McROBERT and RYAN
[2013] WASAT 167
•9 OCTOBER 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: McROBERT and RYAN [2013] WASAT 167
MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)
HEARD: 9 AUGUST 2013
DELIVERED : 9 OCTOBER 2013
FILE NO/S: CC 1096 of 2012
CC 1097 of 2012
CC 421 of 2013
BETWEEN: ALISTAIR McROBERT
Applicant
AND
LESLIE KENNETH RYAN
First RespondentCAPETHORNE PTY LTD
Second Respondent
Catchwords:
Reasonable excuse for not attending or being represented at hearing
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36, s 41
State Administrative Tribunal Act 2004 (WA), s 84, s 84(5)
State Administrative Tribunal Rules 2004 (WA), r 20, r 46
Result:
Application dismissed
Summary of Tribunal's decision:
The second respondent was not represented at a hearing in these proceedings on 2 and 3 May 2013. That hearing preceded the decision of the Tribunal made on 27 June 2013. The second respondent applied under s 84 of the State Administrative Tribunal Act 2004 (WA) for the decision to be revoked or varied. It contended that its failure to be represented ought to be excused because Mr Burroughs, the director of the second respondent, had to attend a medical appointment for his son at 9.45 am on 2 May 2013.
The Tribunal was not satisfied that the second respondent had a reasonable excuse for not being represented at the hearing. The second respondent did not provide any evidence as to why it could not have been represented at the hearing by someone other than Mr Burroughs. The second respondent had failed to take appropriate steps to adjourn the hearing. Although the appointment was scheduled for 9.45 am on 2 May 2013, the hearing did not start until 1 pm. The second respondent was not represented at any time during the hearing and did not contact the Tribunal about its failure to be represented during the afternoon of 2 May and on 3 May 2013, or at any time prior to 27 June 2013.
Further, even if the second respondent had a reasonable excuse for not being represented at the hearing, there was no basis for the decision to be revoked or varied, because the second respondent did not provide any material which evidenced a reasonable prospect that the decision would be, or may have been, different had the second respondent been represented at the hearing.
The application under s 84 of the State Administrative Tribunal Act 2004 (WA) was dismissed.
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
First Respondent : No appearance
Second Respondent : Selfrepresented
Solicitors:
Applicant: Self-represented
First Respondent : No appearance
Second Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 27 June 2013, the Tribunal delivered a decision (Decision) in which it found that the second respondent, Capethorne Pty Ltd (Capethorne), and the first respondent, Mr Leslie Kenneth Ryan (Mr Ryan), were liable to the applicant, Mr Alistair McRobert (Mr McRobert), under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). Orders were subsequently made programming the matter to a further hearing in respect of the quantum of that liability.
Capethorne was not represented at the hearing on 2 and 3 May 2013 which led to the Decision.
On 11 July 2013, Capethorne wrote to the Tribunal seeking to have the Tribunal revoke or vary the Decision under s 84 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Prior to 2 May 2013, Capethorne had been represented in the proceedings by Mr Burroughs, its sole director. In general terms, Capethorne contends that it was not represented at the hearing because Mr Burroughs had to attend a medical appointment for his son at 9.45 am on 2 May 2013 (Appointment) and then to deal with the impact of the Appointment on his family.
The Tribunal considers that this is not an appropriate case for an order under s 84 of the SAT Act to be made. The Decision should not be revoked or varied.
Directions have already been made programming the substantive proceedings to a hearing to determine the particular orders that should be made under s 36 and s 41 of the BS(CRA) Act in light of the Decision. The matter should proceed to that hearing.
The legislation and issues
The application is made pursuant to s 84 of the SAT Act which provides:
Tribunal may review its decision if person was absent
(1)In this section ‑
relevant hearing, in relation to a decision of the Tribunal, means a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation.
(2)A person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing.
(3)The application has to be made within the time limits specified by, and otherwise in accordance with, the rules.
(4)The rules may limit the number of applications that can be made under this section in respect of the same matter without the leave of the Tribunal being obtained.
(5)If on hearing the application the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the relevant hearing, the Tribunal is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.
(6)For the hearing of the application the Tribunal is to be constituted under section 11 by the members by whom it was constituted when it made the decision, if that is practicable.
(7)A review under this section
(a)is part of the original proceeding and not a new proceeding; and
(b)is not a review of a decision for the purposes of section 17.
The operative part is subsection (5). That subsection contemplates that the determination of an application under s 84 of the SAT Act involves two elements. First, the Tribunal must consider whether Capethorne had a 'reasonable excuse' for not attending at the hearing or being represented. If Capethorne did have a reasonable excuse, then the Tribunal must review the decision, and may revoke or vary the decision. These are the major issues in this application. The issues will be considered after the procedural and factual backgrounds have been set out.
Procedural background
The hearing which preceded the Decision commenced at 1 pm on 2 May 2013, and continued for a full day on 3 May 2013. For the hearing, the Tribunal was constituted by Senior Sessional Member Ellis and Sessional Member Mittonnette. However, the Decision was delivered orally by Mr Ellis alone.
The application under s 84 of the SAT Act was made by letter dated 11 July 2013. Rule 20 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides that an application under s 84 of the SAT Act must be made within two days after the decision. The application was, therefore, made out of time. This issue was not specifically addressed by the parties. The time limit recognises the disruptive effect which tardy applications under s 84 of the SAT Act may have on the proper course of proceedings. Although Mr Burroughs was present when the Decision was delivered orally, the transcript of the Decision was provided more than two days after the Decision was made. Capethorne enquired of the Tribunal about the possibility of challenging the Decision before its application under s 84 of the SAT Act was made. For these reasons, I am not inclined to dismiss the application under s 84 of the SAT Act merely because it was made out of time. Compliance with r 20 should be waived under r 46 of the SAT Rules.
The Tribunal scheduled a directions hearing to deal with the application on 18 July 2013. Capethorne was not represented at that hearing. The Tribunal made orders on that occasion that the application under s 84 of the SAT Act be dismissed unless Capethorne applied in writing within seven days to have the application relisted.
By facsimile dated 18 July 2013 (received by the Tribunal on 19 July 2013), Capethorne wrote to the Tribunal requesting to have the matter relisted but indicating that Mr Burroughs was not available for that purpose until 29 July 2013. Capethorne also asserted that it had not received the notice of listing for 18 July 2013, although the Tribunal's records indicated that the notice had been posted to the parties and the notice was not returned to sender.
The Tribunal arranged for the s 84 application to be relisted.
The Tribunal wrote to Capethorne on 22 July 2013 as follows:
…
The disposition of the matter will be assisted if, by 5pm on 2 August 2013, Capethorne has:
1)provided a signed statement setting out the reasons for the delay in making its application under s 84;
2)provided a signed statement:
(a)setting out full details of the circumstances which lead [sic] to Capethorne not being represented at the hearing of these proceedings commencing at 1pm on 2 May 2013 and at the hearing commencing at 9am on 3 May 2013, including:
i)when and how Mr Burroughs first became aware of the appointment involving his son at 9:45[am] on 2 May 2013 ('the appointment');
ii)the steps taken, if any, to reschedule the appointment;
iii)whether persons other than Mr Burroughs were able to attend the appointment and, if so, whether they did attend the appointment;
iv)how long the appointment lasted;
v)why Capethorne failed to make an application to the Tribunal for adjournment of the hearing on notice to the applicant prior to 12 April 2013 and prior to 29 April 2013;
vi)what steps, if any, Capethorne took to obtain alternative representation at the hearing on each of 2 May 2013 and 3 May 2013;
viii)what steps taken, if any, Capethorne took to procure the attendance on 2 or 3 May 2013 of any witnesses to be called on behalf of Capethorne, including Mr Bell of AJB Management Services Pty Ltd; and
(b)attaching copies of any relevant documents not previously provided to the Tribunal.
3)set out in writing (by reference to the pages in the transcript of the reasons of 27 June 2013) the specific findings made by the Tribunal which are said to be erroneous or should be reviewed and, in respect of each such finding:
i)the conclusion that it contends ought to have been reached;
ii)in detail, the evidence relevant to that finding that would have been given; and
iii)the individual or individuals that would have given that evidence; and
iv)any submission or argument that would have been advanced had Capethorne been represented at the hearing.
4)provided in writing any submissions it wishes to make in support of its application.
…
At the hearing on 9 August 2013, Capethorne was represented by Mr Burroughs. Mr Burroughs handed up a chronology of events with 10 attachments. The documents had not been provided to Mr McRobert or the Tribunal beforehand. The chronology included elements of commentary or submission from the point of view of Mr Burroughs, but no signed witness statements were provided.
Factual background
Capethorne's chronology and the supporting attachments show that:
a)Mr Burroughs' son had a serious medical condition. Mr Burroughs first consulted a doctor about his son's medical condition on 30 August 2012;
b)Mr Burroughs' son had consulted specialists on a number of occasions from 11 November 2012;
c)the Appointment was scheduled for 2 May 2013 at 9.45 am for his son, which Mr Burroughs attended with his wife; and
d)on 2 May 2013, Mr Burroughs was informed that the prognosis was serious and that there would be significant adverse consequences of attempting to operate.
Mr Burroughs asserted in the chronology that he first became aware of the Appointment on or about 4 April 2013 by means of a telephone conversation with his son's doctor's receptionist, rather than by means of a notice or letter from Princess Margaret Hospital (PMH). Capethorne provided a notice of appointment in relation to the Appointment. However, the notice provided to the Tribunal was not a copy of the original version of the notice from PMH, because a facsimile transmission record at the top of the page records that it was sent from PMH on 6 August 2013 at 10.17 am. Also, the notice itself is dated 6 August 2013, which cannot be the date of the original notice from PMH. Mr Burroughs provided copies of 'original' notices of appointment for others of his son's appointments. It is odd that Mr Burroughs did not have the original of the notice of appointment, and odd that the copy of the notice of appointment did not bear the original date. However, there was no evidence which contradicted Mr Burroughs' account of how he became aware of the Appointment. The Tribunal accepts that Mr Burroughs became aware of the Appointment on 4 April 2013.
The events which occurred between 4 April and 1 May 2013 in relation to the hearing on 2 and 3 May 2013 are set out in the Decision in detail. In general terms, Capethorne raised the issue of the Appointment with the Tribunal on 7 April 2013 but, despite having been invited by the Tribunal to make an application for an adjournment on notice to Mr McRobert by 12 April 2013, it did not do so. After receiving further correspondence from Capethorne after close of business hours on 29 April 2013, the Tribunal convened a directions hearing at short notice on 1 May 2013. At that directions hearing, Capethorne was represented by a Mr McLay, who had apparently provided some form of assistance or advice to Capethorne in the past. The Tribunal deferred the start of the hearing from 10 am on 2 May 2013 to 1 pm on 2 May 2013 to enable Mr Burroughs to attend the Appointment.
The chronology indicates that Mr Burroughs attended the Appointment on 2 May 2013, although it appears that he arrived at 10 am for a 9.45 am appointment. The Tribunal's letter of 22 July 2013 indicated that information about the time the Appointment ended would be relevant. This information was not clearly disclosed by Capethorne at the hearing on 9 August 2013. The chronology indicates that Mr Burroughs met a medical registrar at PMH at about 10.45 am and saw the principal consultant about one and a half hours later, at approximately 12.15 pm. Capethorne does not state when the meeting with the principal consultant ended. The Tribunal is not satisfied that the Appointment ended at a time when Mr Burroughs would not have been able to make his way to the Tribunal in time for the commencement of the hearing, had he wished to do so. He did not contact the Tribunal at the time to indicate that the Appointment had taken longer than anticipated.
In the chronology, Mr Burroughs stated:
I did not attend the hearing on 2 [May] 2013. The prognosis from the Neurosurgeon was devastating and my responsibility was towards my family. I was also [not] able to attend on 3 May 2013 as we needed to address [our] next steps.
Mr Burroughs did not attend at all on 2 or 3 May 2013.
Did Capethorne have a reasonable excuse for not attending at the hearing?
The effect of s 84 of the SAT Act is that the Tribunal is to review the decision if it considers that Capethorne, under s 84(5) of the Act, had a 'reasonable excuse' for not being represented at the hearing. As a corporation, it is, of course, not possible for Capethorne to attend the hearing in person.
The SAT Act does not expand on what is meant by the expression 'reasonable excuse'. The effect of the expression in the context of the section is to require the Tribunal to consider whether Capethorne ought reasonably to be excused for having failed to attend. Relevant factors will, of course, include the nature of the event giving rise to the failure of Capethorne to be represented. A 'reasonable excuse' may be a sudden unforeseen event which physically prevents that party attending or being represented. Where an applicant relies upon an event or circumstance which had been apparent for some time, it would ordinarily be appropriate for the applicant to raise the matter with the Tribunal before the hearing and seek to have the hearing rescheduled. In many cases, circumstances which would be a reasonable excuse for not appearing or being represented would be a sufficient reason for the Tribunal to reschedule the hearing, if those circumstances were raised beforehand. An applicant cannot simply sit back and apply to the Tribunal after an adverse decision has been made. The Tribunal may also consider events which take place after the hearing but before the Decision. Where, for example, a party has been prevented from attending a hearing because of unforeseen, untoward events, it would ordinarily be reasonable for that party to draw the matter to the attention of the Tribunal as soon as is practicable, and not to wait until a decision based on the hearing had been made.
The excuse which Capethorne put forward for it not being represented at the hearing was that Mr Burroughs, the sole director and secretary of Capethorne, had to attend a medical appointment for his son on the morning of 2 May 2013 and had, thereafter, to attend to his family at a difficult time.
As indicated above, the Tribunal had deferred the start of the hearing until 1 pm on 2 May 2013, in response to Capethorne's correspondence of 29 April 2013. The material before the Tribunal does not establish that the appointment ended at a time which meant that Mr Burroughs could not get to the Tribunal before the start of the hearing at 1 pm. The reason for Mr Burroughs' non‑attendance is therefore not the Appointment itself. The reason justifying Mr Burrough's nonattendance is his need to deal with the consequences of the Appointment, particularly a need to be with his son and wife at that time.
The Tribunal has sympathy for Mr Burroughs' position. However, the Tribunal does not accept that Capethorne has put forward a reasonable excuse for it not being represented at the hearing on 2 and 3 May 2013. The exchanges between Capethorne and the Tribunal in relation to the need to make an application for an adjournment on notice to Mr McRobert were outlined in the Decision. In particular, the Tribunal wrote to Capethorne indicating that if it wanted to change the hearing date from 2 and 3 May 2013, an application for an adjournment should be made on notice to Mr McRobert by 12 April 2013. Capethorne did not adopt this course of action. Capethorne's conduct contributed to the difficulty Mr Burroughs had in attending the Appointment and representing Capethorne at the hearing.
Additionally, the Tribunal is not persuaded that Mr Burroughs could not have attended the hearing, if not after 1 pm on 2 May 2013, then at least on 3 May 2013. Correspondence from Capethorne prior to 2 May 2013 did not suggest that Mr Burroughs would not be able to attend the hearing on 3 May 2013.
The Tribunal is also influenced by the fact that Capethorne is a corporation. Although Mr Burroughs is the sole director, Capethorne may be represented by persons other than Mr Burroughs. At the hearing of the application for an adjournment on 30 April 2013, Capethorne was represented by Mr McLay. It appears that Mr McLay had been involved in Capethorne's dispute with Mr McRobert previously. Capethorne did not provide any explanation why Mr McLay was unable to represent it at the hearing. Capethorne did not provide any explanation why a solicitor was not able to represent it at the hearing. Capethorne was aware of the conflict between the scheduled hearing date and the Appointment since 4 April 2013 and had ample opportunity to arrange alternative representation during that time.
Finally, Capethorne did not make any attempt to contact the Tribunal in relation to the hearing between 2 May and 27 June 2013, when the Decision was handed down. The Tribunal accepts that Capethorne may not have been aware of the existence of s 84 of the SAT Act. However, if Capethorne was prevented from presenting its case by Mr Burroughs' personal circumstances, one would have anticipated that it would have taken active steps to contact the Tribunal, before the Decision was delivered, to seek an opportunity to put its case to the Tribunal and explain its failure to be represented.
Should the Decision be revoked or varied?
Section 84 of the SAT Act provides that if the Tribunal is satisfied that a party had a reasonable excuse for not attending or being represented at the hearing, the Tribunal is to review the decision and 'may' revoke or vary it. Even if a party has a reasonable excuse for not attending a hearing, the decision should stand, unvaried, unless it appears that there was a real prospect that the decision would, or might, have been different if the party had attended the hearing or been represented at it. In the present case, the Tribunal considers this would not be a suitable case for the Decision to be revoked or varied, because there is no basis to believe that the Decision was, or might have been, different had Capethorne been represented at the hearing on 2 and 3 May 2013.
In the letter of 22 July 2013, the Tribunal specifically stated that Capethorne should provide details of the respects in which it contended that the Decision was wrong, the evidence that would have been provided had Capethorne been represented, the people who would have given it, and the submissions or arguments that would have been advanced. Capethorne did not provide any material of this nature.
Further, the Tribunal took into account materials that had been provided by Capethorne and Mr Ryan prior to the hearing on 2 and 3 May 2013 in reaching the Decision. In the Decision, the Tribunal specifically considered the report dated 23 November 2012 prepared by Mr Bell of AJB Management Services. At that time, Mr Burroughs represented Mr Ryan. The Tribunal also took into account the letter dated 28 September 2012, written by Mr Burroughs on behalf of Mr Ryan at a time when Capethorne was the agent for Mr Ryan and a respondent to Mr McRobert's case. An email from Capethorne to Mr McRobert dated 21 January 2011, in which Mr Burroughs put forward an explanation of the relationship between Capethorne and Mr Ryan, was also considered.
In addition, the Tribunal made orders on 7 December 2013 requiring Capethorne, along with Mr Ryan, to file and serve any expert reports on which they proposed to rely, and any other submissions or witness statements they wished to rely on in the proceedings. Capethorne did not provide a witness statement from Mr Burroughs (or anyone else). No expert report was provided by Capethorne, apart from the report from Mr Bell.
At the hearing on 9 August 2013, Mr Burroughs indicated that he had not been aware of the need to provide information providing a basis to consider that the Decision was, or might be, wrong. Given the terms of the Tribunal's letter of 22 July 2013, this position is untenable.
On the basis of the material before it, the Tribunal is not satisfied that there was a reasonable prospect the Decision would have been any different had Capethorne been represented at the hearing. There is therefore no basis for the Decision to be revoked or varied, even if Capethorne had a reasonable excuse for not attending the hearing.
Orders
The Tribunal makes the following order:
1.The application of Capethorne Pty Ltd pursuant to s 84 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR S ELLIS, SENIOR SESSIONAL MEMBER
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