HONEST HOLDINGS PTY LTD and LOLY & ANOR
[2006] WASAT 189
•10 JULY 2006
HONEST HOLDINGS PTY LTD and LOLY & ANOR [2006] WASAT 189
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 189 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:3204/2005 | 18 APRIL 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR T CAREY (MEMBER) DR B DE VILLIERS (MEMBER) | 10/07/06 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application partially successful | ||
| B | |||
| PDF Version |
| Parties: | HONEST HOLDINGS PTY LTD MICHAEL LOLY KARLENE ANNE LOLY |
Catchwords: | Builders' Registration Act 1939 (WA) – Application for leave to review decision of Building Disputes Tribunal – Whether Building Disputes Tribunal erred in refusing to permit legal representation – Whether denial of natural justice in conduct of hearing – Criteria for ground of leave to review – Appropriate course to be followed when reasons for decision deficient – Invitation to Building Disputes Tribunal to reconsider decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) |
Legislation: | Builders' Registration Act 1939 (WA), s 12A, s 12A(1)(b), s 12A(1aa), s 12A(3), s 36, s 41, s 45A, s 45A(2), s 45A(2)(c) Home Buildings Contracts Act 1991 (WA), s 15(5), s 17(1)(a)(i) Home Buildings Contracts Regulations 1992 (WA), Sch 2 State Administrative Tribunal Act 2004 (WA), s 27, s 31 |
Case References: | Lai & Anor and Costa [2006] WASAT 117 Riley v The State of Western Australia [2005] WASCA 190 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 Wilson v Metaxas [1989] WAR 285 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Nil |
Orders | 1. The application for leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 36/200506, dated 26 August 2005, limited to the issues raised in grounds 8, 9 and 10 of the amended grounds for review filed on 10 March 2006 is adjourned in accordance with order 5 below;,2. The application for review of the said decision is otherwise dismissed;,3. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Building Disputes Tribunal is invited to reconsider its decision in relation to the issues raised in grounds 8, 9 and 10 of the amended grounds for review filed on 10 March 2006, consistent with this Tribunal's reasons for decision dated 10 July 2006;,4. The applicant is directed to serve forthwith on the Registrar of the Building Disputes Tribunal:,a) a copy of the application filed on 12 September 2005;,b) the amended grounds for review filed on 10 March 2006;,c) a copy of this order; and,d) this Tribunal's reasons for decision dated 10 July 2006;,5. The application is otherwise adjourned to a further directions hearing on 28 September 2006 pending the Building Disputes Tribunal's further consideration of the matter pursuant to order 3 above. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : HONEST HOLDINGS PTY LTD and LOLY & ANOR [2006] WASAT 189 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR T CAREY (MEMBER)
DR B DE VILLIERS (MEMBER)
- Applicant
AND
MICHAEL LOLY
KARLENE ANNE LOLY
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) – Application for leave to review decision of Building Disputes Tribunal – Whether Building Disputes Tribunal erred in refusing to permit legal representation – Whether denial of natural justice in conduct of hearing – Criteria for ground of leave to review – Appropriate course to be followed when reasons for decision deficient – Invitation to Building Disputes Tribunal to reconsider decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA)
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Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 12A(1)(b), s 12A(1aa), s 12A(3), s 36, s 41, s 45A, s 45A(2), s 45A(2)(c)
Home Buildings Contracts Act 1991 (WA), s 15(5), s 17(1)(a)(i)
Home Buildings Contracts Regulations 1992 (WA), Sch 2
State Administrative Tribunal Act 2004 (WA), s 27, s 31
Result:
Application partially successful
Category: B
Representation:
Counsel:
Applicant : Mr P Monaco
Respondents : Selfrepresented
Solicitors:
Applicant : Godfrey Virtue & Co
Respondents : Self-represented
Case(s) referred to in decision(s):
Lai & Anor and Costa [2006] WASAT 117
Riley v The State of Western Australia [2005] WASCA 190
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
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant applied for leave to review a decision of the Building Disputes Tribunal reflected in an Order to Pay No 36/2005-06 in terms of which the applicant was ordered to pay the respondents compensation of $6364.
2 The State Administrative Tribunal considered each of the proposed grounds of review, against the criteria for the grant of leave as set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119, and save in respect of three proposed grounds, concluded that no error was demonstrated, such that leave should be refused. The State Administrative Tribunal found that the reasons for decision were deficient in that there was no rationale disclosed for the amount of compensation awarded, there were no findings as to the causation of damage for which the applicant was responsible and there was no evidence to support a finding that the cable was burned at 4 metre intervals, which were the issues raised by the three grounds referred to above.
3 It was found in relation to the above three grounds that there would be a substantial injustice if the decision was left unreversed. However, the State Administrative Tribunal considered that the most appropriate course was to invite the Building Disputes Tribunal to reconsider its decision in accordance with the provisions of s 31 of the State Administrative Tribunal Act 2004 (WA) and that the application for leave in respect of the three grounds concerned be adjourned, but that the application be otherwise be dismissed.
The application
4 On 26 August 2005, the Building Disputes Tribunal (the Disputes Tribunal) issued Order to Pay No 36/2005-06 in terms of which the applicant was ordered to pay the respondents the sum of $6364 in respect of:
a) replacement of underground power cable $5675; and
b) costs $689.
5 The applicant has applied for leave to review the decision of the Building Disputes Tribunal reflected in the above Order to Pay. The application for leave was heard on 18 April 2006.
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6 The grounds of the proposed review are lengthy and are summarised as follows. It is alleged that:
1) the Disputes Tribunal did not have jurisdiction to hear the complaint because it was brought more than six years after the building works were practically complete and fit for occupation;
2) the Disputes Tribunal was wrong in fact and in law, and it was against the weight of evidence that the building works were practically complete less than six years before the commencement of the complaint to the Disputes Tribunal;
3) the Disputes Tribunal did not have jurisdiction because the building contract was in excess of $200 000;
4) the Disputes Tribunal "was wrong at law and in fact and the [Disputes Tribunal] went against the weight of evidence to prevent the applicant from having legal representation at the hearing on 24 August 2005" which constituted a denial of natural justice;
5) the Disputes Tribunal denied the applicant natural justice by unfairly preventing expert witnesses from remaining in the hearing;
6) the Disputes Tribunal was unfairly prejudicial and did not allow evidence from the applicant's expert thereby preventing the applicant from submitting its evidence in support of its defence, and further, the applicant was not advised to call its witnesses and the Disputes Tribunal's "Book of Papers" did not include all documents previously provided by the applicant;
7) the Disputes Tribunal's decision was against the weight of evidence as it "did not recognise" that the respondents failed to give the applicant a proper and reasonable opportunity to inspect the alleged fault and rectify the alleged fault at its cost acted in breach of s 12A(3) of the Builders' Registration Act 1939 (WA) (the BR Act);
8) the Disputes Tribunal erred in awarding the sum of $6364 as the evidence established that the fault could have been rectified for significantly less;
9) the Disputes Tribunal failed to find the cause of the alleged failure in the cable and therefore that failure resulted from
- conduct by the applicant and/or its subcontractor and that the evidence led as to the probable cause was vague, unsubstantiated, and incorrect;
- 10) the Disputes Tribunal was wrong in law and in fact as there was no evidence to support the finding that the cable was "kinked and burnt"; and no evidence was led as to what caused the cable to allegedly fail, nor was there evidence led that any cause was attributable to the applicant.
7 Grounds 2, 4, 6 and 7 contain many subparagraphs. In the case of grounds of 2 and 4, the subparagraphs are essentially by way of particulars of the substantive ground. In relation to the other grounds the subparagraphs are related but are in addition to the main ground. For convenience, and to avoid prolixity, the full grounds have not been set out, but have been taken fully into account. Where necessary, reference will be made to the particulars or additional subgrounds.
Background and the reasons for the decision under review
8 The applicant and respondents in these proceedings were respectively the respondent and complainants/applicants in the proceedings before the Disputes Tribunal. To avoid confusion, the parties will be referred to throughout by reference to their status in these proceedings as applicant and respondents, respectively, unless the context indicates otherwise.
9 There is no contractual relationship between the parties. The applicant constructed a dwelling at 114 John Farrant Drive, Gooseberry Hill, pursuant to a building contract entered into with a Mr Patrick Jebb. Central to the dispute is the actual date of practical completion of the dwelling because that might result in the claim being time barred. The respondents purchased the property on which the dwelling is situated from Mr Jebb in about late 2000 or early 2001. As canvassed further below, the complaint before the Disputes Tribunal was made under s 12A of the BR Act which does not depend on the existence of a contractual relationship. Relief can be granted on a complaint by any person if the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner.
10 The reasons for decision reflect that a preliminary hearing was conducted on 10 June 2005 to determine whether the complaint had been made before the expiration of six years from the time when the building work was completed as required by s 12A(1aa) of the BR Act. The
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- applicant was represented by its solicitors and it was noted that the applicant was unable to produce documentary evidence to establish the actual date of practical completion, but asserted that the house had been practically completed early in April 1999 and therefore that the Disputes Tribunal had no jurisdiction. The complaint is dated 9 April 2005, and it appears that date was accepted as the date of filing of the complaint.
11 The Disputes Tribunal relied on correspondence from the Shire of Kalamunda, a confirmation from Western Power that the final ticket for the completion of the electrical work for the premises was received on 3 May 1999, and a photocopy of an installation test certificate displayed in the metre box showing the electrical works as being completed as at 19 April 1999 to support a finding on the balance of probability that the complaint had been filed within time. It was noted that in terms of s 12A(1aa) of the BR Act, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.
12 Although not referred to in the reasons for decision, the Disputes Tribunal "Book of Papers" for the hearing on 24 August 2005 included a copy of a letter dated 13 June 2005, referring to the hearing on 10 June 2005, and setting out that the Disputes Tribunal made the following order –
"1) The Building Disputes Tribunal does have jurisdiction in this matter.
2) The application is adjourned to be set down for hearing."
13 The reasons for decision then proceed to deal with the question of legal representation. It is reflected that the respondent agreed to the applicant being legally represented at the hearing on 10 June 2005. It is stated "Mr Loly agreed for this to occur to facilitate the progress of his complaint. He also made it quite clear that his [sic] was only in respect of that hearing as Mr Marcolina of Atrium Homes was not present, and was not available to attend the hearing".
14 The reasons for decision reflect that when the hearing on 24 August 2005 was convened, the applicant's solicitors sought leave to appear. It was submitted for the applicant that the respondent knew, or ought to have known, that the solicitor intended representing the applicant at the hearing because a statement of that intent had been reflected in a letter sent to the respondent. The respondent opposed the grant of leave.
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15 The reasons for decision then continue:
"The intention of the legislation is that parties to proceedings in the Building Disputes Tribunal are not to be represented. This is clearly set out in S 45A [sic] of the Act.
Section 45A(2) provides for circumstances when representation is permitted. Ss (a) [sic] refers to a claim in excess of $10 000 and Ss (b) [sic] to a situation where the parties consent. Neither these criteria were met in the present case and therefore representation was not permitted under the legislation. Once one or both of these conditions precedent are met then representation cannot be refused and the Tribunal has no discretion.
Mr Monaco argued that the Tribunal should exercise its discretion under Ss(c) [sic] as Mr Marcolina was a 'mere tradesman' and did not have the legal expertise to present his case. Even if this subsection had been available the Tribunal did not accept this argument as the complainant was similarly disadvantaged, and the Tribunal still would have refused to exercise its discretion in favour of the respondent."
16 The reasons for decision then proceed to set out the issues and evidence. There is little conflict in the evidence as to what factually occurred, although there were opposing opinions as to what steps should have been taken to remedy the power outage which occurred. In the circumstances, it is not necessary to set out the facts in any detail.
17 On Sunday, 27 February 2005, there was a complete breakdown in the power supply to the respondents' dwelling. Mr John Giardina, a licenced electrician trading as System Electrical Service Pty Ltd attended on that day. He identified that the fault lay somewhere between the main power line and the house itself. Mr Giardina advised the respondents to put in new cabling for the 100 metre length of affected cabling. The respondents requested that the size of the cable be upgraded from 16 millimetres to 25 millimetres and the conduit to 70 millimetres. Power was restored on 1 March 2005. Mr Giardina spoke to the assessor representing the respondents' insurer and a Western Power inspector, both of whom agreed to the decision to put in the new cable.
18 It is then stated:
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- "Subsequently on 23 August 2005, Mr Giardina went back to the property and observed the cable where it had been dug up and also the kinks in the conduit which had resulted in the wires being exposed. In his opinion it appeared that there were kinks every four metres in the cable consistent with damage caused by the cable being lifted up by the excavator. Another possible cause of the failure of the cable was that although the conduit was originally glued when it was lifted, the joins may have broken apart and the cable may well have been stretched."
19 The reasons for decision reflect that Mr Giardina was cross-examined regarding the upgrading of the cable and conduit which he agreed enabled future use to be expanded. Further, it was put to Mr Giardina that he could have hired a firm such as Unitest to locate the fault instead of installing a $6000 replacement cable. Mr Giardina advised that the upgrade to a thicker cable and larger conduit may have added as much as $1000 to the cost. The reasons for decision reflect that Mr Giardina could not confirm if water in the conduit caused the problem but denied white ants would have done so. He agreed that there could be various contributing factors such as water, manufacture error or ground movement, but in his opinion "the most likely cause for the failure was the cable being picked up and moved by machine which could have resulted in more than one section of the cable itself being nicked, or even in the single insulation being damaged and eventually failing".
20 It is then stated that the next door neighbour, Mr Steve Furmage, gave evidence of how the electrical cabling had been incorrectly laid, in part, on his property, and consequently had to be moved. He described how earth moving equipment was used to achieve that end:
"a trench and mini back hoe were used to dig down to the cables then shovels. After the cables were located the back hoe was used to lift them in the air and drag them across about two metres … When he observed the cables being reinstated he saw exposed wires and lengths of conduit that had separated."
21 The reasons for decision reflected that Mr Loly outlined that on 28 February 2005 after speaking to the Shire, the Western Power inspector and some colleagues, he decided to proceed with the new installation recommended by Mr Giardina.
"He [Mr Loly] said that initially, he expected to bear the costs, but after his insurer declined cover, and discussions with
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- various agencies he formed the opinion that the cable should not have failed after such a short time so he decided to contact the Builder to discuss whether he had any liability. After various phone calls and emails the Builder denied all liability. The Builder was unable to advise the exact date of practical completion and the matter when to a jurisdiction hearing.
After the Disputes Tribunal had decided it had jurisdiction, the respondent carried out further investigations to find out why the underground cable had failed. He used Fault Finders on 22 August and they confirmed a signal (in the disconnected cable left buried below ground) in both directions. He dug a trench and pulled out the cables and conduit … He rang Mr Giardina to come and view the damaged cables and conduit … He also advised Mr Marcolina by email."
22 The reasons for decision further reflect that Mr Loly testified that as evidenced in photographs tendered as exhibits, the conduit had broken apart and/or the wires had been kinked "where the 4 metre joins were". In making the decision to install new cable, rather than attempt to locate the fault and repair the existing cable, he had considered cost, the possibility of future failures, the urgency to provide for his family and the possible risk to co-related services and the fact that a large part of the cable lay under the driveway. He was claiming the cost of replacing the cable at $5675 and costs to make good in the sum of $689, less $1000 for the upgraded cable and conduit.
23 It is then outlined that Mr Marcolina gave evidence on behalf of the applicant. He believed that Mr Loly should have run a temporary line and allowed him the opportunity to carry out the repairs. He submitted a quotation to complete the same works by Terpstra Enterprises Pty Ltd for $2690.
24 The Disputes Tribunal then turned to set out its reasoning and findings. A finding was made that, although at the time of authorising the repairs, the Mr Loly was not aware of any liability on the applicant's part, and he made every effort to advise the applicant once he became aware that the failure of the underground power cable fell within the statutory warranty period. In relation to the suggestion that the applicant should have installed a temporary line and carried out further investigations, the Disputes Tribunal noted that there was no evidence presented by Mr Loly as to the services provided by Unitest, its availability, costs and what they could have achieved. Further, that there was no evidence as to the
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- availability of information regarding its type of services to the general public. It was found that while both Mr Marcolina and Mr Terpstra (the subcontractor who had carried out the original electrical works and who attended the hearing and participated in the cross-examination of the respondents' witnesses) were aware of Unitest's existence "this did not impose a duty on Mr Loly to inform himself".
25 The Disputes Tribunal went on to state:
"[U]nder the circumstances, given his knowledge of the earlier relocating of the underground services, the Tribunal finds that Mr Loly did not act unreasonably in deciding to have a new underground cable installed. This decision is supported by his subsequent uncovering of sections of the original cable 'kinked' and burnt out at 4 metre intervals (as seen in exhibit 4).
… the Tribunal accepted that the respondent should not have to pay for the 'upgraded' cable and conduit and relied on the evidence of Mr Giardina in reducing Mr Loly's claim in compensation by $1000."
26 The Disputes Tribunal then ordered, pursuant to s 12A(1)(b) of the BR Act that the respondent pay the cost of rectifying the failed power cable, that being $5675 and further incidental costs incurred in investigating and making good in the sum of $689, a total amount of $6364.
Criteria for grant of leave to review
27 The applicable principles are set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119. Those principles, in accordance with the previous decisions of the Supreme Court in Wilson v Metaxas [1989] WAR 285 at 294, Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 316, and of the District Court in Well Holdings Pty Ltd v Agostino [2001] WADC 174 are that:
1) It must be shown that the decision in respect of which is leave 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 unreversed.
2) What is a substantial injustice must depend on all the circumstances of the case.
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- 3) 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 the court to avoid a substantial injustice if leave is not granted.
4) In the case of reviews of the decision of the Disputes Tribunal, it is necessary to recognise that it would frustrate the intent and purpose of the legislation on which the Disputes Tribunal's jurisdiction is founded to strictly adhere to ordinary principles of appeals and that it is necessary to be slow to grant leave except in cases where there is no discernable basis for the decision or, for example, where fundamental rules of natural justice have been breached by preventing a party adequately being heard.
Consideration of grounds of review
Ground 1 and 2 – limitation period
28 The decision that the Disputes Tribunal had jurisdiction because the claim was made within six years of completion of the building work was made on 13 June 2005.
29 While the applicant has put forward a number of documents relevant to this issue, it is not clear whether they were before the Disputes Tribunal at the hearing on 10 June 2005. In an affidavit from Mr Marcolina, he deposes to copies of documents attached and marked "WVM 2" which the applicant provided to the Disputes Tribunal in support of its defence of the complaint. The documents attached relate to costings, include a building licence, correspondence between the parties, and also a notice of completion of electrical work signed by Mr Terpstra, dated 27 October 1998.
30 If the effect of this document was pressed before the Chairperson of the Disputes Tribunal, who sat alone in determining the jurisdiction issue, that is not apparent. The reference to all the above documents is made in Mr Marcolina's affidavit immediately after a statement to the effect that "the Hearing Booklet does not contain copies of all documents that were provided by the applicant to the BDT in support of its Defence of the complaint". The hearing booklet, or the Disputes Tribunal's "Book of Papers", was prepared for the hearing on 24 August 2005, by when the limitation or jurisdiction issue had already been determined. There was
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- therefore no need to include documentation relating to the date of completion of the dwelling.
31 There is nothing put forward, in the Tribunal's view, which demonstrates that the Disputes Tribunal erred in making the decision which it did on 13 June 2005. That determination could not properly be, and was not, re-examined during the hearing on 24 August 2005.
32 In any event, the Tribunal is not persuaded that there is any merit in the grounds relied upon. The documentation to which reference has been made above includes a document headed "Pre-Handover Certificate" which is dated 28 April 1999. Mr Marcolina testified during the hearing on 24 August 2005 that it was the practice within his company for the certificate to be completed about one month after practical completion had actually been achieved. We accept that the electrical cable would have been installed well prior to practical completion, as appears from the contents of the notice of completion, dated 27 October 1998, "this ticket covers mains, pole and m/box only". However, as found by the Disputes Tribunal, the "Installation Test" certificate displayed in the meter box, which by its name implies that all electrical installations had been tested, was completed only on 19 April 1999. That coincides closely with the pre-handover certificate. A letter from Western Power, dated 3 May 2005, which is at page 13 of the Disputes Tribunal's "Book of Papers", identifies that "Final Tickets" for the mains only, and for the "New Connection" were received on 2 November 1998 and 13 November 1998, respectively, but that the final wiring notification, which would appear to relate to the testing of the whole installation was received on 3 May 1999. Mr Marcolina's evidence above, was not before the Disputes Tribunal when it determined the date of practical completion, but it is on its face improbable that any commercial enterprise would wait, for no apparent good reason, for about a month before handing over possession and becoming entitled to all outstanding contractual payments, and that evidence is inconsistent with the objective records to which we have referred.
33 Leave to review the Disputes Tribunal's decision in respect of these grounds will be refused.
Ground 3 – contract value in excess of $200 000
34 This ground was not pressed, during the hearing, but in any event, is irrelevant to a decision made, as it was, under the BR Act. As the complaint related to unsatisfactory workmanship, s 17(1)(a)(i) of the Home Building Contracts Act 1991 (WA) compels such a complaint to be
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- dealt with under the BR Act. The quotation from the transcript of the hearing at the top of page 17 shows the applicant appreciated the claim was being made under s 12A of the BR Act. The Disputes Tribunal's reasons for decision concluded with an express statement that the order made was pursuant to s 12A(1)(b) of the BR Act.
35 Leave in respect of this ground will be refused.
Ground 4 – refusal of leave for legal representation
36 The particulars to this ground, and submissions made during the hearing, are to the effect that it is common for parties to be legally represented before the Disputes Tribunal; that the Disputes Tribunal failed to give due consideration to the proper construction of s 45A of the BR Act, that there was a denial of natural justice in disallowing legal representation, that the Disputes Tribunal was predisposed to preventing legal representation, and displayed unfair and unjust prejudice towards the applicant and favoured the respondent throughout the hearing. Further, in refusing legal representation it was submitted that there was a denial of natural justice.
37 From a reading of the transcript of the evidence as a whole, we are not satisfied that the applicant was prevented from, and in fact had any difficulty in, properly presenting its case. There were some exchanges between the Chairperson and Mr Marcolina, but in the context they are understandable, and in our view, justified. Perhaps the most obvious example is that Mr Marcolina, through his cross-examination of witnesses, and testimony, adopted a position that a temporary cable should have been installed and that he should have been given an opportunity to carry out the repairs. That flew in the face of a consistent and ongoing denial of responsibility. It is not surprising that the Chairperson of the Disputes Tribunal challenged Mr Marcolina on this position.
38 In our view, the applicant and/or solicitors were wrong to assume that it was normal for leave to be granted and therefore that it would be in this case. The intent of the BR Act as reflected in s 45A is that a party must present his or her own case and may not be represented by another person, except as further stated in the section. Subsection 45A(2) then provides as follows:
"2) All or any of the parties to any proceedings before the Disputes Tribunal may be represented by legal practitioners or any other persons if —
- (a) all of the parties agree; or
(b) the monetary amount or value of work for which an order is sought by the applicant, as determined by the Disputes Tribunal, exceeds $10 000 or such other amount as is prescribed; or
(c) the Disputes Tribunal is satisfied —
(i) that any party who is not so represented will not be unfairly disadvantaged; or
(ii) that one of the parties is unable to appear personally or conduct the proceedings properly himself or herself;
or
(d) one of the parties is a legally qualified person; or
(e) one of the parties is a body corporate and any other party elects to be so represented."
39 The transcript of the hearing reflects that Mr Monaco announced that he was appearing for the applicant. He did not indicate that he was seeking leave to do so. There were then some exchanges about expert witnesses, and which witnesses were to be out of court, to which the respondent, Mr Loly, was replying when he also raised an objection to Mr Monaco's appearance. Mr Monaco's immediate response was restricted to informing the Disputes Tribunal about a letter which had been sent to Mr Loly advising "we would be appearing and we've heard nothing from him". Investigation showed that the letter had not called for any response and that it should therefore have been clear that the respondent was maintaining his objection which had been expressed at the jurisdictional hearing.
40 Mr Marcolina then intervened to state he was unable to represent himself because he came from a trade background and did not feel comfortable with "these sort of proceedings". The Chairperson responded by advising "it's up to Mr Monaco to tell me why I should permit you to continue to be represented". The submission put forward on behalf of the applicant was in effect that Mr Monaco's skill as an advocate would assist the Disputes Tribunal to "get all the facts in the right context" and would
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- enable him to present the arguments as he saw them that represented the builder's interests. Mr Monaco stated:
"[T]he legal issue is quite simple in that where [a] builder carries out work that is very successfully done by a licenced contractor like Mr Miolo and Mr Terpstra and that work is operational and successfully used for a period of time and here close to six years, the question is why should a builder who has carried that work out properly be now responsible. Now the answer is if it's faulty work then s 12A comes into play under the Builders' Registration Act and the question that has to be determined by you as the Tribunal is whether the work that was undertaken by the builder in this instance was faulty work …"
42 It was in that context that the Chairperson ruled that she was exercising her discretion on the basis that the value of the work was less than $10 000, that the owner was not represented and indicated on the last occasion that he would object to representation, and that the owner was not a person "who has got any special background that makes him any more or less able than Mr Marcolina to argue his case and I am refusing you the right to appear. Well it's not a right. I'm denying you appearance for Mr Marcolina".
43 That ruling was expressly reiterated in those terms in the reasons for decision but the Disputes Tribunal went on to reflect that Mr Monaco had argued that the Disputes Tribunal should exercise its discretion under subsection (c) and concluded that "[e]ven if the subsection had been available the Tribunal did not accept this argument as the complainant was similarly disadvantaged, the Tribunal would still have refused to exercise its discretion in favour of the respondent".
44 It is evident that, as submitted by Mr Monaco, and as reflected in the particulars to the proposed ground of review, the Disputes Tribunal has misconstrued s 45A. Subsection 45A(2)(c) was available to the applicant, indeed, although not clearly identified, that was the only subsection on which the applicant could have relied for leave for legal representation.
45 Once the above ruling had been made, Mr Marcolina responded immediately to say "well that sort of throws my case a little bit out because I've done no preparation for this whatsoever. I wouldn't know
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- dates". There was then a short exchange in which Mr Monaco attempted to renew his application, but the Chairperson indicated that a decision had been made and that the Disputes Tribunal would adjourn for 10 minutes.
46 Subsection 45A(2)(c) required the Disputes Tribunal to inquire into and determine whether it was satisfied whether the respondents would not be unfairly disadvantaged, or, whether the applicant, through Mr Marcolina, was unable to conduct the proceedings properly. This second limb of the test was given some consideration, although without the Disputes Tribunal being alive to the availability of subsection (c), but no consideration was given to the first limb of the test.
47 The adjournment must have afforded an opportunity for Mr Marcolina and Mr Monaco to discuss the matter. No application was made for the matter to be adjourned. The transcript of evidence shows that Mr Marcolina was well aware of all of the arguments and issues. He tested witnesses competently through cross-examination. It can be inferred that a deliberate decision was made by Mr Marcolina not to apply for an adjournment, and that he was in fact able to conduct the case adequately himself.
48 We do not consider that a denial of natural justice has occurred. Leave to review the decision on this ground is refused.
Ground 5 – exclusion of expert witnesses
49 This was not a ground that the applicant pressed during oral argument.
50 The transcript of evidence shows that the applicant identified that it had two expert witnesses present; the first was a Mr Siebe and the second a Mr Terpstra. They are both electricians. Mr Siebe was the main contractor who engaged Mr Terpstra's firm as a sub-contractor. The Disputes Tribunal ruled that the applicant was entitled to have an expert present during the hearing to provide instructions. The applicant selected Mr Terpstra for that purpose and Mr Siebe was required to remain out of the hearing.
51 We do not consider that this gives rise to any error or breach of the rules of natural justice. Leave to review the decision on this ground is refused.
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Ground 6 – disallowance of expert witnesses
52 The applicant contends that the Disputes Tribunal acted unfairly and did not advise it that it must call its expert witnesses to give evidence. It is further stated that the Disputes Tribunal unfairly assisted the respondents in making their case but did not afford the applicant with the same objectivity or opportunity and that the hearing booklet did not include all documents previously provided by the applicant.
53 Under s 36 of the BR Act, the Disputes Tribunal is not bound by the rules of evidence and may inform itself on any matter, in such manner as it thinks fit. To the extent that it is not prescribed by the BR Act or the regulations thereunder, the Disputes Tribunal determines its own procedures. There is no obligation on the Disputes Tribunal to swear witnesses, although that is obviously advisable, if not essential, in cases in which credibility may be involved. This was not such a case because as indicated there was no real dispute of fact.
54 The respondents have pointed out that during the hearing the applicant released Mr Siebe from further attendance. Mr Terpstra, who was present throughout the hearing, took part in the cross-examination of witnesses, during the course of which his opinions were expressed. Without being sworn, Mr Terpstra volunteered his view that the reasonable cost of relaying the cable should in any event have been $2690 plus general sales tax. Having volunteered that statement, in response to a question from Mr Marcolina, apparently addressed to him, whether he was saying anything wrong (T:107) Mr Terpstra was then questioned by the Disputes Tribunal as to how he had arrived at that amount. Thereafter, evidence was taken from the respondent and then from Mr Marcolina. At the conclusion of Mr Marcolina's evidence, the Chairperson asked whether there was any further evidence to which Mr Terpstra stated:
"I don't know if I've got anything to add …
You've heard the evidence. I wasn't on site at any stage, right, I have people working for me, I pay them wages, they work for me, they do the job. You've heard what the neighbour's said what happened, I can't dispute it, I can't say it did, you know, you've heard my questions in relation …
And my questions from others …
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- I don't think I can add to those to questions at all. Okay … I don't want to go over that old ground. I had enough of that this morning."
55 In the circumstances, having regard to the informality with which the Disputes Tribunal is entitled to conduct its hearings, we do not consider that any error is demonstrated, nor that any prejudice resulted. In Watson & Anor v Wallington & Anor [1999] WADC 84, LA Jackson, DC J stated:
"It is I think important when dealing with a tribunal such as the Committee [now Tribunal] to recognise that its very informality can result in what would in a court of law be described as irregularities properly corrected on appeal. To take the same rigid approach with respect to the Committee's hearings would I think be to frustrate the legislation. It should, in my opinion, only be in cases where there has been a clear failure by the Committee to act in accordance with its own legislation … nit picking analysis of the proceedings before the Board could well result in some criticisms of its procedures. But are they sufficient to say that the Committee has failed to give the applicants a fair hearing, or failed to allow them to adduce material which has prejudiced their position."
56 We are unable to conclude from a reading of the transcript as a whole that there is a proper basis for suggesting that the Disputes Tribunal unfairly assisted the respondents in making their case but did not afford the applicant with the same objectivity or opportunity.
57 It is fair to say that the hearing was not conducted in the most orderly way, with Mr Terpstra interposing unsworn evidence prior to conclusion of the respondents' case and with his questions put in cross-examination being allowed to stand as evidence. When the form the hearing is to take is not explained in advance, there will be a tendency for members of a tribunal to ask questions of a person carrying out cross-examination and the "normal" procedures to which lawyers are accustomed will break down. This is an issue on which this Tribunal has previously passed comment: see Lai & Anor and Costa [2006] WASAT 117 at [17], in which informality led to a miscarriage of the case. In this instance, we do not consider that the informality resulted in the applicant not being given a sufficiently fair opportunity to present its case. We are unable to conclude from a reading of the transcript as a whole that the
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- Disputes Tribunal unfairly assisted the respondents and did not afford the applicant with the same objectivity or opportunity.
58 Leave to review the decision on the above ground will be refused.
Ground 7 – Failure to recognise that applicant was not given reasonable opportunity to inspect the alleged fault
59 An additional issue raised under this ground was alleged failure to comply with s 12A(3) of the BR Act. The Tribunal was informed at the hearing that the applicant did not persist with that argument. As that has potential to go to the jurisdiction of the Disputes Tribunal, it is appropriate for us to indicate that we consider that concession was properly made. The email communications between the parties, prior to lodging of the complaint, constitute substantial compliance with the notice requirements of the BR Act to which reference has been made. The other criticisms raised in the submissions and in the subparagraphs to this ground, do not in our view show any error on the part of the Disputes Tribunal.
60 The Disputes Tribunal summarised as part of its findings the reasons as to why it was necessary to proceed immediately with repairs and concluded that the respondents did not act unreasonably in deciding a new underground cable should be installed.
61 Leave to review the decision on this ground is refused.
Ground 8 – quantum awarded of $6364 was excessive
62 The reasons for decision do not disclose the intellectual processes which have resulted in the monetary award made to the respondents, contrary to the principles set out in Riley v The State of Western Australia [2005] WASCA 190 and the authorities there cited. The applicant, through Mr Terpstra, gave evidence as to why it considered the reasonable cost for carrying out the same work as conducted by Mr Giardina should not have exceeded $2690 plus GST. There is no reason given for rejecting this evidence or for accepting the amount charged to the respondents as being fair and reasonable.
63 The failure to give adequate reasons constitutes an error of law, sufficient to entitle the applicant to leave to review the decision in respect of this ground, subject to the further considerations canvassed below.
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Ground 9 – the Disputes Tribunal failed to find the cause of failure
64 A reading of the Disputes Tribunal's summary of the issues and evidence suggests the likely basis of a finding in favour of the respondents, but there is no such finding. The reasons are deficient in this respect by reasons of the principles set out in Riley v The State of Western Australia above.
65 The applicant is entitled to leave to review the decision in respect of this ground, subject to the further consideration discussed below.
Ground 10 – no evidence to support finding that cable was kinked and burned
66 There was ample evidence that when the cable was dug up shortly prior to the hearing, it was kinked at 4 metre intervals. The finding is overstated to the effect that it found that the cable was burned as well. There was evidence of one burned joint.
67 It is this sort of detailed analysis which was criticised in Watson's case to which reference has been made above. However, if leave is to be granted in respect of the causation issue, it is appropriate that this particular finding also be reviewed.
Substantial injustice
68 For the reasons given above, we find that the Disputes Tribunal has erred in the respects stated in relation to grounds 8, 9 and 10.
69 There is a substantial difference between the costings advanced on behalf of the applicant and the sum awarded to the respondent. Accordingly, if the applicant is correct in its assessment, a substantial injustice would result if the decision were not to be reversed.
Invitation to reconsider
70 Under s 31 of the State Administrative Tribunal Act 2004 (WA), the Tribunal may, at any stage of a proceeding for the review of a reviewable decision, invite the decision-maker to reconsider the decision. On such reconsideration, the decision-maker may either affirm the decision, vary the decision, or set aside the decision and substitute its new decision. If the decision-maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn, it is taken to be the review of the decision as varied or the substituted decision.
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71 We consider the most appropriate course is to invite the Disputes Tribunal to reconsider its decision in relation to grounds 8, 9 and 10 of the amended grounds for review consistent with these reasons for decision and to adjourn the application for leave pending the Disputes Tribunal's consideration of the matter. The final determination of the leave application will depend upon the response of the Disputes Tribunal.
Order
72 For the above reasons, the Tribunal orders as follows:
1. The application for leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 36/2005-06, dated 26 August 2005, limited to the issues raised in grounds 8, 9 and 10 of the amended grounds for review filed on 10 March 2006 is adjourned in accordance with order 5 below;
2. The application for review of the said decision is otherwise dismissed;
3. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Building Disputes Tribunal is invited to reconsider its decision in relation to the issues raised in grounds 8, 9 and 10 of the amended grounds for review filed on 10 March 2006, consistent with this Tribunal's reasons for decision dated 10 July 2006;
4. The applicant is directed to serve forthwith on the Registrar of the Building Disputes Tribunal:
a) a copy of the application filed on 12 September 2005;
b) the amended grounds for review filed on 10 March 2006;
c) a copy of this order; and
d) this Tribunal's reasons for decision dated 10 July 2006;
5. The application is otherwise adjourned to a further directions hearing on 28 September 2006 pending the Building Disputes Tribunal's further consideration of the matter pursuant to order 3 above.
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- I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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