ELLIOTT and ZEMLA PTY LTD - [2019] WASAT 46

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
Decision Date: 28 JUNE 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, Elliott and Zemla Pty Ltd brought a case against the Building Commissioner, seeking judicial review of the Commissioner's decision to refuse to accept a disciplinary complaint. The complaint was made by the plaintiff, a building surveying contractor, against the defendant, a building surveying practitioner. The complaint alleged professional misconduct by the defendant, including breaches of professional standards and alleged dishonest conduct. The Commissioner, after reviewing the complaint, decided that it lacked substance and was therefore not accepted for further disciplinary proceedings.

The central legal issue before the court was whether the Commissioner's decision to refuse the complaint was erroneous or, at the very least, sufficiently questionable to warrant granting leave for the applicant to seek judicial review. The plaintiff argued that the Commissioner's decision was flawed and that the complaint had merit, warranting further investigation. The court needed to determine whether the Commissioner's decision was subject to review and, if so, whether the grounds for review were established. The court considered whether the Commissioner exercised a discretion that was unreasonable or whether the decision was based on an error of law.

The court concluded that the Commissioner's decision was not subject to review as it was a discretionary decision based on the merits of the complaint, which was not a jurisdictional error. The court found that the Commissioner had considered the relevant factors and exercised the discretion reasonably. The court held that the decision was not erroneous or attended with sufficient doubt to justify leave for judicial review. Consequently, the application for judicial review was dismissed.

Orders