Cautionary Tale: Building Lawfare
Updated: Aug 17, 2022
Before beginning this discussion, it is imperative to note I have no training in law so cannot offer advice, nor can I mention the names of the practitioners or company involved in my dispute. It is only in the public interest that I share my experience to raise awareness.
As I understand, the term lawfare originated in the 1950s, America. I believe it has to do with the law and legal systems being operationalized as a weapon of power usage that systems and institutions can employ to achieve their own goals. It can have a double meaning.
For example in protecting the national interest, or the welfare of children, lawfare can be viewed as a positive endeavor. In this situation, who could berate Counsel doing good work with ruthless determination?
In other circumstances, the misuse of legal systems and principles can inflict much harm when the rule law of law and integrity is subverted by powerful vested interests or captured by industry.
Sascha-Dov Bachmann from the University of Canberra, recently cited lawfare as a hybrid that has no bloodshed but many victims, which is a good analogy to draw when building practitioner standards are severely compromised and building regulations are not enforced.
Anyone in Victoria who has struggled to seek redress regarding wrongdoing in their building project will more than likely have been subjected to financial and legal obstacles impeding justice. Where my case is concerned, a negative form of lawfare permeated every aspect of that process.
I entered into a domestic building contract with a registered builder to construct a dwelling that would accommodate disability requirements. The builder was responsible for the design drawings and he engaged a surveyor, who was also an experienced civil engineer, to issue the staged Building Permit, properly conduct four mandatory stage inspections as set out on the Building Permit, and issue the Occupancy Permit.
It soon became visually obvious the build was failing to meet acceptable standards. The cut off the block was too deep; the slab had been poured contrary to submitted plans and incorrectly sited on the block; the original design plans approved by Council had been altered on Building Permit documents without my knowledge or consent; the garage door opening that structurally sits directly below the upstairs lounge room, was noncompliant and outside industry standards. Defective brickwork was evident around the entire dwelling.
Furthermore, the Building Permit did not show the layout of drains to the legal point of discharge on the allotment, and on that basis alone, the permit should not have been issued.
When communications with the practitioners deteriorated, I requested Building Advice and Conciliation Victoria (BACV) which was a joint Building Commission and Consumer Affairs Victoria service, to come onsite and investigate my complaint.
No disciplinary actions were taken.
At that stage, the Building Commission investigator would (or should) have known that mandatory stages of inspection had been conducted by unregistered persons.
It was a massive failure to act.
At my request, the Victorian Building Authority came onsite to conduct an investigation of my complaint against both the builder and surveyor. Significantly, the surveyor himself disclosed to the Victorian Building Authority that four mandatory stage inspections at our site had been unlawfully conducted by three unregistered people.
In particular that unregistered Person One inspected and approved the two mandatory slab inspections; unregistered Person Two conducted the mandatory frame inspection, and that unregistered Person Three inspected and approved the mandatory final inspection for the issuing of the Occupancy Permit that rendered the Occupancy Permit invalid.
The surveyor merely signed the permit to give this fraudulent rort legitimacy.
Only one allegation was ever framed against the surveyor permitting three unregistered persons to conduct four mandatory stage inspections at our site. This was confounding given all four breaches were identical in scope under Part 11 of the Building Act 1993.
A Building Practitioners Board (BPB) Inquiry was held into the professional conduct of the builder and he was found guilty of all allegations. That guilt finding is no longer on the VBA website.
Practitioner records are being obliterated.
The VBA web now states: it only holds individual building records from November 2015, company building records from July 2018 and plumbing records from June 2019. With regard to the surveyor, it seemed a different regulatory standard was operating.
The VBA refuted my suggestion that the regulator was seeking to minimize and omit evidence as "inappropriate and unjustified".
The regulator argued that to the extent the allegations against the surveyor did not include all specific aspects of the complaints raised, "was likely to be in part because the allegations are not substantiated to the standard required under legislation and case law as applicable at the time of the alleged conduct".
The VBA statement implied a different building law and standard applied when our home was constructed. This is not correct. The Building Act relevant at the time is quite clear about the role and responsibilities of building surveyors. The duty of the relevant building surveyor is to ensure work for which they have issued a Building Permit is compliant with the Act, Regulations and the Building Permit.
A failure to do so is a failure to discharge and complete a statutory obligation.
I persistently requested that all four unlawful mandatory stage inspections conducted by three unregistered persons, and other major breaches of the Act, be framed as allegations to be heard at the 2018 Building Practitioners Board Inquiry into the conduct of the surveyor, but this never eventuated.
Untruths were widely disseminated with multiple errors of fact transferred across numerous documents creating misinformation that was never corrected.
For example, in order to justify the slab breach, it was wrongly claimed that a builder variation had been signed by me prior to the commencement of works.
This untruth (error of fact) is evident in a 2010 variation proposed by the builder, but it was doubted I would sign it. The builder backdated the variation to 2009. I refused to sign the document and changed solicitors.
This error of fact found its way into a building consultant report and was then transported into the Victorian Building Authority’s External Technical Report and other relevant documents.
The Victorian Building Authority further skewed the facts of the matter in their External Technical Report by claiming there was not a full set of drawings on file, so for the purposes of the review, the Building Permit drawings would be taken to be the original Contract Design Drawings.
This was misleading and deceptive because both the Building Commission and Victorian Building Authority had been given hard copies of the approved 18-page Contract Design Drawings when they came on site.
They were also aware these same drawings had, without my consent or variation been altered by the surveyor on the Building Permit, which I now believe was to cover the mistakes of the builder.
When it was evidenced that the name of the unregistered person who unlawfully conducted two mandatory slab inspections at our site was being misspelt in VBA documents, I requested clarification; especially given the unregistered person was the former business partner of the building surveyor.
The regulator confirmed the misspelled name was the same spelling used on the statement taken from the surveyor but did not endeavor to correct the error. I was therefore obliged to employ the incorrect spelling in relevant documents thereafter, which legally placed me at risk.
Section 246 of the Building Act makes it an offense for a person to knowingly make false or misleading information to a person or body carrying out any function under the Act or Regulations.
A further set of imperative questions were sent to the VBA asking why the two equally unlawful slab stage inspections and the final inspection for the issuing of the Occupancy Permit were not being framed as allegations against the surveyor given the breaches were all identical in scope under Part 11 of the Building Act. No satisfactory answer from the Authority was forthcoming.
The VBA continued to argue there was not enough evidence to take further actions against the surveyor based on the numerous technical reports but did not specify exactly which reports it was referring to.
In actual fact, it can be shown there was more than enough evidence to demonstrate negligence and duty of care failure.
The Authority confirmed it had the 2011 report of my first expert in its brief of evidence in 2013. This report noted the extent of defective workmanship including the excessively deep cut to the block; slab being poured contrary to submitted plans and defective brickwork so extensive that it would require a rebuild.
This vital evidence was not, for reasons that will become obvious, taken into account by the building regulator. The VBA was also given a second expert report that made reference to defective works attributable to both the builder and the relevant building surveyor.
Furthermore, the VBA’s own (heavily redacted) External Technical Report (2013) obtained under Freedom of Information noted the house was incorrectly sited on the block; had entry problems resulting from the raising of the slab that would have been obvious to a
competent builder; defective brickwork around the entire dwelling and other breaches of the Act and Regulations.
All this wrongdoing fell directly under the regulatory gaze of the relevant building surveyor.
Instead of properly holding the surveyor to account, the VBA willfully covered up the full extent of wrongdoing at our site.
In correspondence from the VBA, I was instructed that it may be "an abuse of process and not in the public interest to pursue any further disciplinary actions against him".
This seemed totally at odds with the regulator’s primary function and duty. My understanding being the Victorian Building Authority is obliged under the Building Act 1993 to monitor and enforce compliance and take proper disciplinary actions when practitioners breach the Building Act, Codes and Regulations.
Where my case was concerned the opposite occurred.
Both the original allegation and 2018 Notice of Decision of the Building Practitioners Board Inquiry into the conduct of the surveyor, incorrectly described the unlawful frame inspection as being works for an "alteration and extension", not the construction of a two-story building.
This was not a clerical error but in fact an odious minimization of vital evidence.
Repeated requests for amendment were rejected. So the official record of evidence regarding my case remains incorrect even though the VBA had known about the "alteration and extension" untruth since 2016.
Furthermore, the name of the person on the allegation for the unlawful frame inspection at our site was strategically not mentioned in the BPB Inquiry "agreed statement of facts"
Again vital evidence was withheld from the Board Panel.
Malfeasance (wrongdoing by a public official), misfeasance (engaging in an action or duty but failing to perform the duty correctly) and nonfeasance (failing to perform an act that is required under law) was rampant.
Frustrated and disappointed by what appeared to be collusion and cover up of systemic wrongdoing I continued to write to the Premier of Victoria, the Minister for Planning, Leader of the Opposition and relevant others but I was stonewalled.
It became clear a hidden agenda was corrupting regulatory processes and procedure.
The Hidden Agenda
Indisputable evidence shows that between 2009 and 2015, the surveyor engaged in unconscionable conduct when he unlawfully employed six unregistered persons, to conduct mandatory stage inspections across Gippsland and beyond.
Originally the relevant building surveyor was facing 400 allegations across 131 sites.
Unlawful inspections were carried out at a voluminous numbers of residential properties; a shopping centre; public buildings; a supported care accommodation unit; medical consulting rooms; the Clinical School of Nursing and High Dependency Unit in a major regional hospital and worryingly, the footings, foundations, frame and final inspection for the construction of a petrol filling and storage station facility in Gippsland.
Further allegations framed against the surveyor included the issuing of a staged Building Permit, at a site in respect of building work in circumstances where consent of the Chief Officer (fire safety) was required under the Act and Regulations, but had not been obtained.
Evidence also shows that around the time of my complaint, the surveyor was holding more than 4,000 open permits, many with a volume builder.
If under the Building Act (relevant at the time), the surveyor were to lose his ‘fit and proper person’ status as a result of his own professional negligence, then his registration would automatically be suspended.
Who then would be responsible for the open permits? Particularly if unregistered persons had conducted mandatory stage inspections at those sites.
With this possibility in mind, it seemed the primary focus of the building regulator shifted to protecting the surveyor’s professional status and insurance.
I believe this deplorable strategy had priority over my right to have the full scope of facts, and evidence relevant to my complaint presented to the (now abolished) Building Practitioners Board.
Also important to note is the fact that there was no parity of disciplinary actions taken by the building regulator against the six unregistered persons unlawfully employed by the surveyor to conduct mandatory stage inspections across Victoria.
The first two were taken to the Magistrates Court and both received a good behavior bond. The third unregistered person received a reprimand and fine from the Building Practitioners Board. The remaining three of the six unregistered persons unlawfully employed by the surveyor to conduct four mandatory stage inspections at our site, were never taken to the Magistrates Court or had any disciplinary actions taken against them by the building regulator whilst still within the legal timeframe to do so.
My understanding of the Building Act (as it stood at the time), is that the building surveyor must not permit an unregistered person to perform the inspection and give approval for the works. Part 4, Section 176 (1A) specifically states it is a breach of the Act irrespective of the supervision and training given to the unregistered person performing the inspection and approval.
Other parts of the Act cannot override Section 176 (1A) which expressly prohibits a person from practicing as a building inspector whilst not registered. The regulator can also chose to prosecute building surveyors for counseling unregistered inspectors to commit breaches of Section 176 (1A (c).
The Victorian Building Authority ridiculed then ignored my repeated requests that it utilize its new powers and commence a ‘show cause’ process to include the omitted allegations and correct errors of fact. I was left languishing without redress.
The excessive time delay in bringing this matter to an Inquiry Hearing was not of my doing. On the 1st September 2016, the functions of the Building Practitioners Board were to be transferred to the Victorian Building Authority pursuant to section 18 of the Building Legislation Amendment (Consumer Protection) Act 2016.
The surveyor challenged the jurisdiction of the Board to hear the case. This seemed unnecessary given the Transitional Provisions of the Act provided that any Inquiry commenced prior to its abolition 1st September 2016 (as my case had), would continue to be heard by the Board.
The jurisdiction Appeal was dismissed by the Supreme Court of Victoria. The surveyor then appealed that decision to the Court of Appeal which was also dismissed. The Building Practitioners Board Inquiry into the conduct of the surveyor was stayed pending the outcome of that appeal.
The Building Practitioners Board Inquiry into the conduct of relevant building surveyor finally recommenced. I was connected via phone-link. When the deliberations moved to allegations relevant to my property the phone was suddenly disconnected.
An hour later I was reconnected and told that 'someone had accidentally pulled the phone cable out under the table'. The speaker then abruptly ended the telephone conversation.
The surveyor was found guilty of engaging unregistered persons to conduct 270 mandatory stage inspections across Victoria and immediately appealed both the Board’s decision and penalty.
It has been more than eight years since the VBA came onsite to conduct its investigation of my complaint and I am yet to receive an outcome of the surveyor’s appeal. In particular with regard to the guilt finding against the practitioner unlawfully engaging an unregistered person to conduct the mandatory frame inspection at our property and the second allegation that related to the layout of drains to the point of discharge.
How long can the appeals process be tactically delayed?
It further worries me that continuous delays in the appeals process may actually be a calculated strategy to push other victims beyond the ten-year time limit to lodge a complaint.
For example, if a person had their Occupancy Permit issued in June 2013 and were wanting to take action but did not submit their application at VCAT by June 2023, they would then be time barred. Again, this would only benefit the practitioner and his insurance.
How many victims are privy to this vital information? Should this truth telling be my burden alone?
Over time I have judiciously learned that the Victorian Building Authority has discretionary power over which allegations it frames even when obvious illegality is occurring on a major scale. There is nothing I can do about that.
However, I am of the belief that the absolute power of the Victorian Building Authority to swing its discretionary arm stops at my nose. As a citizen and consumer I too have rights, and it within this context that I made the decision to commence civil proceedings against the surveyor.
At this point in time no more can be said about that other than, may destructive lawfare cease and justice be allowed to prevail.
Fiat justitia ruat caelum.
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