ELLIOTT and ZEMLA PTY LTD - [2019] WASAT 46 (S)

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ELLIOTT and ZEMLA PTY LTD [2019] WASAT 46
MEMBER: MS D QUINLAN, MEMBER
MR I LUSH, SENIOR SESSIONAL MEMBER

HEARD:   21 JUNE 2019
DELIVERED          :   28 JUNE 2019
FILE NO/S:   CC 238 of 2019
BETWEEN:   BERNARD ELLIOTT
Applicant
AND
ZEMLA PTY LTD
First Respondent
BUILDING COMMISSIONER
Second Respondent

Catchwords:

Building surveying contractor - Building surveying practitioner - Disciplinary complaint - Disciplinary matter - Building Commissioner refused to accept disciplinary complaint - Without substance - Leave required to seek review - Whether decision to refuse wrong or at least attended with sufficient doubt to justify leave

Legislation:

Building Act 2011 (WA), s 19
Building Regulations 2012 (WA), reg 18A(1)(e)(ii), reg 18A(2)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s15, s 16, s 57(2)
Building Services (Registration) Act 2011 (WA), s 53
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Leave refused and proceeding dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	Mr A Buchan
Second Respondent	:	Mr E Homan

Solicitors:

Applicant	:	N/A
First Respondent	:	Hotchkin Hanly
Second Respondent	:	Department of Mines Industry Regulation and Safety

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Greenwood and Building Services Board [2018] WASAT 125
Lawson and Legal Profession Complaints Committee [2019] WASAT 36
McLerie and Italia Stone Group Pty Ltd [2016] WASAT 35
Miller and City of Melville [2012] WASAT 156

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 12 February 2019, Mr Bernard Elliott lodged an application with the Tribunal seeking leave to review a decision of the Building Commissioner (the Commissioner) on 7 February 2019 where the Commissioner's delegate, Mr Chris Maseyk, Enforcement Manager, refused to accept a disciplinary complaint against Zemla Pty Ltd (Zemla).
Section 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act) provides that, if the Tribunal gives leave, a person aggrieved by a decision of the Commissioner to refuse to accept a complaint may apply to the Tribunal for a review of the decision.

Issue to be determined

In accordance with the directions of the Tribunal on 26 March 2019, there are potentially two issues to be determined in these proceedings under s 57(2) of the Act as follows:
(a)firstly, whether the Tribunal should give leave to Mr Elliott to seek a review of the Commissioner's decision to refuse to accept his disciplinary complaint against Zemla; and
(b)secondly, if leave is granted, review the decision of the Commissioner to refuse Mr Elliott's disciplinary complaint against Zemla.

Legal framework

The principles, or criteria, to be applied in deciding, in the exercise of the Tribunal's discretion, whether to grant leave in the context of s 57(2) of the Act were considered by the Tribunal in McLerie and Italia Stone Group Pty Ltd [2016] WASAT 35 (McLerie) at [12]-[14] as follows:
12.The criteria for the grant of leave in relation to an internal review under s 58(2) of the Complaint Act were discussed in detail in Philimon and Rimmer [2013] WASAT 13 and then summarised in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20. These decisions outline that there is a broad discretion whether or not to grant leave to review, but generally, it is necessary to show that the decision sought to be reviewed is wrong, or attended with sufficient doubt in relation to a significant question of law or some other feature warranting consideration by the Tribunal, and that, if leave were not to be granted, the applicant would suffer a substantial injustice. Other criteria set out in these decisions relevant to consideration of the review of a decision after full hearing on the merits have no application to a decision to refuse to accept a complaint, but otherwise, the above principles are relevant, subject to the following further considerations.
13.The processes before the Building Commissioner do not permit the conduct of hearings where disputes of fact can be forensically tested. The Building Commissioner has power under the Complaint Act to seek further information about a complaint in order to make a decision whether or not to accept it. The circumstances and extent of information which might be required will inevitably vary from case to case. The information provided and any reasons furnished by the Building Commissioner should disclose the basis upon which the decision to refuse to accept the complaint was made. It is therefore necessary to examine that information carefully in order to assess whether it was appropriate to make such a summary decision. The decision should only be taken after very careful consideration and only when the Building Commissioner is satisfied that the information shows that the complaint is so obviously untenable that it cannot possibly succeed or is manifestly groundless, or discloses a case which the Building Commissioner is satisfied cannot succeed. In this regard, the principles discussed in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 and in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 are expressed to the above effect and are entirely apt, although applied in different contexts.
14.It will be generally not difficult to exercise the broad discretion which exists, in favour of the grant of leave, when it is evident that the complaint has not been accepted based on information which is likely to be contested, and which can only be properly assessed following a full hearing. In such circumstances, the summary nature of the decision, without a complainant being given a proper opportunity to test information on which the decision is based, may allow the Tribunal to more readily conclude that a substantial injustice would result if leave were not to be granted.
The Tribunal in Lawson and Legal Profession Complaints Committee [2019] WASAT 36 considered almost identical legislative provisions in the context of granting leave at [14]-[21] as follows:
14Section 415 of the LP Act enables the Committee to summarily dismiss a complaint in terms which include the following:
(1)The Complaints Committee may dismiss a complaint if
…
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; …
(2)The Complaints Committee must dismiss a complaint if
(a)the complaint was made more than 6 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 411 in relation to the complaint; …
(3)The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
15Thus, summary dismissal is available to the Committee under s 415(1)(b) of the LP Act in circumstances where the complaint is 'vexatious', 'misconceived', 'frivolous' or 'lacking in substance'. As indicated earlier, the Committee dismissed complaints 1 and 2.2 (in part) on the basis that they are 'lacking in substance' and dismissed the other complaints on the basis that they are 'vexatious, misconceived and/or lacking in substance'.
16The terms 'vexatious', 'misconceived', 'frivolous' and 'lacking in substance' are not defined in the LP Act. The meaning of the term 'vexatious' in relation to legal actions and, by analogy, in relation to a complaint about a legal practitioner, is:
… instituted [or made] without sufficient grounds, and serving only to cause annoyance.
17In Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165, Deputy President Judge Pritchard (as her Honour then was) considered the meaning of the terms 'misconceived' and 'lacking in substance' in s 47(1)(a) of the SAT Act. Section 47(1) of the SAT Act confers power on the Tribunal to summarily dismiss SAT proceedings, which is similar to the power conferred on the Committee by s 415(1)(b) of the LP Act to summarily dismiss a complaint about a legal practitioner. In Laurent and Commissioner of Police, the Tribunal held as follows at [23]:
… I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact[.]
18The term 'frivolous' relevantly means:
… of little or no weight, worth, or importance; not worthy of serious notice.
19Section 435 of the LP Act confers a right of review by the Tribunal on a person aggrieved by a decision of the Committee to dismiss a complaint in the following terms:
(1)Subject to subsection (2), a person aggrieved by
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
20As indicated earlier, in its reasons for its decision to dismiss the applicant's complaints about the practitioner, the Committee specifically found each complaint to be 'unreasonable'. Consequently, under s 435(2) of the LP Act, the applicant cannot apply to the Tribunal for a review of the Committee's decision without the leave of the Tribunal.
21As President Justice Chaney said in Winzer and RobertsSmith [2011] WASAT 140 at [8]:
The question of leave pursuant to s 435(2) of the LP Act is to be determined according to the principles outlined in Wilson v Metaxis (1989) WAR 285. In that case, the full Supreme Court found that for leave to be granted:
1.It must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.
2.In addition that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all of the circumstances of the case.
In Greenwood and Building Services Board [2018] WASAT 125 (Greenwood) the Tribunal quoted the earlier Tribunal decision of Miller and City of Melville [2012] WASAT 156 and outlined the CDC process at [28]-[30] as follows:
28A CDC is issued pursuant to s 19 of the Building Act and must contain a signed statement by a building surveyor to the effect that if the building or incidental structure that is the subject of the application for a building permit is completed in accordance with the plans and specifications they will comply with each applicable standard. Relevant to these proceedings, this signed statement is to be found as part of the declaration in part six of the CDC.
29In Miller and City of Melville [2012] WASAT 156 (Miller), the Tribunal considered the CDC and building permit approval process in the Building Act which at that time had only recently introduced the provisions allowing for private certification. The principal finding in Miller was that the Building Act undoubtedly places primary responsibility for determination as to the question of compliance with building standards upon the building surveyor who provides the CDC under s 19, however, the permit authority had a residual discretion to refuse to approve a building permit where the permit authority had formed a view contrary to the certification in the CDC.
30The Tribunal in Miller explained its findings in conclusion at [34]-[36]:
In our view, there is no need to read down the natural meaning of the word 'error' in order to meet the statutory scheme of the Building Act. The Act undoubtedly places primary responsibility for determination as to the question of compliance with building standards upon the building surveyor who provides the certificate of compliance under s 19. It can be accepted that the Act contemplates that is not the function of the permit authority to review a certificate of design compliance, and that in the normal course no such review will be undertaken. There is, however, a power given to the permit authority to refuse the grant of a building permit where an error is detected in information provided for the application. It is difficult to accept that, no matter how blatant an error of opinion contained in a certificate of design compliance may be, a permit authority is obliged to issue a building permit knowing that the building must be constructed in accordance with the plans and specifications the subject of the certificate of design compliance.
The Attorney General argued that, where such an error of opinion is detected by a permit authority, the practical reality is that the permit authority is likely to bring the error to the attention of the certifying building surveyor who would then be likely to withdraw the certificate. While that may be so, it does not provide a basis for depriving the permit authority of its power to refuse to issue a building permit where it believes information provided to it contains an error, including an error in the nature of opinion. We do not accept that an opinion expressed in a certificate of design compliance should not be considered 'an error in information provided for the application or in a document that accompanies the application' for the reason that information or documents cannot hold opinions. The information provided for an application includes the certificate of design compliance, and there is, in our view, no reason why an erroneous opinion contained within that information cannot be said to be an error the purposes of s 22 of the Building Act.
The fact that s 20 of the Building Act makes no provision for the permit authority to consider whether the proposed building will comply with all relevant building standards is not surprising. Undoubtedly the Building Act contemplates that applications for the issue of the building permit will not be subjected to more than one analysis to ascertain compliance with relevant building standards. The provisions of s 144 of the Building Act make that position quite clear. Mostly, therefore, the terms of a certificate of design compliance will not be subjected to review, and a permit authority will confine itself to considering whether it is satisfied of those matters of which s 20 requires it to be satisfied before the obligation to grant the building permit arises. Where, however, in the course of that analysis, for any reason the permit authority forms a genuine belief that there is an error as to compliance, we do not consider it inconsistent with the scheme of the Act that the power under s 22 to refuse to grant the application is enlivened. Mostly that is likely to occur where the non-compliance is clear and might be corrected by the certifying building surveyor when it is drawn to his or her attention. But where there is simply a difference of opinion between the permit authority and the certifying building surveyor, the matter can be determined by review by this Tribunal under s 119. The Building Act is clearly designed to ensure adherence to applicable building standards, and that objective is better served by resolution of differences of opinion through an orderly review system, rather than by a requirement that obliges a permit authority to grant a permit notwithstanding a belief that the structure to be constructed will not comply with the required standards Pollution..
Relevantly, s 15 of the Act provides that a person may make a complaint to the Commissioner about the alleged occurrence of a disciplinary matter in relation to a registered building service provider.
The definition of 'disciplinary matter' in the Act is referenced to the meaning given in s 53 of the Building Services (Registration) Act 2011 (WA) (Registration Act). Section 53 of the Registration Act provides an exhaustive list of matters that are considered to be disciplinary matters under the Registration Act. Section 53(1)(e) of the Registration Act is the disciplinary matter listed that best aligns with the allegations made by Mr Elliott. Section 53(1)(e) of the Registration Act provides that a disciplinary matter is where the registered building service provider has been negligent or incompetent in connection with carrying out a building service. The Tribunal also notes that the disciplinary complaint made by Mr Elliott may, arguably, fall within other listed disciplinary matters in s 53, such as s 53(f), (g) or (j)(ii).
Section 16 of the Act provides that after receiving a disciplinary complaint the Commissioner must decide whether and to what extent to accept it or to refuse to accept it. Section 16(2) of the Act provides that the Commissioner may make such enquiries as are appropriate to enable the making of a decision under s 16. Relevant to these proceedings, s 16(3)(c) of the Act provides that the Commissioner may refuse to accept a disciplinary complaint if the Commissioner forms the opinion the complaint is vexatious, misconceived, frivolous or without substance.
The Tribunal in Greenwood at [8]-[9] noted the general principles in disciplinary proceedings as follows:
8.The allegations against the applicants must be established on the balance of probabilities to the Briginshaw standard. The Tribunal must feel an actual persuasion of the occurrence of events or the existence of the relevant facts before being satisfied that an allegation against a person has been made out: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361363 and Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [64]-[65].
9.The object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of those standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [25].

Background facts

The material background facts were not contentious amongst the parties. The factual matter that was in contention, regarding whether the relevant certificate of design compliance (discussed in further detail below) contained sufficient and accurate information concerning the required window and door system to be installed for the ancillary dwelling.
On 1 February 2013, Ms Claire Lings, an employee of Zemla, was registered as a building surveying practitioner and has maintained that registration since. Ms Lings' registration will expire on 1 November 2019 if not renewed.
On 13 October 2016 Zemla was registered as a building surveying contractor and has maintained that registration since. It will expire on 13 October 2019 if not renewed. Structerre Consulting Engineers is the business operating name for Zemla.
On or about 27 November 2017 Steelbase Enterprises Pty Ltd (Steelbase) entered into a contract with Mr David Perry and Mrs Gem Perry to carry out the construction of what is commonly known as a 'granny flat' or ancillary dwelling (ancillary dwelling) at 37 Beckley Circle, Leeming (the property). At all material times Steelbase was a registered building contractor and Mr Elliott was its nominated supervisor.

Due to the geographical location of the proposed ancillary dwelling, additional building standards applied in relation to the bushfire attack level assessed as applicable, which was determined to be Bushfire Attack Level Flame Zone (BAL-FZ).
On 20 December 2017 Mr Elliott received a quote from Profire WA, who supplied and installed fire rated building products, in the amount of $7,907 (plus GST) for the installation of a BALFZ system for three openings which requires a BAL40 glazing system to be installed behind a vertical descending barrier and did not include BAL-40 glazing: see document U1-U3 in Mr Elliott's bundle.
Prior to making an application for a building permit, Mr Elliott engaged the services of Zemla to carry out building surveying work and to issue a certificate of design compliance in relation to the proposed ancillary dwelling.
On 5 January 2018 Ms Jessie Lewis, an Energy Assessor employed by Zemla, emailed Mr Elliott advising that she was working on options to achieve a 6 star rating for the ancillary dwelling which on the specifications listed was currently achieving just a 4.4 star rating. This email noted as follows:
Please note: in regards to the BAL Flame zone requirements you will need to speak to a fire engineer about the building specifications but please be aware the external wall thickness or window shutters will not impact the energy assessment.
(See document G1 in Mr Elliot's bundle)
On 5 January 2018 Ms Lewis asked Mr Elliott whether he has a specified window manufacturer. On 8 January 2018 Mr Elliott emailed Ms Lewis advising that Jason Windows are what he would prefer to use but the BAL rating is his first concern. Mr Elliott asked Ms Lewis to wait before completing her assessment until Mr Reuben Davies, a Structural Design Engineer employed by Zemla, 'has done his bit': see document G in Mr Elliott's bundle.
On 10 January 2018 Ms Lings emailed Mr Elliott confirming the details of the systems Steelbase will be installing. Ms Lings stated that windows are 'to have both the openable and non-openable portion of the windows screened with crimesafe [sic] tested system for FZ BAL': see document K-K2 in Mr Elliott's bundle.
On 10 January 2018, Bushfire Prone Planning Group Pty Ltd (Bushfire Prone Planning), an accredited bushfire practitioner, assessed the proposed ancillary dwelling as to what was required for it to meet BAL-FZ: see pages 69-92 of the Commissioner's bundle.
On 15 January 2018 Mr Elliott obtained a quote in relation to BAL-FZ rated shutters which amounted to $16,610.91 (plus GST): see document V1-V4 in Mr Elliott's bundle.
On 15 January 2018 Ms Lings signed and Zemla issued the certificate of design compliance for the proposed ancillary dwelling (the CDC): see pages 48-301 of the Commissioner's bundle.
On 16 January 2018 Steelbase made a certified application to the City of Melville (City) for a building permit in relation to the proposed ancillary dwelling: see pages 10-301 of the Commissioner's bundle. Attached to the certified application, amongst other required technical documents, was the CDC. The application was certified because the certification that the proposed work would comply with the applicable building standards had been carried out by a private certifier (Ms Lings and Zemla) prior to Steelbase submitting the building permit application to the City.
On 22 January 2018, the City granted the building permit BA-2018-60 (building permit): see pages 308-310 of the Commissioner's bundle. Following the granting of the building permit, Mr Elliott on behalf of Steelbase carried out the proposed work.
On 9 February 2018 the City received a complaint from Profire WA that Steelbase was not using BAL-FZ rated windows, sliding doors and glazing.
On 8 March 2018 Mr Elliott obtained a quote from Paarhammer for Flame zone windows and doors in the amount of $40,622: see document W1-W4 in Mr Elliott's bundle.
On 26 March 2018 the City wrote to Steelbase requesting written evidence that the fire materials installed demonstrate compliance with the building permit: see page 311 of the Commissioner's bundle.
On 21 May 2018, Profire WA also made a disciplinary complaint to the Commissioner against Steelbase alleging disciplinary matters exist in relation to the installation of non-compliant fire materials (the Steelbase disciplinary complaint).
In relation to the Steelbase disciplinary complaint, Mr Richard Wright an investigating officer within the Department of Mines, Industry Regulation and Safety (department) supporting the Commissioner, referred the Steelbase disciplinary complaint to Principal Building Surveyor Mr Allan Meikle for technical advice in relation to the CDC.
On 31 May 2018, Mr Meikle concluded that the CDC required compliance with the appropriate standards and, whilst it could have nominated the particular windows to be used, it was correct: see pages 325-328 of the Commissioner's bundle.
During the course of 2018, the City and Mr Elliot explored whether compliance with BAL-FZ could be achieved by an alternative and economical means.
On 5 December 2018 Mr Elliott lodged a disciplinary complaint with the Commissioner against Zemla alleging that the CDC 'does not comply' (Zemla disciplinary complaint). The Zema disciplinary complaint was interpreted by the Commissioner to mean that the CDC was defective in relation to the information it contained with respect to compliance with bushfire attack related building standards. The Zemla disciplinary complaint concerned the same CDC that was the subject of the Steelbase disciplinary complaint: see pages 319-321 of the Commissioner's bundle.
On 14 December 2018 the City issued a building order requiring alteration to the type of screen window and door system used by Steelbase in order for the system to meet the requirements of BAL-FZ: see page 316-318 of the Commissioner's bundle.
On 4 February 2019, Mr Wright referred the Zemla disciplinary complaint to Mr Meikle for technical advice. On 6 February 2019, Mr Meikle reiterated his view that the CDC contained the information a builder would require to then research what windows could be used to achieved the required -/30/- Fire Resistance Level (FRL): see pages 329-332 of the Commissioner's bundle.
On 7 February 2019, pursuant to s 16(3)(c) of the Act, the Commissioner's delegate Mr Maseyk refused to accept the Zemla disciplinary complaint made by Mr Elliott on the basis that it was, in effect, without substance. Mr Maseyk wrote to Mr Elliott informing him of the decision and his right to apply for leave to review the decision: see pages 362-364 of the Commissioner's bundle. The decision letter stated as follows:
I am writing to you about the disciplinary complaint that you have made against Zemla Pty Ltd.
You have said that Zemla issued a certificate of design compliance that contained incorrect or insufficient information about the window and door system to be used in the construction of an ancillary dwelling on a BAL-FZ site at 37 Beckley Circle, Leeming.
However, having reviewed the certificate of design compliance issued by Zemla, it is clear that it contained sufficient and accurate information about the requirements of the window and door system for the ancillary dwelling. In particular, a document titled 'Flame Zone Construction Requirements' specified the fire resistance level required of the window and door system in order that it would comply with the BAL-FZ rating of the site.
I have therefore decided to refuse the disciplinary complaint that you have made, as it does not disclose the existence of a disciplinary matter or give grounds for the Building Commission to take disciplinary action against Zemla[.]

Mr Elliott's submissions

Mr Elliott submits that the CDC is deficient in two respects.
Firstly, the CDC 'does not comply', in that the declaration at Part 6 of the CDC (which the Tribunal notes was done by Ms Lings and not Zemla) does not comply with the standards. Mr Elliott was unable to refer the Tribunal to the standards to which he was reliant upon to make this submission.
Secondly, Mr Elliott submits based on the expert opinion of Mr Helmut Schwanke, fire safety engineer and building surveyor, that the CDC is deficient as it is in conflict within itself concerning the energy efficiency requirements and bushfire requirements. Mr Elliott submits that the CDC was not clear in what was to be built with what products as he had always made it clear to Structerre that he intended to use, for cost efficiency and viability reasons, Jason Windows with Crimsafe Security Screens.

Commissioner's submissions

The Commissioner submits in summary as follows:
(a)Section 16(3) of the Act provides grounds for the Commissioner to refuse to accept a disciplinary complaint. One of those grounds under s 16(3)(c) of the Act is that, in the Commissioner's opinion, the disciplinary complaint is without substance.
(b)On the basis that Mr Elliott alleged in his Zemla disciplinary complaint that the CDC did not comply it was prudent, if not incumbent, upon the Commissioner to make appropriate enquiries with respect to the content of the CDC before deciding to accept or refuse the complaint.
(c)Notwithstanding an apparent lack of detail in relation to how the CDC was alleged by Mr Elliott not to 'comply', it appears to have been common ground due to the Steelbase disciplinary complaint and the ongoing discussions throughout 2018 that the allegation concerned non-compliance with respect to bushfire requirements for windows and sliding glass doors.
(d)The enquiries made in this instance were of Mr Meikle for his expert opinion as to the compliance or otherwise of the CDC. Mr Meikle's opinion was, in effect, that the CDC required glass windows and doors to comply with the appropriate Australian Standards in order to meet the BAL-FZ requirements and that as such the CDC was correct and contained all the information the builder required in order to source products that would comply with the applicable standards.
(e)The Commissioner contends that, on the basis of Mr Meikle's opinion, on its face, the complaint was without substance as the CDC did 'comply' because it contained all the necessary information with respect to the compliance of windows and sliding doors with BALFZ construction requirements to enable the builder to order windows and doors that met the applicable standards or at least the standards or requirements specified in the CDC. The Commissioner contends that the CDC contemplated an appropriate Crimsafe Security System (that is screens) in conjunction with windows and doors that complied with the specified standards: see page 94 of the Commissioner's bundle.
(f)In addition s 19 of the Building Act 2011 (WA) (Building Act) and reg 18A(1)(e)(ii) and 18A(2) of the Building Regulations 2012 (WA) (Building Regulations) contain the requirements as to the contents of a CDC as is relevant to this case. These provisions, or the effect of them, do not require the specification of specific compliant window and sliding door products in a CDC.
(g)Consequently, in accordance with s 16(3)(c) of the Act, it was open to Mr Maseyk as the Commissioner's delegate, should he accept Mr Meikle's advice and form the necessary opinion, to refuse to accept the Zemla disciplinary complaint as being without substance.
(h)The Commissioner contends that Mr Maseyk's decision was correct and Mr Elliott should not be granted leave to review it.
(i)The Commissioner submits that both the disciplinary complaint and the application for leave are without substance and, if the Tribunal accepts this submission, the Commissioner intends to apply for costs.

Zemla's submissions

Zemla submits in summary that:
(a)Mr Elliott places great weight on the specific reference to Jason Windows in the energy efficiency report prepared by Zemla and which forms part of the CDC: see page 61 of the Commissioner's bundle.
(b)It is not the role of the building surveyor providing a CDC to a registered builder to approve a specific supplier of a product, rather, the private certifier approves a system, which if applied by a builder will result in compliance with relevant standards. It was the responsibility of Mr Elliott and Steelbase to ensure that the preferred window supplier was able to supply windows that, when used with Crimsafe Security Screens, were compliant with the requirements of BALFZ rating. The information necessary to allow Steelbase to do this was:
(i)Directly provided to Mr Elliott by Crimsafe on 22 December 2017 in two separate documents: see pages 456 of the Commissioner's bundle, and in particular, pages 14, 15, 17, 53 and 33.
(ii)Provided by Zemla to the applicant as part of the CDC package provided by Zemla to Mr Elliott on 16 January 2018: in particular see pages 94, 241 and 261 of the Commissioner's bundle.
(c)Applying the principles described in McLerie, Mr Elliott should not be granted leave under s 57(2) of the BSCRA Act as:
(i)for the reasons submitted by the Commissioner and Zemla, the decision of the Commissioner to refuse to accept the complaint under s 16(3)(c) of the Act could not be described as wrong or attended with sufficient doubt so as to result in a substantial injustice if leave was not granted.
(d)Based on the evidence of Mr Elliott where he detailed the enquiries he made and the report he obtained from Bushfire Prone Planning before engaging Zemla, that he had read the CDC (including its attachments) 'thoroughly', it was not unreasonable to expect Mr Elliott understood its contents.
(e)The basis of the Zemla disciplinary complaint, insofar as it is founded on an alleged inadequacy in the CDC which would need to amount to negligence or incompetence by Zemla, on any fair minded assessment is untenable and without substance as found by the Commissioner.
(f)In the event the Tribunal dismisses the application for leave, Zemla seeks an opportunity to make submissions as to recovery of its costs.

Evidence

Each of the three parties provided the Tribunal with a statement of issues, facts and contentions (SIFC) as well as documentary evidence. The Tribunal also heard evidence from a number of witnesses. Mr Elliott relied on his own factual evidence as well as the factual evidence of one of the home owners, Mr Perry, and the expert evidence of Mr Schwanke. Zemla did not call any witnesses to give evidence. The Commissioner relied on witness evidence from Mr Maseyk, Mr Wright as well as expert evidence from Mr Meikle.
Mr Elliott and Mr Perry gave oral evidence in the Tribunal. Mr Elliott was asked questions by the Tribunal and cross-examined by counsel for both Zemla and the Commissioner. Mr Perry was not cross-examined. Mr Schwanke and Mr Meikle each gave oral evidence and were also asked questions by the Tribunal and cross-examined by opposing parties. The factual evidence of Mr Elliott as well as the expert evidence of Messrs Schwanke and Meikle are of particular importance to the outcome of these proceedings and will be summaried in which follows.

Mr Elliott

Mr Elliott gave evidence via his SIFC and orally at the hearing in summary as follows:
(a)On 27 November 2017 a lump-sum home building contract for $86,500 was entered into between Steelbase and Mr and Mrs Perry to build a granny flat (the contract) on the understanding that no deposit would be paid until the cost of complying with BALFZ was known and a variation to the contract for the cost was completed. If Mr Perry could not afford the variation for the compliance with BALFZ it was agreed the contract would end. The contract specified Jason Windows and no security screens were specified as they were not wanted by the owners.
(b)In December 2017 Mr Elliott started to investigate which products would comply with the BALFZ requirements and found very few products available. The ones he found included expensive shutters and one window manufacturer in Australia.
(c)The quote provided by Profire WA on 20 December 2017 was immediately discarded as it required BAL40 windows and doors, only quoted for half of the window and door openings required and was already too expensive: see document U in Mr Elliott's bundle.
(d)On 23 December 2017 he sent an email to Mr Davies at Structerre for his information attaching brochures from Crimsafe saying they meet the requirements of BALFZ: see document E in Mr Elliott's bundle.
(e)On or about 2 January 2018 Ms Lings at Structerre telephoned him advising that she would certify Crimsafe Security Screen.
(f)Subsequently, a variation to the contract was signed by the owners to install Crimsafe Security Screens and cladding to upgrade the ancillary dwelling to BALFZ: see document F in Mr Elliott's bundle.
(g)On 19 February 2018 lock-up stage was reached for the ancillary dwelling and plumbing and electrical were progressing.
(h)On 8 March 2018 he asked for and received a written quote from Paarhammer for BALFZ windows. These windows are made in Victoria and at the time were the only manufacturer of BALFZ residential windows in Australia which would comply with AS3959 and AS1530. The windows come with stainless steel mesh over the openable window and do not require Crimsafe Security Screens. The cost of $40,622 plus delivery, installation and insurance of approximately $12,000 made the ancillary dwelling financially unviable for the owner: see document W in Mr Elliott's bundle.
(i)On 13 April 2018 he received a letter from the City asking for evidence of compliance with the BALFZ requirements outlined in the letter. The letter noted that no information in the building permit was found regarding the chosen window/door systems. Mr Elliott states that the City should not have earlier issued a building permit if this was missing from the CDC.

Mr Schwanke

Mr Schwanke provided an expert report dated 20 April 2019. Mr Schwanke had previously provided a report for the City in related proceedings concerning the issue of a building order against Steelbase for the rectification of the windows and doors at the ancillary dwelling to the required BAL-FZ standard. Mr Elliott engaged Mr Schwanke in these proceedings to re-issue that same report.
Mr Schwanke explained in oral evidence that he had been engaged by the City to provide an expert opinion on two issues. Firstly, whether the ancillary dwelling complied with the approved plans and specifications, in particular the bushfire requirements. Secondly, if the ancillary dwelling did not comply, how best to resolve such noncompliance. Ultimately, the Tribunal proceedings in relation to the building order were resolved by Mr Elliott with Steelbase undertaking the work as suggested by Mr Schwanke. After completing the suggested work, Mr Schwanke issued a certificate of building compliance known as a Form BA18 and this was stamped 'approved' by the City on 31 May 2019: see Mr Elliott's further documents.
Mr Schwanke in his report quoted relevantly from the CDC as follows:
Windows and Doors: Crimsafe Security System tested to Flamezone in accordance with Test Report No: 31490700-RPT01-1 dated 19^th December 2014 to both openable and non-openable windows and doors. Windows and doors in accordance with the following-
f. BAL FZ
For windows:
…
Option 1: Standard windows can be used provided they are completely protected by bushfire shutters complying with AS3959:2009.
Option 2: Windows must meet the following:
1.The window system shall comply with AS1530.8.2 when tested from the outside or have an[d] [sic] FRL of at least -/30/-
…
(See page 6 of Mr Schwanke's report and page 94 of the Commissioner's bundle)
Mr Schwanke went on to note that the notation indicates Crimsafe Security System tested to flamezone in accordance with the test report referred to above (test report) will be provided. Mr Schwanke noted that the test report was produced by Exova Warringtonfire and is a product review report. Relevant to these proceedings, Mr Schwanke quoted the scope and limitations of the test report as follows:
The following scope of works was undertaken on the relevant construction provisions of AS3959-2009 amdt 3 Construction of buildings in bushfire prone areas, as they relate to the installation of Crimsafe Security Systems Security Screens.
…
•Based on comparative review, confirm where the systems may be suitably used in accordance with the relevant prescribed construction practices.
This review is an opinion to the extent that the subject system may satisfy the relevant prescribed construction practices in AS3959-2009 (amdt 3), and is not to be construed as endorsement or certification of compliance against these provisions.
Any technical service that is with respect to the determination of compliance with AS3959-2009 (amdt 3) is to be undertaken by an independent third party body, consistent with providing an efficient and robust fire protection products certification services for products.
(See page 7 of Mr Schwanke's report and page 231 of the Commissioner's bundle)

Of particular relevance to these proceedings, Mr Schwanke went on to comment as follows:
The provision of screens is only required when bushfire shutters are not being provided. The certified flame zone construction requirements indicate both openable and non-openable windows and doors will be provided with Crimsafe screens. This implies bushfire shutters were not going to be used to satisfy the bushfire requirements. This means the certified documents should have confirmed the requirements of Window Application 9 and Sliding Door Application 6 are being satisfied. The extract below is from the Energy Efficiency Report prepared by Structerre and certified by Structerre. It indicates the use of Jason windows and sliding doors.
…
The above information appears to indicate the use of standard Jason windows and sliding doors. This is in conflict with the bushfire requirements unless bushfire shutters are used. This should have been clarified by the building certifier prior to the certification being issued as constructing to the energy efficiency requirements will not satisfy the bushfire requirements.
(See page 9 of Mr Schwanke's report)
Mr Schwanke was asked in cross-examination, in reading a CDC which addresses a variety of compliance issues, where you should look for guidance as to bushfire compliance. Mr Schwanke answered that obviously you should look in the bushfire section of the CDC, however you must comply with both bushfire and energy efficiency requirements.

Mr Meikle

Mr Meikle provided an expert report in the form of a statement dated 2 May 2019. Mr Meikle provided the following background and opinion at paragraphs 716 of his report:
Towards the end of May 2018 I was asked to review a disciplinary complaint that had been made against a registered builder, Bernard Elliott.
The complaint related to whether Mr Elliott had failed to install a door and window system that complied with the requirements for a site rated as BAL-FZ.
BAL stands for bushfire attack level, and FZ is the highest BAL rating, corresponding to sites that have the greatest risk of being subject to a bushfire threat.
In this case, Mr Elliott had built ancillary accommodation on a site that was rated BAL-FZ. The certificate of design compliance (CDC) for this building work had been issued by Zemla Pty Ltd, a registered building surveying contractor.
A registered building surveying contractor that issues a CDC is required to declare that the work set out in the documents referenced in the CDC will comply with the applicable building standards, which means that the building surveying contractor has to ensure that sufficient information is included in those documents to show how that work will comply.
When I reviewed the disciplinary complaint against Mr Elliott, I had access to the complaint file and to electronic documents, including those referenced in the CDC.
I found that the CDC issued by Zemla referenced Crimsafe door and window screens, but not any particular manufacturer for the rest of the door and window system. However, the CDC had required a door and window system that complied with the requirements of BAL-FZ, and I therefore found that the CDC included sufficient information about the door and window system that should have been installed.
DOCUMENT 18, pp. 325328     Internal memorandum dated   31 May 2018
I was subsequently asked to review Mr Elliott's disciplinary complaint against Zemla, which alleged that Zemla had not included sufficient information in the CDC about the door and window system Mr Elliott was required to install in the ancillary accommodation.
I had access to the complaint file for Mr Elliott's complaint against Zemla, including electronic documents.
I again found that the CDC Zemla issued was sufficiently detailed about the door and window system needed to achieve a BAL-FZ rating and to have allowed Mr Elliott to source compliant products.
DOCUMENT 20, pp. 330332     Internal memorandum dated 6 February 2019
Mr Meikle gave oral evidence and was asked questions by the Tribunal as well as cross-examined by Mr Elliott. Mr Meikle explained that there is an option in completing a CDC to nominate a particular manufacturer, some building surveyors do and some do not. Mr Meikle stated that, in his view, the CDC was clear and Crimsafe Security Screens could be used if it was done in accordance with the relevant standard. In his first memorandum dated 31 May 2018, Mr Meikle concluded as follows:
The issued CDC required windows that have a -/30/- FRL which in conjunction with the Security Screens would provide for the required protection in Flame Zone.
It could be argued that the documentation should have clearly nominated the particular window to be used however the CDC as stands does require compliance and as such is correct.
Based on this it would be the responsibility of the Builder to ensure that the windows chosen met with the provisions as required in the approved documentation.
(See pages 325-328 of the Commissioner's bundle)
In his second memorandum dated 6 February 2019, Mr Meikle referred to the background and concluded as follows:
A complaint has been lodged by Mr Bernard Elliott against Zemla Pty Ltd regarding a Certificate of Design Compliance they issued for building works at 37 Bickley Circle Leeming.
You have advised that it is alleged that Zemla issued a CDC that did not contain sufficient information about the window and door system to be installed in ancillary accommodation within a BAL - Flame Zone area.
You also advised that this CDC has previously been reviewed under a complaint raised against Mr Elliott.
For brevit[y]'s sake I shall not repeat much of the review of the CDC which was undertaken in the previous review INV 160458/1.
…
In my opinion the fact that the sheet highlighted above makes clear reference to the need for the windows to achieve the required /30/ FRL means that the CDC in this regard contains the information a builder would require to then research what windows could be used that achieve this FRL.
(See pages 330-332 of the Commissioner's bundle)
It was put to Mr Meikle in cross-examination that the CDC was in conflict between the energy efficiency and bushfire requirements as Jason Windows do not come in the -/30/- FRL and Mr Meikle stated he was personally unaware whether Jason Windows could supply such windows. Mr Meikle reiterated his view that the energy efficiency and bushfire requirements referred to in a CDC needed to be read together and it was the responsibility of the builder to meet both requirements.
It was also put to Mr Meikle in cross-examination that a CDC should be clear and concise as to the building requirements. Mr Meikle explained that the CDC and its accompanying documentation could only go so far in detailing the requirements of the building work to be undertaken and that a CDC relied on referencing other documents and standards.

Consideration

The Tribunal finds that Mr Elliott was not a wholly reliable witness of fact and was at times in his evidence evasive, in particular when clarification was sought as to the advice he claims to have received from Zemla that Crimsafe Security Screens with Jason Windows (as he intended to install them) was satisfactory to meet the BALFZ requirements. This is because the Tribunal has formed the view that when Mr Elliott answered questions, perhaps understandably from his perspective, in his oral evidence he continually sought to minimise his own culpability and maximise the culpability of Zemla as to the circumstances that his client faced in 2018 concerning compliance issues for the ancillary dwelling.
The Tribunal finds that when consideration is given to the whole of the evidence, in particular the evidence of Mr Elliott, that it is reasonably open for the Tribunal to draw an inference or conclusion, because of Mr Perry's costing or viability issues as to whether to proceed with the ancillary dwelling, that Mr Elliott had a predetermined agenda or bias when interpreting the CDC. The Tribunal finds that this caused Mr Elliot to incorrectly conclude that the CDC approved the use of Jason Windows and the standard Crimsafe Security Screens he had chosen without having any further regard to the qualification advised to him by Ms Lings that it must be done in accordance with the requirements of the test report.
The Tribunal notes the number of quotes detailed above, in particular the one from Paarhammer which occurred months after the issue of the CDC, which indicate that Mr Elliott did understand and reconcile the energy efficiency and bushfire requirements in the CDC. Due to the possibility that any further findings by the Tribunal may prejudice or affect disciplinary proceedings that may, or may not, occur in relation to Mr Elliott, the Tribunal will not comment or make any further findings in this regard.
There was no dispute in the proceedings, and the Tribunal also finds, that Mr Meikle and Mr Schwanke were suitably qualified and experienced to provide their independent expert opinion in order to assist the Tribunal in determining these proceedings.
Relevant to the issue to be determined in these proceedings, in many respects the opinion of Mr Schwanke and Mr Meikle are similar. Mr Schwanke and Mr Meikle are both of the opinion that you must read the CDC as a whole and that you must comply with both the energy efficiency and bushfire requirements of the CDC. Mr Schwanke is of the opinion that those two requirements in the CDC issued by Zemla are in conflict. Mr Elliott is of the opinion it could be argued that the CDC should have clearly nominated the particular window to be used.
For the purposes of determining these proceedings the Tribunal has formed the view that deciding to prefer one expert over the other is not required. However, for the sake of completeness, to the extent that the opinions of Mr Schwanke and Mr Meikle may differ from one another, the Tribunal prefers the opinion of Mr Meikle. This is largely because Mr Meikle has approached the task of providing an expert opinion on the same legal basis as the Tribunal has to determine these proceedings. Whereas, Mr Schwanke provided his comments in the context of related factual proceedings regarding the building order and the current proceedings are entirely different on a legal basis. Put another way, the comment by Mr Schwanke that the CDC is in conflict with itself was not made in the context of consideration whether such conflict constituted a disciplinary matter under s 53 of the Registration Act, whereas the task of offering an opinion by Mr Meikle did proceed on that basis and is therefore a more logical and coherent opinion.
The Tribunal finds that Mr Elliott's first allegation, namely that the CDC does not comply with the relevant standards is completely and utterly absent a factual foundation. Mr Elliott was unable when questioned to point to any particular standards regarding which the CDC did not comply.
Ultimately, the Tribunal finds that Mr Elliott's case taken at its highest, for instance if the Tribunal wholly accepted the opinion of Mr Schwanke without the Tribunal's findings in relation to Mr Meikle, could in any event never amount to the level of seriousness required in order to make a finding to the Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) standard that a disciplinary matter arises under s 53(1)(e) of the Registration Act in that Zemla had been negligent or incompetent in connection with carrying out a building service. Nor for that matter any other disciplinary matters listed under s 53 of the Registration Act.
Whilst these proceedings involved a disciplinary complaint against Zemla, and not Ms Lings, the Tribunal notes that the allegations made by Mr Elliott concern not just the issue of the CDC by Zemla, but also the declaration in part 6 made by Ms Lings. The Tribunal considers it is worth noting in these reasons, for the sake of completeness and in an effort to bring a conclusion to this ongoing dispute, that the Tribunal has also formed the view that Mr Elliott's allegations could also never amount to the level of seriousness required in order to make a finding to the Briginshaw standard that any disciplinary matter arises under s 53 of the Registration Act in relation to Ms Lings.
Therefore, in accordance with these reasons the Tribunal ultimately finds that the decision of the Commissioner under s 16(3)(c) of the Act to refuse to accept the Zemla disciplinary complaint on the basis that it was without substance, in respect of which leave is sought by Mr Elliott, was not wrong or attended with sufficient doubt to justify the grant of leave. This finding by the Tribunal means that the Tribunal does not need to consider whether substantial injustice would be done by leaving the decision unreversed.

Costs

Both Zemla and the Commissioner indicated their intention to apply for costs should Mr Elliott not be granted leave, or is otherwise unsuccessful, in these proceedings. The Tribunal will include programming orders for those expected applications and, subject to further order, will determine any such costs applications on the documents.

Conclusion

Therefore, the Tribunal has determined in the exercise of its discretion pursuant to s 57(2) of the Act, not to grant leave to Mr Elliott to seek a review of the decision of the Building Commissioner to refuse to accept the Zemla disciplinary complaint.

Orders

Accordingly, the Tribunal orders as follows:
1.The application for leave is denied and the proceeding is hereby dismissed.
2.On or before 22 July 2019, either of the respondents may file with the Tribunal and provide to the applicant an application for any costs they may wish to claim which includes submissions and any evidence in support.
3.On or before 5 August 2019, the applicant may file with the Tribunal and provide to the respondents any responsive submissions concerning any costs application.
4.Subject to further order, the Tribunal will determine the costs applications entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS D QUINLAN, MEMBER

28 JUNE 2019

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ELLIOTT and ZEMLA PTY LTD [2019] WASAT 46 (S)
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   CC 238 of 2019
BETWEEN:   BERNARD ELLIOTT
Applicant
AND
ZEMLA PTY LTD
First Respondent
BUILDING COMMISSIONER
Second Respondent