DE SANTIS and SMITH - [2008] WASAT 204

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: DE SANTIS and SMITH [2008] WASAT 204

MEMBER: MR P McNAB (MEMBER)

HEARD: 19 JUNE 2008

DELIVERED : Edited reasons delivered orally on 19 JUNE 2008

FILE NO/S: CC 241 of 2008

BETWEEN: GUISEPPE DE SANTIS
Applicant
AND
JULIAN GREGORY SMITH
Respondent

Catchwords:

Building and construction Procedural fairness Faulty or unsatisfactory building work Whether work done in a proper and workmanlike manner Bathroom renovation Application for leave to review a decision of the Building Disputes Tribunal (BDT) leading to an order to pay against builder Preliminary and then informal notice of proceedings given to builder by owner Builder declining to advise owner of the intended closure of his business Builder aware of unresolved consumer complaints but made no special arrangements in winding up of his business Business closed but rent still paid on premises Registered mail sent by owner returned to sender during period when rent paid BDT mail to this business address not returned to BDT Proceedings in BDT conducted in builder's absence Owner and BDT assuming builder had waived his rights to appear No practical injustice found leading to a denial of procedural fairness Leave refused Application dismissed Words and phrases "practical injustice"

Legislation:

Builders' Registration Act 1939 (WA), s 41

Result:

Leave refused and application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Melmint Pty Ltd and Cummings [2008] WASAT 76
Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, Mr Guiseppe De Santis, was a builder. He was in dispute with Mr Julian Smith, the respondent, concerning some building work, namely a bathroom renovation, done for Mr Smith. Mr Smith rang the builder on 9 March 2007 saying that he was taking his complaint to the Building Disputes Tribunal.
In the State Administrative Tribunal, Mr De Santis eventually accepted that such a call had taken place on that date (having earlier said that his mobile phone had been "dropped into a pond" in February), but he contended that the parties had only talked about resolving the dispute. Mr De Santis had, in fact, closed his business as at the date of the call, but was still paying rent on a business office and address to the end of March 2007. Importantly, he did not mention these matters to Mr Smith.
As foreshadowed in the telephone call and an earlier preliminary notice, Mr Smith applied to the Building Disputes Tribunal by written application dated 26 March 2007. On that date, he also sent a copy of his application by registered mail to the builder at his office. It was eventually…

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: [2008] WASAT 204
Decision Date: 19 JUNE 2008 (Edited reasons delivered orally )

CaseChat Overview and Summary

The case of DeSantis and Smith involves a dispute in the building and construction sector, where the owner sought to review a decision of the Building Disputes Tribunal (BDT) that ordered the builder to pay against him. The builder had closed his business and did not inform the owner of this decision, despite being aware of unresolved consumer complaints. The owner sent a registered mail to the builder's business address, which was returned unopened, but the BDT's mail to the same address was not returned. The BDT proceeded with the proceedings in the builder's absence, and the owner and the BDT assumed the builder had waived his rights to appear. The owner sought leave to review the BDT's decision, arguing that the builder's absence caused a denial of procedural fairness. The court had to decide whether the BDT's decision was fair and whether the builder's absence caused a practical injustice.

The legal issues in this case were whether the builder's absence caused a denial of procedural fairness and whether the BDT's decision was fair. The court considered the principles of procedural fairness and the circumstances in which a decision-maker must adjourn or take appropriate steps if a party who has a right to be heard has not been informed of the circumstances in which that right may be exercised. The court also considered the circumstances in which a party's absence may lead to a decision being unfair.

The court held that the BDT's decision was fair and that the builder's absence did not cause a denial of procedural fairness. The court found that the only objective material that could have led to the BDT becoming aware of circumstances where notice had failed was the return of a registered post document sent by the owner, not the BDT, and returned to the owner on or about 18 April 2007. The court noted that both the date that the document was posted and the date on which in the ordinary course that the document would have been delivered were within the period where, on the builder's own evidence, he was still paying rent for the addressee business premises. The court also found that there was no practical injustice leading to a denial of procedural fairness, as the owner and the BDT assumed the builder had waived his rights to appear. The court held that a decision-maker must adjourn, or make appropriate inquiries or take analogous steps, if there is anything brought to its attention, or which otherwise appears from the circumstances, that reasonably suggests that a party who has a right to be heard has not been informed of the circumstances in which that right may be exercised. However, the court found that the BDT did not have any such information, and therefore, the decision was fair.

The court refused leave to review the BDT's decision and dismissed the application. The court made the following orders: (1) leave is refused to review the decision of the BDT dated 1 November 2007 (order to pay 82/2007-08) for the reasons given ex tempore on 19 June 2008, and (2) consequently, the application for leave is dismissed.

Orders

Orders of the court

For the reasons given above, the Tribunal makes the following orders:

1. Leave is refused to review the decision of the Building Disputes Tribunal dated 1 November 2007 (order to pay 82/2007-08) for the reasons given ex tempore on 19 June 2008.

2. Consequently, the application for leave is dismissed.

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

Chief Justice Gleeson, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at 14, said this in relation to the rules of procedural fairness:Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. That dictum is frequently referred to and applied by the courts and tribunals of Australia: see, for example, Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 at [329]. There are, of course, many formulations of the requirements of rules of procedural fairness. It is unnecessary to set them out for the purposes of these proceedings. However, there is no principle that a decisionmaker must fully suspend the making of a decision until both parties are actually present or represented. Of course, if this were a rule of procedural fairness (or a rule of substantive law) then all litigation and hearings could grind to a halt by the absence of either party, whether intended or not. Dr Forbes, in his Justice in Tribunals (Federation Press, 2002) says at [12.10] (emphasis added):Natural justice [procedural fairness] insists on an opportunity to be heard; it does not stand in the way of a decision if the defendant waives or rejects that opportunity. If a party fails without reasonable cause to appear at the appointed time and place then, subject to proof of service, the tribunal may proceed in his or her absence. Judgment in default of appearance in civil cases and in criminal courts of summary jurisdiction is a common event and may even occur on the trial of an indictable offence. In my view, a decision-maker (such as the BDT) must adjourn, or make appropriate inquiries or take analogous steps, if there is anything brought to its attention, or which otherwise appears from the circumstances, that reasonably suggests that a party who has a right to be heard has not been informed of the circumstances in which that right may be exercised. That is a "practical" solution to the problem presented when a party who, having been served or notified, does not show at a hearing. At some point, after the commencement of the proceedings in the BDT, the only objective material that could possibly have led to the BDT becoming aware of circumstances where notice had failed, was the return of a registered post document sent on 26 March 2007 by the applicant/owner, not the BDT, and returned to the owner on or about 18 April 2007. This document contained a copy of his application to the BDT. The return to sender (RTS) note from the post office records "Left address/Unknown". It is to be noticed that both the date that the document was posted and the date on which in the ordinary course that the document would have been delivered, were within the period where, on the builder's own evidence, he was still paying rent for the addressee business premises. Indeed, the envelope shows "28-3" as the date that the RTS process commenced, indicating that delivery was attempted on 28 March 2007.