McLERIE and ITALIA STONE GROUP PTY LTD
[2016] WASAT 35
•11 APRIL 2016
McLERIE and ITALIA STONE GROUP PTY LTD [2016] WASAT 35
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 35 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1692/2015 | 1 MARCH 2016 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) | 11/04/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave granted in part | ||
| B | |||
| PDF Version |
| Parties: | MARK McLERIE ITALIA STONE GROUP PTY LTD SPECA FABRICATIONS |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application to review decision on Building Commissioner to not accept complaint Requirements for grant of leave to review Whether leave to review should be granted |
Legislation: | Building Regulations 2012 (WA), Sch 4 cl 2 Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 7, s 8, s 57(2), s 58(2) |
Case References: | General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 McLerie and Koleszko [2014] WASAT 160 Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 Philimon and Rimmer [2013] WASAT 13 |
Orders | 1. The second respondent is removed as a party to the proceedings.,2. Leave is granted to review the decision of the Building Commissioner to refuse the applicant's complaint lodged on 27 August 2015, insofar as the complaint refers to complaint items 1 and 2 set out in the amended complaint schedule provided to the Building Commissioner on or about 4 October 2015.,3. Leave to review the said decision of the Building Commissioner to the extent that the refusal relates to items 3 and 4 of the amended complaint schedule is refused. |
Summary | The applicant applied under s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the review of a decision by the Building Commissioner to refuse to accept a complaint made by the applicant.,The application before the Tribunal was understood to relate to a complaint made against two respondents and the matter was programmed to a leave hearing on that basis. At the commencement of the hearing, after some debate, it became apparent that the complaint before the Building Commissioner had been made only against the first respondent. The Tribunal indicated that it would therefore order that the second respondent be removed as a party.,The Tribunal set out the principles to be applied in considering whether or not to grant leave to review a decision to refuse to accept a complaint. These principles were that while the Tribunal had a broad discretion, it should be generally shown that the decision sought to be reviewed was wrong, or attended with sufficient doubt in relation to a significant question of law or some other feature warranting consideration by the Tribunal, that a substantial injustice would result if leave were not to be granted, but that a summary decision of this nature should only be made by the Building Commissioner where the complaint is so obviously untenable that it could not possibly succeed, or is manifestly groundless, or discloses a case which the Building Commissioner is satisfied cannot succeed.,The Tribunal found that the Building Commissioner had erred in finding that complaint item 1 was frivolous or vexatious and that it was inappropriate to have accepted a statement of an interested party that the works had been carried out without any gain or reward, as a basis for refusal of the complaint when no opportunity had been given to the applicant to forensically test the issue.,Although the Building Commissioner had been correct to find that complaint item 2 made was without substance, new evidence provided by the applicant showed that he had an arguable case and the Tribunal concluded that no purpose would be served in refusing leave in respect of this complaint item and requiring a new complaint to be made to the Building Commissioner. Accordingly, the Tribunal concluded that leave should be granted in respect of the second item of complaint as well.,The Tribunal agreed with the Building Commissioner's conclusion in relation to complaint item 3 that it was misconceived and further found that it was an abuse of process for the applicant to advance that claim.,In relation to the fourth item of complaint, the Tribunal concluded that the substance of the issue would be dealt with in considering complaint item 2 and that there would be no substantial injustice if leave were to be refused in respect of that complaint. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : McLERIE and ITALIA STONE GROUP PTY LTD [2016] WASAT 35 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : 1 MARCH 2016 DELIVERED : 11 APRIL 2016 FILE NO/S : CC 1692 of 2015 BETWEEN : MARK McLERIE
- Applicant
AND
ITALIA STONE GROUP PTY LTD
First Respondent
SPECA FABRICATIONS
Second Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application to review decision on Building Commissioner to not accept complaint - Requirements for grant of leave to review - Whether leave to review should be granted
Legislation:
Building Regulations 2012 (WA), Sch 4 cl 2
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 7, s 8, s 57(2), s 58(2)
Result:
Application for leave granted in part
Summary of Tribunal's decision:
The applicant applied under s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the review of a decision by the Building Commissioner to refuse to accept a complaint made by the applicant.
The application before the Tribunal was understood to relate to a complaint made against two respondents and the matter was programmed to a leave hearing on that basis. At the commencement of the hearing, after some debate, it became apparent that the complaint before the Building Commissioner had been made only against the first respondent. The Tribunal indicated that it would therefore order that the second respondent be removed as a party.
The Tribunal set out the principles to be applied in considering whether or not to grant leave to review a decision to refuse to accept a complaint. These principles were that while the Tribunal had a broad discretion, it should be generally shown that the decision sought to be reviewed was wrong, or attended with sufficient doubt in relation to a significant question of law or some other feature warranting consideration by the Tribunal, that a substantial injustice would result if leave were not to be granted, but that a summary decision of this nature should only be made by the Building Commissioner where the complaint is so obviously untenable that it could not possibly succeed, or is manifestly groundless, or discloses a case which the Building Commissioner is satisfied cannot succeed.
The Tribunal found that the Building Commissioner had erred in finding that complaint item 1 was frivolous or vexatious and that it was inappropriate to have accepted a statement of an interested party that the works had been carried out without any gain or reward, as a basis for refusal of the complaint when no opportunity had been given to the applicant to forensically test the issue.
Although the Building Commissioner had been correct to find that complaint item 2 made was without substance, new evidence provided by the applicant showed that he had an arguable case and the Tribunal concluded that no purpose would be served in refusing leave in respect of this complaint item and requiring a new complaint to be made to the Building Commissioner. Accordingly, the Tribunal concluded that leave should be granted in respect of the second item of complaint as well.
The Tribunal agreed with the Building Commissioner's conclusion in relation to complaint item 3 that it was misconceived and further found that it was an abuse of process for the applicant to advance that claim.
In relation to the fourth item of complaint, the Tribunal concluded that the substance of the issue would be dealt with in considering complaint item 2 and that there would be no substantial injustice if leave were to be refused in respect of that complaint.
Category: B
Representation:
Counsel:
Applicant : Mr M McLerie (In Person)
First Respondent : Mr M Koleszko (Acting as Agent)
Second Respondent : Mr Q Speca (Acting as Agent)
Solicitors:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Case(s) referred to in decision(s):
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
McLerie and Koleszko [2014] WASAT 160
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Philimon and Rimmer [2013] WASAT 13
The application
1 The applicant applies under s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Act) for the review of a decision by the Building Commissioner to refuse to accept a complaint made by the applicant. It is a prerequisite for the review that the Tribunal grant leave to review the decision.
Background and the decision under review
2 On 27 August 2015, the applicant lodged a complaint with the Building Commissioner under s 5(1) of the Complaint Act against the first respondent (Italia Stone). Four items of complaint were raised but during the course of the investigation of the complaint and as a result of the Building Commissioner requiring further information, the complaint items were reformulated and the matter was dealt with in accordance with the reformulated complaint, which was expressed as follows:
Complaint Item | Description | Remedy Sought |
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3 It is apparent from the reasons for decision provided by the Building Commissioner dated 17 December 2015 that the Building Commissioner accepted that the applicant had a sufficient interest to lodge the complaint, as an adversely affected adjoining property owner relative to the land on which the works, the subject of complaint, had been carried out. The applicant resides at 12 Beach Street, Bicton. The works the subject of complaint were carried out at 14 Beach Street, Bicton. The complaint was made against Italia Stone as the contractor which is alleged to have carried out the works.
4 It is evident that the applicant's knowledge of who was carrying out the works was a matter which he continued to investigate after the complaint had been lodged. Further, the information provided by the applicant to the Building Commissioner in a submission dated 4 October 2015 identified that Speca Fabrications might be a subcontractor to Italia Stone. If that were so, the party engaged to carry out the works by the owner would be Italia Stone. It is evident that the Building Commissioner did not regard the October submission as an attempt to amend the complaint to also cite Speca Fabrications. The reasons for decision refer only to a complaint against the first respondent, although the Building Commissioner was aware of, and referred to, the applicant's belief that some works were possibly subcontracted to Speca Fabrications.
5 As reflected in the Building Commissioner's reasons for decision, this Tribunal, in earlier proceedings between Ms Serena Koleszko (the owner of 14 Beach Street, Bicton), the City of Melville, and Mr Mark McLerie and Ms Margot Zimmer (as interveners), had ordered Ms Serena Koleszko to apply to the City of Melville for a demolition permit to demolish the dividing wall between her property and that of Mr McLerie and Ms Zimmer. The order required Ms Koleszko, within 60 days of being granted the demolition permit, to carry out the works described in that permit.
6 The demolition permit was duly obtained and the dividing wall was demolished. The applicant complained that steel reinforcing bars have been left encroaching onto his property. The Building Commissioner's reasons reflect that the Building Commission confirmed with Mr Michael Koleszko, the husband of Ms Koleszko, that what was referred to as steel pins had not been removed. A contemporaneous note prepared by the Building Commissioner's representative reflects that Mr Koleszko advised that he had no problem with Mr McLerie cutting off the steel pins with a grinder, but was reluctant to do so himself as he had enough issues with Mr McLerie constantly advising of trespass. The Building Commissioner found that there appeared to be several steel pins protruding from the head of the wall which are possibly encroaching onto the applicant's property.
7 Based on the same discussion with Mr Koleszko, to which reference has also been made, the Building Commissioner expressly stated that he is not in a position to be satisfied or not as to whether the demolition work carried out by Italia Stone constituted a regulated building service. The reasons reflect that there is some doubt, due to the alleged personal connection with Ms Koleszko to Italia Stone, as to whether the works were carried out by Italia Stone for gain or reward, but continue, notwithstanding this, that the Building Commissioner is satisfied that item 1 of the complaint is frivolous and vexatious in nature.
8 In relation to complaint item 2, the Building Commissioner found that the City of Melville had advised it had attended the property on numerous occasions in relation to the boundary issues and had confirmed that the structures in place and under construction at 14 Beach Street, Bicton did not require approvals, nor were any issues of encroachment identified.
9 In relation to complaint item 3, the Building Commissioner found that the applicant is seeking reimbursement in the amount of $3,303.89 in respect of the costs of re-survey to the boundary, compaction of soil and temporary fencing allegedly incurred due to the actions of Italia Stone. The Building Commissioner found that the costs claimed relating to re-survey and temporary fencing were misconceived in that there was no evidence that these additional services were attributable to the work carried out by Italia Stone not being carried out in a proficient manner or being faulty or unsatisfactory. The Building Commissioner stated that these services would have been required by the applicant regardless of who carried out the work or what extent of competency was applied.
10 In relation to the compaction of soil, the Building Commissioner expressed the view that consideration would need to be given to the conditions of the demolition permit and whether or not it is reasonable or not to expect soils affected during the course of demolition to be reinstated to their original condition. Further, that the original condition of soil would need to be substantiated, which the applicant had not done. The Building Commissioner concluded that this item of complaint was considered to be misconceived and without substance. The reasons then continue to state:
As with complaint item 1 and for the same reasons given, this decision is made in absence of being satisfied that the works carried out by the respondent constituted a regulated building service.
11 In relation to complaint item 4, the Building Commissioner simply stated that for the same reasons as for complaint item 2, he was satisfied that item 4 of the complaint was without substance.
The criteria for the grant of leave
12 The criteria for the grant of leave in relation to an internal review under s 58(2) of the Complaint Act were discussed in detail in Philimon and Rimmer [2013] WASAT 13 and then summarised in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20. These decisions outline that there is a broad discretion whether or not to grant leave to review, but generally, it is necessary to show that the decision sought to be reviewed is wrong, or attended with sufficient doubt in relation to a significant question of law or some other feature warranting consideration by the Tribunal, and that, if leave were not to be granted, the applicant would suffer a substantial injustice. Other criteria set out in these decisions relevant to consideration of the review of a decision after full hearing on the merits have no application to a decision to refuse to accept a complaint, but otherwise, the above principles are relevant, subject to the following further considerations.
13 The processes before the Building Commissioner do not permit the conduct of hearings where disputes of fact can be forensically tested. The Building Commissioner has power under the Complaint Act to seek further information about a complaint in order to make a decision whether or not to accept it. The circumstances and extent of information which might be required will inevitably vary from case to case. The information provided and any reasons furnished by the Building Commissioner should disclose the basis upon which the decision to refuse to accept the complaint was made. It is therefore necessary to examine that information carefully in order to assess whether it was appropriate to make such a summary decision. The decision should only be taken after very careful consideration and only when the Building Commissioner is satisfied that the information shows that the complaint is so obviously untenable that it cannot possibly succeed or is manifestly groundless, or discloses a case which the Building Commissioner is satisfied cannot succeed. In this regard, the principles discussed in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 and in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 are expressed to the above effect and are entirely apt, although applied in different contexts.
14 It will be generally not difficult to exercise the broad discretion which exists, in favour of the grant of leave, when it is evident that the complaint has not been accepted based on information which is likely to be contested, and which can only be properly assessed following a full hearing. In such circumstances, the summary nature of the decision, without a complainant being given a proper opportunity to test information on which the decision is based, may allow the Tribunal to more readily conclude that a substantial injustice would result if leave were not to be granted.
The proceedings before the Tribunal and consideration
15 The application for review was lodged on 5 November 2015. The decision sought is broken into two parts. The first part refers to demolition work undertaken by Italia Stone and alleges that it was not carried out in a proper and proficient manner. The second part refers to 'Spec [sic] Fabrications' having failed to construct a boundary structure in a proper and proficient manner. The grounds to the application refer to both Italia Stone and Speca Fabrications having completed work for gain or reward.
16 It is apparent that the Tribunal's administrative staff interpreted the application as citing both Italia Stone and Speca Fabrications as being intended respondents. The Tribunal's file was opened reflecting that there were two respondents, and the matter proceeded thereafter on that basis.
17 At the hearing, the Tribunal raised with the parties that, on its reading of the papers before the Building Commissioner, it appeared that a complaint had only been made against Italia Stone. Following some debate on the issue, Mr McLerie is understood to have accepted that position, and that if he wished to make a complaint against Speca Foundations, that will have to be the subject of a fresh complaint to the Building Commissioner. At the conclusion of the hearing, the Tribunal indicated that it would make an order that Speca Fabrications be removed as a party to the proceedings, and an order will accordingly issue to that effect.
18 It remains, however, unclear as to whether the works carried out by Speca Fabrications were carried out as a subcontractor to Italia Stone, or by way of an entirely separate arrangement direct with the owner of 14 Beach Street, Bicton. The allegation which was before the Building Commissioner was that it appeared that Speca Fabrications had been engaged as a subcontractor to Italia Stone.
19 In the current proceeding, statutory declarations have been filed by Mr Quirino Speca and Mr Ridolfo Rosario Fazio. An email communication, under cover of which Mr Speca's declaration was filed, reflects that Mr Speca is involved in some unstated capacity with Speca Fabrications. The statutory declaration reflects that Mr Speca is a friend of Mr Koleszko, who he states he has known for some 18 years. Mr Speca declares that he installed a privacy screen inside the boundary of what he referred to as Mr Koleszko's and his wife's house at 14 Beach Street, Bicton. He states that he did the work as a favour and that he was not paid. There is nothing to indicate that the work was done on a subcontract basis for and on behalf of Italia Stone. The statutory declaration of Mr Fazio reflects that he is a director if Italia Stone and that his sister, Ms Serena Koleszlo, is a shareholder. He states that the demolition work was carried out by employees of Italia Stone and that no payment was charged to either his sister or her husband for the work carried out. There is no indication that Italia Stone engaged Speca Fabrications in any capacity.
20 Based on this evidence, Italia Stone's solicitor, who did not appear at the hearing, filed a statement of facts, issues and contentions in which it is submitted that as the work was not undertaken for gain or reward, the work does not constitute a regulated building service within the meaning of the Complaints Act.
21 The construction of the original boundary wall between 12 and 14 Beach Street, Bicton has been the subject of protracted litigation in this Tribunal. This related not only to litigation between Mr McLerie and Ms Zimmer and Ms Koleszko, but also proceedings between the City of Melville and Ms Koleszko, in which Mr McLerie and Ms Zimmer were allowed to intervene. The former proceedings commenced in the Building Commission and were then referred to the Tribunal. The Building Commissioner refers in his reasons for decision to the current dispute being largely based on an ongoing dispute between neighbours. Yet, at the time of the decision not to accept the complaint, the only evidence before the Building Commissioner relating to whether the works had been carried out for gain or reward was a statement made by Mr Koleszko. The reasons for decision are equivocal to the extent that on the one hand, the Building Commissioner states that he is not in a position to be satisfied or not as to whether the demolition work carried out by Italia Stone constituted a regulated building service, but then later states in relation to complaint item 3 that:
[a]s with complaint item 1 and for the same reasons given, this decision is made in absence of being satisfied that the works carried out by the respondent constituted a regulated building service.
22 Given the history of disputation between the parties, and the relationship between Mr Koleszko and his wife as owners of 14 Beach Street, Bicton, it would be inappropriate to accept Mr Koleszko's statement to a representative of the Building Commissioner as a basis for finding that the work had not been carried out for gain or reward. This the Building Commissioner appeared to recognise in dealing with complaint item 1, but when addressing complaint item 3, the Building Commissioner appears to have relied on the burden on the applicant of establishing that the complaint related to a regulated building service. While that burden obviously rests with the applicant, it would be inappropriate to rely on the bald statement of an interested party and insist on proof by a complainant, when all the evidence will be in the possession of the other party or alleged contractor. The only way in which a complainant can discharge that burden is by following a course which will allow proper forensic testing. This may well involve formal discovery and cross-examination at a hearing.
23 In saying this, sight is not lost of the Building Commissioner's accumulative reasons, because the Building Commissioner also regarded complaint items 1 and 3 as being, respectively, frivolous and vexatious and misconceived and item 4 as being without substance. Those conclusions require further examination but before doing so, consideration must be given as to the effect of the above statutory declarations.
24 While the statutory declarations cannot be used to determine whether or not the Building Commissioner erred, they are relevant to whether there would be a substantial injustice if leave were to be refused, because they give an indication of what the evidence would be at a final hearing. Their effect is clearly to fortify the argument that the work was not carried out for gain or reward, which is a necessary element of a complaint lodged under s 5(1) of the Complaint Act: see s 3 and the definition of 'regulated building service'. However, the content of the declarations also reinforce the close relationship of Mr Speca and Italia Stone with Mr and Mrs Koleszko. This is not the type of issue which one can expect would be satisfactorily resolved by merely requiring further information from the complainant, prior to the making of a preliminary decision, whether or not to accept a complaint: see s 7 and s 8 of the Complaint Act. The correct and preferable decision on this issue would be not to rely on it as a basis for refusing to accept the complaint, so that if there are no other justifiable grounds for refusing the complaint, in whole, or in part, the issue can be subjected to proper forensic testing.
25 In relation to complaint item 1 relating to the encroachment of steel reinforcing bars or pins, the Building Commissioner concluded that the complaint is frivolous and vexatious. No factual findings are stated to justify this conclusion other than a single statement that, based on enquiries conducted in connection with the assessment of this complaint, it appears the complaint is largely based on an ongoing dispute between neighbours. The term 'frivolous or vexatious' has an accepted legal application and meaning. Pleadings and court proceedings will be struck out as being frivolous if they are obviously unsustainable and an abuse of the process of the Court. Similarly, it would be regarded as being vexatious for the same plaintiff to bring two actions against the same defendant where one would lie. It has been said that the Court may protect its process from abuse by summarily disposing of an action as frivolous or vexatious if the claim is so obviously untenable that it cannot possibly succeed: see the authorities and discussion in Civil Procedure Western Australia by Kendall and Curthoys, Vol 1, LexisNexis, Australia 1990, [20.19.9]. The applicant alleges that the reinforcing bars have been left exposed and encroach on his property. The contemporaneous note referred to above reflects that Mr Koleszko did not deny the allegation of encroachment. The reinforcing bars or pins provided reinforcement to the wall which Ms Koleszko was ordered to have demolished and which Italia Stone demolished on her behalf. They should have been removed.
26 In a file note dated 22 October 2015, the representative of the Building Commissioner recorded a telephone discussion with the applicant, in which the applicant advised that he had no problem with allowing Mr Koleszko access to remove the steel rods, but that Mr Koleszko would have to seek written permission to do so. Compliance with the Tribunal's order, to which reference has already been made, requires removal of the wall and, by necessary implication, all parts comprising thereof, which includes the reinforcing bars. It is not clear, therefore, as to on what basis it could be contended that the claim is frivolous or vexatious.
27 Leave to review this aspect of the complaint will accordingly be granted.
28 In relation to complaint items 2 and 4, the applicant, in his submissions to the Tribunal, made much of the issue of whether or not necessary approvals had been obtained.
29 As reflected in the Building Commissioner's reasons for decision, the City of Melville had attended the property on numerous occasions and had advised that no building permits or other approvals were required. In the Tribunal's view, little turns on whether or not approvals were required. The local authority did not consider an approval was required and, accordingly, unless the work undertaken can be shown to be faulty or not carried out in a proper and proficient manner, no remedy would follow. The applicant provided the Building Commissioner with no evidence that the remaining structures were structurally inadequate. The decision of the Building Commissioner that complaint item 2 was without substance was therefore correct on the information and material then available.
30 The work undertaken by Italia Stone was to remove the boundary wall in accordance with the demolition permit. Until the relationship between Italia Stone and Speca Fabrications, if any, has been forensically determined, it is not clear whether Italia Stone may bear any responsibility for the construction of the new fence. The Building Commissioner refers in his reasons to the applicant being requested by an email dated 4 September 2015 to specify what structures were referred to and to provide evidence of the date the structures were built and by whom they had been built. It is evident from the original complaint and its subsequent amendment to the schedule of complaint items that work was ongoing so that there could not have been any time bar issue which required consideration. The Building Commissioner appears to have been influenced - by a statement on page 2 of the reasons for decision and prior to the consideration commencing at page 4 - by a finding that there was no evidence to suggest that Italia Stone had any involvement with performing a regulated building service in connection with the 'remaining structures'. Having had the benefit of oral submissions, it is understood that the 'remaining structures' are what was left of the portion of the original retaining wall still on 14 Beach Street, Bicton and the new fence built on top of it. The applicant had provided absolutely no evidence of structural inadequacy to the Building Commissioner.
31 In the proceedings before the Tribunal, the applicant has provided an engineering report from Mr Sebastian Chira, a structural engineer of the firm VTP Engineering, dated 21 January 2016, which raises concerns about the fence due to visible lateral movement and overturning moment due to wind load.
32 In addition, the applicant contends that the demolition of the original boundary wall has not been carried out in a way which prevents soil ingress onto his property, being 12 Beach Street, Bicton. Photographs which were before the Building Commissioner show that where the wall has been removed adjacent to the decking surrounding the swimming pool of Ms Koleszko's property, there is a vertical face of soil which, if it collapses, will fall into the applicant's property. This is a section where it appears that the boundary wall was performing a retaining function. Condition 8 of the building permit contains a provision to the effect that if the retaining walls are not located within the boundary of 14 Beach Street, Bicton, they are to be removed and building and planning approval is to be obtained from the City of Melville prior to the construction of adequate retaining walls to maintain the approved ground levels. The applicant contends that it is clear from a reading of Sch 4 to the Building Regulations 2012 (WA), cl 2, table item 6, that a building permit would be required for such work because it involves the protection of land adjoining the land on which the retaining is required.
33 Significantly, this provides an arguable basis on which to contend that the demolition work was not carried out in compliance with the building permit and has therefore not been carried out in a proper and proficient manner.
34 As in the case of the recently filed statutory declaration, the evidence from Mr Chira cannot be relied upon to demonstrate error on the part of the Building Commissioner. On the information before the Building Commissioner, it was correct to consider that complaint item 2 was without substance. However, there would be no purpose served, once leave is granted in respect of any of the complaints, as it will be in relation to complaint item 1, to require Mr McLerie to make a new complaint in respect of complaint item 2 relying on the evidence now available. That will not be in the interests of any of the parties and would only cause delay and complicate matters procedurally. In the circumstances, leave will be granted in respect of complaint item 2.
35 In relation to complaint item 3, the Building Commissioner in effect found that there was no causal link between the expenditure claimed and the works carried out at 14 Beach Street, Bicton. That conclusion is, in the Tribunal's view, correct. If there was a need to resurvey after demolition of the wall, or to recompact soil, that was a foreseeable consequence of the demolition. If the applicant considered that this was a result of faulty or unsatisfactory workmanship in relation to the original construction of the boundary wall by Ms Koleszko, that should have been a claim included in the proceedings brought against her. The claim would, in any event, have failed because it was held that the complaint had been made out of time: see McLerie and Koleszko [2014] WASAT 160. The attempt to include in the current complaint claims which should have been the subject of earlier proceedings is an abuse of process.
36 Leave to review in respect of complaint item 3 will be refused.
37 In relation to complaint item 4, the Building Commissioner concluded that the complaint was without substance for the same reasons as given in respect of complaint item 2. As we have indicated, the Building Commissioner's conclusion in relation to complaint item 2 was correct on the material which was then before the Building Commissioner. However, as indicated, leave will be granted in respect of complaint item 2 because of new evidence available on review. In view of the conclusion the Tribunal has reached in relation to complaint item 2, there appears to be little utility in complaint item 4. The complaint focuses on the structure not having been the subject of any prior approval by the local authority. The City of Melville does not consider any such approval is required. Although there may be an argument that approval is required to the extent that the fencing protects a swimming pool, based on the material provided by the applicant, taken from the City of Melville's website, for reasons given above, little turns on whether or not the fence was approved. The fence is either faulty or unsatisfactory, or it is not, and that will be determined in relation to the consideration of complaint item 2.
38 In the circumstances, there will be no substantial injustice if leave is refused in respect of complaint item 4, and leave will be refused.
Disposition of matter and order
39 At the conclusion of the leave hearing, the Tribunal canvassed with the parties the benefit of referring the matter to mediation. By consent, the matter was referred to mediation. In the circumstances, it will not be necessary to make any directions programming the matter to a final hearing until the outcome of the mediation is known.
40 Accordingly, for the reasons given above, the Tribunal will cause an order to issue in the following terms:
1. The second respondent is removed as a party to the proceedings.
2. Leave is granted to review the decision of the Building Commissioner to refuse the applicant's complaint lodged on 27 August 2015, insofar as the complaint refers to complaint items 1 and 2 set out in the amended complaint schedule provided to the Building Commissioner on or about 4 October 2015.
3. Leave to review the said decision of the Building Commissioner to the extent that the refusal relates to items 3 and 4 of the amended complaint schedule is refused.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER
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