Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for leave to apply for internal review under s 58(2) - Criteria on application for leave - Whether there was a breach of procedural fairness by reopening the final hearing to receive fresh evidence - Whether there was an error in receiving fresh evidence by way of documentation - Test to be applied when reopening cases - Whether there was a breach of procedural fairness or an error in the use of a site view - Whether there was a breach of procedural fairness by refusing to allow the applicant to undertake a demonstration - Whether the specialist Tribunal member relied on his own expertise - Whether the Tribunal failed to give adequate weight to evidence before it

Legislation:

Building Act 2011 (WA), s 77, s 77(a), s 79, s 79.1(a), s 83, s 83(d), s 185, s 185.1(a)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 38(1), s 58
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 32(6)(c), s 35, s 59(1), s 98

Result:

Application for leave unsuccessful

Summary of Tribunal's decision:

The applicant applied, under s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), for leave for an internal review to be conducted in respect of a decision dismissing two building service complaints: complaint item 3 alleging that the building service had adversely affected the structural integrity of the dividing fence between the properties of the applicant and the respondent; and complaint item 4 alleging that the building service had reduced the water proofing capability of the dividing fence. Those building services complaints were dismissed on 28 March 2017 in a determination made by Member De Villiers and Member Marsh (the original Tribunal).
The Tribunal identified 10 grounds of review being:
1) The original Tribunal erred in fact and law by failing to determine an issue raised by the applicant, being an allegation that the structures constructed by the respondent and attached to the dividing fence were illegal structures built in breach of various provisions of the Building Act 2011 (WA) (Building Act) and in breach of the City of Wanneroo's Private Property Local Law 2001 3.1 (PPLL) (now repealed), such breaches which ought to have supported a finding that the work had not been carried out in a proper and proficient manner;
2) The original Tribunal erred in fact and law by failing to give adequate weight to the allegation made by the applicant that the structures were unauthorised by the local council;
3) The original Tribunal denied the applicant procedural fairness by refusing to allow…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ADAM and DI GIACOMO

Details

AGLC: ADAM and DI GIACOMO [2017] WASAT 126
Case: [2017] WASAT 126
Decision Date: 26 SEPTEMBER 2017

CaseChat Overview and Summary

In the matter of Adam and Di Giacomo, the appellants sought leave to apply for an internal review of a decision made by the Building Services Tribunal. The dispute involved the assessment of a complaint regarding the quality of building services provided to the appellants. The case was heard in the Supreme Court of Western Australia. The appellants contested the Tribunal's decision on several grounds, including alleged procedural unfairness in reopening the final hearing to accept new evidence, errors in the reception of fresh documentation, and the handling of a site visit. They further argued that the Tribunal member had improperly relied on his own expertise and had not adequately considered the evidence presented.

The court was tasked with determining whether the Tribunal had breached procedural fairness by reopening the final hearing and accepting new evidence, and whether there was an error in the reception of fresh documentation. It also had to assess the appropriateness of the Tribunal's reliance on its own expertise and whether there had been a failure to give due weight to the evidence presented. The court needed to apply the correct legal standards in evaluating the Tribunal's handling of the case and its decision-making process.

The Supreme Court held that the Tribunal had not breached procedural fairness by reopening the final hearing, as the evidence was relevant and could be considered under the correct legal test. The court found no error in the reception of the fresh documentation, as it was pertinent to the issues at hand. Regarding the site view, the court determined that there was no procedural unfairness, as the process followed was appropriate. The court also ruled that there was no breach of procedural fairness in refusing the appellants' request to undertake a demonstration, as it did not significantly affect the outcome. The specialist Tribunal member did not rely solely on their expertise, but rather considered the evidence holistically. Lastly, the court found that the Tribunal had adequately weighed the evidence before it, making the decision within the scope of its authority.

The court dismissed the appellants' application for leave to apply for an internal review, upholding the Tribunal's decision. The appellants were ordered to pay the respondent's costs of the proceedings.

Orders