ALLEN and GUERINONI
[2007] WASAT 253
•5 October 2007
ALLEN and GUERINONI [2007] WASAT 253
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 253 | |
| PAINTERS REGISTRATION ACT 1961 (WA) | |||
| Case No: | CC:465/2007 | 21 SEPTEMBER 2007 | |
| Coram: | DR B DE VILLIERS (MEMBER) | 5/10/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order made | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER ALLEN CATHERINE GUERINONI |
Catchwords: | Leave to review Quality of painting Failure to make submissions Failure to attend hearing |
Legislation: | Painters Registration Act (1961), s 18 |
Case References: | Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Wilson & Ors v Metaxas (1989) WAR 285 |
Orders | The application for leave to review the decision of the Painters' Registration Board, Order to Pay 04-07, is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : PAINTERS REGISTRATION ACT 1961 (WA) CITATION : ALLEN and GUERINONI [2007] WASAT 253 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 21 SEPTEMBER 2007 DELIVERED : Edited reasons delivered extemporaneously on 5 OCTOBER 2007 FILE NO/S : CC 465 of 2007 BETWEEN : CHRISTOPHER ALLEN
- Applicant
AND
CATHERINE GUERINONI
Respondent
Catchwords:
Leave to review - Quality of painting - Failure to make submissions - Failure to attend hearing
Legislation:
Painters Registration Act (1961), s 18
Result:
Order made
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Wilson & Ors v Metaxas (1989) WAR 285
(Page 3)
Summary of Tribunal's decision
1 These reasons were given orally and set out the basis for refusing an application for leave to review an order made by the Painters' Registration Board.
Background
2 The applicant, an unregistered painter, sought leave to review a decision of the Painters' Registration Board (the Board) pursuant to s 18(1) of the Painters Registration Act (1961) (WA). Although Mr Allen is listed as "the applicant", the Tribunal refers in these reasons to "the Allens" since Mr Christopher Allen and Mrs Jennifer Allen jointly participated in the proceedings. The application was lodged on 29 March 2007. At the preliminary hearing on 30 March 2007, the order to pay was stayed and the matter was set down for a directions hearing. The order to pay was extended at the directions hearing of 12 April 2007 and the matter was further adjourned to give the Board time to provide its reasons for decision. The stay order was lifted on 17 May 2007 for reasons set out in the transcript of those proceedings. The Board provided its reasons for decision on 12 June 2007 and this enabled the review application to proceed. Programming orders were made on 28 June 2007 for the parties to file and serve their respective submissions in preparation for the hearing.
3 The Tribunal explained to the parties that the application would be progressed in two phases. The first step is aimed solely at the question of whether leave to review the decision should be granted. If leave is granted, the parties will be invited to make further submissions regarding the merit of the matter. If leave is refused, the matter is concluded. It is only when leave is granted that additional evidence and information may be submitted to the Tribunal, since the hearing will be de novo.
4 Orders were made for the applicant to make further submissions to the Tribunal to explain why he believes the rules of natural justice had not been complied with by the Board, and to provide any information that would support his application for leave to review the decision. The applicant filed further submissions and the respondent also provided her submissions and photographs to illustrate what she believes was evidence of poor workmanship. The Tribunal took all of the submissions into account before making its decision.
(Page 4)
Grounds for review
5 In his application, the applicant contended that leave should be granted on the following six grounds:
(i) No, or insufficient opportunity was given for the applicant to be heard or to present his case to the Board.
(ii) As a result, the Board acted on incomplete and limited information.
(iii) The Board did not take into account the instructions given to the applicant to compare it with the actual work undertaken.
(iv) The work was often interrupted and not yet completed by the time the complaint was lodged.
(v) The Board did not provide a sound rationale for calculating the costs to remedy.
(vi) The respondent will benefit from double recovery.
6 The respondent opposed the application for leave to review for the following five reasons:
(i) The matter was dealt with in detail by the Board and its decision should be accepted.
(ii) There was ample opportunity for the applicant to participate in the proceedings but he failed to attend the inspection and the hearing.
(iii) The Board acted on the information available to it.
(iv) The work was interrupted when it became clear it would all have to be redone.
(v) It is only the quality of the paint that is of concern to the Board and not any other dispute regarding the renovations.
Principles for successful review
7 As explained to the respondent during the directions hearing, the following principles must guide the decision of the Tribunal in regard
(Page 5)
- to an application for leave to review. These principles are set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 and follow the previous Supreme Court decision in Wilson & Ors v Metaxas (1989) WAR 285 at 204. Leave will not be granted on the mere basis that an applicant is not satisfied with a decision of the Board or that the Tribunal may have come to a different conclusion.
8 A higher test is applied, as indicated in the following principles:
(a) it must be shown that the decision of the Board in respect of which review is sought is wrong, or at least attended with sufficient doubt to justify the grant of leave;
(b) a substantial injustice would be done if the decision is unreversed. What constitutes substantial injustice depends on the circumstances of each case;
(c) there is a significant question of law to be considered.
9 The Court also noted that the intent and purpose of the legislation may be frustrated if ordinary principles of appeal are applied. The Tribunal must therefore be slow to grant leave, unless in cases where there is no discernible basis for the decision, or where the rules of natural justice have been breached.
Consideration of the Tribunal
10 The Tribunal was provided with a copy of the reasons for decision of the Board dated 12 June 2007. The Tribunal will now apply the above criteria to the reasons for decision to determine if there is a basis to grant leave to review the decision:
(a) The Tribunal is satisfied that the Board considered all the evidence before it prior to it coming to a decision. Although the applicant may have a different opinion and may feel aggrieved that his contentions were not accepted by the Board, the Tribunal is not satisfied that the Allens have shown that the decision was wrong or attended with sufficient doubt as to justify leave to review. The Allens failed to provide the Tribunal with references in the Board's reason for decision where it had purportedly erred. The Allens contended that the Board should have taken into account the other work they had done as handymen; but that is not the Board's concern.
- The Board only deals with issues arising from the painting. The Board noted that the Allens were given notice of the inspection and of the hearing, but they both failed to attend. The Allens explained that they had thought the complaint would only give rise to a small penalty since Mr Allen was not registered as a painter. The mere misunderstanding does not, however, constitute an excuse for not making submissions to the Board. The Board therefore acted within its powers to continue to take the evidence before it into account and to reach a decision.
- (b) The Tribunal is not satisfied that a substantial injustice would occur if the decision is left unreversed. The Board took into account all of the evidence before it and came to a decision which was explained and motivated. The applicant has not shown that a substantial injustice would occur if leave is refused. The Tribunal understands that the applicant may feel aggrieved, but that cannot be equated with a substantial injustice. The Board acted on the information before it, after the Allens failed to attend the hearing, to seek an adjournment or to make written submissions. Nothing in the submissions of the Allens therefore supports the contention that a substantial injustice has been committed by the Board. The Allens disagreed to an extent with the quantum determined by the Board, but the fact that Mr Allen could do the work slightly cheaper does not constitute a substantial injustice. Although the Allens may feel aggrieved about the decision, the Tribunal is not satisfied that a substantial injustice flows from the decision of the Board.
(c) There is not a significant question of law to be considered. As explained by the Board in its reasons, the dispute entails the quality of painting undertaken by the Allens. The complaint was supported by the finding of the inspector. The Allens were also given proper notice of the nature of the complaint. The Board concluded that it was under "no doubt" that the painting was not carried out in a proper and workmanlike manner. The Tribunal is therefore satisfied that the Board made its decision on the basis of the available information and that
- no questions of law remained unanswered. The test for leave to review is not whether the Tribunal might have come to a different decision; the test is whether the Board erred in its process of reasoning, and I do not find any such error. There is insufficient evidence to support a finding that the Board had erred in its reasoning or that a significant question of law needs to be considered.
- (d) The Tribunal is satisfied that the rules of natural justice were adhered to by the Board. The Allens had opportunity to attend the site inspection, to present their case in person to the Board and to make written submissions to the Board. The Allens could also have sought an adjournment of the proceedings. By not making use of the opportunity to present their case, the Allens did an injustice to themselves. The explanation by the Allens that the hearing was scheduled in a busy week and that their customer was unwilling to wait does not constitute any fault on the part of the Board. The Allens also did not offer an explanation why at least one of them could not have been at the Board proceedings. The Allens could not provide the Tribunal with any evidence of submissions they made to the Board or relief that they sought from the Board for the hearing to be adjourned. The Board therefore acted within its powers. This Tribunal cannot give leave for review if a party failed by their own choice to make submissions to the Board in the original proceedings. The Tribunal therefore finds that no breach of the rules of natural justice has occurred.
(e) The Board did its calculation of costs on the basis of the recommendation put to it by the inspector. The Board refused an order for rectification since the work has already been shown to be of substandard quality. According to the Board, the Allens have shown that they are incapable of achieving a proper standard of work. Although Mr Allen disagrees with the $350 allowed for travel and sundries by the Board, this Tribunal accepts that the calculation was done on what another registered painter might charge, and we cannot find any fault with the calculation.
(Page 8)
Finding
11 On grounds of the above consideration of submissions and the application of the principles for review thereto, the Tribunal finds that the application for leave to review should be dismissed.
Order
12 The Tribunal makes the following order:
1. That the application for leave to review the decision of the Painters' Registration Board, Order to Pay 04-07 is dismissed.
I certify that this and the preceding [12] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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