Howle v Best
[2012] WASC 62
•27 FEBRUARY 2012
HOWLE -v- BEST [2012] WASC 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 62 | |
| Case No: | GDA:25/2010 | 30 MAY 2011 | |
| Coram: | SIMMONDS J | 27/02/12 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE HOWLE RICHARD BEST |
Catchwords: | Building and construction Application for leave to appeal against decision of State Administrative Tribunal refusing extension of time to apply for leave to review decision of Building Disputes Tribunal Whether appeal for which leave was sought was on a question of law Whether State Administrative Tribunal erred in approaching the application for extension of time Whether evidence in the form of the transcript of the proceedings before the Building Disputes Tribunal was admissible as new evidence |
Legislation: | Builders Registration Act 1939 (WA), s 12A, s 26, s 37, s 41 Building Services (Registration) Act 2011 (WA), s 107 Home Building Contracts Act 1991 (WA), s 16, s 17 Rules of the Supreme Court 1971 (WA), O 65 r 8 State Administrative Tribunal Act 2004 (WA), s 17, s 105 State Administrative Tribunal Rules 2004 (WA), r 9(a), r 10 |
Case References: | Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Braham and Evans [2007] WASAT 124 Braham v Evans [2008] WASC 274 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 Lunt v New Resource Holdings Pty Ltd [No 3] [2011] Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 Rocom International Pty Ltd v Prentice [2002] FCA 604 Simonsen v Legge [2010] WASCA 238 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HOWLE -v- BEST [2012] WASC 62 CORAM : SIMMONDS J HEARD : 30 MAY 2011 DELIVERED : 27 FEBRUARY 2012 FILE NO/S : GDA 25 of 2010 BETWEEN : WAYNE HOWLE
- Applicant
AND
RICHARD BEST
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR M SPILLANE (MEMBER)
File No : CC 1262 of 2010
Catchwords:
Building and construction - Application for leave to appeal against decision of State Administrative Tribunal refusing extension of time to apply for leave to review decision of Building Disputes Tribunal - Whether appeal for which leave was sought was on a question of law - Whether State Administrative Tribunal erred in approaching the application for extension of time - Whether evidence in the form of the transcript of the proceedings before the Building Disputes Tribunal was admissible as new evidence
(Page 2)
Legislation:
Builders Registration Act 1939 (WA), s 12A, s 26, s 37, s 41
Building Services (Registration) Act 2011 (WA), s 107
Home Building Contracts Act 1991 (WA), s 16, s 17
Rules of the Supreme Court 1971 (WA), O 65 r 8
State Administrative Tribunal Act 2004 (WA), s 17, s 105
State Administrative Tribunal Rules 2004 (WA), r 9(a), r 10
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M J McPhee
Respondent : Mr P J Patterson
Solicitors:
Applicant : M J McPhee Barrister & Solicitor
Respondent : Taylor Smart
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Braham and Evans [2007] WASAT 124
Braham v Evans [2008] WASC 274
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16
Lunt v New Resource Holdings Pty Ltd [No 3] [2011]
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
(Page 3)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Rocom International Pty Ltd v Prentice [2002] FCA 604
Simonsen v Legge [2010] WASCA 238
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1 SIMMONDS J:
Introduction
2 This is an application for leave to appeal against the denial by a member of the State Administrative Tribunal (the SAT) of an extension of time to apply to that body for leave to apply for a review of a decision of the Building Disputes Tribunal. That decision was an order to pay a sum of close to $390,000 made against the applicant.
3 The applicant is a builder. On 23 September 2008 he entered into a contract for building works with the respondent (the Contract). The applicant agreed to complete works (the Works) on the respondent's house on Campbell Street in Kalgoorlie (the House). The Contract described the Works as an 'extension'. The respondent agreed to pay the applicant $195,700. The Contract was entered into under the Home Building Contracts Act 1991 (WA). Completion was to be by 180 days from the date of commencement.
4 On or about 30 June 2009, following commencement, and after some payments by the respondent to the applicant, the respondent lodged a complaint against the applicant with the Building Disputes Tribunal (BDT) established under the Builders' Registration Act 1939 (WA) s 26. That legislation was repealed effective 29 August 2011: see Building Services (Registration) Act 2011 (WA) s 107; however, that repeal has no effect on this matter.
5 It is not in contest that the complaint was made under both Home Building Contracts Act s 17 read with s 16, and Builders' Registration Act s 12A. At all material times the former provided for what were called before me 'contractual disputes', while the latter provided for what were likewise called 'workmanship disputes'.
6 For contractual disputes, Home Building Contracts Act s 17 in material part read with s 16 provided at all material times as follows:
17. Applications for relief, and orders
(1) Where an owner or a builder under a contract claims that -
(a) there has been a breach of -
(i) the contract, not being a breach in respect of which an order may be made under section 12A of the Builders' Registration Act 1939; or
- (ii) a provision in Part 2;
- or
- (b) the owner or the builder is entitled to compensation under Schedule 1,
he or she may apply to the Disputes Tribunal for relief.
- (2) An application under subsection (1) cannot be made -
(a) before the applicant has given to the other party a preliminary notice under subsection (3); or
(b) after the expiry of 3 years from the time when the cause of action arose.
(3) A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending applicant complains and calling on the other party to -
(a) rectify them; or
(b) otherwise attempt to settle any matters that are in dispute.
(3a) A copy of the preliminary notice is to be given to the Disputes Tribunal at the time an application is made under subsection (1).
(4) Upon the making of an application under subsection (1) the Disputes Tribunal may -
(a) by such order as it considers appropriate in the circumstances -
(i) restrain any action in breach of the contract or of a provision in Part 2; or
(ii) require any work to be done in performance of the contract or to ensure compliance with a provision of Part 2 or to remedy a breach of the contract or of a provision of Part 2;
(b) order the payment of any amount payable under the contract;
- (ba) by order declare that an amount is not payable to a person under the contract and, if already paid, order the repayment of that amount;
(c) order the payment of compensation for loss or damage -
(i) caused by any breach of the contract or of a provision of Part 2; or
(ii) referred to in Schedule 1;
(d) by order declare that a specified amount of money claimed or money claimed for specified work is not payable by a person;
(e) make such ancillary or incidental orders as the Disputes Tribunal considers appropriate.
- (5) An order under subsection (4) may require that the terms of the order be complied with within a specified time.
7 There was a jurisdictional limit for contractual disputes set by Home Building Contracts Act s 16, which at all material times provided as follows:
16. Disputes Tribunal's jurisdiction limited
(1) The Disputes Tribunal does not have jurisdiction under this Part to order -
(a) any work to be done of a value exceeding the prescribed amount; or
(b) any amount exceeding the prescribed amount to be paid,
unless the party to be bound by the order consents to it being made.
(2) In subsection (1) the prescribed amount is $100 000 or such greater amount as may be prescribed.
9 For workmanship disputes, the Builders' Registration Act s 12A at all material times provided in material part as follows:
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- 12A. Order to remedy unsatisfactory building work
(1) Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to -
(a) remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b) pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable in which case any costs so ordered by the Disputes Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.
(1a) Where, on complaint being made to it by a person for whom building work has been carried out, the Disputes Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the Disputes Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to -
(a) remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order; or
(b) pay to the person for whom the building work was carried out -
(i) such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the Disputes Tribunal considers is reasonable; or
(ii) such sum of money as the Disputes Tribunal considers reasonable to compensate him for the failure to carry
- out the building work in a proper and workmanlike manner,
- and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction.
- (1aa) The Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of 6 years from the time when the building work was completed; and for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.
(1b) The provisions of subsections (1) and (1a) apply to and in relation to building work carried out by any person, whether a builder or not, and whether registered under this Act or not.
(1c) Nothing in section 4(1)(A) precludes a person who is not registered as a builder under this Act from carrying out an order of the Disputes Tribunal made pursuant to subsection (1)(a) or (1a)(a).
(2) A complaint under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3).
(3) A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending complainant complains and calling on the other party to -
(a) rectify them; or
(b) otherwise attempt to settle any matters that are in dispute.
(3a) A copy of the preliminary notice is to be given to the Disputes Tribunal at the time a complaint is made under subsection (1) or (1a).
…
(5) The making of an order by the Disputes Tribunal under this section in respect of any building work carried out by a builder does not, irrespective of whether an application
- is made for a review of the order or of the manner in which the application is disposed of, limit or affect in any way the power of the Board or the State Administrative Tribunal to deal with that or any other builder in connection with the performance, carrying out or completion of the building work which the order required to be remedied.
- (6) Nothing in this section has the effect of limiting, restricting or otherwise affecting any right or remedy a person would have had had this section not been enacted but in hearing and determining any matter in which a builder or other person against whom or which an order has been made under this section and a person for whom building work has been carried out are parties a court may have regard to any order made by the Disputes Tribunal under this section.
(7) To avoid doubt, it is declared that a reference in this section to building work includes plumbing work as defined in section 59I of the Water Services Licensing Act 1995.
10 It was common ground there was not at any material time any jurisdictional limit applicable to workmanship disputes.
11 I have a copy of the Complaint Form dated 30 June 2009 lodged by the respondents with the BDT (the original Complaint). I do not have a copy of any preliminary notice as provided for by Home Building Contracts Act s 17 and Builders' Registration Act s 12A.
12 On 10, 11 and 18 December 2009 the BDT conducted hearings at which both parties were legally represented.
13 Following the hearing on 18 December 2009, and at the request of the BDT at that hearing, certain additional material including a quotation for the cost of the demolition of the House and the building of a new house were tendered to the BDT. On 12 March 2010, after correspondence with the persons who had been the legal representatives of the parties at the hearings before it, the BDT handed down Order to Pay No 134/2009 - 2010 (the Decision of the BDT) which in material part said this:
1. Within 14 days the respondent [the applicant before me] shall pay to the complainants [the respondents before me] the sum of $399,856.00 inclusive of:
- (a) The sum of $386,856.00 in respect of the necessary remedial costs associated with the construction of the extension to the existing premises and compensation for the destruction of the existing premises.
(b) The sum of $3,000.00 in respect of the remedial work to be completed to the shed.
14 It is common ground that the figure of $399,856 should be the sum of the figures in (a) and (b), that is, $389,856. It appears also to be common ground that the amount in respect of the shed is otherwise not relevant to this application.
15 No reasons oral or written were then or subsequently provided by the BDT. It will be seen that the absence of such reasons figured in what followed before the SAT, and is of significance in these reasons, but is not a ground for the application before me.
16 By Builders' Registration Act s 41 the applicant could apply to the State Administrative Tribunal (SAT) for a review of the Decision of the BDT. However, an application for a review could not be made without the leave of the SAT. By State Administrative Tribunal Rules 2004 (WA) r 9(a) the applicant had 28 days from 12 March 2010 within which to make 'an application to the [SAT] under its review jurisdiction'. It did not appear to be in contest before me that the 28-day period applied to any application for leave to make an application for review under Builders' Registration Act s 41, as well as to the application for a review itself. I consider that construction undoubtedly to be correct: see State Administrative Tribunal Act s 17(1).
17 The 28-day period for application for leave and for the application for a review itself expired on 9 April 2010. The applicant made no application for leave or any other relevant application within that period.
18 State Administrative Tribunal Rules 2004 (WA) r 10 provided as follows:
10. Extension of time limit
(1) The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2) Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension
- was made or the Tribunal on its own initiative considered extending the time.
19 On 6 September 2010 the applicant filed an application with the SAT, principally for an extension of time to commence an application for a review of the Decision of the BDT, for leave to commence that application and for a stay. It appears to have been common ground before me, as it was before the SAT, that that application to the SAT for an extension of time fell to be determined only in respect of the application for leave to make an application for a review. There was no argument addressed to me, and, so far as I can tell from the transcript of the hearings before Member Spillane, none addressed to him, as to whether or not the considerations relevant to an application for an extension of time for an application for leave to make an application for a review are the same as for an extension in respect of the application for a review itself. The only authorities cited to me in relation to the principles applicable to an extension of time and which I reach below were not concerned with an extension of time to apply for leave. In any event, it seems to me that the principles applicable to determining an application for leave to make an application for review could not be any more stringent than those applicable to determining an application for an extension of time to make an application for a review. Therefore I approach the application to the court on the basis that it is to be determined by reference to the latter principles.
20 On 29 September 2010, following a hearing before him on 22 September 2010, Member Spillane of the SAT gave oral reasons for making an order dismissing the application for an extension of time (the Decision of the SAT).
21 By State Administrative Tribunal Act 2004 (WA) s 105 an 'appeal' against a decision of the SAT may be made to this court, but only with leave of the court, and 'can only be brought on a question of law' (s 105(2)). On 2 December 2010 the applicant filed in this court an application (the Application to the Court) for leave to appeal the Decision of the SAT which as amended is the application before me. It was not suggested before me that the Application to the Court was made otherwise than in accordance with the 28-day time period referred to in s 105(5).
22 It was not put to me at the hearing before me that if I granted leave I should determine the appeal. These reasons are thus confined to the matter of whether to grant or refuse leave to appeal.
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23 In the remainder of these reasons I first set out the principles applicable to whether a court under SAT Act s 105 should grant or refuse leave to appeal against a decision of the SAT. Then, after a brief description of Member Spillane's reasons I set out the grounds of the Application to the Court, before applying the principles to each ground. The final section is my conclusion.
Applicable principles
24 There was no contest that the principles applicable to whether under SAT Act s 105 a court should grant or refuse leave to appeal against a decision of the SAT are as set out in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] – [18] (Buss JA; Wheeler & Pullin JJA agreeing):
The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.
In Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, Phillips JA (with whom Tadgell and Batt JJA agreed) enunciated guidelines for determining whether to grant leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The provisions of s 148 are not materially different from the provisions of s 105(1) and (2) of the Western Australian Act. His Honour said, at 337 [16]:
When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
Compare, in the context of the principles to be applied in determining whether leave to appeal should be granted from an interlocutory judgment or order, the observations in Wilson v Metaxas [1989] WAR 285 at 294 and The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56–57.
In my opinion, the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account in considering whether to grant leave under s 105(1) of the State
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- Administrative Tribunal Act. It must be emphasised, however, that those guidelines are not rigid or exhaustive, and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice.
25 It did not appear to be in contest that the Decision of the SAT was 'final' in the sense in Paridis [17] so that any injustice in allowing an error to go uncorrected that may have to be shown may more readily be discernible.
26 In my view of Paridis leave cannot be granted if an applicant cannot identify for the appeal for which leave is sought that it is 'on a question of law' in the sense I will reach, as to which there is a real or significant argument to be put on that question of law, at least to the extent that there is sufficient doubt about it to justify the grant of leave. The means by which the applicant makes such an identification is through its grounds for the application, as properly developed in argument.
27 The principles applicable to whether an appeal is 'on a question of law' (SAT Act s 105(2)) are in my view sufficiently stated in Braham v Evans [2008] WASC 274 [23] - [25] (Beech J), referring in particular to Paridis [53] - [56]; see also Paridis [57]. Braham was a case concerned with an appeal, for which leave had been granted, against a decision of the SAT in exercise of its review jurisdiction under Builders' Registration Act s 41. I did not understand the principles so stated in Braham WASC [23] - [25] to be contest, and they are:
By s 105(2) of the same Act, an appeal against a decision of the Tribunal can only be brought on a question of law. In Paridis … [53] - [56] Buss JA (Wheeler & Pullin JJA agreeing) explained the limiting effect of s 105(2). The following summarises what is relevant to the present appeal:
(a) An appeal 'on' a question of law is narrower than an appeal that merely 'involves' a question of law. Where an appeal lies on a question of law the subject matter of the appeal is the question or questions of law;
(b) If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law;
(c) A question of mixed law and fact is not a question of law within s 105(2). A ground of appeal which asserts that the decision is against the evidence or against the weight of the evidence, does not raise a question of law. A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis; and
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- (d) By contrast, a ground of appeal that there was no evidence or other material to support a finding raises a question of law. Further, a ground of appeal that a tribunal has made a finding that is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law.
To demonstrate an absence of evidence to support a finding or decision is a greater burden than to demonstrate an absence of evidence or other material from which the decision maker could reasonably be satisfied of a particular matter: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 358. (What Mason CJ said in Bond as to the relationship between s 5(1)(f), s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) has been criticised in subsequent High Court decisions: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 and Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S 20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [57]. However, as I understand it, what his Honour said (with the agreement of the other members of the court) as to the common law remains authoritative.)
It is an error of law to draw an inference that is not open to be drawn. Bond (355 - 356); Bruce v Cole (1998) 45 NSWLR 163, 188; Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 88 [27]. Although that proposition is sometimes expressed in terms of whether the inference was 'reasonably open', it must be recognised that a conclusion by a court that a finding of fact or drawing of an inference was unreasonable is insufficient to establish an error of law: Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, 157; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411 [24].
28 Paridis [57] is as follows:
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigation and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of
- evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors.
29 See also Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [51] - [53] (Owen JA; Buss & Newnes JJA agreeing).
30 The necessity for the court to be shown that an appeal is 'on a question of law' may be contrasted with the corresponding position of the SAT on an application for leave to review a decision of the BDT under Builders' Registration Act s 41. I consider that position to be as set out in Braham WASC [19], [20]:
The proper approach to the grant of leave under s 41 is to be considered in the context of the nature and extent of the hearing before the BDT under the Builders Registration Act. In broad terms, the Builders Registration Act provides for a full contested hearing of building disputes before the BDT. See, for example, s 36, s 37, s 38 and s 40. Generally, when the Tribunal is exercising its review jurisdiction under the State Administrative Tribunal Act 2004 (WA), the original decision under review does not involve a hearing of the same nature as is provided under the Builders Registration Act. No doubt it is for that reason that the Builders Registration Act imposes a requirement of leave on an application to review a decision of the BDT, whereas generally there is no leave requirement.
The Tribunal's statement of the relevant principles was not criticised by the parties in this appeal. It may be summarised as follows:
(a) Generally an applicant for leave must show that the decision in respect of which leave is sought is wrong or attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed;
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- (b) However, the requirement that substantial injustice be shown is no more than a guideline for the exercise of a broad discretion to grant or withhold leave in the interests of justice; and
(c) It is open to the Tribunal to grant leave on terms which limit the review to one or more specified grounds.
31 Finally, it was not in contest that the major factors to be considered by the SAT in determining under SAT Rules r 10 whether to grant or refuse an application for an extension of time to bring an application for a review are as stated in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J). I take those factors as they are reviewed with certain related matters, in relation to leave to bring an appeal, in Simonsen v Legge [2010] WASCA 238 [8] (Pullin JA, Newnes & Murphy JJA) to be as follows:
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i) the length of the delay;
(ii) the reasons for the delay;
(iii) the prospects of the applicant succeeding in the appeal; and
(iii) the extent of any prejudice to the respondent: Esther Investments …, 198; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(Page 17)
- (e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f) the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
32 See also JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 [5] (Murphy JA; Pullin & Newnes JJA) quoting Simonsen [8] as describing the 'relevant principles to be applied when a party seeks to extend the time for filing its notice of appeal'.
33 In relation to Simonsen [8](d)(iii), this factor was described in Esther Investments Pty Ltd 198 as 'whether there is an arguable case'. This is what I consider to be what is referred to in Simonsen [8](g) as the requirement that the appeal the applicant seeks an extension of time to bring has 'some prospect of success'. It will be seen that in my view this application for leave to appeal largely concerns whether or not Member Spillane had erred in law in finding as he did that the applicant before him had not, on the matters in most of the grounds put in the Application to the Court, shown an arguable case that the applicant would be successful on a review of the Decision of the BDT, that is, that the SAT would find the Decision of the BDT to be wrong.
34 I should conclude this section of my reasons by noting that it is not in contest that Member Spillane in his reasons for the Decision of the SAT
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- clearly and correctly identified, by reference to Esther Investments,the four major factors to be considered in the exercise of the discretion under SAT to extend the time for bringing the review of the Decision of the BDT. See 29 September 2010 ts 2 - 3.
35 I turn now to a brief description of the reasons of Member Spillane.
The reasons of Member Spillane
36 Having identified the four factors in Esther Investments as the 'principal matters for consideration' in the exercise of the discretion in SAT Rules r 10, and having set out a 'chronology' of the matter before the BDT and before him, Member Spillane considered the first (length of the delay), second (reasons for it) and fourth (prejudice to the respondent) before considering for each of the grounds of review advanced by the applicant whether he had made out an arguable case for review on that ground. Member Spillane concluded his reasons with the following (29 September 2010 ts 184 - 185)
In all the circumstances, therefore, the tribunal is not satisfied that the applicant has an arguable case on any of the grounds put forward, and in light of the significant delay in bringing the application[,] the lack of any cogent reason for such delay, and the clear prejudice the respondent would suffer, the tribunal is not willing to extend the time in which the applicant may bring the application for review.
37 I turn now to the grounds of the Application to the Court for leave to appeal the Decision of the SAT.
Grounds of the Application to the Court
38 The grounds of appeal and the Application to the Court, as amended at the hearing before me, were as follow:
1 The Learned Member erred in law in failing to take into account the prospects of the successful review, arising from the change in position of the case that was framed by the Applicant in the Building Disputes Tribunal, to the outcome which was achieved which was fundamentally different from the original case.
2. The Learned Member erred in law in finding that the damages awarded, flowed as a result of the actions of the Appellant, when the Learned Member should have applied the principles of mitigation, so that even if there had been a concession as to demolish [sic demolition of] the building in question, then the subsequent damages must have arisen as a result of the failure to mitigate by the owner.
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- 3. In any event, the Learned Member erred in law in finding that there was no prospect of a successful review in circumstances where it was arguable that the owner had terminated the contract and excluded the builder from the site.
4. The Learned Member erred in law in failing to grant an extension of time, in circumstances where there was little actual prejudice to the owner, and very severe prejudice to the builder.
5. In relation to prejudice to the Respondent the Learned Member erred in deciding emphasis on the ability of a successful litigant to have the 'fruits of the judgment' was clear in this case that the Appellant, in the face of this judgment, when it was facing bankruptcy; and that the ability of the Respond [sic Respondents] to recover the fruits of the judgment will be at least delayed, in any event.
6. Notwithstanding the length of the delay in seeking a review of the original decision the Learned Member failed to take into account, or dismissed out of hand, the explanation given for the delay by the Appellant which are quite reasonable in the circumstances of the case, given the judgment in the case was more than double the amount which was originally the subject of the claim; and based on a different cause of action.
7. Further and in any event, the Learned Member failed to take into account that, on the face of the materials before him, which included the form of complaint from the Respondent, the Tribunal erred in making an Order to Pay on contractual matters pursuant to the Home Building Contracts Act 1991, not being matters of faulty workmanship to be dealt with under section 12A of the Builders Registration Act 1939, and in relation to such matters, failed to give effect to the jurisdictional limit of the Tribunal, on such contractual matters, the limit being $100,000 pursuant to section 16(2) of the said Home Building Contract Act 1991.
39 As will be apparent these grounds are not altogether well formulated. In a number of cases they also overlap, in the cases of Grounds 4 and 5 almost completely, as the written submissions for the applicant appeared to recognise.
40 I turn now to each of the Grounds, providing additional background as required.
Ground 1: difference between the original case and the outcome
41 I have concluded that Member Spillane did not fail to take into account whether or not on the limited evidence and other material before him there was an arguable case that a difference of that kind meant the
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- BDT had erred in arriving at that outcome. I did not understand counsel for the applicant to contend strongly otherwise.
42 Rather, counsel for the applicant appeared to submit that, on that evidence and material, as well as on additional evidence and material not before Member Spillane but available to me, it was manifestly unreasonable to conclude that there was no arguable case the BDT had fallen into error in the present respect. That is, SAT had erred in law in the sense that no reasonable tribunal could have reached that conclusion. If counsel has made that submission good, there would be a showing that the appeal against the denial of the extension of time was on a question of law within Braham [23](d). For the reasons that follow I conclude he has not made that submission good.
43 To understand counsel's submission and my analysis it is necessary for me to provide some further background concerning the proceedings before the BDT, before I consider the reasons of Member Spillane in relation to the subject matter of the present Ground.
44 The original Complaint included a pair of boxes alongside each of the Form's references to 'Workmanship Details' and 'Contractual Dispute Details'.
45 Alongside 'Workmanship Details', one box was headed 'Please list alleged workmanship faults.'; and the other was headed 'What redress are you seeking? Specify details of repair and/or calculations of compensation'.
46 In the first box there were six numbered hand printed entries, for different aspects of the work, as follows:
1. Carport - wooden posts used instead of steel
2. Verandah - decorative posts not used
3. Verandah gable - pitch is not square
4. Frame work - water damage to beams
5. Shed - gap above P.A. door
6. Whole build - incomplete
47 In the second box the entry was
Compensation to employ another builder to amend all faults and finish renovation.
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- * Quotes will be sent through to both B.D.T. & Wayne Howle as soon as possible.
48 Alongside 'Contractual Dispute Details', one box was headed 'Please list alleged contractual issues.'; and the other was headed 'What redress are you seeking? Specify details of settlement, showing calculations.'
49 In the first box there were four numbered entries, as follows:
1. Progress of work inadequate to amount of money paid.
2. Wayne Howle has shown no intention to return to site for over 3½ weeks - no reason has ever been given as to why he left.
3. Communication as to where our build is has been nil – no working relationship.
4. No variations to contract given to us by Wayne, yet there has been removal of existing structures and then rebuilding of those ie laundry/bathroom, kitchen.
50 In the second box alongside 'Contractual Dispute Details' the redress sought was in the form of four dot point items:
• Reimbursement of costs assoc. with employing a quantity surveyor/estimator to value works already completed on site.
• WH. To refund the difference of money already paid from this survey within 7 days of Wayne recieving [sic] the report.
• Termination of contract due to non-performance
• Structures that were removed and replaced not included in quantity surveyor's report.
51 By a Statement of Complainants Issues dated 22 September 2009 filed with the BDT that day (the Statement of Complainants' Issues) there is a statement that the applicant breached the terms of the contract, and under the heading 'Particulars' there are eight numbered items, including the following:
(iv) Has abandoned the works in that he has failed and or refused to complete the works and consequently the timber frame work constructed by the [Applicant] has for some time been exposed to the weather and is no longer fit for the purpose;
(v) The [Applicant's] workmanship is of such poor quality that it requires replacement;
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- …
(viii) The [Applicant] lacks the degree of skill and competence to complete or rectify the works and the Complainants seeks [sic] an order for payment to rectify the works and repayment of the funds paid by the Complainant to the [Applicant].
52 On 4 November 2009 the applicant filed a Statement of Facts and Issues (the applicant's Statement of Facts and Issues). The applicant there claimed the respondents themselves had breached certain terms of the Contract and also claimed that in the event the applicant were found to have breached the terms of the Contract the respondents had failed to mitigate their loss. Particulars of that failure were set out, including that the respondents had refused to allow the applicant to complete the works and after refusing to allow the applicant back on the site for any purpose had failed to protect the partly-completed works, which had as a result become weather-affected. In addition there was a claim that the applicant by letter dated 4 November 2009 from his solicitor to the respondents' solicitor had terminated the Contract.
53 As counsel for the applicant points out, there is no reference in any of these filed papers to a claim for demolition of the existing house and building of a new one.
54 Further, as counsel for the applicant stressed before me, there was a statement dated 2 September 2009 of Neville Duncanson, a builder, which the respondents had put before the BDT and which read as follows (the first Duncanson quotation):
I, Neville Duncanson of Crestwood Building Company, have been in the building industry for 24 years.
I have valued the work completed to date by Mr Wayne Howle of Edge Point Constructions at $57000.00.
Mr Howle's workmanship was considered to be below industry standard.
To complete the renovation that Mr Howle started but did not finish, it is estimated that the cost would be $190000.00.
55 It will be seen that the first Duncanson quotation did not refer to demolition of the House and construction of a new house.
56 However, it was common ground before Member Spillane and before me that at the hearings before the BDT the matter of the demolition of the
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- House and the construction of a new house had been explored in evidence and submission.
57 Member Spillane had no transcript of the hearings before the BDT and no reasons for the Decision of the BDT. At the same time, he had an affidavit of Philip John Patterson sworn 20 September 2010 (the Patterson affidavit of 20 September 2010). Mr Patterson was a partner in the firm of solicitors acting for the respondent who had appeared for the respondent at the hearings on 10 and 11 December 2009; Jeremy Ludlow had appeared as counsel for the applicant at those hearings. The Patterson affidavit of 20 September 2010 included the following ([24] and [25]):
During the course of the hearing [on 10 and 11 December 2009] certain evidence was uncontested, or alternatively conceded by the Applicant, namely:
(i) The Respondent had paid the Applicant the sum of $165,759.30;
(ii) The value of the works completed was approximately $57,000.00;
(iii) The suppliers of building materials in Kalgoorlie had refused to supply any material on credit terms to the Applicant by reason of the Applicant's outstanding accounts and credit history;
(iv) The Applicant by reason of his financial position was unable to obtain the materials to complete the Works at the Campbell Street premises; and
(v) The Applicant conceded that by reason of the quality of his workmanship and the fact the Works had been exposed to the weather for a lengthy period of time and as a consequence of the damage to the pre-existing structure caused by the Applicant, the house at the Campbell Street premises had to be demolished and reconstructed.
On 11 December 2009 after hearing the evidence the BDT formed a view that the existing structure and the part completed Works carried out by the Applicant had to be demolished. As there was no evidence before the BDT at that stage of the cost of demolishing the residential house, the Applicant and the Respondent, through their representatives, agreed that Mr Neville Duncanson of Crestwood Building Company would prepare a quotation for the costs of demolishing and building a new residential home at the Respondent's residential premises. Accordingly, the matter was adjourned so that the parties could obtain Mr Duncanson's quotation and confirmation of other issues.
58 As to the hearing before the BDT on 18 December 2009, there was the following, as set out in a letter dated 3 February 2010 from
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- Mr Patterson to Mr Ludlow which is annexed to the Patterson affidavit of 20 September 2010 (the letter dated 3 February 2010):
This matter was heard in two parts and the last hearing was held on 18 December 2009 in Perth and on that date the Tribunal ordered that:
1. The Complainant [Respondents] forward to the Respondent's [Applicant's] solicitors and the Tribunal the following information:
(i) Whether there was any objection from the Kalgoorlie Council to demolishing the remains of the residence on the property; and
(ii) The cost of building a new residence.
2. The Complainant and the Respondent were to file submissions by 2 February 2010.
We have forwarded to the Tribunal the information required in 1(i) and 1(ii) above and a copy was forwarded to you.
60 It will be noted that by the Decision of the BDT the applicant was ordered to pay a sum just over twice the contract price for the renovation work the applicant had contracted to do, and just over twice the amount shown in the first Duncanson quotation. This was for work which was not that called for by the original Complaint or the Statement of Complainants' Issues, namely, the demolition of the House and the construction of a new house.
61 It was not in contest before me that at about the time the applicant's counsel received the second Duncanson quotation the applicant was sent a copy of the second Duncanson quotation.
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62 As to events after the applicant's counsel received the second Duncanson quotation, the letter dated 3 February 2010 said this, after the passage just quoted:
In late December 2009 we contacted you to advise whether you had been able to obtain instructions from your client and you advised us that you had not been able to contact your client. Our Philip Patterson contacted you again on 29 January 2010 and you advised that you had not been successful in obtaining instructions from your client and you were not able to indicate when you might be able to obtain those instructions. As a consequence of that conversation we contacted Jill Hoyle at the Building Disputes Tribunal and advised her that:
1. We required that this matter be dealt with and that we obtain a date on an urgent matter to have the issue resolved.
2. That our Philip Patterson had discussed the matter with you and you had advised that you had not been successful in contacting your client and you had no instructions.
Our client has instructed us that your client has left Kalgoorlie and moved to New South Wales. Your client also has his house in Kalgoorlie on the market. We gave this information to Jill Hoyle.
Jill Hoyle contacted this office this morning and advised that the Tribunal did not require the parties to attend before them again and that they would now proceed to prepare a judgment.
63 Member Spillane in the Decision of the SAT addressed a Ground of Review number 3 (SAT Ground 3), which it was common ground had a high degree of correspondence with the present ground before me. SAT Ground 3 read as follows:
3) The BDT erred in fact and law in assessing the amount payable in Order to Pay No 134/2009 - 2010 in the figure it did, when the Respondents original application and the documentary evidence of the Respondent did not seek the demolition of the building work, merely the completion of works, and further, that the Respondents evidence was that the works contracted for could be completed for a lesser sum then [sic than] the Order to Pay.
64 In addressing SAT Ground 3, Member Spillane quoted Braham and Evans [2007] WASAT 124 (Braham WASAT) [67] and [72] (Member Carey) and to Braham WASC [99] and [96], dismissing an appeal from Braham WASAT. Those four passages were concerned with a claim by the appellant builders in that case that they had been denied procedural fairness before the BDT.
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65 To understand those four passages, it is necessary to have regard to Builders Registration Act s 12A(1), which I have previously set out, and s 37(1) and (2), which at all material times were as follows:
(1) The Disputes Tribunal shall cause to be given to a person who is a party to proceedings before the Disputes Tribunal reasonable notice of the time when and place where it intends to conduct those proceedings, and shall afford any such person a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, and to make submissions to the Disputes Tribunal.
(2) If a person to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Disputes Tribunal may conduct proceedings in the absence of the person.
66 Braham WASAT [67] and [72] read as follows:
The applicant submitted that once the Disputes Tribunal reached the stage where it was considering making an order to pay for $425 000 on the basis of a conclusion that the most cost effective way of remedying the found defects was to demolish the house and re-build it, it should have notified the builders of what it proposed so as to give them the opportunity to attend and be represented by counsel. This was so, notwithstanding the builders' failure to attend and participate in the proceedings to that point, on the basis that all that had been conveyed to them was that the Disputes Tribunal would hear and determine the complaint and consider the defects as alleged in the complaint, which would give rise to the reasonable expectation that the Disputes Tribunal may make an order that the builders rectify or pay for the rectification of the defects. The house and extensions had cost the applicant approximately $150 000 to build, but the Disputes Tribunal heard and accepted evidence that the defects could only be rectified by demolishing the house and completely rebuilding it at a cost of $425 000. The evidence which had now been obtained and filed with this Tribunal was to the effect that it was not necessary to demolish and rebuild the house and that the defects could be rectified for less than $200 000. The Disputes Tribunal's obligation to give notice of the proposed conclusions about relief was particularly clear, it was argued, where the builders were not present at the hearing and the respondents appeared by counsel.
…
Here, it was unnecessary for the Disputes Tribunal to identify to the applicant that an order to pay was a possible outcome, as that is one of the alternatives in the legislation. Although it is true that the question of remedy is at large, in the sense that the Disputes Tribunal can make an order to pay in any amount, provided that there is appropriate evidence to support it, there might be some cases where the outcome is so far removed
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- from that which a reading of materials filed before a hearing would indicate that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome. Each case needs to be determined on its own circumstances.
67 Braham WASC [99] and [96] read as follows:
Thus by s 37(1), Mr and Mrs Braham were entitled to notice of the proceedings and to participate fully in the proceedings. They chose not to exercise that right. That being so, the BDT was entitled to proceed in their absence: s 37(2). I do not suggest that there are no limits on the circumstances in which the BDT might proceed in someone's absence. In this regard, I respectfully agree with the Tribunal's observation that 'there might be some cases where the outcome is so far removed from that which a reading of materials filed before a hearing would indicate that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome' [72]. Each case needs to be determined on its own circumstances.
…
The Tribunal correctly identified that the starting point in determining the content of procedural fairness was the statutory context. See in this regard National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296, 326; Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428 [54] - [55]. That requires attention to be given to s 12A, which empowers the BDT to make either of two orders: an order to remedy, or an order to pay such costs of remedying the building work as the BDT considered reasonable. I do not accept Mr Braham's submission that an order calculated by reference to the costs of demolition and rebuilding is a 'radical departure' from what is contemplated by the terms of the Act. Remedying defects in building work may involve repair or, in other cases, replacement of certain parts. If the problems are substantial enough, remedying the defects may require demolition and reconstruction. What is reasonable will depend upon the circumstances.
68 Member Spillane, having set out first Braham WASC [99] and then [96] concluded his consideration of SAT Ground 3 by saying this:
What is reasonable in this case will depend on what evidence was before the BDT that had the benefit of seeing all of it, but this tribunal has seen little or none. It is clear from the evidence of Mr Patterson that what was done largely in relation to the demolition and the cost of rebuilding, was by consent. In the circumstances, the applicant has not made out an arguable case on this ground.
69 Counsel for the applicant put to me that Member Spillane had failed to take into account the arguable case for successful review apparent on
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- the face of the Decision of the BDT, when it was considered against the original case. However, that submission cannot stand against Member Spillane's consideration of Ground 3 as I have indicated, at least on the limited material before him.
70 At the same time, I note that counsel for the applicant, as I understood him, submitted that even on that limited material Member Spillane had erred when, after he quoted from Braham WASC [99], he said this (emphasis supplied):
In the present case, the applicant was represented at the hearing, had the benefit of hearing and cross-examining all witnesses. Crucially, at the hearing on 18 December his counsel heard the BDT confirm that, based on the evidence, they had formed a view that the building had to be demolished, and through his counsel he consented to Mr Duncanson preparing a quote, which he then was supplied with and given an opportunity to comment on prior to the BDT making the decision. He chose not to do so.
71 Counsel for the applicant appeared to put to me that Member Spillane's finding that the applicant 'chose not to [take up the opportunity to comment]' was an error because the only evidence Member Spillane had before him did not support his finding. I took this to be a submission that Member Spillane had erred in law as he had no evidence or other material to support his finding or he had made a finding that was manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding: Braham WASC [23](d).
72 The evidence to which counsel for the applicant directed my attention was in an annexure to an affidavit of Thomas William McPhee sworn 14 September 2010 (the affidavit of Thomas McPhee of 14 September 2010), being a letter dated 6 September 2010 from the applicant to Mr Thomas McPhee (the applicant's letter of 6 September 2010) containing the following:
I am writing to provide an explanation to events that occurred earlier this year when I received a letter from Jeremy Ludlow dated 20 January 2010. This was in relation to a quote for the demolition and rebuilding of the existing house 59 Campbell Street, Kalgoorlie for Richard and Merri Best.
At this time in January, I held a Fly In Fly Out (FIFO) job in Karratha and was only just returning after a six week absence, to pack up and move my family back to NSW. We had been receiving constant harassment via phone and in person by the Bests and the Lopinski's up to and including the day we left. We left Kalgoorlie on the 22 January 2010 and arrived back in NSW on the 30 January. Our mail by this time was being
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- redirected and I didn't receive Mr Ludlow's correspondence until a few days after I arrived home.
I had by this time lost all faith in the Building Disputes Tribunal process. The letter was simply another issue that I believed would not be easily rectified by my actions or words. Previously I had extreme difficulty when I employed a Quantity Estimator to assess the site as there was little time given to me by the BDT to do so. I believed that every possible block would be put before me to prevent me having a fair response to the quote by Crestwood.
I spoke with Mr Ludlow and although he had been happy to represent me for the 3 days of the trial he was unwilling to continue unless I was able to keep paying him which I could no longer afford to do.
Mr Ludlow's final advice was to do one of the following options which was to file for Bankruptcy or to find the money. With this final advice, coupled by the abandonment of my first solicitor Ms Lisa Ellery and the lack of confidence that Mr Ludlow had expressed in my chances of winning an appeal I felt that I had no further options nor the ability to do any more to defend myself.
I now had no representation and had lost all hope. I believed that all the evidence had been provided prior to the trial by the Bests and did not understand why there was a quote for a full demolition and rebuild provided to the BDT after the trial. My original contract was only for a renovation and an extension minus foundations, earthworks, electrical, plumbing or painting. The copy of the Crestwood Building Company letter was not dated or signed and seems to include the item that I was not contracted to complete.
73 However, it seems to me that the applicant's letter of 6 September 2010 was in fact evidence on which a reasonable tribunal could have rested the finding at which Member Spillane arrived. The letter sets out the applicant's explanation why matters transpired as they did. That explanation could in my view reasonably have been read as indicating the applicant chose not to participate any further because he concluded that any further participation would be to no avail. Given such a construction is open, it is not to the point that there might have been other constructions of the letter open not indicative of the making of a choice, but rather that the applicant had no choice to make. A finding which a reasonable tribunal might not have made is not manifestly unreasonable unless it is a finding no reasonable tribunal could have made. See Braham WASC [25].
74 Counsel for the applicant in his written submissions also quoted extensively from the transcript of the hearings before the BDT which, as I
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- have said, was not before Member Spillane. Counsel's submissions as I understood them were that the transcript was admissible into evidence before me and, when account was taken of it in the respects his submissions referred to, it showed that no reasonable tribunal could have arrived at Member Spillane's conclusion that no arguable case had been shown as to Ground 3.
75 It was not in contest before me that in an application for leave to appeal there is power in the court to admit into evidence matter that was not before the SAT ('additional evidence'). However, counsel for the respondent strongly opposed the admission of the transcript. I did not rule on the objection at the hearing, reserving my conclusion on the matter.
76 I have concluded the evidence was not admissible. My reasons will indicate that, even if the evidence were admitted, it is not such that with it no reasonable tribunal could arrive at the conclusion no arguable case had been shown that the BDT had erred in the present respect. My reasons for these conclusions are as follow.
77 In my view the transcript would be admissible on an application for leave if it were admissible on the appeal for which leave was granted. There was no legislative provision respecting the admission of additional evidence on an application for leave to appeal, and no authority that either counsel before me, or I, was able to find on the matter. However, it would seem to me to follow from the nature of the application for leave that such evidence is admissible as I have indicated. Would the transcript be admissible in the appeal against the Decision of the SAT?
78 There appears to be no legislative provision respecting the admission of additional evidence in an appeal against a decision of the SAT and no authority concerning the principles applicable to the admission of such evidence was cited to me. The relevant principles appear to me to be the following.
79 A court in an appeal by way of a re-hearing has the power from the nature of such an appeal to admit additional evidence: cf Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [22] (Gaudron, McHugh, Gummow & Hayne JJ). An appeal for which leave is granted under SAT Act s 105 is one by way of re-hearing: see Rules of the Supreme Court 1971 (WA)O 65 r 8.
80 The principles applicable to the admission of such evidence recognise a distinction between evidence which was available at the time of hearings for the decision or could with reasonable diligence have been
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- discovered then ('new' evidence) and evidence which did not exist then or which could not with reasonable diligence then have been discovered ('fresh' evidence). See Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411] (Steytler J), referred to in Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [36] (Pullin, Newnes & Murphy JJA). As I will indicate I consider that the transcript here was new evidence.
81 Where new evidence is concerned, it will not be admitted where it reveals no more than a likelihood that the relevant conclusion of the decision-maker would have been different: see Mickelberg [413]; and cf Lunt [36].
82 In my view the transcript is new evidence as it was evidence which was available at the time of the proceedings before the SAT. Counsel for the applicant did not dispute that the transcript could have been obtained between the time of delivery of the Decision of the BDT, on 12 March 2010, and the hearing before the SAT, on 22 September 2010. That was sufficient to make it new evidence.
83 However, counsel for the applicant contended account should be taken of the difficulty for the applicant in obtaining the transcript, and referred to the applicant's state of mind after the Decision of the BDT was made, in the applicant's letter of 6 September 2010 as quoted above; the impecunious circumstances in which the applicant found himself over the period since that delivery; and the relatively short time before the hearing before the SAT after the applicant secured his legal representation for the purposes of that proceeding.
84 However, ultimately the transcript was secured, for that for 10 and 11 December 2009, on 25 January 2011; and, for that for 18 December 2009, on 31 January 2011, following a request accompanied by payment on 15 December 2010. It was not made clear to me why, in light of those facts, the applicant could not have obtained the transcript for the hearing before Member Spillane, if necessary by seeking an adjournment of the hearing for that purpose.
85 I turn then to the question of whether or not the transcript was such that there was no more than a likelihood that a tribunal would have arrived at a different conclusion as to an arguable case having been shown that the BDT had erred in the present respect, or, putting the matter as counsel for the applicant appeared to put it to me, whether or not no reasonable
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- tribunal with that transcript before it could have arrived at such a conclusion.
86 The transcript for the 18 December 2009 hearing before the BDT, at which the applicant's then counsel was present, indicates (at ts 29) that with that counsel's concurrence a quotation for the cost of demolition and re-building of the House was to be obtained for a further hearing. This quotation was to address the matter of such cost as a basis for decision by the BDT, a matter the BDT discussed with both counsel for the applicant and counsel for the respondents (see ts 23 - 40). In my view the transcript references I have just indicated, and the others indicated in the applicant's written submissions, are not such as to show no reasonable tribunal could make the finding as to an arguable case on Ground 3 which Member Spillane did. The quotation so generated was part of the materials filed before the SAT which in my view meant the outcome, the Decision of the BDT, was not 'so far removed' from what a reading of those materials in the context of the hearing on 18 December 2009 would indicate 'that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome': Braham WASAT [72], quoted with approval in Braham WASC [99].
87 I should add that on one reading of the transcript of the hearing before the BDT on 18 December 2009 it was the expectation of counsel for the applicant that the quotation would produce a figure less than the first Duncanson quotation: see ts 25 - 26. Further, the transcript also contains the statement of counsel for the applicant that the applicant did not agree with the first quotation, albeit without elaboration (see ts 26). However, there was the evidence of the applicant that he had accepted 'it'd be probably the best way' to 'knock the whole thing over' (11 December 2009, ts 160), and there was evidence to a similar effect from Mr Duncanson (see 11 December 2009, ts 52), on which he was not challenged by counsel for the applicant. Further, the applicant's counsel had subsequently provided the second Duncanson quotation to the applicant who on the evidence of the applicant's letter of 6 September 2010, understood it was before him as an indication of that which the BDT might order him to pay and to which he might respond.
88 It was put to me that, where there was such a difference as here between the second Duncanson quotation ($386,856) and, on the one hand, the consideration in the Contract ($195,700), and, on the other, the first Duncanson quotation ($190,000), Braham WASC was not of assistance. I disagree. In Braham WASC Beech J noted (at [89]; see also [100]), in the context of his consideration of the ground of appeal in that
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- case concerned with procedural fairness, that the appellant builders had before the first hearing before the BDT in that case been served with a bundle of documents including a structural report from an engineer that the preferred repair method was to demolish and reconstruct the residence, and a quotation to the same effect from a builder, with the invoice attached to the builder's quotation showing the amount of $350,000 exclusive of GST ($385,000 inclusive of GST). At the hearing before the BDT the builder had revised his quotation to $425,000, inclusive of GST, which was the amount specified in the order to pay for demolition and reconstruction in that case ([89] read with [7]). There was no reference made in Braham WASC to the difference between two quotations and the order to pay, on the one hand, and the building contract price, on the other, and indeed I could find no statement of the building contract price in either Braham WASC or Braham WASAT. However, I note from the latter [67] in the context of SAT's consideration of the procedural fairness submissions put to it that the house and extensions the subject of the dispute in that case had cost the builders approximately $150,000 to build.
89 I consider then that the applicant has not shown me that, with the transcript of the hearing in the BDT before the SAT, no reasonable tribunal could have arrived at the conclusion no arguable case had been shown the BDT had erred in arriving at the outcome represented by the Decision of the BDT.
90 Accordingly I would not give leave on Ground 1.
Ground 2: the matter of mitigation
91 It was not in contest that the matters covered by this ground were the subject of Ground 5 before Member Spillane. That ground, and his treatment of it, were the following (29 September 2010, ts 27):
Ground 5 was:
The BDT erred in fact and in law in finding that the respondent had mitigated his loss when the BDT ought to have found that the respondent had barred the applicant entry to the site and had taken those steps to complete or protect the works, failed to mitigate any loss.
Again, neither party appeared to make any submissions in respect of this ground, although a passing reference was made in argument to protecting the site from the weather, with both parties alleging it was the other's responsibility.
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- In the circumstances where there are no reasons and this tribunal has not been provided with either the transcript or the evidence before the BDT, the applicant cannot succeed in showing that there is an arguable case on this ground based solely on the contention that the BDT erred without supporting that submission with detail of what evidence was before the BDT in respect of this issue and how the BDT then erred. There is no evidence before this tribunal to show that the applicant has an arguable case on this ground.
92 In the applicant's submissions before me, the failure to mitigate by the respondents was put in their failure to cover the Works to protect them from weathering.
93 It was not contended Member Spillane had erred in describing as he did the submission to him or the lack of evidence in the form of transcript from the BDT or its reasons before him.
94 As I understood the submissions for the applicant, they were that Member Spillane had erred in finding there was no evidence before him from which to determine that there was an arguable case the BDT had erred in not applying the principles of mitigation to find the respondents had failed to mitigate their loss. I accept that if Member Spillane had erred as submitted, in that there was such evidence, this would be an error of law within Paridis [54], quoting from Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, 410 (Fox, Deane & Morling JJ).
95 However, I do not consider Member Spillane so erred, as I was not directed to any such evidence before him, and none was evident to me.
96 At the same time, in the applicant's written submissions I was directed to passages in the transcript of the hearings before the BDT, none of which were of course available to Member Spillane, and which, it was contended as I understood the applicant's submissions, showed no reasonable tribunal with those passages could have concluded there was no arguable case that the BDT had erred in not applying the principles of mitigation to reach the conclusion that the damage requiring demolition must have arisen as a result of the respondents' failure to mitigate.
97 Those passages were new evidence, in the sense I have explained, and so I consider I must apply to them the test of whether with them no reasonable tribunal could have arrived at the conclusion no arguable case had been shown the BDT had erred in that way.
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98 However, I consider that test is not met in respect of those passages, for the following reasons.
99 I note that in the applicant's Statement of Facts and Issues dated 4 November 2009 before the BDT, the applicant had included 'that the Complainants have failed to mitigate their loss', after which particulars are given.
100 However, it would not be enough, in my view, that the passages in question indicated that there was indeed an issue of mitigation. The present ground in respect of those passages as new evidence required that those passages raised the issue of mitigation such that no reasonable tribunal with the benefit of those passages could have concluded that no arguable case had been shown that the BDT had erred in not concluding the damage requiring demolition must have arisen by reason of the respondents' failure to mitigate.
101 The passages raised the question of mitigation, but were not such as to satisfy that test.
102 The passages to which I was directed were of evidence that a great deal of the work on the House which might have been included in the Works was excluded from them and done by people other than the applicant. This was pursuant to arrangements the respondents made with others. The BDT took the position, against which the applicant's counsel declined to lead evidence or make submissions, that the applicant had control of the site of the Works. However, it was put to me that the arrangements with others of necessity qualified that control, indicating that control was indeed shared, and thus preventing any conclusion that the applicant was responsible for covering the Works.
103 In respect of control and responsibility for covering the Work, I note one of the passages to which my attention was drawn, which included the following, from the closing submissions of counsel for the respondents to the BDT (18 December 2009, ts 10)
[the applicant] had control of the site, he could have protected it … he could have protected the works that - that he had control of, but he didn't. The house is now weathered, badly damaged, the works that have been done are defective and the cost - there's two approaches there, do you come in, enter another contract and attempt to have the defective work remedied and also the defects in the house remedied, or do you - do you knock it all over.
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104 Counsel for the applicant also put to me that the respondents had been in dispute with the applicant from about April 2009, and there was no evidence the respondents had done anything on the site.
105 However, as I have indicated then counsel for the applicant had not contested nor sought to put in evidence before the BDT that the applicant did not have control of the site of the Works, and I was not taken to any passages in which that counsel for the applicant contested the submission for the respondents I have quoted that the applicant could have protected the site but did not.
106 Nor is it evident to me that the arrangements the respondents made with others showed that the BDT acting reasonably could not have concluded that the applicant had control of the site sufficient to warrant the submission of counsel for the respondents just quoted.
107 Thus, on the passages in the transcript of the hearing before the BDT cited to me in connection with ground 2, I do not consider it has been shown that no reasonable tribunal with the benefit of those passages could have concluded that no arguable case had been shown that the BDT had erred in not concluding the damage requiring demolition must have arisen by reason of the respondents' failure to mitigate.
108 Accordingly, I would not give leave on ground 2.
109 However, there is a further aspect to the matter of mitigation, which ground 3 raises. I reach it when I consider that ground.
Ground 3: the matter of termination of the Contract
110 This ground is somewhat elliptically expressed. As became apparent from the written submissions for the applicant, and from certain of the oral submissions of counsel for him, this ground was related to the matter of mitigation.
111 This relationship emerges, it seems to me, from what appears to be that part of the Decision of the SAT in which the error of law the subject of this ground appears. It is the part that follows, in relation to the first of the grounds for review outlined to Member Spillane (29 September 2010, ts 170 - 171):
The first ground was that the BDT erred in fact and law in failing to find that the contract in place between the applicant and the respondent was repudiated by the respondent by conduct in preventing the applicant access to the site, and said repudiation was accepted by the applicant on or about
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- 28 June 2009, bringing the building contract to an end as a result of the repudiation by the respondent. The applicant made no written submission in respect of this issue. In aural [sic oral] submissions they stated,
As a matter of law, on the face of it, on their own evidence, they terminated the contract on 5 September. How could it be, in those circumstances, my client's obligation to keep the weather out? There was no contract at that stage. If they terminated the contract on 5 September, the cost exceeded from 190 to 390 in two months in Kalgoorlie.
The tribunal enquired, 'Why was none of that put?' counsel for the applicant stating, 'I don't know what happened at that thing. And I think we should know.' The tribunal then stated, 'if you had got a transcript, you would know.' There was clearly a difference between the parties on this issue. The respondent, its written submission, stated,
The respondent submits that the applicant left the premises without any communication and failed to attend the premises for a period of time. Therefore it was the applicant that repudiated the contract.
As can be seen from the respondent builder's statement of issues, facts and contentions dated 4 November 2009, this matter was clearly before the BDT. At clause 5 of that document, the then lawyer for the builder submitted,
By letter dated 4 November 2009, from the respondent's solicitor addressed to the complainant's solicitor, the respondent -
That was the builder at that stage -
has terminated the contract.
There is little doubt that, over three days of hearing, the matter was dealt with in some way and evidence received. However, nothing has been put before this tribunal, other than a contention by the applicant that the BDT erred in failing to find that the contract had been repudiated. Due to the lack of transcript, this tribunal does not know what was before the BDT and what findings, if any, they made.
The applicant cannot succeed in showing there is an arguable case on this ground, based solely on a submission and in effect asking this tribunal to join the dots to find the BDT fell into error in the complete absence of everything that happened before the BDT.
112 As counsel for the applicant pointed out, the respondents' case before the BDT had not when first put on 30 June 2009 included any reference to damage of any property by weathering. Such a reference had first appeared in the Statement of Complainants' Issues, of 22 September 2009, and then only in respect of the timber framework forming part of the
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- Works, not the House. No modification of the Statement of Complainants' Issues had been made before the start of the hearings before the BDT on 11 December 2009.
113 In oral submissions before me counsel for the applicant pointed out that in the applicant's Statement of Facts and Issues, there was the following among the particulars of the respondents' failure to mitigate:
(iii) the Complainants failed, after refusing to allow the Respondent back on site to do so or for any purpose, to take any or any sufficient measures to protect the partly-completed works which have as a result become weather-affected.
114 Counsel for the applicant put to me, as I understood him, that Member Spillane had erred in law in finding there was no evidence or other material before him to show it was arguable the BDT had erred in rejecting the case for the applicant that the weathering had occurred after the respondents' refusal referred to, and therefore that weathering was due to the respondents' failure from that point to mitigate by protecting the site. Although the matter of when that refusal occurred is not clear from the applicant's Statement of Facts and Issues, counsel for the applicant drew my attention to the letter of termination of the Contract dated 22 September 2009 by the respondents' solicitors to the applicant's solicitor, as the date of termination of the contract on which this ground apparently rested.
115 Counsel for the applicant did not draw to my attention any passages in the transcript of the proceedings before the BDT for the purposes of ground 3.
116 In my view, the applicant has not shown that Member Spillane had erred in law in the respect this ground asserts. That is because there has been no showing of what evidence relevant to the parties' contentions in relevant respects was before the BDT. In particular, there is no indication of what evidence was before the BDT relevant to the matter of what weathering occurred, and when it occurred. Indeed so much appears to have been acknowledged by counsel for the applicant in his written submissions to me. I do not consider it is possible to infer from the Statement of Complainants' Issues that it was accepted by them no weathering of the interior of the house had occurred by 22 September 2009. The lack of any modification of the Complainants' Statement of Issues before the first hearing of 11 December 2009 does not appear to me to advance the matter, in a body like the BDT which operates without pleadings.
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117 Accordingly, I would not give leave on ground 3.
Grounds 4 and 5: prejudice to the parties
118 It was common ground these two grounds should be considered together.
119 No oral argument was directed to me with respect to these grounds.
120 I do not consider any question of law is shown by them.
121 It should be noted that Simonsen [8](d)(iv) refers to prejudice to a respondent, not to an applicant. However, while the factors listed in [8](d) are 'major factors' they are 'not necessarily exhaustive'. There is authority that 'respective prejudice to the parties' is a 'relevant factor': see Rocom International Pty Ltd v Prentice [2002] FCA 604 [4] (Tamberlin J), referring to Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, 539 - 543 (Kirby J).
122 There was material before Member Spillane that indicated that the order for payment resulting from the Decision of the BDT had founded a bankruptcy notice against the applicant: see the affidavit of Thomas McPhee of 14 September 2010 annexure A. Member Spillane recognised that the applicant was 'facing bankruptcy', apparently as a consequence: 29 September 2010, ts 22. However, this reference was it seems in connection with what Member Spillane saw had brought the applicant finally to apply to the SAT for an extension of time to appeal against the Decision of the BDT.
123 Member Spillane dealt with the matter of prejudice to the respondents as follows (29 September 2010, ts 11):
In relation to the extent of any prejudice suffered by the respondent, it is clear that the respondent entered into a secured loan to finance the works, and the respondent is still incurring interest charges on the loan, and the respondent is not able to borrow further funds. Furthermore, the respondent is living in a shed at the respondent's residential premises with his wife and two children as their former residence remains uninhabitable. It also must be remembered that this is in Kalgoorlie, and it was not mentioned that the shed is in any way air conditioned.
124 It was not put to me that Member Spillane did not have evidence or other material before him to justify that account. In the applicant's written submissions it was contended that any prejudice the respondents faced was one in the nature of a 'limited delay'. However, it was not evident to
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- me that the prejudice to the respondents even limited in time did not merit Member Spillane's account.
125 The written submissions for the applicant included that on this material the prejudice to the applicant was he faced 'ruin'. Those submissions also referred to transcript of the hearing before the BDT which included an acknowledgement by counsel for the respondents to the BDT, in response to one member referring to the applicant's statement in the proceedings that 'he hasn't got any money', that 'this case is essentially about an insurance policy and that's what this case is about', while the insurance policy's value was a 'hundred [thousand]' (18 December 2009, ts 37). There was no evidence the insurance, by which I consider was meant builder's insurance, was in any way impaired by the applicant's application for an extension of time to appeal.
126 However, I consider the basis for the question of law asserted in grounds 4 and 5 could only lie in the failure of Member Spillane to take into account a consideration which in the circumstances he was bound to take into account: Paridis [57]. I am unable to agree that the applicant has shown that, on the account of the position of the respondents he set out, Member Spillane was bound to take into account the prejudice to the applicant referred to. No authority was cited to me that even where the prejudice to a respondent is so assessed substantial prejudice to an applicant must also be weighed. Nor does the proposition that it must always be weighed commend itself to me, on Simonsen's reference only to prejudice to the respondent. At most, it seems to me, the prejudice to the applicant was a consideration which Member Spillane might properly have taken into account, or one that many decision-makers in his position might have taken into account: see Paridis [57].
127 Accordingly, I would not give leave on grounds 4 and 5.
Ground 6: failure to take into account or dismissal of the applicant's explanation for the delay
128 The submissions for the applicant noted that before Member Spillane was an affidavit of the applicant sworn 17 September 2010 describing the circumstances he faced at and following the time of the release of the Decision of the BDT, including the amount in the order to pay as nearly double the original completion figure for the Contract, and his reaction to those circumstances. That reaction, of feeling 'lost and hopeless', was one which had led him not to seek to have the Decision of the BDT reviewed. I understood those submissions to be that in the light of those features of that explanation, the way in which it was dealt with by Member Spillane
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- was a failure to take that explanation into account where he was bound to do so: Paridis [57].
129 I accept that Member Spillane was, on Simonsen [8](d)(ii), bound to take the applicant's explanation into account. However, I consider that he did so. The weight Member Spillane gave that explanation in his determination of whether or not to grant the extension of time applied for does not it seems to me involve a question of law.
130 Member Spillane dealt with the applicant's explanation of his delay as follows (29 September 2010, ts 10, 11):
Following the decision in March - that is, the decision of the BDT or the order to pay - his reasons were that he still had lost hope, but he had no real reason, and effectively the tribunal sees no real reason there, and he did nothing and ignored the issue. He did say he was shocked, but I note there has been no evidence of any type in relation to that. And he was unable as a result of the order to take steps in a timely manner, but again there is no reason put forward.
…
Again, when the order to pay was issued, he took no steps, and even in May 2010, when advised by the Builders' Registration Board that he should seek legal advice if he believed there was an error, he again did nothing. Even now, apart from stating that he had lost all hope, the applicant puts forward no cogent reason for the significant delay.
131 I find these reasons somewhat difficult to follow, particularly, in light of the affidavit of the applicant sworn 17 September 2010, the passage 'I note there has been no evidence of any type in relation to that'. However, I consider that read as a whole the reasons indicate that in view of the length of the delay ('the significant delay') the reason put forward (he had 'lost hope') was not a sufficient explanation ('no real reason', 'no cogent reason'). That is, the matter was one of the weight given to the applicant's explanation, not a failure to consider it. Nor was there a dismissal of that explanation without any real consideration of it, as I took the phrase 'out of hand' to be intended to assert.
132 Accordingly, I would not give leave on ground 6.
Ground 7: failure to give effect to the jurisdictional limit in Home Building Contracts Act s 16(2)
133 I have previously set out Home Building Contracts Act s 16(2).
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134 The submissions of the applicant were that the workmanship items in the original Complaint were not the items which led to the conclusion that the House had to be demolished and rebuilt. This it appears to have been contended would have been evident to Member Spillane from the original Complaint. If so, that conclusion had to be the result of the contractual matters, to which the jurisdictional limit applied.
135 I should note at the outset it was not made clear to me how the basis, in terms of the original Complaint, on which the BDT arrived at its conclusion that the House had to be demolished and rebuilt was evident from the materials before Member Spillane. I have previously referred to the lack of any reasons for the Decision of the BDT.
136 I accept that an appeal which is brought on the arguable ground that the decision appealed from was outside the jurisdiction of the decision-maker would be 'on a question of law'. See Aronson M et al Judicial Review of Administrative Action (4th ed 2009) [1.85] - [1.90]. I took Ground 7 to assert that the applicability of the jurisdictional limit was sufficiently evident on the face of the material before Member Spillane that it was a relevant consideration he was bound to take it into account in the circumstances (see Paridis [57]). However, I consider that consideration could only be relevant to whether or not the applicant had shown Member Spillane an arguable case that the Decision of the BDT was in error because it was beyond the jurisdictional limit.
137 It should be noted that the applicant did not put any such case to Member Spillane, as counsel for the applicant conceded before me. It should also be noted that Ground 7 as formulated, unlike the other grounds, is confined explicitly to the 'materials before [Member Spillane]', and so does not it seems to me to allow readily for reference to the transcript of the hearings before the BDT. In any event, the only material from that transcript to which counsel for the applicant referred me indicated that the chairperson of the BDT had considered the matter of the jurisdictional limit, and shortly afterwards went on to say that the 'remedial work' in the form of the 'demolition and reinstatement' might fall outside Home Building Act s 16(2) and rather be under Builders Registration Act s 12A. See 18 December 2009, ts 18 - 19.
138 However, it seems to be fatal to the present ground as I understood it that the legislation relied upon does not in fact distinguish as mutually exclusive contractual matters and ones of work of a proper or workmanlike character. Otherwise put, the fact a matter is contractual does not prevent it also being a matter of a failure to carry the work out 'in
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- a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory' in the terms of Builders Registration Act s 12A. See Home Building Contracts Act s 17(1)(a)(i), set out above.
139 Thus, even accepting the submissions for the applicant that the workmanship items in the original Complaint were not the items which led to the conclusion that the House had to be demolished and rebuilt, and further accepting without deciding that this was evident on the materials before Member Spillane, I do not consider it follows that it was evident the remaining matters were not capable of characterisation as also ones of failure to carry the work out 'in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory'. That is, the applicant's submission that the conclusion in the Decision of the BDT had to be the result of the contractual matters which were not ones of proper and workmanlike carrying out of the work to which the jurisdictional limit applied does not follow.
140 It follows I would not give leave on Ground 7.
Conclusion
141 I have not given leave on any of the grounds of the application before me.
142 It follows I would dismiss the application.
143 I will hear from the parties as to the orders they would have me make in these circumstances.
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