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 1 July 2020, the Board made allegations about a complaint regarding Mr Bailey's conduct to the Tribunal (the Application) in the exercise of its discretion under s 56(2)(e) of the Building Services (Registration) Act 2011 (WA) (BSR Act).
[1] Defined in s 3 of the Building Services (Registration) Act 2011 (WA).
[2] Defined in s 3 of the Building Services (Registration) Act 2011 (WA).
[3] Defined in s 3 of the Building Services (Registration) Act 2011 (WA).
[4] Established by s 65 of the BSR Act.
The allegations made to the Tribunal by the Board in the Application are that the Respondent:[5]
[5] See attachment B Grounds for Orders Sought attached to the application made on 1 July 2020.
1.undertook works which constituted variations of the contract otherwise than in accordance with the variation clause;
2.was negligent or incompetent in connection with the carrying out of a building service under the contract by failing to construct a rear balustrade as agreed in the contract and variations to the contract;
3.was negligent or incompetent in connection with the carrying out of a building service by issuing a practical completion certificate when practical completion had not been achieved;
4.was negligent or incompetent in connection with the carrying out of a building service by failing to complete the building works within the time stipulated in the contract;
5.was negligent or incompetent in connection with the carrying out of a building service by departing from approved building plans without obtaining the approval required by the relevant Town;
6.engaged in conduct that was misleading or deceptive in connection with the carrying out of a building service;
7.was negligent or incompetent in connection with the carrying out of a building service by submitting asbuilt plans to the Town that did not accurately reflect what was built; and
8.failed to properly manage and supervise a building service, namely the building work pursuant to the contract.
The Respondent submits that there are three elements to the determination of the allegations that have been referred to the Tribunal by the Board. They are said to be:
1.whether the decisionmaking by the Commissioner and/or the Board was valid;
2.whether the making of the allegations to the Tribunal constitute an abuse of process, or are vexatious; and
3.the merits of the claims of deficient building works.
The Respondent's position is that:
1.If the Wrenn's complaint was not properly made to the Commissioner under the BSCRA Act, for example because it was not made in the approved form, then the proceedings before the Tribunal would be invalid and without jurisdiction.
2.If the processes of the Commissioner under the BSCRA Act were somehow deficient, for example because the Commissioner did not conduct an investigation under s 19(1) of the BSCRA Act, the proceedings before the Tribunal would be invalid and the Tribunal would be without jurisdiction to deal with the matter.
3.If the Board did not comply with the requirements of the BSR Act, for example because it did not consider any report and recommendations in respect of the complaint given to it by the Building Commissioner as required by s 56(1)(b) of the BSR Act, then the making of the allegation to the Tribunal is invalid and the Tribunal has no jurisdiction to determine the matter.
4.If any of the things in 1 to 3 occurred, then the proceedings are:
(a)frivolous, vexatious, misconceived or lacking in substance;
(b)being used for an improper purpose; or
(c)otherwise an abuse of process
such that the Tribunal should exercise the powers set out in s 47(2) of the SAT Act to dismiss or strike them out.
5.Delay on the part of the Board in bringing the Application in the Tribunal makes the proceedings vexatious within the meaning of s 47 and/or s 48 of the SAT Act, justifying the remedy in s 47(2) and/or s 48(2)(b).
6.The proceedings are otherwise an abuse of process because:
(a)the substantial majority of the allegations made by the Applicant have been the subject of prior determination in an arbitral award;
(b)allegation 5 was dealt with in SAT CC 688 of 2017 and SAT CC 1025 of 2018; and
(c)allegations 6 and 7 allege breaches of the Building Act 2011 (WA) (Building Act) and only particular authorities are permitted to prosecute such breaches, the Board not being one of them.

The Respondent has applied to the Tribunal to have certain questions, going to those issues, determined as preliminary matters. Various iterations of the proposed preliminary questions have been filed. The final version of the proposed preliminary questions was lodged with the Tribunal on 24 June 2021. In that document entitled Respondent's Further Amended Minute of Proposed Orders for Matters to be Heard and Determined as Preliminary Issues dated 24 June 2021, the preliminary questions which the Respondent seeks to have answered are expressed as follows:
[W]hether:
1.1the Building Commissioner ("the Building Commissioner"), as referred to in section 85 of the Building Services (Complaint Resolution and Administration Act) Act 2011 (WA)("the Act"), be joined as a party to the proceedings pursuant to s 38 of the SAT Act;
1.2Mr John Wrenn by his letter dated 11 August 2015 ("the Wrenn letter") addressed to Mr John Dalton (at Respondent's Bundle for Preliminary Issues filed on 25 May 2021 ["Respondent's Bundle"] at p 1 to 7):
(a)lodged a disciplinary complaint with the Commissioner pursuant to s 15(1) of the Act against the Respondent; and
(b)whether the Wrenn letter was in, or on a form approved by the Building Commissioner pursuant to section 15(4) of the Act and if not what the effect in law of this was (The relevant approved form is part of the Respondent's Bundle at page 178-179).
1.3the Wrenn letter:
(a)was accepted by the Commissioner or her delegates as constituting a disciplinary complaint pursuant to s 16(1)(a) of the Act, and/or
(b)caused the Commissioner or her delegates in making any decision under section 16(1)(a) to make any inquiries for the purposes of section 16(2) and (3) of the Act, and if so, whether such inquiries were appropriate for the purpose of deciding whether or not to accept/reject the complaint.
1.4As provided in section 17 of the Act, the Commissioner or any delegate of hers formed or purported:
(a)to form the opinion that there was cause to investigate whether a disciplinary matter existed or had occurred, and if so:
(i)how and when and by whom exactly this opinion was formed or expressed; and
(ii)what was the extent of the relevant "disciplinary matter" to be investigated;
(b)to decide that the disciplinary matter was to be dealt with as if it were a disciplinary complaint accepted by the Commissioner, and if so, how and when and by whom exactly this decision was taken.
1.5If "yes' to any in paragraph 1.2 – 1.3 above, the Commissioner or her delegates could validly engage in such decision-making under section 17 of the Act.
1.6In this matter the Commissioner, having accepted that a disciplinary matter exists:
(a)caused an investigation under section 19(1) of the Act;
(b)forwarded the disciplinary complaint to the Building Services Board under section 19(2) of the Act; or
(c)did both under (a) and (b) above.
1.7In this matter the Commissioner:
(a)caused an investigation under section 19(1) of the Act to be carried out and if so, when and how;
(b)under section 21 of the Act considered any investigation report prepared under section 20 of the Act and if so, when and how; and
(c)forwarded the complaint to the applicant with such recommendations as the Commissioner thought fit under section 21(2) of the Act, and if so, when and how;
1.8In the circumstances of the answers to the above matters, the Commissioner made a valid referral of a complaint to the applicant concerning the respondent.
1.9The applicant in this matter complied with the requirements of s 56 of the Building Services (Registration) Act 2011 ("the Registration Act") and if so, how and when that occurred.
1.10In the circumstances of the answers to the above matters, the purported decision on 11 October 2016 by the applicant to make an allegation to SAT (as contained at p 21 of the Respondent's Bundle) was invalid.
1.11The answers to any of the above matters render the proceedings in SAT against the Respondent as:
(a)being without jurisdiction and as failing to comply with the Registration Act as the enabling Act in terms of s 48(1)(b) of the SAT Act, and justifying summary dismissal under s 48(2)(a); or
(b)falling within the matters set out in s 47(1) of the SAT Act and justifying the exercise of the powers set out in s 47(2) of the SAT Act.
1.12The delay on the part of the Applicant:
(a)in resolving, as reflected in documents dated of 11 August 2015 (Respondent's bundle p 14 and 21):
(i)to make an allegation to SAT seeking penalties against the Respondent in relation to matters going back to 2014 and 2015;
(ii)relying for so resolving, at p 6 of the document at p 14 of the Respondent's bundle, on matters which had allegedly arisen between 1992 and 2010.
(b)in only bringing the application in SAT on 1 July 2020 and serving it on the Respondent on 28 July 2020,
is vexatious within the meaning of s 47 and/or 48 of the SAT Act, justifying the remedy in s 47(2) and/or s 48(2)(b).
2.Furthermore that the following matters raised by the Respondent be heard and decided as preliminary issues at the said hearing, namely whether the proceeding is an abuse of process because:
2.1the substantial majority of the allegations made by the Applicant in this proceeding have been the subject of a prior determination in that:
(a)Allegations 1 to 4 were dealt with and determined in the partial arbitration award dated 9 January 2019 ("the arbitration award") at the Respondent's Bundle p 31 to 80;
2.2Allegation 5 was dealt with and formed part of the SAT matter 688 of 2017 and SAT matter 1025/2018 – the relevant materials to be added to the Respondent's Bundle.
2.3Allegations 6 and 7 allege breaches of the Building Act 2011 for which only permit authorities or the Director of Public Prosecutions have authority to prosecute such alleged breaches.
Further or alternatively, the submitting of plans cannot in any event amount to engaging in fraudulent conduct in connection with the carrying out or completion of a building service within the meaning of s 53(1)(i) of the Building Services (Registration) Act 2011 (WA) or amounting to being negligent or incompetent in connection with the carrying out of a building service within the meaning of s 53(1)(e) of the said Act.
The Board has opposed the making of orders requiring any of the questions posed by the Respondent to be determined as preliminary issues. The Board does so on the basis that:
a.The Tribunal's statutory objectives, which are set out in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), are not achieved by proceedings as proposed by the Respondent.
b.The questions seek to have the Tribunal determine matters which are not capable of review. That is, many of the preliminary questions really amount to merits review of decisions taken by the Commissioner to refer the matter to the Tribunal and those matters are not capable of review by the Tribunal.
c.The Respondent seeks to raise matters that have no arguable basis in fact or in law. In particular, the Applicant points to the questions identified at 1.6, 1.7, 1.8, 1.9, 1.12 and 2 of the Respondent's Minute.
The Respondent also seeks to have the Commissioner joined to the proceedings because, it is submitted, the Commissioner should have an opportunity to answer the claim that the referral of the matter to the Tribunal was invalid. This is because the invalidity is said to arise because of deficiencies in the processes in the Building Commission. The Respondent submits that an order joining the Commissioner should be made irrespective of whether the matters it seeks to raise will be determined as a preliminary issue.

Issues

The issues to resolve are:
1.whether there should be a preliminary hearing of any or all of the issues raised by the Respondent; and
2.whether the Commissioner should be joined as a respondent to the proceedings.
Determining the first issue will necessitate consideration of:
(i)the circumstances in which a hearing of a preliminary issue will be appropriate;
(ii)what is required for the Tribunal to determine it has jurisdiction in relation to a disciplinary matter of this kind; and
(iii)whether the bringing of the disciplinary proceedings could amount to an abuse of process.

Should there be a hearing of any of the proposed preliminary issues?

Preliminary hearings in the Tribunal - relevant principles

The principles that guide the Tribunal in the exercise of its discretion to hold a hearing of a preliminary issue provide the starting point for consideration of the Application.
The Tribunal's powers are found in the SAT Act and in the enabling Act; in this case the BSR Act.
The Tribunal's objectives are set out in s 9 of the SAT Act. It provides that the Tribunal's main objectives in dealing with matters within its jurisdiction are —
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The Tribunal's practices and procedures are also governed by the SAT Act. Section 32 of the SAT Act relevantly provides that the Tribunal is not bound by the rules of evidence or the practices and procedures of courts of record, except to the extent that it adopts those rules, practices or procedures, or the rules or regulations make them apply.
In general, the hearing of a preliminary issue will be ordered where resolving the preliminary issue in advance of the remainder of the proceedings will result in the speedy resolution of the dispute and hence a reduction in the cost of the proceedings to the parties. In general, the hearing of a preliminary issue will not be ordered unless the preliminary issue is relatively simple and there is no factual controversy involved. It will also be unlikely that the Tribunal will order the hearing of a preliminary issue if the resolution of the preliminary issue will not resolve the dispute or at least significantly reduce the issues to be resolved at a final hearing. That is because, if facts are in dispute or the outcome of the preliminary hearing will not resolve or reduce the litigation, the hearing of a preliminary issue will not achieve the Tribunal's objective of minimising costs or resolving disputes speedily and may, in fact, have the opposite result.[6] Finally, a preliminary hearing will not be ordered when there is no prospect of the issue sought to be resolved by a preliminary hearing actually succeeding. Holding a preliminary hearing into an issue that has no prospects of succeeding in fact or at law would defeat the attainment of the Tribunal's objectives.

Relevant provisions of the BSCRA Act and the BSR Act

[6] The principles, although derived from a different source, are not dissimilar to those that apply where a court considers an application for the hearing of a preliminary issue: see for example the principles enunciated by McKechnie J in Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 at [4].

Before a decision can be made in relation to the request for a hearing of proposed preliminary issues, it is necessary to understand the relevant legislative regime that applies in relation to disciplinary complaints. A person who believes a registered building service provider has engaged in conduct that constitutes a disciplinary matter may make a complaint to the Commissioner.[7] Complaints may also be made about workmanship.[8] Sometimes complaints deal with both workmanship and disciplinary matters.[9] The BSCRA Act recognises this and permits the Commissioner to deal with the complaint as either or both a building service complaint and a disciplinary complaint: see for example s 7(5) of the BSCRA Act.
[7] Section 15 BSCRA Act.
[8] Section 5 BSCRA Act.
[9] Section 5(4) and s 15(2) BSCRA Act.

The matters that constitute disciplinary matters are set out in s 53 of the BSR Act. They include, among other things, the commission of certain offences by the registered building service provider, contravening a condition of registration, being negligent or incompetent in connection with carrying out a building service and engaging in fraudulent conduct in connection with the carrying out or completion of a building service.
Section 15 of the BSCRA Act provides:
(1)Subject to the regulations, a person may make a complaint to the Building Commissioner about the alleged occurrence of a disciplinary matter[10] in relation to a registered building service provider or an approved ownerbuilder.
(2)A complaint that is both a complaint about a matter referred to in section 5(1) or (2) and a complaint about a matter referred to in subsection (1) may be dealt with by the Building Commissioner as if there were a complaint under this section and a complaint under section 5.[11]
(3)The regulations may make provision as to who can make a disciplinary complaint.
(4)A disciplinary complaint must be made in a manner and form approved by the Building Commissioner.
[10] The expression 'disciplinary matter' is defined in s 3 of the BSCRA Act to mean:
a. in relation to a registered building service provider – the meaning given in s 53 of the BSR Act; and
b. in relation to an approved owner-builder – a matter referred to in s 50 of the BSR Act.
[11] Pursuant to s 5(1) and s 5(2) of the BSCRA Act, a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory, and an owner or builder under a home building work contract may make a complaint about a matter referred to in s 17 or s 20 or Sch 1 cl 5 of the Building Contracts Act 1991 (WA).
Section 16 of the BSCRA Act then provides how the Building Commissioner can respond to a disciplinary complaint. Pursuant to s 16(1), the Commissioner must decide whether, and to what extent, to accept or to refuse to accept the complaint.[12]
[12] Section 16(2) of the BSCRA Act provides that the Commissioner may make such inquiries as are appropriate to enable him to make a decision under s 16 of the BSCRA Act.
Section 16(3) provides that the Commissioner may refuse to accept a disciplinary complaint under s 16(1) if —
(a)it is not made in accordance with the BSCRA Act; or
(b)it is made more than 6 years after the alleged occurrence of the disciplinary matter; or
(c)the Commissioner forms the opinion that the complaint is vexatious, misconceived, frivolous or without substance; or
(d)the matter complained about is the subject of another complaint under the BSCRA Act; or
(e)an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter complained about; or
(f)the matter complained about has been the subject of a previous complaint to the Commissioner that has been refused.
Section 16(4) of the BSCRA Act provides that subject to s 16(5), where an issue raised in a complaint has already been dealt with by the Commissioner, or a complaint about the issue has already been forwarded to the Board under the BSCRA Act, the Commissioner may refuse to accept the complaint to the extent to which it relates to that issue.
Section 16(5) of the BSCRA Act states that s 16(4) does not operate to prevent an issue being dealt with both in relation to a complaint about a disciplinary matter and as a building service complaint or a HBWC complaint.[13]
[13] The term 'HBWC complaint' is defined in s 3 of the BSCRA Act to be a complaint under s 5(2).
Section 19 of the BSCRA Act requires the Commissioner to take certain action after having accepted a disciplinary complaint. He must either cause an investigation of the complaint to be carried out by an authorised person or forward the complaint to the Board. He is also permitted to take both of those actions.[14]
[14] Section 19(1) of the BSCRA Act.
Section 20 deals with the preparation of a report. Section 21 of the BSCRA Act provides, among other things, that where a report has been prepared under s 20, the Commissioner must consider the report, and may dismiss the complaint or refer the complaint and the report to the Board for it to deal with under the BSR Act.
Under s 56(1) of the BSR Act, the Board must consider a complaint in relation to a registered building service provider forwarded to it by the Commissioner under the BSCRA Act and any report and recommendations in respect of the complaint given to the Board by the Commissioner. Section 56(2) of the BSR Act sets out what the Board may do upon consideration of the complaint. One of the options, provided for by s 56(2)(e) of the BSR Act, is to make an allegation about the complaint to the Tribunal. Section 56(3) of the BSR Act then requires the Board to provide notice of the decision and short particulars of the reason for it to the complainant and the Respondent as soon as is practicable, but in any case no later than 14 days after making the decision.[15]
[15] For the sake of completeness it is noted that s 57 of the BSR Act sets out actions which the Board may itself take in relation to a complaint in circumstances where it is satisfied that referral to the Tribunal is not warranted by the nature of the complaint and the registered building service provider consents. It is not necessary in the circumstances of this case to deal with that section in any detail.
Section 58 of the BSR Act deals with the Tribunal's jurisdiction. It states:
(1)If, in a proceeding commenced by an allegation under this Act, the State Administrative Tribunal is satisfied that a disciplinary matter exists in respect of a registered building service provider, the Tribunal may do one or more of the following —
(a)decline to make an order under this section;
(b)order the Board to amend the registration of the provider;
(c)caution or reprimand the provider;
(d)impose a condition on the registration of the provider, or amend an existing condition;
(e)where the provider is a building service practitioner, order that the provider undertake and complete a specified further course of training or education;
(f)where the provider is a building service contractor, order that a nominated supervisor of the provider undertake and complete a specified further course of training or education;
(g)order that the registration of the provider be suspended for a period, not exceeding 2 years, specified in the order;
(h)order that the provider's registration be cancelled and name be removed from the register;
(i)if the Tribunal makes its finding on a ground referred to in section 53(1)(c) to (m), order that the provider pay to the Building Commissioner a penalty of a fine not exceeding $25 000.
Sections 59 and 60 of the BSR Act set out what the Tribunal may do in the event that the registration of a building service contractor is cancelled or suspended.

Respondent's argument regarding issue of jurisdiction

As can be seen from the questions that the Respondent seeks to have answered as preliminary questions, the Respondent is, by most of the proposed questions, seeking to have the Tribunal inquire into and determine whether the proper procedures and processes set out in the BSR Act and the BSCRA Act were followed before the allegations were made to the Tribunal under s 56(2)(e) of the BSR Act. The Respondent seems to accept that if these are not matters that go to the Tribunal's jurisdiction, then the Tribunal will have jurisdiction in relation to the allegations because there is no question that they have been made by the Board to the Tribunal in the proper form[16] and because s 56 of the BSR Act empowers the Tribunal to deal with allegations of this kind.
[16] ts 21, 24 June 2021.
The Respondent accepts that, subject to its argument about invalidity arising from decisions made prior to the making of the allegation, the Board's allegation itself has been made in the proper form[17] and the Tribunal has jurisdiction pursuant to s 56 of the BSR Act to deal with these kinds of matters. It submits, however, that the Tribunal does not have jurisdiction in respect of these particular allegations because decisions made by the Board and the Commissioner, which preceded the making of the Application to the Tribunal, were invalid. The Respondent submits that its argument constitutes a collateral attack on the earlier decisions or processes.
[17] ts 21, 24 June 2021.
The Respondent acknowledges that the Tribunal has no jurisdiction to conduct judicial review, as that term is commonly understood, of the decisions it seeks to impugn. The Respondent also accepts that the Tribunal has not been given jurisdiction, either under the SAT Act, the BSCRA Act or the BSR Act, to review the decisions which it says were not properly made by the Commissioner and the Board.
The Respondent submits that Edwards and Department of Planning and Infrastructure [2007] WASAT 101; 52 SR (WA) 328 (Edwards) is authority for the proposition that the Tribunal may nevertheless entertain a collateral challenge to material elements of the process of the disciplinary complaint because, as a court of law, it has implied and incidental jurisdiction to do so.[18] In support of its submission that the Tribunal has the status of a court of law, the Respondent relies upon what was said in Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 (Re Carey) by Martin CJ at [100] and following.[19]
[18] Respondent's Submissions in support of Interim Application filed 7 May 2021, paras 713.
[19] Respondent's Submissions in support of Interim Application filed 7 May 2021, para 11.
The Respondent submits that, in making a finding about the invalidity of actions and decisions by the Commission and the Board that preceded the making of the allegations to the Tribunal, the Tribunal would not be acting in excess of its jurisdiction because it would merely be making that finding for the purpose of determining the efficacy of the disciplinary proceedings, and any negative finding does not have any effect beyond the proceedings and does not "quash" or set aside the impugned decisions.[20]

Applicant's submissions regarding questions purportedly going to jurisdiction

[20] Respondent's Submissions in support of Interim Application filed 7 May 2021, paras 7-13.

The Applicant submits that Edwards does not support the Respondent's application. It submits that, at most, Edwards supports the position that where a particular decision, which is under review by the Tribunal in the exercise of its review jurisdiction, essentially depends on the existence of some other fact, the Tribunal may determine that fact.
The Applicant also submits that where the Tribunal is empowered to deal with a particular matter and has before it an application made in the proper form, then the Tribunal has jurisdiction and may not look behind the application.

Reasoning and conclusion in relation to the issue of jurisdiction

I have concluded that the proposed questions, which go to the validity of the decisions that preceded the making of the allegation to the Tribunal, will not be heard as preliminary questions. Further, they should not be entertained at all by the Tribunal in resolving the allegations in respect of which the Tribunal has jurisdiction. I have come to those conclusions for the following reasons.
The Tribunal is always required to consider whether it has jurisdiction in relation to a matter that comes before it. As a creature of statute, the Tribunal only has the jurisdiction conferred upon it by the relevant enabling Acts, in this case the BSCRA Act, the BSR Act and the SAT Act.
As I have already noted, in support of its position that collateral attacks of this kind are permitted to be made and resolved by the Tribunal, the Respondent referred to a decision of the then President of the Tribunal, his Honour Justice Barker in Edwards. That case concerned a review by the Tribunal, in the exercise of its review jurisdiction, of the decision to refuse to grant a jetty licence to the applicant. The decision to refuse the licence had been made, at least in part, because the decisionmaker had formed the view that there were no jetty licences available to be granted because the maximum number of licences available for grant had already been granted. The President concluded that the grant of each of those licences was invalid. While his Honour acknowledged he had no power to make a declaration to that effect in the review, he found that the decision to refuse the applicant's licence was not the correct or preferable decision because the others having been invalidly granted meant there was scope to grant a licence to the applicant.
In Edwards, central to the determination that the decision to refuse the licence sought by the applicant was not the correct and preferable decision was the finding that the other jetty licences had not been validly granted. Assuming that decision to be correct (a matter about which I have some reservation), it can be distinguished from the present case. In Edwards, which concerned the Tribunal's review jurisdiction, it was accepted that the Tribunal had jurisdiction to review the decision to refuse the jetty licence. The collateral attack was being made in a case where there was no issue as to the Tribunal's own jurisdiction to determine the matter before it.
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.
The Respondent submits that the Tribunal has the status of a court of law and, therefore, has implied and incidental jurisdiction to entertain a collateral challenge to material elements of the disciplinary complaint. The Respondent relies upon Re Carey in making that submission. In that case, Martin CJ found that it was not necessary to embark on determining the character of the Tribunal in order to resolve the proceedings. However, he went on to say: [22]
[I]f Craig's case[23] does require the process of characterisation to be undertaken, in my opinion, there are four factors of general application to the Tribunal and one factor peculiar to its jurisdiction in this case which compel the conclusion that, in the exercise of jurisdiction in this particular case, the Tribunal is to be considered "anomalous" and performing a function analogous to that performed by an inferior court.
[22] Re Carey at [111].
[23] The reference to Craig's case is a reference to Craig v The State of South Australia (1995) 184 CLR 163.
It is clear from that statement that his Honour was not making a finding of general application. Further to say the Tribunal in that case was to be considered to be performing a function analogous to an inferior court is not to say the Tribunal is a court.
In addition to the view taken by Wheeler JA in Hartwig that the Tribunal is not a court, to which I have referred above, the Court of Appeal has more recently made a statement to that effect in Chang v Legal Profession Complaints Committee [No 2][2020] WASCA 208.[24] In that case, the Court of Appeal went on to say that in exercising original jurisdiction, on the proper construction of the SAT Act, the Tribunal exercises a function analogous to that performed by an inferior court; a matter it considered was relevant to the manner in which a Tribunal should determine its jurisdiction.[25]
[24] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208 at [155] (Buss P) and see Allanson J in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [55].
[25] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208 at [157] (Buss P and Murphy JA).
Again analogous does not mean that the Tribunal is a court. Therefore, the Respondent's argument that the Tribunal has power to entertain a collateral challenge to the validity of a proceeding because of its status as a court is without merit.
The Respondent's other concerns about the regularity of processes that preceded the making of the allegation to the Tribunal are matters which the Tribunal has no jurisdiction to consider because none has been conferred on it by the relevant enabling Acts or the SAT Act. It is not the Tribunal's role to determine compliance with the relevant provisions of the BSCRA Act or the BSR Act. Concerns about those matters could have been the subject of judicial review proceedings. While the Respondent acknowledges that is so, it submits that judicial review proceedings could not now be taken because the Respondent would be out of time.[26] Further, the Respondent submits that the matters would not be amenable to judicial review because matters of fact cannot be agitated in review proceedings.[27] While those matters may now preclude judicial review of the impugned processes, that does not make those concerns relevant to the Tribunal's consideration of its jurisdiction.
[26] ts 21, 24 June 2021.
[27] ts 21, 24 June 2021.

The Tribunal's jurisdiction in respect of this matter is engaged when the Board makes an allegation to the Tribunal about the complaint in relation to a registered building service provider forwarded to it by the Commissioner under s 56 of the BSR Act. Therefore, in my view, ensuring the Tribunal has jurisdiction to deal with the matter before it in this case requires only that the Tribunal determine:
1.that allegations of the kind can be made to it and be heard and determined by it – in this case that is revealed by s 56 and s 58 of the BSR Act; and
2.that the allegation about the complaint was made to the Tribunal by the Board – an examination of the application form reveals that it is an application made under s 56(2)(e) of the BSR Act. Attachment B provides the grounds for the orders sought and the Application is expressed to be made by the Board. Further, the Respondent has accepted that the Application is properly made if its concerns about the validity of the decisions that preceded it are not relevant to jurisdiction.
Given the conclusion I have reached about the Tribunal's jurisdiction, I expect that evidence about the decisions made by the Commissioner and the Board will not be led in the disciplinary proceedings unless relevant to an issue separate to those raised in this application.
For the sake of completeness, I have concluded that even if I had determined that the validity of the steps that preceded the making of the allegation to the Tribunal was relevant to the issue of whether the Tribunal has jurisdiction to determine the allegation before it, I would still have refused to allow the questions posed to be determined as preliminary issues in this case for the following reasons.
First, the parties have not agreed the factual basis upon which the preliminary questions are to be decided. The Respondent acknowledges that the Applicant may wish to lead evidence from people involved in the decisionmaking if the matters posed in its questions are to be determined as preliminary issues. Although at the hearing the Applicant's counsel indicated he was 'fairly certain' that oral evidence would be unnecessary[28] and that any preliminary issues could be resolved on the papers, that answer was self-evidently equivocal. Accordingly, it may yet be that the Applicant would wish to lead evidence and facts would need to be found by the Tribunal. In that circumstance, the benefit of a preliminary hearing would be greatly diminished.
[28] ts 4849, 24 June 2021.
Second, it is not clear that a finding that any particular step in the process by which the allegation about a complaint was made to the Tribunal was not properly undertaken will result in a finding that the Tribunal has no jurisdiction in relation to the Application and hence, resolve the proceedings altogether. Not every failure to fully comply with the statutory regime would necessarily be fatal. The Respondent has not submitted, and the Applicant has not conceded, that if the Tribunal were to find that it had jurisdiction to consider the issues raised, which the Respondent says go to jurisdiction, and the Tribunal were then to find that failings of which the Respondent complains did occur, then the consequence would be that the Tribunal would not have jurisdiction to deal with the allegations before it. In the circumstances, it is not apparent that resolving the preliminary questions will necessarily result in the withdrawal of the Application or even in a significant narrowing of the issues to be resolved at a final hearing.

Respondent's abuse of process and vexatious proceedings argument

As to the issue of whether the proceedings are an abuse of process, the Respondent advances several arguments. They are:
1.that it is an abuse of process to run an invalid decision to prosecute someone;
2.that the delay in bringing the proceedings amounts to the proceedings being an abuse of process; and
3.that many of the matters alleged in the Applicant's grounds have been the subject of arbitration and it is an abuse of process to relitigate them in this forum.[29]

Reasoning regarding request for preliminary hearing to determine whether the proceedings are an abuse of process or are vexatious

[29] By way of example, it was submitted (ts 29, 24 June 2021) that the Respondent should not be asked whether it moved the balustrade when that matter had been resolved.

I have come to the conclusion that the Tribunal will not determine as a preliminary issue, the Respondent's argument that the Tribunal should find that the making of the allegations to the Tribunal is an abuse of process or vexatious on the grounds that the proper processes set out in the BSCRA Act and the BSR Act were not followed before the allegations about the complaint were made to the Tribunal. That would require an inquiry into the processes and decisionmaking of the Commissioner and the Board. As I have already found above, the Tribunal has no jurisdiction to review those matters which the Respondent seeks to impugn.
For that reason, I would expect that evidence going to that matter will not be led at the hearing unless relevant to a different issue.
I have also concluded that the issue of whether the delay in making the allegations to the Tribunal amounts to an abuse of process should not be determined as a preliminary issue in these proceedings. There is nothing in the BSCRA Act or the BSR Act that requires allegations to be made to the Tribunal within any specified time. Nor is there anything in those Acts which requires the Commissioner to refuse to accept disciplinary complaints that are not made within a particular time period.[30] In those circumstances, it is my view that mere delay cannot result in the proceedings being regarded as an abuse of process. It may be that in a particular case, proceeding with a matter after a very lengthy delay during which crucial witnesses have died, or for other reasons are no longer able to give evidence, or which has otherwise resulted in evidence being lost could result in such unfairness to a party that the proceedings constitute an abuse of process. However, nothing of that kind has been put to the Tribunal by the Respondent to justify a hearing of whether the proceedings amount to an abuse of process as a result of delay.
[30] Section 6 of the BSCRA Act provides that a building service complaint is made out of time if it is made more than six years after the completion of the regulated building service to which the complaint relates. Section 7 provides that the Commissioner may refuse to accept a complaint which is made out of time. Section 16(3)(a) of the BSCRA Act provides that the Commissioner may refuse to accept a disciplinary complaint if it is made more than six years after the alleged occurrence of the disciplinary matter.
In this case, the relevant building contract was entered into in 2013 and the allegation was made to the Tribunal in July 2020. However, Mr Wrenn wrote to the Building Commission and requested that his complaint be dealt with as a disciplinary complaint on 11 August 2015. That letter indicates that it was copied to the Respondent by Mr Wrenn. At that time, therefore, the Respondent was clearly on notice about concerns regarding his conduct that have given rise to the allegations being made to the Tribunal and should therefore have taken steps to preserve evidence then available to him about the issues raised in the letter. In those circumstances, although the passage of time may mean that it is not possible for the Applicant to prove its case to the requisite standard or may account for lapses in recollection by witnesses, these are matters to which the Tribunal will have regard in resolving the allegation which has been made to it, and I am unable to find that it would be an abuse of process to proceed with the hearing of the Application.
Finally, the Respondent submits that the proceedings are an abuse of process because they traverse matters which have been resolved in the Respondent's favour in an arbitration conducted under the Commercial Arbitration Act 2012 (WA). In my view, the fact that the commercial dispute between Mr and Mrs Wrenn and the Respondent was resolved in arbitration does not affect the Board's authority to bring disciplinary proceedings against the Respondent as it has done.
There is nothing in the BSR Act or the BSCRA Act that precludes the Board from making an allegation to the Tribunal after a resolution of a private dispute between a registered building services provider and his or her client.
Further, the purpose of each of those kinds of proceedings is entirely different. One is to resolve a commercial dispute between two parties to a building contract and the other is to determine whether a disciplinary matter exists in relation to a registered building service provider. The purpose of registration and of disciplinary proceedings is to protect the public by maintaining adequate standards of those involved in providing building services in order to ensure that only persons or entities regarded as suitably qualified to do so are entitled to carry out particular (regulated) building services. In his Second Reading Speech for the BSR Bill, the Hon Minister for Commerce said of its purpose:
The bill significantly strengthens consumer protection by bolstering controls over the supervision requirements of building service providers, and in providing capacity to take fast action to suspend the registration of building service providers who engage in conduct that puts consumers' money or safety at significan[t] risk.
While the factual basis for the arbitration and the disciplinary proceedings may overlap, perhaps even significantly, the focus of the disciplinary proceedings is the conduct of the registered builder and his or her suitability to be registered rather than for the purpose of determining liability to pay sums claimed or counterclaimed under the contract.
The difference in the nature of the building service complaint and the disciplinary complaint is reinforced by s 7(5) of the BSCRA Act itself, which confirms that building services complaints can be treated in parallel with a disciplinary complaint about the same matter.
The Board's role in deciding whether to make an allegation to the Tribunal about a complaint is not determined by the outcome of any private arbitration to which the Board is not a party.[31] The mere taking of disciplinary action cannot be said to be an abuse simply because parties have reached a resolution of a commercial dispute.
[31] Although under s 7 of the BSCRA Act the Commissioner can have regard to the outcome of an arbitration in deciding whether or not to accept a building service complaint received under s 5 of the BSCRA Act.
The Respondent submits that allegations 6 and 7 allege breach of the Building Act which it submits only the Director of Public Prosecutions or specified authorities may prosecute. It submits therefore that the applicant has no authority to deal with these breaches because it is not one of the specified authorities or the Director of Public Prosecutions. True though it may be that prosecutions may only be brought by bodies with the authority to do so, the submission misapprehends the nature of these proceedings in the Tribunal.
There is nothing in the enabling Acts that provides that the conduct complained of in allegations 6 and 7 may only be dealt with by way of prosecution. Nor does the fact that certain conduct alleged in the disciplinary proceedings might also constitute an offence, for which a registered building service provider might be prosecuted, mean that disciplinary proceedings being brought in respect of the same conduct would be an abuse of process. They are separate proceedings. In the Explanatory Memorandum for the BSR Act at 2.4.1 the following was said in relation to Part 5 cl 53 Disciplinary matters:
Disciplinary matters apply only to registered building service providers and are different from offences, which can also apply to unregistered persons.
A similar argument was advanced in Legal Profession Complaints Committee and Masten [2010] WASAT 47.[32] In that case, the Tribunal held that while the sole power to determine the commission of an offence rests with the criminal courts and that s 226 of the Legal Profession Act 2008 (WA) created an offence did not mean that conduct falling within the purview of its provisions was not justiciable by the Tribunal.[33]
[32] Legal Profession Complaints Committee and Masten [2010] WASAT 47.
[33] Legal Profession Complaints Committee and Masten [2010] WASAT 47 at [46].
One punishes for past unlawful conduct while the other seeks to protect the public from future conduct based upon findings in relation to suitability made in respect of past conduct by doing one or more of the things provided for in s 58(1) of the BSR Act where the Tribunal is satisfied, based on the past conduct, that a disciplinary matter exists.
The argument sought to be advanced by the Respondent in proposed question 2.3 has no prospect of success and, therefore, should not be determined as a preliminary question.

Should the Commissioner be joined to the proceedings?

The Respondent has sought to join the Commissioner to the proceedings. The Applicant opposed the joinder.
The joinder of parties to proceedings in the Tribunal is provided for in s 38 of the SAT Act. That section provides:
(1)The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that —
(a)the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or
(b)the person's interests are affected by the proceeding; or
(c)for any other reason it is desirable that the person be joined as a party.
(2)The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative.
Whatever decisions were to be made by the Tribunal in relation to the preliminary or ultimate issue, the Commissioner's interests could not be said to be affected by it. I am confident that the Commissioner will take whatever action is required of her consequent upon the findings made in the disciplinary proceedings. It is not necessary for her to be joined for that purpose. I would not have joined the Commissioner on the basis permitted by s 38(1)(b) of the SAT Act. I would not join the Commissioner on the basis provided for in s 38(1)(a) of the SAT Act. Had I determined that the Tribunal would consider any of the jurisdictional arguments advanced by the Respondent, I would have joined the Commissioner as the second respondent to the proceedings in order to have the benefit of her participation in the proceedings; joinder for that purpose being permitted by s 38(1)(c) of the SAT Act.
Given that I have come to the view that the Tribunal will not look behind the allegation which has been made to it as permitted by s 56(2)(e) of the BSR Act, there is no reason to join the Commissioner to the proceedings.

Conclusion

It follows from the findings I have made above, in relation to the application for a hearing of preliminary issues and for the joining of the Commissioner, that the Respondent's application should be dismissed.
I will hear from the parties as to the appropriate orders to be made consequent upon these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
29 NOVEMBER 2021