JACKSON & ANOR and WHITICKER & ANOR [2007] WASAT 41

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 41
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:818/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	13/02/07
No of pages:	14	Judgment Part:	1 of 1
Result:	Application for leave and review granted
Category:	B
PDF Version

Parties:	PETER JOHN JACKSON GAIL MAY JACKSON IAN SCOTT WHITICKER PATRICIA HELEN WHITICKER
Catchwords:	Builders' Registration Act 1939 (WA) Application for leave to review and the review of decision of Building Disputes Tribunal Whether proceedings miscarried for failure to provide procedural fairness
Legislation:	Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1)(b), s 12A(1a), s 12A(1a)(b)(ii), s 41(1) Home Building Contracts Act 1991 (WA), s 3 State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii)
Case References:	Lai & Anor and Costa [2006] WASAT 117 Nelson v Mardesic (1999) 22 SR 42
Orders	On the application determined by Senior Member Clive Raymond on 14 February 2007, it is ordered that:,1. Leave is granted to review the decision of the Disputes Tribunal reflected in the order to pay made on 11 May 2006 that the builder pay to the owner an amount of $2562.,2. The application for review is granted and the decision under review is set aside.,3. Pursuant to s 29(3)(c)(ii) of the State Administrative Tribunal Act 2004 (WA), the matter is sent back to the Disputes Tribunal for reconsideration in accordance with the following directions:,(a) The applicants/owners be afforded an opportunity to carry out all steps necessary to lodge a further complaint concerning any new workmanship issues not previously raised, and that complaint, if made, be consolidated in due course and heard at the same time as the current complaint.,(b) The reconsideration of the current complaint and any new complaint consolidated with it be heard by the Disputes Tribunal differently constituted to that which determined the reviewed decision.,(c) The chairperson who is to hear the matter conduct a directions hearing, or a series of directions hearings, by way of telephone conference, to ensure that the issues to be determined are identified and that there is an exchange of expert reports prior to any hearing.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : JACKSON & ANOR and WHITICKER & ANOR [2007] WASAT 41 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 14 FEBRUARY 2007 FILE NO/S : CC 818 of 2006 BETWEEN : PETER JOHN JACKSON

GAIL MAY JACKSON

Applicants

AND

IAN SCOTT WHITICKER

PATRICIA HELEN WHITICKER

Respondents

Catchwords:

Builders' Registration Act 1939 (WA) - Application for leave to review and the review of decision of Building Disputes Tribunal - Whether proceedings miscarried for failure to provide procedural fairness

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1)(b), s 12A(1a), s 12A(1a)(b)(ii), s 41(1)

Home Building Contracts Act 1991 (WA), s 3

(Page 2)

State Administrative Tribunal…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2007] WASAT 41
Decision Date: 14 FEBRUARY 2007

CaseChat Overview and Summary

In the matter of Jackson and Anor and Whiticker and Anor, the applicants appealed a decision made by the Building Disputes Tribunal. The applicants, who were builders, sought a review of a decision which ordered them to pay the owner a sum of $2562. They argued that the proceedings miscarried due to a failure to provide procedural fairness.

The legal issues before the court were whether the proceedings before the Building Disputes Tribunal were flawed due to a lack of procedural fairness and whether this constituted a miscarriage of justice. The applicants contended that the tribunal did not allow them to adequately present their case, particularly in relation to the calculation of damages. They argued that the tribunal failed to provide them with an opportunity to respond to the owner's evidence and to cross-examine the owner's witnesses.

The court found that the tribunal's process did not allow the applicants to adequately defend themselves, particularly in relation to the calculation of damages. The tribunal did not provide the applicants with an opportunity to respond to the owner's evidence or to cross-examine the owner's witnesses. The court held that this constituted a failure to provide procedural fairness and resulted in a miscarriage of justice. The court granted leave to review the decision and set aside the order to pay.

Orders

Orders of the court

On the application determined by Senior Member Clive Raymond on 14 February 2007, it is ordered that: 1. Leave is granted to review the decision of the Disputes Tribunal reflected in the order to pay made on 11 May 2006 that the builder pay to the owner an amount of $2562. 2. The application for review is granted and the decision under review is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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