Plaintiff v First Defendant

2 By notice of appeal dated 29 September 2017,[1] the plaintiff appealed the BOMW to the second defendant, the Building Appeals Board of Victoria ('the Board'). The plaintiff appointed Mr Michael Guastalegname[2] to be its agent in that appeal. The plaintiff raised three threshold issues, which it contended needed to be determined as preliminary questions before the matter could proceed to a hearing on the merits. Those questions were determined 'on the papers' by the Board on 8 June 2018 ('the preliminary questions determination'). On 24 July 2018, the plaintiff made a bias application against the Chairperson of the Board. In response to this, the Board made several directions and orders to ensure the bias application could proceed in a timely manner. However, neither the Board nor the Council's solicitors received any further correspondence or material from either the plaintiff, Frank, or Michael after 15 October 2018.

3 On 31 October 2018, in the absence of any written submissions or affidavit material filed on behalf of the plaintiff in support of its application, the Board dismissed the bias application ('the bias determination').

4 On 31 January 2019, the Board heard the substantive matters in the plaintiff's appeal. The Council was represented at that hearing, but the plaintiff did not appear or make submissions.

5 On 25 November 2019, the Board made a determination with respect to the substantive appeal and save for a variance to the BOMW's date of compliance ('the varied BOMW'), dismissed the appeal as being misconceived ('the substantive appeal determination').

6 On 13 December 2019, the Council's solicitors filed and served written submissions on the question of costs. On 9 November 2020, the Board ordered that the plaintiff pay the Council's costs in the sum of $25,520.40 within 30 days ('the first costs order').

7 On 30 November 2020, more than two years after the plaintiff had last corresponded with the Board or the Council's solicitors, the plaintiff asserted that it had not received the Board's notices and orders over that period, and sought an application for rehearing in relation to the orders made in its absence.

8 Thereafter, correspondence passed between the Board, the Council's solicitors, and the plaintiff. Further directions and orders were made by the Board on 16 December 2020 and 10 February 2021 directing submissions and evidence to be filed by the plaintiff regarding whether the Board could set aside or reconsider the substantive appeal determination, and/or the first costs order. As the plaintiff did not file material within time, the Council's solicitors sought an order from the Board that the plaintiff's application be dismissed and sought its further costs. On 6 April 2021, the Board refused the plaintiff's application to reopen the appeal and, on 19 May 2021,[3] made a further order in the sum of $6,727.00 ('the second costs order').

9 Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'), the plaintiff seeks judicial review in respect of the following determinations of the Board:

(i) the preliminary questions determination;

(ii) the bias determination;

(iii) the substantive appeal determination;

(iv) the first costs order; and

(v) the second costs order.

10 The plaintiff alleges the BOMW was a nullity and further alleges that there were multiple errors of law made by the Board in respect of each of those determinations. It consequently seeks orders to quash those decisions and orders. Pursuant to r 56.02 of the Rules, an application is required to be made within 60 days of a decision, and the Court is only permitted to extend time if special circumstances exist. The first three determinations are out of time and therefore, as a preliminary issue, I must determine if special circumstances exist to justify an extension of time.

11 As is the usual arrangement pursuant to the principles in Hardiman,[4] the Board did not take an active role in the proceedings and indicated by way of correspondence that it would abide by the decision of the Court.

12 At the hearing of this matter,[5] the plaintiff tendered affidavits from Frank,[6] Michael,[7] and its solicitor,[8] and the Council tendered two affidavits from Mr Yannelis.[9] In addition, numerous other documents relevant to this application were tendered by consent.

13 For the reasons that follow, I am satisfied that special circumstances exist to justify the granting of an extension of time to enable the plaintiff to seek judicial review of the Board's substantive appeal determination. Further, I am satisfied that the BOMW (and the varied BOMW) was not issued in accordance with the requirements of the Act, and thus is void and of no legal effect.

14 The following extracts of legislation and background material are relevant to both the plaintiff's application to extend time in respect of the first three determinations, as well as its grounds of judicial review. The asserted facts are derived from the affidavits tendered in this case. Such facts do not appear to be in issue, and any assertions made by a party are identified as such.

Relevant extracts from the _Buildin_g Act 1993 (Vic)

15 The Act assigns powers to a MBS to issue notices and orders with respect to building works and protection work requirements. It was these powers which Mr Yannelis was exercising when he issued the BOMW.

16 It is an objective of the Act to protect the safety and health of people who use buildings.[10] In addition, one of the main purposes of the Act is to 'to 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'.[11]

17 Relevantly, the Act defines the following terms: [12]

building includes a 'structure, temporary building, temporary structure' as well as 'any part of a building or structure'

building work means 'work for or in connection with the construction, demolition or removal of a building.'

18 The BOMW was issued under s 113, which is contained within Part 8 of the Act. This Part is concerned with the enforcement of safety and building standards. It provides three ways in which building orders can be issued under the Act:

(i) Emergency orders issued in accordance with Division 1 of Part 8;

(ii) Building orders issued in accordance with Division 2 of Part 8; and

(iii) Building orders for minor works issued in accordance with s 113 in Division 2 of Part 8.

(i) Emergency orders issued in accordance with Division 1 of Part 8

19 Under this Division, s 102 relevantly provides that a MBS may make an emergency order if the MBS is of the opinion that the order is necessary 'because of a danger to life or property arising out of the condition or use or proposed use of a building ...'.

20 Section 104 provides that an emergency order may require the owner or occupier of a building to, within a specified time, carry out building work or other work 'necessary to make the building, land or place safe or to secure the building ... from access.'[13]

21 Section 105A prescribes the duration of emergency orders. Subsection (2) states that:

[i]f, before the end of the period specified in the emergency order, the municipal building surveyor issues a building notice asking an owner to show cause why entry into, or the use or occupation of, the building or place that is subject to the order should not be prohibited, the emergency order remains in force until the earlier of -

(a) the end of the specified period under section 108 for the building notice; or

[s]ubject to this section, an emergency order remains in force until -

(a) it is complied with; or

(b) it is cancelled by -

(i) the municipal building surveyor under section 105B; or

(ii) the Building Appeals Board under section 142.

23 Section 105B provides that a MBS may cancel an emergency order if the order was made in error or the circumstances giving rise to the making of the order have changed.

(ii) Building orders issued in accordance with Division 2 of Part 8

24 Division 2 of Part 8 of the Act sets out the requirements for a MBS (or private building surveyor) to issue building notices and general building orders.

25 The sections relevant to the plaintiff's application are as follows:

106 Building notices

Subject to section 107,[14] a municipal building surveyor ... may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists -

(a) building work has been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations;

(b) the use of the building or place contravenes this Act or the building regulations;

(ba) safety or emergency services, installations or equipment have not been maintained in accordance with the occupancy permit and the regulations;

(c) the building or place is unfit for occupation or for use as a place of public entertainment;

(d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property.

(1) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period-

(a) why entry to, or the use or occupation of the building, land or place should not be prohibited; or

(b) why the owner should not evacuate the building.

(1A) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period why the owner should not carry out building work, protection work or work required by the regulations in relation to the building, land or place.

(2) A building notice must be in writing and must contain any matters required by the regulations.

109 Representations by owner

An owner may, in the manner specified in the notice, make representations to the relevant building surveyor about the matters contained in the notice.

111 Building orders - general

(1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.

(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.

(3) A building order under this section may - (a) direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and (b) if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times.

(4) A building order under this section may prohibit any person from entering, using or occupying a building, land or a place of public entertainment for a specified period unless permitted by the municipal building surveyor.

(5) A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place.

(6) A building order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time.

(7) A building order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested (other than destructively tested) by a specified person within a specified time.

(8) A building order may require the owner of a building or a place of public entertainment that is a building, or a builder, to, in accordance with the regulations (if any), arrange for, within a specified time, a specified building product or material used in that building to be subjected to destructive testing conducted by a prescribed testing authority if the relevant building surveyor believes on reasonable grounds that the use of the building product or material is connected with a contravention of this Act or the regulations.

(9) An owner or builder referred to in subsection (8) must provide the results of the destructive testing of the building product or material to the relevant building surveyor or another person authorised by the relevant building surveyor to receive the results within the time specified in the building order.

(iii) Building orders for minor works issued in accordance with s 113 in Division 2 of Part 8

26 The BOMW was issued under s 113 of the Act. It provides that:

113 Building orders - minor work

Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order requiring the owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment to carry out building work, protection work or other work required by the regulations to be carried out without first serving a building notice if the building surveyor is of the opinion that the work required to be carried out is of a minor nature.

Additional requirements in respect of building orders

27 Section 114(1) of the Act requires a building order to be in writing, to specify the time or times within which there must be compliance, and to contain any other matters required by the Building Interim Regulations 2017 (Vic) ('the Regulations').[15] Further, s 114(2) requires the relevant building surveyor to cause a building order to be served on the person to whom it is directed without delay after it is made.

28 Section 236(1) provides for the service of such documents under the Act as follows:

(1) Any document to be served on or given to a person under this Act or the regulations may be served on or given to the person by -

(b) leaving the document at the person's usual or last known place of residence or business with a person apparently not less than 16 years of age and apparently residing or employed at that place; or

(c) sending the document by post addressed to the person at the person's usual or last known place of residence or business or in any other prescribed manner.

29 Part 10 of the Act establishes the Building Appeals Board and sets out its jurisdiction.

30 Section 142 of the Act provides that the owner of a building or land may appeal to the Board against the making of a building order including, relevantly, orders made under s 113 of the Act.[16]

31 Section 146 of the Act provides for the effect of decisions under appeal:

(1) Subject to subsections (2), (2A) and (3), a decision in respect of which there is a right of appeal under Division 1 does not take effect until -

(a) the end of the appropriate prescribed appeal period, if there is no appeal; or

(b) the decision is affirmed on appeal.

(3) An appeal under section 142(3) does not stay the operation of the emergency order to which the appeal relates.

32 Any such appeal is to be heard in the nature of a re-hearing and the Board may consider matters not raised before the impugned decision was made.[17]

33 Under s 149, the Board is required to consider and determine an appeal and may by its determination affirm, quash, vary, or set the decision aside and substitute its own decision or remit the decision to the decision-maker for reconsideration.[18]

34 In respect of its determinations, Schedule 3, Part 1, Item 16(4) states:

'The Building Appeals Board must without delay cause a copy of its determination in any proceeding to be served on each party to the proceeding.'

35 The Council took action in respect of its safety concerns for the balcony well prior to the issuance of the BOMW. The plaintiff contended that past events between the parties were relevant to these proceedings as it alleged that the BOMW was issued by Mr Yannelis for an improper purpose, in bad faith, and that the Board was aware of this 'abuse process' when it made its decisions.

36 Mr Yannelis and the Council denied this and submitted that the previous events were irrelevant to the BOMW, the plaintiff's application for an extension of time, and its judicial review. However, given the plaintiff asserts that such events constitute a 'historical nexus' with the BOMW, I will set them out briefly below.

37 On 24 September 2007, the Council's then municipal building surveyor, Mr Steven Baxas, issued a building notice ('Building Notice 1') as he considered that there was 'extensive rusting, resulting in the extensive corrision (sic) of metal components' on the balcony which posed a safety danger. Under Building Notice 1, the plaintiff was required to show cause within 30 days as to why it should not carry out building works to remedy the defects listed by, inter alia, upgrading the external balcony.

38 In a general building order dated 8 June 2011 ('Order 1'), Mr Baxas stated that he had undertaken a further inspection of the property, and considered that insufficient cause had been shown by the plaintiff in response to Building Notice 1. Order 1 required the plaintiff to undertake remedial work to the external balcony, handrails, and balustrades.

39 The plaintiff subsequently appealed Order 1 to the Board. Following a hearing of that appeal, Order 1 was amended on 12 April 2012 ('Board's amended Order').

40 On 1 August 2012, the plaintiff was charged for failing to comply with the Board's amended Order. In subsequent Magistrates' Court proceedings, the plaintiff defended the prosecution on the basis that there was reasonable doubt as to whether Mr Baxas had inspected the property prior to issuing Building Notice 1 and if there was, then Order 1 was invalid.

41 On 24 October 2013, the Magistrate dismissed the charge. In his reasons for judgment, the Magistrate stated that he could not be satisfied beyond reasonable doubt as to the inspection of the property, which under the Regulations[19] was a condition precedent to the making of Building Notice 1.

42 On or about the 30 September 2014,[20] the plaintiff issued proceedings in this Court against the Council in respect of Building Notice 1, Order 1, and the Board's amended Order.

43 The hearing of those proceedings commenced on 4 September 2017. Those proceedings resolved on 7 September 2017, when Frank entered into a deed of settlement and release with the Council.

44 On 7 September 2017, Mr Baxas issued an apology to Frank for the distress and inconvenience caused to him, arising from Building Notice 1, Order 1, the Board's amended order, and the Magistrates' Court prosecution.

45 Mr Yannelis was an interim MBS of the Council appointed under s 213 of the Act.

46 On 28 August 2017, Mr Yannelis attended the outside of the property and from the footpath, observed the balcony. During this inspection, Mr Yannelis observed that the balcony was rusted; that the balustrade and steel supporting structure displayed high levels of rust and some elements had disintegrated entirely; and that one of the brackets/bolts connecting the structure to a brick wall was non-existent.

47 On 29 August 2017, Mr Yannelis issued a BOMW under s 113 of the Act. In this BOMW, it was stated the reason for the order was that:

5.1 The condition of the existing balcony structure located at the rear/South side of the existing residence has deteriorated and it is in a state of disrepair, is considered unsuitable for its intended use and is in possible risk of structural failure.

48 The BOMW then required the owner of the building to carry out the following building work:

6.1 Restrict access from all doors leading to the balcony from the upper level and all doors leading to the lower level outdoor space to the rear/South side of the existing residence. The doors are to be mechanically fixed shut with the use of screws or other permanent fixing that can not be removed without the use of a tool.

49 The BOMW required the works to be carried out within 30 days of service of the order. The BOMW was served on the plaintiff by way of registered post, sent to the registered office of the plaintiff, as well as to Frank as the named director and secretary of the plaintiff.

50 On 29 September 2017, Frank, on behalf of the plaintiff, lodged an appeal under s 142(2) of the Act. The appeal form indicated that the plaintiff would prefer the Board to make its determination following a hearing. The form also stated that Michael was to act as the agent of the plaintiff in the appeal. The contact details in this form included a postal address and an email address ('the nominated email address').

51 The plaintiff's notice of appeal to the Board set out numerous grounds of appeal including the following:

(i) the allegations contained in the BOMW were disputed;

(ii) Mr Yannelis did not satisfy the statutory preconditions before making the BOMW; and

(iii) the BOMW is onerous in that it fails to identify what works are required for the alleged repair of the existing balcony to enable compliance.

52 Further, the plaintiff specifically referred to the historical matters detailed above, and alleged that the BOMW was a 'continuation of acts of harassment and intimidation' and that the plaintiff sought 'relief from the arbitrary and oppressive conduct' of the Council in continuing to interfere with the use of its property.

53 In the plaintiff's notice of appeal, Frank stated that on 7 September 2017, when he entered into a deed of settlement and release with the Council on behalf of the plaintiff, he was 'under sufferance from chronic and acute heart and renal conditions as well as severe depression' and was 'compelled under pressure and without option,' to enter into such an agreement. Frank further stated that 'at the time of entering into the Deed of Settlement & Release I did not give due consideration to the Building Order for Minor Works as it was not part of the said proceeding or the Deed of Settlement.'

54 Soon after the appeal to the Board was lodged, Russell Kennedy Lawyers were appointed to act on behalf of Mr Yannelis and the Council ('the Council's solicitors').

55 On 21 February 2018, at the request of the plaintiff, the Board held a directions hearing in this matter. At this hearing, the plaintiff contended there were three threshold issues which affected the substantial merits of the appeal proceeding. These preliminary questions were as follows:

(i) Is the hearing of the plaintiff's appeal a hearing de novo?

(ii) Does the Board have the power to make an order restraining Russell Kennedy Lawyers from continuing to act as the Council's solicitors, and if so, should such an order be made?

(iii) Is the BOMW defective in form or substance, and if so, does the Board then have jurisdiction to make an order under s 149 of the Act?

56 On 22 February 2018, the Board made directions and orders regarding those preliminary questions, including orders that each party file and serve written submissions in response.

57 In accordance with those orders, both parties filed and served written submissions.

58 On 8 June 2018, the Chairperson of the Board made orders in response to the preliminary questions and answered them as follows:

(i) the hearing of the appeal was to be a hearing de novo;

(ii) the Board declined to make an order restraining Russell Kennedy Lawyers from acting;

(iii) the Board had jurisdiction to make an order under s 149 of the Act in the event that the BOMW was defective in form or substance;

(iv) the BOMW was not defective in form and did not otherwise suffer from jurisdictional error.

59 On 22 June 2018, the Board made orders requiring each party to file and serve a statement of contentions, with the plaintiff to file its statement by 27 July 2018, and the Council to provide its statement by 17 August 2018. Further, both parties were to file and serve any expert reports, and to exchange copies of any documents relied upon by 24 August 2018. The Board also listed the matter for hearing on 6 September 2018.

60 On 24 July 2018, the plaintiff emailed the Board and requested a stay of the orders of 22 June 2018, and made a bias application against the Chairperson in respect of his determination of the preliminary questions ('bias application'). In summary, the plaintiff asserted the Chairperson:

(i) failed to take into account its submissions;

(ii) accepted the Council's arguments over those it had made;

(iii) failed to analysis what it described as the temporal element contained in r 905 of the Regulations; and

(iv) attributed undue weight to s 148 of the Act.

61 On 25 July 2018, the Council's solicitors wrote to the Board and asserted there was no basis for an allegation of apprehended or actual bias and suggested the application was 'a delay tactic' and that the matter should 'progress as per the 22 June 2018 directions' of the Board.

62 On 7 August 2018, the Board held a further directions hearing and ordered that by 14 August 2018 the parties were to file and serve copies of authorities relevant to the question as to whether the Board had jurisdiction to set aside its own determination in the event that it found that the Chairperson was biased.

63 On 14 August 2018, the parties provided material to the Board relevant to the pending hearing in respect of the bias application.

64 On 17 August 2018, the Board advised the parties that the bias application was listed for hearing on 21 August 2018. Later that day, Michael informed the Board that he was unable to attend the hearing with such short notice due to caring responsibilities.

65 On 20 August 2018, the Board found that it had '... jurisdiction to treat an earlier decision of the Board as a nullity if the earlier decision was patently infected by jurisdictional error.' The Board vacated the hearing of the plaintiff's bias application (due to the plaintiff's unavailability) and relisted it to 18 September 2018. The parties were also ordered to file and serve any affidavit material or submissions relevant to that bias application by 11 September 2018. Finally, it vacated the hearing date for the substantive appeal which, at that time, was listed for 6 September 2018.

66 On 13 September 2018, the Council's solicitors filed and served an outline of submissions relevant to the bias application. In addition, the Council's solicitors wrote to the Board and raised concerns that the plaintiff's case in respect of the bias application was unknown and that the plaintiff had not forwarded any material in relation to the allegations of bias.

67 On 17 September 2018, Michael sent an email requesting that the bias application, listed for the following day, be adjourned on medical grounds. Two medical certificates were provided by Michael's general practitioner in support of the application. The Council's solicitors opposed the adjournment application.

68 Later that day, the Board made orders refusing the plaintiff's adjournment request, but stating that it would permit the plaintiff to re-apply for an adjournment prior to the commencement of the hearing should further submissions or evidence be adduced in support of it.

69 The plaintiff subsequently made a second request for an adjournment in relation to Frank, with supporting medical documentation.

70 On 18 September 2018, despite opposition from the Council's solicitors, the Board accepted that the interests of justice warranted the adjournment.

71 On 21 September 2018, the Board made the following directions and orders:

1. By 25 September 2018, the [plaintiff] must file with the Board and send to [the Council] any written submissions and/or affidavit material in support of its bias application.
2. By 2 October 2018 the Council's solicitors must file and serve any written submission and/or affidavit material in reply.
3. By consent, the determination of the Applicant's bias application is to be determined 'on the papers'.

72 The plaintiff did not file its submissions or affidavit material on or before 25 September 2018.

73 On 2 October 2018, the Council's solicitors filed written submissions in relation to the bias application.

74 On 3 October 2018, the plaintiff sought an extension of 14 days in which to file and serve its written submissions.

75 On 9 October 2018, the Board made directions and orders that the plaintiff must file and serve any written submissions and/or affidavit material in support of its bias application by 12 October 2018.

76 On 15 October 2018, the plaintiff made a request for a further extension of time in which to file and serve its written submissions and/or affidavit material in support of its bias application.

77 On 15 October 2018, the Board extended such orders until the following day.

78 As previously mentioned, after 15 October 2018 no further communication was received by the Board or the Council's solicitors from Michael, Frank, or anyone else acting on behalf of the plaintiff until 30 November 2020.

79 On 22 October 2018, the Board again extended the date for the plaintiff to file and serve written submissions and/or affidavit material in support of its bias application to 25 October 2018.

80 On 29 October 2018, the Council's solicitors wrote to the Board and requested that in the absence of submissions or affidavit material, the plaintiff's bias application be dismissed.

81 On 31 October 2018, the Chairperson dismissed the bias application having found that his determination of the preliminary questions was not subject to actual or apprehended bias. In his reasons, the Chairperson noted that despite multiple directions hearings and orders, the plaintiff made no submissions beyond the very brief statement contained in its bias application.

82 Having disposed of the bias application, the Board proceeded to make directions and orders in respect of the substantive appeal, including service of statements of contentions, expert reports and any documents relied upon by the parties. The substantive appeal was listed for hearing on 31 January 2019.

83 On 31 January 2019, the Board heard the substantive matters in the plaintiff's appeal. The plaintiff did not appear at the hearing or provide any submissions. The Council's solicitors appeared and made submissions in furtherance of the Council's statement of contentions filed on 21 January 2019.

84 On 25 November 2019, the Board made a determination with respect to the substantive appeal and ordered that:

(i) in relation to the appeals under s 142(a), (b), and (c), the BOMW be varied to substitute the date for compliance, such that the work was to be carried out by 17 January 2020 ('the varied BOMW');

(ii) the appeal be dismissed pursuant to s 142(2)(e) as being misconceived; and

(iii) if any party were to seek costs, such application was to be made in writing by 13 December 2019, and any written submissions in response were to be provided within 28 days of receiving such a costs application.

85 The Board's reasons detailed the history of the BOMW and the plaintiff's appeal to the Board, including the preliminary issues and the bias application. It then stated that the Board had conducted site inspections of the property in February 2019 and October 2019.

86 The Board noted that the plaintiff alleged that the BOMW was 'a continuation of acts of harassment and intimidation for an improper purpose,' which had originated with Building Order 1.

87 The Board then noted the Council's submissions and stated that, having considered the parties' submissions, it accepted the evidence of Mr Yannelis that:

(a) the steel balcony structure was rusted;

(b) both the balustrade and steel supporting structure displayed high levels of rust and some element had disintegrated entirely; and

(c) one of the brackets/bolts connecting the structure to the brick wall was non-existent.

The Board considers that permitting access to the balcony would pose an unacceptable risk, and that there is a possible risk of structural failure. The balcony is no longer suitable for its intended use and access to the balcony should be restricted, whilst the balcony is in its current state.

The Board has determined that fixing the doors to the balcony shut with the use of screws is appropriate and is work of a minor nature.

89 The Board noted that the plaintiff had not provided any contradictory evidence, such as a report from a registered building practitioner.

90 The Board also considered that s 114 of the Act had been complied with, and that the imposition of the conditions in the BOMW were appropriate.

91 On 13 December 2019, the Council's solicitors filed and served written submissions on the question of costs in accordance with the substantive determination.

92 On 9 November 2020, the first costs order was made.

93 Michael stated that sometime thereafter, a former solicitor for the plaintiff became aware of the first costs order and notified the plaintiff.

94 On 30 November 2020, Michael, on behalf of the plaintiff, emailed the Board and advised that he had become aware of the costs order and stated that the plaintiff:

(i) had not been a participant in the proceeding(s) in relation to the said order(s);

(ii) had not received notice in relation to the proceedings which gave rise to the Board's various orders; and

(iii) sought to exercise its right to make an application for a rehearing in respect of any order or orders made in its absence.

95 On 4 December 2020, Frank emailed the Board and the Council's solicitors advising that the agent's email address, being the nominated email address, was the only one provided because the appeal form (referred to at [50] above) did not allocate space for an additional email address. Frank asserted that the nominated email address account was not accessible by the plaintiff, such that it had not received notices from the Board either by way of email or by mail at the plaintiff's nominated street address. He also advised of a new email address for Michael as agent of the plaintiff ('Michael's email address') as well as an email address for the plaintiff ('plaintiff's email address').

96 On 16 December 2020, the Board made directions requiring the plaintiff, by 11 January 2021, to file and serve submissions regarding whether the Board could set aside, or reconsider the first costs order and, if it could, whether it would be appropriate to do so. Further, by that date, the Board directed the plaintiff to provide evidence regarding numerous matters, including: the relationship between Michael and the plaintiff, Michael and Frank, and Michael and any other employee or officer of the plaintiff; how and when Michael or Frank became aware of the substantive determination and the first costs order; and whether, if so, the extent to which Michael used the nominated email address between 1 January 2019 to 14 December 2020 ('the 16 December 2020 directions').

97 A schedule of the occasions on which the Board, the Council's solicitors and Michael had used the nominated email address was annexed to the Board's reasons. The Board expressly stated that if the plaintiff failed to provide evidence as required by the 16 December 2020 directions, or an adequate explanation for its failure to provide such evidence in the time provided, it may draw adverse inferences in accordance with Jones v Dunkel.[21]

98 On 6 January 2021, Michael emailed the Board and sought an extension of 16 days for the plaintiff to comply with the 16 December 2020 directions. Michael stated that the grounds for the extension included unavailability of counsel, and that the first costs order would expose the plaintiff to insolvency and liquidation.

99 On 8 January 2021, the Council's solicitors consented to the request for an extension of time to comply with the 16 December 2020 directions via email to the Board and the plaintiff's email address.

100 On 27 January 2021, Michael, on behalf of the plaintiff, emailed the Council's solicitors and advised that, as he had not received a reply to his email of 6 January 2020, he presumed that the Board had not extended the time to comply with the 16 December 2020 directions.

101 On 28 January 2021, the Council's solicitors sent two emails to Michael seeking clarification as to whether the plaintiff intended to file any submissions in response to the 16 December 2020 directions.

102 On 10 February 2021, the Board extended the date for compliance with the first direction of the 16 December 2020 directions, until 19 February 2021.

103 On 26 February 2021, the Council's solicitor wrote to the Board and sought to have the plaintiff's application dismissed in circumstances where the plaintiff had not complied with the Board's order of 10 February 2021.

104 Approximately one hour later, Michael emailed the Board and stated that, as the Board had failed to respond in a reasonable period of time to the plaintiff's request to extend the time to comply with the 16 December 2020 orders, and 'critically', had not responded before the 11 January 2021, the '[o]rders made by the Board on the 10 February 2021 were temporally disconnected from the request made by the applicant on 6 January 2021'. He asserted that this delay may have caused prejudice to the plaintiff's rights. Accordingly, the plaintiff stated that it had 'no option' but to seek judicial review of all of the Board's previous orders in respect of the matter.

105 On 2 March 2021, the Council's solicitors wrote to the Board and provided submissions in respect of its costs, pursuant to the orders of 10 February 2021.

106 On 6 April 2021, the Board rejected the plaintiff's application to reopen or quash its substantive determination and first costs order, and ordered that the plaintiff pay the Council's costs in the sum of $46,727 within 30 days. In its reasons for this decision, the Board found that Michael was the nominated agent of the plaintiff and that notices and submissions were sent to the nominated email address. The Board also explained that, consistent with the practice in VCAT and Victorian Courts, 'if an agent is nominated by a party, and the material or information is provided to the agent, the party is taken to have received the material and information'.

107 In circumstances where the plaintiff had 're-agitated' this issue and then failed to provide adequate submissions or evidence, despite the directions and orders previously made, the Board considered it just to make an order for the Council's costs incurred since the first costs order.

108 The orders dated 6 April 2021 contained an administrative error in respect of the amount of costs awarded. On 19 May 2021, the Board rectified this error and ordered that the plaintiff pay $6,727.00 within 30 days of the determination.

109 On 16 June 2020, Mr Yannelis obtained a search warrant to search the property pursuant to s 228M of the Act.

110 On 30 June 2020, Mr Yannelis executed the search warrant with police assistance. Mr Yannelis recorded in his inspection file notes of that day that, in his opinion, the BOMW had not been complied with.

111 On 11 November 2020, the Council, with Mr Yannelis as its informant, commenced charges against the plaintiff for its alleged failure to comply with the varied BOMW pursuant to s 118(1) of the Act ('current Magistrates' Court proceedings').

112 On 14 November 2021, Mr Yannelis conducted a further inspection of the property. In his affidavit sworn on 15 November 2021, he stated that he 'observed that the balcony was further corroded and had not been repaired or altered in any way in respect of the observations made during [his] 28 August 2017 inspection.'

113 The current Magistrates' Court proceedings have been adjourned, pending the outcome of this application.

Merits of the plaintiff's grounds for judicial review in respect of the substantive determination

114 The plaintiff raised a number of grounds of judicial review in its further amended originating motion dated 5 April 2022. These can be categorised as follows:

(a) acting on a nullity;

(b) actual and/or constructive failure to exercise jurisdiction;

(c) taking into account irrelevant considerations;

(d) failing to take into account relevant considerations;

(e) exercise of a power for an improper or unauthorised purpose;

(f) unreasonableness; and

(g) apprehension of bias.

115 At the commencement of the plaintiff's oral submissions, it submitted that the primary focus of its application was that the BOMW (and the varied BOMW) could not be used to prohibit access to part of a building using the power granted under s 113 of the Act, and that doing so resulted in a nullity. Whilst the plaintiff's other grounds of judicial review were maintained,[22] these were expressed to be secondary grounds, which were not actively pursued at the hearing.

116 As the merits of the plaintiff's judicial review is a factor I must consider in determining whether special circumstances exist to justify an extension of time, I shall now detail the parties' submissions regarding the plaintiff's primary ground of judicial review. I will then set out my reasons as to why I am satisfied there was an error committed by the Council and the Board in the way alleged.

Plaintiff's submissions as to why the BOMW was a nullity

117 The plaintiff contended that the BOMW was not, on its face, an exercise of any identifiable power granted under s 113 of the Act, and was therefore a nullity. It was put that the determinations of the Board, including its cost orders, were therefore also nullities. In support of this ground, the plaintiff contended that the Board erred in law by:

(i) using the power conferred by s 113 as a means to restrict access;

(ii) improperly characterising the work the subject of the BOMW; and

(iii) failing to establish the circumstances necessary to enliven the power in s 113.

(i) using the power conferred by s 113 as a means to restrict access

118 The plaintiff submitted that the Board made a fundamental error of law in deciding that the BOMW was a lawful means to restrict or prohibit access to the balcony.

119 As a preliminary point, and for the avoidance of doubt, the plaintiff noted that the definition of 'building' contained in s 3 of the Act extends to 'any part of a building', which it said included the balcony the subject of the BOMW.

120 It was noted that s 113 empowers a building surveyor to make a building order requiring 'the owner of a building... to carry out building work, protection work or other work required by the regulations... without first serving a building notice if the building surveyor is of the opinion that the work required to be carried out is of a minor nature.'

121 The plaintiff submitted that it is plain from the text of s 113, and on an application of well-established principles of statutory construction,[23] that s 113 must not be read in isolation, but in the context of the broader powers and procedures in the Act, which require the service of a building notice before the making of a building order.

122 The plaintiff submitted, and it was agreed upon by the parties, that the power in s 113 can only be exercised if and when one of the circumstances set out in s 106 exist.

123 Section 106 details the basis upon which a building surveyor may cause a building notice to be served on an owner of a building, which includes, inter alia, if the building is unfit for occupation[24] or is a danger to the life, safety or health of any member of the public or of any person using the building.[25]

124 In the event that such circumstances as articulated under s 106 exist to justify issuing a building notice, ss 108-111, set out discrete steps associated with issuing both a building notice and building order. These include requirements as to the contents and form of the notice,[26] and an opportunity for the owner of the property to make representations about matters contained in the building notice to the building surveyor.[27] After the time allowed in the building notice for the owner to make representations has elapsed, such representations must be considered by the building surveyor before making a building order.[28]

125 Section 111 sets out the types of directions that a building order may contain, including to evacuate a building,[29] to vacate a building (once an evacuation order has been made),[30] and to prohibit any person from entering, using or occupying a building.[30] Of relevance to this application is s 111(5), which states that a building order may direct the owner to 'carry out building work, protection work or other work required by the regulations'. The plaintiff emphasised that s 111(5) adopts the same terms as s 113 and that both sections provide the same power to require work to be done, save that the power to make an order pursuant to s 111(5) is only exercisable after the service of a building notice.

126 The plaintiff submitted that Division 2 of Part 8 of the Act evinces the legislature's clear intention that a building surveyor is only empowered to make a building order under Division 2 that prohibits entry, use or occupation of a building (or part thereof) or requires that a building (or part thereof) be evacuated or vacated in circumstances where all of the requirements in ss 106 - 111 are satisfied.

127 The plaintiff submitted that it therefore follows that the power to require work to be carried out under s 113 should not be construed in a way which would negate the requirements of ss 106-111. That is, the scope of the power under s 113 is 'expressly limited' to work that the regulations require to be carried out, and only insofar as the work is of a minor nature. It was said that this section should not be construed so as to extend to the making of building orders which would prohibit entry, use or occupation of a building (or part thereof) or require a building (or part thereof) to be evacuated or vacated.

128 The plaintiff contended that its reading of s 113 was supported by the requirements in Division 1 of Part 8, which relate to the making of emergency orders. The plaintiff noted that Division 1 establishes a regime for circumstances in which a building surveyor is of the opinion that the making of an order 'is necessary because of a danger to life or property arising out of the condition or use or proposed use of a building'.[31] The plaintiff noted that in Division 1 of Part 8, a building order is made without first serving a building notice. This was said to evince the express intention of the legislature to provide for the use of specific powers in emergency situations that necessitate evacuation of a building, vacation of a building, or a prohibition on entry, use, or occupation of a building. Given the express provisions for emergency situations, the plaintiff submitted that there could be no basis upon which to suggest that s 113 was intended to be invoked for the same purpose.

129 In addition to the above, the plaintiff emphasised that s 104(1)(b) empowers a building surveyor to make an emergency order requiring an owner of a building 'to carry out building work or other work necessary to make the building, land or place safe or to secure the building, land or place from access.' It was said that this provision recognises that, in the context of an emergency, a building surveyor is empowered to require works necessary to restrict access to a building (or part thereof). The plaintiff submitted that, had the legislature intended that s 113 be used for this purpose, it would have expressly stated so.

130 The plaintiff submitted that the Parliament's intention that the power in respect of s 113 has a limited scope, was also evident when consideration is given to the short duration of emergency orders prescribed by s 105A. It was put that this provision recognises the significant impact an emergency order may have on a building owner. The plaintiff contended that this was a further example of the legislature's intention, even in the case of emergencies, not to allow indefinite building orders, unless all of the ss 106-111 requirements are met.

131 The plaintiff submitted that the Board's reasons, which focused on access to the balcony, revealed that the intended and substantive effect of the BOMW, as varied by the Board, was to 'impermissibly':

• prohibit entry, use, or occupation of that part of the building comprising of the balcony and lower-level outdoor space;
• require all persons to evacuate or vacate those areas; and/or
• secure those areas from access.

132 While the plaintiff accepted that such a building order could be made, either under Division 1 or in compliance with ss 106-111, it alleged that such an order was beyond the scope of power under s 113.

133 The plaintiff contended that as a consequence, Mr Yannelis, and subsequently the Board, proceeded on the basis of a fundamental error of law in deciding that the BOMW was a lawful means of restricting access to the balcony. Further or alternatively, Mr Yannelis and subsequently the Board, erred in law in purporting to use the power under s 113 to achieve an objective that, under the Act, required the exercise of other statutory provisions and powers.

134 The plaintiff submitted that, on either analysis, the BOMW and the Board's substantive determination were infected by jurisdictional error; constituted failures to exercise jurisdiction; were not a proper exercise of any identifiable power under s 113; and resulted in nullities.

(ii) improperly characterising the work the subject of the BOMW

135 The plaintiff contended that, further or in the alternative, the Board erred in law by characterising 'fixing the doors to the balcony shut with the use of screws' as work which was required to be carried out, and as work of a minor nature.

136 It was said that the first sentence of paragraph 6.1 of the BOMW purported to impose a restriction on access, which the plaintiff submitted did not specify 'work' of any kind, including any 'building work' within the meaning of the Act. It was said that the second sentence of paragraph 6.1 of the BOMW purported to give effect or provide guidance as to the restriction on access by requiring that certain doors be 'mechanically fixed shut with the use of screws or other permanent fixing'. The plaintiff submitted that this also did not constitute 'building work', being work 'for or in connection with the construction, demolition or removal of a building'.[32] It was submitted that if mechanically fixing doors was 'work', then it was work for, or in connection with, the restriction on access imposed by the first sentence of paragraph 6.1 of the BOMW, rather than construction, demolition, or removal of a building.

137 The plaintiff submitted that even if some aspect of what was described in paragraph 6.1 of the BOMW was 'building work' within the meaning of the Act, it was important to recognise that the 'building work' which a building surveyor is empowered to direct under s 113, is not infinite in scope. It was put that, while s 104(1)(b) empowers a building surveyor to make an order requiring the carrying out of 'building work' or other work 'necessary to make the building, land or place safe or to secure the building land or place from access', ss 111(5) and 113 empower a building surveyor to direct building work, protection work, or other work 'required by the regulations'.

138 The plaintiff referred to the Board's reasons in respect of the substantive appeal determination, and its statement that it 'determined that fixing the doors to the balcony shut with the use of screws is appropriate and is work of a minor nature.' It submitted that whether the work was 'appropriate' was not a test under s 113, and had no statutory basis. Further, the plaintiff submitted that the Board's substantive determination was otherwise 'fundamentally devoid' of any consideration as to whether fixing the doors was 'required' by any regulation, technical standard, or requirement. It stated that there was no suggestion that any technical issue was to be addressed by mechanically fixing the doors. The plaintiff contended that the power exercised in issuing and varying the BOMW was not used to secure compliance with a particular regulatory standard or requirement, but was instead exercised for the ulterior purpose of prohibiting entry, use, occupation, or access to the balcony.

139 The plaintiff contended that in accordance with the text of s 113, the Board should have considered whether the work required by the BOMW was building work, protection work, or other work required by the Regulations. The Board, according to the plaintiff, should then have considered whether any such work, which was required to be carried out by the BOMW was of a minor nature. Instead, the Board considered, in the abstract, whether fixing the doors with the use of screws was 'appropriate'. The plaintiff described this as a 'nebulous standard of appropriateness', and submitted that the Board not only applied the wrong test, but failed to apply any qualitative standard.

140 The plaintiff contended that, had the Board had proceeded in the way required by s 113, the Board would have found that there was no basis upon which to issue the BOMW that section.

(iii) failing to establish the circumstances necessary to enliven the power in s 113

141 Further or in the alternative, the plaintiff submitted that the Board misdirected itself to the question of whether the balcony was 'suitable for its intended use', which was a 'threshold test' that has no statutory basis for an order issued under s 113. The Board, according to the plaintiff, was confined to the test articulated in s 113, being whether the required work is building work, protection work, or other work required by the regulations, and whether the work is of a minor nature.

142 It was said that s 113 comprises the same power to require work as s 111(5), save that the power in s 111(5) is broader as it applies not only to work of a minor nature. Essentially, s 113 comprises an exception to s 111(5) for work of a minor nature. However, save for dispensing with the requirement to serve a building notice, the plaintiff submitted s 113 was not intended to apply in circumstances beyond those in which s 111(5) operates. It was said to follow that, although a building surveyor is not required to serve a building notice to exercise the power under s 113, the exercise of that power is necessarily contingent upon the same circumstances, as identified in s 106, which give rise to the power under s 111(5).

143 The plaintiff submitted that the Board failed to consider the circumstances set out in sub-s 106(b)-(d), and thus the power to require the works under s 113 was not enlivened.

144 In view of the above, the plaintiff submitted that there was an absence of a statutory basis to issue an order under s 113. It said that the Board's failure to properly consider which circumstances existed to justify an order under s 106, meant that the Board erred in law, such that the power to require works under s 113 was never properly enlivened.

145 Further, or alternatively, the plaintiff contended that it follows that, in making its determination, the Board failed to take into account the relevant considerations in s 106 and additionally, took into account irrelevant considerations as to the 'suitability' and 'intended use' of the balcony.

The Council's submissions as to why the BOMW was a valid exercise of power under s 113

146 As a preliminary point, the Council contended that the plaintiff should not be permitted to rely upon the grounds of judicial review detailed above, as it submitted that such arguments were not advanced in its appeal to the Board. The Council submitted that:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against [it], to raise a new argument which, whether deliberately or by inadvertence, [it] failed to put during the hearing when [it] had an opportunity to do so.[33]

147 The Council referred me to the decision of the Full Federal Court in Peacock v Human Rights and Equal Opportunity Commission ('Peacock').[34] In that case, the appellant sought to pursue an argument not raised before the primary judge. Kiefel and Allsop JJ stated that:

It is beyond question that this court has power to permit a fresh issue to be raised. And, generally speaking, that course is more likely to be permitted where no additional facts are necessary to be proved and where it turns upon only a question of construction or law: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319; [1982] HCA 33; 41 ALR 255 at 260. The court would, however, need to be satisfied that allowing a new point to be argued would work no injustice to the other party, remembering that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised.[35]

148 When Peacock came before the Full Federal Court, it was the fifth occasion the matter was the subject of decision-making. The Court held that it 'is important that parties pay due and legitimate respect to the case they commence and run. There is an interest of justice in the finality of litigation.'[36]

149 Notwithstanding its overarching objection to me considering these new grounds of judicial review, the Council made substantive submissions as to why it considered there were no errors of law as contended by the plaintiff in its further amended originating motion.

150 The Council submitted that the BOMW was an exercise of an identifiable power under s 113 of the Act and there was, therefore, no basis to the plaintiff's contention that the BOMW was a nullity for the following reasons:

(i) the office of the MBS is established by the Act;

(ii) the instrument of the BOMW is established by the Act;

(iii) the MBS is empowered to issue a BOMW;

(iv) a BOMW may require an owner to carry out works if the MBS is of the opinion that the work required to be carried out is of a minor nature;

(v) s 106 regulates the circumstances in which a BOMW may be issued and includes if the MBS is of the opinion that 'the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property'; and

(vi) Mr Yannelis inspected the building on 28 August 2017 and upon observing the condition of the balcony he issued the BOMW the next day on the basis that he considered it 'unsuitable for its intended use and is in possible risk of structural failure'.

151 The Council conceded that the state of the balcony did not justify the making of an emergency order under Division 1 of Part 8. It also did not challenge the plaintiff's assertion that irrespective of whether a building order was made under ss 111 or 113, it was a requirement of the Act that one of the circumstances in s 106 must exist. The Council said that if any of those circumstances were present, and the work to address it involved building work of a minor nature, then it was appropriate and supported by the Act to issue an order under s 113.

152 The Council submitted that the circumstances of ss 106(c) and/or 106(d) were satisfied, as Mr Yannelis was of the opinion that the building was unfit for occupation, and a danger to the life, safety or health of any member of the public or of any person using the building. It was contended that he formed this opinion following his inspection of the property on 28 August 2017 when he observed that:

... the steel balcony structure was rusted; both the balustrade and steel supporting structure displayed high levels of rust and some elements had disintegrated entirely; and one of the brackets/bolts connecting the structure to the brick wall was non-existent.

153 The Council stated that when Mr Yannelis issued the BOMW the following day, he did so on the stated basis that:

[t]he condition of the existing balcony structure located at the rear/South side of the existing residence has deteriorated and is in a state of disrepair, is considered unsuitable for its intended use and is in possible risk of structural failure.

154 It was contended by the Council that, as Mr Yannelis formed the view that building work was required to address this, and that the use of screws was 'minor work', Mr Yanneils had the power to issue the BOMW.

155 The Council contended that it was an unnecessary and illogical reading of the Act to read down s 113 in the way submitted by the plaintiff, and to say that the provision could not be utilised to prevent access to the balcony. The Council submitted that a straightforward reading of s 113, supported by the primary objective of the Act, did not promote the plaintiff's 'restriction' of s 113, and would hinder the protection, health, and safety of the public.

156 It also submitted that when considering the proper interpretation of a statute, a construction that would produce inconvenient, improbable, or irrational consequences should be avoided if there is a competing construction that is reasonably open.[37] It was said that where only a small element of the plaintiff's building was considered to be dangerous, and the work required to restrict access to it was minor, it would be inconvenient and irrational if s 113 was found to not empower restriction of access to that part of the building. The Council submitted that an interpretation of s 113 which permits such restriction of an unsafe building is reasonably open and would not produce inconvenient or improbable consequences.

157 An example of an inconvenient and irrational consequence proffered in support of that contention was a situation in which a corporate recipient of an emergency order to evacuate a building is required to comply under threat of a maximum penalty of $462,300,[38] without the benefit of a stay in circumstances where the making of the emergency order is appealed to the Board.[39] The Council said that, by contrast, a corporate recipient of an order under s 113 enjoys a stay of the effect of the order, pending the determination of any appeal it makes to the Board.[40] It was said that this reflected Parliament's intention that significant emergencies requiring evacuation warrant immediate action and, if an appeal is lodged with the Board, immediate determination of that appeal, whereas a lower level danger with a simple method of amelioration of risk, such as access to a dangerous balcony being restricted, can be the subject of a stay and normal re-hearing timing and process before the Board.

158 Further, the Council contended that had Parliament intended to restrict s 113 in the way the plaintiff advanced, it could have inserted words into the section to expressly articulate that it was not to be used in any way to restrict any access to buildings.

159 The three types of work referred to in s 113 are 'building work, protection work or other work required by the regulations'. The Council submitted that each of the phrases in respect of the types of work were to be read separately, not conjunctively, such that 'building work' and 'protection work' need not be required by the Regulations. It contended that in accordance with the purpose of the Act, the reference to 'building work' was conceptually broad in order to cover exactly what the BOMW required of the plaintiff, that is, to restrict access to the balcony through the mechanical fixing shut of the balcony doors with the use of screws.

160 The Council submitted that the Board's reference to the BOMW being 'appropriate' work, did not indicate error or the application of the wrong test. It was said that this was simply the Board's expression of its view that the work was minor and was appropriate to address the risk posed.

161 The Council denied that the BOMW went as far as prohibiting access to the balcony, as that was not a term of the BOMW. It said that alternative modes of access to the balcony would not be prohibited, although it conceded that access to the balcony may be difficult if the doors to it were screwed shut (in compliance with the BOMW). The Council suggested, as an example, that it would be possible to access the balcony by climbing on to it via a ladder without breaching the BOMW.

162 For the aforementioned reasons, the Council contended that there was no merit in this ground of judicial review.

163 I reject the Council's submission that the plaintiff should be prevented from relying on grounds of review which relate to the BOMW being a nullity, as it was not a ground of appeal pursued before the Board. I consider this application for judicial review is distinguishable from Peacock for several reasons. First, there has been only one prior review of the BOMW. Second, that review was conducted by a board, not a court.[41] Third, when the BOMW was reviewed by the Board, the plaintiff was not legally represented. Fourth, there is no additional evidence required for me to consider this ground of judicial review, and the Council has had time to respond to the plaintiff's submissions in respect of this. I therefore will not shut the plaintiff out from relying upon this ground.

164 For the reasons that follow, I am persuaded that there is merit to this ground of judicial review. I accept the plaintiff's submissions that the BOMW, and the varied BOMW, are void, as they were not made in accordance with the requirements of s 113 of the Act.

165 When Part 8 of the Act is read as a whole, it is clear that the parliamentary intention was to establish three ways in which building orders could be issued: orders made in emergency situations, orders made after notice, and orders made for minor building works required by the Regulations. Each type of order has different circumstances and requirements in order to be validly made.

166 In respect of emergency orders and orders made after notice, the measures contained within Division 1, and ss 106-111 in Division 2 of Part 8, are designed to strike a balance between ensuring safety in the use of buildings, with the rights of property owners. This is done by imposing time limits on the length of emergency orders, building owners being given the opportunity to make representations in respect of general building notices, and a requirement that such representations be considered prior to the making of a general building order.

167 In respect of orders made pursuant to s 113, for the following reasons I am satisfied that Parliament intended the power to issue such an order to be read narrowly, and not with the broad ambit the Council asserted.

168 First, noting that the phrase 'carry out building work, protection work, or other work required by the regulations' is used in both s 111(5) and s 113, I am satisfied that both sections should be interpreted consistently. In doing so, this phrase in s 111(5) needs to be interpreted in the context of the more onerous provisions which precede it - that is s 111(3) which is a provision relating to an order to evacuate or vacate, and s 111(4) which is a provision relating to an order to prohibit entering, using or occupying a building.

169 When read in this way, I consider it logical that the words in this phrase are to be read conjunctively, such that 'building work' and 'protection work' refer to those types of work as required by the Regulations. To accept the Council's submission that these words should be read separately would allow the term 'building work' to be construed so broadly, that it would be out of context with the rest of that phrase. Given its placement within this section, I consider the phrase was intended to be limited in its scope, such that it only applies to various forms of work required by the regulations.

170 Second, given the protections provided to property owners in respect of the two types of orders able to be issued under Part 8, I am satisfied that Parliament did not intend s 113 to be used as a means of circumventing the requirements in ss 106 - 111 to achieve the objective of evacuating, vacating, or restricting use of a building - nor should s 113 be permitted to be invoked in this manner. To sanction such an approach would leave property owners vulnerable to a largely unfettered power of a MBS if the building work could simply be categorised as minor work. I accept the plaintiff's submission that if the Council's interpretation of s 113 was correct, any type of minor building work, irrespective of its consequence, may be ordered by an MBS, with no time limit and no right of the owner to make representations in respect of its terms. This would be inconsistent with the otherwise very detailed measures articulated under Division 2 of Part 8 of the Act, and therefore must be inconsistent with Parliament's intention. The Council's reference to there being a right of appeal to the Board, with an automatic stay on a s 113 order is not a sufficient justification for an interpretation which would enable such a broad power to be exercised by a MBS.

171 This interpretation does not involve reading any words into s 113. To the contrary, when the phrase in ss 111(5) and 113 is read in the context of the entire division, it is clear that the phrase needs to be read conjunctively. That being the case, it was unnecessary for the legislature to expressly state that s 113 cannot be used to otherwise restrict access to a building.

172 I reject the Council's submission that such an interpretation would produce inconvenient, improbable, or irrational consequences, and this should be avoided if there is a competing construction that is reasonably open and would not produce such consequences. To the contrary, if the straightforward requirements of ss 106-111 had been followed by the Council, then the consequences of its impermissible use of s 113 would have easily been avoided.

173 Given the Council's concern that the balcony was in a state that posed an unacceptable risk to safety, and that access to it should be restricted (but this was not an emergency), in accordance with Division 2 of Part 8, the following steps were required for a valid building notice to be issued:

1. First, the MBS must have been of the opinion that one of the circumstances set out at s 106 existed in order to justify the issuing of a building notice.

Pursuant to s 106(d), Mr Yannelis was of the opinion that the building was a 'danger to life, safety or health of any member of the public using the building ...'. Therefore, in accordance with the Act, circumstances existed for Mr Yannelis, as the MBS, to serve a building notice on the property owner.

2. Second, a building notice must have been issued in accordance with the content and form requirements of s 108.

Given Mr Yannelis was of the opinion that use of the balcony and terrace below should be prohibited, pursuant to s 108(1)(a), the building notice must have required the building owner to show cause, within a specified period, as to why entry to, or use of that part of the building, should not be prohibited.

3. Third, in accordance with ss 108 and 109, the building notice must have provided a time period for the building owner to make representations to the MBS as to matters contained in the building notice.

4. Fourth, after the time allowed for the owner to make representations has elapsed, in accordance with s 111(2), the MBS was then required to consider any such representations prior to making a building order.

5. Lastly, in the event that the MBS remained of the view that the s 106 circumstances existed to justify the making of a building order under s 111(4) to prohibit any person using the balcony or terrace below, then a general building order could have been issued. A general building order must comply with the form and service requirements at s 114.

174 However, Mr Yannelis did not take these steps. Instead, he sought to use the power conferred upon him as a MBS under s 113 to effectively prohibit the use of the plaintiff's balcony and terrace. For the reasons given above, this was impermissible, irrespective of his concerns regarding the safety of the building.

175 Further, I also accept the plaintiff's submissions that the Board's reference to the use of screws as being appropriate demonstrates it incorrectly considered the requirements of s 113. It should have asked what work was required under the Regulations, and if so, whether such work was minor.

176 Having considered the text, context, and purpose of s 113, I am satisfied that it was unable to be used by either the Council or the Board in the way they purported to. For the reasons explained, s 113 is confined to works required by the Regulations, and the terms of the BOMW (and the varied BOMW) made no reference to any regulation which required the placing of screws on the balcony doors. I am satisfied that there was a fundamental error of law in deciding that the BOMW was a lawful means to restrict access to the balcony. Further, Mr Yannelis and subsequently the Board, erred in law in purporting to use the power under s 113 to achieve an objective that, under the scheme of the Act, required compliance with different provisions. The consequence of such errors is that the BOMW is void.

177 In view of the above, it is not necessary for me to determine the plaintiff's additional submission that the work referred to in the BOMW did not satisfy the definition of 'building work' within the meaning of the Act. Nor is it necessary for me to determine the merits of the alleged jurisdictional errors detailed at [114(b)-(g)] above, and contained in the amended originating motion.

Application for leave to extend time to appeal the first three decisions

178 The Council contended that the preliminary questions determination should have been issued by 7 August 2018; the bias determination by 15 January 2019; and the substantive appeal determination by 9 February 2020.

179 The plaintiff conceded that it must obtain an extension of time in order for the Court to consider its application for judicial review in respect of those three decisions. Under O 56.02(1) of the Rules, proceedings for judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. Notwithstanding the concession that it must obtain an extension, the plaintiff did not agree that the 60 day time period commenced on the respective dates of the first two decisions dated 7 August 2018 and 15 January 2019. The plaintiff submitted that, as these first two decisions were interlocutory decisions, it was not entitled to lodge an appeal in respect of those decisions until the substantive appeal was determined.[42]

180 In relation to the third determination dated 9 February 2020, I am satisfied that an extension of time should be granted. As the plaintiff's primary remedy sought is in respect of the substantive appeal determination, it is not necessary to determine when the time period commenced in respect of the first two decisions.

181 Rule 56.02(3) states that the Court shall not extend the 60 day period set out at subsection (1) 'except in special circumstances.'

182 The expression 'special circumstances' is considered inherently incapable of precise or exhaustive definition.[43] 'Special circumstances' depend upon the context in which they occur, [44] and the phrase is said to be deliberately flexible, encompassing cases that might not easily be anticipated by more prescriptive words.[45]

183 In Lazarevic v Victoria Police,[46] J Forest J (as he then was) endorsed the following test enunciated by Derham AsJ[47] in respect of whether the court should be satisfied special circumstances exist:

a) The rule requires the Court to be objectively satisfied that special circumstances exist;

b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

c) The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties; and

(v) the public interest in the finality of litigation.

184 Cavanough J in Kocak v Wingfoot Australia Partners Pty Ltd[48] explained the task that the court should undertake in considering such factors:

All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tended to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[49]

185 The factors identified by the parties as relevant to this application are set out below.

186 As the Court of Appeal noted in Glass (a pseudonym) v The Chief Examiner,[50] when considering if special circumstances exist:

One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.[51]

187 The authorities demonstrate that if there is no obvious prospect of success, there will be no purpose in granting an extension and special circumstances will not exist.[52] Although in itself not determinative, if there is an obvious error, this may be a relevant consideration in determining whether special circumstances exist.[53] Further, notwithstanding its relevance, an error does not automatically constitute special circumstances, as otherwise there would be no utility in a 60 day time period.[54]

188 In Martin v Magistrates' Court of Victoria & Anor ('Martin')[55] an application was made by a police informant seeking an extension of time[56] and, if granted, an order in the nature of certiorari quashing a magistrate's order in relation to the sentencing of an offender, who was the second defendant to the proceedings.

189 The second defendant had pleaded guilty in the Magistrates' Court to certain offences which carried a maximum sentence of 15 years' imprisonment. The magistrate sentenced the second defendant to a community corrections order of 24 months, which he served. Several years after the conviction, it became apparent that the magistrate did not have power to convict or sentence the second defendant, owing to statutory limitations on the Magistrates' Court's jurisdiction. The plaintiff therefore sought an order quashing the conviction and sentence. However, as this purported error was not known until several years after the Magistrates' Court decision, it was first necessary for the plaintiff to obtain an extension of time, as more than 60 days had elapsed since the determination. The second defendant opposed the application, in part as he had served the sentence, and was concerned that an extension may re-enliven charges against him.

190 Forbes J was satisfied that a number of features of the case amounted to the existence of special circumstances, such that an extension of time should be granted.[57] In so deciding, her Honour considered that the plaintiff's case was 'more than strongly arguable', and attached weight to the concession by the second defendant that the magistrate acted without jurisdiction.[58] Her Honour also considered that there is a public interest in ensuring that courts only act within jurisdiction.[59]

191 For my reasons summarised at [174]-[176], I consider that there was an error of law committed by Mr Yannelis and the Board. While neither the sole nor determinative factor, in circumstances where I consider the plaintiff's case to be 'more than strongly arguable', I accord significant weight to this factor in my consideration of whether special circumstances exist to justify the granting of an extension of time.

192 In addition to the merits of the plaintiff's application, the other factors I have considered are discussed as follows:

194 The time from the substantive determination, to the issuing of the originating motion was almost 14 months.

195 Although not excessive in comparison to some other cases where some years had passed,[60] this is still a substantial period of delay, and one that should not be readily discounted.

196 The plaintiff contended that I should consider Frank's poor health and Michael's personal circumstances in exercising my discretion. I was specifically referred to Frank's extensive health problems, which included:

• End stage kidney disease;
• Ischaemic (coronary heart disease);
• Hypertension;
• Type 2 diabetes mellitus;
• Renal anaemia;
• Right foot sarcoma surgery in 2014;
• Obstructive sleep apnoea; and
• Major depression.

197 In relation to Michael's circumstances it was stated that since approximately August/September 2018, Michael had been Frank's full-time carer. Prior to that, Michael had been their father's full-time carer. Michael stated that he suffers from a chronic medical condition, which manifests in chronic fatigue if left untreated.

198 The Council contended that these did not constitute special circumstances to justify the granting of an extension of time.

199 I consider the poor health and personal circumstances as detailed in affidavit material explains in part the plaintiff's inaction between 15 October 2018 and 30 November 2020. Of itself, neither amounts to special circumstances, but together both are relevant factors I have given some modest weight to.

200 The plaintiff asserted in its further amending originating motion, that it would suffer financial hardship if leave was not granted, as the plaintiff had been deprived rental income from the subject property as a consequence of the BOMW and it was secured against a mortgage, with the loan currently in arrears. It was also put that Frank had been unemployed due to his disability since 2010 and 'currently derives nil income'.

201 However, I note that there was no affidavit material in respect of any alleged financial hardship of the plaintiff, and thus I have had no regard to this in my determination of the plaintiff's application for an extension of time.

202 The plaintiff submitted that as the Council has commenced a criminal prosecution in the Magistrates' Court in respect of an alleged failure to comply with the varied BOMW (on the basis that the BOMW is lawful), the plaintiff will suffer prejudice if it is deprived the opportunity to contest the decisions under review in this proceeding. The plaintiff contended that if an extension of time is not granted, it will be necessary to submit that the BOMW is unlawful in its defence of the criminal prosecution. Therefore, it contended special circumstances were made out on the basis that it is preferable for a superior court to determine the legitimacy of the BOMW.

203 Given I am satisfied that the BOMW was a nullity, it follows that the related Magistrates' Court proceeding cannot continue. I consider this factor also weighs in support of there being special circumstances to justify an extension of time.

204 The plaintiff submitted that I should accept Michael's evidence as to the difficulties he claimed to have with the nominated email address, and that this constitutes a special circumstance, justifying an extension of time.

205 The plaintiff submitted that the Board's failure to serve the varied BOMW by way of post was a factor which favoured the granting of an extension. The plaintiff submitted that s 114 required a building order to be served on it without delay. Section 236 articulates the process for service of documents under the Act. It states that service of documents may be effected by personal delivery, leaving the document at the person's last known address, or sending the document by post. Further, Schedule 3, Item 16(5) states that a determination made by the Board must be served on each party to the proceeding without delay.

206 The Council submitted that in circumstances where the plaintiff knew that it had submissions in support of its bias application due and the substantive proceeding had not yet been determined, any failure in the plaintiff's email system, should not constitute special circumstances. The Council submitted that if time was extended this proceeding may stand as authority for the proposition that those engaged in proceedings from which judicial review is available, need not diligently prosecute their claims below and/or that they can rely on the malfunctioning of technology to avoid the time limits provided for in Order 56. I do not accept this submission.

207 It is understandable that the Council is frustrated by the plaintiff's effective 'radio silence' which occurred for a two year period. An applicant in a proceeding, whether before a board, a tribunal, or court, is expected to make all reasonable endeavours to prosecute the claim in a timely manner. It is incumbent upon such a party to ensure that their chosen means of electronic communication remains reliable and in sufficient working order throughout the course of the proceedings to ensure that all relevant procedural notices and orders are received. Nothing in this judgment should be considered authority to the contrary.

208 However, in respect of the Board's substantive appeal determination, in circumstances where there had been no receipt of communication from the plaintiff for almost 14 months, I consider it would have been both reasonable and prudent for the Board to have formally served its orders and reasons for decision on the plaintiff by post to the postal address provided in its appeal documents.

209 Further, in respect of the Board's variation to the BOMW, I am satisfied that this was not served in accordance with s 114(2), and this is a further factor relevant to the exercise of my discretion.

210 The plaintiff submitted that extending time is in the public interest and will restore confidence in the administration of justice. The Council submitted that the public interest in the finality of litigation stands firmly against an extension of time.

211 Given my conclusion that the BOMW was not issued in accordance with the powers afforded to the MBS under s 113, I consider it is in the interests of justice to grant an extension of time to minimise any future uncertainty to Councils, building surveyors, and property owners, as to the use or issuance of minor work building orders.

212 Having synthesised the relevant factors, I am satisfied that special circumstances exist to justify the plaintiff being granted an extension of time to seek judicial review in respect of the Board's substantive appeal determination.

213 For the reasons expressed above, I am satisfied that the BOMW, and the varied BOMW were both nullities.

214 In view of the above, it is not necessary to separately determine the plaintiff's other grounds for judicial review, including those errors alleged in respect of the first two determinations, nor the Board's costs orders.

215 I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.

[1] It is unclear looking at the notice of appeal whether the correct date is 28 or 29 September, however nothing turns on this.

[2] Mr Frank Guastalegname and Michael Guastalegname are brothers and, as they share the same surname, in this judgment I will refer to each by their first name only. In doing so, I intend no disrespect, but do so as a matter of convenience to the reader.

[3] There was a costs order made on 6 April 2021 for the sum of $46,727.00, however this amount was a typographical error, and thus this order was amended on 19 May 2021 to the sum of $6,727.00.

[4] R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.

[5] On the first day this matter was listed for hearing, I granted the plaintiff a brief adjournment to allow time for it to prepare a proposed further amended originating motion, so as to narrow the issues in dispute and clarify its grounds of appeal. When the hearing resumed a few days later, I granted the plaintiff leave to file this further amended originating motion. Unfortunately, the matter was delayed thereafter for some time due to COVID, and was relisted on 18 July 2022.

[7] Sworn 20 October 2021 and 31 October 2021.

[8] Affidavit of Prospero Franzese sworn 15 July 2022.

[9] Sworn 10 June 2021 and 15 November 2021.

[10] Building Act 1993 (Vic), s 4(1)(a) ('the Act').

[14] Section 107 of the Act relates to actions of private building surveyors and is not relevant to this application.

[15] Building Interim Regulations 2017 (Vic) ('the Regulations').

[20] The notice of appeal to the Board refers to these proceedings being issued on either 30 September 2013 or 30 September 2014. The date of issue is immaterial to this proceeding.

[21] [1959] HCA 8; (1959) 101 CLR 298.

[22] Save for the claim at 2.11 in the plaintiff's further amended originating motion being that the Board erred in law in failing to take into account the contents of the report of structural engineer George Cross of Bayside Building Services dated 12 July 2013 and or the report of Buildcheck Engineering and Building Consultants of 2006.

1. [23] Joseph v Worthington & Anor [2018] VSCA 102 [19]-[21], adopting the principles as summarised in Joseph v Worthington [2017] VSC 501.

[32] As defined in the Act (n 10), s 3.

[33] Metwally v University of Wollongong [No 2] (1985) 60 ALR 68, 71.

[34] [2003] FCAFC 50; (2003) 73 ALD 341 ('Peacock').

[37] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, 305, 320-1; together with cases cited in Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276, [19].

[41] The plaintiff submitted, and I accept, that the reasoning in Peacock (n 34) had only been applied in appeals where the matter had previously been before a single judge, and cited ACCC v Safeway Stores [2003] FCAFC 149; (2003) 129 FCR 339; Walker v Davlyn Homes [2003] QCA 565; Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14; SZMDS v Minister of Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361; and Austral Masonry (NSW) Pty Ltd v Cementech Pty Ltd [2014] FCAFC 72.

[42] Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221.

1. [43] Lazarevic v Victoria Police [2014] VSC 497, [30] ('Lazarevic No 1') and Goodman v Victorian Civil and Administrative Tribunal and Ors [2011] VSC 35, [28] citing Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3 ('Re Beadle'). An appeal from Re Beadle was dismissed by the Full Court of the Federal Court of Australia [1984] AATA 176; (1985) 60 ALR 225.

1. [46] Lazarevic v Victoria Police [2015] VSC 13, [36] ('Lazarevic No 2').
2. [47] Lazarevic No 1 (n 43), [35].

[48] [2011] VSC 28.

[50] [2015] VSCA 127; (2015) 50 VR 577.

[53] Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [19] ('Mann No 1'), approved in Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [7], [24], [72].

[55] [2019] VSC 493 ('Martin').

[56] Pursuant to Order 56.02 of the Rules.

[60] For example, AB v County Court of Victoria & Anor [2017] VSC 740 (a delay of almost 3 years) and Blyss v The Magistrates' Court of Victoria [2016] VSC 548 (a delay of almost 4 years).