ADAM and DI GIACOMO

[2017] WASAT 126

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION:   ADAM and DI GIACOMO [2017] WASAT 126

MEMBER:   MS C WALLACE (SENIOR MEMBER)

HEARD:   29 JUNE 2017

DELIVERED          :   26 SEPTEMBER 2017

FILE NO/S:   CC 690 of 2017

BETWEEN:   STEPHEN ADAM

Applicant

AND

AARON DI GIACOMO
Respondent

Catchwords:

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 the applicant to file fresh evidence when the original final hearing was reopened and also by failing to allow the applicant a further reasonable opportunity to examine the expert witnesses following the reopening of the original final hearing;

4)  The original Tribunal erred in fact and law by, through the mechanism of a site view, effectively gathering their own evidence and relying on that evidence and also using that evidence to unreasonably direct the course of the hearing and also by refusing to allow the applicant to undertake a demonstration with a metal detector;

5)  The original Tribunal erred in fact and law because the specialist member relied on his own expertise;

6)  The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the expert evidence before the original Tribunal that the painting of the structures attached to the dividing fence was not carried out in a proper and proficient manner;

7)  The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the allegation by the applicant that the evidence of the respondent and/or his experts was false and misleading;

8)  The original Tribunal erred in fact and law by failing to make any findings in respect of the structural integrity of the dividing fence itself;

9)  The original Tribunal erred in fact and law by failing to give adequate weight to the evidence of Mr Burkett to the effect that the blistering of paint on the dividing fence was as a result of water ingress due to the building service undertaken by the respondent;

10)  The original Tribunal erred in fact and law by failing to give adequate weight to the expert evidence of Mr Ennis in reaching its determination.

In summary form, the Tribunal found in respect of each of the individual grounds of review:

1) Although the original Tribunal did not expressly address the issue as to whether the structures the subject of the applicant's complaint breached particular provisions of the Building Act or the PPLL, it did not lead to a substantial injustice being suffered by the applicant. This is because the Tribunal does not have jurisdiction in relation to those particular provisions and no action had been taken by the relevant governing bodies in respect of the particular allegations raised by the applicant. In addition, the evidence before the original Tribunal did not support the alleged breaches contended by the applicant in relation to the Building Act or the PPLL.

2)  Although the applicant submitted that the original Tribunal ought to have found that the structures constructed by the respondent were unauthorised or illegal, that position was not supported.  In particular, the City of Wanneroo granted retrospective approval to the structures.

3)  The Tribunal found that there was no error or breach of procedural fairness by the original Tribunal allowing fresh evidence to be admitted by the applicant in the manner in which that was done.  The Tribunal found that it was appropriate that the original Tribunal restrict the admission of fresh evidence to address the particular error or omission which had led to the hearing being reopened and that it was appropriate for the original Tribunal not to allow a general reopening of the case.

4)  The Tribunal found that there was no error or breach of procedural fairness in the manner in which the original Tribunal conducted the site view and used the observations made at the site view.  Those observations did not unfairly interfere with the conduct of the original final hearing.

5)  The Tribunal found that the specialist Tribunal member did not rely on his own expertise but rather used it only to assist the original Tribunal to understand the expert evidence given at the original final hearing.

6)  The Tribunal found that there was no error made by the original Tribunal in the weight that it gave to the evidence before it in respect of the painting of the structures.  Although the evidence at the original final hearing did support a finding that the painting work had not been carried out in a proper and proficient manner, the evidence did not support a finding that the applicant suffered a loss as a result.

7)  The Tribunal found that there was no error in fact or law by the original Tribunal not making particular findings as to whether evidence before it was false or misleading.  That was a matter properly raised with the Executive Officer of the Tribunal.  In any event, allowing fresh evidence to be filed remedied the concerns of the applicant in this regard.

8)  Although the applicant alleged that the original Tribunal erred in fact and law by failing to make any findings in respect of the structural integrity of the dividing fence itself, this Tribunal found that there was no such error made.  This is because the onus was on the applicant to produce evidence to the original Tribunal.  He did not do so.  In addition, the limited evidence that was available to the original Tribunal did not support the applicant's contention in this regard.

9)  The original Tribunal did not fall into error by failing to give adequate weight to the evidence of Mr Burkett, the painting expert of the respondent, to the effect that the blistering of paint on the dividing fence on the applicant's property was as a result of water ingress due to the works undertaken by the respondent.  This was because the evidence was insufficient to support such a finding.  In addition, the Tribunal noted that the applicant himself failed to adduce any evidence from a painting expert. 

10)  Although the applicant alleged that the original Tribunal erred in fact and law by failing to give adequate weight to the expert evidence of Mr Ennis, the Tribunal found that this ground of review was unsubstantiated.  This is because the original Tribunal did take into account the documentary evidence of Mr Ennis but placed little weight on it because he was not called to give oral evidence at the original final hearing and also gave an opinion in relation to paintwork when he was not an expert in the relevant field.

The applicant was unsuccessful in respect of each of the grounds of review and therefore the application was ultimately dismissed.  

Category:    B

Representation:

Counsel:

Applicant:     Self Represented

Respondent:     Self Represented

Solicitors:

Applicant:     N/A

Respondent:     N/A

Case(s) referred to in decision(s):

Evans v The Queen [2007] HCA 59

Filimon and Rimmer [2013] WASAT 13

Lewis and Waco Pty Ltd [2016] WASAT 127

Myran Holdings Pty Ltd and Bombak [2013] WASAT 20

Osborne v Landpower Developments Pty Ltd (In Liq) [2003] WASCA 117

Polizzi v Commissioner of Police (No 2) [2017] WASC 166

Scott v The President, Councillors and Ratepayers of the Shire of Numurkan (1954) 91 CLR 300

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

REASONS FOR DECISION OF THE TRIBUNAL: 

The application for leave to review

1. On 27 July 2015 the Building Commission received a building service complaint made by Mr Stephen Adam, the applicant, against Mr Aaron Di Giacomo, the respondent, pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect of the attachment by the respondent of 'three walled structures' to the jointly owned dividing fence separating the parties' residential properties.

2. Although the original complaint lodged with the Building Commission comprised of six separate complaint items, it was only complaint items 2 (that the building service had reduced the noise insulation capabilities of the dividing fence), 3 (that the building service had adversely affected the structural integrity of the dividing fence) and 4 (that the building service had reduced the waterproofing capability of the dividing fence) that were referred to the Tribunal on 2 May 2016 pursuant to s 11(1)(d) of the BSCRA Act.

3. All three complaints were considered by the Tribunal at a final hearing on 7 November 2016 (original final hearing) at which time the decision was reserved.  The Tribunal was constituted by a legally qualified member, Member De Villiers, and a specialist member, Member Marsh (the original Tribunal).  Following the original final hearing concluding, and on application by the applicant, the matter was reopened on 21 November 2016 in respect of complaint item 3.  This procedural decision made by Member De Villiers will be dealt with in more detail later in these reasons.  However, in summary, the new evidence received by the original Tribunal was limited in nature and received by way of documentation only, although the parties had the opportunity to make further oral submissions in respect of that evidence.

4. The original Tribunal delivered an oral final decision on 28 March 2017 whereby it dismissed each of the complaint items.  Essentially the original Tribunal found that the works undertaken on the neighbouring property of the respondent had not weakened the structural integrity of the dividing fence or diminished its capability in respect of noise insulation or waterproofing capability.

5. On 21 April 2017 the applicant filed an application pursuant to s 58 of the BSCRA Act seeking leave to review the decision of the original Tribunal in respect to complaint items 3 and 4.

The proposed grounds of review

1. The applicant filed with the Tribunal his bundle of documents and written submissions on which he relied on 26 and 28 May 2017.  The respondent filed his written submissions with the Tribunal on 19 June 2017.  The Tribunal also had the benefit of a two hour directions hearing with the parties on 16 May 2017 and a final hearing on 29 June 2017 whereby the parties made oral submissions expanding on their written submissions.

2. When applicants are unrepresented it can be difficult to accurately distil each succinct ground of review being relied upon.  However, both during the directions hearing on 16 May 2017 and the final hearing on 29 June 2017 the applicant was able to assist the Tribunal by identifying his main grounds of review.  Having considered those oral submissions, in addition to the written submissions, the Tribunal has identified the following grounds of review, in summary form:

   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 unauthorised/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 was not carried out in a 'proper and proficient' manner for the purposes of s 5(1) of the BSCRA Act.

   2)The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the allegation made by the applicant that the structures constructed by the respondent were not authorised by the local council at the time of construction nor during the proceeding.

   3)The original Tribunal denied the applicant procedural fairness by refusing to allow the applicant to file fresh evidence when the original final hearing was reopened and also by failing to allow the applicant a further reasonable opportunity to examine the expert witnesses following the reopening of the original final hearing and the receipt of fresh evidence.

   4)The original Tribunal erred in fact and law by, through the mechanism of a site view the morning of the original final hearing, effectively gathering their own evidence and relying on that evidence and also using that evidence to unreasonably direct the course of the original final hearing and also by refusing to allow the applicant to undertake a demonstration with a metal detector.

   5)The original Tribunal erred in fact and law because the specialist member relied on his own expertise rather than simply assisting the legal member to understand the nature of the expert evidence.

   6)The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the expert evidence before the original Tribunal that the painting of the structures attached to the dividing fence was not carried out in a proper and proficient manner in order to establish a finding pursuant to s 38(1) of the BSCRA Act in respect of complaint item 4.

   7)The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the allegation by the applicant that the evidence of the respondent and/or his experts was false and misleading and thus unreliable.

   8)The original Tribunal erred in fact and law by failing to make any findings in respect of the structural integrity of the dividing fence itself to which the structures constructed by the respondent were, on the applicant's evidence, attached.

   9)The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the evidence of Mr Burkett, the painting expert of the respondent, to the effect that the blistering of paint on the dividing fence on the applicant's property was as a result of water ingress due to the works undertaken by the respondent.

   10)The original Tribunal erred in fact and law by failing to give adequate weight to the expert evidence of Mr Ennis in reaching its determination. 

The criteria for the grant of leave

1. In Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 at [8], the Tribunal set out the following criteria to be considered in deciding whether to grant leave and which were adopted from a consideration of that matter in Filimon and Rimmer [2013] WASAT 13:

   The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the BS(CRA) Act as discussed in Filimon and Rimmer [2013] WASAT 13:

   1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.

   2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.

   3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt.  Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice [if] leave were not to be granted.

   4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.

   5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.

   6)Leave may be granted in respect of only some and not other grounds of the proposed review.

   7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.

   8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.

2. The above criteria of course do not restrict the Tribunal in having regard to other matters which may require consideration in order to avoid a substantial injustice.

History of proceeding at the Tribunal

1. Ordinarily on a leave to review application it is unnecessary for the Tribunal to consider in any detail the conduct of the proceeding before the original Tribunal.  However, it is necessary to do so in this matter because of the unusual decision taken by Member De Villiers to allow new evidence after the original final hearing had concluded.  It is therefore appropriate for the Tribunal to have regard to directions hearings conducted by Member De Villiers following the conclusion of the original final hearing in order to understand the reason for allowing fresh evidence, the nature and extent of the fresh evidence and how that evidence was received. 

2. The parties were aware that the Tribunal would consider these matters when considering the question as to whether the applicant ought to be granted leave to review the original Tribunal's final decision.  Indeed these were matters raised both at the directions hearing on 16 May 2017 and at the final hearing on 29 June 2017.  The Tribunal also notes that the parties have in their possession those orders and documents to which the Tribunal will now have regard and were in attendance at each of the relevant directions hearings to which reference will now be made.

Directions hearing on 21 November 2016

1. The substance of the applicant's complaint related to the construction by the respondent on his property of an L­shaped planter box, blade wall and a water feature.  The applicant contended throughout the proceeding that the structures built by the respondent were attached by metal connectors to the dividing fence.  The respondent at the final hearing disputed that factual allegation and the substance of the expert evidence before the original Tribunal was to the effect that there were no metal connectors attaching the respondent's structures to the dividing fence.

2. Following the conclusion of the original final hearing on 7 November 2016 the applicant took steps to cut open part of the wall on his property to expose that metal connectors had indeed been inserted into the dividing fence.  The applicant then wrote to the original Tribunal on 9 November 2016 seeking to re­open the hearing to allow fresh evidence in respect of this matter. 

3. Member De Villiers therefore held a directions hearing on 21 November 2016.  Relevant excerpts of the transcript evidence the discussion which took place at that time, the decision that was made and the reason for that decision:

   DE VILLIERS MR:  This is the matter of Adam and Di Giacomo, CC 583 of 2016.  We have for the applicant, Mr Adam, and for the respondent Mr Di Giacomo.  Now, gentlemen, as you know, the reason why we're here today, I will just say by way of brief summary that this matter had been set down for a hearing for two days on 7 and 8 November.  By the end of 7 November, the matter had basically been concluded, and closing submissions had been given, and the tribunal then reserved its decision which gave the tribunal up to 90 days to hand down its decision.

   Now, usually, that would be the end of a process.  However, on 8 November, the tribunal received a letter from Mr Adam.  Now, before I mention the content of the letter, a key question during the hearing was the factual question whether the structures the subject of that hearing ­ whether those structures had been connected to the dividing wall by way of a metal rod. 

   And that was a finding upon which experts originally had different ideas or evidence, but then during the evidence, the expert called by Mr Adam indicated that he had not himself sighted the metal rods.  And Mr Adam obviously was surprised by that evidence.  The tribunal had not made any finding, because that's a matter still within our discretion.  Mr Adam then, it appears, went home and decided to open parts of the wall, and he then submitted photographs to the tribunal on 8 November which indicates the presence of these metal rods that he had been alleging all along had been inserted by Mr Di Giacomo, and photographs of what he had discovered were included.

   Now, this is what we would call fresh evidence in law.  Usually a hearing cannot be reopened.  When a hearing is concluded, it is concluded.  One can seek on an appeal to submit fresh evidence, but not once a matter has been reserved.  At the same time, however, the tribunal is a tribunal aimed at resolving disputes at minimal costs without too much legal formality, and therefore I decided to convene the directions hearing today, because it is my sense ­ but I will first hear what Mr Di Giacomo says ­ it is my sense that the matter should be reopened in order for this additional evidence to be taken into account and for the experts to comment on it.

   Now, I must say, immediately, as far as you're concerned, Mr Adam, even if you are right that these metal connections are in place as you've always suggested, that in itself doesn't mean that they have impacted on the structural integrity of the wall.  That is a matter on which the experts would have to express themselves.  So we would have to give the experts a limited opportunity ­ there won't be ­ if I reopen it, there won't be new expert evidence being called or new experts being called. 

   The experts who gave evidence will simply be called to say well, the factual question whether rods are in place has now been resolved, and does that impact on your evidence.  So they are very simple.  But I don't want to get ahead of me.  The first question before me, then, is should the hearing be reopened and should leave be granted for additional evidence to be submitted. 

   Before I give Mr Di Giacomo the opportunity to speak, another event then occurred, and that is that the City of Wanneroo had indicated to Mr Adam, because he gave ­ I believe ­ photographs of what he had discovered to the City, and they indicated to him by way of email ­ I think the email was dated 10 November. 

   They indicated they may have to reopen the entire approvals process as far as the structures are concerned, because they had been given the assurance that there were no steel connectors, and if, indeed, there are steel connectors, that may impact on the approval that they had given.  So they would want to reopen it.  Now, I hope that is a fair summary of where we are at.  So I guess the main question goes towards you, Mr Di Giacomo.  My first question is have you had legal advice about where we are at, at the moment, and about these new events?

   DI GIACOMO, MR:  No. 

   DE VILLIERS MR:  You may want to get legal advice.  It appears to me from the bundle that at several occasions, you gave the assurance that there were no metal connectors. 

   …

   DI GIACOMO, MR:  I take your last comment on board.  I can honestly say, hand on heart, I have never provided any false ­ knowingly false information.  The bricklayer assured me there was no tithes.  I supplied all materials, bricks, sand and mortar.  I never supplied any tithes.  And the fence freely moves, so all my comments were based on what I knew to be true, however it appears there's something in the wall that was totally unknown to me.  So nothing has been deliberate.

   …

   DE VILLIERS MR:  Okay.  Well, the question whether the false or misleading evidence had been given either to the Magistrates Court or to this tribunal is a question that can be dealt with in the future.  That's not being dealt with now.  Now, as far as the photographs are concerned, Mr Di Giacomo, which have now been provided to the tribunal and I requested that a copy of the photographs be provided to you, do we now know with any certainty how many metal connectors there are attached to this wall? 

   DI GIACOMO, MR:  I believe in Mr Adam's submission, he said there were eight.

   …

   ADAM, MR:  What I did was [I] took a split level and marked out where the respondent's walls attach to the dividing wall.  I took a centre line and then used a metal detector to locate those walls and I think you can agree by the pockets that I've cut out of the walls, they are about three inches ­ about two inches.  I was absolutely spot on in finding them.

   …

   DE VILLIERS MR:  Now, is this a metal detector that one buys off the shelf? 

   ADAM, MR:  Bunnings.

   DE VILLIERS MR:  Do you have experience?  I see.  Okay.  All right. 

   ADAM, MR:  $75. 

   DE VILLIERS MR:  Why I'm asking it, we're not going to have a detailed hearing today, I'm just saying that if you operated the metal detector and if there are at least two photographs of you having opened the wall and as far as you're concerned, that confirms the accuracy of the metal detector ­ then if Mr Di Giacomo wishes to challenge that you know, then he would have to indicate to us that he wishes to challenge that. 

   But if your evidence in due course is going to be that you have located eight, then you can give us by way of a statement a description of what you've done ­ what you've basically done now, and then Mr Di Giacomo can respond to that.  But we won't deal with that today.  It's just for me to ascertain, in your view, how many connectors there are.  Now, you've provided this information now to the City of Wanneroo?

   ADAM, MR:  Yes.  I have. 

   DE VILLIERS MR:  And what did they say ­ what did you want to say?  Yes. 

   ADAM, MR:  They're more concerned about the accuracy of the structure reports at the last hearing that was determined that Structerre did not assess more than half of the walls in the rear garden.  They've omitted that.  I believe that is a false report.  That should be looked into. 

   DE VILLIERS MR:   Yes.  But the question is, is the City going to look into it? 

   ADAM, MR:  They are conducting a full independent structural report of all the works carried out by the respondent, not just ­ not just the attachment issue ­ all of the works. 

   DE VILLIERS MR:  And have you been informed of this, Mr Di Giacomo? 

   DI GIACOMO, MR:  No.  I have not. 

   DE VILLIERS MR:  So what makes you say the City is going to conduct this?  Have they confirmed it in writing to you, Mr Adam. 

   ADAM, MR:  They sent an email which I have forwarded to yourself. 

   …

   DE VILLIERS MR:  Okay.  Now, the ­ let's take it back to the question before me, gentlemen.  The first question is then whether we should reopen the matter for this fresh evidence to be admitted, as I've said that it is exception for that to be done, but on the preliminary reading of it, I believe there is merit to reopen it.  Mr Di Giacomo, do you have an objection if I were to reopen it? 

   DI GIACOMO, MR:  I'm in your hands, Member De Villiers, however, I think during the tribunal, both structural engineers that it could be better for the structural wall ­ for the dividing wall to be tied in.  It would give benefit to the wall.  Both engineers confirmed that there was no undue structural loading on the wall and all works were satisfactory. 

   DE VILLIERS MR:  Well, those are submissions that can have in due course.

   DI GIACOMO, MR:  Yes. 

   DE VILLIERS MR:  But as far as the reopening of the matters concerned now, in order to take into account that indeed there are connectors, previously the question whether connectors would or would not affect the structural integrity of the wall were, to a certain extent, hypothetical, because they did not know the number of connections and the connectors ­ where they were located, etcetera.  So my primary question now to you is whether you have an objection to me reopening the hearing so they can ­ the experts can take that information into account. 

   DI GIACOMO, MR:  I see.  I do, however, in due course, it needs to be closed.  At the moment, we're getting confused between criminal, council and SAT orders.  At the moment, there seems to be a lot of conflicting correspondence that's trying to tie all three into one.  So I think the council issue is a council issue.  I deal with the council if and when they contact me. 

   My view on the structural report and what the [Structerre] put into the structural report for the council is obviously to Mr Adam's.  We will explain it to the council.  The report was based on what was required to get structural approval, so I do believe that the Structerre did say that they couldn't comment without checking their original notes. 

   I think they committed to was that the blade wall was not in that actual report.  It didn't say that they didn't actually inspect it.  So I will await orders or correspondence from Structerre on that.  They already have come back and said that the wall won't be affected by the ties that are now apparently in there, and clearly the wall moves freely.  So whatever is in there is not putting pressure on the wall.

   DE VILLIERS MR:  Well, gentlemen, it is my view that the matter should be reopened.  So I will give leave for that fresh evidence to be submitted to the tribunal, and the reason I do so is that whether these structural connections ­ or whether these metal connectors, in fact, affect the structural integrity of the wall ­ that is yet to be determined. 

   But during the hearing, there was a specific question whether there had been in place metal connectors, and there was no independent evidence before the tribunal to confirm the presence.  We've had Mr Adam say that he had seen it.  We've had the expert of Mr Di Giacomo ­ or of Mr Adam saying that, when he inspected it, he thought he had seen it and then under further examination, he said, well, actually, he didn't see it at all.  So there was never a factual certainty. 

   The tribunal has to make a final finding obviously, but there was not factual certainty at the time of the presence of these connectors, and now that there is factual certainty, I think that is a matter that we should give the experts an opportunity comment on.  And so I will give leave for this additional information to be admitted into evidence.  Now, whether the presence of these connectors actually assists Mr Adam, that is a matter for time to tell.  I have prepared a copy of the transcript of the previous hearing, and a copy will be given to each of you free of charge.

   …

   DE VILLIERS MR:  The transcript shows on page 13 where Mr Marsh says to the experts ­ he says:

   I put this question to both the engineers.

   He says:

   Even if there was a six millimetre dowel attached from the walls ­ the walls abutting, not the planters, but the screen wall ­ would that have impinged upon the structural integrity.

   And both experts say no.  So in a certain sense, that is what Mr Di Giacomo said.  He said, 'Well, listen, even if there had been connectors, the experts have already given their evidence that it wouldn't impact.

   At the same time, however, this is a matter for the experts to be called back on, and that's why I believe the experts should be called back, so that they can assist the location of these connectors, where they are placed in the wall, the thickness of the connectors, the suitability of the material of the connectors.  And then they can be asked that same question ­ whether now that the presence of connectors has been established, whether that influences the evidence. 

   And I think that is proper for them to be given that opportunity.  Yes.  You wanted to say, Mr Adam?  There's no need to argue the case now.  I want you to understand that.  The only question before me is should I reopen it, and I've made a decision it has been reopened.  …

   …

   DE VILLIERS MR:  … The next question is what do we do next?  Now, it is Mr Di Giacomo's view that this process is completely separate from the City's building approval process, and they should be conducted separately.  It is my view that it is not as simple as that.  I think the question of whether building work is done properly includes the question of whether the work is done lawfully.

   And therefore I think we should put these proceedings on hold so that the City can fully investigate the approvals processes that have been given, because those approval processes in themselves may lead to further appeals, and we need to somewhere not have parallel processes.  That would lead to great uncertainty, as you've expressed Mr Di Giacomo. 

   So I think we must bring this process to a standstill for the City to proceed with their reassessment of the approvals process.  Once you have an outcome of that, if the outcome is against you, then you may appeal it.  In fact, if SAT ­ if the outcome is in your favour, where the City says, 'Okay, we now know there are eight dowel ­ metal rods.  This does not affect the structural integrity and we will approve it retrospectively', then the legal process is dealt with and then the Tribunal here can continue with the very specific complaint of Mr Adam. 

   But we can't have parallel processes, where one is asking what the other one is doing.  So my ­ and I hear what you're saying now, Mr Adam ­ my proposition is that we adjourn this process say, until, the end of February or early March and hear what the City's outcome is, and once we know that, we will proceed again here.  Yes, Mr Adam.  What do you think of that?

   ADAM, MR:  Mr De Villiers, the City of Wanneroo for four years have provided misleading, inaccurate and incompetent assessment of this make ­ for four solid years.  I'm in the process of potentially suing the City of Wanneroo for defamation of character.  I wrote to the Wanneroo CEO.  I've highlighted many instances where his staff have given me false information.  I do not have any confidence at all that they will handle this correctly.  This is the whole point of going to the Building Commission and now SAT.

   In terms of the SAT Act, I believe the respondent has tried to deceive this tribunal and the Building Commission, and I say that wholeheartedly.  For four solid years, I have told the respondent his walls were attached.  I witnessed them being attached.  It would have taken the respondent 10 minutes ­ 10 minutes to establish any connections in that wall.

   …

   I have asked under the SAT Act section 48(1) and 48(2) that this tribunal rule in my favour, because he has clearly tried to deceive the tribunal, the Building Commission, the Magistrates Court of Joondalup and the City of Wanneroo.  …

   …

   This really should stop now. I mean, the four years ­ the four years I've had to fight this have cost me unbelievable amounts of money, stress on myself and my family, all because this man will not adhere to the regulations that everyone else has to under the Building Code ­ the Building Act and the truth.

   To drag in everyone again to go for another year, you're collecting what you see in terms of the connection to the walls is a small part of the overall claim.  But both structural engineers said that by building structures on top of existing retaining walls would affect the building.  Well, yes, negatively or positively, but the whole point of attaching any structure together is to strengthen them.  But by strengthening one, you may weaken the other.

   DE VILLIERS MR:  That is for expert evidence to ascertain, Mr Adam.

   …

   DE VILLIERS MR:  …That brings me then to who should be acting first ­ this tribunal or the City.  The approvals process of the City is an integral part of the building process.  I mean, I cannot make a finding whether a builder did their work properly, if there is a possibility that the City may find that the building work was unlawful, because that is an element of proper building. 

   So in terms of the hierarchy of processes, it's important that I let the City make their decision.  Now, to you, it may be frustrating, because you've had run-ins with the City, with or without merit ­ again that's not for me to ascertain.  But that cannot ­ your relationship with the City cannot determine the way I manage this thing in a proper and responsible manner, and to me it's essential that the City ­ if they wish to reconsider the approvals process, that they be given time and for them, if necessary, to be called to the tribunal to give me an update as to the progress they are making. 

   So I hear what you say, but I do not think in the long term, it will be of a benefit to you if I were to just conclude this matter.  For example, if I were to call back the two experts and I say to them, 'Well, there was some question whether steel rods had been inserted.  Now we know there are steel rods.  Does this affect your evidence?'  It they both say no, that's the end of the case, and that won't solve ­ that won't solve your concern.  I'm just saying this hypothetically.  I'm not arguing.  Please understand me. 

   ADAM, MR:  Can I just say, that's only half the case.  What about the paint?  The painting spec report?

   DE VILLIERS MR:  Well, even if we call the painter back in.  Let's suppose we do this in a quick way.  We call the three experts in, we say to them, 'There are eight rods in this wall.  Does the presence of those eight rods affect your evidence?' Mr Engineer:  'No, it doesn't.'  Mr Painter:  'No, it doesn't.'  That's the case.  That won't let you go to bed easily tonight, would it?  No, it wouldn't. 

   I'm not debating with you now.  I'm giving you a reason for my decision, because you would still say the City approved structures that should never have been approved, and that is why that process will be given its opportunity first.  So I am going to adjourn this matter to allow the City to fully investigate the approvals process. 

   I will give each of you a copy of the transcript so you can give that to the City or share relevant parts, whatever you want to do, and then we will have a directions hearing again to ascertain what the outcome is of the City's process and then determine how to conclude this hearing.  To conclude this hearing will be very minimal.  The experts will be called back and the facts will be put in, and that's the question that will be asked of them.  …

   …

   DE VILLIERS MR:  … I'm not having now a general review of a decision, because that is why court's generally don't reopen, because people in the hearing hear things that they think, 'If only I had known that, I would have presented different information.'  I wouldn't allow that.  You must just hear me out, because each time you want to interrupt me, I don't think you're hearing what I'm saying, and this is important that you listen me out.  Okay. 

   I will be very strict on the experts when they come back which questions are put to them.  I will not allow a general re-argument of what we've heard before.  If you feel, once I've handed down my decision, that I have erred, then you appeal me.  That's the way the law works.  Then you appeal me.  But I wouldn't allow a general revisiting of whether the painter or the inspector did a proper job and whether he was honest or dishonest ­ that is done. 

   Only one question will be put to the painter.  'Mr Burkett, [it] has now been established that there are eight dowel metal rods in this wall.  Does that change your evidence in regards' ­ listen me out ­ 'in regards to possible causes of the painting damage?'  If he says yes, 'Please explain, Mr Burkett.'  If he says no, 'Good day, sir.'  That's it.  Nothing more.  You've had your chance to criticise him and his credibility.  That won't be reopened.  Please be sure about that.  …

   (T:2-15; 21.11.16)

1. Member De Villiers then made the following orders:

   1.The order that the decision is 'reserved' is revoked and substituted with these orders.

   2.Leave is granted for the applicant to submit fresh evidence about metal connectors to the Tribunal.

   3.The applicant must by not later than 25 November 2016 file with the Tribunal and give to the respondent a Statutory Declaration in which the applicant explains the methodology he has followed to identify the number and location of metal connectors in the dividing wall.

   4.The respondent must by not later than 2 December 2016 file and serve a reply to the Statutory Declaration of the applicant and say whether he accepts the methodology; the presence of metal connectors; the location of the metal connectors; and the number of metal connectors.

   5.The matter is adjourned to a directions hearing to take place on 16 March 2017 at 10 am for the following reasons:

   (a)The Tribunal is satisfied that the applicant has demonstrated by photographs dated 12 November 2016 that it is likely that metal connecters had been inserted into the dividing wall.

   (b)The Tribunal notes the content of the email from Ms Maria Cooke from the City of Wanneroo dated 10 November 2016 in which she says that the City will as a result of this fresh evidence re-visit the expert reports it had received and the retrospective approval the City had given for the installation of the planter boxes, water feature and blade wall the subject of this proceeding.

   (c)The Tribunal is of the view that the reassessment of the City should be allowed to be complete before the Tribunal considers all the fresh evidence, including the outcome of the decision of the City.

   6.The Tribunal notes that it is unusual for a matter that had been reserved to be adjourned in this manner, but due to the exceptional circumstances this is the appropriate course of action so as to save the parties cost and to resolve the matter in the most efficient way.

   7.The applicant and the respondent must by not later than 10 March 2017 file with the Tribunal and give to the other party an update of the re-evaluation process of the City.

   8.If the City has not yet made known its decision following the re­evaluation, a representative of the City is invited to participate in the directions hearing to update the Tribunal and the parties about the process. The respondent must by not later than 7 days before the directions hearing inform the Tribunal and the applicant of the name of the person at the City who is responsible to review the matter so as to enable the Tribunal to invite the person to attend the hearing.

   9.Each party shall be given a transcript of the hearing that took place on 7 November 2016.

Directions hearing on 14 December 2016

1. Following the directions hearing on 21 November 2016 the applicant filed a statutory declaration in compliance with the orders made on that occasion. In addition the applicant made an application pursuant to s 59(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) requesting that the original Tribunal decide a 'question of law' the question being, 'how SAT see the attachment of the respondent's walls to the dividing fence/wall and the existing boundary walls?' The applicant also stated that he wished to submit new expert evidence by way of a paint report prepared by Dulux Paints in respect to complaint item 4.

2. The original Tribunal also received a statutory declaration sworn by Mr Di Giacomo which attached a number of documents in respect of the approval process by the City of Wanneroo which incorporated a number of reports from Structerre Consulting Engineers including a recent report dated 15 November 2016.

3. The application of the applicant under s 59(1) of the SAT Act was considered at a further directions hearing on 14 December 2016 at which Member De Villiers presided.

4. The following relevant transcript excerpts evidence the discussions which took place at that time:

   DE VILLIERS, MR:  This is the matter of Adam v Di Giacomo CC583 of 2016.  We have, for the applicant, Mr Adam, and, for the respondent, Mr Di Giacomo.  Now, the reason, gentlemen, why we're here today is we received from you, Mr Adam, some correspondence after the previous directions hearing.  I indicated that we cannot receive just letters and emails and these things.  The tribunal cannot deal with this on an ongoing basis.  We either deal with submissions in a hearing or we don't deal with it at all. 

   You then lodged an application for a question of law, as you put it, to be dealt with, namely, whether the erection of these structures fall within the jurisdiction of SAT and, if so, under which of the various statutes.  Now, let me, before I deal with that question of yours, just explain to you both where we are at in this matter. 

   In general, once a court or a tribunal reserves a decision, that is it.  No further submissions are allowed.  It is highly exceptional ­ in fact, it just doesn't happen ­ that the tribunal or a court would, once a matter is reserved, re-open it.  Usually, it's on the appeal that one would go to the Appeal Court and say, 'Well, there's new additional information and we believe that should be taken into account and it should have been taken into account, previously.'  But, otherwise, litigation would never end, because as soon as one hears what the other side says, you rush off and you get more information.  So there's a principle which is called the finality of legislation ­ of litigation.  Once a matter is reserved, that is it. 

   In this case, the only reason why I re-opened it ­ and that is completely exceptional ­ but the only reason why I re-opened it was in regard to the question of the connectors because there was very firm evidence before the tribunal, by way of a statutory declaration, affidavit by Mr Di Giacomo, that there had not been connectors, and when you, Mr Adam, then, went and you opened your wall ­ which is probably something one can say, reasonably, you were not expected to do prior to the hearing because of the damage that it caused ­ those connecters were identified.  Then, I re­opened the hearing just to deal with that.

   So this hearing hasn't been re-opened, now, to have a lot of extra information before me.  I mean, you speak in your letter that you want to submit the report from (indistinct), and so that is ­ this hearing won't deal with those things.  The hearing ­ you had the opportunity, both sides, to submit your evidence to me, and the only question ­ the only question that I'm re-opening is the question as to the fact of the connecters.  That is, now, I think, fairly established.  It's not disputed by Mr Di Giacomo that there are connectors.  Then, the question is what is the opinion of the experts, whether those connectors impact on the structural integrity of the wall; yes or no.  That's all.  That's the only question I'm re-opening.  I won't re-open anything else.

   Now, the inspectors or the experts, in their evidence that they gave to the tribunal, on page 13 of the transcript, as I've said the previous time, answered to the following question by Mr Marsh, he said to them:

   This question is to both engineers:  even if there was a six-millimetre dowel attached to the walls, would that have had an impact on the structural integrity?

   And both say no. 

   Now that we know that there are several of these connectors, that same question will be put to the experts, whether ­ and just those two experts; we won't call additional experts.  Just those two experts will be given the opportunity to say now that the fact has been established that there are connecters, whether that influences the answer they gave to Mr Marsh.  That's it.  Then, the hearing is done; then, we can go and reflect on the decision.

   So I want you to understand that, especially, in your case, Mr Adam, where you've been writing to the tribunal expressing views and so on, the tribunal will not deal with those.  The hearing is over except for this very one question.  Now, we have received a report from Structerre.  Their report is dated 15 November in which they say, regardless of the connectors that have now been identified, it is their view that the structural integrity of the wall has not been affected.

   Now, we will have Structerre give evidence when we meet again and we will have Mr Adams' witness give evidence, but that is it.  So I hope I have made that clear.  Are there any questions about what I have said?  There are several other items we will discuss today, but are there any questions about the general position of the law as I've explained it?  Mr Adam.

   ADAM, MR:  I've got a couple of points about it.  The first point I would like to make is that Member Marsh and Paintinspec disadvantaged my complaint by stating that they believed that the damage was caused by mat cracking.  Neither men had investigated this prior to saying that.

   DE VILLIERS, MR:  Well, until we've handed down our decision, that is a matter that I can't engage in.  If we hand down our decision and you have a look at our decision, and it's your view, then, that the tribunal made a finding which is not justified, then you can appeal it.  Or if you believe the tribunal was prejudiced, then, you can appeal it.  But that is not a matter to discuss, now.  You have to wait ­ patiently, unfortunately ­ but you have to wait for our decision and, then, you can see whether there is, in your view, an error, and, then, you can appeal it.  Yes.  Anything else?

   ADAM, MR:  Yes.  The other thing is that you mentioned the holes that are attached to the wall structures in the respondent's garden and the dividing fence is not in question.  I received a stat dec sent to me by Joe yesterday.  Point 5 of the stat dec from the respondent is querying that.  He says, 'The holes Mr Adam made in the bricks ­ ­ ­'

   DE VILLIERS, MR:  There will be a hearing for that.  There will be a hearing for that.  So we're not dealing with that today.  We are here today for you to ­ ­ ­

   ADAM, MR:  A question of law.

   DE VILLIERS, MR:  ­ ­ ­ first of all, to deal with a question of law.  We've now had the stat decs filed.  Those stat decs may be made available to the city because they are going to re-inspect this wall and whatever they're going to do.  We will then have a directions hearing in March.  I indicated, previously, that that directions hearing can be brought forward, and, then, we will deal with all these questions.  We're not going to deal with this matter on a piecemeal basis.   That's not the way I do business, and it will cause a lot of confusion.  So those points that you raise may be valid points.  They may be valid, but I'm not dealing with them, now.  Yes.  Last point.

   ADAM, MR:  Can I raise two more ­ ­ ­

   DE VILLIERS, MR:  Yes.

   ADAM, MR:  ­ ­ ­ just two more points.

   DE VILLIERS, MR:  Yes.

   ADAM, MR:  You mentioned that both the structural engineers had said that they didn't believe that the wall that was attached to the dividing wall was affecting the structural capacity.  Both men contradict themselves in these pages in the transcript.  And, also, if the wall ­ the dividing wall and the (indistinct) structures are actually built on the existing retaining walls and no one has assessed the existing retaining walls for structural capacity, they can't possibly say that those walls are structurally safe if what they're sitting on has not be assessed.

   DE VILLIERS, MR:  Well, that can be addressed at the hearing.  I mean, I'm not ­ I think I'm not getting this point properly.

   ADAM, MR:  No, you did.  Sorry, I just had two points I wanted ­ ­ ­

   DE VILLIERS, MR:  Yes.  No, no, no.  But I must be clear about that, Mr Adam, because I don't want you to go out of here and have a sense that I haven't been open to you or to your arguments.

   ADAM, MR:  No, no.

   DE VILLIERS, MR:  But all of these things will be addressed at the hearing.  But I must emphasise that any argument that you could have put to the original hearing which you haven't put will not be allowed because there was a hearing and you had the opportunity to deal with that.  Any evidence that you could have submitted to the original hearing, and you did not, will not be entertained, the same as Mr Di Giacomo.  The only new information that ­ you must listen to me ­ ­ ­

   ADAM, MR:  Yes, I'm listening.  Sorry.  I thought you had finished.

   DE VILLIERS, MR:  ­ ­ ­ because each time you run ahead of us ­ ­ ­

   ADAM, MR:  I thought you had finished.

   DE VILLIERS, MR:  ­ ­ ­ and that is why as soon as we leave here, we start getting the first email.  So I'm doing a lot of ­ taking a lot of time to explain to you these processes.  The only question that will be put to the witnesses, they will be taken to their statement that they've made and there will be said, 'Listen, now it's clear that there are the following number of connectors, you gave the following evidence on such-and-such date.  Does the presence of these connectors impact on your evidence;  yes or no?'  Hearing is over.  That's it.  That's it.

   ADAM, MR:  One final question.

   DE VILLIERS, MR:  Last question;  yes.

   ADAM, MR:  You mentioned no further reports could be submitted.  But SAT have just accepted a report from Structerre which was after the final hearing.

   DE VILLIERS, MR:  No.  I've made it clear that the only reports that will be accepted is reports in regard to the structural integrity of these ­ of the wall as a result of a finding of fact that there are metal connectors.  So your expert that you called ­ I've forgotten his name ­ your expert that you called will also be able to give a report or to give evidence just in regard to that question. 

   So Structerre, for example, have gone into their report and have spoken about other methods.  That could be disregarded because the hearing is over.  The hearing is over.  And that is why I started this morning by explaining to both of you the principle of finality in litigation, that once proper orders are made, once each side has an opportunity to present their case, the hearing takes place, the decision is reserved;  that is final. 

   And, in this case, by re-opening it, I've probably opened myself for criticism if either of you were to appeal me, that a higher court may say that, 'Member De Villiers, why did you open this?  You can't re-open a matter once you've closed it.'  But I do believe that the factual evidence we had about the connectors, that that justified me re-opening it, because, otherwise, it would have wasted a lot of time if you had to appeal just because of that finding of fact, and I think that was the right decision.  Okay.

   …

   All right.  So let's move into the next item, and that is the question of law that you have raised, Mr Adam, and that is per email of 23 November.  Now, in that email you say that you believe there is a question of law, you want the tribunal to ascertain which legislation applies to this wall and whether there had been a breach of that legislation, and you refer to the Private Property Law of 2001 and other legislation. 

   Now, again, yes, I must say ­ probably, to your frustration ­ that this is a question that will be dealt with in my final decision.  So in my final decision, I will make a finding as to what the tribunal's jurisdiction is, because not all of these legislation falls in our jurisdiction ­ some of it may ­ and I will make a finding as to what legislation applies to this dispute.  It's not a matter ­ it's not a question of law that should be dealt with now.  It is a question of law.  No doubt, it's a question of law, but that will be dealt with as part of my ultimate decision.  There's no urgency about this question.  The question will be dealt with in due course.  Yes[.]

   …

   … So, as far as the request is concerned, Mr Adam, for the tribunal to make an urgent decision in regard of the legal question or the question of law you've identified, that request is dismissed because that will be dealt with in the fullness of time.

   So let me just see.  As far as the orders are concerned that I made, previously, for both of you to file statutory declarations, we have now received those[.]

   …  Attached to Mr Di Giacomo's statement or affidavit was, also, the supplementary report of Structerre which is dated 15 November 2016.  By the time this matter goes to ­ comes back to the directions hearing, I will also give your expert an opportunity to file a report in reply to these two affidavits and for your expert to say, well, now that it has been affirmed that there are these connectors, whether, in his view, that changes the evidence that he has given previously.  So that opportunity will be given.  Do you know whether ­ perhaps, you can say to us, Mr Di Giacomo ­ has the city been in touch with you?  Have they invited any further information from you?

   DI GIACOMO, MR:  I received a phone call a few weeks ago from the council asking if they could request permission for a structural engineer to come to the site, of which I granted, and no conversation on what's going ­ I've got no transparency on what's actually happening.  I've allowed the access, and I've heard nothing further.

   DE VILLIERS, MR:  So that inspection had occurred?

   DI GIACOMO, MR:  Yes.

   DE VILLIERS, MR:  Obviously.  Right.  Okay.  So now, I assume ­ you see, since, previously, the council had retrospectively approved what you had done ­ and I know Mr Adams is taking issue with that ­ I just wonder what you can expect from the city if they have, now, reached the conclusion that nothing has changed.  Will they just stay quiet or will they write to you and say, 'Now that we have conducted the inspection, we confirm that we are happy with what had happened?'

   …

   DI GIACOMO, MR:  I've received nothing, officially:  no correspondence, no letters[.]

   DE VILLIERS, MR:  Okay.  Well, I would say that see if you can follow it up in the beginning of January.  Okay.

   …

   ADAM, MR:  The city are having to go back to the structural engineer that carried that report out and have it re­done because it's incompetent.

   DE VILLIERS, MR:  Yes, well, that is your view.  We will ­ ­ ­

   ADAM, MR:  Well, it's in an email.

   DE VILLIERS, MR:  Yes.  Well, we will let the city, Mr Adam, do their business; that's not my concern now.  It's not within my jurisdiction.  The city has a public regulatory role, and they have been made aware, now, of these connectors which they hadn't been aware of before, firstly.  Secondly, I did the extraordinary thing to give them a copy of the transcript which, usually, I wouldn't do.  But I felt that, listen, we've got to bring this matter to a close, and so I authorised the release of the transcript to them. 

   So they've got their role.  If you, as a neighbour, have any concern with the way they do their job, you can contact them.  It's nothing to do with me.  All that I'm interested in, now, is whether the retrospective approval the city had given previously, whether this additional information is impacting on that.  If it is, if they say, 'Well, we're not giving approval, now,' then, obviously, it impacts on our process.  If they say, 'Well, yes, we've not been given any information to change our previous position,' then, we can conclude this matter.  Okay.

   ADAM, MR:  Could I ask you one question.

   DE VILLIERS, MR:  Yes.  Yes.  Yes.

   ADAM, MR:  Will you be recalling the paint inspector to come back, do you think?

   DE VILLIERS, MR:  No, no, no.  The paint job is over, Mr Adam.  That's what I tried to say to you at the first point this morning.  The paint ­ ­ ­

   ADAM, MR:  Well, you did say that; yes.

   DE VILLIERS, MR:  Yes.

   …

   DE VILLIERS, MR:  The paintwork is over.  I mean, we had a hearing and that's over.  So that it why I've explained to you there is finality in litigation. 

   ADAM, MR:  Yes.

   …

   DE VILLIERS, MR:  … You had more than ample opportunity to file a report by Dulux or by whoever you wanted to.  You did not.  That's your decision.  You relied on the report of your expert engineer.  Your expert engineer, in the hearing, said, 'Well, I'm an engineer;  I'm not a painter.'  So that's the reality.

   As far as Mr Burkett is concerned, Mr Burkett was called to give evidence.  He requested you to access the site to test the paint.  For your own good reasons, you said that you would not allow him on site.  And that's the evidence before me.  So I won't, now, now that the hearing is over, say, well, listen, let's see if we can beef up a claim (indistinct) by calling new evidence;  that's not on.  Yes.

   ADAM, MR:  In terms of Member Marsh, Member Marsh was called to the hearing, obviously, for his expert experience in construction.

   DE VILLIERS, MR:  Yes.

   ADAM, MR:  Member Marsh stated the walls weren't attached when he didn't investigate them.  He stated that he believed the damage was mat ­ sorry, mat cracking, but he didn't investigate it, and he clearly had the structure reports from Structerre, and he did not notice that Structerre did not assess half the walls in the garden.  I mean, he completely disadvantaged this complaint.

   DE VILLIERS, MR:  But that is my point, and that's what I said earlier.  Once we've handed down our decision, let's suppose we go against you ­ and I don't know what our finding is going to be ­but let's suppose we go against you.  Then, you can go back to the transcript and say, 'Listen, this tribunal was biased because look what Member ­' you're not listening here.

   ADAM, MR:  No, I'm listening.  I just remember ­ I'm listening.

   DE VILLIERS, MR:  No, I'm still speaking and you're ­ because I've actually addressed this point when we started this morning, so if you had, then, you wouldn't have asked it again.  So please hear me out, just listen me out.  If you are of the view that the tribunal was biased, then, you can go back to the transcript, you appeal the decision and you say, 'Well, look at these observations the tribunal made.  Look at what Member Marsh said, and I believe the tribunal never had an open mind.  They were biased, they didn't investigate, and, therefore, the matter should be re-opened.'

   It's not to be dealt with today.  It's not to be dealt with today.  That may be dealt with in future, but not now.

   ADAM, MR:  You mentioned that that can be dealt with in future, but one of the regulations in the SAT Act is that these things should be dealt with with as little cost to the applicants or the respondents as possible.

   DE VILLIERS, MR:  Yes.

   ADAM, MR:  So if I clearly pointed ­ I highlighted three points where Member Marsh has clearly got his facts wrong, then, surely, I should allow to (indistinct) those facts.

   DE VILLIERS, MR:  Yes.  Well, you can do that, but not today.  The opportunity will arise.  That's why I'm saying to you that we will have a directions hearing, and, then, at the directions hearing, an opportunity will be given for your experts to reply to the information we've received, and if you then want to make any final submissions, you can make those submissions.  It's a matter of findings, and today's not the time for it.

   …

   ADAM, MR:  So I can introduce these at the next directions hearing; is that what you're saying?

   DE VILLIERS, MR:  Yes.  You can't introduce new evidence.  The evidence opportunity is over.  But you can, except as far as the structural integrity of the wall is concerned ­ that is the reason why I opened it ­ there will be no opportunity for further evidence.  But you can make a submission as to what you believe the outcome should be; that, you can do.  Yes.

   (T:2-12; 14.12.16)

1. At the directions hearing on 14 December 2016 Member De Villiers made the following orders:

   1.The request by the applicant for a determination to be made on an urgent basis in regard to a question of law that is the subject of the main proceeding, is dismissed.

   2.The request by the applicant for additional material or reports to be admitted in regard to possible causes of the failure of the paint, is dismissed.

   3.The parties are reminded that the Tribunal shall not receive any communications or material unless pursuant to (a) an application for interim relief or (b) orders made by the Tribunal.

Directions hearing on 16 March 2017

1. On 8 March 2017 the original Tribunal received correspondence from the City of Wanneroo notifying it that retrospective approval had been given to the respondent in respect to the relevant structures the subject of the proceeding.  Such retrospective approval relied upon an expert report prepared by M.A. Lalli and Associates, Consulting Chartered Engineers, dated 5 December 2016 which was prepared for the City of Wanneroo.  That report was provided to the original Tribunal by the respondent on 9 March 2017.  Member De Villiers then made the following orders on the documents on 10 March 2017:

   1.A copy of the letter from the City of Wanneroo dated 8 March 2017 shall be provided by the Tribunal to Mr Mathew Burkett by not later than close of business on 10 March 2017.

   2.Mr Burkett must by not later than 15 March 2017 inform the Tribunal in writing whether, after having considered the letter of the City of Wanneroo, he wishes to revisit the evidence he had given in this proceeding in regard to the possible cause/s of the failure of the paint.  

2. On 13 March 2017 Member De Villiers made the following orders on the documents:

   1.A copy of the letter from the City of Wanneroo dated 8 March 2017 shall be provided by the Tribunal to expert witnesses Mr Field and Mr Rickerby by not later than close of business on 13 March 2017.

   2.Mr Field and Mr Rickerby shall by not later than 4pm on 15 March 2017 inform the Tribunal whether:

   (a)Their evidence given on page 13 of the transcript dated 7 November 2016 stands in response to a question by Mr Marsh, namely:

   'Marsh, Mr: Just only one, and this is to both engineers.  Even if there was a six millimetre dowel attached from the walls, the walls abutting - not the planters, but the screen walls abutting, would that have had - impinged on the structural integrity?

   Witnesses: No. We'd say no"

   (b)Do they wish to give additional evidence to the Tribunal.

3. The original Tribunal then received responses from the relevant experts by way of email as follows:

   •An email from Mr Burkett on 14 March 2017 stating 'the Wanneroo City Council report does not change my view on matters in regard to paintwork related matters.  I stand by my opinions and comments in my report previously submitted'.

   •An email from Mr Rickerby, of Structerre Consulting Engineers, on 14 March 2017 relevantly providing:

   … I confirm my statement made during the hearing on 7 November 2016 that if there was a dowel attached between the abutting screen walls, that this would not adversely affect the structural integrity of the screen walls.

   As per my discussion on 7 November 2016, a direct connection such as this one described between the two walls would in fact improve the lateral stability of the walls in question.

   •A letter sent by email from Mr Field, Principal Structural Engineer at the G F Consulting, Structural Consulting Engineers, on 15 March 2017 which provided 'the structural integrity of the brick screen walls will not be affected structurally if the walls concerned are mechanically tied together at the junction of the walls with a 6mm dowel embedded into both walls connecting them together'.

4. Member De Villiers then conducted a directions hearing on 16 March 2017 to raise with the parties the new documentary evidence received and what, if any, further steps needed to be taken as a result.  Relevant useful excerpts of the transcript are set out below:

   DE VILLIERS MR:  … Now, gentlemen, the reason why we are here today ­ I will first just give a brief background so that the transcript reflects what has happened in this matter and then we can decide what to do from here on.  The decision in this dispute was reserved on 7 November 2016 for a decision to be handed on 21 November 2016.

   Shortly after the decision was reserved the applicant provided fresh evidence about the presence of metal connectors in the wall.  On 21 November 2016 the tribunal reopened the matter specifically and only for the parties, experts and the City of Wanneroo to respond to this fresh evidence.  A copy of the transcript of the proceeding, including the evidence given by the experts was given to the parties.

   The City of Wanneroo submitted a letter to the tribunal of which a copy was given to the parties on 8 March 2017.  In it the city expresses the view about the metal connectors and the potential impact, or lack of impact, on the structural adequacy of the wall.  In essence, the city is of the view that the presence of the connectors does not affect the structural integrity of the wall.  Both parties were given an opportunity to respond to the letter of the city.  Mr Adam submitted a letter dated 13 March 2017.  There were also previous letters of 9 March and 20 February.

   Mr Di Giacomo has not yet made a written submission.  The three experts who gave evidence, two engineers and one painter, were given an opportunity to respond to the letter of the city.  Their responses are as follows.  Mr Burkett says, per email dated 14 March 2017, that his evidence stands and there is nothing in the letter of the city that would cause him to change his opinion.  Mr Rickerby says per email dated 14 March 2017, that his evidence stands and there is nothing in the letter of the city that would cause him to change his opinion.

   He says that the presence of the rods may in fact, in his view, improve the lateral stability of the wall.  And then Mr Field said per email dated 15 March 2017 that his evidence stands and there is nothing in the letter of the city that would cause him to change his opinion.  So that is where we are today.  We have now reopened the matter to consider the factual evidence provided by you, Mr Adam.  The experts have commented on those and, Mr Adam, you have commented.

   It seems to me we are now at the point where I can again reserve the decision and go away and work on it and make a decision.  So unless there's anything else that should be before me that is the order I will make today, that the matter is now brought to a close so that I can move on with the next step.  So let's hear, Mr Adam, is there anything that you would want to add before I make such orders?

   ADAM, MR:  Yes.  Well, on 21 November you made an order that the respondent had to draft a stat dec and you had nine points covered and he had to ask ­ he had to answer nine questions.  … That has not been answered.

   …

   DI GIACOMO, MR:  No, I think my statutory declaration is in my opinion quite clear.  I've accepted that ­ we will accept the presence and the way ­ the method used for the (indistinct) wall and the water feature, although we can't verify it, but with the evidence to (indistinct) the hole we take on board that.

   …

   DE VILLIERS MR:  Thank you.  Well, gentlemen, thank you very much.  This matter has been protracted, not only in the tribunal, but before having reached the tribunal.  I will hand down my decision.  I will reserve the decision today and then I will hand it down at 10 am on 28 March 2017.  So that is the order that I make.  The decision is reserved to be handed at 10 am on 28 March 2017[.]

   (T:2-6; 16.03.17)

Delivery of oral decision on 28 March 2017

1. The original Tribunal reconvened on 28 March 2017, constituted by Member De Villiers, to deliver an oral decision.  In summary form the original Tribunal made the following findings in respect to each of the complaint items:

   •Complaint item 2 ­ external west dividing wall ­ affected the noise insulation.  On the basis that no expert evidence was filed in respect of this complaint item and no oral submissions were made at the original final hearing the original Tribunal found that the complaint was unsubstantiated and therefore it was dismissed (T:17; 28.03.17).

   •Complaint item 3 ­ external west dividing wall ­ affected the structural capacity.  The original Tribunal found that the consistent evidence of the independent expert structural engineers was that none of the works performed or caused to be performed by the respondent had adversely impacted on the structural integrity of the dividing wall.  In addition the experts agreed that the presence of the metal connectors may have improved the structural integrity of the dividing wall.  The original Tribunal therefore dismissed the complaint (T:12­14; 28.03.17).

   •Complaint item 4 ­ external west dividing wall ­ affected the waterproofing capacity.  The original Tribunal found that the applicant was unable to establish, on the balance of probabilities, that the cause of the paint failing could be attributed to the building service performed by the respondent.  The original Tribunal noted the various possibilities of the paint failure which were raised during the original final hearing and found that the applicant was not able to satisfy the original Tribunal that the possible cause that he proposed (being water ingress from the respondent's side) was more likely than not to be the cause of the failure of the paint as opposed to the other possibilities identified.  The original Tribunal accepted the essence of the evidence given by Mr Burkett that the blistering of paint could be caused by a number of possibilities but that he could not say with certainty that it was as a result of water ingress due to the works undertaken by the respondent.  The original Tribunal therefore dismissed this complaint.  (T: 13-17; 28.03.17)

Consideration of review grounds

1. Whether the original Tribunal erred in fact and law by failing to reach a decision about the legality of the structures and as a result whether the work was not carried out in a proper or proficient manner

1. The applicant raised with the original Tribunal on a number of occasions what he described as a 'legal question' and sought a determination of that question prior to the original final hearing.  The original Tribunal dismissed the applicant's interim application seeking that the question be determined on a preliminary basis and the applicant was informed that the matter would be dealt with in the final substantive decision.

2. Effectively the applicant sought for the original Tribunal to reach a decision on the legal status of the structures constructed by the respondent and connected to the jointly owned dividing fence and, in particular, whether in doing so the respondent had breached either Part 3.1(a) of the PPLL (now repealed) or s 77(a), s 79.1(a), s 83(d) or s 185.1(a) of the Building Act.

3. Ultimately the contention of the applicant was that the structures did breach relevant provisions of the PPLL and the Building Act and thus in his submission were 'illegal' structures which ought to lead to a finding that the works were not carried out in a proper and proficient manner for the purposes of s 5(1) of the BSCRA Act.

4. It is necessary to set out the relevant provisions to which the applicant has referred. Set out below are sections from the Building Act:

   77.Other land not to be adversely affected without consent, court order or other authority

   A person responsible for work must ensure that the work does not adversely affect land beyond the boundaries of the works land ­

   (a)unless each owner of the land that may be adversely affected consents to the work being done even though the land may be adversely affected in that way, and the work is done in accordance with the consent; or

   (b)unless the work is done in accordance with an order under section 86(2)(b); or

   (c)except in prescribed circumstances.

   Penalty:a fine of $25 000.

   …

   79.Certain work not to affect party walls etc. without consent, court order or other authority

   (1)A person responsible for work must ensure that the work does not affect the structural, waterproofing, or noise insulation capacity of a party wall, a substantial dividing fence, or a boundary retaining wall that protects land beyond the boundaries of the works land ­

   (a)unless each owner of the land that shares the party wall or the dividing fence, or that is protected by the boundary retaining wall, consents to the work being done, and the work is done in accordance with the consent; …

   Penalty: a fine of $25 000.

   …

   83.Terms used

   In this Division ­

   affected land, in relation to a notifiable event, means land that is reasonably likely to be affected by the event; …

   notifiable event means any of the following ­

   …

   (d)the structural, waterproofing, or noise insulation capacity of a party wall or a substantial dividing fence shared with the works land, or a boundary retaining wall that protects land beyond the boundaries of the works land, is affected[.]

   …

   185.Underpinning

   (1)In this section ­

   underpinning consent means ­

   (a)a consent in writing of the adjoining owner in response to a notice under section 391(2) of the former provisions; or

   (b)the requirement of the adjoining owner to underpin or strengthen the foundations of the adjoining owner's building as set out in a counter notice under section 391(3) of the former provisions[.]

5. Section 3.1 of Part 3 of the PPLL is set out below:

   PART 3 ­ FENCING GENERAL

   3.1Dividing and boundary fences

   Unless by agreement between the owners of adjoining properties, a person shall not ­

   (a)erect, construct or alter a dividing or boundary fence on a lot that does not satisfy the requirements of a sufficient or permissible fence[.]

6. It is clear from a review of the transcript of the oral decision delivered by the original Tribunal on 28 March 2017 that the original Tribunal did not expressly address the issue of whether the structures the subject of the applicant's complaint breached particular provisions of the Building Act or section 3.1 of the PPLL.

7. However, this omission of the original Tribunal, although constituting an error in that the applicant raised an issue for determination which may have been relevant and which was not expressly determined, does not lead to a substantial injustice which would require a re­hearing.  This Tribunal reaches this conclusion for the following reasons.

8. It is often the case that parties before the Tribunal confuse the role and jurisdiction of the Tribunal with that of other decision­making bodies, particularly local government bodies.  For example, local government has authority to approve works either at the outset or retrospectively, to issue building orders for demolition or requiring rectification work to be performed, to prosecute individuals and corporate entities pursuant to relevant empowering legislation and to impose fines and so forth.  Those local government authorities and powers are completely separate to the jurisdiction, authorities and role of this Tribunal.  They involve very different considerations, discretions and processes.  It is dangerous to meld the roles of local government and this Tribunal together when considering complaints brought pursuant to the BSCRA Act.

9. In this regard it is important to note that the Tribunal cannot simply conclude that a building service has been carried out in a proper and proficient manner and is not faulty or unsatisfactory on the basis that it has been approved by the relevant local government authority. Similarly, the Tribunal could not conclude that a building service is faulty or unsatisfactory or has not been carried out in a proper and proficient manner merely because it has not been authorised by the relevant local government authority. A decision of this kind taken by local government is not determinative in respect of the question as to whether a building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. However, if expert reports underpinning the relevant local government's decision raise concerns in respect of the building service, for example, that it has been assessed to be structurally unsound, then those underlying reports may well be relevant to the Tribunal's determination. However, the provision of those reports in and of themselves are likely to be insufficient and it would be incumbent upon the party relying on the reports to arrange for the author to give oral evidence at a hearing to allow the evidence to be properly tested. Thus, any building service which is simply 'unauthorised' is not a fact in isolation which could reliably support a finding pursuant to s 38(1) of the BSCRA Act.

10. Therefore, if a respondent has been found to have breached the Building Act or the PPLL, that fact is merely part of the factual matrix before the Tribunal. However, the Tribunal is not the prosecuting authority in respect to those pieces of legislation and it is not appropriate for the Tribunal to step outside of its jurisdiction and to make findings in respect of those matters where none have yet been made by the relevant authority. If the respondent had been so prosecuted, then that information may or may not have been relevant to the proceeding before the original Tribunal. However, no such action appears to have been taken and no such information was before the original Tribunal other than the mere allegations made by the applicant himself based on his own interpretation of the relevant statutory provisions.

11. In any event, any prosecutory decision would itself not necessarily lead to a finding by the Tribunal of faulty or unsatisfactory work or work that has not been carried out in a proper or proficient manner.  To support such a finding it is incumbent on parties to bring the relevant expert evidence to the Tribunal, call those witnesses to give oral evidence and for those witnesses to persuade the Tribunal of their particular view.

12. Even if it were appropriate for the original Tribunal to make a determination in relation to the alleged breaches of the Building Act or the PPLL, on the basis of the expert evidence before it, the original Tribunal would not have been able to find any such breach. This is because:

    a)s 77 of the Building Act requires a finding that the applicant's land may be 'adversely affected'. The findings of the original Tribunal was that there was no adverse impact on the applicant's land in the manner alleged, that is, by adversely affecting the structural integrity of the dividing wall, its capacity for noise insulation and/or its waterproofing capacity;

    b)s 79 of the Building Act provides that a person responsible for work must ensure that it does not affect the structural, waterproofing, or noise insulation capacity of a dividing fence. Again, the evidence before the original Tribunal was that the works undertaken by the respondent did not affect the structural, waterproofing, or noise insulation capacity of the dividing fence;

    c)it is not possible to breach s 83 and s 185 of the Building Act because they simply provide definitions; and

    d)the particular provision relied upon by the applicant in respect of the PPLL is now repealed.  However, this particular provision is simply not relevant to the proceeding before the original Tribunal.  The Tribunal does not have jurisdiction to make a decision as to whether a dividing fence has been altered which does not satisfy the requirements of a 'sufficient or permissible fence'.  It is difficult also to see how that question would be relevant to whether the structures constructed by the respondent are faulty or unsatisfactory or constitute a building service which has not been carried out in a proper and proficient manner.  There was no evidence before the original Tribunal as to what constitutes a 'sufficient or permissible fence' nor whether following the attachment of the structures to the dividing fence it was, as a result, no longer a 'sufficient or permissible fence'.  Such evidence was not necessary in order to decide whether the work was faulty or unsatisfactory or had not been carried out in a proper and proficient manner.

1. The above relevant transcript excerpt of the final decision, together with a consideration of the limited questions put by the specialist member to Mr Burkett, clearly illustrate that the original Tribunal did not rely on its own expertise in making the findings that it made and nor could the pertinent evidence relied upon be said to have been a product of 'unfair' questioning by the specialist member.  Therefore this ground of review is also unsuccessful.

6) The original Tribunal erred in fact and in law by failing to give adequate weight or any weight to the expert evidence before the original Tribunal that the painting of the structures attached to the dividing fence was not carried out in a proper and proficient manner in order to establish a finding pursuant to s 38(1) of the BSCRA Act in respect to complaint item 4.

1. In respect of this ground of review the applicant contends that the evidence before the original Tribunal was to the effect that the paint work undertaken by the respondent was not carried out in a proper and proficient manner and thus he had established his complaint pursuant to s 38(1) of the BSCRA Act. The applicant submits that despite the evidence establishing that the paint work was not carried out in a proper and proficient manner, the original Tribunal failed to grant him a building remedy order.

2. It is worthy of noting that the applicant did not himself call a painting expert to give evidence in respect of complaint item 4.  Instead the applicant was restricted to cross­examining the respondent's painting expert in order to elicit the supporting evidence he required to substantiate his own allegations.  The painting expert called by the respondent, Mr Burkett, gave the following oral evidence on this point:

   [BURKETT]:  … Many people have plastering defects on one wall of a house or a couple of walls, not necessarily all the walls, so I can't explain why your wall on the south side of your property is fine, but your back wall is not[.]

   ADAM, MR:  … (indistinct) is it also possible that water and grass coming behind plasterwork ­ behind paintwork can cause the same effect? ­ - - Yes, it can.

   …

   DE VILLIERS MR:  So why is that then discounted in this case? - - - I'm not - - -

   Why in this case do you say that water could not have penetrated behind the plaster work?  - - -  It could have because Mr Di Giacomo didn't plaster his wall for a year and didn't paint it then for another year later.  But there's nothing in a Dividing Fence Act about painting walls[.]

   …

   DE VILLIERS MR:  In the state that that wall is there what is the likelihood of water penetrating from the top of that wall to cause the type of malfunction that we've seen? - - - I don't - I don't believe at all because the wall sits on limestone foundations and the pillars on the claimant's side they're all bare, the foundation is all bare, it rains.  All the water sits in that ­ in those reconstituted limestone and if there is going to be accelerating up the render it will come from the reconstituted limestone; that's the entry point from the bottom it goes up.  You could have some water go in that lip there, some, but it doesn't fill up like a bucket.

   …

   DE VILLIERS MR:  … Your complaint is water ingress.  So that is the essence of your complaint.  Your complaint is that there is water ingress and the water ingress is causing the paint to bubble and so you say could this quality of finishing have contributed to water ingress?  The answer of Mr Burkett is yes, it could have contributed to water ingress, but not sufficiently so to explain the general malfunctioning of the paint.  That's fair to summarise, Mr  - - - ? - - - Yes.

   Yes.  So there's the evidence.

   ADAM, MR:  … So in point D would you say that that joint was not properly sealed and water would ingress from there? - - - Water could ingress there, yes.

   …

   DE VILLIERS MR:  Yes, but you see ­ to be fair, Mr Adam, that is where the expertise of Mr Burkett is so important because he must explain to us if your proposition is correct that the cracking below the paint line is caused by the water ingress.  Why then is there an area that's not cracked at all and then it starts again cracking at the top.  That's the first question.  The second is why would there be that cracking in an area where there's no soil and that's where his expertise is important, so let's hear what he says about that? - - - Now that I see that clearly that's plastering defects; the wall hasn't been plastered properly at all.  Unfortunately it hasn't because you don't - you can't ­ it's not - if you had a paint defect from moisture you would have random areas where the paint comes off.  You would have - you would see efflorescence; it would come out.  That's exactly ­ that's a textbook from the plastering standard, it says 75 by 75 mil, 150 by 150.  There's mat cracking, fire cracking and it's all to do with ­ it's not to do with ­ I'm not saying the plasterer didn't plaster it properly; that's to do with curing and wetting it down after it's done in hot weather.  I'm pretty sure.  …

   …

   DE VILLIERS MR:  The proposition that's put to you is that the paintwork is actually holding in the water? - - - That's possible.  Yes, it can hold in water, but it's probably not wet today.  It's probably happened some time back.  Yes, there was - possibly there was water and possibly there was efflorescence and that grows, but for some funny reason, which I can't explain, the paint hasn't burst.  I don't know why the paint hasn't burst and you don't see any white running down anywhere, so I can't - you can't categorically say yes, there's efflorescence, for example, behind those raised cracks or raised - what do you call it - - -

   MARSH MR:  It's just ­ it's a raised bubble effect, really, isn't it? - - - To - to be truthful in the industrial coatings world if the paint hasn't actually broken it's actually not a defect.  The paint hasn't broken down because - and we have no evidence that it has; it has just expanded for some unknown reason.  I wasn't allowed to look at the wall.

   …

   DE VILLIERS MR:  … For Mr Burkett your question is merely that of causation, could X, Y or Z have caused something?  And up to now what I hear you say, unless I'm wrong, is that you say there can be several causes to this - - - ? - - - Yes.

   - - - configuration that we see.  You say it might be plastering, it might be a pool contributing, it might be the waterproofing not being administered when the soil had backed up, but at the same time you say the evidence is that there had been waterproofing.  You say there may be water penetration from the top, but that would be limited to the top; it's not a jug of water that fills up and then it starts cracking.  You say it may be water penetration from the bottom, but you've not been able to ascertain with a greater sense of certainty because you haven't inspected it and you haven't tested it? - - - No.

   …

   ADAM, MR:  The question is will water continue to ingress through that gap? - - - Rain can fall on the gap.

   Thank you.

   DI GIACOMO, MR:  May I ask a question  - - - … related to that?  If water was to penetrate through that area through the bad course of the render, would it permeate three metres each way?

   [BURKETT]:  No, no, no.

   ADAM, MR:  … I believe the water has ingressed through that wall and that's why panel 1 and 2 are worse damage ­ show worse damage than 3 and 4.  I believe the gaps in the walls I've just shown you water ingress to damage the walls.  And the fact that the top of the wall had ­ was unsealed for over a year and a half would allow water to ingress down the wall and that's why the cracking at the top is not as prevalent as it is in the bottom panels.

   DE VILLIERS MR:  Did you want to comment on that, Mr Burkett? - - -Yes, the fact that Mr Di Giacomo didn't plaster for a year and didn't paint for a year, yes, water can go in the wall.  I have no doubt that it can, but as regards to the only reason for the paint defects I don't know.  I mean, it's just ­ it ­ most ­ most of these walls probably stay wet all year round.  If you check the boundary walls on people's home they're always damp.  Paint is very tolerant.  It's just that for some reason your paint ­ Mr Adam's paint has bubbled on this dividing fence wall.  …

   …

   DI GIACOMO, MR:  If water was to permeate through the brick wall before I rendered and plastered and possibly caused the issue after ­ what did we determine 15 or 18 months I think we determined ­ the side on Mr Adam's ­ the southern side that's been open for 18 ­ sorry, for six years would that be doing the same thing causing ­ if this was the problem would it be doing the same thing?

   [BURKETT]:  Yes, that's ­ that's my analogy I put in the report.  The fact that you both have boundary walls that are bare brick, yes, there's no defects.  I'm only just drawing an analogy, I may be wrong.  It's not the only thing ­ a bare brick wall and one side painted is not ­ doesn't mean the paint is going to bubble.  So ­ because you both have an example of that on the full length of your property where there's no paint defects at all.

   …

   [BURKETT]:  …Yes, I mean, water ingress could have happened in the year that Mr Di Giacomo did not plaster his wall.  Water ingress could have happened in the following year, that's a two year period, where Mr Di Giacomo rendered that wall, but didn't paint it.  As regard to reaction, well ­ well, I can't say anything because I wasn't allowed to inspect the claimant's property.

   ADAM, MR:  I would just like to say that this hearing was brought by me because I don't believe that the works have been done properly or proficiently and have caused damage; therefore, my paintwork hasn't been questioned.  Not in this complaint.

   DE VILLIERS MR:  No, but what the witness is saying is that since there's a burden of proof on you, Mr Adam, to show that one cause is more likely than other causes.  What he says is he is not in a position to say which cause is most likely.  He fully accepts that some of the propositions you've put may be right.  He said that, but he says that because he hasn't been able to draw the entire picture he cannot say which cause is more likely to be the cause than other causes.  You say he's wrong; that's your good right.  You say it was the one cause, but he just says he can't make the choice because he wasn't able to inspect everything.  Now, you don't have to agree with him, but that's his evidence.

   ADAM, MR:  Yes.

   …

   ADAM, MR:  … I would just like you to comment impartially as a painting expert would you class those works as proper and proficient? - - -No.

   …

   DI GIACOMO, MR:  … I just want to verify if there was water permeating through the wall at those 90 mil water sections or 200 mil wall sections where it's unplastered, is it a plausible effect that the water would go through directly to Mr Adam's side or water (indistinct) three metres, but would not permeate my side or damage my side first?  Or would my side be affected?

   [BURKETT]:  Well, that ­ that's really the unknown question.  You've got no damaged paintwork, so why ­ why did it damage his side and not yours if the wall was wet?  Your paint should have fallen off as well or bubbled.

   (T:92-119; 07.11.16)

3. From a consideration of the relevant excerpts of evidence set out above, the applicant is correct insofar as he submits that there was sufficient evidence on which the original Tribunal could find that the paint work undertaken on the respondent's property was not carried out in a proper and proficient manner.  However, one needs to bear in mind that this particular case does not involve a building service undertaken by the respondent for the applicant on his property.  The applicant has brought a complaint as an aggrieved person alleging that works undertaken by the respondent on his property have adversely affected the applicant's property such that he has suffered a loss that ought to be remedied.  Therefore whether or not painting work undertaken on the respondent's property was carried out in a proper and proficient manner is not in and of itself the issue.  The question is whether the paint work undertaken on the respondent's property, which the evidence suggests was not performed in a proper and proficient manner, has resulted in a loss or some adverse impact on the applicant's property.  In particular, in the context of the complaint brought by the applicant, whether the building service has adversely impacted on the waterproofing capacity of the dividing fence which is jointly owned by the applicant.  The original Tribunal did not err in finding in the negative in this regard. 

4. The original Tribunal found that the evidence of Mr Burkett, to the effect that the paint work undertaken by the respondent was not carried out in a proper and proficient manner, was insufficient to support complaint item 4 made by the applicant.  This is because although Mr Burkett conceded that water ingress caused by the absence of plastering and paintwork for a period of time on the respondent's property may have caused the bubbling of the paintwork on the applicant's side, he could not conclusively say that this was the cause of the defect or even the more probable cause of the defect.

5. Unfortunately what the applicant has failed to appreciate is that evidence per se that work was not carried out in a proper and proficient manner is sometimes insufficient in and of itself to result in an applicant receiving a remedy. The Tribunal has a discretion whether to grant a remedy and only does so in circumstances where it is satisfied that the applicant has suffered some loss. Even in instances where the Tribunal finds work to be faulty or unsatisfactory or not carried out in a proper and proficient manner it can decline to make a building remedy order particularly where the Tribunal finds that the failure to carry out the works in accordance with s 5(1) of the BSCRA Act is without any consequence and therefore insufficient to warrant the granting of a building remedy order (as was the case in Lewis and Waco Pty Ltd [2016] WASAT 127 at [61 ­ 62] and [106]). The discretion ought to be exercised cautiously in circumstances where there is no contractual relationship in existence between the parties, such as is the case where the complaint is being raised between neighbours.

6. Whether the respondent has decided to undertake painting in his own home and backyard, as is often the case for many home owners, and has therefore not done so to the level of expertise of a professional painter, would ordinarily be immaterial to his or her next door neighbour.  Thus it was essential for the applicant to establish that he has suffered consequential loss as a result of the work undertaken by the respondent.  The evidence in this regard was simply insufficient to do so. 

7. Therefore, in summary, this Tribunal's view is that no error was made by the original Tribunal in respect of its assessment of the evidence of Mr Burkett and the decision ultimately reached.  Therefore this ground of review is unsuccessful.

7)  The original Tribunal erred in fact and law by failing to give adequate weight or any weight to the allegation of the applicant that the evidence of the respondent and/or his experts was false and misleading and thus unreliable.

1. The applicant makes much of what he alleges is false and misleading evidence given on the part of the respondent in relation to the existence of metal rod connectors attaching the structures the subject of the complaints to the dividing fence.  This allegation is unable to justify granting leave for a rehearing for two main reasons:

   1)Firstly, whether the respondent gave false and misleading evidence to the original Tribunal and whether he ought to be prosecuted on that basis pursuant to s 98 of the SAT Act is not a matter open for consideration by this Tribunal on the review application. The applicant has informed this Tribunal that he has raised the matter with the Executive Officer of the Tribunal seeking for the matter to be referred to the State Solicitor's Office for prosecution. To the knowledge of this Tribunal no such prosecution has taken place. Thus it is a matter which remains undecided and it is not appropriate for this Tribunal to engage in a consideration of the allegations.

   2)In any event, even if it were accepted that the respondent intentionally mislead the original Tribunal in respect of whether metal connectors existed, that matter was remedied in the context of the determination made by Member De Villiers to allow fresh evidence to be admitted in this respect.  Thus no prejudice was suffered by the applicant which would justify a rehearing. 

2. In material filed by the applicant he also raises serious allegations of misconduct, false and misleading evidence and corruption on the part of the independent experts giving evidence and also various staff members and officers of the City of Wanneroo.  The applicant informed this Tribunal that those complaints had been raised with the Crime Corruption Commission and various disciplinary bodies and to the knowledge of this Tribunal no adverse findings have been made in respect of any of the allegations made by the applicant in this regard.  Those allegations are not matters appropriate for this Tribunal to comment on or involve itself with.  Those inquiries presumably remain a matter of investigation and inquiry and as such cannot support a decision to grant leave to rehear the proceeding.

8)  The original Tribunal erred in fact and law by failing to make any findings in respect of the structural integrity or otherwise of the dividing fence itself to which the structures constructed were attached.

1. The applicant appears to be alleging an error on the part of the original Tribunal on the basis that it failed to make a determination on whether the dividing wall itself was structurally sound sufficient to sustain extra loadings.  In this Tribunal's view this ground of review is insufficient to support a granting of leave to review for the following reasons:

   1)The onus was on the applicant to establish that the building service undertaken by the respondent had adversely affected the structural integrity of the dividing fence.  Thus the applicant was required to present all relevant evidence in this regard and if the structural integrity of the dividing fence was relevant to this determination then that material was required to be produced by the applicant himself.  The absence of that evidence meant that it was not possible for the original Tribunal to reach any particular conclusion as to the structural adequacy or otherwise of the dividing fence.

   2)`The only evidence on this point, minimal that it was, given at the original final hearing by the applicant's independent structural engineering expert, Mr Field, did not support the applicant's concerns in this regard.  The relevant excerpt from the transcript is set out below:

   WITNESS, FIELD:  … They are providing a surcharge on to the existing retaining wall.  That's no argument that they're not.  Because they're adding a load.  So the load has got to be transferred to the wall so there's adding a load on to the wall.  As to how the load is going to work is what affects the structural integrity of the wall.  Just ­ and I'm just from a visual point of view because I haven't done any analysis on it, all right, but on a visual point of view I don't think it would severe ­ would affect the structural integrity of the wall.  I mean, it's not only the wall issues, it's the ground underneath.  We assume that's all been well compacted, you know.  Sure, like, with the retaining wall, agree with the engineering colleague here, you know, provides a moment in the other direction which reduces the extreme stress and the tug of the wall, right.  So ­ so just my comment is, no, I don't think it will adversely affect the structural integrity of it.

   (T:36; 07.11.16)

2. Thus to the extent that there was an absence of evidence on this point as the applicant alleges, the onus was on him to adduce that evidence, and the mere absence of evidence does not support the allegation the applicant contends.  In addition, the applicant's own independent expert's view was unsupportive of the applicant's position in this regard.  Therefore this ground of review is also unsuccessful.

9)  The original Tribunal erred in fact and law by failing to give adequate weight to the evidence of Mr Burkett, the painting expert of the respondent, to the effect that the blistering of paint on the dividing fence on the applicant's property was as a result of water ingress due to the works undertaken by the respondent.

1. This ground of review is interrelated to ground (6) dealt with above. Essentially the applicant contends that the original Tribunal ought to have found on the basis of Mr Burkett's evidence at the original final hearing that water ingress as a result of the manner in which the works were undertaken by the respondent has resulted in painting defects on portions of the dividing fence on his property. However, the evidence as presented was insufficient to support this finding for the reasons set out in [70] above. Therefore this Tribunal is unable to find an error in fact or law by the original Tribunal in its determination in this regard and therefore leave will not be granted on the basis of this ground of review.

10)  The original Tribunal erred in fact and law by failing to give adequate   weight to the expert evidence of Mr Ennis in reaching their determination.

1. The applicant alleges that the original Tribunal erred in not giving any or adequate weight to the expert evidence of Mr Stephen Ennis which formed part of Exhibit A at pages 67 ­ 71 which was in the form of a letter from Mr Ennis to the applicant dated 9 February 2016.  Mr Ennis appears to be a registered builder engaged by the applicant to review relevant documentation and inspect the works and provide his views.  Although the original Tribunal included a copy of this letter in Exhibit A no formal expert report was filed on behalf of Mr Ennis and he was not called to give oral evidence at the original final hearing.  The alleged disadvantage suffered by the applicant by the original Tribunal not giving weight to the documentary evidence of Mr Ennis was primarily in respect of their consideration of complaint item 4 (the waterproofing capacity of the dividing fence). 

2. Although Mr Ennis made comment in his correspondence with the applicant that connectors existed between the relevant structures and the dividing fence, that factual matter was adequately addressed with the introduction of fresh evidence.  And although Mr Ennis attempted to make some comments on the structural integrity of the dividing fence, that evidence would not have assisted the applicant as the recommendation of Mr Ennis was that the structure required a professional engineer to investigate.  Mr Ennis is not a structural engineer and thus the applicant relied on the evidence of Mr Field, being a structural engineer, at the original final hearing.  Thus no disadvantage could be said to have been suffered by the applicant by the original Tribunal relying on the experts with the relevant qualifications and expertise in respect of structural integrity matters as opposed to relying on informal views expressed by someone not called to give oral evidence and who also appeared not to be suitably qualified.

3. Mr Ennis' letter also set out in brief terms his view that the bubbling of paint on the dividing fence on the applicant's side was as a result of water penetration from the respondent's side of the wall (page 69 of Exhibit A).  If the original Tribunal gave no weight, or no proper consideration, to this view it could perhaps be seen as an error.  In addition the substance of the letter was not directly put to the only expert called in respect of that complaint item, Mr Burkett, for his comment. 

4. This Tribunal is assisted in its consideration of this issue by the recent decision of Justice Corboy in Polizzi v Commissioner of Police (No 2) [2017] WASC 166 at [85 ­ 87]:

   Section 32(6)(c) of the SAT Act

   85The requirement that the Tribunal take measures that are reasonably practicable to, among other things, ensure that the parties have the opportunity in a review to call or give evidence; to examine, cross-examine or re-examine witnesses; and to be heard or otherwise have their submissions considered is, of course, an aspect of the obligation imposed on the Tribunal by s 32(1) to give effect to the rules of natural justice …. The duty of a Tribunal to observe the rules of natural justice 'does not necessarily involve the extension of the opportunity of cross-examination to any party against whom evidence is called': Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 [73] (Jessup J). Further, there is 'no rule that procedural fairness dictates the rejection or giving of no weight to evidence which cannot be tested by cross-examination': Rawson Finances [137] (Jagot J). … However, that is not to say that the loss of an opportunity to cross-examine is to be disregarded in determining whether proceedings have been conducted fairly. Whether natural justice requires that a party be given an opportunity to cross-examine a witness will depend on the circumstances of the case, the nature of the inquiry, the subject matter being dealt with and the rules governing the tribunal: O'Rourke v Miller (1985) 156 CLR 342 (353) (Gibbs J). As Davies J observed in Re Barbaro v Minister for Immigration & Ethnic Affairs (1980) 3 ALD 1 that:

   In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties.  It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove.  But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence.  And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him.  It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party.  He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits (5).

   86Two further cases should be mentioned in this context.  In S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 EM Heenan J held that the Tribunal had failed to accord the appellant procedural fairness on a variety of grounds including that the evidence relied on by the Tribunal was not verified by oath or affirmation 'thus reducing its probative value whenever contentious'. Further, witnesses had not been called to adduce evidence [100] and the manner in which the proceedings had been conducted meant that evidence to be relied on by the respondent in the Tribunal had not been clearly identified so that it could be addressed, answered or refuted by the appellant [102]. His Honour observed in those circumstances that:

   The absence of witnesses and the absence of any process to verify the information obtained by oath or affirmation is a denial of procedural fairness, because of the lack of any opportunity to confront the particular witness or a particular part of his or her testimony. Further, it dilutes to a great degree the probative value of the information obtained, thus obscuring and depriving the appellant of an opportunity to make submissions as to whether or not any of the evidence should be accepted with or without qualifications as being capable of discharging the burden of proof which had to be established to displace the statutory presumption of competence [102].

   87The authorities to which reference has been made suggest that a party to proceedings in the Tribunal will not necessarily be denied procedural fairness merely because the Tribunal relies on evidence that has not been verified by oath or affirmation and which has been provided by persons who are not called as witnesses.  However, the observations of EM Heenan J in S v State Administrative Tribunal explain why it may be unfair for the Tribunal to rely on such evidence.  Whether it was unfair to do so in a particular case will, in my view, depend on matters such as the use that is made of the evidence, the issues to which the evidence relates and the nature of the decision under review. 

5. Thus whilst it was open for the original Tribunal to perhaps give some weight to the documentary evidence of Mr Ennis, in the view of this Tribunal to do so may have resulted in a breach of procedural fairness afforded to the respondent who was unable to test that evidence through cross-examination.  The views of Mr Ennis were also provided in a fairly informal letter addressed to the applicant and were not provided in the form of an expert report prepared and filed with the intent of assisting the original Tribunal with the expert clearly understanding the purpose for which it would be used and their obligations in providing it.  In addition the opinions contained therein were not given under affirmation or oath.  If the applicant intended to rely on the expert evidence of Mr Ennis he ought to have arranged for a formal report to be filed in the proceeding and arranged for the expert to give that evidence under affirmation or oath. There is also the question of its probative value in circumstances where Mr Ennis is a registered builder, but does not appear to be a painting expert.

6. In addition, although Mr Ennis' views in direct terms were not put to Mr Burkett at the original final hearing, the substance of those views were put to Mr Burkett by the applicant when he was cross-examined as to whether water ingress between the relevant structures and the dividing fence was the cause or one of the possible causes of paint bubbling on the applicant's side of the dividing wall.  Mr Burkett gave some concessions in his oral evidence in this regard but not sufficiently to support a finding favourable to the applicant.  To give sufficient weight to Mr Ennis' evidence, therefore, the original Tribunal would necessarily have needed to test that evidence in the same manner in which Mr Burkett's evidence was tested.

7. It is also clear when reviewing the decision and the reasons for the decision given by the original Tribunal that the evidence of Mr Ennis was not completely disregarded but that it was taken into consideration and was found not to be persuasive.  This was on the basis that Mr Ennis was not called as a witness and tested on the evidence, and also on the basis that Mr Ennis is not a painting expert and had not undertaken any testing of the dividing wall for moisture nor any testing of the paint to assess if it had been correctly applied and nor had he tested the plastering or investigated any other possible options (T:15; 28.03.17).

8. In summary therefore the original Tribunal appropriately gave little regard to the documentary evidence of Mr Ennis and therefore this ground of review is also unsuccessful.

Additional correspondence received from the applicant

1. Following the decision on the question of leave being reserved by the Tribunal, the applicant continued to send email correspondence to the Tribunal either directly or by way of copying the Tribunal in on correspondence to third parties.  None of the email correspondence appeared to be copied to the respondent.  That correspondence comprises:

   1)email dated 30 June 2017 repeating submissions previously made by the applicant;

   2)emails dated 8 September 2017 exchanged between the applicant and the City of Wanneroo to which the Tribunal was copied; and

   3)emails to the Tribunal dated 10, 11 and 13 September 2017 whereby the applicant sought an order pursuant to s 35 of the SAT Act for production of documents from the City of Wanneroo:

   to release the full, unedited transcript of the external report that the City have instructed Jason Mills and Michael Cassidy from BDO Australia, 38 Station Rd, Subiaco, WA 6008, to undertake due to the complaints that I have raised into allegations that the City of Wanneroo have, not limited to, approved Mr Di Giacomo's unauthorised works, on two retrospective approvals 'that did not comply with a written law that was in effect in respect of the work', the City corruptly failed to act in the course of their duties, deliberately failed to perform the functions of office properly, displayed abuse of public office, and they provided false and misleading statements to the police, the Magistrates Court, the Building Commission and the State Administrative Tribunal in complaints that have been submitted.

2. Staff of the Tribunal emailed the applicant on 11 September 2017 to request that he refrain from sending further correspondence given that the decision had been reserved.

3. Unfortunately the applicant appears to lack a full appreciation of the hearing process and notions of procedural fairness by continuing to contact the Tribunal following the conclusion of the final hearing and the decision being reserved.  This is particularly so in circumstances where the respondent appears to be completely unaware of that correspondence and therefore has not had an opportunity to be heard in respect of it.

4. Further, the Tribunal has decided that it is unnecessary to reopen the leave application hearing in order to address the material recently sent to the Tribunal by the applicant for the following reasons:

   1)To the extent that the emails contain further submissions, those submissions simply repeat the applicant's position which has already been made clear to the Tribunal in his written submissions prior to the final hearing and oral submissions made at the final hearing.

   2)An application for production of documents would not ordinarily be made where leave has not yet been granted for a review because no substantive proceeding is currently on foot.  In addition, given that the application sought to be made by the applicant seeks to establish what he alleges as corrupt behaviour by officers of the City of Wanneroo, it would not succeed on the basis of lack of relevance.  Also, as previously noted, those complaints have been raised by the applicant with the relevant bodies and the Tribunal has no jurisdiction or role in respect to those matters.  Therefore applying the test set out in Smith there is no basis on which the Tribunal would reopen the leave application hearing in order to consider making the proposed s 35 order for production of documents.

Conclusion

1. In conclusion, the applicant has not established that the decision of the original Tribunal was wrong or attended with sufficient doubt nor has he established a basis on which this Tribunal could find a breach of procedural fairness in the manner in which the proceeding and the original final hearing was conducted. Therefore the application made pursuant to s 58 of the BSCRA Act seeking leave to review the decision of the original Tribunal is unsuccessful and the Tribunal makes the following order:

Order

1.The application of the applicant made pursuant to s 58 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) seeking leave to review a decision of the Tribunal made on 28 March 2017 is hereby dismissed.

I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS C WALLACE, SENIOR MEMBER