Stewart v Building Practitioners Board [2001] VSC 349

6. The plaintiff, John McLean Stewart ("Mr Stewart"), is and was, at all material times, a registered building practitioner, who conducted a building business through a company called Attic Ladders Pty Ltd.

9. The first defendant is the Building Practitioners Board ("the Practitioners Board"), and is the body created by s.183(1) of the Building Act 1993 ("the Act").

12. Its functions are set out in s.183(2) of the Act, and they include any function conferred by the Act. Under s.178, it is empowered to conduct an inquiry into complaints made against a registered building practitioner. Complaints were made against Mr Stewart. The Practitioners Board held an inquiry into the complaints, found them proven and imposed a reprimand, as punishment.

15. Mr Stewart appealed to the second defendant against the penalty.

18. The second defendant, the Building Appeals Board ("the Appeals Board"), is a body established by s.166(1) of the Act. It heard the appeal by Mr Stewart in respect of the penalty, allowed the appeal and set aside the penalty. After it had published its determination, Mr Stewart's solicitors sought to make an application to the Appeals Board for an order for costs of the appeal. The Appeals Board refused to hear the application.

21. The defendants did not appear at the hearing before this Court.

24. The Appeals Board was a necessary party to the proceeding by reason of the fact that it was its decision which was the subject of review, and by reason of Rule 56.01(2)(b) of the Rules of Court. Its solicitor, the Victorian Government Solicitor, forwarded a letter to the Prothonotary, dated 15 May 2001, stating that the Appeals Board would not take a role in the proceeding and would abide the decision of the Court. The letter went on to provide that this stand was consistent with the principles stated by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35.

"In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the tribunal is not one which we would wish to encourage. If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the tribunal." (Emphasis added).

31. It is important to appreciate that what the High Court stated is not an inflexible rule and that in each case, the decision maker should consider the grounds for the review and if the attack is made in respect of its jurisdiction, powers or procedures, it should appear to put submissions in order to assist the Court. If there is another party who is the true contradictor, generally it is more appropriate to leave the presentation of any argument to the Court to the other defendant. But again, that will depend upon all the circumstances. It may not be in the interests of the other defendant to raise the matters which go to jurisdiction, powers and procedures of the decision maker.

34. In Hardiman's case, a party appeared and put submissions in support of the decision. What the Court said must be viewed in context. In that case, it was unnecessary for the Tribunal to put arguments in support of the decision.

37. The first defendant, the Practitioners Board, adopted the same approach as the decision maker, the Appeals Board. Its solicitors informed the Court that it did not wish to make any submissions to the Court, would not be represented at the hearing, and would abide the decision of the Court. The reason given for the non-appearance was that the review did "not relate to any decisions made by the Building Practitioners Board". This misunderstands the reason why it was joined as a party. Its interests are in issue. If an order is made for costs, it would be against the Practitioners Board.

40. Because the Practitioners Board was served with the notice of appeal, it became a party to the appeal before the Appeals Board. See clause 14 of Part 3 of Schedule 3 of the Act. Indeed, if any order was to be made for costs in the appeal itself, the order would be made against the Practitioners Board. The Practitioners Board has an interest in the outcome of the proceeding. The Board was a necessary party to this judicial review and, in my opinion, what the High Court said in Hardiman's case had no application to the Practitioners Board. It should have appeared in this proceeding and supported the decision made by the Appeals Board, if the decision could be supported. It was the true contradictor to the plaintiff's claim and should have appeared in the review to contest his claim and to assist the Court. The outcome of the review may affect its interests.

43. Defendants in judicial review should carefully and properly consider their positions and bear in mind, first, that what the High Court said is not an inflexible rule, that it is necessary and appropriate to have a contradictor in the proceeding for a number of reasons, including assisting the Court, and that if, as a result of the relief granted, the interests of a particular defendant are affected, that defendant should appear at the hearing.

46. Given that the Practitioners Board proposed not to appear and in light of the grounds that the jurisdiction of the Appeals Board was in issue, the Appeals Board should have appeared at the hearing.

49. If a defendant forms the view that the plaintiff must succeed on a judicial review, then in those circumstances, it would be appropriate to not oppose the grant of relief and to inform the Court accordingly. In those circumstances, any appearance would be kept to a minimum and the exposure to a costs order against the defendant who was not responsible for the decision would be reduced.

52. It is unfortunate that neither defendant appeared on this review. The review raised the question of the extent of the jurisdiction of the Appeals Board when hearing and determining an appeal.

56. On 6 December 1999, the Practitioners Board commenced an inquiry, pursuant to s.178, into the conduct of Mr Stewart as a building practitioner. The inquiry was initiated by a referral from the Building Control Commission. The allegations concerned certain work carried out by Mr Stewart and his company, Attic Ladders Pty Ltd, in respect of premises in East St Kilda.

59. On 3 April 2000, the Practitioners Board found Mr Stewart guilty of one allegation and imposed, as a penalty, a reprimand, pursuant to s.179(2) of the Act.

62. On 1 June 2000, Mr Stewart appealed the decision of the Practitioners Board to the Appeals Board, by lodging a notice of appeal.

65. Section 166(6) provides -

"(6) Schedule 3 has effect with respect to the membership and procedure of the Building Appeals Board."

69. Part 3 of Schedule 3 is concerned with a proceeding before the Appeals Board. The appeal is commenced by serving on the Board the notice of appeal, and by reason of clause 13(3) of Schedule 3, Mr Stewart was obliged to serve a copy on the decision maker against whom he was appealing, that is, the Practitioners Board, and by reason of clause 14, the Practitioners Board became a party to the appeal.

72. The appeal came on for hearing before four members of the Appeals Board on 19 October 2000, and Mr Stewart was represented by counsel.

75. The main issue at the hearing concerned the penalty. The issue of costs of the appeal was not raised by the Board, or counsel appearing for Mr Stewart, or the representative of the Building Practitioners Board. At the conclusion of the hearing, the chairperson stated that the Board would consider the issues and deliver its decision later.

78. On 9 November 2000, the solicitors acting for Mr Stewart received a copy of the determination of the Board. The determination comprised one page, was dated 2 November 2000, described the nature of the appeal, namely, that it related to the penalty, and then set out the decision of the panel as follows -

"Having considered all the information and submissions placed before it the Board determines as follows:

The Board determines that the finding of the Building Practitioners Board, to issue the building practitioner with a reprimand, be quashed."

84. There is no mention of costs, and that is not surprising, considering no submissions were made by either party to the Appeals Board on the question and in the light of the general rule, which is set out in clause 17 of Part 3 of Schedule 3. The general rule is that each party should bear his, her or its own costs unless the Board otherwise determines.

87. On 22 November 2000, Mr Stewart's solicitors contacted the Appeals Board Registry, indicated that Mr Stewart wished to make submissions to the Board in respect of costs, and was told to make application to the Registrar of the Appeals Board.

90. On 2 January 2001, the solicitors forwarded a letter to the Registrar of the Appeals Board, requesting that the matter be re-listed before the Board to consider an application for the payment of costs of the appeal.

93. By letter dated 5 March 2001, the Registrar informed Mr Stewart's solicitors that the Board declined to re-list the matter. The letter concluded as follows -

"The Board may only consider any order as to costs upon application from a party to a proceeding, and that order is to be included in its determination. If no application is made the Board can make no order for costs and the parties are required to bear their own costs. The determination made by the Board is final and there is no basis upon which this matter can be re-listed before the Board for further applications or submissions to be considered."

97. The thrust of the Registrar's letter is that the Appeals Board only had jurisdiction to deal with costs in its written determination and if it did not do so, because no application was made, it no longer had any jurisdiction to entertain any application for costs. In other words, its jurisdiction was exhausted once it discharged its statutory obligation to hear and determine the appeal. That is the issue before me on this judicial review. Was the Appeals Board functus officio once it had served a copy of the written determination on the parties to the appeal?

100. That involves an issue going to jurisdiction, and it was submitted, on behalf of Mr Stewart, that the Appeals Board had jurisdiction to entertain an application for costs after it had made the determination in writing and served it on the parties. By declining to do so, it was refusing to exercise its jurisdiction. What Mr Stewart in effect seeks are orders in the nature of certiorari, to quash the refusal to hear the application, and an order in the nature of mandamus, requiring the Appeals Board to hear an application for costs and the determination of same.

104. The jurisdiction is an ancient one and is subject to the procedural rules of the Court.

107. Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs, but nevertheless preserves the jurisdiction of the Court to make prerogative writ-type orders. It is clear the rules do not affect the common law jurisdiction of the Court, and it is equally clear that this Court has jurisdiction to make an order in the form similar to the old prerogative writs of certiorari and mandamus, namely, quashing a decision under review and compelling the body to hear the matter in accordance with the law.

110. The writs went only to an inferior body or a body exercising powers pursuant to legal authority affecting rights of subjects. See R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1924) 1 KB 179 at 205.

113. This proceeding is concerned with the decision-making process of a statutory body. In view of the distinction between jurisdictional error and non-jurisdictional error, it is important to note that the effect of a non-jurisdictional error of law by a body, depends on whether it is a body or an inferior court making the decision.

116. But whether the decision is made by a statutory body or an inferior court, the jurisdiction is necessarily limited.

119. The jurisdiction is supervisory and does not entitle the Court to canvass matters that it would on an appeal. The jurisdiction is a common law one and is different to an appeal.

122. The judicial review procedure is concerned with the legality of what was done or not done by the body in question, and is not concerned with the merits of the decision under review. This is contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on the judicial review is whether the decision is in accordance with the law.

125. The scope of the supervisory jurisdiction where the relief claimed is in the nature of the old writ of certiorari, quashing the decision or order, was summarised by the High Court in Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 175-76.

128. The jurisdiction is concerned with the decision-making process. In Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, Lord Brightman, at p.1173, said -

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

132. See also R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 655.

135. The grounds upon which the review may be based, depend on whether the body in question is an inferior court or a statutory body making a decision or failing to make a decision according to law. See Craig's case, supra, at p.176.

138. The grounds available, where the Court is dealing with a statutory body, were listed by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 at 171.

141. In the present proceeding, the Court is not dealing with an error in the decision-making process, but a refusal by the Appeals Board to consider an application for costs after it has made its determination and served a copy on the parties.

144. What Mr Stewart seeks is an order in the form of mandamus, requiring the statutory body to exercise its jurisdiction. The remedy of mandamus is the means by which a public authority is required to perform its public duty. It is a discretionary remedy, and may be withheld in the interests of justice. It can be granted against a statutory body.

147. In The King v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, the High Court said at p.398 -

"Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of the statutory duty and no specific legal remedy is provided for enforcing that right: R v the Commissioners of Inland Revenue; in Re Nathan. The writ only goes in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner."

151. The Court observed at p.400 that the writ is not a writ of right, nor does it issue as a matter of course. However, in the absence of good cause, if the refusal to exercise a definite public duty is established, then the writ issues, unless there are circumstances that the remedy should be withheld.

154. It is necessary to prove that the Appeals Board has refused jurisdiction. That is a question of fact. The High Court said in Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; (1993) 178 CLR 379, that there is no rule of law to the effect that it is necessary to make a demand before the Court may infer that there has been a refusal to act. But as the High Court pointed out, it is a convenient method of testing "whether there has been a refusal, actual or constructive, to exercise jurisdiction."

157. It is clear that the refusal to exercise the jurisdiction must be proven and it must be in respect to the exercise of the jurisdiction. This Court is not concerned with error resulting from the making of an incorrect decision, in the course of exercising jurisdiction.

The Appeals Board and its Statutory Duties and Powers

164. Section 166(1) establishes the Appeals Board. It is not a body corporate.

167. Section 166(6), which I have set out above, provides that Schedule 3 governs its membership and procedure.

170. As the Appeals Board is a body created by statute, its powers, duties and rights are to be found within the four corners of the Building Act 1993. It does not have any inherent powers. However, it does have incidental powers to enable it to properly exercise its powers, duties and rights.

173. The Appeals Board is given powers that are necessary "to enable it to act effectively within such jurisdiction". However, it must be emphasised that they are not inherent powers but incidental powers, to enable it to properly and effectively perform its jurisdiction.

176. The Appeals Board has jurisdiction to hear appeals from a variety of decisions. See s.138(1). There are other provisions dealing with appeals, for example, the owner of a building may appeal to the Board pursuant to s.142.

179. Section 143 gives the right to appeal a decision of the Practitioners Board. It was this right which Mr Stewart invoked.

182. Section 149 prescribes what the Appeals Board may do and requires the Board to "consider and determine an appeal and by its determination may -

(a) affirm the decision under appeal; or

(b) quash the decision under appeal; or

(c) vary the decision under appeal; or

(d) set the decision under appeal aside,"

and substitute its own decision or remit it back to the decision maker.

189. Section 149(4) provides -

"(4) The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal."

193. It is observed that the Appeals Board makes a determination on the appeal.

196. Part 3 of Schedule 3 is headed as follows -

"PART 3 - PROCEEDINGS BEFORE THE BUILDINGS APPEAL BOARD"

200. Clause 12 provides that the Part is in addition to and does not affect any other provision of the Act. Clause 15 is concerned with the proceeding. The following clauses are relevant to the issue in the present proceeding, and I set them out in full -

(1) A determination of the Building Appeals Board must be in writing.

(2) The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just.

(3) The determination may include any other incidental order or direction that the Building Appeals Board considers is necessary.

(4) 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.

(5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give the party written reasons for its determination.

(6) The Building Appeals Board must comply with a request received under sub-clause (5) without delay after receiving it.

(7) The Building Appeals Board may make public any of its determinations in any manner it thinks fit.

(8) The Building Appeals Board is not bound by its earlier determinations.

17. Costs Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs. 18. Correction of errors

(1) On its own initiative or at the request of a party to a proceeding, the Building Appeals Board or a panel of the Board may make a determination correcting an earlier determination in which there is -

(a) a clerical error or accidental slip or omission; or (b) an evident material miscalculation of figures; or (c) an evident material mistake in the description of a person, property or thing. (2) The powers of the Board under sub-clause (1) may also be exercised on behalf of the Board by - (a) the chairperson of a panel of two or more members; or (b) the chairperson of the Building Appeals Board, if the relevant panel or the chairperson of the panel is unavailable. 19. Enforcement of determination A determination of the Building Appeals Board may be enforced as if it were a judgment or order of a court of competent jurisdiction."

212. Unless the statutory provisions provided for an order for costs, it would not be open to the Appeals Board to make any order for costs. It is clear from clause 17 that the Board does have power to make an order for costs. It establishes a general rule, namely, that there should be no order as to costs. But, it is clear that the Board may, in appropriate circumstances, refuse to follow the general rule and make an order for costs. One looks in vain to find any criterion to guide the Board when application is made to override the general rule and order costs.

215. However, in my opinion, the presence of the general rule requires that circumstances must be established to override the general rule, and that means something more than being a successful party.

218. Mr Northrop of Counsel, for Mr Stewart, submitted that the terms of clause 17 establish the jurisdiction in the Appeals Board to hear an application after the determination of the Appeals Board has been made. In isolation, clause 17 supports his submission. There is nothing in clause 17 which precludes application being made after a determination has been made on the appeal.

221. However, the Court, in considering the jurisdiction of the Appeals Board, must give effect to the intention of Parliament, and the primary source of the intention is the words of the statutory provision taken in context and giving effect to the purpose of the legislation.

224. Clause 16 sets out a potential three-step procedure after the Appeals Board has reached its decision. The first step is necessary.

227. The first step is that the Board make a determination, which must be in writing and must be served on each party to the proceeding.

230. The second step is that a party may request the Board to provide, to the party, written reasons for its determination, which the Board must do without delay. This step must be taken within one month after receipt of a copy of the determination.

233. The third possible step is that after the month has elapsed and no application has been made for reasons, an application may be made to the Board for further time to make the request under clause 16(5).

236. Arguably, at that point, the Appeals Board has exhausted its jurisdiction i.e. it is functus officio.

239. It is important to note clause 16(2). It provides that the determination may include an order as to costs on the application of any party to the proceeding.

242. Mr Northrop emphasised the discretionary word "may", which he contrasted with the mandatory word "must" which is also used in clause 16. He submitted that the use of the word "may" demonstrated that it was not the intention of Parliament to exclude the power of the Appeals Board to entertain an application after it had made its determination and served it on the parties. In other words, a discretion is given to the Board to include an order for costs in the determination if it thinks it is appropriate when application is made.

245. What clause 16(2) permits is that if application is made for costs by a party to the proceeding, the Appeals Board may include an order in the determination. It is not obliged to do so. This supports the conclusion that the Board may entertain an application later and make a determination for costs under clause 17.

248. Mr Northrop further submitted that to preclude jurisdiction to hear and determine an application for costs, after the determination is made concerning the appeal, leads to an absurdity and is unworkable. As Mr Northrop said, "How can a party seek costs until the outcome is known?" In making that submission, he is very much influenced by what happens in a court of law where the question of costs is usually considered after the decision has been pronounced. But that is not the position in all types of litigation. In my experience, submissions on costs are often made in arbitrations during the course of the hearing and before the publication of the award. There is no reason why submissions cannot be made in anticipation of the result. It often happens in interlocutory matters and on appeals.

251. He submitted that it has the appearance of unreality to have to make a submission before the decision is made on the question of costs, and that there would be real difficulties in making submissions. He said it would be necessary to place evidence before the Appeals Board as to the likely quantum of costs. He said there may be other issues, for example, a Calderbank-type letter which could only be produced when the decision has been reached. In my opinion, these are not matters which would be likely to create any problems for either the parties or their legal advisers, or the Appeals Board, if submissions were made during the hearing, and if there were any concerns, steps could be put in place to avoid any embarrassment or possible injustice.

254. In my opinion, the issue comes down to whether there is anything in the Act, including the schedules, which limits the general words found in clause 17. The terms of clause 17 do not, in my opinion, preclude the Appeals Board from hearing an application for costs subsequent to publishing its decision on the appeal.

257. There is no warrant to read down the words of the clause. The words do not preclude application being made subsequent to the determination on the appeal. The word "determines" supports the conclusion that another determination may be made. If it is, clause 16(1) would apply to it.

260. The provisions of clause 16(2) do not evince a legislative intention to preclude the Board's jurisdiction to hear an application for costs at a later date. The use of the word "may" supports the conclusion that the Board has jurisdiction to consider costs after publication of the determination of the appeal.

263. In my opinion, once the determination on the appeal has been made and served on each party to the proceeding, it does not exhaust the jurisdiction of the Appeals Board to entertain an application for costs consequent upon the outcome of the appeal.

266. It follows that the Appeals Board, by refusing to entertain an application for an order for costs, was declining to exercise a jurisdiction which it had. It is clear from the letter dated 5 March 2001, that the Board took the view that once the determination had been made by the Board in respect of the appeal, it no longer had any jurisdiction to entertain an application for an order for costs. In my opinion, it did have the jurisdiction and in declining to do so, failed to carry out its statutory obligation.

269. I conclude by saying that a search by the Court and counsel did not reveal any rules or regulations relating to the appeals before the Appeals Board, save for Regulation 12 of the Building Regulations 1994, which deals with the period for institution of an appeal to the Appeals Board. If either defendant had appeared, no doubt it could have assured the Court that there were no rules or regulations made which would have any effect upon the matters considered in this judicial review.

273. It follows that Mr Stewart has established that the Appeals Board declined to exercise a jurisdiction which it had and should have exercised, and, accordingly, has shown jurisdictional error.

276. Subject to submissions from Counsel, I propose to make the following orders -

(i) The decision made by, for, or on behalf of the Appeals Board and conveyed in the letter dated 5 March 2001 to the plaintiff's solicitor by the Registrar of the Building Appeals Board, refusing to hear an application by the plaintiff for costs, consequent upon the appeal, is quashed.

(ii) That the Building Appeals Board hear and determine any application made by the plaintiff for costs in respect of the appeal to the Board in accordance with the law.