Di Virgilio v McCleary - [2012] WASC 437

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DI VIRGILIO -v- McCLEARY [2012] WASC 437

CORAM: HALL J

HEARD: 11 SEPTEMBER 2012

DELIVERED : 16 NOVEMBER 2012

FILE NO/S: GDA 5 of 2012

BETWEEN: LUIGI DI VIRGILIO
Appellant
AND
NEIL McCLEARY
TRACEY McCLEARY
Respondents

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR B DE VILLERS (SENIOR MEMBER)
File No  :CC 1905 of 2011

Catchwords:

Appeal from State Administrative Tribunal (SAT) - Application to SAT for review of decision of Building Disputes Tribunal - Whether extension of time required - Whether refusal of extension of time by SAT was in error - Whether SAT considered all relevant factors

Legislation:

Builders Registration Act 1935 (WA), s 40, s 41
State Administrative Tribunal Act 2004 (WA), s 17, s 20
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Leave refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms K J Levy
Respondents : Mr G E Taylor

Solicitors:

Appellant: Kitto & Kitto
Respondents : Park Linfoot Legal Solutions

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

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gerando v Gerando (1997) 18 WAR 450
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 7 ALD 315
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
O'Connor and The Town of Victoria Park [2005] WASAT 161
Re DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566;[2010] AATA 377

HALL J:

Introduction

This is an application for leave to appeal from a decision of the State Administrative Tribunal (SAT) made on 20 December 2011. The decision of the SAT was to refuse an application to extend time for the appellant to seek a review of a decision of the Building Disputes Tribunal (BDT) made on 14 December 2010. An extension was required because the application for review in the SAT was filed on 1 December 2011, nearly 11 months out of time.
An appeal to this court from a decision of the nature described is only available both with leave and on a question of law: s 105 State Administrative Tribunal Act 2004 (WA) (SAT Act). In order to determine whether leave should be granted it will be necessary to consider the merits of the grounds of appeal.
The appellant asserts that in dealing with the application to extend time the SAT failed to apply the appropriate principles, failed to take into account relevant considerations and made a finding that was not supported by the evidence. I will refer to the grounds of appeal in more detail later in these reasons. In order to understand the claims made by the appellant and the decision made by SAT it will be necessary to set out the background of the dispute between the parties.

Background

In 2006 the respondents, Mr and Mrs McCleary, entered into…

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.

Keep reading for free

Create a free CaseChat account to read Di Virgilio v McCleary and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WASC 437
Decision Date: 16 NOVEMBER 2012

CaseChat Overview and Summary

The appellant, Di Virgilio, appealed a decision of the State Administrative Tribunal (SAT) which dismissed his application for an extension of time to lodge an appeal. The dispute originated from a decision of the Building Disputes Tribunal (BDT) which the appellant sought to review through the SAT. The central issue was whether the SAT erred in refusing the appellant's request for an extension of time and whether it had considered all relevant factors in reaching its decision.

The legal issues before the court included whether the appellant had indeed received notice of the BDT's decision and his right to review it, and whether the SAT's refusal to grant an extension of time was justified. The appellant argued that he had not received the requisite notice, thus the time for appeal had not expired. However, the BDT had already ruled on this point, and the appellant had not challenged that ruling. The court needed to determine if the SAT correctly exercised its discretion in denying the extension of time, considering all relevant factors.

The court found that the appellant's contention about not receiving the notice of review rights was inconsistent with his application for an extension, which implied an acceptance of the BDT's decision. The court also noted that the appellant did not argue that this was a preliminary issue to be resolved before considering the extension. The court held that the SAT's discretion to grant an extension of time was properly exercised, considering all relevant circumstances, including the appellant's delay in lodging the appeal. The court upheld the SAT's decision.

The final orders of the court were to dismiss the appeal and affirm the SAT's decision that no extension of time would be granted. The court found no error in the SAT's handling of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 20 of the SAT Act provides as follows:Notice of decision and right to have it reviewed to be given by decision-maker(1)If this subsection applies to a reviewable decision, the decision‑maker is to give any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of -(a)the decision; and(b)that right.(2)Subsection (1) applies to any reviewable decision unless -(a)the decision does not adversely affect the interests of the person who has that right and -(i)it is a decision not to impose a liability, penalty, or any kind of limitation, on a person; or(ii)it is made under an enabling Act that establishes several categories of entitlement to a monetary or other benefit, and it determines a person to be in the most favourable of those categories;or(b)the decision is prescribed by the regulations for the purposes of this paragraph.(3)If the persons who have to be given notice under subsection (1) are not readily identifiable, the decision‑maker is to take steps that are reasonable in the circumstances to give the notice.(4)A contravention of this section does not affect the validity of the decision.(5)If subsection (1) applies in a case in which a person has failed to make a decision within the time limit for making the decision, the person may, if the enabling Act permits, make the decision instead of giving notice under subsection (1). In this case the appellant contended that he had received a letter from the BDT notifying him of the decision but that it had not included a notice as to his right of review. If this was right then time had not expired and an extension was not required. However, that contention was dismissed by the BDT in its decision of 3 November 2011. That decision was not subject to challenge. There was an implicit acceptance of that decision in the bringing of an application for an extension of time. It was inconsistent for the appellant to both seek an extension and maintain that he had not received the notice. That inconsistency was not raised by anyone and it must be inferred that the appellant accepted that the BDT had complied with its statutory obligations but that he was, nonetheless, unaware of his review rights because, for some unknown reason, he had not seen the notice. The SAT treated the issue of whether notice of review rights had been received by the appellant as being a factor relevant to whether an extension of time should be granted. No complaint is made by the appellant in this regard, indeed that is how the appellant's case was presented in the SAT. It was not suggested in the SAT, or on this appeal, that this was a preliminary issue that needed to be determined first in order to establish whether an extension was necessary. I will approach the issues on the same basis. The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.