Board's reasons, I will state my conclusion that I do not consider there to have any breach of Mr Draper's human rights as a result of the VBA resisting his application for an extension of time in VCAT.

90 Mr Draper has not established that the Board breached any Charter right in connection with its provision of reasons to him. He was provided with a copy of all pages of the Board's reasons only after considerable delay, but, as I have concluded, he already had the documents that comprised the Appendices.

91 Mr Draper cannot rely on the Charter right in s 24, because he was not a party to the Board Inquiry, even if the reference in s 24 to a 'civil proceeding' applied to an Inquiry.

[2] Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 669. See also Draper v Simonds Homes Victoria Pty Ltd (Building and Property) [2016] VCAT 91.

[3] Court Book, Draper v Building Practitioners Board (Supreme Court of Victoria, Ginnane J, 24 June and 10 August 2020) 60 [24] ('CB').

[4] Draper v Building Practitioners Board (No 2) (Review and Regulation) [2017] VCAT 1402.

[6] Draper v Building Practitioners Board (Review and Regulation) [2018] VCAT 1524 [20].

[8] Draper v Building Practitioners Board (Review and Regulation) [2018] VCAT 1524.

[9] Draper v Victorian Building Authority [2019] VCAT 1837, [78].

[11] See Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 346 (McHugh, Gummow and Hayne JJ) ('Yusuf').

[12] (1980) 146 CLR 493, 530-1. See also Maguire v State of Victoria [2020] VSCA 172.

[13] The VBA also relied on Purcell v Vernados [1996] 1 Qd R 310 and Murphy v Legal Services Commissioner [2013] QSC 70.

[15] [1981] VicRp 79; [1981] VR 831, 854.

[16] See also Singleton v Victorian Building Authority [2019] VSC 416.

[20] Transcript of Proceeding, Draper v Building Practitioners Board (Supreme Court of Victoria, Ginnane J, 24 June and 10 August 2020) 59 ('T').

[21] Yusuf (n 11) 345-6 referring to Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, 480 [44], 481 [47]-[48].

[26] (2009) 31 VAR 168.

[27] [2005] VSC 226, [16]

[28] [2010] VSCA 162; (2010) 27 VR 674, 701 (Ashley JA, Hansen AJA agreeing at 702 [99], Emerton JA agreeing at 702 [100]).

[29] Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356, 383; Kuek v Victoria Legal Aid [1999] VSCA 44; [1999] 2 VR 331 ('Kuek').

[32] Constitution Act 1975 s 85; Supreme Court Act 1986 ss 29, 36; Supreme Court (General Civil Procedure) Rules 2015 r 23.05.

[34] See Building Legislation Amendment (Consumer Protection) Act 2016 sch 8.

[35] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[36] Charter of Human Rights and Responsibilities Act 2006 ('Charter').

[37] Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 251, 598 [549]-[550].

[38] [2017] VSCA 274.

[39] [2010] VCAT 1827.

[40] [2019] VCAT 353.