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(Complaint Resolution and Administration) Act 2011 (WA), the application for leave was dealt with under the now repealed statutory regime provided under the former Builders' Registration Act 1939 (WA).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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GIBBS and MURRAY

Details

AGLC: GIBBS and MURRAY [2013] WASAT 74
Case: [2013] WASAT 74
Decision Date: 23 MAY 2013

CaseChat Overview and Summary

In the case of Gibbs and Murray, the applicant sought leave to review a decision made by the Building Disputes Tribunal under the Builders' Registration Act 1939 (WA). The dispute involved the assessment of monetary compensation awarded for alleged breaches of building regulations and the apprehension of bias in the tribunal's decision-making process. The court was required to determine the appropriate criteria for granting leave to review and whether the grounds proposed for review were sufficient.

The central legal issue before the court was the criteria that should be applied when considering an application for leave to review a decision of the Building Disputes Tribunal. The applicant argued that the tribunal had erred in its assessment of monetary compensation and that there was an apprehension of bias. The court needed to evaluate whether these grounds were sufficient to warrant a review and if the applicant had demonstrated a serious question to be tried.

The court found that the applicant had not satisfied the criteria for leave to review. It was determined that the apprehension of bias was not substantiated and that the assessment of monetary compensation was within the tribunal's discretion. The court held that the applicant had not demonstrated a serious question to be tried, and therefore, the application for leave to review was dismissed. The court clarified the criteria for granting leave to review and emphasised the high threshold that must be met, particularly in cases involving questions of bias and discretion.

No further orders were made by the court, and the decision of the Building Disputes Tribunal remained in place. The applicant's application for leave to review was denied, and the matter concluded without any additional relief being granted.

Orders