BUILDING SERVICES BOARD and BAILEY - [2021] WASAT 149

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011
CITATION:   BUILDING SERVICES BOARD and BAILEY [2021] WASAT 149
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD:   24 JUNE 2021
DELIVERED          :   30 NOVEMBER 2021
FILE NO/S:   CC 762 of 2020
BETWEEN:   BUILDING SERVICES BOARD
Applicant
AND
CRAIG DICKSON BAILEY
Respondent

Catchwords:

Disciplinary proceedings under the Building Services (Registration) Act 2011 (WA) Application by respondent for preliminary hearing Principles which apply How Tribunal should determine jurisdiction Relevance to jurisdiction of matters in the Building Commission and before the Board which preceded the making of allegations to the Tribunal Whether proceedings are an abuse of process because of delay Whether proceedings are an abuse of process because they seek to reagitate matters already resolved between the respondent and complainant in arbitration Application to join Building Commissioner pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 12D, s 33A, s 41
Building Act 2011 (WA)
Building Contracts Act 1991 (WA), s 17, s 20, Sch 1, cl 5
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s5(1), s 5(2), s 6, s 7, s 7(5), s 15, s 16, s 16(3)(a), s 19, s 19(1), s20, s21
Building Services (Registration) Act 2011 (WA), s 3, s 50, s 53, s 56, s 58, s 59, s60, s65
Commercial Arbitration Act 2012 (WA)
Legal Profession Act 2008 (WA), s 226
State Administrative Tribunal Act 2004 (WA), s 9, s 17, s 32, s 38, s 47, s47(2), s48, s 48(2)(b)

Result:

Application for preliminary hearing and joinder of Commissioner refused

Category: B

Representation:

Counsel:

Applicant	:	Mr J L Derby
Respondent	:	Dr J T Schoombee & Mr S Boni

Solicitors:

Applicant	:	Department of Mines, Industry Regulation and Safety
Respondent	:	Western Legal

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

Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208
Craig v The State of South Australia (1995) 184 CLR 163
Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101; 52 SR (WA) 328
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
Legal Profession Complaints Committee and Masten [2010] WASAT 47
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Respondent, Mr Craig Bailey, is a registered building services practitioner[1] and a registered building services contractor.[2] In 2013, Mr and Mrs Wrenn engaged the Respondent to build their new home on a fixed price contract. In May 2016, the Building Commissioner[3] (Commissioner) received from Mr Wrenn a letter of complaint regarding Mr Bailey's conduct. The complaint was referred to the Building Services Board[4] (Board or Applicant) under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASAT 149
Decision Date: 30 NOVEMBER 2021

CaseChat Overview and Summary

The Building Services Board initiated disciplinary proceedings against Bailey, the respondent, under the Building Services (Registration) Act 2011 (WA). The case was heard by the State Administrative Tribunal (SAT), where the primary issue was whether the Tribunal had jurisdiction to hear the proceedings given the nature of the allegations and the prior involvement of the Building Commission and the Board. Additionally, Bailey contested the proceedings as an abuse of process due to the delay in bringing the charges and the fact that some matters had already been resolved in arbitration.

The Tribunal needed to determine if its jurisdiction was correctly invoked and whether the proceedings constituted an abuse of process. The court examined the relevant statutes, particularly the Building Services (Registration) Act 2011 (WA) and the State Administrative Tribunal Act 2004 (WA), to understand the scope of its jurisdiction. It considered whether the SAT could review decisions made by the Building Commissioner and the Board, and if so, whether it was appropriate to revisit those matters in the context of the disciplinary proceedings. Furthermore, the court assessed the allegations of abuse of process, focusing on the timeliness of the proceedings and the preclusion of matters that had already been resolved.

The Tribunal found that it did have the necessary jurisdiction to hear the case as the enabling Acts provided for the review of decisions made by the Commissioner and the Board. It concluded that it was not required to conduct a de facto review of these decisions in order to determine its jurisdiction. The Tribunal rejected the argument that the proceedings were an abuse of process due to the delay or the prior resolution of certain matters in arbitration. The court held that the allegations were properly brought before it and that the principles of fairness did not preclude the hearing of the case.

The Tribunal ultimately allowed the application for a preliminary hearing to proceed, confirming its jurisdiction and dismissing the respondent's application to join the Building Commissioner as a party. The proceedings would continue in accordance with the Tribunal's original jurisdiction under the relevant Acts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Relevant also is Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 (Hartwig). In that case, the Court of Appeal was considering an appeal from the then President's decision in relation to preliminary questions which he had been asked to determine in a disciplinary proceeding brought to the Tribunal pursuant to s 12D of the Builders' Registration Act 1939 (WA) (Builders' Registration Act). Wheeler JA noted that the Tribunal's jurisdiction to entertain the application in the disciplinary proceeding arose from s 12D of the Builders' Registration Act, that decisions made by the Building Disputes Tribunal were reviewable by the Tribunal in the exercise of its review jurisdiction pursuant to s 41 of the Builders' Registration Act and s 17 of the SAT Act, and that decisions of the Registrar of the Building Disputes Tribunal, exercising the jurisdiction of the Building Disputes Tribunal conferred by s 33A of the Builders' Registration Act, were reviewable by the Building Disputes Tribunal in accordance with the provisions of s 33A of the Builders' Registration Act. In Hartwig at [21], her Honour then noted that one of the issues raised was whether it was open to a party in proceedings in the Tribunal's original jurisdiction to make a collateral attack on the validity of decisions of the Building Disputes Tribunal or a Registrar. Having noted that the parties' submissions did not really grapple with what her Honour saw as important issues in resolving the appeal, she said:[21]The fundamental difficulty with both sets of submissions, however, is that SAT is not a court, but an administrative tribunal … . SAT has only the jurisdiction which is conferred on it by the SAT Act, or any other Act which expressly confers jurisdiction upon it. The SAT Act divides the jurisdiction of SAT into ordinary and review jurisdiction. The BRA recognises and reinforces that distinction in s 14 and s 41. It appears to me that the better view, therefore, is that it is not open to SAT, in the course of a disciplinary proceeding in its original jurisdiction, to determine a question which might have been, but was not, the subject of review proceedings in its review jurisdiction. …[21] Hartwig at [26]. While the processes and decisions made by the Commissioner and the Board in this case are not ones amenable to review in the Tribunal, and Hartwig concerned a different legislative regime and may ultimately be distinguished on that basis, there is still relevance to her Honour's reasoning to this case. In my view, the relevant enabling Acts have identified decisions made by the Commissioner and the Board that are amenable to review in the Tribunal. The Tribunal should not be required, in its original jurisdiction, to conduct a de facto review of the processes and decisions of the Commissioner and the Board that Parliament has not empowered the Tribunal to review in its review jurisdiction in order to determine whether it has jurisdiction to deal with an application in its original jurisdiction where that jurisdiction is otherwise not in issue in the particular case.