Practice Notes: Noteworthy or Not?
By Alexander Milne
An investigation into the legal status of Practice Notes issued by the Building Commission and the implications of the decision in Chen & Anor v Kevin McNamara & Son:
By Alex Milne, construction lawyer and practitioner advocate at Lovegrove Solicitors.
The Nature of Building Commission Practice Notes:
The Building Commission produces a range of Practice Notes relating to numerous topics within the ambit of the Building Commission. There are currently more than 60 Practice Notes listed on the Building Commission website, making them a significant source of material in their own right.
The Purpose of the Practice Notes:
The Building Commission compiles Practice Notes which generally state that they are intended to clarify issues from the legislation to which they relate. They serve as a useful resource for building practitioners aiding them to comply with relevant legislation. But what is the real value and weight of the clarification they provide?
Increasingly these Practice notes seem to have been bestowed with a weight out of step with their humble beginnings. There are cases where the Investigations by the Building Commission purport to make ethical judgments about a building practitioner’s conduct on the basis of a Practice Note. Are they merely a tool serving to help practitioners gain an outline of their responsibilities, or are they rightfully being used to guide interpretation of legislation and as a basis for sanctioning the conduct of builders?
The Relevance of Practice Notes:
The 2009 decision in the Victorian Supreme Court case Chen & Anor v Kevin McNamara & Son questions the relevance of the Practice Note. At  Hargrave J described Practice Notes addressing the legislation in question as having ‘no statutory force or effect. They form part of the information providing function of the Building Commission under s196 of the Building Act. They have formed no part in my decision making process.’
This case required interpretation of the Building Code of Australia, specifically whether or not a water tank could be classified as a ‘class 10b structure’ under the code. The decision in this case clearly states that practice notes issued by the Building Commission are not relevant when interpreting the legislation.
Other material from Superior Courts which makes reference to the relevance of Practice Notes is scarce. In a recent decisions is the case of Anstee & Anor v Eyers & Ors at  Osborne J refers to a Practice Note in order to help inform his reading of s160 of the building act. But this is a very brief foray into the territory, and could not be seen as a consideration and rejection of the statement by Hargrave J.
If a court of Superior Jurisdiction has deemed that Practice Notes are of no relevance in making a determination of whether a breach of the Act or Regulations has occurred, then it follows that lower courts and disciplinary bodies like the Building Practitioners Board are bound to also consider them irrelevant.
In Briginshaw v Briginshaw, Dixon J stated that the onus to prove practitioner misconduct is a civil standard. So when deciding cases of practitioner misconduct, the Building Practitioners Board is bound to apply the same standard of proof as a court exercising civil jurisdiction. There is problematic justification for the Board to be influenced by Practice Notes if the Supreme Court cannot be so influenced.
It follows from this conclusion that just as a Practice Note has no relevance for informing interpretation of legislation to determine whether a structure is of a certain class, similarly a Practice Note would be irrelevant in determining whether or not the conduct of a building practitioner amounts to a breach the Act or the Regulations. Considerable caution if not reticence should be applied in finding that failure to comply with a Practice Note is a basis for reprimand of a building practitioner in circumstances where the Practice Note has ‘no statutory force or effect.’
This leaves us with an uncomfortable dichotomy. Practice Notes are being regularly referred to in hearings at the Building Practitioners Board, and are intermittently used by VCAT and lower courts to guide interpretation of Building legislation. However the word from the Supreme Court is that Practice Notes are irrelevant for this purpose, and it is the duty of lower courts and decision making bodies to bow to this authority.
The only solution in the short term would seem to be for inferior courts and decision making bodies like the BPB to defer to the precedent from the Supreme Court. If the Building Commission is of the view that the content of the Practice Notes should be binding on practitioners, they are in a position through their Victorian Government advisory role to suggest that they be incorporated into legislation. If the legislature also deems it appropriate for Practice Notes to have legislative effect, they must be duly incorporated in order to remove the prevailing confusion as to their relevance.