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JETPOINT NOMINEES PTY LTD and LEE

JETPOINT NOMINEES PTY LTD and LEE

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Case Copied 2 February 2021 85 min read

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] WASAT 10
Decision Date

CaseChat Overview and Summary

Jetpoint Nominees Pty Ltd sought leave to apply for internal review by the State Administrative Tribunal (the Tribunal) of orders made by the Tribunal (the 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 cross-examination 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.

Orders