CJM Contractors Pty Ltd and Notaro and Anor
[2008] WASAT 63
•13 MARCH 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: CJM CONTRACTORS PTY LTD and NOTARO & ANOR [2008] WASAT 63
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 18 FEBRUARY 2008
DELIVERED : 13 MARCH 2008
FILE NO/S: CC 192 of 2008
BETWEEN: CJM CONTRACTORS PTY LTD
Applicant
AND
GIANCARLO NOTARO
DOMENICA NOTARO
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) - Application for leave to review and set aside decision of Building Disputes Tribunal refusing adjournment - Interim order sought adjourning hearing of Building Disputes Tribunal - Whether State Administrative Tribunal has jurisdiction to review interlocutory orders
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Builders' Registration Act 1939 (WA), s 36(5), s 40, s 41
Builders' Registration Regulations (WA)
State Administrative Tribunal Rules 2004 (WA), r 37
Result:
Interim application refused
Application for review withdrawn
(Page 2)
Category: B
Representation:
Counsel:
Applicant: Mr W Vogt
Respondents : No appearance
Solicitors:
Applicant: Vogt Graham Lawyers
Respondents : No appearance
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for leave to review a decision of the Building Disputes Tribunal refusing an application for an adjournment of a hearing set down for 19 February 2008. An interim application sought an order that the hearing of the Building Disputes Tribunal on 19 February 2008 be adjourned sine die.
The interim application was heard as a matter of urgency on 18 February 2008. The Tribunal concluded that the Building Disputes Tribunal had not erred in refusing the adjournment and that, in any event, the State Administrative Tribunal did not have jurisdiction to review interlocutory orders such as the refusal to grant an adjournment.
Oral reasons were given at the conclusion of the hearing dismissing the interim application. The applicant then applied to withdraw the substantive proceedings and orders were made granting leave to withdraw and withdrawing the proceedings.
Background
On 12 February 2008, the Building Disputes Tribunal (Disputes Tribunal) refused an application by the applicant (builder) in these proceedings to adjourn the hearing of proceedings between the builder and the respondents (owners) which was listed for hearing on 19 February 2008. A substantive application was lodged with the State Administrative Tribunal (Tribunal) seeking leave to review the decision of the Disputes Tribunal and for an order that the decision dated 12 February 2006 be set aside.
The interim application was heard as a matter of urgency on 18 February 2008. At the conclusion of the hearing, the interim application was dismissed and oral reasons for that decision were given. Because the application raises matters of general importance, the Tribunal indicated that it would publish written reasons for decision, which have been prepared from the transcript of the oral decision, subject only to minor editing, rephrasing and the introduction of headings to assist in the reading of the decision.
The interim application
The applicant applied for orders by way of interim relief. The orders sought in the interim application were:
1)that the applicant have leave to review the decision of the Disputes Tribunal dated 12 February 2008;
2)the hearing of the Disputes Tribunal listed for 19 February 2008 be adjourned sine die;
and, by way of an amendment granted during the hearing,
(Page 4)
3) the decision of the Disputes Tribunal dated 12 February 2006 be set aside.
(Page 5)
The applicant filed affidavits in support of the application. There is, firstly, an affidavit of Mr Wilfred Vogt dated 18 February 2008 dealing with the manner in which service has been effected. The Tribunal indicated that it would make an order under r 37 of the State Administrative Tribunal Rules 2004 (WA) deeming the informal service to constitute sufficient service for the purpose of the interim application. There is also a further affidavit from the applicant's solicitor dated 15 February 2008 which sets out and has annexed to it the documents which are relied upon in support of the application.
That affidavit reflects that Mr Vogt was unable to appear at the hearing of the matter before the Disputes Tribunal on 19 February 2008 due to a commitment in the Supreme Court on that date. It was clarified in the hearing, however, that Mr Vogt had no instructions, and had never had instructions, to appear or act in relation to this matter, save to assist his client to obtain an adjournment of the proceedings before the Disputes Tribunal. The decision under review is a decision made on 12 February 2008 refusing that application for an adjournment.
Attached to Mr Vogt's affidavit is an affidavit of Mr Matthew Keith Sanders sworn on 31 January 2008. That affidavit set out the basis upon which Mr Sanders, who is a director of the builder, sought to have the matter adjourned. In [6] of that affidavit, Mr Sanders says that he is unable to attend the hearing on 19 February 2008 due to unforeseen business commitments he is required to attend in London. He proceeds, in the following paragraph, to say he will be overseas from 1 February 2008 to 24 February 2008. Attached to the affidavit is a copy of his travel itinerary which bears out that statement.
There is a threshold issue in this matter as to whether this Tribunal has power to review interlocutory decisions of the Disputes Tribunal, and indeed, whether this is an interlocutory decision. Mr Vogt submitted that it is a final decision which finally disposes of the matter. The Tribunal
will revert to that question, and will proceed for the present, on the assumption that the Tribunal has jurisdiction. It is necessary to determine whether or not the decision of the Disputes Tribunal refusing the adjournment application is wrong, or attended with sufficient doubt, and that there would be a substantial injustice if the decision was not reviewed.
Attached to Mr Vogt's affidavit as "WV1" is an email from Mr Sanders in which he first sought the adjournment. That email of 9 January 2008 states:
"To whom it may concern: Due to unforeseen circumstances, I will be out of Australia on the dates set down for the above hearing, Tuesday, 19 February 2008. Therefore, I would greatly appreciate your consideration of this matter and postpone the hearing until after 26 February 2008 when I will be back in the country."
(Page 6)
The Disputes Tribunal responded by letter of the same date advising, with reference to the email, that amongst other things, the notice of hearing informed Mr Sanders that the Tribunal would only change the
(Page 7)
hearing date on application by a party where good reason is shown. The note continues:
"Where the application is made early and the other party consents, there is a better chance of obtaining a change. The reason for seeking a change of hearing date should be stated in an affidavit or statutory declaration, together with supporting documents and given to the Building Disputes Tribunal and the other party as soon as possible. The application may be considered by the first available tribunal without either party being required to attend. Both parties will be advised of the result in writing."
At that stage, the only information before the Disputes Tribunal was that a trip overseas was necessary due to unforeseen circumstances. It was not until 31 January 2008 that Mr Sanders deposed to an affidavit in support of the application. As I have indicated, the only information provided in that affidavit was that it was now an unforeseen business commitment that required Mr Sanders to attend in London. There is no information given about the trip, what circumstances caused it to be unforeseen, or indeed why it was so pressing for Mr Sanders to travel overseas, notwithstanding that he was aware of the hearing date.
I should add that the itinerary to which reference has already been made shows that Mr Sanders was departing Perth on 1 February 2008 and that he was being accompanied by his wife, Mrs Rachel Sanders. The affidavit was therefore deposed to the day prior to him leaving the country, and it is evident from the submissions that have been put to the Tribunal that Mr Vogt had been somewhat handicapped by not having any detailed instructions as to why the trip was necessary, or indeed the nature of the defence being advanced in the matter. The question, therefore, is whether, in those circumstances, the Disputes Tribunal erred in refusing the application for an adjournment.
The respondents put information before the Disputes Tribunal opposing the application for an adjournment. In an email dated 24 January 2008, they referred to correspondence from the Tribunal dated 17 December 2007: "[I]n regards to notice of hearing for the above dispute."
They made reference to a letter of 11 October 2007 from the Disputes Tribunal requesting the parties to advise of their unavailable dates. They expressed their surprise that, after the Disputes Tribunal had given the parties ample time to ensure that they were available, the builder should at a late stage indicate he was not available to attend. The email continues to say that:
"Due to our hectic work commitments, we are unable to change the already set date, being 19 February 2008 commencing at 10.30 am as we have already scheduled annual leave with our employers and would find it hard, with such short notice, to both reschedule another time. Therefore, we would like the hearing to be on this date as scheduled."
(Page 8)
Based on the information which the Tribunal has outlined, the Disputes Tribunal refused the application for an adjournment. It is not clear whether any written reasons have been requested for that refusal, but whatever the situation may be, no reasons had been given at the date of hearing of the interim application. That notwithstanding, this Tribunal is in the same position as the Disputes Tribunal to assess whether or not a good reason had been given requesting the adjournment.
When a party seeks an indulgence from a court or a tribunal, it is incumbent on that party to provide a full disclosure of all relevant circumstances. In this case, the affidavit of Mr Sanders did not descend into any detail at all. As already indicated, there is no explanation as to why the business trip became pressing, or even when it became apparent that it was necessary to go on any business trip. There is no evidence, certainly before this Tribunal, to even indicate what role Mr Sanders has played in the actual dispute. In those circumstances, the Tribunal was not satisfied that it had been demonstrated that the Disputes Tribunal erred in any way. Mr Vogt suggested that once consideration is given to the potential prejudice to the parties, the adjournment should have been granted. I am unable to accept that is the case.
When a matter has been on foot for some time - and these proceedings were commenced about mid‑2007 - and in circumstances in which the Tribunal goes to some trouble to ascertain unavailable dates so it can set the matter down, it is not simply a case that the costs of an adjournment will be an adequate remedy to avoid prejudice. In this case, the owners indicated that they had arranged leave and that it would not be an easy matter for them to change their schedule.
The administration of justice would suffer if a party could apply successfully for an adjournment on grounds as thinly stated as in this application. There must be a good reason for an adjournment. If there is a good reason, then consideration can be given as to whether or not a party would be compensated adequately by an award of costs. The delay of proceedings in itself is a prejudice, and where there is a good reason, that would have to give way, but in circumstances such as this, I am unable to find that the Disputes Tribunal erred in its decision.
I turn, then, to the question of whether or not the Tribunal has jurisdiction to review a matter of an interlocutory nature. The first point which must be considered is whether a matter of this nature is interlocutory. Notwithstanding Mr Vogt's submissions to the contrary, the Tribunal has no doubt that the correct characterisation of an order refusing an adjournment is interlocutory. It does not in any way dispose of any aspect of the substantial merits of the dispute between the parties.
In the matter of Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, the High Court considered in the context of an administrative decision made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) what constituted a decision that was subject to review.
At page 335 of that decision, Mason CJ said:
"In the context of judicial proceedings, the Privy Council has accepted that the natural, obvious and prima facie meaning of the word 'decision' is decision of the suit by the court: See Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30 Ind App 35 at p 39 and the [sic] Commonwealth v The [sic] Bank of New South of Wales (1949) 79 CLR at 497 at page 625. But here, the relevant context is not that of a decision reached in curial or judicial proceedings so that the meaning must be determined by reference to the text, scope and purpose of the statute itself."
In the Tribunal's view, that is the exercise which needs to be undertaken in this matter. It is necessary to reach a view based on the text, scope and purpose of the statute, as to whether or not it was intended that an interlocutory decision could be reviewable by this Tribunal. The purpose and scope of the legislation was discussed by this Tribunal in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 (Tangent Nominees) in considering the grounds on which, or criteria on which, leave to review a decision should be granted. As stated at [41] of that decision, the legislation:
"intends that the Disputes Tribunal should provide a relatively speedy and inexpensive remedy in building disputes."
The Builders' Registration Act 1939 (WA) (BR Act) reflects that the Disputes Tribunal may determine its own procedures to the extent that the procedures are not prescribed by the BR Act or the Builders' Registration Regulations (WA): see s 36(5) of the BR Act. Under s 40 of the BR Act, a party to proceedings before the Disputes Tribunal has 14 days after the Disputes Tribunal has made a decision or order in those proceedings to request reasons in writing for the decision or order. Interestingly, s 41 of the BR Act, which deals with review, makes no reference to a review of an order. That section provides that a party to proceedings may apply to the Tribunal for a review of a decision of the Disputes Tribunal.
The legislature, therefore, drew a distinction between an order and the making of a decision which is open to review. That review, by virtue of subsection (2) cannot be made unless the Tribunal gives leave. The reasons that leave is required, as discussed in the Tangent Nominees case, is to act as a screening process. The intent of that is so that parties can have a quick remedy before the Disputes Tribunal which, subject to a limited right of review, would be final. The intent is that, save in those circumstances where that limited right of review should be granted, decisions of the Disputes Tribunal will be accepted by the parties as binding and will be acted upon.
The Tribunal considered that it would be inconsistent with the purpose of the legislation if any interlocutory ruling of the Disputes Tribunal was subject to the review of this Tribunal. If that were the case, it could not be ensured that proceedings before the Disputes Tribunal would proceed expeditiously. Matters could become frustrated by constant applications for review to this Tribunal. That is clearly not what was intended by the establishment of the
Disputes Tribunal under the BR Act. The Tribunal accordingly finds that it does not have jurisdiction to review interlocutory orders.
Conclusion
For the above reasons, the Tribunal dismissed the interim application. An order was made deeming the informal service of the application sufficient service. As the interim application had necessarily dealt with matters going to the heart of the substantive application, which could not further the builder's interests, once the Disputes Tribunal hearing was able to proceed with the hearing before it, the builder's counsel applied for leave to withdraw the substantive application. Leave to withdraw was granted and an order made withdrawing the proceeding.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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