| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : FILIMON and RIMMER [2013] WASAT 13 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 23 NOVEMBER 2012 DELIVERED : 30 JANUARY 2013 FILE NO/S : CC 1462 of 2012 BETWEEN : IOAN FILIMON ELIZA FILIMON
Applicants
AND
MICHAEL RIMMER
BELINDA RIMMER
Respondents
Catchwords: Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to apply for internal review under s 58(2) Criteria on application for leave - Whether original Tribunal erred in rejecting defence that firstnamed respondent is not responsible for building work - Effect of s 37 of Interpretation Act 1984 (WA) Whether estoppel operates Whether reasons for decision inadequate Whether original Tribunal erred in assessment of cost of remedial work Whether respondents would suffer substantial injustice if leave were not to be granted
(Page 2)
Legislation: Builders Registration Act 1939 (WA), s 4A(c)(ii), s 12A, s 41, s 41(2)
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(3), s 11(d), s 58(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)
Building Services (Registration) Act 2011 (WA), s 107
Interpretation Act 1984 (WA), s 37, s 37(1), s 37(2)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Appeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 11, s 27, s 32, s 118(1) Result: Application for leave granted limited to one ground and otherwise dismissed
Summary of Tribunal's decision: The applicants applied, under s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), for leave for an internal review to be conducted in respect of a decision that they pay the costs of remedying defective building work.
Two grounds of review were advanced. The first ground was that the first-named applicant was not a builder who could not be held responsible for the building work. The second ground was that the Tribunal had erred in its assessment of the remedial costs.
The Tribunal found that the original Tribunal had erred in failing to provide adequate reasons for its decision that it was an abuse of process for the first-named applicant to contend that he was not responsible for the building work. Further, that the original Tribunal had erred because, in circumstances where there was no contractual relationship between the parties, a building services complaint could only be made against an approved owner-builder unless a right had accrued to bring a claim against any person who carried out building work under the Builders Registration Act 1939 (WA) prior to its repeal. The Tribunal found that, on the material before it, no such right had accrued but there remained potential for it to be established that the basis on which a claim under the repealed legislation had been withdrawn might support the existence of an accrued right to claim against the first-named applicant. This had not been canvassed before the original Tribunal and there was no discernible basis to support its conclusion that it was an abuse of process for the first-named
(Page 3)
applicant to advance this defence. Further, as the defence affected the entire liability of the first-named applicant, a substantial injustice would result if leave to review were not granted in relation to this aspect of the matter.
The Tribunal referred to the nature of the evidence before the original Tribunal in relation to the assessment of remedial costs and concluded that no error had been demonstrated in relation to the decision. Leave in respect of this aspect of the matter was therefore refused.
The Tribunal discussed comprehensively the criteria to be applied in respect of an application for leave to conduct an internal review, with particular reference to the regime which applied when decisions of the former Building Disputes Tribunal were subject to appeal to the District Court of Western Australia, and having regard to the objects of the Tribunal. The Tribunal concluded that there was a need to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted and that it would be inconsistent with the Tribunal's objectives to grant leave simply because a ground of review is arguable and, therefore, some doubt about the correctness of the decision is established, although what would be a sufficient doubt to justify leave will depend on each case.
Category: B
Representation: Counsel:
Applicants : Self-represented
Respondents : Self-represented
Solicitors:
Applicants : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Barminco Investments Pty Ltd & Anor v O'Brien [2006] WASCA 88
Boyce v Hughes (1970) 72 SR (NSW) 54
Builders' Registration Board of Western Australia v Roroka Pty Ltd (unreported, Supreme Court, WA, Library No 8776, 25 March 1991 BC 9101203)
(Page 4)
Carey Re; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219
Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223
Content Living and Roberts [2012] WASAT 194
Dorney & Anor and Ausgan Pty Ltd & Ors Complaint No 7486, (unreported, Building Disputes Committee, 11 November 1996)
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Garrett v Nicholson (1999) 21 WAR 226
Legal Practitioners Complaints Committee and Segler [2009] WASAT 205
Mathieson v Burton (1971) 124 CRL 1
Pettit v Dunkley [1971] 1 NSWLR 376
Port of Melbourne Authority and Anshun Proprietary Limited (1981) 147 CLR 589
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Resort Management Services Limited v Noosa Shire Council [1997] 2 Qd R 291
Riley v The State of Western Australia [2005] WASCA 190
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45
Well Holdings Pty Ltd v Agostino [2001] WADC 174
West Australian Trustees Ltd v Poon (1991) 6 WAR 72
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
(Page 5)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 There is a long history of disputation between the parties. The disputes all concern alleged faulty or unsatisfactory workmanship in the construction of a residential dwelling at No 37 Portchester Drive, Darch, a suburb of Perth in Western Australia. 2 The respondents are the current owners of the property and purchased it from the firstnamed applicant. The applicants and the respondents, either together or singularly, will hereafter be referred to as Mr and Mrs Filimon and Mr and Mrs Rimmer, respectively. 3 The Tribunal which delivered the decision the subject of the current proposed review proceeding was constituted by Mr T Carey, a fulltime member, and Mr R Machell, a sessional member (original Tribunal). The original Tribunal delivered its decision on 27 August 2012 and ordered that Mr and Mrs Filimon pay Mr and Mrs Rimmer an amount of $6,677, being the cost of necessary remedial works for which they held Mr and Mrs Filimon responsible. Mr and Mrs Filimon seek leave to review that decision on essentially two grounds. Firstly, that Mr Filimon was not the builder responsible for the building work and, secondly, that the original Tribunal erred in its assessment of the remedial costs. 4 The original Tribunal gave a decision against both Mr and Mrs Filimon on the basis that it would be an abuse of process for Mr Filimon to be able to raise a defence that he was not one of the persons who carried out the building work in the construction of the dwelling. It had never been in dispute that Mrs Filimon was responsible for the building work as she was the person in whose name an ownerbuilder's licence was issued and, indeed, Mr and Mrs Filimon insisted that it was only Mrs Filimon who had carried out the building work. Accordingly, having made the abuse of process determination concerning Mr Filimon, the original Tribunal simply proceeded to deal with the faulty or unsatisfactory workmanship claims. 5 The complaint which resulted in the proceedings the subject of the proposed review was originally made to the Building Commissioner and then referred to the original Tribunal for determination pursuant to s 11(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). The application for review was made under s 58(2) of the BS(CRA) Act. (Page 6)
6 There has been no previous decision in which there has been a detailed consideration of the principles to be applied in deciding whether or not to grant leave. There has been no more than a broad reference to the requirements that it be shown that the decision of the original Tribunal was wrong or attended with sufficient doubt, such that if leave were not to be granted, a substantial injustice would result based on the principles set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 (Tangent). Tangent dealt with the grant of leave to review a decision of the Building Disputes Tribunal under an earlier regime for the resolution of building disputes. The BS(CRA) Act established a new regime, the operative provisions of which commenced on 29 August 2011. 7 Subject therefore to specific consideration of the criteria for leave under the new regime, the principal issues to be determined are as reflected in the grounds of the application, simply, whether the original Tribunal erred in rejecting Mr and Mrs Filimon's attempts to advance a defence, at least in relation to Mr Filimon, that he was not a person who can be held responsible for the building of the dwelling and whether the original Tribunal erred in its assessment of the remedial costs awarded. 8 In applying the criteria for the grant or refusal of leave to review and the circumstances which may constitute an abuse of process, the Tribunal will therefore need to give consideration to the following issues. 1) Is Mr Filimon a person who can be held responsible, under the applicable legislation, for the building works? 2) If so, can an estoppel operate to preclude Mr and Mrs Filimon raising a partial defence that Mr Filimon is not liable in respect of the defective work, such that it would be an abuse of process to do so? 9 Before addressing these particular issues, it is therefore necessary to discuss the criteria for the grant or refusal of leave and the circumstances which may constitute an abuse of process.
The applicable criteria on application for leave to review 10 In Content Living and Roberts [2012] WASAT 194, the Tribunal stated, in relation to the criteria for the grant of leave under s 58(2) of the BS(CRA) Act, that in order to obtain leave to review, it is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt, such that if leave were not to be granted, (Page 7)
the applicant would suffer a substantial injustice. Further, that those criteria were based on the principles set out in Tangent, which also reflect that the review Tribunal has a broad discretion to have regard to other features which might require consideration on review in order to avoid a substantial injustice. 11 In Tangent, the Tribunal was dealing with an application for leave to review under s 41 of the Builders Registration Act 1939 (WA) (BR Act). The Tribunal was conferred jurisdiction to review decisions of the former Building Disputes Tribunal by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), which amended s 41 of the BR Act. Prior to that conferral, an appeal lay from the Building Disputes Tribunal to the District Court of Western Australia. Consequently, in its consideration of the criteria for review, the Tribunal had regard to a number of decisions of the District Court and Supreme Court of Western Australia. One of the decisions referred to was Wing Luck Foods v Lay Choo Lim [1989] WAR 358 (Wing Luck) where, at 361, the Full Court stated as follows: … It will not normally be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown. It may well be that in some cases it will be sufficient to show that there is a significant question of law to be considered. In others it may be possible to point to some other feature which requires the consideration of this Court to avoid a substantial injustice if leave is not granted. 12 Reference was also made to Well Holdings Pty Ltd v Agostino [2001] WADC 174 (Agostino). In that case, Judge Jackson of the District Court stated, at [8], with reference to a decision of the Building Disputes Committee, as the Building Disputes Tribunal was then known: … In my view, taking a broad view of all of the material before the Committee, the District Court should be slow to grant leave to appeal or to allow appeals except in cases where clearly there is no discernible basis for the decision of the Committee or, for example, where fundamental rules of natural justice have been breached by preventing a party adequately being heard. 13 The Court referred to criticisms that the Building Disputes Committee had failed to make proper findings, and had failed to explain in its decision the link between its ultimate conclusion and the evidence put forward. (Page 8)
14 The Court referred to the way in which the Building Disputes Committee was constituted so as to include a legal practitioner, a consumer representative and a builder representative, which provides an expertise upon which the Building Disputes Committee was expected to act. The Court noted the statutory obligations which required that the Building Disputes Committee act according to equity, good conscience and the substantial merits of the case and without regard to technicalities or legal forms, and shall not be bound by the rules of evidence but may inform itself in any matter and in such manner as it thinks fit. 15 The Court went on to further observe that it did not matter that evidence might, on close examination, have been qualified to any degree or even, if it was the case, that the weight of evidence was to the contrary because the Building Disputes Committee had its own expertise to assess the evidence. 16 Those statements are apposite to the proceedings before the original Tribunal because the State Administrative Tribunal Act 2004 (WA) (SAT Act) has similar provisions to those which applied to the Building Disputes Committee/Building Disputes Tribunal. Section 9 of the SAT Act sets out the Tribunal's objectives which include acting speedily and with as little formality and technicality as is practicable to minimise costs to the parties, to decide matters according to the substantial merits of the case, and to make appropriate use of knowledge and experience of Tribunal members. The Tribunal membership includes members appointed on a sessional basis (s 118(1) of the SAT Act) and it is apparent from s 11 of the SAT Act that sessional members must include persons who have extensive or special experience in particular vocations and, in practice, that is the case. The Tribunal's sessional membership includes persons with a range and wealth of experience in almost every area of the Tribunal's very extensive jurisdiction. In the building area, they include architects, engineers, quantity surveyors, building surveyors and builders. The original Tribunal included a sessional builder member, Mr Machell. 17 Section 32 of the SAT Act contains provisions to the effect that the Tribunal is not bound by the rules of evidence, must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, and may inform itself on any matter as it sees fit. Further, that to the extent that the practice or procedure of the Tribunal is not prescribed by or under the SAT Act or the applicable enabling Act, it is to be as the Tribunal determines. (Page 9)
18 The Tribunal may grant leave in respect of only some and not other grounds: Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45. If leave is granted, the hearing is a hearing de novo (s 27 of the SAT Act). Consequently, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted. It is inconsistent with the Tribunal's objects to contemplate the grant of leave simply because a ground of review is arguable and therefore some doubt about the correctness of the decision proposed to be reviewed is established. What will be a sufficient doubt to justify leave will depend on each case. 19 It should also be noted that in Carey Re; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 at [77], Martin CJ held that the reasons of the Tribunal are not properly or fairly to be read 'minutely and finely with an eye keenly attuned to the perception of error': see the authorities collected by his Honour at [77].
Conduct which might constitute an abuse of process 20 There are circumstances in which subsequent proceedings or a defence raised in subsequent proceedings may constitute an abuse because it constitutes an attempt to relitigate an issue already determined by a court, or tribunal: see the discussion in Civil Procedure Western Australia by Kendall and Curthoys, LexisNexis, Butterworths, Australia 1990 at paragraph 20.19.16.A. In those circumstances, a party will not be permitted to relitigate the issue. 21 Similarly, Port of Melbourne Authority and Anshun Proprietary Limited (1981) 147 CLR 589 (Anshun) establishes that where a matter sought to be raised in a subsequent proceeding is so closely connected to the subject matter of the earlier proceeding that it was to be expected that it would be relied upon as a defence to that claim, an estoppel will operate to prevent the matter being raised. While the Court was unanimous in dismissing the appeal, the reasons for doing so vary. However, a majority consisting of Gibbs CJ, Mason J and Aickin J distinguished this situation from 'a case of issue estoppel in the strict sense' at 597. Their Honours referred to a number of decisions in which the Court had characterised as an abuse of process an attempt to relitigate such a matter. Their Honours commented in this context that, even then, the abuse of process test is not one of great utility and consequently, they preferred to find an estoppel on the basis that the matter relied upon was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it. By contrast, Murphy J expressly found that to preserve the orderly (Page 10)
administration of justice, the earlier judgment should be treated as conclusive and an attempt to raise a matter which was plainly open to be agitated in the earlier litigation is to be properly characterised as an abuse of process.
Is Mr Filimon a person who can be held responsible for the building work? 22 It is necessary to set out some factual background. The facts as set out are not controversial and, save where the context indicates to the contrary, are taken from the record of previous proceedings. 23 On 10 January 2010, the Building Disputes Tribunal determined a complaint which had been lodged by Mr and Mrs Rimmer against Mr and Mrs Filimon under s 12A of the BR Act. On that day, an order was issued requiring Mr and Mrs Filimon to pay to Mr and Mrs Rimmer various amounts covering the cost of remedial work relating to the dwelling at No 37 Portchester Drive, Darch. On 27 January 2011, the Building Disputes Tribunal published its written reasons for decision. Paragraphs 9 to 12 of that decision reflect the following: 9. The Filimons built the house the subject of the complaint in or about 2005/2006. The house was purchased from them by the owners on 22 August 2008. 10. Mr Filimon's stance prior to the hearing and at the hearing is possibly best illustrated by the letter forwarded to the Tribunal on 3 August 2010, which appears in the Book of Documents at Folio 83. 11. Mr and Mrs Filimon's position was that the owners had bought the house as a second-hand house. The condition of the house was perfect at the time of settlement. Because they had an inspector inspect the house, any complaints that they have (presumably those complaints the subject of this claim) ought to have been directed to the Filimon's before settlement. [It is] stated in that document: Everything was visible at the time they bought the house, but they did not complain about anything, as they were happy about everything. If there are things that their [sic] not happy with the house they should sell it or fix it themself [sic]. 12. At the hearing, Mr Filimon, giving evidence on behalf of himself and his wife, again expressed in very clear terms that they maintained that position. Despite attempts by both the Builder Member and the Consumer Member, following comments from the Deputy Chair, with regard to an owner-builder's responsibility under the BR Act, Mr Filimon failed to seem to understand that as an owner-builder, he retained liability for faulty (Page 11)
or unsatisfactory work under that Act, despite the fact that the house had been unsold. 24 The letter referred to dated 3 August 2010 was included in the hearing book which was before the original Tribunal in these proceedings. The second paragraph of that letter states: That house was not built specifically for them as I was not their builder. We built it for the family as owner-builder to suite [sic] our desire. 25 The letter ends with a single signature opposite the typed names 'Eliza and Julian Filimon'. A comparison of the signatures of both Mr and Mrs Filimon on the application for leave to review compared to the signature on this document suggests that the signature is that of Mr Filimon. 26 Under s 12A of the BR Act, the Building Disputes Tribunal had power to make an order on a complaint being made to it by any person against the person who carried out the building work. 27 The complaint form reflects that the complaint was made against both Mr and Mrs Filimon. The matter proceeded on that basis. A directions hearing was conducted on 6 August 2010 as a result of which orders were issued on 9 August 2010, which were addressed to all parties including Mr and Mrs Filimon. Order 1 of the directions appears to have recorded for the purposes of clarification or certainty that the respondent was 'Eliza Filimon and Julian (aka Ioan) Filimon'. No objection or any issue was raised by either Mr or Mrs Filimon concerning the proper citation of the respondent. It is clear that the Building Disputes Tribunal relied on the letter dated 3 August 2010 as evidence that the building work had been carried out by both Mr and Mrs Filimon. 28 Mr and Mrs Filimon applied to the State Administrative Tribunal to review the decision of the Building Disputes Tribunal under s 41(2) of the BR Act. The application for review was heard on 18 February 2011 and was dismissed on the basis that no error on the part of the Building Disputes Tribunal was demonstrated. To the extent that the review Tribunal understood that Mr Filimon was now seeking to introduce new evidence, the Tribunal concluded that such evidence should not be admitted as it was available to be used before the Building Disputes Tribunal. (Page 12)
29 The order made by the Building Disputes Tribunal on 10 November 2010 reflected that certain items of claim had been withdrawn. One such claim was item 5. The complaint was expressed as 'there are cracked and flaking ceiling joints in the garage'. The inspector observed that there was a 2 millimetre long by 20 millimetre wide crack to the ceiling. The inspector noted that he could not determine if the crack in the ceiling was the result of poor joint preparation, lack of back blocking or water damage. The inspector characterised the crack to the ceiling as being faulty or unsatisfactory work. That complaint was renewed in the proceedings now sought to be reviewed. The Tribunal was informed that the claim was withdrawn because the ceiling had suffered water damage during a heavy storm and that an insurance claim had been lodged, and later investigated by a building consultant for the insurer. It appears that water ingress was caused by a metal valley flashing upstand being crimped and flattened. Investigation by the building consultant established that the cracking to the ceiling was due to inadequate back blocking. A further inspection by the Building Commission inspector supported that claim. 30 The claims raised in the proceedings now sought to be reviewed will be referred to as the current complaint or individually as a current item of complaint. 31 The current complaint form was lodged on 13 October 2011 under s 5 of the BS(CRA) Act. 32 The following provisions of the BS(CRA) Act are relevant: Part 2 Complaints and conciliation Division 1 Complaints about the carrying out of regulated building services or home building work contract matters 5. Making a complaint about a building service or home building work contract matter (Page 13)
(3) A complaint may be made … 33 Section 3 of the BS(CRA) Act contains the following relevant definitions: … building service means any of the following (a) building work (as defined in the Building Act 2011 section 3); … home building work contract has the meaning given in the Home Building Contracts Act 1991 section 3(1); … regulated building service means any of the following (a) a building service carried out by a registered building service provider or an approved ownerbuilder; (b) home building work that is (c) any other service or work prescribed for the purposes of this definition; (Page 14)
34 As already mentioned, the BS(CRA) Act came into operation on 29 August 2011 (Government Gazette 26 August 2011 p 3475). 35 Section 3 of the Building Act 2011 (WA) defines 'building work' relevantly as follows: 36 Section 107 of the Building Services (Registration) Act 2011 (WA) (BS(R) Act) also came into operation on 29 August 2011 (Government Gazette 26 August 2011 p 3475-3476) and provided that the BR Act is repealed. 37 It is common cause that an owner-builder's licence was issued in the name of Mrs Filimon. On the face of it, the complaint is one which therefore comes within s 5(1) of the BS(CRA) Act, read with the definition of 'regulated building service' in paragraph (a). That, however, does not authorise a complaint against Mr Filimon. 38 Prior to the repeal of the BR Act, the Building Disputes Tribunal was empowered to make an order against any person who carried out building work. Whether a person was a licensed owner-builder or not was effectively irrelevant. The inquiry was simply into who carried out the building work. That involves determining who was responsible for the building work in the sense of managing and supervising the day-to-day building operation: see Builders' Registration Board of Western Australia v Roroka Pty Ltd (unreported, Supreme Court, WA, Library No 8776, 25 March 1991 BC 9101203) (Roroka). The building was constructed in 2006 (evidence of Mr Filimon T:10; 27.08.12). Mr and Mrs Rimmer had made a previous complaint to the Building Disputes Tribunal in relation to defective work, including a complaint about the garage ceilings, which was withdrawn and then renewed in the current proceedings. This raises the question of what the effect is of the repeal of the BR Act, having regard to s 37 of the Interpretation Act 1984 (WA) (Interpretation Act), which states as follows: (Page 15)
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; (d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal; (e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment; (f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made. (2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals. 39 The point for consideration is whether Mr and Mrs Rimmer had acquired any right which accrued or was exercisable prior to 29 August 2011 in respect of the current claims. If they had, the effect of s 37 of the Interpretation Act is to preserve that right unless a contrary intention can be gleaned from the repealing legislation. 40 The relevant provisions of s 12A of the BR Act as it stood prior to the repeal are as follows: (Page 16)
12A. Order to remedy unsatisfactory building work (1) Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to … (1aa) The Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of 6 years from the time when the building work was completed; and for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner. (1b) The provisions of subsections (1) and (1a) apply to and in relation to building work carried out by any person, whether a builder or not, and whether registered under this Act or not. (1c) Nothing in section 4(1)(A) precludes a person who is not registered as a builder under this Act from carrying out an order of the Disputes Tribunal made pursuant to subsection (1)(a) or (1a)(a). (2) A complaint under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3). (Page 17)
(3) A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending complainant complains and calling on the other party to (3a) A copy of the preliminary notice is to be given to the Disputes Tribunal at the time a complaint is made under subsection (1) or (1a). 41 In Barminco Investments Pty Ltd & Anor v O'Brien [2006] WASCA 88 (Barminco), Steytler P referred to and set out propositions from a number of authorities. At [20], his Honour stated: First, it seems from the cases that a statutory right available to the public at large is unlikely to be regarded as an accrued right for the purposes of a provision such as s 37(1) [of the Interpretation Act 1984 (WA)] unless the person asserting the right has taken appropriate steps, or some event has happened, to enable him or her to take advantage of the right by the date of the repeal[.] His Honour referred as an authority for this proposition to Resort Management Services Limited v Noosa Shire Council [1997] 2 Qd R 291 at 303 [45] (Resort Management). 42 The passage above, with respect to his Honour, does not accurately set out the proposition for which Resort Management stands as authority. What was actually stated by Fryberg J was: In my view, the reference made by the Judicial Committee to an 'act done by an individual towards availing himself of that right' was intended as an example of a way in which a general right might be converted into a specific right in the sense referred to by Atkin L.J. It is one of the criteria, but not an essential one, which are used to identify those cases in which it would not be just to deprive a person of his or her expectations under a repealed statute. This was the point made by Sugerman P., with whom Holmes J.A. agreed, in Boyce v. Hughes [(1970) 72 SR (NSW) 54 at 57]: It is not, however, essential in my opinion, although it commonly happens, that the acquisition or accrual of the specific right should occur by virtue of some act done on the part of the individual who acquires it or to whom it accrues. The right may be acquired or accrue by reason of the happening of an event specified by the statute which is independent of the act of the individual concerned. (emphasis added) (Page 18)
A similar view was expressed by Asprey J.A., and the reasons of Sugerman P. were approved by a majority of the High Court in Mathieson v. Burton [(1971) 124 CLR 1]. 43 Steytler P then continued, loc sit, at [20]: As the Privy Council pointed out in Abbott at 431, it is common for repealing statutes to save all rights accrued and, if it were held that the effect of this was to leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far reaching. DC Pearce and RS Geddes Statutory Interpretation in Australia (fifth ed) 2001 point out at [6.8] that the repeal of any act must affect 'rights' in the general sense as the law will henceforth be different from what it was and, if the Interpretation Act section was to preserve those 'rights', the effect of the repeal would be rendered nugatory … Further, at [21], his Honour stated: Similarly, in Hamilton Gell v White [1922] 2 KB 422 at 431, Atkin LJ, in a passage cited with approval by Gibbs J in Mathieson at 23, set out section 38(2)(c) of the Interpretation Act 1889 (UK) (which provided that, 'where … any Act … repeals any other enactment … the repeal shall not affect any right … acquired … under any enactment so repealed') that it was obvious that the provision was not intended to preserve 'abstract rights' and that it only applied to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. 44 It will be noted that his Honour, in the passage immediately above, noted the requirement referred to by Fryberg J in Resort Management, as expressed by Sugerman P, with whom Holmes JA agreed, in Boyce v Hughes(1970) 72 SR (NSW) 54 (Boyce) above, that the specific right may arise from the happening of an event specified by the statute. 45 It is necessary, therefore, to consider whether s 12A of the BR Act bestows a statutory right on a person in the sense referred to above. On an initial reading, it may be thought to do no more than to give jurisdiction to the Building Disputes Tribunal to make orders of the type described. However, as Dixon J stated in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165 166 of such a provision that: … It must be taken to perform a double function, namely[,] to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority … (Page 19)
46 This authority was referred to in Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223 as an illustration of how the substantive law may be secreted in the interstices of procedure. 47 In my view, the BR Act operates in this way and accordingly creates a statutory right to make a claim where a person has carried out building work in a faulty or unsatisfactory manner, but even so, as discussed above, the statutory right granted is unlikely to be regarded as an accrued right for the purposes of s 37(1) of the Interpretation Act unless the person asserting the right has taken appropriate steps, or some event specified by the legislation has happened, to enable him or her to take advantage of the right by the date of the repeal. 48 As will be seen from the scheme of s 12A of the BR Act, a preliminary notice must be given before a complaint is made to the Building Disputes Tribunal and a copy is to be given to the Building Disputes Tribunal at the time the complaint is made. 49 In this instance, a notice of proposed complaint was filed with the complaint form. The notice was given in the form prescribed under the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA). It included proof of service reflecting that service had been effected on 21 September 2011 (subsequent to the BS(CRA) Act coming into force). 50 Obviously, in these circumstances, Mr and Mrs Rimmer are not able to contend that their right to claim against Mr Filimon is preserved by the giving of notice on 21 September 2011 because the BR Act was repealed prior to that date. The only possible argument that might still remain will depend upon the circumstances in which the earlier claim relating to the garage ceiling was withdrawn in the Building Disputes Tribunal proceeding. Conceivably, the giving of the preliminary notice in respect of that claim might remain sufficient to give Mr and Mrs Rimmer an accrued right, protected by s 37 of the Interpretation Act, but that may depend on what was communicated at the time of the withdrawal. For the purposes of this leave application, there is at least doubt about whether Mr and Mrs Rimmer had any accrued right prior to the repeal on 29 August 2011, at least on this ground of having taken appropriate steps. (Page 20)
51 It remains therefore to consider whether a right may have accrued on the second basis, namely, that an event has occurred as specified by the statute which is independent of the act of the individual concerned. As discussed above, the BR Act does not expressly grant any substantive right, although it obviously does so. Once faulty or unsatisfactory work has been carried out, there is a 'right' (although not necessarily an accrued right) to make a complaint against the person who carried out the building work. There is, however, nothing in the BR Act which expressly states this. The ordinary meaning of 'specify' is to mention or name specifically or definitely, or to state in detail: see the discussion in West Australian Trustees Ltd v Poon (1991) 6 WAR 72 (F.C.). The BR Act does not detail any 'event'. This conclusion is supported by a consideration of the type of cases in which it was recognised that the statute specified an event independent of the act of the individual concerned, sufficient to conclude that a right had been acquired or accrued. Boyce and Mathieson v Burton (1971) 124 CRL 1 were both cases where amendments to legislation specifically granted rights to remain in possession of premises to particular persons on the decease of the lessee. Resort Management was a case in which local government legislation expressly provided that a person with an interest or estate in the land which was injuriously affected by an amendment to a town planning scheme would be entitled to compensation. In these cases, there was a specified event, namely, respectively, the death of the lessee, or an amendment to a town planning scheme causing injurious affection, which, on their happening, resulted in particular rights accruing. 52 It follows that Mr Filimon would not be a person who could be held responsible for the building work on the basis of any event occurring as specified in the BR Act. 53 No conclusive view can be formed about whether Mr Filimon could be held liable for such building work on the basis that appropriate steps had been taken by Mr and Mrs Rimmer to take advantage of their right to claim, because that will depend on a detailed examination of the circumstances in which the claim before the Building Disputes Tribunal in respect of the garage ceiling was withdrawn. 54 Assuming that any potential accrued right exists, s 37 of the Interpretation Act would preserve it, only if no contrary intention appears. 55 Section 5(3) of the BS(CRA) Act enables a complaint to be made under s 5, irrespective of whether the regulated building service was carried out before or after the coming into operation of that Act. (Page 21)
There is, however, nothing inconsistent in that provision, because the complaint might be one which is entirely within the ambit of s 5(1) of the BS(CRA) Act on its proper construction within the present scheme. There would therefore be no detriment to a complainant making a complaint in respect of faulty or unsatisfactory work which gives right to an accrued claim in one or other of the ways discussed above. There is no inconsistency in allowing a claim to be pursued in respect of a right which accrued under the BR Act which is no longer available under the BS(CRA) Act. The claim in this case is one example. Another is the right to obtain an order against the ownerhandyman who carried out defective building work and subsequently onsold the property in circumstances in which no building permit is required. 56 Having regard to the provisions of s 37(2) of the Interpretation Act, very clear words will be required to oust the operation of s 37(1) of that Act, because even the inclusion of an express savings provision will not prejudice the operation of the savings in s 37(1) of the Interpretation Act: Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 at [28].
Does an estoppel operate to prevent Mr and Mrs Filimon from asserting that Mr Filimon is not a person who carried out the faulty or unsatisfactory building work? 57 This question may fall away, depending upon the circumstances in which the garage ceiling claim was withdrawn. It remains, however, necessary to consider the question, on the possibility that Mr and Mrs Rimmer's rights in respect of the garage ceiling claim were, and remain, accrued upon the giving of a preliminary notice prior to the commencement of the Building Disputes Tribunal proceeding. 58 The circumstances in which the Building Disputes Tribunal originally found that Mr and Mrs Filimon were liable in respect of various complaint items which were then before it has been explained above. There was never any issue raised that Mr Filimon was not the person who carried out the building work. Mr and Mrs Filimon defended the complaint on the narrow basis that they had constructed the dwelling for themselves and that Mr and Mrs Rimmer had an opportunity to inspect it at the time of purchase, and any claim should have been made prior to settlement of the property. It is apparent that the members of the Building Disputes Tribunal had considerable difficulty in attempting to convey to Mr Filimon the responsibilities of an ownerbuilder. (Page 22)
59 It is evident from the reasons for decision on the application for leave to review the Building Disputes Tribunal dated 18 February 2011 that Mr Filimon attempted for the first time to introduce evidence that he was not the ownerbuilder and that the owner-builder licence was issued to Mrs Filimon only. The Tribunal dismissed the application for leave and there has been no attempt to appeal that decision. The Tribunal concluded, it appears quite rightly, that Mr Filimon accepted that he was an ownerbuilder before the Building Disputes Tribunal. The case was conducted on that basis and in reliance on the letter dated 3 August 2010 in which Mr and Mrs Filimon referred to their having built the dwelling for their family as ownerbuilder. 60 In the current proceeding, Mr and Mrs Filimon raised that Mr Filimon was not the builder. The Tribunal issued directions on 13 July 2012 which, amongst other things, required Mr and Mrs Filimon to file and serve a statement of their position on all issues, including the question of who were the correct respondents in the original Tribunal decision. 61 The response filed is filed only on behalf of Mr Filimon and is expressed in the first person. An earlier submission filed prior to the above directions order is expressed in the same manner. In the earlier response, Mr Filimon stated that he was the owner of the property, not the builder. He supplied a copy of the contract for the sale of land between himself and Mr and Mrs Rimmer to support that claim. He also attached a building licence in the name of 'EC Filimon', who is understood to be Mrs Filimon. It is clear from the written submissions in the current proceedings filed by Mr Filimon and the transcript of the evidence before the original Tribunal that Mr Filimon based his defence that he could not be held liable as builder solely on the fact that the building licence had been issued in the name of Mrs Filimon. There was some attempt to modify this during the hearing, to which further reference will be made. 62 The directions issued on 13 July 2012 also required that the parties file with the Tribunal and provide to the other party all documents on which they wished to rely at the final hearing. Having regard to the history of previous adverse decisions, it is surprising that Mr Filimon based his case primarily on establishing that the building licence had been issued to his wife. The issue of the building licence is certainly a material factor to be taken into account but, ultimately, the inquiry must be into who actually did the building work. In Dorney & Anor and Ausgan Pty Ltd & Ors Complaint No 7486, (unreported, Building Disputes Committee, 11 November 1996), Deputy Chairman Aitken, as he then (Page 23)
was, referred to Roroka and noted that Owen J referred to the evidence of an inspector from the Builders Registration Board at the hearing before the Magistrate in which the inspection described the matters which are attended to as part of the normal function of a builder as being (in that context) to arrange for the signing of the contract, to arrange for the initial set out of the building and supervise that set out, to arrange for the supervision of the subtrades on the building site, to arrange for the quality and quantity of material deliveries, to supervise placement of materials, to supervise the workmanship and the placing of those materials, and to hire and fire labour. 63 If Mrs Filimon was the person who carried out the activities just mentioned, to the extent relevant, it is surprising that documentary evidence showing the ordering of materials, the account to which the costs were debited and any written communications or records relating to the payment of trades were not made available. 64 When the Presiding Member of the original Tribunal invited Mr Filimon to explain why he contended he was not the builder, he reverted to the simple argument that he was not on the licence (T:59; 27.08.12). Mrs Filimon then interjected that she had employed Mr Filimon to work. Then followed a bald assertion about how Mrs Filimon had made all decisions and that Mr and Mrs Filimon had a video recording of every stage of the house as it was built, in which Mrs Filimon had commented on what was wrong and who was coming next (T:59; 27.08.12). It was also stated that Mrs Filimon had engaged the trades. 65 It was a matter entirely within the power of Mr and Mrs Rimmer to put documentary evidence of these matters before the original Tribunal, yet they did not do so. 66 Mr Filimon's submissions disclose that during 2003, he had constructed a house as an ownerbuilder to explain that he could not have been the builder of the subject dwelling because of the restriction on the issue of a building permit to an ownerbuilder within six years of the earlier grant of such a permit or building licence (see s 4A(c)(ii) of the BR Act). One can readily understand why, in those circumstances, Mrs Filimon came to be the person who applied for an ownerbuilder's licence, but it begs the question as to who actually carried out the building work. The interjection from Mrs Filimon that she employed Mr Filimon raises further doubt about where a full inquiry on all available evidence might have led. (Page 24)
67 In any event, during the course of the hearing before the original Tribunal, the Presiding Member raised the possibility that the BR Act might apply and that, under s 12A of that legislation, the issue of the building licence was not the sole determinant, it being a factual issue as to who carried out the building work (T:11; 27.08.12). Mr Filimon repeated general assertions that Mrs Filimon had hired trades and that the Building Commission had responded to an enquiry made by a member of the legislative council on his behalf to advise that Mr Filimon is not the nominated ownerbuilder for the property, nor had his name been added to documentation to indicate this. Mr Filimon appeared to place great weight on this last statement, but it is really of little assistance. Mr and Mrs Rimmer have never been in a position to dispute that Mrs Filimon is shown on the building records as the ownerbuilder and that a building licence was issued to her. 68 The original Tribunal handed down an oral decision shortly after the hearing had concluded. The reasoning is brief and reflects as follows on this issue: He was insistent before us that the facts, including that the building licence issued in respect of the applicants' home was issued to Mrs Filimon, only meant that the only legal outcome is that Mrs Filimon and not Mr Filimon is the party subject to potential liability under either the Builders Registration Act 1939 or the Building Services (Complaint Resolution and Administration) Act 2012 [sic]. As it was explained to Mr Filimon, that is not necessarily the case, particularly under the former Act. However, by reason of our view that the attempt to bring the argument in response to the applicants' most recent complaint is an abuse, we need say nothing further on the matter. 69 The original Tribunal then went on to deal with the five workmanship complaints that were before it and found in favour of Mr and Mrs Rimmer in respect of all but one of the complaints. Further reference will be made to these complaints in the context of the challenge to the quantum awarded. 70 As appears above, the Anshun decision stands as authority that an estoppel will operate if it appears that the matter relied upon in the second action was so relevant to the subject matter of the first that it would have been unreasonable not to rely on it: see the joint decision of Gibbs CJ, Mason J and Aickin J at 602. While their Honours saw no utility in applying an abuse of process test, Murphy J regarded an attempt to raise the defence in these circumstances as being properly characterised as an abuse of process. (Page 25)
Did the original Tribunal err in its assessment of the costs of remedial work? 71 Theoriginal Tribunal had before it quotations provided by Mr and Mrs Rimmer in respect of the remedial work. The persons who provided the quotations had inspected the work and were fully aware of the scope of works required. 72 By orders made on 12 June 2012, the originalTribunal provided Mr and Mrs Filimon an opportunity to have a registered builder examine the complaint items and to file and serve a report of their expert in relation to both liability and costings. Mr and Mrs Filimon failed to avail themselves of this opportunity and instead filed quotations which were lacking in detail and issued by persons who had not attended to view the complaint items. On 13 July 2012, the original Tribunal issued directions providing Mr and Mrs Filimon with an opportunity to file and serve any further costings evidence upon which they wished to rely. They did not do so. 73 Mr Filimon has criticised the quotations provided by Mr and Mrs Rimmer, based on the difference between their quotations and those provided by him, and also because of the difference between the quotation now provided in respect of the garage ceiling and a quotation provided in the original Building Disputes Tribunal proceedings relating to that claim. A comparison of the quotations shows that the original quotation in respect of the garage ceiling did not cover the same scope of work and was qualified to reflect that inspection might reveal further necessary work. At that time, it was not known that the back blocking was deficient. 74 The original Tribunal examined Mr Filimon at some length in relation to the quotations he had provided. It is clear from the transcript that the original Tribunal addressed all the available evidence on the costings with care. In its reasons for decision, the original Tribunal observed that neither party's quotations contained detailed calculations of amounts quoted for individual tasks. However, having regard to the scope of work involved and the difficulties with gaining access to the roof space, the original Tribunal preferred the quotations provided by Mr and Mrs Rimmer. 75 The original Tribunal went on to deal with the costings in respect of other claims relating to the struts supporting underpurlins being insufficiently secured, and an inadequate sized strutting beam. The original Tribunal concluded that the overall costs were reasonable. The submissions made in relation to the assessment of costs raise issues very similar to those considered by the District Court in the Agostina (Page 26)
matter in which the District Court placed great weight on the Building Disputes Committee's own expertise to assess this type of evidence as a basis for refusing leave.
Conclusions 76 It is trite that the failure to provide sufficient reasons for decision so as to adequately disclose the intellectual processes which have resulted in the decision may constitute an error of law: see Pettit v Dunkley [1971] 1 NSWLR 376 at 387 388; Garrett v Nicholson (1999) 21 WAR 226 at [73] [74]; Riley v The State of Western Australia [2005] WASCA 190 at [32] and [196]. 77 In this instance, the original Tribunal, in determining in the very brief manner quoted above that it was an abuse of process for Mr Filimon to contend that he could not be held responsible for the building work, conflated in the simple statement that the conduct was an abuse, complex issues relating to the effect of s 37 of the Interpretation Act and whether an estoppel operated. The intellectual process by which the conclusion was reached has not been provided. 78 As discussed above, s 37 of the Interpretation Act does not appear to preserve, for the benefit of Mr and Mrs Rimmer, any accrued right, because of the happening of an event specified by the BR Act, to claim against Mr Filimon that he was the person who carried out the construction. There is no material upon which to assess whether any such right, which accrued on the issue and service of a preliminary notice in the proceedings before the Building Disputes Tribunal, remains extant, notwithstanding the withdrawal of the relevant claim relating to the ceilings of the garage. It follows that there is no obvious basis which can be discerned for supporting the conclusion of the original Tribunal in relation to this aspect. 79 If there is an accrued right to make a claim against Mr Filimon, the labelling of Mr Filimon's defence to that claim as an abuse of process, rather than finding the existence of an Anshun type estoppel would not be regarded as an error sufficient to grant leave, if it could be discerned that, in substance, the Tribunal was referring to circumstances which would give rise to an Anshun estoppel. It is not possible to discern that this was the case. There were a number of exchanges between the presiding member and Mr Filimon, but it appears that the original Tribunal was under the impression that there had previously been a contest on the merits of whether Mr Filimon was the person who carried out the building work (T:56; 27.08,12). The following exchange occurred: (Page 27)
80 There had been no contest on the merits capable of giving rise to an ordinary issue estoppel. Before the Building Disputes Tribunal, it had been assumed that Mr and Mrs Filimon had together carried out the building work based on the admissions contained in the letter to which we have referred above. Accordingly, if the reference in the above passage is to the proceeding in the Building Disputes Tribunal, it is not well founded. If the reference is to the review of the Building Disputes Tribunal decision before the State Administrative Tribunal, that matter was also not decided on the merits of the issue. The review Tribunal found that there was no error on the part of the Building Disputes Tribunal and would not permit reliance on the building licence issued only in the name of Mrs Filimon. 81 In these circumstances, the failure to give adequate reasons and the absence of a discernable basis to support the decision, which affects the potential validity of any claim against Mr Filimon, must result in a conclusion that a substantial injustice would result if leave to review were not to be granted on the issue of whether or not Mr Filimon can be held responsible for the building work. 82 Mr Filimon needs to understand that this decision does not affect in any way the validity of the earlier decision of the Building Disputes Tribunal, or the review of that decision. But for the introduction of the BS(CRA) Act, Mr Filimon would still not have an opportunity to challenge that he is a person who can be held responsible for the building work, because that is an issue which should have been raised squarely by him before the Building Disputes Tribunal, and he did not do so. 83 No error has been demonstrated in relation to the assessment of remedial costs conducted by the original Tribunal. The conclusions reached were open to the original Tribunal on the evidence before it, and the original Tribunal was able to rely on its expertise in order to assess those costs. Leave to review in respect of this ground is therefore refused. (Page 28)
84 It will be necessary to convene a directions hearing in order to determine how this matter should now proceed to finalisation and so that the Tribunal can ensure that the parties can understand what is required of them in order to prepare the matter properly for a final hearing.
Orders 85 In the premises, the Tribunal will cause orders to issue in the following terms: |