Bhowaniah and Essential First Choice Homes Pty Ltd (No 1) - [2017] WASAT 29

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: BHOWANIAH and ESSENTIAL FIRST CHOICE HOMES PTY LTD (No 1) [2017] WASAT 29

MEMBER: MS C WALLACE (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 15 FEBRUARY 2017

FILE NO/S: CC 1520 of 2016

BETWEEN: DANUSHA BHOWANIAH
MARK POIDEVIN
Applicants
AND
ESSENTIAL FIRST CHOICE HOMES PTY LTD
Respondent

Catchwords:

Recusal application Actual bias Reasonable apprehension of bias Expression of preliminary views

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36(1)(a), s 51
State Administrative Tribunal Act 2004 (WA), s 32(6)

Result:

Unsuccessful

Summary of Tribunal's decision:

The applicants made an application seeking the recusal of the presiding member on the basis of allegations of either direct bias and/or a reasonable apprehension of bias. The grounds of bias alleged were:
1)a familial relationship between the presiding member and an employee of the respondent;

2) gender;
3) race;
4)an opinion held by the member that the applicants were ignorant; and

5) the expression of a preliminary view.
In relation to grounds numbered 1 4, the Tribunal found that there was no factual evidence to support the serious allegations made and thus no actual bias or reasonable apprehension of bias could be established. In relation to ground 5, the Tribunal found that although it expressed a preliminary view it did so in order to identify and explain the issue to the applicants and the expression of that preliminary view did not lead to a conclusion that the member's mind was wedded to a particular outcome and/or unable to be impartial and unprejudiced when determining that question. The recusal application was therefore unsuccessful and dismissed.

Category: B

Representation:

Counsel:

Applicants: Self Represented
Respondent: Mr M Lang

Solicitors:

Applicants: N/A
Respondent: Jackson McDonald

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

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Vakauta v Kelly (1989) 167 CLR 568

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 September 2016 the Building Commissioner referred, pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (hereafter referred to as the BSCRA Act), a complaint made by the applicants, Ms Danusha Bhowaniah and Mr Mark Poidevin, against the respondent, Essential First Choice Homes Pty Ltd, in respect of the construction of a dwelling at 230 Dalmilling Drive in Ellenbrook, Western Australia.
The complaint was lodged initially with the Building Commissioner by Ms Bhowaniah on 9 May 2016. However, on 8 September 2016, following a request via email made by Ms Bhowaniah to staff of the Building Commission, Mr Poidevin was joined as an additional applicant. The referred complaint comprises a mixture of allegations pursuant to s 5(1) and s 5(2) of the BSCRA Act alleging that a regulated building service had not been carried out in a proper and proficient manner or which was faulty or unsatisfactory and various breaches by the respondent of the relevant home building works contract.
The proceeding was listed for an initial directions hearing before myself on 11 October 2016. At that directions hearing the applicants made an oral application seeking that I recuse myself from dealing with the matter. Given that the parties were informed that I did not intend to preside at the final substantive hearing, the recusal application was simply directed to preventing me from making procedural programming orders and deciding any preliminary issues.
Directions orders were made on 11 October 2016 allowing the parties to file written submissions and affidavit evidence on preliminary issues, including the recusal application. Following requests by the applicants for an extension of time within which to file their documentation, the programming orders were extended. Once all documentation was filed by the parties the Tribunal determined that the preliminary matters could be decided entirely on the documents and therefore the hearing initially listed on 21 December 2016 was vacated. These published reasons solely address the recusal application.

History of proceedings

CC 461 of 2016 Bhowaniah and Essential First Choice Homes Pty Ltd

Before coming to the detail of the application itself, it is important to set out the history of the various proceedings in the Tribunal involving the relevant parties.
The first referral received by the Tribunal (proceeding CC 461 of 2016) from the Building Commissioner was in relation to a complaint made by Ms Bhowaniah against the respondent on 31 December 2015 raising allegations pursuant to s 5(1) and s 5(2) of the BSCRA Act in respect of works carried out at 230 Dalmilling Drive in Ellenbrook. That referral of 21 complaints was made on 6 April 2016, pursuant to s 11(1)(d) of the BSCRA Act.
The matter was listed for an initial directions hearing before myself on 26 April 2016 where two orders were made, one where I gave the applicant leave to withdraw four of the complaint items and a second order referring the matter to mediation on site on 18 May 2016. Member OwenConway and Senior Sessional Member Fisher mediated the matter and made final orders with the consent of the parties.
At the directions hearing on 26 April 2016 Ms Bhowaniah appeared together with Mr Poidevin. Although the Tribunal was not informed on the transcript who Mr Poidevin was, I note that the Record of Proceedings which records the parties names recorded that Mr Poidevin was attending as Ms Bhowaniah's support person. Present on behalf of the respondent was Mr Michael Condelli General Manager, Mr Simon Spadaccini Construction Manager and Ms Milinda Enwood Company Accountant.
At the commencement of the directions hearing Ms Bhowaniah raised a concern with me as to the number of representatives attending on behalf of the respondent. Those concerns arose as follows:
BHOWANIAH, MS: … Is there a (indistinct) that two people go out because I'm on my own and it be much more nicer that there is just one person on the other side. Because they intimidate me having three person on their side. And they already put me down. …
…
WALLACE MS: … I'm happy for some people who aren't going to speak to maybe sit behind, if you prefer.
BHOWANIAH, MS: Yes. Because it's really intimidating for me …
…
WALLACE MS: … don't feel intimidated. I know it's a difficult process. It's uncomfortable. …
BHOWANIAH, MS: Thank you.
(T:24; 26.04.16)
In addition, concerns were raised at this initial directions hearing by Ms Bhowaniah about the fact that she is a woman. That discussion took place in the following excerpt of the transcript:
BHOWANIAH, MS: … I know I'm I'm a woman like they've said to me, I don't know anything, I'm an idiot. But it's I'm I've I don't need to be in the building industry to know what's right or wrong, to know what's fair or wrong. … I don't need to have someone that I'm paying to tell me
WALLACE MS: Well
BHOWANIAH, MS: I'm a woman, I'm an idiot, and I don't know what I'm talking I better shut my mouth and get what I get.
WALLACE MS: Well, I think people need to be very respectful to each other this point going forward. Because
…
WALLACE MS: otherwise it's going to be unpleasant for everybody. And we don't want those kinds of comments coming to the Tribunal because it's it's clearly inappropriate. …
…
BHOWANIAH, MS: … But they got no respect for people. They got no respect for a woman. Maybe because I'm this colour they got no respect
…
WALLACE MS: … everybody is going to be respected in this process going forward. Okay? There has been some disputes and antagonism, I've heard, on site. Okay, we need to park that now. Okay? We need to park that. I can't fix what has happened. But going forward we need to have respect both ways. … No one is being belittled for being a woman, or anything else, certainly not here, because that won't get anybody anywhere.
…
(T:3235; 26.04.16)
As the above illustrates, steps were taken to address concerns raised by Ms Bhowaniah at this initial contact with the Tribunal. I should note that I did not ask the respondent to respond to the allegations made by Ms Bhowaniah in the above transcript as I did not see it as necessary. I further note in fairness to the respondent that my review of the file referred to the Tribunal from the Building Commission, which included copious copies of emails exchanged between Ms Bhowaniah and employees of the respondent, did not evidence the kind of personal attacks on Ms Bhowaniah which she described at this directions hearing.
There was nothing unusual in the management of the first proceedings as evidenced by the standard orders made on 26 April 2016. And as mentioned, the matter was mediated successfully and final orders were made very soon following the initial directions hearing.

CC 1300 of 2016 Bhowaniah and Essential First Choice Homes Pty Ltd

The second set of proceedings initiated by Ms Bhowaniah against the respondent was an application pursuant to s 51(2) and s 51(3) of the BSCRA Act in which Ms Bhowaniah sought to revoke order 2(a) made at the mediation on 18 May 2016 and replace it with an order requiring the respondent to pay Ms Bhowaniah a sum of money. Order 2(a) made by the Tribunal on 18 May 2016 provided the following:
2.By consent in respect of rear entrance and hallway (Item 1):
(a)the respondent shall not under take any screeding and finishing to the laundry and rear access entry floor area[.]
Ms Bhowaniah's complaint arose in circumstances where the respondent's contractor undertook the screeding, not understanding that those works were to be omitted, and Ms Bhowaniah then directed the respondent to remove the screed. Ms Bhowaniah alleged that in removing the screed the respondent damaged the concrete slab.
Section 51(2) of the BSCRA Act only applies to a 'building remedy order' referred to in s 36(1)(a) requiring a person who carried out a 'regulated building service' to remedy the building service. Order 2(a) did not require the respondent to undertake remedial works in respect of a building service and thus did not apply. Order 2(a) effectively amends the home building works contract by removing the relevant works from that contract it does not require the performance of a building service.
Section 51(3) of the BSCRA Act empowers the Tribunal, if it is satisfied that a 'home building works contract remedy' order requiring work to be done has not been complied with or only partly complied with, to revoke that order and replace it with a monetary order. It was my view that this subsection also did not apply to order 2(a) because that order did not require the respondent to do any work. Because the Tribunal has an obligation to ensure that it has jurisdiction and that applications brought before it are not misconceived or lacking in substance, this issue was raised with the parties at the first directions hearing on 6 September 2016.
On this occasion I explained to the parties the jurisdictional issue and my concerns. In the circumstances I gave Ms Bhowaniah two options, one being that I could adjourn to consider whether the application ought to be dismissed as misconceived and/or lacking in substance or Ms Bhowaniah could seek to add the item (that the removal of the screed was a regulated building service not carried out in a proper and proficient manner or which was faulty or unsatisfactory) to a new complaint presently before the Building Commissioner. I offered to instruct the Tribunal's staff to contact the Building Commission in order to facilitate that outcome for Ms Bhowaniah. This is not the usual role of the Tribunal, but I offered this in order to assist Ms Bhowaniah.
It is clear from a review of the transcript of this particular directions hearing that I went to some effort to achieve a resolution such that Ms Bhowaniah did not find herself in a situation of having no recourse. This is despite my strongly held preliminary view that I had grounds on which to dismiss the application. Dismissing the application of course would have been to the benefit of the respondent. However that is not the course of action I chose to take as is illustrated by this excerpt of the transcript:
WALLACE MS: If you would like me, I can contact the Building Commission and ask them to accept an additional workmanship complaint and that my view is that it is not appropriate for a section 51 application. If you want me to do that, I will do that. …
…
WALLACE MS: … I'm trying to help you. I'm just simply trying to help you because I'm concerned this application will be dismissed and then the Building Commission won't accept it because they will say you brought it here and it has been dismissed. So I'm trying to assist you to keep your complaint alive. …
…
WALLACE MS: I'm authorised by the section under which you've brought this application, and I think it's limited the way I've described it to you, and I can only make orders that I have jurisdiction to make. …
…
WALLACE MS:   Do you want me to contact them [Building Commission]
BHOWANIAH, MS:   Yes.
WALLACE MS: ‑ ‑ ‑ to notify them of my view on this application and to ask them to accept your complaint?
BHOWANIAH, MS:   Yes, because
WALLACE MS:   Well, I will do that for you. I will do that today. Okay.
BHOWANIAH, MS:   And, yes, you can do it for us because I know before I contact and did talk to them, and they said to me no, they won't deal with it because
WALLACE MS: Okay. Well, I will clarify with them today my position on it and that I have asked you to bring that complaint with them, and I will ask them to accept it.
BHOWANIAH, MS: Okay. Yes.
WALLACE MS: Okay. Happy with that?
BHOWANIAH, MS: yes.
WALLACE MS: Okay. So I will withdraw this complaint at this stage[.]
(T:2428; 06.09.16)
I therefore granted the applicant leave to withdraw the application and it was withdrawn. As the parties were informed, I then instructed the Tribunal's staff to contact the Building Commission and notify them that the applicant wished to amend her current complaint before them by adding an additional item and that the Tribunal's view was that the complaint was a building service complaint rather than a complaint properly the subject of a s 51 application. I am aware that the Building Commission allowed Ms Bhowaniah to amend her complaint to add the additional item of complaint. I note in this regard that that item forms part of the current complaints before the Tribunal in proceedings CC 1520 of 2016.
Shortly after the final order was issued in matter CC 1300 of 2016 the Tribunal received a formal complaint from Ms Bhowaniah dated 13 September 2016. The substance of the complaint was Ms Bhowaniah's dissatisfaction with withdrawing her s 51 application. This is the first occasion on which Ms Bhowaniah alleges bias on my part in favour of the respondent. In numbered paragraph 5 of that letter Ms Bhowaniah states 'Charlotte Wallace seems to be in favor of the builder Essential First Choice Homes Pty'. In numbered paragraph 6 of that correspondence Ms Bhowaniah writes the following:
There are Wallace's that work within NHC company. Charlotte Wallace actions raises concerns about relationships between the two parties. In saying this, owner/applicant don't want Charlotte Wallace to sit in any future direction of hearings due to issues of conflict and relationship with the Builder Essential First Choice Homes Pty.
The letter also raises allegations of sexism and racism on my behalf towards Ms Bhowaniah. The Executive Officer responded to Ms Bhowaniah on 19 September 2016 noting that the complaint had been referred to the President of the Tribunal. That letter stated the following:
In regards to your allegations that the Tribunal Member Ms Wallace has demonstrated bias against you based on your race, gender and family relationships with the Respondent Company the review has determined that the allegations were baseless.
A further letter was received by the Tribunal from Ms Bhowaniah on 16 September 2016 raising very similar complaints to those raised in the 13 September 2016 correspondence. The Executive Officer responded to that correspondence on 6 October 2016 noting that the allegations had already been reviewed and determined to be without foundation.

CC 1520 of 2016 Poidevin and Bhowaniah and Essential First Choice Homes Pty Ltd

As mentioned in the introduction to these reasons, proceedings CC 1520 of 2016 are the subject of a referral made by the Building Commissioner pursuant to s 11(1)(d) of the BSCRA Act on 22 September 2016. Prior to the initial directions hearing Ms Bhowaniah emailed a number of letters to the Tribunal raising serious allegations in respect of me. One such letter dated 1 October 2016 was in the following terms:
Please find attach a Formal Complain Letter regarding how Charlotte Wallace did favour the builder AS SHE KNOWS THEM AND THAT HOW SHE USES THE LAW.
CLEARLY THE TRUTH IS OUT NOW on Charlotte Wallace when and think she can do whatever she wants and abuse of that power.
The attached letter provided the following:
The owner Danusha Bhowaniah (Owner/Applicant) had a meeting on site with the builder Essential First Choice Homes Pty Ltd (builder/respondent) to go through the defects of the property on the 22^nd of September at 2pm[.]
Mark Poidevin and Danusha Bhowaniah (Owner/Applicant) asked Michael; the manager of the Essential First Choice Homes Pty Ltd (builder/respondent) the question on 'if Sacha Wallace who works at Essential First Choice Homes Pty Ltd was related to Charlotte Wallace' and Michael's response was 'yes they are'.
We were shock and that why Charlotte Wallace was in favour of the Builder.
THERE IS THE TRUTH!!
I will bring this to the media of how the Tribunal screw me over!!
And I got another Hearing on 11st October and if Once again I get Charlotte Wallace, I will refuse this disgusting obscure insanity of the use of the law!!
At the directions hearing on 11 October 2016 I explained to the parties the nature and severity of the allegations being made underpinning the recusal application. In addition I raised issues surrounding the addition of Mr Poidevin as an applicant to the proceedings. The parties were informed that both of those preliminary issues would delay the programming and hearing of the substantive matter. The parties were also informed that I would not be presiding on any final hearing and therefore the recusal application, if successful, could only result in preventing me from programming the matter and dealing with the preliminary issue of Mr Poidevin's legal standing.
The following transcript reference illustrates my attempt to identify the issue of Mr Poidevin's legal standing:
WALLACE MS: … You've been named as an applicant in the proceedings. So obviously there has been prior proceedings. You've not been an applicant. I looked in the Building Commission file and I see that there was a request by email to join you as an applicant and effectively the Building Commission just did that …
POIDEVIN, MR: But in the Act it states that you can.
WALLACE MS: Let me just finish. Let me just finish.
BHOWANIAH, MS: Yes. And also (indistinct)
WALLACE MS: Let me finish. It will work better if I speak and when I'm finished you can speak. Okay. If we speak over each other, we won't be able to hear each other. Does that make sense? So what has happened is they've just added you without looking at the question as to whether you have legal standing. They've just simply responded to a request and done it without turning their mind to that question.
Now, my understanding is you're not a party to the contract to build the property and you're not an owner of the property. So to me there's absolutely no basis on which you could be an applicant and be a recipient of orders in this matter. The problem for you as well is if you are an applicant, the respondent is now legally represented. You're opening yourself up to potential applications for costs against you as applicant, even though you have no [proprietary] interest in the property.
BHOWANIAH, MS: That's fine.
POIDEVIN, MR: Not a problem.
WALLACE MS: So am I correct that you're not a joint owner of this property?
BHOWANIAH, MS: He is.
…
BHOWANIAH, MS: … And also I've asked to have you recused from the hearing.
WALLACE MS: I'm coming to that in a moment. I'm coming to that in a moment. Let me deal with this matter first.
POIDEVIN, MR: Yes, I am.
WALLACE MS: You are a party to the contract?
POIDEVIN, MR: Just because my name's not on it doesn't mean I'm not involved.
(T:2-3; 11.10.16)

Given the legal nature of the recuse application and the question of Mr Poidevin's standing as applicant, I enquired during this directions hearing whether the applicants were legally represented and I encouraged them to obtain legal advice. The following exchange took place:
WALLACE MS: … Can I ask are either of you legally represented? Because I understand the Building Commission was told that you were. …
BHOWANIAH, MS: Who said we're having a lawyer?
WALLACE MS: There's correspondence in the Building Commission file where you say there's an email on 11 August:
Hi, Alison. Please find additional information from my lawyer regarding
BHOWANIAH, MS: Yes. But that doesn't mean I'm having a lawyer legally representing me.
…
WALLACE MS: I'm asking whether you're legally represented in this matter, because some of the matters you're raising would benefit from legal advice. …
(T:6; 11.10.16)
BHOWANIAH, MS: I really wanted you to be recused from the directions of hearing.
WALLACE MS: Well, I will get to that. So I think it would be a good idea if you did obtain some legal advice and consider
POIDEVIN, MR: What, are you calling us stupid?
WALLACE MS: Let
BHOWANIAH, MS: Yes.
POIDEVIN, MR: We understand what a contract is.
WALLACE MS: Let me
BHOWANIAH, MS: So that's (indistinct)
WALLACE MS: When you interrupt me, I can't express what I want to say.
BHOWANIAH, MS: That means you're discriminating us and you (indistinct)
WALLACE MS: So remember this will work this way. Listen to me. This will work this way. I speak. You listen. When I'm finished, you speak, I listen. If we don't do it that way, neither of us can hear each other. Do you understand? Two people talking at the same time, two things happen: one, I can't hear you. You don't hear me. The transcript can't record both of us speaking at the same time. I would like a transcript that actually records what we're saying. That protects you. That protects me. So let's conduct this in the ordinary way. I speak. You speak. We listen to each other. Okay.
I wanted to identify if you were legally represented because some of the matters you're raising should have the benefit of legal advice because I'm concerned about the basis on which you raise them. I'm making that comment to assist you because they're legally complex matters. That's it. I saw that you told the Building Commission you had a lawyer, so I was asking whether you were legally represented or whether you intended to adjourn to obtain legal advice. … You've said no, so that has answered that question. Now, let me get to the next matter, which is a formal application for me to recuse myself.
Now, just bear in mind I'm not determining the substantive final matter. This is a directions hearing. Okay. A directions hearing the purpose of that is to program a matter to some other step in the proceedings. Okay. But I'm happy to hear your application, but what I want from you, because it's a serious application, is I want you to make it in writing and I want affidavits sworn in relation to the factual matters you're asserting, because they're serious in nature and I don't take it lightly …
(T:8-9; 11.10.16)
As the above transcript shows, I raised questions with the applicants about legal representation because of concerns I held about the nature of the allegations they were making in respect of the recusal application. I wanted to make the applicants aware that there may be serious consequences if I found that the allegations were without foundation. Section 32(6) of the State Administrative Tribunal Act 2004 (WA) (hereafter referred to as the SAT Act) requires the Tribunal to take steps to ensure that parties to the proceeding understand the nature of the assertions being made and the legal implications of those assertions.
It is also relevant by way of adding further context, to briefly comment on the general conduct and additional challenges faced in the current proceedings. Some of that context can be captured by noting the following:
•Following unpleasant phone calls received by Tribunal staff members from Ms Bhowaniah, the Tribunal sent a letter dated 19 October 2016 to Ms Bhowaniah informing her that all contact from her was required to be made in writing.
•Given the significant volume of email correspondence received by the Tribunal from Ms Bhowaniah she was informed in writing on 13 December 2016 that '[t]he Tribunal is not in a position to respond to your numerous emails on a daily basis'.
•Following an attendance at the Tribunal by Ms Bhowaniah and Mr Poidevin on 21 December 2016 where abusive language was used by the applicants towards Tribunal staff members and during which Mr Poidevin took photographs of staff, the Executive Officer wrote to the applicants on 23 December 2016 noting the inappropriate behaviour. The applicants were informed that if they attended the Tribunal on a date where they did not have a scheduled hearing they would be asked to leave immediately and security officers would escort them from the building if necessary. In addition the applicants were informed that using their mobile phone to take photos or video footage while in the Tribunal is a breach of the Tribunal's Practice Note which prohibits the taking of photographs or video footage within the Tribunal without leave of the Tribunal.
Also of relevance in the context of the recusal application in these proceedings is the unsatisfactory situation of the applicants publishing information online, copies of which were filed with the Tribunal by the respondent's legal representative on 10 November 2016. That published material refers in detail to allegations brought against the respondent in the proceedings and makes derogatory comments in respect of the respondent's workmanship. In addition those online publications make the following statements directly related to the recusal application the subject of these reasons:
Charlotte Wallace told, got recording as witness, her words: 'I'm a woman and got no clue in the Building Industry and I should let the builder build'.
…
The most funny part is the SAT member she favours the builder as they are men and hate women. This is not a false statement. Even Mark from BestWest told me that how Charlotte Wallace is; 'She hates WOMAN and favours the Builder' and guess what! I'm a woman and brown skin. Every person I've met they had the same problem with her, even the Building Inspector confirm it with me as he had been in Court several times with her and she had smashed women. The first direction of hearing I had with her, got a copy of the recording, she told me that I was a woman and got no clue in the building industry and why I don't let the builder build and lost my case.
Because of her history, I've wrote 3 letters to complain about all the 3 circumstances and the Tribunal throw my complain in the bin. When I ask her to recuse herself, she refused it. She never let me talk at all.
Please if you could help, please any kind of help I'm begging for. We should stop people like her to overtake her power and she got a personal grudge against me.
I got all the recording but to my luck the racist part was edited but got witness to testify about it.

Recusal application grounds and evidence

In respect of the recusal application the Tribunal had before it the following documents:
•filed on behalf of the applicants:
a)an affidavit of Danusha Bhowaniah sworn 17 November 2016;
b)an affidavit of Mark Poidevin sworn 17 November 2016; and
c)a document entitled 'Evidences for Matters: CC 461 of 2016; CC 1300 of 2016 and CC 1520 of 2016' which appears to include references to transcript although no certified transcript was filed by the applicants and the quotes appear to be derived from an unauthorised transcribing of the audio provided by the Tribunal to the applicants.
•filed on behalf of the respondents:
a)an affidavit of Michael Condelli sworn 15 December 2016; and
b)an affidavit of Sacha Wallace sworn 15 December 2016.
It has been difficult given how the affidavits have been drafted by the applicants to ascertain the specific grounds upon which the recusal application has been made, but in substance it appears that the allegations against me are as follows:
1)actual bias and/or a reasonable apprehension of bias on the basis that I am related to a Mr Sacha Wallace who is an employee of the respondent;
2)actual bias and/or a reasonable apprehension of bias on the basis of alleged discrimination against women;
3)actual bias and/or a reasonable apprehension of bias on the basis of racism against Ms Bhowaniah;
4)actual basis and/or a reasonable apprehension of bias on the basis that I hold a view that the applicants are ignorant; and
5)a reasonable apprehension of bias on the basis of preliminary views I expressed on the question as to Mr Poidevin's legal standing.

Relevant legal principles

Where a party to proceedings alleges that actual bias exists, the party bears an onus to establish that the mind of the decisionmaker is at the outset wedded to a particular conclusion to such an extent that their view is incapable of being altered or persuaded (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [72]). Allegations of actual bias must be 'distinctly made and clearly proved'; Jia Legeng at [69].
Given that the affidavit material and submissions filed by the applicants were presumably not prepared with legal assistance, it is unclear to the Tribunal whether the recusal application is based solely on allegations of actual bias or both actual bias and a reasonable apprehension of bias. I will therefore also address the test to be applied in the latter case. The test in determining whether a decisionmaker should be disqualified by reason of an apprehension of bias is whether a fairminded lay observer might reasonably apprehend that the decisionmaker may not bring an impartial and unprejudiced mind to the determination of the issues raised in the proceedings required to be determined by the decisionmaker (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) at [11]). Again, the onus of establishing the facts upon which the allegation of bias is made lies on the party making the allegation, in this proceeding being the applicants.
In determining whether a decisionmaker might have a reasonable apprehension of bias requires an objective assessment of the factual basis alleged to give rise to the apprehension and the necessary conclusion that the decisionmaker therefore might not bring an impartial and open mind when considering the issues to be determined (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427). In addition, as I informed the parties, it is the usual approach that recusal applications are decided by the relevant decisionmaker themselves (Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249 at [8] [10]).

Determination

Actual bias alleged relationship with Sacha Wallace

One of the main factual assertions underpinning the allegation of direct bias raised by the applications is an allegation that I am related to a person by the name of Sacha Wallace who is an employee of the respondent.
Although the affidavit evidence filed with the Tribunal sworn by Ms Bhowaniah and Mr Poidevin give evidence of a site meeting with Mr Condelli of the respondent which took place on 29 September 2016 where they assert that Mr Condelli confirmed that I was related to Mr Sacha Wallace, I note that the relevant allegation was first made with the Tribunal prior to any such meeting taking place. It appears that the allegation was initially made solely on the basis that Mr Wallace and I share what is a common surname.
The affidavit evidence establishes that Mr Poidevin questioned Mr Condelli on 29 September 2016 as to whether such a relationship existed. The evidence of the applicants lack details of the discussion in that the alleged verbatim words used by Mr Condelli are not set out. Paragraph 93 of the affidavit of Ms Bhowaniah is relevant:
The issue of Conflict of Interest of Charlotte Wallace with an employee working with the builder New Choice Homes/Essential First Choice Homes Pty Ltd hence to recuse Charlotte Wallace for that purpose as she is not fit for this matter and the rest of all future matters including myself, Danusha Bhowaniah and the builder New Choice Homes/Essential First Choice Homes Pty Ltd[.]
Michael the General Manager from New Choice Homes/Essential First Choice Homes Pty Ltd admit on the 29^th September 2016 that Sacha Wallace is related to Charlotte Wallace to Mark and myself Danusha Bhowaniah.
Paragraph 4 of the affidavit of Mr Poidevin provides:
We had a practical inspection at 230 Dalmilling Drive at Ellenbrook 6069 at the time of 11am. At the meeting there was Danusha Bhowaniah, Mark Poidevin, Michael Condelli and Simon Spadaccini[.] Once this meeting was underway we entering the laundry area of the house I seen the attempted repair to the Stitching of the laundry slab and I turned to Michael Condelli asked 'what is the relationship between the two Wallace's' he smiled and clearly stated that they were related. It was Michael's comments that has rised my concerns.
The affidavit of Mr Condelli provides as follows:
21.I recall that on or about 29 September 2016, I attended at a site inspection, along with Simon Spadaccini also of New Choice Homes and the Applicant and Mr Poidevin for the purpose of inspecting alleged defects raised by the Applicant.
22.I recall that during the course of the inspection we were standing in or near the laundry and:
22.1Mr Poidevin said to me words to the effect 'What is the relationship between the two Wallaces?'
22.2I laughed and said to Mr Poidevin words to the effect 'Are you serious?'
23.I understood Mr Poidevin to be referring to Sacha Wallace, an employee of New Choice Homes who holds the title Client Liaison and who has had some dealings with the Applicant in respect of the contract.
24.When the matter was raised by Mr Poidevin, I laughed off the suggestion that there was some connection between Sacha Wallace and Senior Member Wallace and made no further comment on the matter.
25.To the best of my knowledge, information and belief, there is no relationship between Senior Member Wallace and Sacha Wallace, employed by New Choice Homes.
The affidavit of Mr Sacha Wallace provides as follows:
10.To the best of my knowledge, information and belief:
10.1I am not related in any way to Senior Member Wallace;
10.2I have never met Senior Member Wallace;
10.3I have never spoken with Senior Member Wallace or had any dealings with her of any sort.
The affidavit evidence on which the applicants rely which I have referred to above provides no direct verbatim recollection of Mr Condelli stating that Mr Sacha Wallace and myself are related. Given the contents of paragraph 25 of Mr Condelli's affidavit, and the contents of paragraph 10 of Mr Wallace's affidavit, it is highly improbable that Mr Condelli would have made such a statement. Whilst I accept that the question was asked by Mr Poidevin and that Mr Condelli laughed in response, I do not accept that he confirmed such a relationship existed.
For completeness, and particularly given the published nature of allegations made by the applicants it is important to note that I am not related to Mr Sacha Wallace, have never met that individual nor had any contact with him of any nature whatsoever.
I find that the factual basis on which the allegation of bias has been alleged, to be false that is, there is no relationship between myself and Mr Sacha Wallace. My mind is not wedded to any particular outcome. I also find that the mere coincidence of sharing a surname with Mr Sacha Wallace does not, on an objective basis, lead to a reasonable apprehension of bias on my part against the applicants and in favour of the respondent.

Allegation of sexism

The second ground on which the allegation of bias is made, whether direct or a reasonable apprehension of bias, is on the basis of an assertion that I favour men (and therefore builders who are presumably men) and discriminate against women. The applicants did not file any evidence to support this allegation. It is therefore difficult to ascertain what factual circumstances the applicants are relying upon in respect of this ground. Certainly no orders have been made so far in the history of proceedings by myself which could be seen to favour the respondent.
I have reviewed all three transcripts of directions hearings involving the applicants and have not found any comments made by myself which undermine women generally or Ms Bhowaniah in particular on the basis of her gender. In paragraph 13 of Ms Bhowaniah's affidavit she sets out the following:
Charlotte Wallace even stated to me and Mark is the witness: 'what do I know as I'm a woman and I should let the builder build'. How can she discriminate and bullied me as a woman? What Charlotte Wallace is saying that woman are dumb, idiot and they don't know anything in the building industry but unfortunately I know how to read and write and understand English. Charlotte Wallace also is a woman, so how come is ok for her to do a direct a hearing based on Building when she also is a woman. This comment really make me sick hearing how she low woman down, do direct and Indirect discrimination on me as a woman and with my different colour of skin. … So why the Part where Charlotte Wallace discriminate and Bullied the owner was edited in the Recording as the Tribunal knows very well that what she had said is totally wrong, bias on woman and disgusting so to cover up Charlotte Wallace, they decide to edit it.
In the 'Evidences for Matters' document filed by the applicants in paragraph 13 the following is alleged:
The Part where Charlotte Wallace discriminate and Bullied the owner was edited in the Recording[.]
Also in paragraph 32 of Ms Bhowaniah's affidavit she states the following:
… Clearly I should be pressing charge against her bullying me, she is a disgusting human being to bully another human being. And she kept yelling at me and but the builder such a sweet voice is going on[.]
The applicants have alleged that I said the following words:
woman are dumb, idiot and they don't know anything in the building industry.
(Paragraph 13 of Ms Bhowaniah's affidavit)
However, the applicants accept in their filed evidence that the transcripts of the three directions hearings before me record no such statement having ever been made. In fact, having been provided the audio recording of each directions hearing, the applicants would be aware that such words were only ever spoken by Ms Bhowaniah herself (I refer to [10] above). My response is also recorded where I note any such comments as being clearly inappropriate (at [10] and T:3235; 26.04.16).
In order to address the lack of evidence, the applicants allege, whether of the Tribunal staff, myself or by the Tribunal's official transcribers, Auscript, deliberate editing of the transcript to remove my saying the alleged sexist comments. This is a most serious allegation which does not address the fact that the transcript recording evidences Ms Bhowaniah herself making the alleged statement.
I find that the factual basis on which the allegation of direct bias has been alleged, to be false that is, I have not made any sexist remarks. My mind is not wedded to any particular outcome as a result of this alleged bias. I also find that the mere assertion that I am biased against women, on an objective basis, would not lead to a reasonable apprehension of bias on my part against the applicants and in favour of the respondent.

Allegation of racism

The applicants also allege that I am racist against Ms Bhowaniah. Again, there appears to be no evidence filed by the applicants to support this serious allegation. None of the transcripts of the directions hearings contain any comments made by me of a racist nature. It may be that the applicants are again alleging that racist comments were removed from the audio transcript. To the extent that such an allegation has been made I note that it is offensive and unsubstantiated. I should also note again that the only reference to racism was made by Ms Bhowaniah herself as referred to at [10] of these reasons (T:3235; 26.04.16).
At paragraph 3 of Ms Bhowaniah's affidavit she states:
… Charlotte Wallace … is bringing her psychologist words out instead of being someone representing the law, based on facts, evidences instead of telling me how psychologically I'm feeling. How does she knows that I'm being intimidated? Based on what? Where is her evidence? In which law and Constitution book she got it? Here again she thinks I'm a woman with a different color skin so I must be intimidating[.]
The transcript reference relied upon by the applicant is set out at [9] of these reasons (T:24; 26.04.16). There is no comment made by me in that transcript reference in respect of Ms Bhowaniah's gender or race. Indeed the transcript shows that it was Ms Bhowaniah who informed the Tribunal that she felt intimidated and I tried to take steps to allay her concerns, including by asking those representatives of the respondent attending the directions hearing who did not intend speaking, to sit further back.
I find that the factual basis on which the allegation of direct bias has been alleged, to be false that is, I have not made any racist remarks. My mind is not wedded to any particular outcome as a result of this alleged bias. I also find that the mere assertion that I am racist, on an objective basis, would not lead to a reasonable apprehension of bias on my part against the applicants and in favour of the respondent.

Allegation of views that the applicants are ignorant

It appears that there is also an allegation of a reasonable apprehension of bias on my behalf because of an alleged view that the applicants are ignorant. Again, although there have been allegations made that I called the applicants 'stupid', the transcript evidences no such comments made by me in any of the relevant three directions hearings. At paragraph 57 of Ms Bhowaniah's affidavit she states the following:
Charlotte Wallace just made a comment that I'm an idiot so that why I can't make any common sense.
This paragraph ties into paragraph 57 of the document entitled 'Evidences for Matters' which states:
C Wallace: does that make sense?
The transcript reference that Ms Bhowaniah is making relates to the directions hearing which took place on 11 October 2016 and the full reference of what I was saying is set out at [26] above (T:23; 11.10.16).
I asked whether the applicants understood what I was saying in the context of an attempt to explain one of the preliminary issues in respect of Mr Poidevin's legal standing. I wanted to ensure that the applicants understood that it was important that each of us speak one at one time rather than over the top of each other. The allegation now being made by the applicants that I called them stupid or ignorant is not made out by that transcript reference. Nor is it reasonably implied in my asking whether they understood what I was saying.
In paragraph 71 of Ms Bhowaniah's affidavit she also alleges that when I recommended that she and Mr Poidevin may wish to seek legal advice that I was saying that they are 'dumb and stupid'. Again, no such comments were made by me as evidenced by the transcript. At [27] above I have set out the relevant transcript. My comments were made out of concern that the applicants were not legally represented and the potential serious consequences of the nature of the allegations being made by them. Contrary to being an implication that they are ignorant, the comments were made in order to assist the applicants.
Further at paragraph 92 of Ms Bhowaniah's affidavit she states the following:
Charlotte Wallace is talking to me as if I was a retard, this is offending, rude and disgusting from a Senior member of SAT[.]
Paragraph 92 of the 'Evidences for Matters' document sets out the relevant transcript that allegedly is me speaking to the applicants as though they are 'retarded'. The relevant transcript evidences my answering a question raised by Ms Bhowaniah as to why I am the Senior Member who presides over building disputes directions hearings. That transcript is set out below:
BHOWANIAH, MS: Your Honour, can I ask a question. How come it's always you every time we have a directions hearing with the builder? How come there's no other people?
WALLACE MS: There are lots of people. So you went to a
BHOWANIAH, MS: So how come it's always you?
WALLACE MS: Okay. I'm trying to answer your question, but it's very hard when you interrupt me the second I start to speak. You went to a mediation. I didn't mediate. So there was a legal member there, okay, Member OwenConway, who's a
BHOWANIAH, MS: Yes. I was talking about the direction of hearing today.
WALLACE MS: Okay. I'm still speaking. I've not finished.
BHOWANIAH, MS: All right.
WALLACE MS: Okay. I will explain to you why you get me. So the tribunal is set up in a particular way at the moment. That's the decision of the [P]resident, okay, who's a Supreme Court judge. He decided that he wanted to conduct matters in the tribunal in a particular way. So when new matters arrive, there are lists they go into. So you're in a building dispute list, aren't you? That's it's building matters that are coming in on a Tuesday. There's also the [P]resident's list that he conducts.
There's a deputy president list which the deputy president conducts. And then there's senior members of the tribunal and they conduct a list. So there's the strata titles dispute list, okay, that a member a senior member conducts. There's a planning and development list which a senior member conducts. And there's a building disputes list which I conduct, and the [P]resident of the tribunal has allocated that job to me. Okay. So like any other organisation, it's operated in a certain way.
So the [P]resident has made that determination that we would operate in this way and I deal with all building disputes on a preliminary basis. I don't hear them all. Okay. So I'm not hearing the final hearing in this matter. … And I will list an ordinary legal member to hear this matter. Okay. … So that's really a matter for the [P]resident as to how he wants to conduct the tribunal. Does that answer your question?
BHOWANIAH, MS: Yes.
(T:2022; 11.10.16)
The relevant transcript reference does not support the allegations made by the applicants that I have treated them as a 'retard', a term which I would like to note is offensive. Ms Bhowaniah asked me a question and I took the time to answer it so that she would understand the way in which the Tribunal operates. To interpret the transcript in any other way is completely unsupported.
I find that the factual basis on which the allegation of direct bias has been alleged, to be false that is, I have not made any of the alleged remarks. My mind is not wedded to any particular outcome as a result of this alleged bias. I also find that the mere assertion that I think the applicants are ignorant, on an objective basis, would not lead to a reasonable apprehension of bias on my part against the applicants and in favour of the respondent.

The expression of preliminary views

The applicants seem also to allege actual bias or a reasonable apprehension of bias on my behalf by expressing preliminary views. The preliminary views the subject of the allegation seem to be the concerns I expressed as to whether Mr Poidevin had any legal standing as applicant in the proceedings.
As mentioned previously, I have an obligation to explain the process to the applicants and to also identify any jurisdictional or preliminary legal issues. I made programming orders allowing the parties to file affidavit evidence and submissions on the question of Mr Poidevin's legal standing, which is yet to be determined.
It is entirely appropriate, particularly in tribunals where many parties are not legally represented, for decisionmakers to express preliminary views so that the parties can properly understand the issues and be able to address them and otherwise make decisions in the conduct of the matter; Vakauta v Kelly (1989) 167 CLR 568 at 571. In Johnson, Kirby J at [46] noted that opinions favouring silence by decisionmakers are now seen as carrying even greater risks on injustice. His Honour noted:
Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions.
In respect of this ground the applicants rely on the following excerpt of the transcript:
WALLACE MS: … So I can do one of two things. Okay. I can just dismiss the complaints as brought by you today because there's
POIDEVIN, MR: Like you said last time.
WALLACE MS: Let me finish. Because there's absolutely no basis at the moment that I can see that you would possibly have legal standing in these proceedings.
BHOWANIAH, MS: We will fight against this. We will fight against your ruling.
WALLACE MS: The second let me finish. The second option is that I adjourn this issue for a preliminary hearing where I determine whether you have legal standing, and you would need to make submissions on that. The builder would make submissions on that. If I find that there's no basis on which you could possibly have legal standing, I imagine that the builder's going to seek legal costs of that application, okay, if they're successful. So I just want to
POIDEVIN, MR: Well, it's under the Act of the State
WALLACE MS: Let me finish. The reason I'm giving you
POIDEVIN, MR: Of SATs website saying that I am.
WALLACE MS: The reason I'm giving you those two options is I think that you're not going to be successful and I'm trying to
BHOWANIAH, MS: It doesn't matter what you think.
WALLACE MS: identify for you the possible ramifications of going forward with that application.
POIDEVIN, MR: Yes. That's fine.
WALLACE MS: So the options for you are we can have that hearing. Okay. Or you can withdraw and we can proceed just with the owner making the application.
BHOWANIAH, MS: That's not going to happen.
POIDEVIN, MR: No. That's not going to happen.
WALLACE MS: All right. Well, we will program that and we will deal with that. Just as long as you're aware that there may be a costs application following that.
(T:46; 11.10.16)
The reason for the discussion set out in the above excerpt of the transcript was for a number of reasons. Firstly, because pursuant to s 32(6) of the SAT Act, I have an obligation to ensure that the parties to proceedings understand the nature of the assertions made and the legal implications of the assertions. It was therefore important that Mr Poidevin understood that if he continued his involvement in the proceeding as a named applicant that there may well be serious consequences including potential costs applications made against him.
In addition I wanted to offer Mr Poidevin options because if he withdrew as an applicant there would be no adverse impact on the proceedings themselves because Ms Bhowaniah, who clearly has legal standing as the owner who has contracted with the respondent, is able to continue to pursue the application.
It is also important to note that all of the information before the Tribunal at that time, extensive in nature and comprising over 1000 pages across three sets of proceedings, strongly supported the preliminary view that I expressed which included:
1)The contract which required the respondent to build the home at 230 Dalmilling Drive, Ellenbrook was entered into and executed by Ms Bhowaniah. Ms Bhowaniah is defined as the 'owner' in that contract. Mr Poidevin is not a party nor a signatory to that contract.
2)All complaints lodged with the Building Commissioner were lodged solely by Ms Bhowaniah and those forms, completed by her, record her as the sole home owner.
3)At the directions hearings in April and September 2016 the Record of Proceedings note Mr Poidevin's attendance as a 'support' person for Ms Bhowaniah.
4)In the documents filed with the Building Commissioner by Ms Bhowaniah and which were referred to this Tribunal, all correspondence between the parties is exchanged between Ms Bhowaniah and the respondent. All contractual documentation bear the name of Ms Bhowaniah including on invoices issued, variations to the contract and so forth. Mr Poidevin is neither an author nor recipient of any correspondence in respect of the contract or the building works. In addition, in one email sent by Ms Bhowaniah to Ms Enwood of the respondent dated 17 December 2015 Ms Bhowaniah states:
Your staff need to know how to respect me, they will get the same respect what they give me. Your staff need to know how to draw the line and be professional in your job and not lure on my partner, as he is a male and white skin like your staff. I won't tolerate this behaviour anymore infront of my face I'M THE OWNER AND NOT MARK, MAKE SURE YOU PASS THIS MESSAGE TO ALL YOUR STAFF. (Original emphasis)
5)Other than a mere assertion that Mr Poidevin was an 'owner' no other basis was put forward to support the position that he had legal standing.
The above illustrates that there was a firm basis for the preliminary view expressed and indeed an obligation on the Tribunal to raise the issue of Mr Poidevin's legal standing. However, nothing in the transcript referred to above would cause a fairminded lay observer reasonably to apprehend that I might not bring an impartial and unprejudiced mind to the determination of that preliminary issue. There is also no support for a finding that my mind was wedded at the outset to a particular conclusion and unable to be persuaded.

Other comments made by the applicants

I have attempted, given the convoluted nature of the applicants affidavit evidence, to distil the grounds upon which the recusal application has been made. I note for completeness that I have considered all of the filed material. However, it is not possible to include every comment made by the applicants in these reasons. I note that such omittance is on the basis that that material did not appear to raise any additional specific grounds of bias alleged against me which required consideration in these reasons.

Concluding remarks

I note in summary that ultimately there was no evidence filed by the applicants to support their objections. If an unsubstantiated objection was found to be sufficient to lead a decisionmaker to recuse themselves, the justice system would reach a stage where, for practical purposes, individual parties could influence the composition of the bench; Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trusteein Bankruptcy(2000) 205 CLR 337 at [19] [21]. That position should be carefully safeguarded against for obvious reasons.
The recusal application is unsuccessful and therefore dismissed.
I note that in their letter of 16 December 2016 the legal representatives for the respondent foreshadowed a costs application if the recusal application was dismissed. That application will therefore be dealt with in the below orders.

Orders

1.The recusal application is hereby dismissed.
2.The respondent shall, by 24 February 2017, file with the Tribunal and provide to the applicants, its application seeking costs.
3.The applicants shall, by 8 March 2017, file with the Tribunal and provide to the respondent, any written submissions opposing the costs application.
4.The costs application will be determined on the documents.
5.The matter is listed for a directions hearing at 9:30 am on 28 February 2017.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER

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Citations

Bhowaniah and Essential First Choice Homes Pty Ltd (No 1) [2017] WASAT 29

Most Recent Citation

BHOWANIAH and ESSENTIAL FIRST CHOICE HOMES PTY LTD [2017] WASAT 52

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