GIBBS and MURRAY - [2013] WASAT 74

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: GIBBS and MURRAY [2013] WASAT 74

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 26 MARCH 2013

DELIVERED : 23 MAY 2013

FILE NO/S: CC 1874 of 2012

BETWEEN: RALPH ROBERT TERENCE GIBBS
Applicant
AND
ROSS MURRAY
LYN MURRAY
Respondents

Catchwords:

Builders' Registration Act 1939 (WA) - Application for leave to review decision of Building Disputes Tribunal - Criteria to be applied - Grounds of proposed review raising apprehension of bias and challenging assessment of monetary compensation awarded

Legislation:

Builders' Registration Act 1939 (WA)
Building Services (Complaint Resolution and Administration Act) 2011 (WA), s 134
Home Building Contracts Act 1991 (WA)

Result:

Application for leave refused

Summary of Tribunal's decision:

The applicant applied for leave to review a decision of the Building Disputes Tribunal on the grounds of apprehension of bias and error in the assessment of the reasonable and necessary cost of carrying out remedial work.
By reason of the operation of the transitional provisions under the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the application for leave was dealt with under the now repealed statutory regime provided under the former Builders' Registration Act 1939 (WA).
The Tribunal considered each of the 18 bases upon which it was alleged that the Chairman of the Building Disputes Tribunal had conducted himself in a way which exhibited bias, but found that the particulars, individually or cumulatively, were not capable of sustaining any reasonable argument in support of the alleged bias.
The Tribunal found that no error or sufficient doubt had been demonstrated concerning the Building Disputes Tribunal's award of $8,517.30 in respect of the application of an acrylic texture coating, and $3,620 in respect of carpentry work. However, the Building Disputes Tribunal was found to have erred in awarding a total of $1,880 for scaffolding hire which was based on a 10 week hire period when the Building Disputes Tribunal accepted that the remedial works would take seven to 10 days to complete.
Although error had therefore been demonstrated in respect of an aspect of the monetary assessment, the Tribunal concluded that there would be no substantial injustice if leave to review were refused, having regard to the nature of the building works undertaken, the value of that aspect of the dispute which would be reconsidered on review and the nature and history of the dispute. The Tribunal considered it would be unjust to put the respondents through further litigation, having regard to these factors and, further, that the time and effort required from all parties in the conduct of the review would be disproportionate to even the most favourable result for the applicant.
The application was accordingly dismissed.

Category: B

Representation:

Counsel:

Applicant: Mr G Chamberlain (Acting as Agent)
Respondents : Self-represented

Solicitors:

Applicant: N/A
Respondents : N/A

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

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2012) 125 ALD 588
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Watson & Anor v Wallington & Anor [1999] WADC 84
Well Holdings Pty Ltd v Agostino [2001] WADC 174
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 12 August 2006, the applicant contracted with the respondents to construct a two storey residential building for them at No 2 Bengal Street, Madora Bay. The works were completed in approximately 2008.
On 14 May 2010, the respondents lodged a complaint form with the Building Disputes Tribunal (BDT) triggering what turned out to be a very protracted dispute with numerous hearings before the BDT and a total of three separate applications to this Tribunal (including the present proceedings) for leave to review orders made by the BDT. The applicant was unsuccessful in relation to the previous applications for leave in the Tribunal. As a last step in the finalisation of the matter, the BDT conducted a hearing on 5 October 2012 to deal with an application by the respondents to revoke an order for remedial work to be carried out and substitute a monetary order. The monetary order was sought to cover the cost of engaging third parties to carry out the last remaining items of work, the applicant having failed to comply with the order to remedy in those respects.
On 16 October 2012, the BDT issued an order requiring the applicant to pay to the respondents:
a)an amount of $8,517.30 in respect of the application of an acrylic texture coating;
b)an amount of $1,880 in respect of the cost of scaffolding; and
c)an amount of $3,620 in relation to carpentry work to improve the structural integrity of a balcony,
that is, a total sum of $14,017.30.
The BDT provided written reasons for its decision under cover of a letter dated 14 January 2013.
The applicant seeks to have the decision reviewed and set aside on the grounds of alleged bias on the part of the Chairman of the Tribunal and alleged errors by the Tribunal in the assessment of the monetary order.
In order to succeed with an application for leave to review a decision of the BDT, it is necessary to comply with the criteria identified in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 (Tangent Nominees). Those criteria reflect that the Tribunal has a broad discretion to grant leave but that, generally, it is necessary to show that the decision of the Tribunal was wrong or attended with sufficient doubt such that, if leave were not to be granted, a substantial injustice would result. The authorities discussed in Tangent establish that, in the context of the statutory regime, the Tribunal should be slow to grant leave except in cases where, clearly, there is no discernible basis for the decision of the Tribunal or, for example, where fundamental rules of natural justice have been breached by preventing a party adequately being heard.
Those criteria continue to apply, as does the former statutory regime relating to building work disputes, notwithstanding the repeal of the Builders' Registration Act 1939 (WA) (BR Act) pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). That is because s 134 of the BS(CRA) Act specifically provides that a proceeding in respect of which a hearing has commenced before the BDT but which has not been concluded is to be dealt with and determined in accordance with the relevant provisions of the repealed BR Act (or, where applicable, the repealed Home Building Contracts Act 1991 (WA)) as in force immediately before the commencement date, which was 29 August 2011. In this matter, the first hearing of the BDT was conducted on 24 January 2011 and the proceedings had not been concluded by 29 August 2011.
Accordingly, the determination of the application requires consideration of the following issues.

Issues

1)Was the Chairman of the BDT biased?
2)Was the assessment of the monetary order wrong or attended with sufficient doubt?
3)Would a substantial injustice result if leave to review the decision of the BDT were to be refused?

Bias

The applicant's amended grounds for the proposed review include that the Chairman exhibited bias in favour of the respondents. The ground is particularised in 18 separate paragraphs which then follow. The ground, as particularised, is not understood to set up a case based on actual bias which might arise by way of example by reason of friendship or enmity but, rather, an apprehension of bias, based on the manner in which the hearing was conducted.

There can be little doubt that a tribunal such as the BDT is bound by the rules of natural justice or procedural fairness. These rules include the fundamental rule against bias: see Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing (2012) 125 ALD 588 at [35].
Even when actual bias is not established, there may be a reasonable apprehension of bias if, in all the circumstances, a fair-minded lay observer may reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question required to be decided. Whether there is such an apprehension of bias must be determined objectively: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The applicant is not legally represented and this is reflected in the form and substance of some of the particulars provided in support of the bias ground. The applicant was assisted at the hearing by Mr Chamberlain who did not press arguments to the extent that they were dependent on establishing demeanour not reflected in the transcript of the proceedings: see, for instance, ground (i) alleging attentiveness in listening to the respondents while being dismissive in manner when speaking with the applicant, ground (ii) alleging that the Chairman looked directly at the respondents while ignoring the applicant, and ground (iv), which refers to the applicant receiving a cross look from the Chairman.
It is understandable that, in order to demonstrate a reasonable apprehension of bias, the applicant must necessarily identify what he sees as a number of indicators which he contends, when viewed as a whole, give rise to an apprehension of bias. It is then necessary to read the transcript as a whole in order to assess whether a fair‑minded lay observer might reasonably apprehend that the Chairman was not bringing an impartial mind to bear on the proceedings and determination of the matters in issue. It is therefore not particularly helpful to address each particular given individually unless the details given in themselves demonstrate bias.
Having read the whole of the transcript and given careful consideration to each particular supporting the ground for review and the submissions made in regard thereto, I have concluded that the applicant has no prospects of establishing a reasonable apprehension of bias for the reasons which follow.
Particulars (ii) and (iii) suggest that the manner in which the Chairman opened the hearing reflected bias. It is asserted that, having invited the parties to contribute to 'a quick run through' (of the history of the proceedings as the panel members had not been involved in all hearings), the Chairman, in effect, provided a more favourable opportunity to the respondents to do so. When addressing this aspect, it is convenient also to refer to a complaint raised in particular (ix) that the Chairman referred to the applicant's quotes as 'your bits of paper', which is understood to convey that the Chairman held adverse views about the substance or form of the quotations.
A reading of the transcript discloses that the Chairman used a colloquial form of language throughout the proceedings. The learned Chairman says (T:2; 05.10.12, line 10):
So I thought we would start off we'd just run through where we're at at this thing and then we can see what sort of issues we've got and what sort of ‑ ‑ where we're at and then members of the panel will be free to ask any of the parties various questions to see their concerns. We're here to hear your concerns but we're also here to reach some sort of resolution to these disputes and so we start. Let's just start off. …
The Chairman then commenced to give his own summary and stated (T:2; 05.10.12, line 30):
So I've sat on this for a while but my other two colleagues haven't. So we just do a quick run through and get people to verify where we're at. …
The Chairman proceeded with his summary but almost immediately referred to a report which the respondents had obtained and sought clarification about a reference in the report to the collapsing of a soakwell, which he stated was not one of the 'items in this matter'. That resulted in an unidentified male speaker, presumably the respondent, Mr Murray, confirming that the item was not included and the respondent, Mrs Murray, conveying that it had been observed when they came back from holidays. The Chairman indicated that that would be addressed later and proceeded with his summary. None of this occupied any time at all, as is reflected in the transcript, because, at the top of page 3 of the transcript, the Chairman made reference to the applicant's attempts to seek leave to review the earlier proceedings before the State Administrative Tribunal. When the Chairman made that reference in the form of a question that the 'matter went off to the State Administrative Tribunal, didn't it?', the respondent, Mr Murray, replied in the affirmative. Shortly thereafter, the Chairman, obviously then referring to the applicant, stated, 'then you went off to SAT and my understanding of the orders from SAT is that SAT rejected both appeals' (T3; 05.10.12, line 34), to which the applicant replied confirming that was correct in that the Tribunal had not granted leave in both matters.
This introduction of the proceedings and attempt to obtain a summary largely for the benefit of the two panel members not previously involved in the proceedings is quite unremarkable, other than for the informality of language, but that does not demonstrate bias. When regard is had to the informality of language throughout the transcript, reference to the applicant's quotations as 'your bits of paper' does not appear, in the context, as indicating derision or any pre‑determined view about the quotations.
In my view, the transcript generally reflects a concern on the part of the Chairman to ensure that the parties felt that they had been given a fair opportunity to be heard, which flies in the face of the various bases individually, and collectively, on which the applicant relies for asserting bias. For instance, the Chairman gave the applicant an opportunity to explain why he was dissatisfied with the previous orders (T:7; 05.10.12, line 30). The applicant specifically enquired whether he could be allowed to raise or refer to a topic which could not be transcribed as it was indistinct (T:20; 05.10.12, line 20). The Chairman responded to indicate that the Tribunal was 'here to hear you'. Unfortunately, that led to the applicant referring to other contracts which he stated had been satisfactorily completed and in relation to which the clients had provided him with a reference. This led to a challenge from Mrs Murray about the use of character evidence which appears to have been a little acrimonious (T:21, 22; 05.10.12). The Chairman observed that there was a purpose to allowing the applicant to raise these matters because 'it helps people to ‑ ‑ to vent'.
This course of allowing the applicant to have his say and to raise matters which he saw as being important, even if not directly relevant to the proceedings, does not sit well with allegations of bias against the Chairman.
The particulars set out in paragraphs (iv), (v) and (vi) raise that the Chairman incorrectly thought that the dispute related to the construction of a rendered brick dwelling. The inference which the applicant would have the Tribunal draw is that, because the Chairman had participated in earlier hearings which made it clear that the dispute involved a timber‑framed building, this illustrates bias. However, as the particulars and references there to the transcript disclose, the respondents had first used the incorrect terminology which clearly influenced the Chairman putting a question to the applicant about what he had actually done in which reference was made to the walls being rendered. It is difficult to know what conclusion to draw from this. It could be that the Chairman had not understood aspects of the building issues (the Chairman being a lawyer, not a builder) or simply that the Chairman overlooked previous evidence and had forgotten. But it is drawing a long bow to suggest that the use of incorrect terminology in this way reflects that the Chairman was not going to bring an impartial mind to bear on the issues.
The particulars set out in paragraphs (vii), (viii), (xi) and (xv) all raise criticisms about the way in which the Chairman controlled the hearing. The Chairman was criticised in paragraph (vii) for calling the parties back to the subject of the hearing because he did so in terms which required the parties to 'keep to what SAT has given the decision on'. Of course, as the applicant contends, this Tribunal had not made a decision on the merits of the previous BDT orders, but had simply refused leave to review. There is nothing wrong in the Chairman bringing the focus of the hearing back to the matters in issue if parties have wandered off into irrelevant areas. Indeed, it was his responsibility to do so. In the particular set out at paragraph (viii), the Chairman is criticised for not answering a query raised by the builder member, Mr Mitchell, as to why time was being spent on matters which could not be reopened in the light of the Tribunal's refusal of leave to review the order of the BDT. The Chairman had no need to intervene because the transcript reflects that the applicant responded immediately to Mr Mitchell's enquiry by stating that the Chairman had asked why he had applied for leave to review and he was explaining why the matter was taken to this Tribunal. How this could leave the applicant in a 'bad light' in the view of the other members cannot be understood.
In the particulars set out in paragraph (xi), the applicant is critical because the Chairman prevented him from interrupting Mrs Murray. It is evident that while she was giving an explanation of the discussion which she had had with the painter who had provided the applicant with a quote, the applicant attempted to question her. The applicant also criticises that he was not invited to respond to this aspect of the evidence. It is true he was not given any invitation, but on the very next page of the transcript he raises the question of painting again and commences to start expressing his views (T:17; 05.10.12, line 29). In the following pages, he deals with a further quotation provided by Mrs Murray from Kingsbray Plaster. On any reading of the transcript, it is quite clear that the applicant was quite capable of conducting his own case and had his say when he wanted it on any particular topic.
The particulars set out in paragraph (xv) refer to terminology which was used by Mr Mitchell which the applicant regards as imprudent. It is asserted that the Chairman was biased in not preventing those remarks. The discussion in question commences at line 20 (T:27; 05.10.12). There is nothing inappropriate in Mr Mitchell's comments. The effect of what he conveyed was that the evidence at the moment 'would seem' to show that the applicant did not have any real argument against the quotes (provided by the respondents). Mr Mitchell pointed out that there had been some strange evidence, because the person who had given the applicant a quote for the painting on of a membrane (Mr David Aslett) had apparently quoted the respondents directly a much higher sum. But Mr Mitchell pointed out that may have been due to the quote 'covering a different scope of works' and, at the moment, his 'reading of it' was that the respondents' quote from A1 Texture Coating would be applicable. The purpose of this discourse was clear and it was to put the applicant on track, because Mr Mitchell went on immediately to ask the applicant whether what he (Mr Mitchell) had stated is not appropriate and to make clear to him that it was these issues (the costs reflected in the quotes) only about which he should be talking.
The particulars set out in paragraph (x) raise that, given the knowledge of the building member, scaffolding costs could not possibly be justified for a 10 week period. The applicant cannot know what was in the mind of the member who was presumably satisfied with the quotation for scaffolding because he joined in the decision to award the scaffolding costs. No conclusion could be drawn from the fact that the members did not ask questions about the quotation. It was open to the applicant to do so and, indeed, as just discussed above, Mr Mitchell made it clear that the applicant should be focusing his attention on whatever criticisms he might have of the quotations. What is alleged is not supportive of a bias allegation. This conclusion is supported by the very complaint set out in the particular at paragraph (xiii). As reflected there, the Chairman specifically asked the applicant to endeavour to explain the quotation provided by his carpenter. This was necessary because the quotation was completely devoid of any details of what work was to be undertaken. The works to be undertaken were not described and the Chairman was providing the applicant with an opportunity to endeavour to provide some details. Far from indicating bias, it reflects that the Chairman was endeavouring to be fair to the parties.

The particulars set out in paragraph (xiv) criticise that the applicant was not given a clear opportunity to question the quotations provided. For the reasons already given, that is rejected. Immediately after the above passage in which Mr Mitchell endeavoured to assist the applicant to focus on the quotes, the applicant proceeded to criticise the quotations, but in the most general possible way, simply describing them as being 'miles over the top' (T:27; 05.10.12, line 55).
The particulars set out in paragraphs (xvii) and (xviii) raise, firstly, that the order made by the BDT relied on a quote from a non‑registered painter. This appears to rely on after acquired evidence and there is nothing to suggest that the point was raised before the BDT. Secondly, it is raised that the manufacturer's specification with respect to the application of the membrane concerned shows that the quote from A1 Texture Coating quoting to spray coat the outer walls is contrary to the requirement that the membrane be applied by roller. The A1 Texture Coating quotation does not have any statement on it to the effect that the application will be applied by spray painting.
For the above reasons, I do not consider that any of the matters raised in the particulars, individually or cumulatively, are capable of sustaining any reasonable argument that the Chairman exhibited bias.

The assessment of the monetary order

This issue can be dealt with quite shortly.
The BDT had before it quotations provided by both parties. The respondents' quotations were detailed and clearly related to the work required under the order to remedy issued by the BDT on 11 May 2012. The matters canvassed in the decision under review related to orders 7 and 8 of the order to remedy dated 11 May 2012.
It is understood that part of the work in relation to order 7 had been previously completed and that all that was outstanding was the requirement under the order for the applicant 'to put blocks under and around the wall hangers to enhance the structural integrity of the balcony'.
Order 8 was in terms which required the applicant to put two coats of Unitex membrane PTC 'on the house according to the letter from Unitex to the builder dated 20 April 2009 and Unitex protective membrane circular (two pages) for a house in a marine environment'.
The applicant obtained two quotes as well. They were entirely lacking in detail and were for amounts substantially less than those contained in the respondents' quotations.
The transcript reflects that the BDT gave due consideration to all the quotations and the applicant was given every opportunity to explain the quotations on which he relied and to raise any criticism he had in relation to the respondents' quotations, and he did so.
The case falls full square within the principles discussed by his Honour Jackson DCJ in Well Holdings Pty Ltd v Agostino [2001] WADC 174 (Agostino) at [8], given at a time when there was a right of appeal, subject to leave, from the Building Disputes Committee (subsequently renamed the BDT) to the District Court. Upon the establishment of this Tribunal, that appeal mechanism was substituted by a right to apply for review before this Tribunal, again subject to leave.
In Agostino, and after referring to the subject matter of the dispute in that case, his Honour went on to state, at [8]:
… It matters not that such evidence may 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. The Committee has its own expertise to assess the evidence, unlike the District Court on appeal. Counsel for the appellant most ably argued that the Committee had failed to make proper findings, had failed to explain in its decision the link between its ultimate conclusion and the evidence put forward. In my view that type of enquiry is simply inappropriate for a body such as the Committee. The Committee is not a court of law. The principles for determining error are, in my view, not the same as an appeal from courts. To strictly adhere to the ordinary principles of appeals in cases of appeals from the Committee would be to frustrate the intent and purpose of the legislation which is, as I have noted, to provide a relatively speedy and inexpensive remedy in building disputes. 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.
Agostino was referred to and the principles stated therein accepted in Tangent Nominees, which summarises the criteria to be applied for the grant of leave to review a decision of the BDT. In relation to the quotation from A1 Texture Coating for $8,517.30 and the quotation from Josh Beaumont Carpentry for $3,620, there is nothing raised by the applicant which would justify the grant of leave.
On the other hand, the grounds and submissions advanced by the applicant in relation to the quotation from Access Matrix Scaffold Pty Ltd for the provision of scaffolding have force. In its reasons for decision at [21], the BDT expressly found that scaffolding would be required for some seven to 10 days while the necessary remedial work was being completed. Yet, the quotation is for an amount of $1,880, excluding GST, which covers delivery, erection, the use of the scaffolding for a period of up to 10 weeks, dismantling and pick up upon completion of the work. When it came to formulating the relief granted to the respondents, the BDT ordered that the full amount of the scaffold hire be paid. The BDT reasons for decision do not explain how it came to be that the full quotation was allowed in the face of their finding that the scaffolding would be required for only seven to 10 days.
The transcript of evidence reflects that Mr Murray endeavoured to explain this on the basis that, presumably because the exact period over which the scaffolding would be required is not known, the scaffolding is provided on the basis of a set quote, and an additional weekly hire is paid if the scaffolding is required for longer than the time allowed (T:14; 05.10.12, line 55).
The quotation reflects that there is a weekly charge payable of $110 after the initial 10 week period. It is evident, therefore, that the weekly hire component of the total charge of $1,880 is $1,110 and that the charge for delivery, erection, dismantling and pick up is $770.
It may well be the case that there is a practice in the scaffolding hire business to charge for a minimum number of weeks. But the task for the BDT was to assess whether the amount claimed was reasonable and necessary. There was no evidence before the BDT upon which to make an assessment of what might be a reasonable minimum hire if it be the case that it is not possible to hire the scaffolding on other terms. As the reasons for decision do not disclose the BDT's rationale for arriving at a conclusion allowing 10 weeks' scaffolding time for a job which could be completed within seven to 10 days, it has erred in law. It is therefore necessary to consider the following issue, namely, whether a substantial injustice would result if leave were not to be granted in respect of this aspect of the matter.

Substantial injustice

What may constitute a substantial injustice will depend on the facts and circumstances of each case. In Wing Luck Foods v Lay Choo Lim [1989] WAR 358, the Western Australian Full Court stated, at 361:
… 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 will require the consideration of this Court to avoid a substantial injustice if leave is not granted.
If the remedial work was to take seven to 10 days, as found by the BDT, and if, as it appears, that the hire rate is provided on a weekly basis, it would be sufficient to hire scaffolding for a two week period so that, on the face of it, it does not appear reasonable for the respondents to have incurred a liability for an additional $880 plus GST. Of course, it is possible that, on review, there may be evidence to show that hire rate will be increased for a shorter period of hire, or that it is not possible to hire scaffolding for such a short period. It is unfortunate the BDT did not investigate this aspect of the matter more fully with the parties. It appears that Mr Murray endeavoured to give an explanation to this effect, suggesting that the rate was fixed for a period of 10 weeks' hire, even if the job only took one week (T:14; 05.10.12, line 40). Even then, his explanation was not clear, because he referred to this as a maximum rather than a minimum time.
On the evidence that is provided, it appears that the maximum extent to which the scaffolding hire might be considered unreasonable is therefore $880, assuming GST is not recoverable from the client. The quotation is expressed as being exclusive of GST, so it is arguable that GST is not recoverable. The BDT did not add GST to the award, so if it is chargeable and therefore recoverable, that would be clarified on review. In this event, the adjustment to which the applicant would be entitled would be less than the amount of $880 because GST would be payable on the balance of charges which exceed the amount of $880.
In Watson & Anor v Wallington & Anor [1999] WADC 84, the District Court held that the value of the dispute in relation to the contract under which the work was undertaken would be relevant to determining whether or not there would be a substantial injustice if leave were to be refused. The claim in these proceedings has not been pursued as a contractual claim, but as faulty or unsatisfactory workmanship. There is no evidence of the actual value of the contract, but plans and photographs show that it is a reasonably substantial two storey dwelling.
The amount of $880 cannot be considered as trivial in itself. However, it is relevant to have regard to the nature of the works undertaken (usually reflected in the contract value) and the nature and history of the dispute.
The initial complaint was made on 14 May 2010. A further complaint was made on or about 6 September 2010. In total, the complaints related to 10 separate items. The respondents succeeded in establishing their case in relation to each item of complaint and the initial order to remedy was first made on 25 January 2011. The applicant applied unsuccessfully for a review of that order.
A further order to remedy was made on 11 May 2012. Again, the applicant applied unsuccessfully for the review of that decision.
The respondents then applied for an order for monetary compensation to cover the cost of having the outstanding remedial work completed. In these proceedings seeking leave to review the last decision of the BDT, the applicant and the agent representing him have put a great deal of effort into dissecting utterances of the BDT Chairman with a view to establishing bias and of being critical of the assessment of the monetary order. Yet, the applicant put little effort into the hearing which gave rise to the decision under review. The applicant had every opportunity to thoroughly test the costings but did not do so other than in the most general way. To the extent that the applicant obtained his own quotations, they were either so general or directed to the wrong scope of works so as to be of no assistance.
Having regard to the value of the dispute, which would go to review if leave were to be granted, the relatively substantial nature of the works originally undertaken and the history of the proceedings, I do not consider that there would be a substantial injustice if leave were to be refused. The grant of leave would further extend the completion of the dispute, which has been conducted under a statutory framework which contemplates the expeditious and final resolution of disputes (subject to leave requirements) aimed to achieve a timely and effective remedy. I consider that it would be unjust to put the respondents through further litigation, having regard to all the above factors. The time and effort required from all parties in the conduct of a review hearing would be disproportionate to even the most favourable result for the applicant.

Conclusion

For the above reasons, I find that the applicant has failed to establish bias on the part of the Chairman of the BDT and, further, that no error has been demonstrated in respect of the decision under review, save in respect of the amount awarded in relation to scaffolding. The BDT erred in law in failing to disclose its process of reasoning in awarding the full amount of that quotation. However, having regard to all relevant circumstances, I do not consider that any substantial injustice will result if leave is refused.

Order

An order will accordingly be issued in the following terms:
1.Leave to review the decision of the Building Disputes Tribunal made on 5 October 2012 is dismissed.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER