BARNARD and BARRIER REEF POOLS SOUTH WEST PTY LTD - [2025] WASAT 28

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BARNARD and BARRIER REEF POOLS SOUTH WEST PTY LTD [2025] WASAT 28
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   4 APRIL 2025
FILE NO/S:   CC 649 of 2024
BETWEEN:   RICHARD BARNARD
First Applicant

LOUISE BARNARD
Second Applicant

AND

BARRIER REEF POOLS SOUTH WEST PTY LTD
Respondent

Catchwords:

Building services (Complaint Resolution and Administration) Act 2011 (WA) - Application for extension of time to make application for review of a decision of the Tribunal - Principles which apply to exercise of discretion to grant extension of time - Whether the Tribunal is required to give notice to parties of their rights to apply for review of a decision under s 58

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 38, s 38(1)(b), s 58, s 58(2), s 58(5), s 58(5)(b), s 58(6), Pt 3, Div 3
State Administrative Tribunal Act 2004 (WA), s 18(1), s 18(2), s 20
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Extension of time to make application for review refused
Application for review dismissed

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	N/A

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

Di Virgilio v McCleary [2012] WASC 437
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer (1998) 195 CLR 516
O'Connor and Town of Victoria Park [2005] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In October 2019 the applicants, Richard Barnard and Louise Barnard entered into a contract with the respondent, Barrier Reef Pools South West Pty Ltd for it to supply and install a fibreglass pool at their property in Bunbury and the pool was installed in December 2019.
The applicants subsequently lodged a building service complaint with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Resolution Act) alleging that the installation of the pool had not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
The Building Commissioner referred the complaint to the Tribunal for it to deal with and after a final hearing on 9 February 2024 the Tribunal, constituted by Member East and Sessional Member Woodforde (original Tribunal) made an order that dismissed the complaint (dismissal order).[1]
[1] Under s 38(1)(b) of the Complaint Resolution Act, if the Tribunal is not satisfied that a regulated building service (as defined in the Act) has not been carried out in a proper and proficient manner or is faulty or unsatisfactory the Tribunal may decline to make a building remedy order, in which case the Tribunal will dismiss the building service complaint.
The applicants have applied under s 58(2) of the Complaint Resolution Act for review of the dismissal order (review application).[2]
[2] Under s 58(2) of the Complaint Resolution Act, a party may apply to the Tribunal (to be constituted by a judicial member or a legally qualified senior member, and such other members, if any, as the President considers appropriate) for the review of an order that was made under s 38 of the Act by the Tribunal when constituted without a judicial member. The Tribunal for this decision is constituted by Senior Member Aitken, who is a legally qualified senior member.
Section 58(5) of the Complaint Resolution Act provides that a review application cannot be made unless the Tribunal gives leave, and a review application must be made no later than 30 days after an order has been made.
The review application has been made out of time and the applicants have applied for an extension of time to make the review application.[3]
[3] Under rule 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) the Tribunal may extend the time fixed under s 58(5)(b) of the Complaint Resolution Act.

Consideration of the application for an extension of time

The principles which apply to the exercise of the discretion to grant an extension of time to commence proceedings in the Tribunal are well established.[4]
[4] For example, see the decision of Barker J in O'Connor and Town of Victoria Park [2005] WASAT 161 at [38] to [41] and the decision of Hall J in Di Virgilio v McCleary [2012] WASC 437 at [38] to [41].
The discretion exists for the sole purpose of enabling the Tribunal to do justice between the parties and it can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.
There are four major factors to be considered in the exercise of the discretion. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may, in a particular case, be additional factors. The applicants have raised an additional factor, namely prejudice to them if an extension of time is not granted.
I will consider each of the four major factors in turn and then the additional factor raised by the applicants.

Length of delay

The length of the delay in the applicants making the review application is significant.
The dismissal order was made on 9 February 2024 and the time fixed by s 58(5)(b) of the Complaint Resolution Act for the applicants to make an application for review is 30 days after the order is made, which expired on 10 March 2024.
The review application was made on 13 September 2024, which was a delay of 187 days after the expiry of the time within which the review application should have been made.

Reasons for the delay

The reasons given by the applicants for the delay in making the review application are as follows.
First, the applicants say that they were told by a person employed by the Tribunal that it was not necessary for them to obtain legal advice and representation in the original Tribunal proceedings, and they relied on that advice and did not obtain any legal advice. Mr Barnard says in his affidavit that he is not able to remember the dates, times and identity of the persons in the Tribunal who told him that. I do not place any weight on that assertion because it is too vague, and I do not accept that an employee of the Tribunal gave advice to the applicants not to seek legal advice or representation. Even if Mr Barnard was told that it was not necessary to obtain legal advice and representation that would not constitute advice not to do so. Further, in my view, in any event, it is not a reason relevant to the delay by the applicants in making the review application after the dismissal order was made.
Secondly, the applicants say that the email sent to them by the Tribunal on 9 February 2024, which attached the dismissal order, did not include any statement to the effect that if a party was aggrieved by the decision, then they may lodge an application for review of the decision within 28 days. The applicants further say that they are not aware of any other document issued to them by the Tribunal regarding the dismissal order which contains a statement to that effect. The applicants say that, as self-represented litigants, they did not know on 9 February 2024 that if they were aggrieved by the dismissal order then they may within 28 days lodge with the Tribunal an application for review. They say that 'they are firmly of the view' that they should have been provided with a notice to that effect. The applicants say that had they been given a notice to that effect 'then they would, more than likely have taken steps to lodge an application for review within the timeframe required'. The applicants say that as a 'specialist Tribunal that more commonly encounters self-represented litigants, the Tribunal ought to assist selfrepresented litigants by providing the kind of notice referred to above'.
In my view this contention is misconceived, and I do not place any weight on it as a valid reason for the applicant's delay in making the review application. The Tribunal was not required to give any notification to the applicants regarding their right to make an application for review under s 58 of the Complaint Resolution Act.
Section 18(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that in exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act. Section 18(2) of the SAT Act provides that the enabling Act, which in this case is the Complaint Resolution Act, may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's review jurisdiction.
Section 58(6) of the Complaint Resolution Act provides that Pt 3, Div 3, Subdivision 3 of the SAT Act applies in relation to a review under s 58.
Significantly, s 58(6) does not provide that Pt 3, Div 3, Subdivision 2 of the SAT Act applies in relation to a review under s 58.
Section 20 of the SAT Act, which is in Subdivision 2, requires a decision-maker of a reviewable decision to which s 20 applies, to give written notice of the right to have the decision reviewed. That requirement does not apply to decisions which fall under s 58 of the Complaint Resolution Act, which are only reviewable if leave is granted by the Tribunal.
Furthermore, r 9 of the SAT Rules, which prescribes a 28 day time limit for applications for review, does not apply to decisions which fall under s 58 of the Complaint Resolution Act.[5] The time limit for applications for review under s 58 is 30 days, pursuant to s 58(5)(b).
[5] Rule 9 sets the 28 day limit by reference to s 20(1), s 20(5) and s 3(3)(a) of the SAT Act, none of which apply to decisions which fall under s 58 of the Complaint Resolution Act.
Thirdly, the applicants say, 'to compound the delay', after the dismissal order was made (on 9 February 2024) they lodged a claim on 23 February 2024 under their home and contents insurance policy regarding the damage to the pool. They say they received an email from the insurer on 26 June 2024 notifying them that their claim was not covered by the insurance policy and recommending that they withdraw their claim. It seems that they did not withdraw their claim and later, on 27 August 2024, the insurer sent them a letter confirming the decision to reject their claim. I will deal with this reason for the delay after I have dealt with the fourth reason given by the applicants for the delay.
Fourthly, the applicants say that on 3 September 2024 they met with a lawyer to obtain legal advice regarding the dismissal order and after receiving that advice, 'to further compound the delay', they searched the Tribunal website to find out how to lodge an application for review and the website was 'unhelpful in this regard' and they then made enquiries with 'staff officers' at the Tribunal which 'was not helpful'. The applicants say that on 9 September 2024 they lodged a document with the Tribunal seeking a review of the dismissal order. They say they received an email from the Tribunal on 11 September 2024 stating that if they wished to seek a review of the dismissal application, they must lodge an application in the eCourts portal for leave to review under s 58(2) of the Complaint Resolution Act and pay the application fee for that. They did that on 13 September 2024.
The applicants do not say which lawyer they met with to obtain advice and what advice they were given. It seems that the lawyer they met with did not give them advice on how to make an application for review of the dismissal order.
However, the delay of 10 days from when they met with a lawyer and when they made the review application is not significant. Nor is the period of 17 days from when they received the letter from their insurer until they lodged the review application particularly significant.
The significant reason for the delay in making the review application was the time which elapsed after the applicants made their insurance claim (on 23 February 2024), which was 14 days after the dismissal order was made, and when they decided to explore their right to seek a review of the dismissal order after they received notification from the insurer that their insurance claim had been rejected (on 27 August 2024). It seems to me that the applicants adopted a strategy after receiving the dismissal order of pursuing an insurance claim instead of exploring the possibility of seeking a review of the dismissal order and it was only after they were unsuccessful with their insurance claim that they decided to explore the possibility of a review.
I do not consider that to be a satisfactory reason for the significant delay in making the review application.

Whether there is an arguable case

The applicants say that they will rely on five grounds for the grant of leave to review the decision of the original Tribunal to make the dismissal order.
In Goedhart and Western Australian Planning Commission [2006] WASAT 49 at [21] the Tribunal stated that the threshold to establish an 'arguable case' is not particularly onerous and referred to the following statement by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 at 540:
The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile[.]
I accept that the five grounds set out in the applicant's submissions cannot be said to be hopeless, unarguable or bound to fail and, therefore, can be said to be arguable. However, in finding that the grounds for seeking leave to review the dismissal order are arguable, I cannot and do not express a view in this decision as to the merits of those grounds.

The extent of any prejudice to the respondent

The applicants say that there is no prejudice to the respondent if an extension of time is granted for them to make the review application.
The respondent says that there will be prejudice to it if an extension of time is granted, because the case took a significant toll from the time when the applicants lodged their complaint with the Building Commissioner in May 2021 until the dismissal order was made in February 2024 and that it is highly distressing to now face the prospect of a review of the decision of the original Tribunal to make the dismissal order.
The respondent's understandable desire for the dismissal order not to be reviewed out of time, and the distress which a review of the dismissal order (which would involve a hearing de novo) would cause them if leave is granted for review is not, relevantly, a prejudice to the respondent.[6]
[6] O'Connor and Town of Victoria Park at [49].
However, I accept that there will be prejudice to the respondent if an extension of time is granted because there will then be further delay before there is finality regarding the matter, firstly before the question of whether leave should be granted for a review of the dismissal order is decided and, secondly, if leave is granted, before the review is determined.

Prejudice to the applicants

The applicants contend that there will be a considerable prejudice to them if an extension of time is not granted to make the review application, due to the 'foregone recovery' of the cost to rectify their pool. They contend that there will be a substantial injustice to them if the dismissal order is 'left unreversed'.
In my view, this is not a relevant consideration in the exercise of the discretion to grant an extension of time to make the review application. This contention is premised by the applicants on the basis that they will be granted leave to review and then succeed on the review. It is not possible, nor appropriate in deciding whether to exercise the discretion to grant an extension of time, to form a view as to whether the applicants would succeed, in being granted leave and, if granted leave, succeed on the review.

Conclusion

I must balance each of the considerations and my findings above in the exercise of my discretion.
The factors which weigh against granting an extension of time are the significant delay by the applicants in making the review application, in circumstances where the reasons for the delay are not satisfactory and there will be prejudice to the respondent if an extension of time is granted.
The factor which weighs in favour of granting an extension of time is that there is an arguable case, based on the threshold referred to in [30] above, for the grant of leave to review (the merits of which I cannot and do not decide in making this decision).
In my view the factors against greatly outweigh the factor in favour of granting an extension of time.
I have, therefore, decided that it is in the interest of justice between the parties not to grant an extension of time for the applicants to make the review application.
I will make the following orders.

Orders

The Tribunal orders:
1.The application for an extension of time to make the application for review is refused.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
4 APRIL 2025