HIGGINS and MARKLAND
[2017] WASAT 87
•22 JUNE 2017
HIGGINS and MARKLAND [2017] WASAT 87
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 87 | |
| 22/06/2017 | |||
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:288/2017 | ||
| Coram: | MS C WALLACE (SENIOR MEMBER) | 26/04/17 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BROCK HIGGINS ALAN MARKLAND DIANNE LILLIAN MARKLAND |
Catchwords: | Building Services (Complaint Resolution and Administration Act 2011 (WA) Review of building remedy order Building Commissioner unable to review building remedy orders No jurisdiction to review underlying building remedy order when s 51 application is made Tribunal review jurisdiction Whether application lacking in substance and misconceived Whether application bought for improper purpose |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 6, s 7(1), s 9, s 10, s 11, s 11(1)(c), s 36, s 36(1)(b), s 37, s 51, s 57, s 57(1)(c) State Administrative Tribunal Act 2004 (WA), s 20(1), s 29, s 29(1), s 47, s 47(1)(a), s 47(1)(b), s 78(1) State Administrative Tribunal Rules 2004 (WA), r 9 Pt 2 Div 1, r 10 |
Case References: | Nelson v Mardesic (1999) 22 SR (WA) 42 |
Orders | 1. The proceeding is hereby dismissed pursuant to section 47(1)(a) and (b) of the State Administrative Tribunal Act 2004 (WA). |
Summary | The applicant, Mr Brock Higgins, sought review pursuant to s 57 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) of Building Remedy Order no 36 of 2017 (BRO 36 of 2017) issued by the Building Commissioner. BRO 36 of 2017 was made following the respondents, Mr and Mrs Markland, applying to the Building Commissioner pursuant to s 51 of the BSCRA Act to revoke an earlier building remedy order, being Building Remedy Order no 209 of 2016 (BRO 209 of 2016), which required the applicant to perform remedial building works within a specified time. That order had not been complied with by the applicant. In making BRO 36 of 2017 the Building Commissioner found that BRO 209 of 2016 had been breached and therefore revoked the order and made a new building remedy order requiring the applicant to pay to the respondents the costs of a third party contractor performing the remedial works.,The applicant contended that he was not the person who had performed the original building service, the subject of the building service complaint, and that he was merely a subcontractor engaged by his father, who was the regulated service provider for the purposes of the BSCRA Act. The applicant contended that the Building Commissioner did not have jurisdiction to make the original building remedy order, BRO 209 of 2016, and therefore was unable to revoke and replace that order with BRO 36 of 2017. ,The Tribunal found that the applicant was seeking, through the guise of a review of BRO 36 of 2017, to essentially seek review of an order now revoked, being BRO 209 of 2016. The Tribunal found that the applicant ought to have sought review of BRO 209 of 2016 together with a request to extend the time period within which to make the application. The applicant chose not to pursue that course of action. The Tribunal found that neither the Building Commissioner, nor the Tribunal standing in the position of the original decisionmaker, could review the earlier order in the absence of a s 57 review application having been made given that the only question arising on a review of a decision made under s 51 of the BSCRA Act is whether the work specified to be performed had been performed and, if not, what the reasonable costs would be for a third party to perform those works. There was no jurisdiction for the Building Commissioner, nor this Tribunal on a s 51 application, to reconsider all of the preliminary matters required to be decided by the Building Commissioner when the original building remedy order was made pursuant to s 36 and s 37 of the BSCRA Act.,The Tribunal therefore dismissed the application as lacking in substance and/or misconceived and as having been brought for an improper purpose. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : HIGGINS and MARKLAND [2017] WASAT 87 MEMBER : MS C WALLACE (SENIOR MEMBER) DELIVERED : 26 APRIL 2017 PUBLISHED : 22 JUNE 2017 FILE NO/S : CC 288 of 2017 BETWEEN : BROCK HIGGINS
- Applicant
AND
ALAN MARKLAND
DIANNE LILLIAN MARKLAND
Respondents
Catchwords:
Building Services (Complaint Resolution and Administration Act 2011 (WA) - Review of building remedy order - Building Commissioner unable to review building remedy orders - No jurisdiction to review underlying building remedy order when s 51 application is made - Tribunal review jurisdiction - Whether application lacking in substance and misconceived - Whether application bought for improper purpose
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 6, s 7(1), s 9, s 10, s 11, s 11(1)(c), s 36, s 36(1)(b), s 37, s 51, s 57, s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 20(1), s 29, s 29(1), s 47, s 47(1)(a), s 47(1)(b), s 78(1)
State Administrative Tribunal Rules 2004 (WA), r 9 Pt 2 Div 1, r 10
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant, Mr Brock Higgins, sought review pursuant to s 57 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) of Building Remedy Order no 36 of 2017 (BRO 36 of 2017) issued by the Building Commissioner. BRO 36 of 2017 was made following the respondents, Mr and Mrs Markland, applying to the Building Commissioner pursuant to s 51 of the BSCRA Act to revoke an earlier building remedy order, being Building Remedy Order no 209 of 2016 (BRO 209 of 2016), which required the applicant to perform remedial building works within a specified time. That order had not been complied with by the applicant. In making BRO 36 of 2017 the Building Commissioner found that BRO 209 of 2016 had been breached and therefore revoked the order and made a new building remedy order requiring the applicant to pay to the respondents the costs of a third party contractor performing the remedial works.
The applicant contended that he was not the person who had performed the original building service, the subject of the building service complaint, and that he was merely a subcontractor engaged by his father, who was the regulated service provider for the purposes of the BSCRA Act. The applicant contended that the Building Commissioner did not have jurisdiction to make the original building remedy order, BRO 209 of 2016, and therefore was unable to revoke and replace that order with BRO 36 of 2017.
The Tribunal found that the applicant was seeking, through the guise of a review of BRO 36 of 2017, to essentially seek review of an order now revoked, being BRO 209 of 2016. The Tribunal found that the applicant ought to have sought review of BRO 209 of 2016 together with a request to extend the time period within which to make the application. The applicant chose not to pursue that course of action. The Tribunal found that neither the Building Commissioner, nor the Tribunal standing in the position of the original decisionmaker, could review the earlier order in the absence of a s 57 review application having been made given that the only question arising on a review of a decision made under s 51 of the BSCRA Act is whether the work specified to be performed had been performed and, if not, what the reasonable costs would be for a third party to perform those works. There was no jurisdiction for the Building Commissioner, nor this Tribunal on a s 51 application, to reconsider all of the preliminary matters required to be decided by the Building Commissioner when the original building remedy order was made pursuant to s 36 and s 37 of the BSCRA Act.
The Tribunal therefore dismissed the application as lacking in substance and/or misconceived and as having been brought for an improper purpose.
Category: B
Representation:
Counsel:
Applicant : Mr Gavan Kelly
Respondents : Self Represented
Solicitors:
Applicant : Wojtowicz Kelly
Respondents :
Case(s) referred to in decision(s):
Nelson v Mardesic (1999) 22 SR (WA) 42
Introduction
1 The proceeding involved an application made by the applicant, Mr Brock Higgins, pursuant to s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act2011 (WA) (BSCRA Act) against the respondents, Mr Alan Markland and Mrs Dianne Markland, seeking to review a building remedy order made by the Building Commissioner on 7 February 2007 (Building Remedy Order 36 of 2017) (BRO 36 of 2017).
2 The proceeding was listed for three separate directions hearings before the Tribunal and at the third directions hearing on 26 April 2017, the application was dismissed pursuant to s 47 of the State Administrative Tribunal Act2004 (WA) (SAT Act) on the basis that it was lacking in substance and/or misconceived and had been brought for an improper purpose.
3 The legal representative acting on behalf of the applicant wrote to the Tribunal on 22 May 2017 requesting that the Tribunal provide written reasons pursuant to s 78(1) of the SAT Act. These published reasons have been provided in response to the applicant's request for written reasons.
History of the proceeding
4 The review application was lodged with the Tribunal on behalf of the applicant on 20 February 2017. It purported to seek a review of BRO 36 of 2017. BRO 36 of 2017 made the following two orders:
1) Pursuant to s 51(2)(a) of the Act, BRO no 209 of 2016 dated 5 July 2016 is hereby revoked.
2) Pursuant to s 51(2)(b), Brock Higgins is to pay the amount of $32,340 to Alan Markland, Dianne Lillian Markland being the reasonable costs of remedying the building service at 26 Oakover Road, Middle Swan.
5 BRO 36 of 2017 was to be complied with within 14 days of the date of the order, that is, by 21 February 2017.
6 The review application itself was unsigned but appeared to have been prepared by the applicant's legal representative. In the section of the application requiring the applicant to identify 'what decision do you want the SAT to make?' the following information was provided:
7 The applicant seeks the following orders:
1. That the Building Remedy Order made on 7 January 2017 [sic] be revoked.
2. That the applicant is not the builder responsible for the construction of the works the subject of the complaint.
[3] That the applicant is not liable to carry out any rectification work on the property situated [at] 256 [sic] Oakover Road, Middle Swan.
8 In the section of the application requiring the applicant to identify 'on what grounds are you seeking review?' the applicant provided:
The applicant was not the builder of the works. If the applicant is the proper party liable under the building order (which is denied) then the applicant was denied access to the Property by the respondent nor granted access to the Property by the Building Commissioner to carry out an inspection or rectify the work.
9 The proceeding was listed for an initial directions hearing before the Tribunal on 28 March 2017. On this occasion, as is the normal practice of the Tribunal, the presiding member raised with the applicant's legal representative issues evident on the application. The Tribunal queried with the legal representative whether the application was lacking in substance and/or misconceived in that it appeared to be seeking review of an order which the Building Commissioner had revoked, being Building Remedy Order 209 of 2016 (BRO 209 of 2016). Reference to the transcript is useful in this regard:
WALLACE MS: Now, your client has sought review of building remedy order 36 of 2017.
KELLY, MR: Yes.
WALLACE MS: Now, that is an order where an owner who has already had a building remedy order issued in their favour for work to be performed, and I presume that had been done prior to this order because it refers to a previous building remedy order which is revoked. The purpose of this order is simply to convert that prior order to a monetary amount, so when you seek review of this order, the only question on the review and the only jurisdiction the tribunal has is to make a financial order, so the only question on a review of this building remedy order is whether the 32,000 was the appropriate amount to reflect the work that was required to be done in building remedy order 2009 of 2016.
Now, what often happens is people become a bit confused. They don't like the quantum that they're suddenly lumped with, and what they try to do, through a review of the subsequent order, is to raise issues that really are only relevant if they had sought review of the earlier order, which presumably wasn't questioned, wasn't sought review of, and simply stood as it was issued. Now, your application is exactly doing that; the issues you raise in your application are not appropriate at this stage of the review.
They are relevant to a review of building remedy order 209 of 2016 but clearly you can't review that building remedy order because you're way out of time. So, at the moment , soon as I read it, I thought we have a problem here because all the things that are relevant to a review of this subsequent order there's nothing of that nature raised in the application at all, and, at the moment, I don't see any substance in it for that reason.
KELLY, MR: The issue, as I understood it, was that the applicant couldn't obtain any access to the property and also the applicant wasn't in fact the person who was responsible for the carrying out of the building work.
WALLACE MS: Well, I will stop you there. If that's the case, and they had an order issued against them and I don't have a copy of that order because your haven't provided it to me but presumably that order from 2016 required them to perform work, so if your client's position was, 'I'm not the appropriate entity', then they should have sought review of that order issued in 2016. That's when that issue is relevant, and they've not, for whatever reason, so you can't now say in what is a conversion all the Building Commission has done is convert an order to money, which is all we can do on a review.
We're not going to look at whether your client was the appropriate person because they've really given up the right to raise that argument because, for whatever reason, they didn't choose to seek review of the earlier order, which would have required them to do [the] work, and we see reviews of those orders all the time on that basis, but that is not a question in a conversion, so your client sought review of a conversion, and that the only outcome can be money.
Now, whether it's a small amount of money or a large amount of money depends on the factors, obviously, involved in why the work wasn't done, but not your client saying, 'Well, the order should have never have been issued against me in the first place,' because if they truly held that position, then no doubt they would have sought review. I mean, they get a letter from the Building Commission telling them that they have review rights. They chose not to do that, so this is about money and whether the 32,000 was an appropriate quantum, and there's nothing in the application at all that addresses that question.
KELLY, MR: Yes. Yes.
WALLACE MS: It simply talks about things that would have been relevant if your client had sought review of BRO 209 of 2016, so I'm not going to allow those sorts of issues to be agitated in this review because they're simply not relevant. You know, you saying that the applicant is not liable to carry out the rectification well, they should have said that when they were ordered to carry out the rectification, and they didn't, so they've not done it, and the respondents in this matter no doubt have sought to convert that order, as they're entitled to do, and they did.
And the Building Commission was satisfied of two things: (1) the work wasn't done; and (2) that there was some quotes before them that reflected the reasonable third party costs of someone else, which is what they're entitled to. Now, I don't know if your client provided some costing third party costing evidence to the Building Commission. Maybe they didn't, so the Building Commission maybe had whatever information it had before them. It would have approached your client to get your client's evidence on costings.
I don't know if your client provided that or not, but I will get the file, and I will determine that, but the issues that you raise in the application certainly would be relevant to a review of the earlier order, but, as I said, you're almost, you know what is it, eight or nine months out of time to do that. So your client maybe they didn't obtain advice at the time, maybe they should have, but they are where they are, and the only action can be a monetary order against them.
At this point there's not going to be a determination now looking at the issues relevant to the earlier building remedy order that was issued. It's just inappropriate. It's not part of the jurisdiction as far as this review goes …
KELLY, MR: … I don't have all of that information although I had requested it, I don't have it all available, so the question probably I really need to do is just get some further instructions from the applicant which may, in fact, result in the matter simply being withdrawn by the applicant in the light of your comments.
(T:35; 28.03.2017)
10 The directions hearing on 28 March 2017 was adjourned to a further directions hearing on 11 April 2017. That period was afforded to the applicant so that his legal representative could obtain instructions as to whether they wished to withdraw the application or seek to amend it. On 10 April 2017, the applicant filed with the Tribunal, a minute of proposed orders and an affidavit sworn by the applicant dated 7 April 2017. The affidavit of the applicant made it clear to the Tribunal that the applicant intended to continue to seek review of BRO 36 of 2017 on the basis that the applicant was not the person who performed the building service (paragraphs 5, 7, 8, 9, 12, 13, 15, 16, 24, 36 and 37).
11 The factual context surrounding the issuing of BRO 209 of 2016 and BRO 36 of 2017 is able to be pieced together from a review of the sworn evidence of the applicant. The original complaint lodged by the respondents with the Building Commissioner was a building service complaint alleging faulty or unsatisfactory work in relation to the construction of an alfresco and veranda at 26 Oakover Road in Middle Swan. The Building Commissioner found that the person who performed the regulated building service was the applicant trading as 'Higgins Contractors'. It appears that the applicant's father, David Higgins, may have performed some of the works together with his son, the subject of the initial complaint. However, the applicant contends that it was his father who in fact was responsible for the building service and to whom he was only subcontracted.
12 The Tribunal, again on 11 April 2017, raised with the applicant's legal representative, the concerns raised on 28 March 2017, that the review application appeared to be targeting the underlying building remedy order, being BRO 209 of 2016. That order, however, had been revoked and was no longer in existence. The relevant exchange is set out below:
WALLACE MS: Everything you're raising you must accept this proposition. Everything you're raising is what you would have raised, had the original building remedy order been reviewed. What you're saying is, 'We can fail to exercise our review rights about all these issues, and when you make a subsequent order, we will sneak in through that one and attack the original order.' Now, you must know, this is how this tribunal has operated all the way through this jurisdiction for the past six years.
We've not allowed anybody to do that. That's [why] I raised it. You're not the first your client is not the first person that has attempted to attack the order when they didn't like the quantum they were going to get when they didn't comply. …You don't get to exercise that review right, significantly out of time, because there's a new order that has been issued. I'm not going to allow you to open up those issues.
I think it's almost an abuse of process. That's why I raised it with you in the first instance, and I'm disappointed that, effectively, what I see is exactly what you raised with me two weeks ago. I think it's misconceived and lacking in substance, because I think this is an application seeking to attack an order that was never reviewed. What you ought to do is seek review of that order out of time.
Unlikely to get an extension of time because it's significant, but that would be the proper process, not attacking this one and raising issues about the underlying order. I think it's entirely inappropriate and we don't let anybody else do it, but you're saying that we should now do that. And that's significant departure from this tribunal's normal approach with these. That would open the Pandora's box.
That would, basically, say to people, 'You can not comply with this BRO. You don't need to review it. You don't need to contest it until it's converted; then you get to go right to the start.' And what about the consumers that sit there, thinking that they've got orders protecting them? Suddenly, those orders are open to attack a year later, two years later.
KELLY, MR: And the point about this one, though, is where you have the Building Commission properly seized with jurisdiction in relation to a matter. And I hear what you say about opening the
WALLACE MS: Well, raise it on review. Your client has automatic review rights. They don't need leave. They have a period of time. They seek review. They open up all those jurisdictional points, and they are raised in review matters as a matter of course. It doesn't mean your client is right
KELLY, MR: No.
WALLACE MS: but they have the right to raise them, and they didn't.
KELLY, MR: And I think this part of where the administrative process is breaking down, with lay people dealing with the initial order, you know. It may clearly be in black and white as to what they
WALLACE MS: They've got the letter that sets out their review rights.
KELLY, MR: Yes, that
WALLACE MS: They're able to read the letter, and there's lots of lay people that come here seeking review every day. I've got several today; they don't have lawyers. So a lot of people are understanding their review rights, and they come in here and they exercise them. They have a letter that says, you know, 'You have a period of time within which to seek review. You don't need leave. You just file an application,' and they do and they do come in here.
So I'm not I’m really not minded to do that. I'm happy if you don’t agree with me, I'm happy to give you seven days to file submissions on that point, but I will not be listing this for a hearing to allow those kinds of matters to be articulated. I think it's improper. All you're reviewing is BRO 36 of 2017, yet the documents you filed all refer to the underlying order that wasn't reviewed.
KELLY, MR: On the second element of it, it is an issue of quantum as well. Again, as you can see
WALLACE MS: Well
KELLY, MR: from the affidavit, the applicant hasn't had the opportunity of going out and having it inspected, looking at the extent of the work that needs to be rectified.
WALLACE MS: Well, when it's about quantum, I get the application and I get quotes and things, and I you know, that's fairly straightforward. They send people in, they have a quote. You're saying you don't agree with the quantum, but they've not got any quotes and they have no idea what their quotes would be. So, to me, I'm not seeing the substance of that at all, you know. I said to you last time, 'Where's the substance of this application?' and all I see is, again, the attack of the underlying order.
KELLY, MR: On that other point, though, on the question of the quantum, though, in order to be able to get the quotes, the applicant is going to need to be able to have somebody go out and have a look at the extent of the workmanship, so that a quote can be obtained. But it certainly does challenge the quantum of the quote as well.
WALLACE MS: Okay. Well, I have not seen anything along those lines at the moment. When I read this, I thought it was misconceived and lacking in substance. I thought it was a review of the second order to attack the first one, which we see from time to time. And we say to people, 'You know what? You can't seek review of that; it's about this one,' and, usually, they withdraw because what they're really unhappy about is the original order.
And that's exactly how this reads and I have a lot more material here than I would with any other review application, so it's abundantly clear to me that that's the major concern of your clients. And I need to ensure that this application is appropriate to continue and, at the moment, raising these matters, I'm of the same view I expressed to you two weeks ago; I'm really concerned. That's why I wanted your client here.
… I think that you're trying to achieve something that you can't achieve through this proceeding.
I think if your client was strenuously unhappy with the first BRO, then they should have exercised their review rights, which is exactly what they've done now. So they were certainly able to obtain advice then and exercise those rights. They've chosen not to, for whatever reason.
…
KELLY, MR: The other issue is, really, one of quantum, but in order to do that, the applicant needs to be able to have somebody have a look at the works.
WALLACE MS: Well, if you’re saying that's all you’re pursuing and you're withdrawing all of this, then we've got something to talk about. But if you're pursuing all of this, then I've got a concern about the nature of the application. So that's where I presently stand. So if you're saying to me, 'Well, don't worry about all of this, it’s all about quantum,' then I'm happy to open up and talk about quantum.
… But as it presently sits, I'm not comfortable dealing with it[.]
KELLY, MR: In those circumstances, certainly, there is the live issue about the quantum, and I hear what you say in relation to the jurisdictional issue. The question, I suppose, is whether that jurisdiction has merged in with the order. As you can see from the material, the Building Commission seem to think that they were seized with jurisdiction at the time. And then, if it is the case then, to appeal out of time in relation to the original order, then it may very well be the case that the applicant would like to do that; however, I would need to get instructions on that point.
…
WALLACE MS: But you've read the cases, as I have, about periods of time, and the factors on which we would extend. The period of time is significant in those decisions, and this is a large period of time. So, you know, the chances of success, I would have thought, would be minimal. They've decided to just try and do the work, presumably, when that BRO was issued, rather than contest it.
KELLY, MR: Yes. They were endeavouring to, at least, go onto the site in order to determine whether there was things that needed to be done.
WALLACE MS: Yes. So they were seeking to comply … So that's in
KELLY, MR: Well - - -
WALLACE MS: - - - contradiction to exercising review rights.
WALLACE MS: … the Building Commission has formed a view about that, as they do when they convert these orders. They can either refer it to the tribunal, where they're uncertain whether somebody has interfered with an ability to comply, but where they convert their own orders, they're satisfied, on the evidence they have before them, that it's appropriate to do that.
…
MARKLAND, MS: They just never came back. We had to get other builders in to fix the leaks. The roof was pouring down. It was flooding. It was - every time we phoned up, they were at a you know, they wouldn't phone back. …
…
MARKLAND, MS: And the reason that we didn't have them back again and they keep saying, 'It's been three years. It's been three years' - they wouldn't come back when I phoned them.
(T:3-10; 11.04.17)
13 It is important to note that the affidavit of the applicant, dated 7 April 2017 which was filed in order to substantiate that there is substance in the review application, almost exclusively deals with what the applicant's legal representative refers to as the 'jurisdictional issue'. That is, that the applicant is not the person who performed the relevant building service. In the Tribunal's view there are only two paragraphs in the affidavit which may relate to the issue as to whether the quantum of BRO 36 of 2017 is appropriate, being paragraphs 28 and 35 (set out in full in these reasons at [37]).
14 The attachments to the applicant's affidavit which comprise copies of correspondence exchanged between the applicant and the Building Commission, in addition to email correspondence exchanged between the parties, evidences that the applicant accepted the initial BRO 209 of 2016. This is also consistent with the applicant never seeking to exercise his review rights in respect of that order. That order was issued by the Building Commission on 5 July 2016 and provided 28 days within which the applicant was to comply. The applicant has never provided the Tribunal with a copy of BRO 209 of 2016. However, it is accepted that it required the applicant to perform remedial works as specified in that order.
15 On 6 July 2016, Higgins Contractors emailed Mr Markland, after receipt of BRO 209 of 2016, stating the following:
… I need to get in to inspect what you say is wrong. Please phone me so we can discuss it amicably[.]
16 On the following day, Mr Markland responded by email as follows:
Okay, just let me know time and date you intend to do your inspection, Alan
17 The next email Mr Markland received from Higgins Contractors was not until 22 July 2016. There was no explanation by the applicant for this delay of two weeks. That email provided the following:
Hi Alan
I haven't forgotten just been out of the state with work. Brock's apprentice is the boy who has spinal injuries from the football game last weekend, so it has been a bit hectic. Will call you over the next week to make an appointment to come over.
Dave
18 Mr Markland responded on the same day as follows:
Ok
19 Later on, on the same day Mr Markland sent the following email to the applicant:
Dave Don't come around on the weekend[.] I am in Hospital having a lot of tests done phone Dianne if you just want to look[.]
20 The email also provided Mrs Markland's mobile number. The next email from Mr Markland is dated 12 September 2016, some two months later, and provided as follows:
Dave you need to ring Dianne and sort this out once and for all.
(ExhibitBAH4 of applicant's affidavit)
21 Clearly by 12 September 2016, the applicant was in breach of BRO 209 of 2016.
22 The applicant's affidavit also makes it clear to the Tribunal that he was aware of the respondent's application pursuant to s 51(2)(a) of the BSCRA Act seeking to revoke BRO 209 of 2016 and replace it with a monetary order. Indeed a Proposed Building Remedy Order was provided to the applicant on 21 December 2016 (Annexure BAH5 to the applicant's affidavit). The annexures to the applicant's affidavit establish that the Building Commission asked the applicant on a number of occasions to provide his own costing evidence and also informed the applicant that the 'Building Commission does not have the power to make any alterations or changes to an order once issued'.
23 Because the applicant informed the Building Commission that he would be away for the majority of January 2017, they extended time within which the applicant could provide costing evidence to close of business on 3 February 2017 (Annexure BAH7 to the applicant's affidavit). No such costings evidence from the applicant was ever received by the Building Commission and it made BRO 36 of 2017 on 7 February 2017.
24 The Tribunal afforded the applicant until 21 April 2017 by which to file written submissions on the 'jurisdictional issue'. The Tribunal also adjourned the directions hearing to 26 April 2017 in order to consider whether it ought to make a decision under s 47 of the SAT Act.
25 Written submissions were filed with the Tribunal by the applicant's legal representative late on 24 April 2017. Those written submissions effectively set out the following:
1) The Building Commission did not have jurisdiction to make the 'orders' against the applicant because the work carried out was not a regulated building service because the applicant was a subcontractor and had no contract with the respondent. The applicant asserted that the building service was carried out by Mr David Higgins, his father.
2) If the applicant did not carry out a regulated building service then he cannot be the subject of an order under s 37 of the BSCRA Act or s 51 of the BSCRA Act. Inmaking BRO 209 of 2016 and BRO 36 of 2017 the Building Commissioner was therefore acting ultra vires.
26 At the directions hearing on 26 April 2017, the Tribunal dismissed the proceeding pursuant to s 47(1)(a) and (b) of the SAT Act. The following exchange took place between the Tribunal and the applicant's legal representative at that time:
WALLACE MS: … I'm concerned - very concerned about the application. I've got the same concerns I had when I read it because, as I said, I see these on a regular basis where somebody is trying to attack basically the underlying building remedy order even though they appear to be seeking to review the subsequent order and, clearly, they're not.
KELLY, MR: Yes.
…
WALLACE MS: … My view is that to attack the underlying building remedy order, your client would need to seek review of that order. They're obviously out of time.
But the proper thing to do would have been to seek review of that order or seek review of it now and an extension of time within which to do so. It is not appropriate to simply seek review of the second order which is simply a conversion of that building remedy order. My view is there absolutely was jurisdiction to do it. It was a building remedy order, as such, under the legislation and the conversion is simply a finding that it had not been complied with, either wholly or partially, and making a decision about what the reasonable costs to do that work would be and simply converting it.
It's a conversion. If your client had a position, 'I'm not the right party', then they normally raise that right at the start when the Building Commission is in correspondence and negotiations with them about the order that they want to - - -
KELLY, MR: And that was done.
WALLACE MS: Okay. But the Building Commission has made a decision and your client - - -
KELLY, MR: Well - - -
WALLACE MS: - - - as they've done this time, had a review right. They had a letter. The letter said, 'If you're not happy with this decision', like so many others who are respondents to building remedy orders, they seek review of that order. They're informed of that right. They have that right. They don't need leave. They could have done that. They didn't do it. So my view is that fundamentally the application, on the face of it, is clearly an application seeking to review an order issued by the Building Commission in July 2016.
It's significantly out of time. They can't review that through the guise of reviewing subsequent building remedy order. And our position is firm on this. It has been a consistent position for six years. It hasn't changed. You're asking me to basically allow the review of the underlying order where no review was taken through the subsequent order. I'm just I think it's misconceived. I think it's a review for an improper purpose. I've seen your submissions and that's exactly what you’re intending to do.
KELLY, MR: Well, the fundamental issue is the first order was revoked by the second order. And in order to - - -
WALLACE MS: So it's gone.
KELLY, MR: Yes. And in order to seize jurisdiction on any of the orders, they have to have a regulated building service as you can as my submissions lay out. …
WALLACE MS: It's misconceived.
KELLY, MR: If it was gone - - -
WALLACE MS: If you're right, you can make arguments on a conversion of an order attacking the underlying order.
KELLY, MR: Well - - -
WALLACE MS: It means it's pointless.
KELLY, MR: Well - - -
WALLACE MS: It means it's pointless because you have 28 days.
KELLY, MR: But - - -
WALLACE MS: It's all moot because you get another go a year later on your argument.
…
WALLACE MS: Well, what do you say to your client's review right when it's said that there's an error. That's an obvious error. Your client's sitting there saying, 'I didn’t perform this work. I've got a letter that says I can review within 28 days.'
KELLY, MR: Well - - -
WALLACE MS: Why has your client not exercised that right?
KELLY, MR: But but the - - -
WALLACE MS: Why has it preserved - - -
KELLY, MR: But the very point about it is - - -
…
KELLY, MR: - - - right from the beginning. If the Commission operates, ultra vires, its power under the Act because it must do it within the Act.
WALLACE MS: … It made a finding and your client says the finding was in error. No, your client says, 'You made an error in your finding.'
KELLY, MR: Well - - -
WALLACE MS: That's exactly what your client says. Of course they had made findings. They've made findings under the legislation. They find that there's a regulated building service. They find that your client performed those works. They issue an order. If they've made an error, as you say, that's why people have appeal and review rights. And it wasn't exercised by your client. On your argument, you preserved that right. It could be years. Some [orders] are not converted for two years or more.
KELLY, MR: Well - - -
WALLACE MS: Your client goes back to the original order. So where does the other party sit?
KELLY, MR: Well, at that point, how many of these matters come before the - - -
WALLACE MS: Lots. And they're dismissed, Mr Kelly.
…
WALLACE MS: You're not answering my question. Why is that not a review point - - -
KELLY, MR: Well - - -
WALLACE MS: - - - when the building remedy order in July 2016 is issued?
KELLY, MR: There is but there is no evidence at that point.
WALLACE MS: No. Why was that not a review point when the building order was issued in July 2016? You and I know it was.
KELLY, MR: It could have been at that point, yes.
WALLACE MS: It could have been.
KELLY, MR: But then they revoked that initial order.
WALLACE MS: Later.
KELLY, MR: And it's a and it was revoked so it doesn't exist. So at that point, the only order that is alive at the time is the second order where it was converted.
WALLACE MS: No. Well, the order was alive, as you say, from 5 July 2016. It's not converted to 7 February 2017.
…
WALLACE MS: So well beyond your client's review right.
…
WALLACE MS: Your client had 28 days.
KELLY, MR: And once it's revoked once the first order is revoked - - -
WALLACE MS: No, but your client is already out of time, Mr Kelly.
KELLY, MR: But at the second point the point of the second order, it also needed to have jurisdiction to make that second order because it needed to - - -
WALLACE MS: It does because you didn't seek review of the underlying order.
…
WALLACE MS: You can't attack it and say, 'It's fundamentally wrong', when they go to convert.
…
WALLACE MS: The assumption is nobody sought to review. Nobody sought to attack. Somebody has to do that to establish what you're saying now. You don't get in that avenue from reviewing the second order. It's fundamentally wrong, in my mind.
…
WALLACE MS: I've raised it with you, Mr Kelly.
KELLY, MR: Yes.
WALLACE MS: I didn't call it on today to have another debate with you. I called it on to give you my reasons on it. I've given you ample opportunity to address me on it. I encouraged you - - -
KELLY, MR: Yes.
WALLACE MS: - - - to withdraw this line. Your client clearly brought the application to bring this argument. Let me speak now. We've had two directions hearings where you've articulated your views. You've filed an affidavit and written submissions …
KELLY, MR: Yes. Yes.
WALLACE MS: My view is, under section 47 of State Administrative Tribunal Act, that it ought to dismiss that application. I think it is misconceived and lacking in substance. I also feel that it's being brought for an improper purpose. That improper purpose is to try now, significantly out of time without bringing a review application, you're seeking to review the underlying order which was converted by this building remedy order. It's dismissed.
(T:28; 26.04.17)
Relevant legal framework
27 When a complaint is lodged with the Building Commissioner there are a number of preliminary decisions which need to be made, as required by the BSCRA Act, which include the following:
a) whether, and to what extent, the Building Commissioner will either accept a complaint made under s 5 of the BSCRA Act or refuse to accept it (s 7(1) of the BSCRA Act);
b) whether the complaint has been made within the statutory time limit provided (s 6 of the BSCRA Act);
c) whether the complaint relates to a 'regulated building service' (s 5(1) of the BSCRA Act);
d) whether the applicant is a person who has standing to make the complaint and whether they have undertaken any required preliminary action (s 5(5) of the BSCRA Act);
e) whether the complaint has been made in the manner and form approved by the Building Commissioner and accompanied by the prescribed fee (s 5(6) of the BSCRA Act);
d) in respect of a complaint made pursuant to s 5(1) of the BSCRA Act, whether the regulated building service was not carried out in a proper and proficient manner or is faulty or unsatisfactory; and
e) whether the regulated building service was carried out by a registered building service provider or an approved owner-builder (s 3 of the BSCRA Act).
28 The Building Commissioner then causes an investigation to be undertaken (s 9 of the BSCRA Act) and a report on the complaint is prepared (s 10 of the BSCRA Act). The investigation report is then considered by the Building Commissioner and action taken (s 11 of the BSCRA Act). The Building Commissioner is entitled pursuant to s 11(1)(c) of the BSCRA Act to deal with a complaint under s 37 or 42 as the case requires. Relevantly s 37 of the BSCRA Act provides the following:
37. Building remedy order by Building Commissioner
(1) Subject to regulations made under s 11(5), if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may deal with the building service complaint by making a building remedy order.
36. Building remedy order
(1) A building remedy order consists of one of the following
(a) an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b) an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c) an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2) A building remedy order may require that the order be complied with within a time specified in the order.
(1) A person aggrieved by
…
c) a building remedy order made by the Building Commissioner; …
may apply to the State Administrative Tribunal for a review of that order.
31 The time period within which to seek review is set out in r 9 of Pt 2, Div 1 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) which require an application to be made within 28 days of the day on which the decisionmaker gives a notice under s 20(1) of the SAT Act. Rule 10 of the SAT Rules provides the Tribunal with a discretion to extend the time period within which an application can be made.
32 If the Building Commissioner makes a building remedy order requiring work to be performed pursuant to s 37 of the BSCRA Act, and the date for compliance with the order has passed, an application can be made pursuant to s 51(2) of the BSCRA Act. That section relevantly provides the following:
If the responsible adjudicator is satisfied that a building remedy order referred to in s 36(1)(a) to remedy a building service has not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator, the responsible adjudicator may
(a) revoke the order in relation to remedying the building service or the part in question; and
(b) make a building remedy order referred in s 36(1)(b) or (c) in relation to that building service.
33 Relevantly, s 51(6) provides:
Sections 37, 38, 42 and 43 apply to the making of an order under this section.
Consideration
34 It appears clear to the Tribunal, that the applicant intended, by filing the review application in respect of BRO 36 of 2017, to in fact seek review of BRO 209 of 2016. This is despite never filing a s 57 review application in respect of BRO 209 of 2016 and never having sought an extension of time within which to do so. The Tribunal makes this finding on the following basis:
a) The application filed on 17 February 2017 sought three orders that:
1) the building remedy order made on 7 January [sic] 2017 be revoked;
2) the applicant is not the builder responsible for the construction of the works the subject of the complaint; and
3) the applicant is not liable to carry out any rectification work.
b) The application's affidavit of 7 April 2017 focussed almost exclusively on the question as to whether the applicant was the person who had performed the relevant building service, being a finding that the Building Commissioner was required to make when it issued BRO 209 of 2016 (in this regard the Tribunal refers to paragraph 13 above);
c) The written submissions filed on behalf of the applicant dated 21 April 2017 notably provide the following:
• The Building Commission did not have the jurisdiction to make the Orders (paragraph 1);
• The Building Commission did not have jurisdiction to make the Orders against the applicant because the work carried out on the premises was not a regulated building service (paragraph 2);
• BRO 209 of 2016 was purported to be made in accordance with the provisions of s 11(1)(c) and s 37 of the BSCRA Act (paragraph 6);
• If the applicant did not carry out the regulated building service, as he submits, then he cannot be the subject of an order under s 37 of the BSCRA Act (BRO 209 of 2016 was made pursuant to s 37 of the BSCRA Act) (paragraph 17);
• The applicant contends that BRO 209 of 2016 and BRO 36 of 2017 were made by the Building Commissioner acting ultra vires (paragraph 18);
• The applicant maintains that he did not perform the building service (paragraph 20).
36 In addition, the Tribunal must form a view as to whether, if it dismisses the applicant's 'jurisdictional' contentions there remains any other grounds of review which would allow the application to proceed to a hearing. In this regard, the Tribunal notes that there was no application made before it seeking to amend the grounds of the review application or the orders being sought to seek a review of the quantum of BRO 36 of 2017, despite the applicant being legally represented. Although a couple of brief submissions were made on behalf of the applicant at the directions hearings that the quantum of BRO 36 of 2017 was in question, no orders were sought in the application in that respect and no material was filed with the Tribunal to support that contention. The Tribunal also notes that no costing evidence was provided to the Building Commissioner by the applicant prior to BRO 36 of 2017 being made.
37 Although the applicant asserts that he was prevented from complying with BRO 209 of 2016, such fact which if established could impact on the quantum of BRO 36 of 2017 (such principles having been established in Nelson v Mardesic (1999) 22 SR (WA) 42 at 49 (Nelson)), the applicant's affidavit evidence did not support that this was a genuine ground on which the review was being sought. In this regard, the Tribunal notes that many weeks passed from the issuing of BRO 209 of 2016 where no action was taken by the applicant and there was unexplained significant delay in respect of correspondence passing between Higgins Contractors and the respondents (see paragraphs [15] [20]). In addition, the Tribunal notes that the only evidence in this regard was in hearsay form proffered by the applicant set out in paragraphs 28 and 35 of his affidavit as follows:
28. … It was particularly frustrating that my father could not comply with the original BRO because the respondents would not contact my parents.
35. It was impossible for the work to be inspected or remedied because the respondents would not communicate with my parents or make an arrangement for my father to go on site. Nor would the Building Commission facilitate such an inspection.
38 In the Tribunal's view, this evidence does not support the applicant's contention that the review application has substance. This is because there is no evidence before the Tribunal that the applicant himself was prevented from complying with BRO 209 of 2016, which if established could impact on the quantum of BRO 36 of 2017 based on the principles set out in Nelson.
39 The affidavit evidence, albeit in hearsay form, is an assertion that the applicant's father was prevented from gaining access to the respondent's property (although the Tribunal's view is that the email evidence already referred to does not support this contention). However, the inability of the applicant's father to arrange access to the property is not evidence of an interference by the respondents with the applicant's ability to comply with BRO 209 of 2016. If the Tribunal did accept the hearsay evidence as supporting a finding that the respondents prevented compliance with BRO 209 of 2016, then the Tribunal would also need to accept the applicant's 'jurisdictional' argument that it was in fact David Higgins who performed the building service. Thus, both grounds underlying the review application, being the 'jurisdictional' issue and the attack on quantum, are inextricably interrelated. If the applicant cannot now raise his 'jurisdictional' argument, then the Tribunal's view is that both arguments fall away. The quantum contention is not an alternate position; it rests solely on the applicant's ability to raise the 'jurisdictional' point.
40 Turning now to what the applicant characterises as his 'jurisdictional' contention, it is the Tribunal's view that it cannot review BRO 209 of 2016 through the vehicle of a review application purporting to seek review of a subsequent order made pursuant to s 51 of the BRSCA Act. If the applicant's contention was correct, then all of the preliminary decisions made by the Building Commissioner when issuing a building remedy order pursuant to s 37 of the BSCRA Act, which include whether a complaint has been made within time, whether it is in respect of a regulated building service, whether the applicant has the required standing and has undertaken the requisite preliminary steps, whether the relevant building service was proper and proficient or faulty or unsatisfactory, would all be able to be reviewed and re-decided when a s 51 application is made. This cannot be a proper construction of the BSCRA Act.
41 The sections to which the Tribunal has already referred at [27] illustrate that the legislation requires decisions in respect of all of those preliminary matters to be made before the issuing of a building remedy order pursuant to s 37 of the BSCRA Act. Those steps are not a precursor under the legislation for the issuing of a building remedy order pursuant to s 51 of the BSCRA Act. In reaching a decision under s 51(2) of the BSCRA Act the only matters which the responsible adjudicator needs to be satisfied of, as set out in the section itself, is that a building remedy order has 'not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator' and to determine the amount that the person ordered to carry out the regulated building service needs to pay to the aggrieved person which represents such costs of remedying the building service as the Building Commissioner 'considers reasonable' (s 36(1)(b) of the BSCRA Act).
42 There is no statutory provision in the BSCRA Act which enables the Building Commissioner to review its own orders. The legislature has clearly left that review authority with this Tribunal. The legislation therefore does not empower the Building Commissioner to consider, when a s 51 application is made, whether there was some fundamental error in the issuing of the underlying building remedy order.
43 If the applicant's contention is correct and the Building Commissioner did have such authority, there is a complete absence of statutory provisions setting out what orders it could make in those circumstances. For example, this Tribunal has review jurisdiction and its authority is set out in s 29 of the SAT Act. The Tribunal can affirm a decision that is being reviewed, or vary or set it aside and substitute a different decision. The Building Commissioner has been given none of those review functions. Therefore the applicant's contention if accepted would lead to an absurd result. The Building Commissioner, having unilaterally decided to review its own building remedy order and upon reaching a decision that it had no jurisdiction to issue the order, is powerless to revoke it, is powerless to vary it and is powerless to replace it. This would leave the respondents with an order which is unenforceable, and not capable of 'conversion' pursuant to s 51 of the BSCRA Act. The respondents would also be out of time within which to seek review of BRO 209 of 2016 to this Tribunal.
44 Such a contention is nonsensical and simply unsupported on a proper construction of the statutory text itself. The Tribunal, therefore, rejects the contention of the applicant to the effect that the Building Commissioner is able to review an order he makes, pursuant to s 37 of the BSCRA Act, when considering an application in respect of that order under s 51 of the BSCRA Act.
45 In review matters, this Tribunal steps into the shoes of the original decisionmaker (s 29(1) of the SAT Act). The Tribunal is therefore restricted in the same way as the Building Commissioner is on a review. Given that the Tribunal has found that the Building Commissioner is not able to review an underlying building remedy order on a s 51 application, the same therefore applies to this Tribunal. On a review of an order made pursuant to s 51 of the BSCRA Act, this Tribunal therefore is limited to considering whether the underlying order has been complied with and, if not, what the reasonable costs would be for a third party to perform those works. This Tribunal, as is the case for the original decisionmaker, cannot review the underlying order made by the Building Commissioner pursuant to s 37 of the BSCRA Act. The only avenue to undertake such a review, is for a review application in respect of that order to have been made pursuant to s 57 of the BSCRA Act. As noted in these reasons, no such application has been made.
46 It is clear that the application before the Tribunal seeks review of the underlying order BRO 209 of 2016 and given that there is no jurisdiction to do so, the application must be dismissed.
47 Concluding remarks
48 The Tribunal attempted on a number of occasions to assist the applicant's legal representative in relation to the issues raised in these reasons. The Tribunal identified to the applicant's legal representative that the more appropriate avenue would be to seek review of BRO 209 of 2016 and to seek an extension of time within which to do so, together with proceeding with this review application. The applicant chose not to do so, no doubt because that application would be significantly out of time and no reasonable excuse was ever provided to the Tribunal explaining why that application was never made. To then seek to review BRO 209 of 2016 through the guise of a review of a 'conversion' order issued some eight months later is, in the Tribunal's view, not only an application lacking in substance and which is misconceived, but which has also been made for an improper purpose.
49 Orders
The Tribunal therefore made the following order:
1. The proceeding is hereby dismissed pursuant to section 47(1)(a) and (b) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
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