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Justice slams council lawyers

02 Jul 2013

Justice slams council lawyers Image

A Supreme Court justice has described submissions made by City of Melbourne’s lawyers during the Watergate Building Appeals Board (BAB) hearings as “unbelievable”.

On June 3 Justice Beach heard an application from council’s lawyer Trevor Wallwork for an indemnity certificate to be granted for the cost of the Supreme Court appeal.

An indemnity certificate generally entitles a party to reimbursement from the Appeal Costs Board for legal costs incurred due to circumstances beyond its control.

Justice Beach refused the application and said the submissions made by council led the BAB into an error.

In May, Justice Beach ordered the case back to the BAB, saying that the board had misinterpreted the Building Code of Australia (BCA) and ordered council to pay appellant Paul Salter’s legal costs.

In March, the BAB had upheld building orders the City of Melbourne had issued in 2011 against Mr Salter’s Docklands Executive Apartments.

Mr Salter then successfully appealed the BAB’s decision at the Supreme Court.

At the indemnity certificate hearing Justice Beach said it seemed to him that council’s submissions, both before the BAB and in the Supreme Court, were contrary to “basic authority” and “erroneously led the BAB into an error”.

He referred to a document that was tendered by the council’s lawyers as a page of the BCA but was actually a page from a guide to the BCA, and said the court had been “misled”.

“… This court was misled by the tendering of a page that was claimed to be a page of the Building Code of Australia when it wasn’t,” Justice Beach said.

Justice Beach also referred to submissions made by council’s lawyer, Tim Margetts, relating to the opinions of the municipal building surveyor and relied upon in the BAB’s determination.

 “… I was less than impressed with propositions, which your leader never in any way resiled from, which involved what he said was the proprietary of effectively calling witnesses to give their opinions as to what the words of the code meant,” Justice Beach said.

Justice Beach declined to issue an indemnity certificate for the appeal and questioned why he would exercise the court’s discretion to grant a certificate in a case where “… submissions were made which just should never have been made.”

On June 12 the City of Melbourne lodged an appeal against the Supreme Court’s decision to return the case to the BAB, in the Victorian Court of Appeal (see the story on page 3).

A date for the first appeal hearing is yet to be scheduled.

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