Grasser and Vagg
[2009] WASAT 23
•3 February 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: GRASSER and VAGG [2009] WASAT 23
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 2 FEBRUARY 2009
DELIVERED : REASONS DELIVERED ORALLY ON 3 FEBRUARY 2009
FILE NO/S: CC 2054 of 2008
BETWEEN: PETER GRASSER
Applicant
AND
KENNETH JOHN VAGG
ELIZABETH LAING VAGG
Respondents
Catchwords:
Building disputes review Error in law Rules of natural justice Substantial injustice Did the Building Disputes Tribunal err in law by allowing a hearing to continue regardless of a medical certificate that declared the applicant unfit to attend the hearing? Does an error in law automatically give rise to leave to review Failure of applicant to make submissions
Legislation:
Builders' Registration Act 1939 (WA)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondents : Self-represented
Solicitors:
Applicant: Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Wilson v Metaxas (1989) WAR 285
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Grasser claimed that the Building Disputes Tribunal had erred in law when it refused his application for an adjournment of a hearing. His application was supported by a certificate from a medical practitioner declaring that, due to depression, he was unfit to participate in proceedings. Mr Grasser accepted that rectification had to be done and that he could not do it. He took issue with the amount of $7,160 awarded by the Building Disputes Tribunal and said he could have arranged for it to be done for about $3,000.
Mr Vagg opposed the application for leave to review. He argued that the matter has been ongoing for more than three and a half years, that Mr Grasser has had ample opportunity to make submissions to the Building Disputes Tribunal, that the hearing date was set four months in advance and that, due to Mr Grasser's own actions, he failed to make use of the opportunities offered to him.
The Tribunal explained to the parties that, in order for the application to succeed, it must be satisfied that:
(a)an error in law had been committed; and
(b)a substantial injustice would arise if the decision of the Building Disputes Tribunal remained unreversed.
The Tribunal found that it may appear at face value that an error of law had been committed, but that all the circumstances leading to a hearing must be taken into account before such a finding is made. It appears that the matter had been ongoing for more than three and a half years. Mr Grasser attended the site inspection on 29 July 2008. Also present at the inspection was the expert called by the respondent. Mr Grasser received the expert reports and estimations of the cost of rectification work, and at no stage during more than four months leading to the hearing did he make any submission, submit expert evidence of his own or make proposals as to what the appropriate cost order should be. Although he was unable to attend the hearing, he did not arrange for any other person, contractor or expert to give evidence. He basically ignored the entire process leading to the hearing.
The Tribunal was therefore satisfied that, if all the events are taken into account, an error in law had not been committed.
The Tribunal found further that, even if an error in law had been committed, it is not satisfied that the evidence shows that a substantial injustice would arise if the decision of the Building Disputes Tribunal remained unreversed. Mr Grasser accepted that rectification work had to be done and that he could not do it. He accepted that a third party contractor would have to do the work. The Building Disputes Tribunal, after lengthy consideration, awarded an amount of $7,160 for the work. Mr Grasser estimated in the review proceedings that he could arrange for the work to be done at about $3,000. His estimation was not supported by any quotation or evidence. He also did not submit that amount to the Building Disputes Tribunal.
The Tribunal was therefore satisfied that it has not been shown by Mr Grasser that a substantial injustice would be done if the decision of the Building Disputes Tribunal remained unreversed.
The application for leave was therefore dismissed.
Issue
The dispute in these proceedings is whether the Building Disputes Tribunal (BDT) committed an error in law when it decided to continue with a hearing in the absence of Mr Grasser, regardless of a medical certificate that declared him unfit to attend the hearing.
The Tribunal gave oral reasons for decision on 3 February 2009 and undertook to provide parties with the edited transcript of proceedings in due course. This is the edited version.
Background
A dispute was declared by Kenneth Vagg and Elizabeth Vagg (respondents) on 30 August 2006. The dispute concerned the quality of flooring that was installed by Mr Grasser. There were two hearings in the three and a half year long dispute. The first hearing took place on 7 December 2006. Mr Grasser sought for the matter to be re‑opened.
The BDT decided at a hearing on 9 May 2008 to re‑open the matter. At that hearing, Mr Grasser was accompanied by a builder friend who assisted him. An inspection of the premises by the BDT took place on 29 July 2008.
The inspection was attended by Mr Grasser and an expert witness for the respondents, Mr Keily, who also attended the original inspection. Mr Keily is a director of the Australian Timber Flooring Association. The inspector nominated by the BDT was Mr Aitken who reported on 11 August 2008. The report was sent to the parties with findings and recommendations.
Mr Keily confirmed in writing to both parties and to the BDT that he would give evidence at the hearing and that his report submitted after the first inspection would serve as a basis for his evidence.
Approximately one week prior to the hearing, a letter was sent to the BDT by Dr Prott, a medical practioner. Dr Prott said in his letter that Mr Grasser was not fit to attend the hearing due to depression, and suggested at least a 12‑week adjournment.
The BDT wrote to Mr Grasser on 11 December 2008, the day before the hearing, to say that the request for an adjournment was declined and that the hearing would go ahead. The hearing took place on 12 December 2008.
Mr Grasser did not participate, but his partner was on the telephone to answer basic questions. Mr Keily and Mr Aitken were present.
Mr Grasser did not arrange for any witness, be it an expert or a contractor, to give evidence on his behalf.
That is as far as the background to the application is concerned.
I next deal with basic principles of fairness in judicial proceedings.
Natural justice
The rules of natural justice are a cornerstone of our legal system. It means, in essence, that a person is entitled to be heard, to make submissions, to give evidence and to examine evidence.
It is an error in law if a court or a tribunal does not comply with the rules of natural justice, but non‑compliance with the rules of natural justice does not automatically mean proceedings cannot go ahead. The reasons for the failure of a person to attend or to make submissions must be considered. A person can, through his actions, forego the right to be heard.
The entitlements in natural justice can therefore not be abused to delay proceedings.
In review matters such as the one before me, a mere error in law is not enough to grant a review. There must also be a substantial injustice if the decision is not reversed.
Now, therefore, there are two questions in these proceedings that I must consider:
1)did the BDT commit an error in law by allowing the hearing to go ahead; and
2)would a substantial injustice arise if the decision were to remain unreversed?
I will, in due course, address these questions.
I next deal with the main elements of the BDT's decision.
BDT decision
The BDT, at its hearing of 12 December 2008, decided to go ahead with the proceedings regardless of the absence of Mr Grasser and the medical certificate provided to the Tribunal. The BDT decided that no further delay should be allowed since the matter had been ongoing for three and a half or more years. The BDT said that it was regrettable for the proceedings to continue but it was in the interest of both parties.
The respondents travelled from Ireland to attend the hearing. This was the second hearing on the same matter, and Mr Grasser admitted that rectification of the floor was required. The purpose of the hearing was only to determine the quantum of the cost involved. The evidence before the BDT was that of Mr Aitken, Mr Keily, and Diamond Timber Flooring. Diamond Timber Flooring had submitted a quote of $14,106 for the work to be done.
Mr Grasser was aware of the content of the evidence of Mr Keily and Diamond Timber Flooring. During the hearing, the BDT scrutinised the estimation of Diamond Timber Flooring and reduced the cost on a per item basis, and also rejected some of the claims suggested by Diamond Timber Flooring. Although Mr Grasser's partner was on the line, it was not expected of her to answer technical questions but merely to listen to the proceedings and answer some basic questions.
The BDT decided, after all the evidence had been considered, to award an amount of $7,160 to be paid by Mr Grasser to the respondents.
I will now briefly deal with the submissions made to me by Mr Grasser and by Ms Vagg.
Submissions
Mr Grasser claimed he was denied the opportunity to be heard; that he felt sick on about 2 December 2008; that he was seriously ill with depression; that he considered self‑harm and that he had gone to seek specialist medical advice. He admitted that rectification work had to be done, but he was not in a physical or a mental state to do the work himself and therefore an order to pay was appropriate.
Mr Grasser was emphatic that he does not want to escape his responsibilities, but he also explained that he was facing financial hardship with the downturn in the economy. He said that, if possible, he would like to 'save a few dollars' by asking a colleague to do the work on his behalf. He said that he had not made any proposal to fix the work since August 2008 when the inspection took place.
Mr Grasser wanted to appoint somebody to act for him at a next hearing if the review was successful and if he was unable to represent himself. He said that it was not clear what the problem was with the kitchen floor. That, according to him, was yet to be established since he does not necessarily accept the evidence of Mr Aitken. Although he attended the inspection, there was no opportunity for him to argue with the inspector on‑site.
As far as the cost of repairs are concerned, Mr Grasser said that Diamond Timber Flooring had told him after the hearing that they had calculated the price to be approximately $7,000 and then doubled it because they did not want to do the work.
Mr Grasser also said that he was not aware that he could make, or should have made, written submissions to the BDT before the hearing.
Mr Grasser believes that he could arrange for the work to be done at about $3,000, but then he also admitted that he does not have the funds available to pay for it.
That is as far as the evidence of Mr Grasser is concerned.
Ms Vagg said that the proceedings had been delayed for three and a half or more years; that they cannot fix the floors and thus rent the property out; that they are suffering financial loss; and that they wanted the matter to be brought to a close. It is also stressful to them since the matter has been the subject of two hearings. They were concerned that they might not get anything out of the proceedings since Mr Grasser may not be financial.
The previous hearing, which happened in 2007, had to be re‑opened, and Mr Grasser has had more than enough opportunity to state his case to the Tribunal or to effect reparations. Mr Grasser was aware of all of the issues. There was an expert report available to him. There was the inspector's report and there was also Diamond Timber Flooring's quote which was available. Mr Grasser, on his part, did not make any submissions to the Tribunal, nor did he call any expert witnesses or a contractor to support his case.
Mr Grasser admitted that the problem had to be fixed and that the only issue was therefore that of cost, but yet he made no submission in regard to costs. In earlier proceedings, Mr Grasser was accompanied by a builder, and according to Ms Vagg, there is no reason why, at the hearing in December of 2008, he could not have been represented either by a lawyer or by another builder. He could also, according to Ms Vagg, have made submissions in regard to cost, because he knew that was the issue in dispute.
Ms Vagg concluded in her evidence by saying that the BDT was very sympathetic in the way that it conducted the hearing. It even reduced the final amount by a further $600 to accommodate the financial position of Mr Grasser.
Next I will deal with the consideration of the evidence before me.
Consideration
I have taken account of all the submissions and evidence before me.
Grant of leave to review the decision of the BDT is within the discretion of the Tribunal.
The mere fact that the Tribunal would have case managed the matter in a different way, or that I may have granted an adjournment following the medical certificate, does not necessarily mean that the BDT erred in the way in which it exercised its discretion.
At face value, the decision of the BDT to continue the hearing in the absence of Mr Grasser offended natural justice. Dr Prott, in his letter of 23 December 2008, set out in great detail what the condition of Mr Grasser was at the time, and why he believed it was grossly unfair and improper for the hearing to have continued. He also demanded that the BDT compensate Mr Grasser for the angst and anxiety caused to him, but the issue before the Tribunal is more complex than it appears at face value.
All of the background events leading to the decision must be taken into account to determine if Mr Grasser has had a fair and reasonable opportunity to be heard.
The rules of natural justice are not limited to what happens on the day of the hearing. It also takes into account if a person used the opportunity prior to the hearing to make his views known or to arrange for witnesses to be present at the hearing and to give evidence. The fact that the hearing went ahead in the absence of Mr Grasser does not automatically mean there was an error in law by the BDT.
While a person has the right to be heard, the conduct of the person in the events leading to the hearing and at the hearing must also be such that he uses all the opportunities at his disposal to make his views known to the BDT and to call witnesses that are supportive of his case.
Two questions arise for me to determine:
1)was Mr Grasser given an opportunity to be heard; and
2)if not, would it give rise to a substantial injustice if the decision of the BDT remained?
I will deal with each of these questions separately.
Was Mr Grasser given an opportunity to be heard?
Mr Grasser was aware of the proceedings before the BDT. The proceedings had been ongoing for more than three years. He requested for the matter to be re‑opened after a first hearing had already been concluded. The BDT agreed to re‑open the proceedings. Mr Grasser attended the site inspection and could have taken along any expert or contractor of his choice to accompany him.
Also at the site inspection was the respondents' expert, Mr Keily. Mr Grasser did not take an expert or contractor to the inspection. If he had any doubt about the reason for the problems in the kitchen, this was an ideal opportunity for him to have taken an expert or contractor along to investigate the possible cause.
After the inspection, he received a report from Mr Keily and Mr Aitken. He also received a letter from Mr Keily to say that Mr Keily stands by his earlier report.
I am therefore satisfied that Mr Grasser knew of at least two reports that were prejudicial to him; that of the inspector and that of the expert. Nevertheless, he did not instruct an expert or contractor to give evidence on his behalf during the hearing. He says he wanted to give it personally, but nothing was submitted to the Tribunal.
There was also no other expert to challenge the findings or to propose remedies to the Tribunal. Mr Grasser has been aware of the proceedings and of the hearing since August 2008, and nevertheless, he made no submissions. He did not arrange for an expert to give evidence. He did not submit an outline of his own evidence. He did not seek legal representation and he did not arrange for a contractor to give evidence on his behalf.
Mr Grasser said that he would have relied only on his own evidence at the hearing. Mr Grasser knew for at least a week in advance that he could not attend the hearing. He was informed by the BDT before the hearing that the matter would go ahead, but what is more important is that he knew for at least four months before he fell ill of the pending hearing.
If assessed in isolation, the BDT acted harshly by refusing to adjourn the proceedings, but if it is assessed in the context of all the background information, then I can see why the BDT decided, in the interest of fairness, justice and finality, to proceed with the hearing.
In these proceedings before me, Mr Grasser says that he can do the work for about $3,000, but again, no evidence to that effect was given; only his assertion.
I am satisfied that the BDT took all the information before it into account. The BDT was chaired by a person trained in law. He was assisted by an expert from the building industry and a consumer member. All of the background information was available to them and they were required to balance it in the interest of both parties.
This Tribunal is satisfied that sufficient opportunity was given to Mr Grasser to oppose the application and to give reasons why he opposed it. I am also satisfied that he had sufficient opportunity to submit his own costings to fix the problem to the BDT or to have requested a colleague who would do the work on his behalf to submit a costing. Neither of those was done. Due to his own actions, or perhaps his carelessness, Mr Grasser did not avail himself of the opportunities the BDT offered.
Mr Grasser could have made submissions; appointed a representative, called an expert witness or submitted a quote from a contractor as to the cost to undertake the work but he did none of those.
The Tribunal concurs with the BDT that it was not in the interest of justice or fairness to delay the proceedings.
I therefore conclude that no error of law was committed by the BDT when it allowed the proceedings on 12 December 2008 to continue.
Would a substantial injustice be suffered if the decision remained unreversed?
Even if I am wrong, and on appeal to the Supreme Court it is found that the rules of natural justice had been breached, should leave be granted on the basis that a substantial injustice would occur if the decision remains unreversed? There are three cases that I want to refer the parties to.
The first is that of Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 (Tangent Nominees). In the Tangent Nominees matter, the Tribunal held that a mere error in law is not enough to grant leave, but it must also be satisfied that a substantial injustice would arise if a decision is unreversed.
In the matter of Wilson v Metaxas [1989] WAR 285 at 294, it was held that the jurisdiction to hear the appeal was founded upon the grant of leave. The grant of leave lies in the discretion of the court stated as follows:
The grant of leave lies in the discretion of the court. In general however, it must be shown that the decision in respect of which leave is sought is wrong or at least attended with sufficient doubt to justify the grant of leave and in addition that substantial injustice would be done by leaving the decision un‑reversed.
The requirement that substantial injustice be shown is no more than a guide for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is a substantial injustice must depend on all the circumstances of the case.
The next case I refer to is that of Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 316. In this case, the Full Court stated as follows:
It will not normally be sufficient that the decision that is appealed is apparently wrong or tendered 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.
Then the final quote is that of Tangent Nominees at [41]:
The overall purpose of leave must remain the same namely to minimise the number of applications for review. The above criteria remain a useful measure by which to screen matters to ensure that appropriate cases are reviewed without opening the doors to what would amount to almost an unrestricted right of review. It has been recognised that it would frustrate the intent and purpose of the legislation on which the Disputes Tribunal jurisdiction is founded to strictly adhere to ordinary principles of appeals, in cases of appeal from the Tribunal. This is because that legislation intends that the Disputes Tribunal should provide a relatively speedy and inexpensive remedy in building disputes. On this reasoning it has been held, under the former appeal regime, that the District Court should be slow to grant leave to appeal or to allow appeals except in cases where clearly there is no discernable 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 …
The BDT in these proceedings made an order to pay to the amount of $7,160 after it critically analysed each of the cost items proposed by Diamond Timber Flooring. Some of the estimations submitted by Diamond Timber Flooring were reduced and some were dismissed entirely. In the proceedings before me, Mr Grasser took issue with the cost of sanding accepted by the BDT as $35 per square metre and said that he could have it done for $25 to $30, but it must be taken into account that this is piecework and it is generally accepted in the industry that rectification work is generally more expensive to do.
The amount of $35 is therefore not, as far as the Tribunal is concerned, excessive. Mr Grasser did, in any event, not make submissions to this Tribunal or to the BDT as to what he believed should be an appropriate order to pay. He suggested that he could have had the work done for about $3,000, but there was no supportive evidence to that effect. He was vague and unable to say who would actually do the work. He also admitted that he had not made an offer to the respondents to rectify the work in a manner that he now proposes.
Several of the other cost items submitted by Diamond Timber Flooring were either dismissed or reduced by the BDT. The BDT recorded that Mr Grasser could not remedy the floor, and that he confirmed to this Tribunal that he could not do the work but that he would like to ask a friend or a colleague to do it. He suggested he might be able to have it done at an amount of $3,000, but he also said in his evidence that, even if he was ordered to do it, he does not have the money to pay the $3,000.
It appears to me that the rationale for the application for review comes down to what Mr Grasser said was the desire to 'save a few dollars'.
While I understand Mr Grasser's wish to save money, that does not equate to a substantial injustice, especially in the absence of credible evidence to suggest an alternative amount.
The mere fact that Mr Grasser is of the view that the work can be done cheaper is not a ground for review and is not a substantial injustice. Mr Grasser knew the proceedings before the BDT was to determine costs. He received reports from Diamond Timber Flooring, Mr Keily and Mr Aitken, and yet he made no submissions or presented any evidence.
The BDT used its own expertise to challenge the claim for costs submitted by Diamond Timber Flooring and concluded that a proper amount was that of $7,160. All of this was done in the absence of any submissions by Mr Grasser.
It is not clear to me what injustice would arise if the decision of the BDT was left unreversed. Mr Grasser failed to demonstrate that, even if the BDT erred by allowing proceedings to continue, a substantial injustice may remain unrectified if the order to pay remained unreversed.
The BDT did not, in my opinion, prevent Mr Grasser to be heard in the proceedings. Mr Grasser, through his own lack of involvement either personally or through representation, brought the detriment to himself.
Finding
The finding of the Tribunal is that:
(a)no error of law was made by the BDT when it allowed the hearing on 12 December 2008 to continue; and
(b)even if an error in law had been made, no substantial injustice would be caused if the decision of the BDT remained unreversed.
The application for leave to review the decision of the BDT order to pay 108 of 2008.09 must therefore be refused.
The Tribunal must in closing emphasise to Mr Grasser that we were most sympathetic to his medical condition that became known in early December 2008, but his actions prior to the onset of the condition in December 2008 and his failure to make representations to the Tribunal showed carelessness and a lack of will on his part to participate in the proceedings.
It must be stressed that it is not Mr Grasser's lack of action after 3 December 2008 that is problematic. It is lack of involving himself since August 2008 that reflects on his behaviour. Although these proceedings may have contributed to his state of mind, his failure to make submissions, his failure to submit outlines of evidence of an expert and his failure to seek to obtain legal or other representation prior to 2 December 2008 may also have contributed to his condition and the stress that he experienced.
Orders
The orders I make are then as follows:
1.The application for leave to review the decision of the Building Disputes Tribunal, order to pay 108 of 2008.09 is refused.
2.The decision of the Building Disputes Tribunal is affirmed.
3.The stay order dated 8 January 2009 is removed and Mr Grasser must pay the amount of $7,160 forthwith to the respondents.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
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