Braham v Evans

Case [2008] WASC 274


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BRAHAM -v- EVANS [2008] WASC 274

CORAM:   BEECH J

HEARD:   11 NOVEMBER 2008

DELIVERED          :   28 NOVEMBER 2008

FILE NO/S:   GDA 2 of 2007

BETWEEN:   MARK ANTHONY BRAHAM

Applicant

AND

WAYNE MURRAY EVANS
MICHELLE ANNE GRACE
Respondents

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MR T CAREY (MEMBER)

Citation  :BRAHAM and EVANS & ANOR [2007] WASAT 124

File No  :CC 1636 of 2006

Catchwords:

Building and construction - Appeal against decision of State Administrative Tribunal refusing leave to review decision of Building Disputes Tribunal - Whether complaint excluded by limitation provision - Whether building 'fit for occupation in a free and uninterrupted manner' -  Whether power of Building Disputes Tribunal excluded by failure to give preliminary notice - Whether State Administrative Tribunal made error of law - Whether requirements of procedural fairness met - Turns on own facts

Legislation:

Builders Registration Act 1939 (WA) s 12A, s 41
State Administrative Tribunal Act 2004 (WA), s 105(2)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr J R B Ley

Respondents                 :     Mr P J Marsh

Solicitors:

Applicant:     Elliott & Co

Respondents                 :     Waterside Legal

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428

Bruce v Cole (1998) 45 NSWLR 163

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Content Living Pty Ltd v McIntosh & Anor [2005] WADC 173

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Giustginiano Nominees Pty Ltd v Redan Pty Ltd [1999] WASC 95

Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 88

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115

Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222

National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273

Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Powley v Crimes Compensation Tribunal (1996) 11 VAR 146

Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

Tangent Nominees Pty Ltd v Edwards [2005] WASAT 119

Tangent Nominees Pty Ltd v Edwards [2006] WASC 45

BEECH J: 

Introduction

  1. Mr and Mrs Braham owned the property at 12 O'Byrne Crescent, Kalgoorlie (the Property).  On 23 January 1995 they were granted a building permit to construct a timber framed weatherboard residence, as depicted on specific plans, on the Property.  At that stage, the Property was a vacant block.

  2. Subsequently, a…

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Details
AGLC
Braham v Evans [2008] WASC 274
Case
[2008] WASC 274
Decision Date

CaseChat Overview and Summary

In the matter of Braham v Evans, the respondent appealed against the decision of the State Administrative Tribunal (SAT) that refused leave to review a decision of the Building Disputes Tribunal (BDT). The appeal was based on several grounds, including whether the complaint was excluded by the limitation provision, whether the building was fit for occupation in a free and uninterrupted manner, and whether the power of the BDT was excluded by failure to give preliminary notice. Additionally, the appeal questioned whether the SAT made an error of law and whether the requirements of procedural fairness were met.

The court examined whether the SAT had correctly identified that the starting point in determining the content of procedural fairness was the statutory context. The court noted that the statutory framework and the specific circumstances of each case would determine the requirements of procedural fairness. The court also found that an order calculated by reference to the costs of demolition and rebuilding was not a radical departure from what is contemplated by the terms of the Act, as remedying defects in building work may involve repair or, in some cases, replacement of certain parts. The court concluded that what is reasonable would depend on the circumstances.

The court found that the SAT had correctly applied the statutory framework and had not made an error of law. The court also found that the requirements of procedural fairness had been met, as the SAT had considered all relevant facts and circumstances in the context of the statutory framework. The appeal was therefore dismissed.

ORDERS:
The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal correctly identified that the starting point in determining the content of procedural fairness was the statutory context. See in this regard National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296, 326; Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428 [54] ‑ [55]. That requires attention to be given to s 12A, which empowers the BDT to make either of two orders: an order to remedy, or an order to pay such costs of remedying the building work as the BDT considered reasonable. I do not accept Mr Braham's submission that an order calculated by reference to the costs of demolition and rebuilding is a 'radical departure' from what is contemplated by the terms of the Act. Remedying defects in building work may involve repair or, in other cases, replacement of certain parts. If the problems are substantial enough, remedying the defects may require demolition and reconstruction. What is reasonable will depend upon the circumstances. In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115, Martin CJ outlined the following general principles [3] ‑ [4]:It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case ‑ see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503–504, (cited with approval in SZBEL).A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. Section 37 of the Builders Registration Act is in the following terms:(1)The Disputes Tribunal shall cause to be given to a person who is a party to proceedings before the Disputes Tribunal reasonable notice of the time when and place where it intends to conduct those proceedings, and shall afford any such person a reasonable opportunity to call or give evidence, to examine or cross examine witnesses, and to make submissions to the Disputes Tribunal.(2)If a person to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Disputes Tribunal may conduct proceedings in the absence of the person.