Builders' Registration Board of Western Australia and HARTWIG
[2008] WASAT 154
•30 JUNE 2008
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and HARTWIG [2008] WASAT 154
| Link to Appeal : | [2009] WASCA 138 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 154 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:230/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 30/06/08 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issues determined in favour of the applicant | ||
| A | |||
| PDF Version |
| Parties: | BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA THOMAS GEORGE HARTWIG KBE CONTRACTING PTY LTD |
Catchwords: | Vocational Regulation Builders Preliminary issues Whether procedure followed by registrar in exercise of delegated jurisdiction required compliance with statutory provisions with regard to the holding and manner of conducting hearings Whether proper cause for disciplinary action lies against builder for failure to comply with an order to remedy defective building work subsequent to the revocation of that order and substitution with an order to pay compensation |
Legislation: | Builders' Registration Act 1939 (WA), s 5A, s 7, s 12A, s 12D, s 13, s 26, s 27, s 28, s 33, s 33A, s 34B, s 34C, s 35, s 36, s 37, s 38, s 40, s 41, s 44, s 45A Building Disputes Committee Regulations 1992 (WA), r 2 Building Legislation Amendment Act 2000 (WA), s 59 Home Building Contracts Act 1991 (WA), s 17(4)(a), s 18(1), Pt 2 Interpretation Act 1984 (WA), s 5, s 18, s 36, s 59(2) Legal Profession Act 2004 (Vic) |
Case References: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd 14 ALR 174 Byrne v Marles [2008] VSCA 78 Cornall v AB (A Solicitor) [1995] 1 VR 372 Dai v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1819 Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 In the marriage of Harris and Calladine (1991) 172 CLR 84 Kioa v West (1985) 159 CLR 550 Perron Investments Pty Ltd v Assignment Holdings Pty Ltd [2005] WASCA 2 Re Brindel; ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470 |
Orders | The questions to be determined as a preliminary issue are answered as follows:,1. Question.,Is a registrar or authorised person who, pursuant to s 33A(1) of the Builders' Registration Act 1939 (WA) is exercising "such of the jurisdiction of the Disputes Tribunal as is prescribed", required to comply with or give effect to the provisions of the BR Act set out in the schedule below in the course of making a decision or order in respect of a complaint under s 12A(1) or s 12A(1a) of the BR Act?,Schedule of Provisions of BR Act,Section 36(1),Section 36(4),Section 37(1),Answer:,(a) Section 36(1) of the Builders' Registration Act 1939 (WA) does not apply to the exercise of the registrar's delegated jurisdiction, but the registrar remains obliged to afford the parties a fair process by providing them with an opportunity to attend and to make comment on any subject of complaint at any inspection which is held, and by providing an opportunity to respond to the investigating officer's report including by providing any relevant evidence.,(b) The registrar is not bound to comply with s 36(4) of the Builders' Registration Act 1939 (WA) which obliges the Building Disputes Tribunal to keep a record of the proceedings before it. In its context, the Building Disputes Tribunal there referred to is the Building Disputes Tribunal as fully constituted in accordance with s 35.,(c) Section 37(1) of the Builders' Registration Act 1939 (WA) does not apply to the registrar's exercise of a delegated jurisdiction. The duty to act fairly does, however, oblige the registrar to provide the parties with an opportunity to attend and to make comment on any subject of complaint at any inspection, and to respond to the investigating officer's report, including by providing any relevant evidence, prior to determination of the matter.,2. Question.,Does a proper cause for disciplinary action lie against a registered builder pursuant to s 13(1)(db) of the Builders' Registration Act 1939 (WA) in circumstances where:,(a) the builder has without reasonable excuse failed to comply with an order of the Building Disputes Tribunal within the time stipulated in the order;,(b) the order was subsequently revoked pursuant to s 12A(4a)(c) of the BR Act; and,(c) disciplinary proceedings against the builder are commenced after the order was revoked?,Answer:,(a) Yes.,(b) Yes.,(c) Yes. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and HARTWIG [2008] WASAT 154 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 30 JUNE 2008 FILE NO/S : VR 230 of 2007 BETWEEN : BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
- Applicant
AND
THOMAS GEORGE HARTWIG
KBE CONTRACTING PTY LTD
Respondents
Catchwords:
Vocational Regulation - Builders - Preliminary issues Whether procedure followed by registrar in exercise of delegated jurisdiction required compliance with statutory provisions with regard to the holding and manner of conducting hearings Whether proper cause for disciplinary action lies against builder for failure to comply with an order to remedy defective building work subsequent to the revocation of that order and substitution with an order to pay compensation
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 5A, s 7, s 12A, s 12D, s 13, s 26, s 27, s 28, s 33, s 33A, s 34B, s 34C, s 35, s 36, s 37, s 38, s 40, s 41, s 44, s 45A
Building Disputes Committee Regulations 1992 (WA), r 2
Building Legislation Amendment Act 2000 (WA), s 59
Home Building Contracts Act 1991 (WA), s 17(4)(a), s 18(1), Pt 2
Interpretation Act 1984 (WA), s 5, s 18, s 36, s 59(2)
Legal Profession Act 2004 (Vic)
Result:
Preliminary issues determined in favour of the applicant
Category: A
Representation:
Counsel:
Applicant : Mr JJ Hockley
Respondents : Mr A Atkinson
Solicitors:
Applicant : Self-represented
Respondents : Solomon Brothers
Case(s) referred to in decision(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd 14 ALR 174
Byrne v Marles [2008] VSCA 78
Cornall v AB (A Solicitor) [1995] 1 VR 372
Dai v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1819
Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487
In the marriage of Harris and Calladine (1991) 172 CLR 84
(Page 3)
Kioa v West (1985) 159 CLR 550
Perron Investments Pty Ltd v Assignment Holdings Pty Ltd [2005] WASCA 2
Re Brindel; ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470
(Page 4)
Summary of Tribunal's decision
1 The applicant commenced disciplinary proceedings against the respondents under the Builders' Registration Act 1939 (WA) alleging that proper cause for disciplinary action existed as a result of failure of the first respondent to comply with orders made by the Building Disputes Tribunal to remedy building work.
2 The orders to remedy were made by the registrar acting under a delegated jurisdiction. The orders to remedy had been revoked and substituted by orders to pay compensation prior to the commencement of the proceedings in the State Administrative Tribunal. The respondents applied for preliminary issues to be determined.
3 The first preliminary issue raised was whether the registrar was obliged to comply with certain statutory provisions which prescribe how the Building Disputes Tribunal must give notice of and conduct hearings. The second preliminary issue raised was whether disciplinary action could lie against a builder in circumstances in which the builder had failed without reasonable excuse to comply with an order of the Building Disputes Tribunal, the order had been revoked and disciplinary proceedings were commenced subsequently.
4 The State Administrative Tribunal concluded that on a proper construction of the legislation the specific provisions in question applied only to the Building Disputes Tribunal, and not to the registrar in the performance of his or her delegated jurisdiction. Nevertheless, as the legislation did not expressly exclude the obligation to provide procedural fairness, the State Administrative Tribunal found that the registrar was bound to act fairly. That obligation required the registrar to give notice of any proposed inspection of building work, to afford the parties an opportunity to make comment at the inspection on any subject of complaint, and thereafter to comment on the investigating officer's report, and if need be, provide relevant evidence relating thereto, before making a decision. The registrar was not bound to conduct an oral hearing and afford an opportunity to examine or cross-examine witnesses.
5 In relation to the second preliminary issue, the Tribunal concluded that on a proper construction of the legislation, the applicant was entitled to commence disciplinary proceedings on the basis of the allegation made notwithstanding that the relevant orders to remedy had been revoked.
(Page 5)
6 Both preliminary issues were therefore determined in favour of the applicant.
Issues
7 The applicant (Board) has applied to the State Administrative Tribunal (SAT) under s 12D of the Builders' Registration Act 1939 (WA) (BR Act) alleging against the respondents that there is proper cause for disciplinary action as mentioned in s 13(1)(db) of the BR Act. The first-named respondent is alleged to be the sole director of the second respondent. The second respondent is alleged to be a builder registered under the BR Act. For convenience, both respondents are referred to hereafter as "the builder". All references below are to sections of the BR Act unless otherwise stated.
8 Section 13(1)(db) refers to the SAT's power to cancel or suspend the registration of any builder under the BR Act because there is proper cause for disciplinary action for failure to comply with an order of the Building Disputes Tribunal.
9 The orders not complied with were orders to remedy made by the registrar acting under a delegated jurisdiction. The orders to remedy had been revoked and substituted by orders to pay compensation prior to the commencement of the proceedings in the SAT.
10 By letter dated 13 February 2008, the builders' solicitors applied for two preliminary issues to be determined by the President of the SAT because they concerned matters affecting the practices and procedures of the Building Disputes Tribunal and Builders' Registration Board. The Board supported the application.
11 The preliminary issues posed for determination are as follows:
1) Is a registrar or authorised person who, pursuant to s 33A(1), is exercising "such of the jurisdiction of the Disputes Tribunal as is prescribed" required to comply with or give effect to the provisions of the BR Act set out in the schedule below in the course of making a decision or order in respect of a complaint under s 12A(1) or s 12A(1a) of the BR Act?
12 Schedule of Provisions of BR Act
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2) Does a proper cause for disciplinary action lie against a registered builder pursuant to s 13(1)(db) in circumstances where:
(a) the builder has without reasonable excuse failed to comply with an order of the Building Disputes Tribunal within the time stipulated in the order;
(b) the order was subsequently revoked pursuant to s 12A(4a)(c); and
(c) disciplinary proceedings against the builder are commenced after the order was revoked?
13 The BR Act, as described in its long title, is an "Act relating to the qualifications and registration of builders; to constitute a board in relation thereto; to establish a tribunal with jurisdiction in respect of certain building disputes, and for other purposes connected therewith."
14 The Board consists of a chairperson and six other members appointed by the Governor. The chairperson must be a legal practitioner nominated as chairperson by the Minister (s 5A).
15 Section 26 establishes the Building Disputes Tribunal and s 27 prescribes that the chairperson of the Board by virtue of holding that office, also holds office as the chairperson of the Building Disputes Tribunal; and further provides that the Minister may, in writing, appoint a person or persons each of whom is a legal practitioner, to hold office as deputy chairperson or deputy chairpersons of the Building Disputes Tribunal. Section 28 requires the Minister to establish two panels, the first being made up of persons representative of the interests of consumers and the second being made up of persons representative of the interests of builders.
16 When exercising its jurisdiction, the Building Disputes Tribunal shall be constituted by the chairperson or deputy chairperson and one person selected from each of the panels referred to in s 28 (s 35). In interlocutory and
(Page 7)
- procedural matters or in the resolution of simple disputes, the Building Disputes Tribunal may, where the chairperson or deputy chairperson (as the case requires) considers it appropriate, be constituted by the chairperson or deputy chairperson sitting alone (s 35(2a)).
17 Section 7 provides for the Board to appoint a registrar and such clerks and other employees as are necessary for the carrying out of the duties and functions of the Board and the Building Disputes Tribunal. The registrar of the Board is the registrar and executive officer of the Building Disputes Tribunal (s 33).
18 Section 33A provides as follows:
"(1) Such of the jurisdiction of the Disputes Tribunal as is prescribed may be exercised by -
(a) the registrar, with the written approval of the Disputes Tribunal or the chairperson; or
(b) an authorised person, with the written approval of the chairperson,
and for that purpose the registrar or authorised person has all the powers of the Disputes Tribunal necessary to do so.
(2) Where in the exercise of jurisdiction conferred by subsection (1), the registrar or an authorised person makes a decision or order, a party to the proceedings who is dissatisfied with the decision or order may, within 10 working days of the decision or order being made, request the Disputes Tribunal to review the decision or order and the Disputes Tribunal on receiving such a request, shall review the decision or order and confirm, vary or quash the decision or order.
(3) The Disputes Tribunal may, on its own motion, review any decision or order made by the registrar or an authorised person in the exercise of jurisdiction conferred by subsection (1), and may confirm, vary or quash the decision or order.
(4) Nothing in this section prejudices any right of appeal that a person may have, but where the right of appeal is exercisable in respect of a decision or order made by the registrar or an authorised
- person in the exercise of jurisdiction conferred by subsection (1), it shall not be exercised until the right under subsection (2) to request a review of the decision or order has been exhausted.
- (5) In this section -
'authorised person' means a person authorised under section 20A to enter upon land on which any building work is being carried out and inspect the building work."
"35. Jurisdiction and constitution of Disputes Tribunal
(1) Subject to this section, the jurisdiction to be exercised by the Disputes Tribunal is that conferred on it by section 12A and by the Home Building Contracts Act 1991.
(2) Subject to subsection (2a), when exercising its jurisdiction the Disputes Tribunal shall be constituted by -
(a) the chairperson or a deputy chairperson;
(b) one person selected by the person mentioned in paragraph (a) from the panel referred to in section 28(1)(a); and
(c) one person selected by the person mentioned in paragraph (a) from the panel referred to in section 28(1)(b).
(2a) When exercising its jurisdiction in interlocutory and procedural matters or in the resolution of simple disputes the Disputes Tribunal may, where the chairperson or deputy chairperson, as the case requires, considers it appropriate, be constituted by the chairperson or a deputy chairperson sitting alone, but nothing in this subsection prevents any such proceedings from being dealt with by the Disputes Tribunal constituted in accordance with subsection (2).
(Page 9)
- (3) The selection under subsection (2) of a person from a panel shall be evidenced in writing.
(4) The Disputes Tribunal constituted in accordance with this section may sit and exercise the jurisdiction of the Disputes Tribunal notwithstanding that the Disputes Tribunal differently constituted in accordance with this section is at the same time sitting and exercising the jurisdiction of the Disputes Tribunal.
36. Sittings of Disputes Tribunal
(1) At all its sittings the Disputes Tribunal shall act according to equity, good conscience, and the substantial merits of the case and without regard to technicalities and legal forms, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
(2) At all sittings of the Disputes Tribunal the person referred to in section 35(2)(a) shall preside and determine any question relating to the admissibility of evidence and any other question of law or procedure.
(3) Subject to subsection (2), the decision of a majority of members of the Disputes Tribunal shall be the decision of the Disputes Tribunal.
(4) The Disputes Tribunal shall cause a record to be kept of proceedings before it.
(5) To the extent that it is not prescribed by this Act or the regulations, the Disputes Tribunal shall determine its own procedure.
37. Hearings
(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.
(Page 10)
- (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.
(3) The Commissioner as defined in section 4(1) of the Consumer Affairs Act 1971 may appear personally in proceedings before the Disputes Tribunal or may be represented in those proceedings by counsel or an officer employed in the Public Service."
20 As prescribed by s 35(1), the jurisdiction to be exercised by the Building Disputes Tribunal is that conferred on it by s 12A of the BR Act and by the Home Building Contracts Act 1991 (WA) (HBC Act).
21 Section 12A of the BR Act provides, relevantly, as follows:
"12A. Order to remedy unsatisfactory building work
(1) Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to -
(a) remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b) pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable in which case any costs so ordered by the Disputes Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.
(1a) Where, on complaint being made to it by a person for whom building work has been carried out, the Disputes Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the Disputes
- Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to -
- (a) remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order;or
(b) pay to the person for whom the building work was carried out -
(i) such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the Disputes Tribunal considers is reasonable; or
(ii) such sum of money as the Disputes Tribunal considers reasonable to compensate him for the failure to carry out the building work in a proper and workmanlike manner,
and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction.
- (1aa) The Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of 6 years from the time when the building work was completed; and for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.
…
(Page 12)
- (4) A person shall not, without reasonable excuse, fail to comply with an order of the Disputes Tribunal under this section.
Penalty: $10 000.
(4a) If the Disputes Tribunal is satisfied that an order to remedy building work -
(a) made by the Disputes Tribunal under subsection (1)(a) or (1a)(a);
[(b) deleted]
has not been complied with, or has been complied with in part only, by the person on whom it was served, whether or not he has on that account been convicted of an offence under subsection (4), the Disputes Tribunal may -
(c) revoke the order in relation to that building work or the part in question;and
(d) make an order under subsection (1)(b) or (1a)(b), as the case may be, in relation thereto.
(4b) This section shall apply to, and in relation to, an order referred to in subsection (4a)(d) as if it were an order made by the Disputes Tribunal in the first instance.
(4c) The revocation of an order under subsection (4a)(c) shall not affect anything done under the order, or a punishment imposed under subsection (4), before the revocation.
(5) The making of an order by the Disputes Tribunal under this section in respect of any building work carried out by a builder does not, irrespective of whether an application is made for a review of the order or of the manner in which the application is disposed of, limit or affect in any way the power of the Board or the State Administrative Tribunal to deal with that or any other builder in connection with the performance, carrying out or completion of the building work which the order required to be remedied.
…"
(Page 13)
22 The jurisdiction conferred by the HBC Act empowers the Building Disputes Tribunal to grant various forms of relief, including the making of an order to restrain conduct in breach of contract, requiring work to be done in performance of the contract, or a similar order relating to breaches of, or to ensure compliance with, statutory obligations as set out in Pt 2 of the HBC Act. There are other specific powers to order payment of any amount payable under the contract and to grant remedies in respect of misleading or deceptive and unconscionable conduct, or the entry into contracts that contain any provision that is unconscionable, harsh or oppressive. It is not necessary to refer to any of these in detail because, as explained below, the jurisdiction delegated to the registrar is limited to the determination of applications by the making of orders falling within two specified categories. The first is an order which may be made under s 17(4)(a) of the HBC Act. That is an order either restraining any action in breach of the home building works contract, or of a provision of Pt 2 of the HBC Act, or requiring any work to be done in performance of the contract or to ensure compliance with a provision of Pt 2 or to remedy a breach of the contract or of a provision of Pt 2. Part 2 of the HBC Act prescribes matters relating to the formation and content of home building work contracts and prohibiting certain conduct relating thereto. The second category of order is one which may be made under s 18(1) of the HBC Act which permits an order to be made requiring either the owner or the builder to pay an amount of money to the Building Disputes Tribunal pending final determination, and which is to be paid out in accordance with the order of the Building Disputes Tribunal.
23 The jurisdiction of the Building Disputes Tribunal, prescribed to be exercised by the registrar, is described in the Building Disputes Committee Regulations 1992 (WA) (BDC Regulations). The Building Disputes Tribunal was previously called the Building Disputes Committee, and by virtue of s 59 of the Building Legislation Amendment Act 2000 (WA), a reference in any written law to the Building Disputes Committee constituted under the BR Act is to be read and construed as a reference to the Building Disputes Tribunal. The BDC Regulations constitute a written law: s 5 of the Interpretation Act 1984.
24 The BDC Regulations relevantly provide as follows:
"2. Jurisdiction that may be given to registrar
The jurisdiction set out in the Table to this regulation is prescribed, for the purposes of section 33(2) of the Act, as jurisdiction that the registrar may exercise with the written approval of the Disputes Committee or the chairperson of that Committee.
(Page 14)
Table
A. |
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B. |
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25 Section 33(2) of the BR Act was repealed by the Building Legislation Amendment Act 2000 (WA) which also inserted section 33A as it now stands.
26 By virtue of s 36 of the Interpretation Act 1984, all subsidiary legislation (in this case being the BDC Regulations) shall: "in so far as is consistent with the repealing law, subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done".
27 As provided by s 33A of the BR Act, the registrar has all the powers of the Building Disputes Tribunal necessary to exercise the delegated jurisdiction. There are a number of other sections which should be considered when considering the powers and duties of the registrar.
28 Section 34B of the BR Act enables the chairperson or deputy chairperson to appoint a mediator to achieve a negotiated settlement of matters in dispute. Section 34C requires a report of the terms of any settlement to be
(Page 15)
- provided by the mediator to the Building Disputes Tribunal, which is required to make an order giving effect to the settlement. If the mediator does not make a report within such time as the Building Disputes Tribunal considers reasonable, s 37(1) applies to the dispute providing for notice to be given of the time when and place where the Building Disputes Tribunal intends to conduct the proceedings, and requiring the parties to be afforded a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions.
29 Section 38 of the BR Act provides a number of procedural powers, including the power to issue a summons for attendance of witnesses or for the production of documents, requiring persons to swear to truly answer all questions (and for that purpose, a member of the Building Disputes Tribunal may administer an oath or affirmation) and providing for the receipt into evidence of any transcript of evidence and proceedings before a court or a person or body acting judicially and to adopt, if thought fit, any finding decision or judgment of a court of person acting judicially. Subsections 38(3) and 38(4) provide for the award of costs in certain circumstances, including where a party has made a claim that has no tenable basis in fact or law, and having regard to the nature and complexity of the proceeding. Section 40 of the BR Act governs the provision of written reasons for decision. Section 41 provides for review of proceedings by the SAT. Section 45A regulates the manner in which cases are to be presented before the Building Disputes Tribunal and sets out the circumstances in which a party is entitled to legal representation.
30 Finally, s 12D, read with s 13, provides for the Board to allege to the SAT that there is proper cause for disciplinary action, as mentioned in s 13, against a builder who is registered under the Act, and specifies the specific grounds upon which the SAT may impose disciplinary orders, including as mentioned, under s 13(1)(db), failure to comply with an order of the Building Disputes Tribunal. Other grounds include obtaining registration by fraud or misrepresentation, conviction of an offence under the HBC Act, conviction of any indictable offence or of an offence which, if committed in Western Australia, would be an indictable offence, being guilty of negligence or incompetence in connection with the performance of building work, or having been convicted of any offence against the BR Act or any regulation and the failure to manage and supervise building work in accordance with the relevant sections of the BR Act.
(Page 16)
Preliminary issue 1: whether sections 36(1), 36(4) and 37(1) apply to the exercise of jurisdiction by the registrar
31 The builder submits that the authority delegated to the registrar must be exercised in accordance with the power creating it: Dai v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1819 at [30]. Further, in accordance with s 59(2) of the Interpretation Act 1984, the delegation of a power shall be deemed to include the delegation of any duty incidental thereto or connected therewith, and the delegation of a duty shall be deemed to include the delegation of any power incidental thereto or connected therewith.
32 Accordingly, the builder submits that in the exercise of the registrar's delegated jurisdiction, it is necessary for the registrar to comply with s 36(1), s 36(4) and s 37(1) relating to the manner in which the Building Disputes Tribunal is to conduct its hearings; the obligation to cause a record to be kept of proceedings before it; and the obligation to give notice to a person who is a party to a proceeding before the Building Disputes Tribunal of the time when and place where it intends to conduct those proceedings, and to afford a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions.
33 The builder submits that the obligation to give notice of the hearing, to allow a party to call or give evidence or to examine or cross-examine witnesses also constitute fundamental rights of all persons to procedural fairness, and that when a statute confers power upon a public official affecting a person's rights, interests or legitimate expectations, the rules of procedural fairness regulate the exercise of that power, unless expressly excluded. All of this may be readily accepted: see Annetts v McCann (1990) 170 CLR 596 at 598.
34 As was stated by Mason J in Kioa v West (1985) 159 CLR 550 at 585 (Kioa):
"The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general,
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- it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned [this being a reference to the making of administrative decisions which affect rights, interests and legitimate expectations]."
35 Although Kioa was concerned with the doctrine of natural justice or the duty to act fairly in relation to administrative decision-making, the principles expressed are apposite to the decision-making process of a statutory tribunal: see Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 (Heatley) at 498.
36 It is common cause that the general practice of the registrar in exercising jurisdiction pursuant to s 33A does not involve the registrar giving notice of and holding a hearing involving the examination and cross-examination of witnesses as prescribed by s 37 of the BR Act, in order to determine the matter in issue.
37 Information has been placed before the SAT explaining the standard procedures followed by the registrar. That information relates to a complaint concerning building work which is faulty or unsatisfactory. The registrar in such a case gives notice that he will cause an inspection of the works to be carried out. Both parties are invited to attend the inspection and may make oral comment or submissions. Following the inspection, the investigating officer prepares a report to the registrar which includes recommendations concerning any defective building work. A copy of the report is sent to both parties inviting them to make comment, agree or disagree with the recommendation made, and provide any evidence on which they wish to rely. Once submissions, if any, have been received, or after the time for making submissions has expired, the registrar determines whether or not to make an order to remedy the works in question. In all but a few cases where there is a dispute about the investigating officer's recommendations, the items in dispute are referred to a full hearing before the Building Disputes Tribunal.
38 Neither party has provided any information as to the manner in which an application within the delegated jurisdiction under the HBC Act is determined. It is, however, understood that the registrar, in all matters before him, does not give notice of and conduct a hearing in the manner contemplated by s 37(1). In the absence of advice to the contrary, I will assume that an opportunity is provided to the parties to make submissions prior to the matter being
(Page 18)
- determined by the registrar, because that is consistent with the way in which the case has been presented. The orders of the Building Disputes Tribunal which have given rise to these proceedings all relate to faulty or unsatisfactory workmanship claims under s 12A of the BR Act.
39 There being no express provision excluding compliance with natural justice principles, it is necessary to determine what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case based on the statutory provisions and the rights, interests and legitimate expectations of the parties.
40 The Board points to the review process permitted under s 33A, providing firstly for a right of review by the Building Disputes Tribunal on the request of either party, or on its own motion, and second the provision that nothing in the section prejudices any right of appeal, as indicating that the statute contemplates that the registrar will act "in a more streamlined or efficient way than the Building Disputes Tribunal".
41 I do not consider that of s 59(2) of the Interpretation Act 1984 (WA) has the effect that every duty imposed on the Building Disputes Tribunal is deemed to be imposed on the registrar in exercising the delegated jurisdiction. Rather, it is a matter of statutory construction, to determine what duties are incidental to or connected with the delegated authority. Those duties may be found expressly in the BR Act or may arise upon a proper construction of the legislation. It is also possible that the express provisions of the statute setting out procedural fairness requirements may apply to the exercise of a particular area of jurisdiction, whereas other procedural requirements, possibly to a lesser extent, may be found to apply as a matter of construction to the exercise of a different jurisdiction, all under the same legislation. That was the result in Perron Investments Pty Ltd v Assignment Holdings Pty Ltd [2005] WASCA 2 in which it was accepted that the primary Judge (Wheeler J) was correct in her conclusion that the procedure applying to the hearing of commercial tenancy disputes by the Commercial Tenancy Tribunal did not apply to the determination by the registrar of the rental applying upon a rent review (Steytler J at [25]).
42 The Board submits that in practice, the registrar complies with s 36(1), without acknowledging that the registrar is bound by the express provisions. The thrust of the Board's submissions is that the registrar does not conduct what is referred to as a "full" sitting of the Building Disputes Tribunal contemplated by s 36.
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43 There are many powers vested in the Building Disputes Tribunal which I do not consider apply to the jurisdiction delegated to the registrar. Section 34C provides that a mediator, who under s 34B can be appointed only by the chairperson, or deputy chairperson, must report the terms of any settlement reached to the Building Disputes Tribunal. The Building Disputes Tribunal is then empowered to make an order giving effect to the settlement. This is not an order which the registrar is authorised to make, his power being expressly limited to the type of orders expressed in the BDC Regulations. Only s 35 and s 36 of the BR Act refer to sittings of the Building Disputes Tribunal. Section 35 also deals with how the Building Disputes Tribunal is to be constituted, namely, by a chairperson, and the two panel members. Section 36 specifies that at all sittings, any question as to the admissibility of evidence and any other question of law or procedure is to be determined by the chairperson or deputy chairperson referred to in s 35(2)(a). Further, it is provided that the decision of the majority of members of the Building Disputes Tribunal shall be the decision of the Building Disputes Tribunal. In my view, it is clear that these two sections are referring only to the Building Disputes Tribunal, as constituted under s 35, and not the registrar exercising jurisdiction under s 33A.
44 The cost provisions set out in s 38 require the Building Disputes Tribunal, in determining whether or not to award costs, to have regard to whether or not a claim has no tenable basis in fact or law, and to the nature and complexity of the proceeding. The delegation to the registrar does not authorise the making of a costs order.
45 It is evident that the legislature has thought it necessary, in providing for a specialist Building Disputes Tribunal, that a balance be achieved through the manner in which it is to be constituted from separate panels representative of the interests of consumers and builders respectively. It is also noted that under s 35(2a) it is only in interlocutory and procedural matters or in the resolution of simple disputes that the Building Disputes Tribunal may be constituted by a chairperson sitting alone. The chairperson is a qualified legal practitioner. By contrast, there are no qualifications prescribed for appointment as registrar. The complexity of issues for determination is not necessarily related to the value of the dispute, although, of course, those factors are often inter-related. Could the legislature have intended that the registrar, who has no power to award costs, should be required to conduct formal hearings, at which there may be legal representation in the circumstances permitted under s 45A? An affirmative answer seems unlikely when a legally trained chairperson may only sit alone to determine simple disputes.
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46 Notwithstanding the above factors pointing against the application of s 36(1), s 36(4) and s 37(1) to proceedings before the registrar, it would be more difficult to reach that conclusion if s 33A requires a review in the strict sense. Such a review would be restricted to the material that was before the registrar and so an interpretation which advances the purpose of the legislation may support the application of the relevant sections to proceedings before the registrar. On the other hand, it may be that it is not necessary for s 36(1), s 36(4) and s 37(1) to apply if, on review, it is possible to have regard to material that was not before the registrar.
47 The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with: see Heatley at 514. Nonetheless, a person whose interests may be affected by an order is entitled to know the basis of any claim and to be given an opportunity to answer the case against him. Fairness may therefore require that an opportunity be given for oral testimony, with rights to cross-examine witnesses for example, where issues of credibility are involved. On the other hand, there are circumstances in which an opportunity to respond in writing may be regarded as sufficient to accord procedural fairness: see Heatley. Accordingly, a simplified procedure, as followed by the registrar in this matter, may be sufficient to accord procedural fairness, where:
(1) there is an opportunity to respond in writing to the investigating officer's report, and
(2) there is an automatic right of review by way of rehearing, if one is dissatisfied with any order made by the registrar.
48 In In the marriage ofHarris and Calladine(1991) 172 CLR 84, the High Court was dealing with the review of a decision made by a judicial registrar, in which Dawson J stated at 125 - 126:
"For where the function of exercising a discretion is delegated by a court, as it may be delegated to a Registrar, the exercise of the delegated discretion cannot confine the exercise of the same discretion by the person in which it is primarily reposed … Upon a hearing by way of review of a decision of a Registrar the court is exercising its own discretion. There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance. In that event the appeal court must, before interfering, be persuaded that the judge was in error in the
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- exercise of the discretion, either by acting upon wrong principles, mistaking the facts, or by taking into account irrelevant considerations or failing to take into account relevant considerations: House v The King [(1936) 55 CLR 499 at 504 505]."
49 Also see Re Brindel; ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470.
50 The High Court gave consideration to the meaning of an appeal from the New South Wales Builders Licensing Board to the District Court which provided that the appeal be by way of rehearing in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd 14 ALR 174 (Sperway). The Court recognised that the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, and that primarily, it is a question of elucidating the legislative intent: Mason J at 178. Justice Jacobs at 184 stated that how far fresh evidence would be received, in the absence of statutory provision and subject to considerations of fairness, reasonableness and justice, depends upon the procedure of the court to which the appeal lies. Further, that the procedure might be found in its rules, or, if there are no rules governing the matter, or no established practice, then by direction of the court on the procedure to be followed.
51 In this instance, s 33A(2) simply provides that the Building Disputes Tribunal, upon a request being made to it, "shall review the decision or order and confirm, vary or quash the decision or order". On the other hand, there being no other provisions of the BR Act which apply, and as the review is by the Building Disputes Tribunal, s 37(1) reflects that an opportunity must be provided to call or give evidence and to examine or cross-examine witnesses, which is consistent only with the review being by way of a hearing de novo.
52 These factors point to a statutory intent that proceedings before the registrar be conducted by a simpler and more expeditious method than by requiring a matter to be heard by the Building Disputes Tribunal fully constituted under s 35 of the BR Act. There would seem to be little benefit in delegating a limited jurisdiction to the registrar, thereby removing the protection intended by the legislature to apply through the manner in which the Building Disputes Tribunal must be constituted, unless it could result in a number of cases being resolved easily, quickly, cheaply and in
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- a way that reduces the overall burden on the Building Disputes Tribunal. If full hearings were required before the registrar with an unrestricted right of review, it is difficult to envisage that there would be much advantage in the process. Indeed, this point exposes the weakness in the builder's argument in this case.
53 Not only would there be little advantage, but it would require the registrar to exercise control over hearings, sometimes involving legal representatives for the parties, in circumstances where the registrar is not required to have legal qualifications when, under s 35(2a), a legally qualified chairperson may sit alone only in dealing with interlocutory and procedural matters and the resolution of simple disputes, and when the registrar is precluded from making any orders for legal costs.
54 On the other hand, if there is a simplified process for the consideration of a matter, based on the investigator's reports, and the parties' submissions, but with an unrestricted right of review, the benefits are more apparent in the saving of resources. More importantly, such a procedure adequately safeguards the rights, interests and legitimate expectations of the parties, because they have an opportunity to make submissions and, if either is dissatisfied with the registrar's decision, the matter can be referred to a full hearing of the Building Disputes Tribunal, as would otherwise, in any event, occur.
55 If there is any doubt as to whether the conclusion that the review is by way of a rehearing de novo based on a construction of the BR Act, is correct, I am fortified by the information provided to the SAT of the procedure adopted by the Building Disputes Tribunal. In the absence of any statutory provision regulating that procedure, in accordance with the principles stated by Jacobs J in Sperway, the form of the review to be undertaken will depend on the established practice. That practice is that the review is referred to the Building Disputes Tribunal and a hearing is convened and conducted in a manner which accords with s 37 of the BR Act and is a hearing de novo.
56 Counsel for the builder relied on Byrne v Marles [2008] VSCA 78, (Byrne)a decision of the Victorian Court of Appeal, to contend that a right to be heard before the registrar arises because the decision of the registrar is not a preliminary decision which forms part of a broader decision-making process. Byrne's case considered whether a solicitor against whom a complaint had been made was entitled to be heard by the Legal Services Commissioner (Commissioner) under the Legal Profession Act 2004 (Vic) before the Commissioner determined that the complaint
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- was a disciplinary complaint which needed to be investigated. In doing so, the Court of Appeal distinguished a line of earlier cases which recognised that a preliminary decision which forms part of a broader decision-making process will not attract the right to be heard if an opportunity for adequate hearing is available in later stages of the process: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 and Cornall v AB (A Solicitor) [1995] 1 160 VR 372. In Byrne's case, the Court of Appeal held that the Commissioner had an independent obligation to determine whether a complaint was to be dismissed summarily or not proceeded with. The legislation was expressed in terms that the Commissioner must give notice of and details of the complaint. The Commissioner had power to dismiss the complaint if vexatious, misconceived, frivolous and lacking in substance or otherwise required no further investigation. In Byrne, the Commissioner did not have a delegated jurisdiction as in this case. Further, the current dispute is not a case in which the right of review was exercised and in which consideration has been given whether the decision-making process, viewed in its entirety, entails procedural fairness. Rather, consideration is being given to whether the registrar is obliged to comply with s 36(1), s 36(4) and s 37(1) of the BR Act. The focus is on what duties providing for fair process are to be found expressly in, or which arise on a proper construction of, the legislation. The content of that duty, if not found in the express language, will inevitably depend on the circumstances of the case.
57 For the above reasons, I conclude that on a proper construction, the BR Act permits the registrar in the exercise of the jurisdiction delegated under s 33A, to determine matters without a formal hearing as required by s 37(1). By giving the parties the opportunity to attend the inspection, and therefore to have input into the observations made by the investigator, and by thereafter permitting the parties to comment on the inspection report, prior to making any decision, the registrar may be expected to provide the parties with adequate procedural fairness. It also follows that, as there is no obligation to hold a full hearing and to allow examination and cross-examination of witnesses, there is no reason for a record to be kept of the proceeding before the registrar. I therefore do not consider that s 36(4) applies to such proceedings.
58 Although neither party referred to or made any point of the terms of the BDC Regulations which refer to and define the jurisdiction of the registrar by reference to the hearing of a complaint or an application, as the case may be, I do not consider that this in any way affects the conclusions expressed above. As discussed in Butterworths Australian Legal Dictionary (1997) a hearing may be by way of oral or written submission. It is a generic term
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- referring to any proceeding where argument is heard to render a decision.
59 The builder also submitted that the registrar, in adopting the investigator's recommendations, where there was no dispute about the recommendations, was failing to exercise the delegated jurisdiction and that the process followed, in effect, constituted a further delegation of those powers to the investigator. I do not accept those submissions. There is nothing to prevent the registrar from following the procedure followed; of the registrar requiring such an inspection to take place, the investigator, after allowing input from the parties, providing a report concerning the inspection, and the registrar, after taking into account the comments of the parties and any evidence which ought be provided, then making a decision. If neither party objects to the recommendations made and the registrar sees no objection or difficulty with them, the adoption of those recommendations constitutes an exercise of the jurisdiction vested in the registrar. In any event, the submissions raise issues which are not relevant to the determination of the preliminary issues.
Preliminary issue 2: Whether disciplinary action cannot lie after revocation of the order to remedy.
60 The builder refers to s 12A(4c) of the BR Act which provides that the revocation of an order to remedy building work (order to remedy) shall not affect anything done under the order, or a punishment imposed under subsection (4), before the revocation. It is submitted on behalf of the builder that this provision only has meaning and effect if revocation renders the order void ab initio on the basis that the subsection would otherwise serve no purpose. The Board submits that, to the contrary, it would be inconsistent and illogical to arrive at a conclusion that the order to remedy is void ab initio, given the express preservation of validity of such acts and punishment carried out prior to the revocation of the order.
61 Further, the Board refers to subsection 12A(5) which provides that the making of an order by the Building Disputes Tribunal under s 12A in respect of any building work carried out by a builder does not, irrespective of whether an application is made for a review of the order or of the manner in which the application is disposed of, limit or affect in any way the power of the Board or the SAT to deal with that or any other builder in connection with the performance, carrying out or completion of the building work which the order required to be remedied.
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62 The Board submits that the effect of subsection 12A(5) is to permit disciplinary proceedings to be commenced after an order to remedy has been revoked.
63 The opposing submissions as to whether or not the revocation of an order renders it void ab initio raise a sterile issue which does not need to be resolved. The effect of the revocation is expressly addressed by subsection 12A(4c) and subsection 12A(5). The effect of s 12A(4c) is selfevident and requires no discussion. The builder has not specifically addressed the effect of s 12A(5).
64 In my view, s 12A(5) is unambiguous and preserves the right of the Board to make an allegation under s 12D that cause exists for disciplinary action concerning any work the subject of an order to remedy, even if an application for review of the order is made, and regardless of the outcome of that application. An order made under s 12A, of course, also includes an order revoking the order to remedy and substituting an order to pay compensation (order to pay). The subsection is expressed in wide terms, catching conduct connected with the performance, carrying out or completion of building work required by the order to be remedied. I consider that it is wide enough to encompass the failure to carry out that work, that is, the failure to comply with the order to remedy. No valid complaint could arise from a proper performance of work. A valid complaint would arise because work required to be done was not carried out properly, or if some work necessary to achieve a proper remediation of defective building work was omitted, or in my view, as here, where all of the work was omitted to be done. It is conduct "connected with" the performance of the work required to be remedied.
65 The clear purpose of s 12A(5) is to preserve the availability of disciplinary proceedings for aberrant conduct by a builder regardless of whether an order to remedy ought be set aside. Of course, the outcome of an application for review of an order to remedy might ultimately have a bearing upon whether or not it should be found that cause exists for disciplinary action. An example might be where it is ultimately determined on review that the order to remedy should not have been made in the first place, and was not complied with because the builder wished to exercise his right of review. In those circumstances, one would not ordinarily expect the builder to bear any culpability.
66 Alternatively, if there is any ambiguity within s 12A(5) as to the effect of the phrase "in connection with the performance, carrying out or completion of the building work which the order required to be remedied", or indeed in
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- relation to any other part of the subsection, it must be construed in a manner which promotes the purpose or object of the BR Act: s 18 of the Interpretation Act 1984.
67 Apart from providing for the establishment of a specialist tribunal to deal with building disputes, the BR Act regulates the qualifications and registration of builders and provides a mechanism for regulating the conduct of builders. The full grounds on which cause may exist for disciplinary action are set out in s 13(1) which describes a range of aberrant conduct by builders.
68 When the Building Disputes Tribunal exercises its discretion under s 12A(4a)(c) and s 12A(4a)(d) to revoke an order to remedy building work and substitute an order for compensation, that does not in any way ameliorate the behaviour of the builder. The discretion is exercised to give the owner a remedy which can be enforced through a court of competent jurisdiction (s 44 of the BR Act). Even if payment is thereafter made by the builder, the builder nevertheless had failed to comply with the order to remedy building work, thereby denying the owner the remedy determined by the Building Disputes Tribunal to be the more appropriate remedy. Such conduct may well warrant disciplinary action depending on the circumstances.
69 If the builders' general contention is correct that the revocation of the order to remedy renders the order void ab initio and prevents disciplinary action being taken, it would mean that there would be cases in which it would be necessary to delay revocation of an order to remedy and the making of an order to pay until after disciplinary proceedings against the builder had been completed. It is most unlikely that the legislature intended such an effect, or that the builder should be released from responsibility for such aberrant conduct, simply because the owner, wishing to engage a third party builder to complete the works which the builder should have carried out, seeks to have the order to remedy revoked and an order for compensation made.
70 Accordingly, if there be any ambiguity in the proper construction of s 12A(5), I nonetheless conclude that, properly construed, it preserves the right of the Board to allege that cause exists for disciplinary action against the builder for noncompliance with an order to remedy and for the SAT to conduct the proceedings contemplated under s 13 of the BR Act.
Conclusion and order
71 For the above reasons, I order as follows.
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72 The questions to be determined as a preliminary issue are answered as follows:
1. Question.
Is a registrar or authorised person who, pursuant to s 33A(1) of the Builders' Registration Act 1939 (WA) is exercising "such of the jurisdiction of the Disputes Tribunal as is prescribed", required to comply with or give effect to the provisions of the BR Act set out in the schedule below in the course of making a decision or order in respect of a complaint under s 12A(1) or s 12A(1a) of the BR Act?
Schedule of Provisions of BR Act
|
|
|
Answer:
(a) Section 36(1) of the Builders' Registration Act 1939 (WA) does not apply to the exercise of the registrar's delegated jurisdiction, but the registrar remains obliged to afford the parties a fair process by providing them with an opportunity to attend and to make comment on any subject of complaint at any inspection which is held, and by providing an opportunity to respond to the investigating officer's report including by providing any relevant evidence.
(b) The registrar is not bound to comply with s 36(4) of the Builders' Registration Act 1939 (WA) which obliges the Building Disputes Tribunal to keep a record of the proceedings before it. In its context, the Building Disputes Tribunal there referred to is the Building Disputes Tribunal as fully constituted in accordance with s 35.
(c) Section 37(1) of the Builders' Registration Act 1939 (WA) does not apply to the registrar's exercise of a delegated jurisdiction. The duty to act fairly does, however, oblige the registrar to provide the parties with an opportunity to attend and to make comment on any subject of complaint at any inspection, and to respond to the investigating officer's report, including by providing any relevant evidence, prior to determination of the matter.
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- 2. Question.
Does a proper cause for disciplinary action lie against a registered builder pursuant to s 13(1)(db) of the Builders' Registration Act 1939 (WA) in circumstances where:
(a) the builder has without reasonable excuse failed to comply with an order of the Building Disputes Tribunal within the time stipulated in the order;
(b) the order was subsequently revoked pursuant to s 12A(4a)(c) of the BR Act; and
(c) disciplinary proceedings against the builder are commenced after the order was revoked?
Answer:
(a) Yes.
(b) Yes.
(c) Yes.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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