JETPOINT NOMINEES PTY LTD and LEE
[2021] WASAT 10
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: JETPOINT NOMINEES PTY LTD and LEE [2021] WASAT 10
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
HEARD: 3 NOVEMBER 2020
DELIVERED : 2 FEBRUARY 2021
FILE NO/S: CC 1017 of 2020
BETWEEN: JETPOINT NOMINEES PTY LTD
Applicant
AND
YU LIAN LEE
Respondent
Catchwords:
Building service complaint - Application for leave to apply for internal review of orders made by original Tribunal when dealing with a building service complaint - Procedural fairness - Whether original Tribunal erred by breaching rules of natural justice in that it denied alleged building service provider opportunity to know case it had to meet - Whether original Tribunal erred by breaching rules of natural justice in that its conduct at hearing denied alleged building service provider reasonable opportunity to present its case and demonstrated a reasonable apprehension of bias or actual bias - Whether original Tribunal erred by failing to hear and determine original proceeding together with other proceedings pending before Tribunal in relation to building service complaints concerning same land against different alleged building service providers - Whether original Tribunal erred by imposing a monetary building remedy order and not a works building remedy order
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 9(1), s 11(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(2), s 38, s 38(1), s 58, s 58(2), s 58(5), s 58(6)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Guardianship and Administration Act 1990 (WA), s 17A(1)
Home Building Contracts Act 1991 (WA), s 3(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 5, s 9, s 9(a), s 9(b), s 9(c), s 14, s 15(1), s 17(1), s 27, s 27(1), s 27(2), s 27(3), s 32(1), s 32(2), s 32(4), s 32(5), s 32(7)(a), s 34, s 34(1), s 34(3), s 35, s 39(1)(f), s 117(3)(b), s 117(4)(b)
State Administrative Tribunal Rules 2004 (WA), r 39C(1), r 39C(2)(a)
Result:
Application for leave to apply for review orders in decisions made by original Tribunal in proceeding CC 1893 of 2019 on 10 June 2020 and 23 July 2020 (decisions) granted
Review of orders in decisions remitted for determination by differently constituted Tribunal
Summary of Tribunal's decision:
Jetpoint Nominees Pty Ltd sought leave to apply for internal review by the Tribunal of orders made by the Tribunal (original Tribunal) in building dispute proceedings between Ms Yu Lian Lee and Jetpoint relating to nine complaint items arising out of external building work at a residential property in Applecross. The original Tribunal determined that Jetpoint carried out the regulated building service the subject of the complaint items and made a monetary building remedy order requiring Jetpoint to pay to Ms Lee the costs of remedying the complaint items in the total amount of $83,490.
The Tribunal determined that the original Tribunal erred by breaching the rules of natural justice in the conduct of the original proceeding, contrary to s 32(1) of the State Administrative Tribunal Act 2004 (WA). The original Tribunal erred by breaching the hearing rule of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet at the hearing in relation to the basis on which Ms Lee alleged that Jetpoint carried out the relevant regulated building service, because it did not require Ms Lee to file a witness statement of her evidence in chief (or a statement of issues, facts and contentions) and, consequently, Jetpoint was only made aware of an important element of the case it had to meet as Ms Lee gave her evidence and made her submissions at the hearing. This gave no meaningful opportunity to Jetpoint to consider Ms Lee's case and respond to it by cross-examination and presentation of evidence.
The original Tribunal also erred in that, by its conduct at the hearing, it breached the hearing rule of natural justice by denying Jetpoint a reasonable opportunity to present its case and breached the bias rule of natural justice in that its conduct demonstrated, at least, a reasonable apprehension of bias and, indeed, ultimately crossed the line to show actual bias against Jetpoint. The original Tribunal's frequent and, in many cases, unnecessary interruptions during the crossexamination of Ms Lee by Mr Sean O'Reilly, a director of Jetpoint, and its pejorative questioning and commentary during Mr O'Reilly's and his fellow director Mr Mario Andreou's evidence fundamentally undermined the fairness of the hearing and effectively denied Jetpoint a reasonable opportunity to properly present its case. Furthermore, gratuitous and extraordinary questioning and commentary by the original Tribunal during the evidence of Mr O'Reilly and Mr Andreou, including proffering a repeated analogy between Mr O'Reilly's conduct and that of the driver of 'the getaway car from a bank robbery', expressing 'amaze[ment]' at Mr O'Reilly's evidence and asking '[h]ow are any of you not embarrassed?' when reviewing WhatsApp messages in a group including Mr O'Reilly and Mr Andreou during Mr O'Reilly's evidence, asking Mr Andreou during his evidence '[a]re you trying to think of the answer that best fits the case that's been put forward by Mr O'Reilly on behalf of Jetpoint Nominees?' and commenting to him, after he said 'I can't recall' whether he submitted information to the City of Melville on a particular day, 'And just be careful you don't do the Alan Bond. Alright?', demonstrated, at least, a reasonable apprehension of bias against Jetpoint. Indeed, the original Tribunal's questioning and commentary during Mr O'Reilly's evidence ultimately crossed the line to show actual bias against Jetpoint.
The Tribunal determined that the denial of procedural fairness to Jetpoint vitiates the original Tribunal's decisions and, if leave were not granted to apply for internal review of the orders in the decisions made by the original Tribunal, Jetpoint would suffer a substantial injustice. The Tribunal therefore granted Jetpoint leave to apply for internal review and determined that the review should be conducted by the Tribunal constituted differently to the Tribunal constituted in the original proceeding.
Category: B
Representation:
Counsel:
| Applicant | : | Mr GJ Douglas |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Douglas Cheveralls Lawyers |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Filimon and Rimmer [2013] WASAT 13; (2013) 83 SR (WA) 348
Galea v Galea (1990) 19 NSWLR 263
Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155
Lee and Holmes [2020] WASAT 108
Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62; (2020) 100 SR (WA) 187
Lee and Jetpoint Nominees Pty Ltd [No 2] [2020] WASAT 79
LP [2020] WASAT 25
Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20; (2013) 83 SR (WA) 383
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135
R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382; (2014) 238 A Crim R 205
Yuill v Yuill [1945] P 15; [1945] 1 All ER 183
TABLE OF CONTENTS
Introduction
BSCRA Act
Decisions of the original Tribunal
Principles concerning whether to grant leave to apply for an internal review of an order made by the Tribunal when dealing with a building service complaint
Grounds for review
Did the original Tribunal err by breaching the rules of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet?
Did the original Tribunal err by breaching the rules of natural justice in that its conduct at the hearing denied Jetpoint a reasonable opportunity to present its case and demonstrated a reasonable apprehension of bias or actual bias?
Did the original Tribunal err by failing to hear and determine the original proceeding together with the other proceedings?
Did the original Tribunal err by imposing a monetary BRO and not a works BRO?
Should leave be granted to apply for internal review of the orders in the decisions made by the original Tribunal?
Orders
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Jetpoint Nominees Pty Ltd (Jetpoint) seeks leave, under s 58(5) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), to apply for internal review by the Tribunal, under s 58(2) of the BSCRA Act, of the orders made by the Tribunal constituted by Member Ms Delaney Quinlan and Sessional Member Mr Raymond Kershaw (original Tribunal) in proceeding CC 1893 of 2019 (original proceeding) on 10 June 2020 in Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62; (2020) 100 SR (WA) 187 (first decision) and on 23 July 2020 in Lee and Jetpoint Nominees Pty Ltd [No 2] [2020] WASAT 79 (second decision) (collectively, decisions).
The original proceeding involved the referral by the Building Commissioner to the Tribunal, under s 11(1)(d) of the BSCRA Act, of a building service complaint made by Ms Yu Lian Lee (Ms Lee), under s 5(1) of the BSCRA Act, against Jetpoint trading as ACE Construction, in relation to 'External Landscaping Works'[1] carried out at the property address stated in the building service complaint as '23c MacLeod Road APPLECROSS WA 6153 Australia',[2] but which the original Tribunal found was carried out not only at Lot 23C MacLeod Road, Applecross (Lot 23C MacLeod Road), but also, in part, at Lot 23A MacLeod Road, Applecross (Lot 23A MacLeod Road) and at Lot 23B MacLeod Road, Applecross (Lot 23B MacLeod Road) (building service complaint). In particular, the building service complaint concerns nine complaint items relating to external building work carried out at No. 23 MacLeod Road, Applecross (No. 23 MacLeod Road) that Ms Lee alleges were not carried out in a proper and proficient manner or are faulty or unsatisfactory.[3]
[1] Hearing Book (Exhibit 1) in the original proceeding (Hearing Book) page 157.
[2] Hearing Book page 157.
[3] Consolidated Scott Schedule for 23C MacLeod Road (Hearing Book pages 466470). Although the Consolidated Scott Schedule in the original proceeding is headed 'Consolidated Scott Schedule for 23C MacLeod Road', as the original Tribunal found, some of the external building work to which complaint items relate was carried out at Lots 23A and 23B MacLeod Road, and not only at Lot 23C MacLeod Road.
No. 23 MacLeod Road was subdivided by Ms Lee and her husband, Mr Hee Leong Ling (Mr H Ling), and by Mr H Ling's brother, Mr Che Haw Ling (Mr C Ling),[4] into Lots 23A, 23B and 23C MacLeod Road. No. 23 MacLeod Road is located on the western side of MacLeod Road. Each of Lots 23A, 23B and 23C MacLeod Road has a frontage to MacLeod Road, with Lot 23A MacLeod Road (which is located in the central and eastern part of the northern section of No. 23 MacLeod Road) and Lot 23C MacLeod Road (which is located in the central and eastern part of the southern section of No. 23 MacLeod Road) having the principal frontages to the street, and Lot 23B MacLeod Road (which occupies the rear or western section of No. 23 MacLeod Road) having a narrow frontage and accessway to the street, between Lots 23A and 23B.[5]
[4] Mr C Ling gave his name as Che Haw Ling when he commenced giving evidence at the hearing before the original Tribunal on 13 May 2020. The original Tribunal referred to Mr C Ling as Mr Hee Keat Ling in the first decision [2].
[5] Ms Lee's plot plan (Exhibit 3 in the original proceeding) when read together with the site plan approved by the City of Melville on 4 October 2018 for the purposes of Building Permit No. BA-2018-1535 in relation to the external building work the subject of the original proceeding (Hearing Book page 140).
Ms Lee and Mr H Ling own Lots 23B and 23C MacLeod Road. Mr C Ling owns Lot 23A MacLeod Road. Commencing in around October 2016, substantial single houses were constructed at Lots 23A and 23B MacLeod Road as residences for Mr C Ling and his wife, Ms Su Lin Yong (Ms Yong), and Ms Lee and Mr H Ling, respectively. In addition, during the period around August 2018 to June 2019, external building work comprising a tennis court, arbour, paving and other associated work for landscaping was carried out principally at Lot 23C MacLeod Road and also, in part, at Lots 23A and 23B MacLeod Road. It appears that, by informal agreement between them, the external building work is for the benefit and use of the occupants of both Lots 23A and 23B MacLeod Road. Although the original Tribunal said that '[the original] proceedings relate to the provision of a regulated building service at [Lots] 23A, 23B and 23C MacLeod Street [sic], Applecross from around October 2016 to May 2019 (collectively, site or 23 MacLeod Street [sic])',[6] this is incorrect. Rather, the original proceeding related to the provision of a regulated building service at No. 23 MacLeod Road from around August 2018 to June 2019 involving external building work and, in particular, the nine complaint items allegedly resulting from the carrying out of the external building work.
[6] First decision [3] (emphasis added).
At both the final hearing in the original proceeding, which took place on 6, 13 and 14 May and 30 June 2020, and at the hearing of the application for leave to apply for internal review of the orders made by the original Tribunal, which took place on 3 November 2020, Ms Lee appeared in person, with the assistance and support of Mr H Ling. At the final hearing in the original proceeding, Jetpoint was represented by Mr Sean O'Reilly (Mr O'Reilly) and Mr Mario Andreou (Mr Andreou), who are directors of Jetpoint and therefore permitted to represent it under s 39(1)(f) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At the hearing of the application for leave to apply for internal review, Jetpoint was legally represented by Mr GJ Douglas.
In these reasons, I will firstly review relevant provisions of the BSCRA Act, the decisions of the original Tribunal and the principles concerning whether leave to apply for internal review of an order made by the Tribunal when dealing with a building service complaint should be granted. I will then set out Jetpoint's grounds for review and consider whether the original Tribunal erred in relation to those grounds in turn. Finally, I will consider whether leave should be granted to Jetpoint to apply for internal review of the orders made by the original Tribunal.
BSCRA Act
Section 5(1) of the BSCRA Act states as follows:
Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
A complaint made under s 5(1) of the BSCRA Act is referred to as a 'building service complaint'.[7] Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regs) prescribes who can make a building service complaint under s 5(1) of the BSCRA Act in the following terms:
A building service complaint about the carrying out of a regulated building service may only be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service.
[7] Definition of 'building service complaint' in s 3 of the BSCRA Act.
There is no dispute that Ms Lee is authorised to have made the building service complaint the subject of the original proceeding under s 5(1) of the BSCRA Act and reg 5 of the BSCRA Regs.
The term 'regulated building service' is defined in s 3 of the BSCRA Act as follows:[8]
[8] Bold and italicised emphasis original and underlined emphasis added.
regulated building service means any of the following —
(a)a building service carried out by a registered building service provider or an approved owner builder;
(b)home building work that is —
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract; [and]
(c)any other service or work prescribed for the purposes of this definition[.]
The term 'building service' is defined in s 3 of the BSCRA Act as including 'building work' as defined in s 3 of the Building Act 2011 (WA), namely:[9]
[9] Original emphasis.
building work means —
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in —
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
The term 'home building work' is defined in s 3 of the BSCRA Act as having the meaning given in s 3(1) of the Home Building Contracts Act1991 (WA), namely:[10]
[10] Original emphasis.
home building work means the whole or part of the work of —
(a)constructing or re-constructing a dwelling including an existing dwelling and/or strata-titled dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a stratatitled dwelling; or
(d)constructing or carrying out any associated work in connection with —
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a stratatitled dwelling[.]
Under s 9(1) of the BSCRA Act, the Building Commissioner must cause an investigation to be carried out of a building service complaint that has been accepted. Under s 11(1) of the BSCRA Act, once the Building Commissioner has considered a report on an investigation carried out under s 9(1) of the BSCRA Act in relation to a building service complaint, the Building Commissioner may take specified actions, including, under s 11(1)(d), to 'refer the complaint to the [Tribunal] for it to deal with under [s] 38 [of the BSCRA Act]…'. The Tribunal's jurisdiction in relation to a building service complaint referred to it by the Building Commissioner under s 11(1)(d) of the BSCRA Act is conferred by s 38(1) of the BSCRA Act, which states as follows:
If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may —
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
The meaning of the term 'building remedy order' (BRO) is prescribed in s 36(1) of the BSCRA Act, which states, in part, as follows:
A building remedy order consists of one of the following —
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order; [and]
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order[.]
…
A BRO described in s 36(1)(a) of the BSCRA Act is commonly referred to as a 'works BRO' and a BRO described in s 36(1)(b) of the BSCRA Act is commonly referred to as a 'monetary BRO'. Section 36(2) of the BSCRA Act provides that a BRO 'may require that the order be complied with within a time specified in the order'.
Finally, in terms of relevant provisions of the BSCRA Act, s 58 of the BSCRA Act provides for internal review by the Tribunal, comprising or including a judicial member or a senior member who is legally qualified, of an order that was made by the Tribunal when constituted without a judicial member in the exercise of jurisdiction, relevantly, under s 38 of the BSCRA Act. An application for review under s 58 of the BSCRA Act cannot be made unless the Tribunal, comprising or including a judicial member or a senior member who is legally qualified, gives leave to do so. Section 58 of the BSCRA Act states, in part, as follows:[11]
[11] Original emphasis.
(1)In this section each of the following terms has the meaning given to it by the State Administrative Tribunal Act 2004 section 3(1) —
judicial member
legally qualified member
President
senior member
(2)The State Administrative Tribunal constituted by —
(a)a judicial member or a senior member who is a legally qualified member; and
(b)such other members, if any, as the President considers appropriate,
may, upon an application of a party, review an order that was made by the State Administrative Tribunal when constituted without a judicial member in the exercise of jurisdiction given under section 38 ….
(3)The State Administrative Tribunal constituted under subsection (2) may —
(a)affirm the order that is reviewed; or
(b)vary the order that is reviewed; or
(c)set aside the order that is reviewed and substitute another order.
(4)The order that is reviewed, as affirmed or varied under subsection (3), or an order that is substituted for the order reviewed —
(a)is to be regarded as, and given effect as, an order made under section 38 …; and
(b)unless the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the order reviewed would have, or would have had, effect.
(5)An application under subsection (2) for review of an order —
(a)cannot be made unless the State Administrative Tribunal constituted by —
(i)a judicial member or a senior member who is a legally qualified member; and
(ii)such other members, if any, as the President considers appropriate,
gives leave; and
(b)cannot be made later than 30 days after the order is made.
(6)Unless otherwise provided by the regulations, the State Administrative Tribunal Act 2004 Part 3 Division 3 Subdivision 3 applies in relation to a review under this section.
(7)The regulations may modify the operation of the StateAdministrative Tribunal Act 2004 in relation to a review under this section.
Decisions of the original Tribunal
At the initial directions hearing in the original proceeding on 10 December 2019, Senior Member Ms Charlotte Wallace made programming orders and listed the matter for final hearing on 9 March 2020 before the original Tribunal. At a directions hearing on 5 March 2020, Senior Member Ms Lisa Eddy vacated the final hearing set down for 9 March 2020, extended the date for compliance with a programming order requiring Jetpoint to file with the Tribunal and provide to Ms Lee all documents on which it wished to rely at the final hearing not already on the Tribunal's file, and listed the matter for final hearing on 6 May 2020 before the original Tribunal.
At a directions hearing on 21 April 2020, Member Quinlan made the following order:[12]
The final hearing listed to commence at 10am on 6 May 2020 is converted to a hearing of the preliminary issue for determination raised by [Jetpoint] as follows: [W]hether [Jetpoint] carried out the regulated building service.
[12] Hearing Book page 7.
The hearing of the preliminary issue identified in the order set out immediately above took place before the original Tribunal on 6, 13 and 14 May 2020. Following that hearing, the original Tribunal reserved its decision in relation to the preliminary issue. On 10 June 2020, the original Tribunal made an order that '[t]he finding on the preliminary issue is [Jetpoint] carried out the regulated building service the subject of the nine items of complaint',[13] as well as programming orders for the continuation and completion of the final hearing, and published the first decision comprising its reasons for its determination of the preliminary issue.
[13] First decision page 24.
The original Tribunal observed at [9] of the first decision that 'Jetpoint disputes that it entered into a contract with [Ms Lee], written or oral[,] and [contends] that it was not the "builder" for the purposes of the [BSCRA] Act'. The original Tribunal then said the following at [9] of the first decision:
… Therefore, a preliminary issue has arisen for determination in these workmanship proceedings, as to whether Jetpoint 'carried out' the regulated building service at [No.] 23 McLeod [sic] Street [sic] and, more particularly to these proceedings, whether it carried out that work for the nine items of complaint.
It is clear from the original Tribunal's statement at [3] of the first decision that '[the original] proceedings relate to the provision of a regulated building service at [Lots] 23A, 23B and 23C MacLeod Street [sic], Applecross from around October 2016 to May 2019'[14] that, by the words 'the regulated building service at [No.] 23 McLeod [sic] Street [sic]' at [9] in the first decision, the original Tribunal was referring to all of the building work which had been carried out at No. 23 MacLeod Road from around October 2016 to May 2019, including the construction of the two single houses. Both Ms Lee and Jetpoint (who, as indicated earlier, were not legally represented before the original Tribunal) also proceeded on the basis that the preliminary issue for determination in the original proceeding was whether Jetpoint 'carried out' all of the building work which had taken place at No. 23 MacLeod Road from around October 2016 to May 2019. However, it does not appear that the resolution of the building service complaint in the original proceeding required a determination as to whether Jetpoint 'carried out' all of the building work at No. 23 MacLeod Road during that whole period. Rather, it appears that the relevant preliminary issue for determination in the original proceeding was whether Jetpoint 'carried out' (within the meaning of the definition of 'regulated building service' in s 3 of the BSCRA Act) the external building work the subject of the building service complaint at No. 23 MacLeod Road during the period from around August 2018 to June 2019.
[14] Emphasis added.
The notice of proposed complaint filed by Ms Lee with the Building Commissioner states that the date '[t]he [relevant] building work commenced' was 'Friday 31 August 2018' and that 'the date [the relevant building work] was last carried out' was 'Sunday, 16 June 2019'.[15] Furthermore, the notice of proposed complaint filed by Ms Lee with the Building Commissioner refers, under 'Complaint details' and in particular under 'Building information' in relation to the complaint details, to 'Building permit / License [sic] no: BA-2018 1535'.[16] 'BA2018-1535' is the reference number for a building permit granted by the City of Melville (City), which is the local government of the district within which No. 23 MacLeod Road is situated, on 4 October 2018 authorising external building work to be carried out at that property (building permit). The application for the building permit was made by Mr Andreou on 31 August 2018[17] for building work he described as '[f]ront and side boundary walls and infill landscaping including half base for tennis court'.[18] On the application for the building permit, under 'Builder details', Mr Andreou identified the '[b]uilder's name' as 'Ace Construction' and its email address as '[email protected]'.[19] The building permit states that the '[b]uilder's name' is 'Jetpoint Nominees Pty Ltd'.[20] Had the original Tribunal correctly characterised the limited scope of the preliminary issue in the original proceeding as relating to whether Jetpoint carried out the external building work at No. 23 MacLeod Road between about August 2018 and June 2019, it is likely that the hearing of the preliminary issue, which addressed conduct over a period of about three years and took three days, would have been completed more quickly.
[15] Hearing Book pages 157-158.
[16] Hearing Book page 157.
[17] Hearing Book page 137.
[18] Hearing Book page 134.
[19] Hearing Book page 136.
[20] Hearing Book page 152.
In its consideration of the preliminary issue, as it understood its scope and as it was argued by the parties, the original Tribunal noted that it was Ms Lee's submission that 'Jetpoint, through the actions of [Mr O'Reilly] and [Mr Andreou], carried out all of the regulated building service at [No. 23] MacLeod Street [sic]'[21] and that it was Jetpoint's submission that 'the regulated building service was not carried out by Jetpoint', but rather that '[Mr] PJ Holmes contracted with the owners to build 23A and 23B to a "lock-up" stage of the build and that the regulated building service on 23C was carried out by Ms Lee and Mr H. Ling as an "owner-builder"'.[22] The original Tribunal also noted that it was Jetpoint's further submission that 'Mr O'Reilly was not a director [of Jetpoint] at the relevant time and was involved in his personal capacity as a friend to Ms Lee and Mr H Ling receiving no remuneration for his assitance'[23] and that he was, therefore, not managing or overseeing the regulated building service at No. 23 MacLeod Road on behalf of Jetpoint.[24] The original Tribunal observed that it was 'common ground that Ms Lee agreed to pay [Mr Andreou] $300,000 for his involvement in [the regulated building service at No. 23] MacLeod Street [sic] though Mr Andreou disputed he actually personally received the full payment'.[25] However, it was Mr Andreou's evidence and Jetpoint's submission before the original Tribunal that 'Mr Andreou's involvement … was … in a personal capacity',[26] rather than as a director of Jetpoint, and that it was in that personal capacity that he managed the building project at No. 23 MacLeod Road on behalf of the owners.[27]
[21] First decision [11].
[22] First decision [14].
[23] First decision [15].
[24] A company search in evidence before the original Tribunal (part of Exhibit 5) shows that, having previously been a director of Jetpoint between 21 August 2006 and 15 May 2015, Mr O'Reilly was again appointed as a director of Jetpoint on 14 April 2018. He was therefore a director of Jetpoint 'at the relevant time' for the purposes of the building service complaint, namely August 2018 to June 2019. The original Tribunal's reference to Jetpoint's further submission that Mr O'Reilly was not a director of Jetpoint 'at the relevant time' highlights the original Tribunal's (and the parties') misunderstanding of the scope of the relevant preliminary issue.
[25] First decision [15].
[26] First decision [15].
[27] The applicant's submissions concerning the application for a leave to review, pursuant to [s] 58(5)(a) of the [BSCRA] Act, listed for a hearing on 3 November 2020 dated 9 October 2020 (Jetpoint's written submissions) [28].
In the course of addressing the evidence given by Mr O'Reilly and Mr Andreou in relation to the preliminary issue, the original Tribunal made the following findings at [42], [44], [48] and [49] of the first decision:
42On the whole of the evidence, the Tribunal infers and finds that Mr O'Reilly was in effect the project manager for the entire build at [No.] 23 Macleod [sic] Street [sic]. We also find that Mr O'Reilly when acting as project manager did this on behalf of Jetpoint trading as ACE Construction. Whether Mr O'Reilly was personally remunerated or not is immaterial to the first definition of a regulated building service. We also find that Mr O'Reilly orchestrated the entire mutually beneficial arrangement with the owners which included the fiction that [Mr] PJ Holmes was the builder, the setting up of the joint account and other financial irregularities.
…
44The Tribunal finds we are not impressed with Mr Andreou as a witness of truth. We find that Mr Andreou was predominantly dishonest in his evidence due to his fundamentally misguided participation in the fiction orchestrated by Mr O'Reilly for Jetpoint to attempt to perform a regulated building service contrary to its obligations under the [BSCRA] Act. It was apparent to the Tribunal that Mr O'Reilly and Mr Andreou had both operated under the mistaken belief that if there is no written contract with Jetpoint and if Jetpoint was not paid directly, or at all, that Jetpoint cannot be held liable under the [BSCRA] Act.
…
48Of significance to note in relation to Mr Andreou's lack of credibility as a witness of truth is his action on 11 September 2019, when he lodged a misleading and false Notice of Cessation with the City of Melville (see pages 471A471D of the [Hearing Book] and Exhibit 9). We find that the Notice of Cessation completed by Mr Andreou is deliberately false in the following respects:
a)The date of cessation was 4 October 2018;
b)The date on which the Notice of Cessation was signed was 4 October 2018 (when it was actually lodged on 11 September 2019 using the approved form which was created on 8 March 2019 as noted at the bottom of the Notice of Cessation); and
c)No work was completed as the contract was awarded to others.
49We infer and find that the intention of Mr Andreou can only have been to mislead the City of Melville and seek to mislead the Tribunal in these proceedings in order to perpetuate the ongoing fiction. We infer and find that the fiction was that [Mr] PJ Holmes carried out the regulated building service at [Lots] 23A and 23B until lockup and the owners were an ownerbuilder after that point; when, in fact, Jetpoint trading as ACE Construction through the actions of Mr O'Reilly and Mr Andreou was the true regulated building service provider for the whole of the project at [No.] 23 MacLeod Street [sic].
Later in the first decision, under the heading 'Consideration of the preliminary issue', the original Tribunal determined as follows at [71][77]:[28]
71We infer and find that Jetpoint trading as ACE Construction through the actions of Mr O'Reilly and Mr Andreou, did enter an arrangement to carry out home building work for gain or reward. Part of that gain or reward to Jetpoint was the payment of $300,000 to one of its directors, Mr Andreou. Mr Andreou gave evidence, which we accept, that he did not receive all of that amount but did not (or would not) say who the remaining money was paid to. The Tribunal also accepts the evidence by Ms Lee and Mr H Ling that all of the $300,000 was paid. The Tribunal draws the inference that the remainder somehow was provided to Mr O'Reilly (who had an ongoing interest in Jetpoint at the time as his wife was a director). We make this conclusion contrary to Mr O'Reilly's evidence (which we do not accept as credible) that he did all this work for three years as a friend for no remuneration. We also note the vague evidence given by Ms Lee concerning an apparent loan of $1,000,000 from Mr H Ling to Mr O'Reilly and a part repayment of $100,000 by Mr O'Reilly on 27 November 2017 as further possible evidence of gain or reward to Jetpoint (see p 306 of the [Hearing Book]). An additional gain or reward obtained by Jetpoint was the advertising of ACE Construction at [No.] 23 McLeod [sic] Street [sic] by the large canvas sign and the verge sign as well as the implicit permission from Ms Lee for Mr O'Reilly to take interested parties through [No.] 23 McLeod [sic] Street [sic]. The additional gain or reward for Jetpoint was the joint venture occurring in Como between Mr and Mrs O'Reilly as well as Ms Lee and Mr H Ling for a four townhouse project where Jetpoint is the appointed builder.
72Jetpoint was first registered as a building service contractor on 23 February 2015. Since 21 April 2015 Jetpoint has owned the business known as ACE Construction. Both Jetpoint and ACE Construction operate from the same address at 26A Fraser Road, Applecross. The two current directors for Jetpoint are Mr Andreou and Mr O'Reilly. Therefore, during the carrying out of the regulated building service at [No.] 23 MacLeod Street [sic], Jetpoint was registered as a building service contractor and met the definition of registered building service provider in s 3 of the [BSCRA] Act (see Exhibit 5, Exhibit 6 and pages 30-32 of the [Hearing Book]).
73The definition of a regulated building service in s 3 of the [BSCRA] Act provides that it means any of the three definitions. Thus a registered building service provider who carries out a building service is providing a regulated building service regardless of any gain or reward. We find that Jetpoint carried out the regulated building service at [No.] 23 MacLeod Street [sic].
74The Tribunal also finds that Jetpoint at [No.] 23 MacLeod Street [sic] carried out 'home building work' at [No.] 23 Macleod [sic] Street [sic] as defined under the [Home Building Contracts Act 1991 (WA)] as it was associated work in connection with constructing dwellings at [Lots] 23A and 23B.
75Therefore, we find that Jetpoint trading as ACE Construction through the actions of Mr O'Reilly and Mr Andreou not only satisfies definition (a) of regulated building service in s 3 of the [BSCRA] Act but also definition (b).
76The documentary record provided to the Tribunal regarding the quote, invoice and payment for the nine items of complaint is incomplete. We find this lack of complete records to be expected in the circumstances of the fiction created to the mutual benefit of the parties which indicate a number of financial irregularities for all involved. Even in the absence of complete records, with the documentary evidence and witness evidence that the Tribunal has accepted and relied upon we are satisfied that Jetpoint trading as ACE Construction carried out the relevant regulated building service.
77Therefore, the Tribunal finds on the whole of the evidence that Jetpoint (trading as ACE Construction through the actions of Mr O'Reilly and Mr Andreou) carried out the regulated building service at [No.] 23 Macleod [sic] Street [sic] from around October 2016 to the handover of keys by Mr Andreou in May 2019.
[28] Original emphasis.
At the end of the first decision, under the heading 'Second part of the final hearing', the original Tribunal said the following at [80]-[81]:
80The Tribunal has already heard three days of evidence in relation to the preliminary issue. At the directions hearing conducted on 21 April 2020, Jetpoint advised the Tribunal that Jetpoint did not substantively contest that the nine items of complaint had not been carried out in a manner that was proper or proficient or were faulty or unsatisfactory.
81Both parties have lodged all of their evidence which was made exhibits as part of the hearing of the preliminary issue. That three days of hearing is part of the final hearing in these proceedings. Therefore, any further hearing time in comparison should be relatively short and we consider it can be completed in one further day of hearing.
For the reasons given in the first decision, the original Tribunal made the following orders on 10 June 2020:[29]
1.The finding on the preliminary issue is [Jetpoint] carried out the regulated building service the subject of the nine items of complaint.
2.The proceeding is listed for the second part of its final hearing on 22 June 2020 for one day with the parties and their expert witnesses to attend the Tribunal in person.
3.By 17 June 2020, the parties may request in writing to the Tribunal to reschedule the final hearing on the basis that a party or its expert witness/es are unavailable on 22 June 2020. If a party makes such a request, the second part of the final hearing on 22 June 2020 will be converted to a directions hearing in order to re-list the hearing to another date in late June or early July 2020 with the parties to attend that directions hearing by telephone.
[29] First decision pages 24-25.
The further hearing listed on 22 June 2020 was vacated and the 'second part of the final hearing' took place before the original Tribunal on 30 June 2020. Following that hearing, the original Tribunal reserved its decision. On 23 July 2020, the original Tribunal made the following orders:[30]
1.Within 14 days of this order, pursuant to s 38(1)(a) and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act), the respondent is to pay to the applicant the costs of remedying the nine complaint items in the total amount of $83,490 (inclusive of GST).
2.Within 14 days of this order, pursuant to s 49 of the Act, the respondent is also to pay the applicant's costs of the proceedings in the amount of $4,861 (inclusive of GST)[.]
[30] Second decision page 19.
Also, on 23 July 2020, the original Tribunal published the second decision. As the original Tribunal said at [3] of the second decision, '[t]he preliminary [first] decision should be read with this decision to both constitute the final determination of the Tribunal of these proceedings'.
After referring to the Tribunal's jurisdiction under s 38 of the BSCRA Act, the original Tribunal correctly observed in the second decision at [6] as follows:
Following the preliminary [first] decision, all that remains to be determined in these proceedings is whether the nine items of complaint have not been carried out in a proper and proficient manner or are faulty and unsatisfactory and, if so, the Tribunal is to make a BRO. As to the type of BRO, the Tribunal has a discretion to exercise.
Ms Lee called Mr Elias Oosteven, who is a building inspector, and Mr Anthony Tilbury, who is a builder, to give evidence at the hearing on 30 June 2020. Jetpoint called Mr Charles Dawson, who is a stonemason (and not a registered building service provider), to give evidence at the hearing on 30 June 2020. Jetpoint also tendered and relied on two expert reports from Mr Stuart Blackie, who is a building inspector, although, as the original Tribunal noted, Mr Blackie did not attend 'at the hearing for oral evidence or to be crossexamined on his evidence or to answer any queries from the Tribunal'.[31]
[31] Second decision [11].
Under the heading 'Consideration', the original Tribunal said the following in the second decision at [20]:
Despite … differences, there is much common ground in the expert reports of Mr Oosteven and Mr Blackie. Detailed further in what follows, to the extent that the expert evidence of Mr Oosteven and Mr Blackie disagree, the Tribunal finds that it prefers the opinion of Mr Oosteven. This is because Mr Oosteven's report was more detailed in its reasoning than Mr Blackie's two reports. Further, we found the oral evidence of Mr Oosteven to be persuasive. Both of these factors indicate to the Tribunal that a more thorough process was undertaken in the preparation of Mr Oosteven's expert opinion.
Having then addressed the evidence in relation to each of the nine complaint items, the original Tribunal again expressed these findings and made the consequent finding in the second decision at [42] as follows:
There is much common ground between Mr Oosteven and Mr Blackie and where there is not common ground the Tribunal finds that it prefers the more detailed opinion of Mr Oosteven. Therefore, it follows that the Tribunal finds it is satisfied that the regulated building service in relation to all nine items of complaint constitutes a building service being carried out in a manner that was faulty and unsatisfactory.
Under the heading 'Building remedy order', the original Tribunal then said the following in the second decision at [43]-[45]:
43When it was explained to Jetpoint that the Tribunal did not possess equitable jurisdiction to grant an estoppel, the submission was clarified to, if the Tribunal was to exercise a discretion, that any such discretion should be exercised to make no order at all, or at the very least, made in the respondent's favour. Pursuant to s 38(1)(a) of the [BSCRA] Act, if the Tribunal finds that the item of complaint has not been carried out in a proper or proficient manner or is faulty and unsatisfactory, the Tribunal is to deal with the complaint by making a BRO. We find that there is no discretion in s 38(1)(a) of the [BSCRA] Act, where the Tribunal is relevantly satisfied, to not make a BRO as submitted by Jetpoint.
44A BRO can take different forms. The builder can be ordered to rectify the faulty work or the applicant can be awarded the cost of rectification and then organise the work themselves or compensation can be paid for the faulty work, or even a combination of these orders.
45The Tribunal must exercise its discretion to determine the appropriate BRO rather than be directed in any way by the parties, however of course the preference of the parties are relevant considerations: see Gemmill Homes Pty Ltd and Sanders [2018] WASC 179 at [131]-[135].
Jetpoint does not challenge the original Tribunal's reasoning set out immediately above and I consider that it is correct.
As to the type of BRO that should be made, the original Tribunal had earlier noted Ms Lee's submission that 'if the Tribunal found any or all of the nine items had not been carried out by [Jetpoint] in a proper and proficient manner or were faulty or unsatisfactory, the appropriate BRO for the Tribunal to make in the facts and circumstances was a monetary BRO'.[32] Having again referred to Ms Lee's submission that 'the Tribunal should make a monetary BRO'[33] and to Jetpoint's submission 'in the alternative …, that a works BRO should be made by the Tribunal',[34] the original Tribunal determined that it should make a monetary BRO and not a works BRO, for the following reasons at [48][50] of the second decision:
48Due to the findings in the preliminary [first] decision and in particular the way that Jetpoint's directors conducted Jetpoint's case during the final hearing day of these proceedings having received the Tribunal's preliminary [first] decision, the Tribunal is concerned that the directors of the respondent are still failing to understand the respondent's obligations under the [BSCRA] Act. The Tribunal is not confident that Jetpoint, through its directors, understands its obligations as a registered building service provider to abide by the [BSCRA] Act and to abide by the terms of a works BRO. An example of this lack of understanding is Jetpoint's misconceived submission requesting the Tribunal to order the parties to enter into a written contract regarding a works BRO. A works BRO is something that Jetpoint would be ordered to comply with under the [BSCRA] Act, with consequences to follow under the [BSCRA] Act if not complied with such as conversion proceedings under s 51 of the [BSCRA] Act. Another example, is the submission from Jetpoint during the final hearing day on 30 June 2020 that it is not responsible or liable for the nine items of complaint and that the responsibility is with some of the subcontractors. These submissions do not provide the Tribunal with confidence that Jetpoint would properly manage its obligations as a registered building service provider to arrange and oversee completion of a works BRO.
49Further, the breakdown of not only a commercial relationship between Jetpoint and Ms Lee but also a personal friendship between Mr O'Reilly and Ms Lee resulting in Mr O'Reilly being banned from [No.] 23 MacLeod Street [sic] in February 2019 is an important relevant factor against making a works BRO. However, having found that, a positive factor for making a works BRO is the good commercial relationship maintained between Mr Andreou and Ms Lee through to May 2019.
50In the exercise of the Tribunal's discretion as to which form of BRO we should make, we conclude it is appropriate that there needs to be a decisive progression toward finality of the dispute between Ms Lee and Jetpoint, such that a monetary BRO is appropriate in the facts and circumstances of these proceedings.
[32] Second decision [10].
[33] Second decision [46].
[34] Second decision [47].
The original Tribunal then discussed the appropriate quantum of the monetary BRO that it determined should be made, referring to the competing evidence of Mr Tilbury ('Tilbury quote'), which is $83,490 (including GST) in total, and from Mr Dawson ('Cortez quote', after the name of Mr Dawson's firm, Cortez Construction), which is $50,435 (including GST) in total. Although the original Tribunal found both Mr Tilbury and Mr Dawson to be 'honest and forthright witnesses' who gave 'genuine quotes',[35] it preferred and accepted the Tilbury quote over the Cortez quote, because the Cortez quote does not include complaint items 3, 4 and 7, there is 'confusion regarding whether the Cortez quote fully includes complaint items 6 and 8',[36] and the Cortez quote does not include the full extent of tiling required. Hence, the original Tribunal concluded that '… we ultimately prefer and rely upon the whole of the Tilbury quote of $83,490 (inclusive of GST) in reaching a final amount for a monetary BRO'.[37]
Principles concerning whether to grant leave to apply for an internal review of an order made by the Tribunal when dealing with a building service complaint
[35] Second decision [55].
[36] Second decision [59].
[37] Second decision [63].
The principles concerning whether leave should be granted, under s 58(5) of the BSCRA Act, to apply for an internal review, under s 58(2) of the BSCRA Act, of an order made by the Tribunal when dealing with a building service complaint are well established and not in dispute. The main considerations are as stated by the Tribunal[38] in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20; (2013) 83 SR (WA) 383 at [8], based on the discussion in Filimon and Rimmer [2013] WASAT 13; (2013) 83 SR (WA) 348.[39] Of course the range of considerations is not closed and other matters may be relevant in a particular case, although no other considerations were suggested by Jetpoint or Ms Lee in the circumstances of this case. In Myran Holdings Pty Ltd and Bombak the Tribunal said the following at [8]:[40]
[38] Mr C Raymond SM.
[39] Mr C Raymond SM.
[40] Emphasis added.
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [BSCRA] Act as discussed in Filimon and Rimmer [2013] WASAT 13:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.
Grounds for review
On 3 September 2020, Jetpoint filed a document entitled 'Amended Grounds for Review' which contains a large number of oddly organised and overlapping contentions and submissions, together with references to the transcript, the decisions and case authorities. However, as is apparent on a careful review of this document, and as Mr Douglas recognised in Jetpoint's written submissions dated 9 October 2020 and in his oral submissions at the hearing on 3 November 2020,[41] Jetpoint seeks leave to apply for review of the orders in the decisions made by the original Tribunal on essentially four grounds, which can be stated as follows:
(1)The original Tribunal erred by breaching the rules of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet.
(2)The original Tribunal erred by breaching the rules of natural justice in that its conduct at the hearing denied Jetpoint a reasonable opportunity to present its case and demonstrated a reasonable apprehension of bias or actual bias.
(3)The original Tribunal erred by failing to hear and determine the original proceeding together with other proceedings then pending before SAT involving building service complaints by Ms Lee and Ms Yong against different alleged building service providers involving regulated building services carried out at No. 23 MacLeod Road.
(4)The original Tribunal erred by imposing a monetary BRO and not a works BRO.
Did the original Tribunal err by breaching the rules of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet?
[41] ts 7, November 2020.
Section 32(1) of the SAT Act states as follows:
The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
The rules of natural justice, which is also known as 'procedural fairness', have been described as follows:[42]
[42] DR Parry and B De Villiers Guide to proceedings in the WA State Administrative Tribunal (Lawbook Co. / Thompson Reuters, 2012) [203] (citations omitted); see also DR Parry and B De Villiers Guide to proceedings in the WA State Administrative Tribunal (Chapter 6.7 in the Lawyers Practice Manual Western Australia (Lawbook Co / Thompson Reuters, 2015)) [6.7.203].
There are two basic rules, sometimes referred to as "limbs", of natural justice or procedural fairness, namely:
•The "hearing rule" – the right of a person to present their case and to know, and to be given an opportunity to respond to, the case presented against them (whether at an oral hearing or in a determination on documents).
•The "bias rule" – the right of a person to have their case determined by a tribunal which is not either actually biased, that is not "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented", or disqualified by a reasonable apprehension of bias in that "a fair minded lay observer might reasonably apprehend that the [tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question [it] has to decide".
The term 'enabling Act' is defined in s 3(1) of the SAT Act to mean 'another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act'. The enabling Act in this case, namely the BSCRA Act, does not authorise any departure from the rules of natural justice.
As Buss JA explained in Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 at [55], '[f]airness is essentially a practical concept' and is 'not abstract in nature'. As his Honour also said there, '[t]he law of procedural fairness is concerned to avoid practical injustice'. His Honour then said the following, specifically in relation to proceedings before SAT, at [56]:
The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction.
Jetpoint submits that the original Tribunal breached the rules of natural justice by denying it the opportunity to know the case it had to meet at the hearing, for two reasons. First:[43]
Jetpoint requested, but was denied, orders that witness statements be filed, in circumstances where Jetpoint was not aware of the nature of the evidence Ms Lee would present regarding the arrangement between her and Jetpoint. There was no written contract concerning a regulated building service between Ms Lee and Jetpoint, and Jetpoint did not know on what basis Ms Lee would allege that it was the responsible builder.
[43] Jetpoint's written submissions [11a] (footnotes omitted).
Ms Lee submits that Jetpoint was 'at all times fully aware of the case they were meeting'[44] and that:[45]
From the initiation of the complaint to the Building Commission[er] we had informed the authority that Mr. O'Reilly and Mr. Andreou of Jetpoint were in charge of the build of the whole development. The 2 houses, the basement, the tennis court and the landscaping.
[44] The respondent's written outline of submissions in opposition to the applicant's submissions for leave to review dated 23 October 2020 (Ms Lee's written submissions) page 2.
[45] Ms Lee's written submissions page 2.
However, Ms Lee does not indicate or explain in her written or oral submissions how, in the absence of a requirement for a statement of issues, facts and contentions and/or witness statements of lay witnesses in advance of the hearing, Jetpoint was made aware prior to the hearing of the basis on which she would say in her evidence and submissions at the hearing that Jetpoint carried out the regulated building service which gave rise to the nine complaint items.
In my view, for the reasons which follow, the original Tribunal erred by breaching the hearing rule of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet at the hearing in relation to the basis on which Ms Lee alleged that Jetpoint trading as ACE Construction carried out the relevant regulated building service at No. 23 MacLeod Road.
When Senior Member Wallace listed the original proceeding for final hearing before the original Tribunal on 10 December 2019, the senior member made programming orders, including requiring Ms Lee to file with the Tribunal and provide to Jetpoint 'all documents on which they wish to rely at the final hearing not already on the Tribunal's file, including any expert reports, photographs, and quotations or other documents relevant to the costings of the complaint items to be determined by the Tribunal'.[46] However, the senior member did not require Ms Lee to file and give to Jetpoint a statement of issues, facts and contentions or a witness statement of her evidence in chief (or of any other lay witness). On 20 April 2020, which was the day before the directions hearing held on 21 April 2020 at which Member Quinlan converted the final hearing listed on 6 May 2020 into a hearing of the preliminary issue, Mr O'Reilly emailed the Tribunal (and copied Ms Lee) as follows:[47]
[46] Order 5 made on 10 December 2019 (Hearing Book page 2).
[47] Hearing Book page 667 (original emphasis).
From: Sean Jetpoint
Sent: 20 Apr 2020 10:29:33 +0800
To: SAT
Cc: 'Yu Lian Lee'; 'mario'
Subject: RE: Matter : CC 1893/2019 – Yu Lian Lee vs Jetpoint Nominees Pty Ltd
Attachments: 31679 23 MacLeod Rd. Applecross final.pdfDear SAT,
Here is the report as requested.
I also would like to raise some points that can be addressed at directions hearing tomorrow.
As the respondents, we have some major concerns as to Natural Justice in this matter. Apart from the paperwork provided to us from the plaintiff [Ms Lee] we are not aware of the verbal evidence in this matter. Crucially we are not aware what the Plaintiffs [sic] evidence is in regard to any alleged contract with the respondent. For natural justice we would expect that we are aware of the claims being made so that we can defend ourselves. I am concerned that "new" evidence would be raised in the hearing that we have not previously heard.
As there is no evidence of a contract and any alleged contract is denied by the respondent, we are aware as advised by the registrar that the SAT cannot make any findings in this matter where it is a contractual dispute. I therefore believe that this matter is a further waste of the SAT [sic] time and resources.
We are happy for this matter to proceed quickly but not at the expense of our rights for natural justice.
If these matters can be addressed tomorrow please[.]
Regards
Sean O'Reilly
It is clear from the email set out immediately above that Jetpoint was concerned prior to the directions hearing on 21 April 2020 that it did not know the basis upon which Ms Lee alleged that there was a building contract between the owners of No. 23 MacLeod Road and Jetpoint and, therefore, the basis upon which she alleged that Jetpoint had carried out the relevant regulated building service. Mr O'Reilly said, understandably and correctly, that '[f]or natural justice we would expect that we are aware of the claims being made so that we can defend ourselves'.[48] It was reasonable that Jetpoint would wish to know and consider the basis upon which Ms Lee alleged that there was in fact a building contract between the owners of No. 23 MacLeod Road and Jetpoint and, therefore, the basis upon which she alleged that Jetpoint was the builder that carried out the relevant regulated building service which resulted in the nine complaint items. Jetpoint could, therefore, cross-examine Ms Lee and present its own case having considered the basis on which Ms Lee alleged that, notwithstanding the absence of a written building contract, Jetpoint was the builder that carried out the relevant regulated building service.
[48] Hearing Book page 667.
Although, in the email set out at [48] above, Mr O'Reilly did not expressly seek an order for Ms Lee to provide a witness statement of her evidence in chief prior to the hearing, that (or at least a statement of issues, facts and contentions) is plainly what was required to avoid practical injustice to Jetpoint. This would have ensured that Jetpoint was aware of the case it had to meet at the hearing in relation to the preliminary issue. However, at the directions hearing on 21 April 2020, Member Quinlan did not require Ms Lee to file a witness statement of her evidence in chief (or a statement of issues, facts and contentions) and, consequently, Jetpoint was only made aware of an important element of the case it had to meet as Ms Lee gave her evidence and made her submissions at the hearing. This gave no meaningful opportunity to Jetpoint to consider Ms Lee's case and respond to it by cross-examination and presentation of evidence.
Furthermore, as Mr Douglas said in his oral submissions on behalf of Jetpoint, not only was Mr O'Reilly 'concerned prior to the hearing' about not knowing the case Jetpoint had to meet, '[h]e [also] made it clear, throughout [the hearing], that he was struggling [with] the fact that the evidence was coming up, but he was not aware [of it previously], in the middle of [the] case … and that he was unable to … collate the evidence that he knows exists, in response'.[49] Before Ms Lee commenced giving evidence at the hearing on 6 May 2020, Mr O'Reilly said the following to the original Tribunal:[50]
… So so the issue about new evidence coming up, for example, is what I was concerned about because there has been no statement of claim. There has been no statements, no witness statements, and I'm very concerned about that part that we're prejudiced. We don't know what's we don't even know what's going to be said. So, the new evidence is what we would we don't object necessarily to you having the new evidence. Like you say, it's rules of evidence don't apply to you. But surely at some stage they apply to us in terms of being able to get
[49] ts 11, 3 November 2020.
[50] ts 13, 6 May 2020.
At this point, the original Tribunal could have avoided practical injustice to Jetpoint by adjourning the hearing and requiring Ms Lee to provide a witness statement of her evidence in chief. However, having told Mr O'Reilly that 'the thing is about the Tribunal is that we don't have the rules of evidence, so things can be admitted that might be that often go to weight to evidence'[51] and that '[we] will give you the opportunity to note to us anything that you object to that you consider is new and then we will consider the position at that point',[52] the original Tribunal did not adjourn and require Ms Lee to provide a witness statement, but rather proceeded to hear her oral evidence. While the original Tribunal said that it would give Mr O'Reilly the opportunity to object to evidence as it is given, as Mr O'Reilly, although a layperson, made plain, the concern was not, in substance, in relation to an objection as to admissibility under the rules of evidence, but rather 'that we're prejudiced … [because] we don't even know what's going to be said', given that 'there has been no statement of claim [that is, in SAT, a statement of issues, facts and contentions] … and [t]here has been … no witness statements'.[53]
[51] ts 13, 6 May 2020 (Member Quinlan).
[52] ts 13, 6 May 2020 (Member Quinlan).
[53] ts 13, 6 May 2020.
During his cross-examination of Ms Lee, Mr O'Reilly also said in an exchange with Member Quinlan:[54]
… [W]e refer back to the start where we this is the first we've heard of what evidence they're going to say. We have never understood what are they going to say.
[54] ts 117, 6 May 2020.
Mr O'Reilly continued to make the same point to the original Tribunal at other times during the hearing, including after the evidence of Mr C Ling, when he said that 'the lack of witness statements and the lack of statement of claim [statement of issues, facts and contentions] have placed [Jetpoint] in a prejudiced position',[55] and during his own evidence, when he said that '… because there has been no statement of claim [statement of issues, facts and contentions], there has been no witness statements … we have been prejudiced all along'.[56] He said that he 'continue[d] to be concerned about the introduction of new evidence and the lack of opportunity to reply to any new evidence in a meaningful way without additional time to collate the evidence we know exists'[57] and '[s]o this hasn't been easy to, you know, we didn't know where they where they will be going'.[58]
[55] ts 203, 13 May 2020.
[56] ts 272, 13 May 2020.
[57] ts 203, 13 May 2020.
[58] ts 272, 13 May 2020.
The original Tribunal did not provide any meaningful response to Mr O'Reilly's repeated statements that Jetpoint was prejudiced by the way in which the original proceeding was conducted, in particular that Jetpoint did not know the case it had to meet (in relation to the basis on which Ms Lee alleged that she, her husband and brother-in-law had a building contract with Jetpoint and generally) until the evidence was given and the submissions were made at the final hearing.
The procedure adopted by the original Tribunal in this case, namely not requiring Ms Lee to provide a statement of issues, facts and contentions or witness statements setting out the evidence in chief in relation to the preliminary issue, meant that Jetpoint did not know the case it had to meet in sufficient time to enable it to properly respond to it by way of crossexamination and presentation of its own evidence. The procedure adopted by the original Tribunal was, in the circumstances in this case, unfair to Jetpoint. The practical injustice was also avoidable, because Mr O'Reilly raised the issue prior to the directions hearing on 21 April 2020 and again at the hearing on 9 May 2020 prior to Ms Lee's evidence. It follows that the Tribunal erred by breaching the hearing rule of natural justice.
The second reason Jetpoint submits that the original Tribunal erred by breaching the rules of natural justice in that it denied Jetpoint the opportunity to know the case it had to meet is:[59]
The complaint referred to SAT by the Complaints Manager [of the Building Commissioner] pursuant to s. 11 of the [BSCRA] Act referred to Lot 23C [MacLeod Road] only, and Jetpoint was not prepared for a hearing concerning regulated building services and complaints related to Lot[s] 23A and 23B [MacLeod Road].'
[59] Jetpoint's written submissions [11b] (footnotes omitted).
I do not accept this submission. As Ms Lee submits, although the notice of proposed complaint she filed with the Building Commissioner refers to the address of the property the subject of the complaint as '23c MacLeod Road APPLECROSS WA 6153 Australia',[60] the notice of decision of the Building Commissioner to refer the building service complaint to the Tribunal dated 5 December 2019 and the covering letter transmitting the referral dated 9 December 2019 both refer to 'BUILDING SERVICE AT 23C MACLEOD RD, APPLECROSS'[61] and the Consolidated Scott Schedule filed in the original proceeding is headed 'CONSOLIDATED SCOTT SCHEDULE FOR 23C MACLEOD ROAD'[62]:[63]
The 9 items of defects were spelt out clearly in the [notice of proposed complaint] and subsequently in the Consolidated Scott Schedule which is with written responses from [Jetpoint]. They were at all times fully aware of the case they were meeting [in relation to the relevant regulated building service and complaints relating, in part, to Lots 23A and 23B MacLeod Road].
[60] Hearing Book page 157 (emphasis added).
[61] Hearing Book pages 10 and 8 (bold emphasis original and italicised emphasis added).
[62] Hearing Book page 466 (bold emphasis original and italicised emphasis added).
[63] Ms Lee's written submissions page 2.
Notwithstanding the references (only) to Lot 23C MacLeod Road in the property information address in the notice of proposed complaint, the notice of decision referring the building service complaint to the Tribunal and the covering letter from the Building Commissioner, and the heading of the Consolidated Scott Schedule, significantly, the description of the nine complaint items and their locations in the 'Notice of Proposed Complaint Schedule 23c', which Ms Lee submitted together with the notice of proposed complaint to the Building Commissioner, and subsequently in the Consolidated Scott Schedule, clearly referred to external building work not only at Lot 23C MacLeod Road, but also at Lots 23A and 23B MacLeod Road. The most obvious example is complaint item 9, which is that '[b]ullnosing has dislodged and damaged' at '[t]iled [s]tep in front of [L]ot 23B [MacLeod Road] residence'.[64] Moreover, the description of the nine complaint items and their locations in these documents is sufficiently clear for Jetpoint to know the case it had to meet in relation to the location and nature of each of the complaint items, whether located at Lot 23C MacLeod Road, or at Lots 23A and 23B MacLeod Road.
[64] Hearing Book page 470 (emphasis added).
Finally, as indicated earlier, the notice of proposed complaint refers to Building Permit No. BA-2018-1535, by which Mr Andreou obtained building approval from the City to carry out external building work at No. 23 MacLeod Road. It appears from the site plan approved by the City on 4 October 2018[65] and Ms Lee's plot plan[66] that the external building work approved by the City is mostly at Lot 23C MacLeod Road, but also at contiguous parts of Lots 23A and 23B MacLeod Road. Given that Mr Andreou is a director of Jetpoint and nominated 'Ace Construction', that is, Jetpoint, as the builder in the application for the building permit,[67] Jetpoint is aware of the location of the external building work, including the locations of each of the complaint items, and consequently, it should reasonably have been prepared for the hearing concerning complaints relating to Lots 23A and 23B MacLeod Road in the nine complaint items the subject of the original proceeding.
Did the original Tribunal err by breaching the rules of natural justice in that its conduct at the hearing denied Jetpoint a reasonable opportunity to present its case and demonstrated a reasonable apprehension of bias or actual bias?
[65] Hearing Book page 140.
[66] Exhibit 3 in the original proceeding.
[67] Hearing Book page 136. As indicated earlier, Building Permit No. BA-2018-1535 identifies 'Jetpoint Nominees Pty Ltd' as the builder of the external building work at No. 23 MacLeod Road (Hearing Book page 144).
Jetpoint submits that the original Tribunal's conduct at the hearing, in particular during Mr O'Reilly's cross-examination of Ms Lee and during the evidence of Mr O'Reilly and Mr Andreou, was unfair to Jetpoint and involved a breach of the rules of natural justice, because its effect was to deny Jetpoint a reasonable opportunity to present its case and to do so to an impartial decision-maker. Ms Lee submits that Jetpoint's criticism of the conduct of the original Tribunal at the hearing is incorrect or misplaced and that '[Jetpoint] was given ample opportunity to run their case'.[68]
[68] Ms Lee's written submissions page 3.
For the reasons given below, I have come to the unfortunate conclusion that Jetpoint's submission is correct. The original Tribunal's frequent and, in many cases, unnecessary interruptions during Mr O'Reilly's crossexamination of Ms Lee and its pejorative, sarcastic and belittling questioning and commentary during Mr O'Reilly's and Mr Andreou's evidence fundamentally undermined the fairness of the hearing and effectively denied Jetpoint a reasonable opportunity to present its case. Furthermore, gratuitous and extraordinary questioning and commentary by the original Tribunal during the evidence of Mr O'Reilly and Mr Andreou, including proffering a repeated analogy between Mr O'Reilly's conduct and that of the driver of 'the getaway car from a bank robbery',[69] expressing 'amaze[ment]'[70] at Mr O'Reilly's evidence and asking '[h]ow are any of you not embarrassed?' when reviewing WhatsApp messages in a group including Mr O'Reilly and Mr Andreou during Mr O'Reilly's evidence,[71] asking Mr Andreou during his evidence '[a]re you trying to think of the answer that best fits the case that's been put forward by Mr O'Reilly on behalf of Jetpoint Nominees?'[72] and commenting to him, after he said 'I can't recall' whether he submitted information to the City on a particular day, 'And just be careful you don't do the Alan Bond. Alright?',[73] demonstrated, at least, a reasonable apprehension of bias against Jetpoint. Indeed, the original Tribunal's questioning and commentary during Mr O'Reilly's evidence ultimately crossed the line to show actual bias against Jetpoint.
[69] ts 270, 13 May 2020 (Member Quinlan).
[70] ts 292, 13 May 2020 (Sessional Member Kershaw).
[71] ts 294, 13 May 2020 (Member Quinlan).
[72] ts 348, 13 May 2020 (Member Quinlan).
[73] ts 405, 14 May 2020 (Member Quinlan).
In Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530, the Full Federal Court[74] reviewed 'the principles that are applicable where it is alleged that excessive judicial intervention during a trial has resulted in a miscarriage of justice'[75] at [18]-[26] as follows:
[74] Greenwood and Rangiah JJ, Reeves J relevantly agreeing.
[75] Gambaro v Mobycom Mobile Pty Ltd [17].
18In Jorgensen v Fair Work Ombudsman [2019] FCAFC 113, the Full Court held at [93], applying Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, that where an appeal involves allegations of bias or denial of procedural fairness due to excessive judicial intervention along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness. That is because those grounds, if made out, would strike at the validity of the trial and require the matter to be remitted for retrial.
19In R v T, WA (2013) 118 SASR 382 at [38], Kourakis CJ identified three grounds upon which excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice:
(i)the questioning unfairly undermines the proper presentation of a party's case (the disruption ground);
(ii)the questioning gives an appearance of bias (the bias ground); and
(iii)the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
20In Jorgensen, the Full Court elaborated upon these grounds as follows:
99 The first ground, which Kourakis CJ referred to as the "disruption ground" is made out where the interventions unfairly undermine the proper presentation of a party's case: see also Ellis v R [2015] NSWCCA 262 at [65]. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board [1957] 2 QB 55 at 6364.
100 The second ground is where the questioning or interruptions give an appearance of bias…
101The third ground, which Kourakis CJ referred to as the "dust of conflict" ground (an expression coined by Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189), is made out where the questioning or intervention is "such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance".
21In R v T, Kourakis CJ at [39] explained the "dust of conflict ground" in terms of compromising the capacity of the judge to adjudicate. His Honour observed that the ground is based on an objective standard and measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence.
22A ground that the trial was conducted unfairly ("the disruption ground" and "the dust of conflict ground"), is distinct from a ground of apprehended bias, the former turning largely upon whether the litigant has had a proper opportunity to advance his or her case: RPS v R (2000) 199 CLR 620 at [11]. However, the grounds may overlap.
23In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed), in a passage reflecting the overlapping nature of the grounds, set out the following principles at 281–282:
1.The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
2.A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.
3Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion".
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
5It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.
…
(Citations omitted)
24In Jorgensen, the Full Court emphasised at [102] that there are entirely proper reasons why a trial judge might intervene and ask questions of a witness or test the submissions being made. In Michel v R [2010] 1 WLR 879; [2009] UKPC 41, Lord Brown at [34] gave the following summary of the sorts of interventions by a trial judge that are proper and permissible, and those that are not:
Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
25In Johnson v Johnson (2000) 201 CLR 488, the High Court observed at [13]:
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Citations omitted)
26This passage from Johnson v Johnson applies equally where a party is self-represented. It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
At this point of the hearing, Sessional Member Kershaw also became involved in the questioning of Mr O'Reilly and the miscarriage of justice continued. Sessional Member Kershaw said to Mr O'Reilly 'I'm just amazed when you say things like that',[104] referring to the evidence of Mr O'Reilly that '[t]here was never a hint that ACE or Jetpoint were actually responsible for the build …'.[105] After expressing his 'amaze[ment]' at Mr O'Reilly's evidence (while Mr O'Reilly was still giving evidence), Sessional Member Kershaw referred Mr O'Reilly to the text of messages in a WhatsApp group including Mr O'Reilly and Mr Andreou, but not Mr Holmes, who Mr O'Reilly said in his evidence was the builder, concerning the carrying out of building work at No. 23 MacLeod Road. The transcript then records the following:[106]
[104] ts 292, 13 May 2020.
[105] ts 292, 13 May 2020.
[106] ts 293-294, 13 May 2020 (emphasis added).
KERSHAW[,] MR: You know, there's - - -? - - - No worries.
Everything about this, it's - you know:
Sean, what's the arrangement with Peter [Holmes]? Is he okay with you signing for him or does he want to sign? I can drop by at 2.
You know, then they're talking like:
Do I make the indemnity payment to Peter [Holmes]?
Not to Peter [Holmes]. Make it to Apollo.
Why would you skip out - why would you tell them to skip out the builder? You know, and then it goes down - - -? - - - Because the - - -
Continuing:
Sean, I have included on a spreadsheet and can just go through the normal account. I will then get it reimbursed from Mario's [Mr Andreou] to keep it clean.
QUINLAN[,] MS: Clean.
KERSHAW[,] MR: Then two lines down from that:
Mario [Andreou] trying to lodge plans. Needs money in account to pay. I can't see [C]ouncil. Let me know when funds available to pay.
Why isn't the builder involved in any of this? Why is it only you two that are dealing with all of this? - - - Because the applicants have done the deal with Peter [Holmes]. The applicants did a deal with Peter [Holmes]. The applicants did the deal with Mario [Andreou]. And I'm helping them to make it all happen as a friend.
Everything though in these texts - the texts throughout this whole document, I've just spent the last half an hour reading all of them.
QUINLAN[,] MS: How are any of you not embarrassed?
KERSHAW[,] MR: They're - they're - they're so detailed.
QUINLAN[,] MS: I mean, how are (indistinct) embarrassed?
KERSHAW[,] MR: They're so detailed on building questions? - - - I am.
Shortly after this extraordinary exchange, when Mr O'Reilly said that his involvement in relation to the building work carried out at No. 23 MacLeod Road 'wasn't a transaction for Jetpoint at all, ever',[107] the transcript records the following:[108]
[107] ts 295, 13 May 2020.
[108] ts 296, 13 May 2020 (emphasis added).
QUINLAN[,] MS: It [Jetpoint] was certainly trying to avoid a transaction is what it looks like.
KERSHAW[,] MR: No doubt.
THE WITNESS: But but if Jetpoint were avoiding a transaction, I would have got paid. I would have got paid.
QUINLAN[,] MS: Yes? - - - I didn't take a cent from these guys, you know.
KERSHAW[,] MR: Well, the (indistinct) payments of $20,000.
QUINLAN[,] MS: Okay. (indistinct) bring that up. It doesn't actually matter - - -? - - - And - and - and he - - -
Stop. Stop. It doesn't actually matter. If a registered building service provider does work for free - just like if a lawyer gives advice for free, it does have professional obligations. Even if you built the house for free, you would still have obligations under the Act? - - - Yes. But I never built the house.
One of the other criteria for being - carried out the building work is that you did it for reward under - like in the home building works - under the home building works contract as it's defined under there. But one of the - one of the ways that you can be deemed to be carrying out the work is if you are a registered building service provider who carried out the work. Whether you got paid or not doesn't matter. You can't have a – as a registered professional person do work and not do it to the standards? - - - Any - - -
That's what the Act puts in place.
The extracts from the transcript of Mr O'Reilly's evidence in chief set out at [80], [82], [84] and [85] above clearly bear out Jetpoint's submission that '[d]uring Mr O'Reilly's testimony in chief, it appeared that the [original] Tribunal had already made up their mind'.[109] By their questions and comments, the members made it patently clear to Mr O'Reilly that whatever he said in his evidence, they did not believe him and that they had formed a view that Jetpoint was the builder which had carried out the regulated building service. Ultimately, the indication of prejudgment by the original Tribunal was quite explicit: the presiding member expressed the conclusion that 'It [Jetpoint] was certainly trying to avoid a transaction is what it looks like'[110] and the other member responded 'No doubt'.[111]
[109] Jetpoint's written submissions [24].
[110] ts 296, 13 May 2020.
[111] ts 296, 13 May 2020.
Of course, as the High Court of Australia[112] observed in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13], 'modern judges … [are not expected] to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx'. The High Court explained:[113]
… Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[112] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
[113] Johnson v Johnson [13].
As the Full Federal Court said in Gambaro v Mobycom Mobile Pty Ltd at [26], '[t]his passage from Johnson v Johnson applies equally where a party is selfrepresented'.
Thus, the expression of a tentative view by a judge or SAT member does not, in itself, constitute bias. In fact, unless a judge or member exposes the trend of his or her thinking, a party may be effectively denied procedural fairness, because the party has not been given the opportunity to present evidence or provide submissions that could have settled the judge's or member's undisclosed concerns.
However, it is clear that, in this case, the members did not express a tentative view in order to afford procedural fairness; rather, they expressed an essentially concluded view and thereby denied Jetpoint procedural fairness. The original Tribunal's essentially concluded view was expressed during Mr O'Reilly's evidence in chief, before Mr Andreou gave evidence, and before Jetpoint made its closing submissions. The original Tribunal's conduct during Mr O'Reilly's evidence in chief demonstrates, at least, a reasonable apprehension of bias in that a fair minded lay observer might reasonably apprehend that the original Tribunal might not bring an impartial and unbiased mind to the resolution of the preliminary issue and, indeed, ultimately demonstrates actual bias against Jetpoint in that, before the conclusion of Jetpoint's case, the members were so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented by Jetpoint. The original Tribunal therefore erred by breaching the bias rule of natural justice.
The original Tribunal also demonstrated a reasonable apprehension of bias in its questioning and commentary during Mr Andreou's evidence, which was given on 14 May 2020. The transcript records the following during Mr Andreou's evidence in chief:[114]
KERSHAW[,] MR: And then you just said "when I reached a milestone, I will be paid."
QUINLAN[,] MS: What kind of milestones were they? - - - Whether we - - -
There's a lot of pauses, Mr Andreou? - - - I - I've got to think, your Honour (indistinct) trying to - you know, you're throwing questions at (indistinct) I'm giving the answers.
Are you trying to think of the answer that best fits the case that's been put forward by Mr O'Reilly on behalf of Jetpoint Nominees? - -- No.
[114] ts 348, 14 May 2020 (emphasis added).
During Mr Andreou's cross-examination by Mr H Ling, when Mr Andreou said 'I can't recall' whether he submitted a particular document to the City on a particular date, Member Quinlan responded 'And just be careful you don't do the Alan Bond. Alright?'.[115] The meaning and significance of the member's otherwise odd comment 'don't do the Alan Bond' is apparent from the following exchange between Member Quinlan and Mr Andreou during his evidence in chief a little earlier on the same day:[116]
[115] ts 405, 14 May 2020.
[116] ts 381-382, 14 May 2020 (emphasis added).
QUINLAN[,] MS: So he organised it on your behalf then? - - - Correct.
Giving your phone number? - - - Yes.
Yes. Okay. So Garry got you a good deal? - - -Yes.
Okay? - - - Didn't get me a good deal, got them a good deal.
But you're the contact though? - - - How can I be benefitting when - - -
I didn't ask were you benefitting. I'm asking you if you're the contact point. Okay. Thank you. Carry on, Mr Andreou? - - - Jetpoint has never mentioned - Jetpoint has never been mentioned. Yu Lian [Ms Lee] has come here with a sham, feigning memory loss and loose arrangements and wants to be rewarded. Schedule defects 1, 2, 5, 6, 8 and 9 was performed by Garry Dunk - - -
I want to get that phrase that you said - and apologies for interrupting you, but you said Yu Lian [Ms Lee] has come here with a loose memory? - - - Well, that - yes.
Is that what you said, sorry? - - - Yes.
Did I get it right? Loose memory and what were the other two things you said? A sham or a scan? - - - Sorry, sham.
A sham? - - - Yes. Feigning memory loss.
Feigning memory loss. Yes? - - - Alan Bond didn't die by himself.
Feigning memory loss? - - - Yes.
And then you say the phrase "Alan Bond didn't die by himself"? - - - Yes.
Okay. One second. Alan Bond. To be honest, I don't actually know what the phrase "Alan Bond didn't die by himself" means; what does that mean? - - - Didn't he have a loss of memory when he went to court with Andrew Fraser as well?
Alan Bond didn't die by himself; what does that mean? I understand your loss of memory, the whole don't recall stuff about Alan Bond when he gave evidence, but the bit that I don't understand is what that phrase means? - - - Well - - -
So "Alan Bond didn't die by himself"? - - - Yes, well, there's more people.
Okay. More people involved; is that what you mean? - - - Well, more people lying, aren't they?
More people lying. Okay. So that means more people are lying. …
Viewed in light of the earlier exchange between Member Quinlan and Mr Andreou about his expression 'Alan Bond didn't die by himself',[117] the member's gratuitous comment 'And just be careful you don't do the Alan Bond. Alright?'[118] clearly implies that the member had formed the view that Mr Andreou was not telling the truth in his evidence. To make such a suggestion during the course of the witness' evidence demonstrates a reasonable apprehension of bias, as does the member's question during Mr Andreou's evidence in chief 'Are you trying to think of the answer that best fits the case that's been put forward by Mr O'Reilly on behalf of Jetpoint Nominees?'.[119] The original Tribunal therefore erred by breaching the bias rule of natural justice during Mr Andreou's evidence as well.
[117] ts 382, 14 May 2020.
[118] ts 405, 14 May 2020.
[119] ts 348, 14 May 2020.
Furthermore, and quite apart from the prejudgment demonstrated by the original Tribunal's conduct during the evidence of Mr O'Reilly and Mr Andreou, the questioning and commentary referred to at [80], [82], [84], [85], [91] and [92] above involves a number of the things that Lord Brown said in Michel v The Queen at [34] may result in a miscarriage of justice. In particular, again to borrow Lord Brown's words, the original Tribunal 'appear[ed] hostile to witnesses', namely Mr O'Reilly and Mr Andreou, the directors and representatives of the respondent in the original proceeding, 'belittle[d] [and] denigrate[d] [Jetpoint's] case', was 'sarcastic [and] snide', and 'ma[d]e obvious to all [the members'] profound disbelief in the [case] being advanced [by Jetpoint]'. As indicated earlier, while Lord Brown was specifically referring to improper judicial conduct in a criminal trial, conduct of the nature described by his Honour in the exercise of the Tribunal's jurisdiction may involve a breach of the rules of natural justice, contrary to s 32(1) of the SAT Act. In my view, the original Tribunal's pejorative questioning and commentary during the evidence of Mr O'Reilly and Mr Andreou not only breached the bias rule of natural justice, but also breached the hearing rule of natural justice, because it fundamentally undermined the actual and perceived fairness of the hearing and effectively denied Jetpoint its right to properly present its case.
For the forgoing reasons, by its conduct at the hearing, the original Tribunal erred by breaching both the hearing and the bias rules of natural justice. The fairness of the original proceeding fundamentally miscarried in consequence of the conduct of the original Tribunal.
Jetpoint submits that the original Tribunal also breached the rules of natural justice, because 'Member [Quinlan] of her own accord raised the very substantial issue of the cessation notice and appeared to be advocating the case for Ms Lee',[120] 'the [original] Tribunal asked specific questions, including leading questions, to attack the concession Mr O'Reilly obtained during cross-examination that [Mr] Holmes was the builder',[121] and the original Tribunal 'effectively took over the crossexamination of Mr O'Reilly'.[122] I do not accept these submissions for the following reasons.
[120] Jetpoint's written submissions [27a].
[121] Jetpoint's written submissions [27b].
[122] Jetpoint's written submissions [21] and [27c].
The 'cessation notice' is a form purportedly completed by Mr Andreou and singed by him on 4 October 2018, stating that, on that date, Jetpoint ceased work at Lot 23C MacLeod Road. In the box for 'Work completed', Mr Androu wrote 'NO WORK COMPLETED CONTRACT AWARDED TO OTHERS'.[123] At some point, Mr Andreou submitted the cessation notice to the City. Although the cessation notice was purportedly completed and signed on 4 October 2018, the printed form on which it was filled out states at the bottom of both of its pages 'Form approved by the Building Commissioner on 8 March 2019'.[124] As Jetpoint submits, Member Quinlan 'of her own accord'[125] raised the cessation notice during Ms Lee's combined opening statement and evidence in chief and asked whether there was 'anything you would like to tell us about it[?]'.[126] Member Quinlan also raised the cessation notice with Mr O'Reilly during his evidence in chief to 'give [him] an opportunity to answer this'.[127]
[123] As written.
[124] Hearing Book pages 471A-471B (bold emphasis original and italicised emphasis added).
[125] Jetpoint's written submissions [27a].
[126] ts 38, 6 May 2020.
[127] ts 239, 13 May 2020.
However, it was entirely appropriate for the original Tribunal to raise the cessation notice and invite the parties to comment in relation to it. The document was already in evidence in the Hearing Book (Exhibit 1), having in fact been provided to the Tribunal by Jetpoint, and the apparent inconsistency between the date on which the document was purportedly signed by Mr Andreou and the date on which the printed form was approved by the Building Commissioner was plainly relevant to the determination of the preliminary issue and called for explanation. Indeed, it would arguably have been a denial of procedural fairness to Jetpoint for the original Tribunal not to raise the document with the parties and invite them to present any evidence and submissions in relation to it, and rather simply refer to it in its reasons for decision. During Mr O'Reilly's evidence in chief, Member Quinlan properly said to him 'I'm not going to cross-examine you' or 'press it with you, Mr O'Reilly', but 'I just want to give you an opportunity to answer this'.[128] It appears that no reasonable explanation for the inconsistency was provided, and it was open to the original Tribunal to reason on the basis of it, as it did at [48]-[49] of the first decision.[129]
[128] ts 239, 13 May 2020.
[129] See [24] above.
The 'concession Mr O'Reilly obtained during cross-examination', referred to in Jetpoint's submission set out at [96] above, was not a 'concession' by or on behalf of Ms Lee, but rather was evidence given by Mr Shayne Leroy, who was the designer of the single houses as Lots 23A and 23B MacLeod Road. The transcript records the following at the end of Mr O'Reilly's cross-examination of Mr Leroy:[130]
[130] ts 228-229, 13 May 2020.
O'REILLY, MR: Did you see any paperwork regarding the contract for this deal? - - - Not other than what I've seen in the case files for the other SAT case.
And is there any - and who's the builder that you've seen on any documents? - - - I'm aware of who the builder is now.
Right. And who is the builder now? - - - From what I've - what I've read and witnessed, it's Peter Holmes.
Thank you. No further questions.
QUINLAN[,] MS: One moment. Did you just say that you're aware from documents you've seen in the other proceedings that PJ Holmes was the builder on the contract? Is that what you're saying? - - - And that's - yes, and that has only come to light (indistinct)
Yes, please? - - - That has only come to light from a discussion that happened early on with these in late - end of August last year, August 2019, when the Building Commission instructed a site meeting, and the - and the said Building Commission officer, myself, and Yu Lian [Ms Lee] met onsite and it was at that meeting that it came to light that there was a builder called PJ Holmes, which Yu Lian [Ms Lee] expressed to me, and I did not know, and I was quite flabbergasted considering the length that this project has taken for that to sort of come out at the end. I physical never met Peter Holmes until the beginning of November 2019.
O'REILLY, MR: Can I have a couple more questions?
QUINLAN[,] MS: Yes, one moment. You will. You will.
O'REILLY, MR: Thank you.
QUINLAN[,] MS: Mr Leroy, did you ever see a sign on the verge of the property at 23 MacLeod Street [sic]? - - - I saw two different signs during the duration of the build. At the very beginning, there was a very small sign no bigger than a - probably double the size of an A4 piece of paper. I cannot recall what was written on the sign - its words - but I do recall towards the end of the job there was a shade cloth sign clipped to the security fencing that had Ace Construction written across it.
You didn't ever see a hard stand sort of sign on the verge? - - - Yes, at the very beginning there was a real small hard stand that sat that low to the ground up against the site fence, but I don't recall what was written on it.
What was on it. And that's the one you said was the A4? - - - That's right.
Okay. Thank you. Now, anything arising out of that, Mr O'Reilly, before re-examination?
Mr Leroy did not have authority to make any 'concession' on behalf of Lee. Furthermore, what he said is that having 'seen in the case files for the other SAT case',[131] '[f]rom what I've - what I've read and witnessed, it's [the builder is] Peter Holmes'.[132] The 'other SAT case' refers to other proceedings involving the referral by the Building Commissioner to the Tribunal of building service complaints made by Ms Lee and Ms Yong against Mr Holmes and Eleven (Aus) Pty Ltd (Eleven) in relation to regulated building services carried out No. 23 MacLeod Road. I will refer to those proceedings when considering Jetpoint's third ground for review below. There was evidence in the other proceedings of written building contracts between Ms Lee and Mr H Ling and Mr Holmes and between Mr C Ling and Mr Holmes for the construction of the single houses at Lots 23B and 23A MacLeod Road, respectively. As indicated below, the making of a building service complaint against Mr Holmes was inconsistent with Ms Lee's position in the original proceeding that Jetpoint (and not Mr Holmes) carried out the whole of the regulated building service at No. 23 MacLeod Road from around October 2016 to May 2019, although it appears that her evidence in both sets of proceedings was essentially consistent. Neither party produced and tendered the written building contracts with Mr Holmes in the original proceeding. Given these circumstances and the way in which Mr Leroy answered Mr O'Reilly's questions at the end of his crossexamination, it was reasonable for the original Tribunal to clarify that Mr Leroy was 'aware from documents you've seen in the other proceedings that [Mr] Holmes was the builder on the contract?'.[133] Furthermore, when Mr O'Reilly asked 'Can I have a couple more questions?', Member Quinlan said 'Yes, one moment. You will. You will.',[134] and, after she asked Mr Leroy about signage displayed at No. 23 MacLeod Road during the carrying out of the building work, which was relevant to the preliminary issue, she properly invited Mr O'Reilly to ask any questions 'arising out of' her questions following the conclusion of the crossexamination,[135] and Mr O'Reilly took up that invitation.
[131] ts 228, 13 May 2020.
[132] ts 229, 13 May 2020.
[133] ts 229, 13 May 2020.
[134] ts 229, 13 May 2020.
[135] ts 229, 13 May 2020.
Finally, I have specifically reread the passages of transcript referred to by Jetpoint in support of its submission that the original Tribunal 'effectively took over' the cross-examination of Mr O'Reilly.[136] As indicated earlier, the Tribunal, including in its original building disputes jurisdiction, has greater latitude in questioning and comment than would be accepted where a judge is sitting alone in civil proceedings in a court, in consequence of the provisions of the SAT Act and SAT Rules referred to at [69]-[70] above. In my view, other than in the passages of transcript set out earlier in these reasons, the original Tribunal's questioning of Mr O'Reilly was not 'cross-examination' and was appropriate and relevant in the exercise of the Tribunal's specialist original building disputes jurisdiction in the circumstances of this case. Other than in the passages of transcript set out earlier, the questioning was nonargumentative, neutral and fair. The questioning sought either clarification of evidence Mr O'Reilly had given or relevant and material evidence in relation to the preliminary issue in question in the case. Indeed, it is clear that, in part, the questioning was undertaken specifically to afford procedural fairness to Jetpoint by enabling Mr O'Reilly to address matters of concern to the original Tribunal on the basis of the evidence it had already received. Thus, at one point, for example, Member Quinlan said the following to Mr O'Reilly:[137]
I want to give you a chance to answer this, because it's going to be part of our decision: that there isn't any evidence about this.
Did the original Tribunal err by failing to hear and determine the original proceeding together with the other proceedings?
[136] ts 237-240, 261-270, 280-281 and 286-288, 13 May 2020.
[137] ts 263, 13 May 2020.
In the Building Commissioner's notice of decision to refer the building service complaint the subject of the original proceeding to the Tribunal, the Building Commissioner's delegate stated as follows:[138]
Pursuant to [s] 11 of the [BSCRA] Act, I have decided that the complaint be referred to the [Tribunal] for the following reason/s:
1.An associated matter is currently being heard by the SAT and it would assist this complaint to have it heard concurrently with that associated matter.
[138] Hearing Book page 10.
The 'associated matter' referred to in the Building Commissioner's notice of decision is identified in the covering letter enclosing the notice of decision from the Building Commissioner to the Tribunal dated 9 December 2019, which states that '[t]his complaint file relates to two proceedings currently before the SAT, namely, CC 1635/19 and CC 1636/19 Lee v Holmes and Yong v Holmes'.[139]
[139] Hearing Book page 8.
Proceedings CC 1635 of 2019 and CC 1636 of 2019 each involved the referral by the Building Commissioner to the Tribunal, under s 11(1)(d) of the BSCRA Act, on 18 October 2019 of a building complaint made, in the case of proceeding CC 1635 of 2019, by Ms Lee against Mr Holmes and Eleven concerning 14 complaint items involving the supply and installation of doors and windows to the single house constructed at Lot 23B MacLeod Road and, in the case of proceeding CC 1636 of 2019, by Ms Yong (represented by Ms Lee[140]) against Mr Holmes and Eleven concerning 15 complaint items involving the supply and installation of doors and windows to the single house constructed at Lot 23A MacLeod Road.[141]
[140] Lee and Holmes [2020] WASAT 108 (Ms N Owen-Conway M and Mr P Marshall Sess M) [8].
[141] Lee and Holmes [7] and [8].
In addition, on 9 December 2019, the Building Commissioner also referred two other related building service complaints to the Tribunal, under s 11(1)(d) of the BSCRA Act, which became the subject of proceedings CC 1889 of 2019 and CC 1892 of 2019. Proceeding CC 1889 of 2019 related to a building service complaint made by Ms Yong (represented by Ms Lee) against Mr Holmes concerning 11 complaint items (ultimately reduced and collapsed into seven complaint items) arising from the construction of the single house at Lot 23A MacLeod Road. Proceeding CC 1892 of 2019 related to a building service complaint made by Ms Lee against Mr Holmes concerning 29 complaint items (ultimately reduced and collapsed into nine complaint items) arising from the construction of the single house at Lot 23B MacLeod Road.[142] In these reasons, I refer to proceedings CC 1635 of 2019, CC 1636 of 2019, CC 1889 of 2019 and CC 1892 of 2019 collectively as the 'other proceedings'.
[142] Lee and Holmes [9] and [11].
The original proceeding and the other proceedings were listed for a directions hearing concurrently before Senior Member Wallace on 10 December 2019. Senior Member Wallace made orders under s 51(1) of the SAT Act that each of the four other proceedings were to remain as separate proceedings, but be heard and determined together, and that evidence in one proceeding was to be evidence in each other proceeding, and listed the other proceedings for final hearing on 17 and 18 February 2020 before the Tribunal constituted by Member Ms Natasha Owen-Conway and Sessional Member Mr Paul Marshall. The hearing of the other proceedings took place on 17 and 18 February 2020 and was then adjourned for completion on 21 May 2020. The decision in the other proceedings was reserved and published on 7 September 2020 as Lee and Holmes [2020] WASAT 108.
At the same time Senior Member Wallace listed the other proceedings for final hearing on 17 and 18 February 2020 before Member OwenConway and Sessional Member Marshall, she listed the original proceeding for final hearing on 9 March 2020 before Member Quinlan and Sessional Member Kershaw. It is unclear why the senior member did not make the same order, under s 51(1) of the SAT Act, in the original proceeding as she made in each of the other proceedings, namely that the original proceeding was to remain as a separate proceeding, but be heard and determined together with each of the other proceedings, and that evidence in one proceeding was to be evidence in each other proceeding, when the Building Commissioner's delegate decided to refer the building service complaint the subject of the original proceeding to the Tribunal for the reason that 'it would assist this complaint to have it heard concurrently with … [the] associated matter [in proceedings CC 1635 of 2019 and CC 1636 of 2019]'.
The case management decision not to list the original proceeding for hearing and determination concurrently with the other proceedings was unfortunate and erroneous for three reasons. First, it gave rise to the potential for inconsistent decisions by the Tribunal in the original proceeding and in the other proceedings. A common issue was identified for determination in both the other proceedings and the original proceeding as to the identity of the builder that carried out the regulated building service at No. 23 MacLeod Road from around October 2016 to May 2019. Although, as I said earlier, it was not necessary for the original Tribunal to determine who carried out the regulated building service at No. 23 MacLeod Road during the whole of the period October 2016 to May 2019, but only the identity of the builder carrying out the relevant regulated building service concerning the external building work during the period from around August 2018 to June 2019, the preliminary issue for determination that was identified by the original Tribunal, and was the subject of the hearing on 6, 13 and 14 May 2020, was the same issue as was identified in the other proceedings.
Following the hearing in the other proceedings, the Tribunal made orders in proceedings CC 1635 of 2019 and CC 1636 of 2019 giving effect to resolutions reached at mediation on 10 March 2020 between Ms Lee and Eleven and Ms Yong and Eleven, requiring Eleven to remedy certain items of complaint in each proceeding. Otherwise, as the Tribunal said in Lee and Holmes at [6]:
The Tribunal has resolved the issues in CC 1635/19, CC 1636/18, CC 1889/19 and CC 1892/19 by declining to make the orders sought against Mr Holmes, because it is not satisfied that Mr Holmes is 'a person who carried out the regulated building service' that is the subject of the complaints and the proceedings.
The Tribunal in the other proceedings declined to make the orders sought by Ms Lee and Ms Yong against Mr Holmes, because, although Ms Lee and Ms Yong 'rel[ied] on two 'contracts' which on their face identify Mr Holmes as a 'builder' and two building permits issued to Mr Holmes for the construction of the two dwellings to establish that he is the person against whom an order may be made by the Tribunal pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act',[143] the Tribunal found 'that the contracts were not intended to be performed in their terms or at all and that the two building permits were obtained in the name of Mr Holmes, with full knowledge of Mr Holmes and [Ms Lee and Ms Yong] that Mr Holmes would not construct the two dwellings'.[144]
[143] Lee and Holmes [19].
[144] Lee and Holmes [20].
Although the determination by the Tribunal in the other proceedings that Mr Holmes was not the builder that carried out the regulated building service at No. 23 MacLeod Road is not inconsistent with the determination of the preliminary issue in the original proceeding that the builder that carried out the regulated building service at that property was Jetpoint, the decision to list the original proceeding and the other proceedings for hearing and determination by different members gave rise to the potential for inconsistent decisions by the Tribunal. Inconsistent decisions by the Tribunal in relation to the same set of facts would bring the administration of justice into disrepute.
Secondly, the listing of the original proceeding and the other proceedings for hearing and determination by different members involved an inefficient use of the Tribunal's membership. The hearing of the other proceedings occupied three hearing days and the hearing of the original proceeding occupied four hearing days. A total of three written decisions were published. Ms Lee, Mr Leroy and Mr O'Reilly each gave evidence in both the other proceedings and the original proceeding. Had each of the five associated proceedings been heard and determined together, it is likely that the hearing would have been concluded in less time than the total of seven hearing days and would have required the preparation and publication of one, rather than three, sets of reasons, by two, rather than four, Tribunal members.
Thirdly, and significantly from Jetpoint's perspective, clearly Ms Lee's position, although apparently not her evidence, was inconsistent between the building service complaints and proceedings in which she contended that the regulated building service at No. 23 MacLeod Road from around October 2016 to May 2019 was carried out by Mr Holmes (the other proceedings), on the one hand, and in which she contended that the regulated building service at the same property over the same period was carried out by Jetpoint (the original proceeding), on the other hand. Although Mr O'Reilly, being a witness called in the other proceedings, was aware of those proceedings, and sought to refer to them during the hearing of the original proceeding, and although the original Tribunal allowed some questions to be put to witnesses in relation to evidence given in the other proceedings, given that the other proceedings were part heard at the time and included mediations, the discussion about the other proceedings and their status at the hearing of the original proceeding was somewhat confusing. The confusion would obviously have been avoided if all of the proceedings had been heard together.
However, the error in listing the original proceeding for hearing and determination separately from the other proceedings was not made by the original Tribunal. By the time the final hearing in the original proceeding was listed to commence (9 March 2020) and by the time the hearing of the preliminary issue as part of the final hearing actually commenced (6 May 2020), the other proceedings were part heard. Furthermore, in my view, the listing error does not vitiate the decisions of the original Tribunal. Jetpoint was not prevented from referring to the other proceedings and Mr O'Reilly was allowed to ask some questions of witnesses in relation to the evidence presented and given in, and the status of, the other proceedings.
In the circumstances, the original Tribunal did not err by failing to hear and determine the original proceeding together with the other proceedings.
Did the original Tribunal err by imposing a monetary BRO and not a works BRO?
Jetpoint submits that 'there was no really good reason why [it] wouldn't comply with a works [BRO]', because, although the personal relationship between Mr O'Reilly and Ms Lee had broken down, 'Mr Andreou had … played the role of supervisor of [the] … building works [and] [t]here was not [any] strained relationship' with him, nor any sufficient evidence showing 'that they [Jetpoint] would not comply with a works [BRO] if one were made …'.[145]
[145] ts 33, 3 November 2020.
In my view, it was reasonably open to the original Tribunal to impose a monetary BRO, rather than a works BRO, for the reasons it gave at [48]-[49] of the second decision.[146] However, as the denial of procedural fairness by the original Tribunal to Jetpoint vitiates both the first and second decisions, the decision to impose the monetary BRO should also be the subject of review by the Tribunal constituted differently.
Should leave be granted to apply for internal review of the orders in the decisions made by the original Tribunal?
[146] See [36] above.
The original Tribunal breached both the hearing rule and the bias rule of natural justice in the conduct of the original proceeding, contrary to s 32(1) of the SAT Act. The denial of procedural fairness to Jetpoint vitiates the original Tribunal's decisions.
Furthermore, plainly, if leave were not granted to apply for internal review of the orders in the decisions affected by breaches of the rules of natural justice, Jetpoint would suffer a substantial injustice. Justice requires that the building complaint the subject of the original proceeding be considered and dealt with afresh by the Tribunal.
It follows that leave to apply for internal review should be granted, under s 58(5) of the BSCRA Act, in relation to all of the orders made in the first and second decisions by the original Tribunal. The review should be conducted by the Tribunal constituted differently to the Tribunal as constituted in the original proceeding.
Orders
For the reasons set out above, I make the following orders:
1.The application under s 58(5) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) for leave to apply for review of the orders in the decisions made by the Tribunal in proceeding CC 1893 of 2019 on 10 June 2020 in Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62 and on 23 July 2020 in Lee and Jetpoint Nominees Pty Ltd [No 2] [2020] WASAT 79 (decisions) is granted.
2.The application for review of the orders in the decisions under s 58(2) of the BSCRA Act is remitted for determination by the Tribunal constituted differently.
3.The application for review of the orders in the decisions under s 58(2) of the BSCRA Act is listed for a directions hearing before Senior Member Eddy at 9.30 am on 10 February 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
2 FEBRUARY 2021
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