JETPOINT NOMINEES PTY LTD and LEE

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.