JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GEMMILL HOMES PTY LTD -v- SANDERS [2018] WASC 179
CORAM: SMITH AJ
HEARD: 19 MARCH 2018
DELIVERED : 19 JUNE 2018
FILE NO/S: GDA 13 of 2017
BETWEEN: GEMMILL HOMES PTY LTD
Appellant
AND
GEOFFREY FRANK SANDERS
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: SENIOR MEMBER C RAYMOND
SENIOR SESSIONAL MEMBER R AFFLECK
Citation: GEOFFREY FRANK SANDERS AND GEMMILL HOMES PTY LTD
File Number : CC 1205 of 2016
Catchwords:
Appeal from State Administrative Tribunal - Whether Tribunal empowered to make or revoke a trial order - Effect of a trial order - Validity of a trial order - Power of the Tribunal to correct an order made without power
Appeal from State Administrative Tribunal - Statutory construction - Whether a complainant has the right to elect a remedy - Whether the Tribunal erred in referring to a right to elect a remedy - Error not vitiating - Whether Tribunal impermissibly fettered discretion
Appeal from State Administrative Tribunal - Statutory construction - Meaning of specify - Whether Tribunal failed to specify how service is to be remedied
Appeal from State Administrative Tribunal - Matters Tribunal obliged to consider when making a building order - Whether Tribunal should only refuse a remedy order if the relationship of the parties has irretrievably broken down - Relationship had not irretrievably broken down
Appeal from State Administrative Tribunal - Whether Tribunal took into account an irrelevant consideration - Whether consideration of a further complaint irrelevant
Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 12A(1a)(b)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(1)(a), s 5(2), s 9(1), s 10, s 11, s 11(1)(d), s 30(1)(a), s 30(1)(b), s 30(1)(c), s 32(2), s 34(1), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37, s 38, s 38(1), s 38(1)(a), s 42, s 43, s 51, s 51(2), s 58, s 58(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Companies (Western Australia) Code (WA), s 291(3), s 292(2)(a)
Home Building Contracts Act 1991 (WA), s 17, s 20, sch 1 cl 5
State Administrative Tribunal Act 2004 (WA), s 54(8), s 105
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | Mr A K Sharpe |
| Respondent | : | Mr G R Dean |
Solicitors:
| Appellant | : | GV Lawyers |
| Respondent | : | Bostock & Ryan |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49
Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Dekker v Medical Board of Australia [2014] WASCA 216
Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28
Erujin Pty Ltd v Jacob [2017] WASC 35
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
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- Case
- [2018] WASC 179
- Decision Date
CaseChat Overview and Summary
The Court began by examining the statutory powers of the Tribunal and found that the Tribunal did not have the authority to make or revoke a trial order. However, the Court held that an order made without proper authority was not necessarily of no legal effect. The Court relied on the principle that while such orders are legally invalid, they can still produce consequences until set aside or declared invalid. The Court highlighted that the consequences of such orders depend on the statutory framework and context in which they were made. The Court also found that the Tribunal had not erred in allowing the homeowner to elect a remedy, nor had it improperly restricted its discretion. Furthermore, the Court determined that the Tribunal had not taken into account irrelevant considerations in making its orders.
The Court's decision clarified the effect of orders made without proper authority and reinforced the importance of statutory interpretation in administrative law. The Court ultimately upheld the Tribunal's decision, finding that it had not erred in its handling of the case. The Court's judgment provided guidance on the scope of the Tribunal's powers and the consequences of orders made without authority, ensuring that the principles of administrative law were properly applied in future cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Minister for Immigration and Multicultural Affairs v Bhardwaj, Gaudron and Gummow JJ found that absent jurisdiction to make an order, the order is a decision that lacks foundation and is properly regarded, in law, as no decision at all.[42][42] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [51]. However, a decision that is no decision at all may still have consequences while the decision is in force. Le Miere J in Tulloh v Chief Executive Officer of the Department of Corrective Services explained:[43][43] Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 [21] ‑ [28]; see also Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28 [131] (Buss P & Murphy JA).In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157) a question was whether s 474 of the Migration Act 1958 (Cth), which provided in effect that a 'privative clause decision', a defined term, was not subject to judicial review precluded judicial review of a decision of the Tribunal in breach of the requirements of natural justice. The High Court held that s 474 did not prevent judicial review of decisions that involve jurisdictional error. Decisions of that character were not 'privative clause decisions' because they were not decisions made 'under' the Act. Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:'This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all" [76].'At [76] their Honours referred to Bhardwaj at [51] per Gaudron and Gummow JJ, [63] per McHugh J and [152] per Hayne J.Bhardwaj was considered by the Full Federal Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan). Gray and Downes JJ concluded:'Only Gaudron and Gummow JJ, with the agreement of McHugh, as part of the reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced the proposition. Kirby J in his dissenting judgment clearly did not [40].'Gray and Downes JJ also analysed the authorities and concluded that a decision that was no decision at all may still have consequences. Their Honours also highlighted that the High Court had not explained in any detail what the consequences were for a decision that had no legal effect:'Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that the decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations [40].'After referring to the reasoning of the High Court in Plaintiff S157, Gray and Downes JJ concluded that Bhardwaj had a limited application:'In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute [42].'Kenny J agreed at [64].Those statements of Gray and Downes JJ were obiter because the court held that there had not been any jurisdictional error. However, their Honours comments have been approved or followed by intermediate courts of appeal: Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293; Purton v Jackson [2012] TASFC 2.Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, 2017), after referring to Bhardwaj, Plaintiff S157 and Jadwan offer the following 'interim conclusions':'For most contexts, the outcome of judicial review is retrospective, in the sense that the jurisdictionally flawed decision is treated as having had no relevantly adverse legal effect. "Nullity" is a useful word to denote that outcome. It is not automatically the case, however, that jurisdictionally flawed decisions fail to produce legal consequences. Nullity is a bundle of legal consequences. Whether a decision has relevantly adverse legal effects, and if so, how many, are questions which will receive different answers in different contexts [10.120].'In my opinion the effect of the authorities is as follows. First, an administrative decision which involves jurisdictional error is legally invalid. Secondly, an administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid. Thirdly, whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made.