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…

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: [2019] WASAT 46 (S)
Decision Date: 28 JUNE 2019

CaseChat Overview and Summary

The case of Elliott and Zemla Pty Ltd involved a disciplinary complaint against a building surveying practitioner, who was employed by a building surveying contractor. The Building Commissioner initially refused to accept the complaint, stating it was without substance and did not warrant further investigation. The practitioner then sought leave to seek a review of the Commissioner's decision, arguing that the refusal was erroneous or at least questionable enough to warrant a review. The central legal issue before the court was whether the Commissioner's decision to refuse the complaint was incorrect or had enough uncertainty to justify granting leave for a review.

The court examined the relevant statutory provisions and the procedural requirements for seeking a review of the Building Commissioner's decisions. It was necessary to determine whether the complaint had enough substance to warrant a review or if the Commissioner's decision was within his or her discretion. The court considered the relevant case law and principles of administrative law, which guided the decision-making process. Ultimately, the court had to balance the interests of the practitioner and the public in ensuring that disciplinary complaints were handled appropriately and fairly.

In its judgment, the court found that the Building Commissioner's decision was not erroneous and did not create sufficient doubt to justify granting leave for a review. The court held that the Commissioner had the discretion to decide whether a complaint had enough substance to warrant further investigation and that the decision should not be interfered with unless there was a clear error or an abuse of discretion. The court emphasised the importance of upholding the Commissioner's authority in handling disciplinary complaints and maintaining public confidence in the building industry.

Consequently, the court dismissed the practitioner's application for leave to seek a review of the Commissioner's decision. The court ruled that the Commissioner's decision to refuse the complaint was correct and did not warrant further investigation. The practitioner was not granted leave to challenge the Commissioner's decision, and the complaint was ultimately dismissed.

Orders