MIKHAIL and QAQISH - [2018] WASAT 50

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MIKHAIL and QAQISH [2018] WASAT 50
MEMBER:   SENIOR MEMBER C WALLACE
HEARD:   10 MAY 2018
DELIVERED          :   22 JUNE 2018
FILE NO/S:   CC 2415 of 2017
BETWEEN:   EDDIE MIKHAIL
Applicant
AND
MUIN QAQISH
First Respondent
RAFIEK SAAD ROFAIL BADAWY
Second Respondent

Catchwords:

Application pursuant to s 84(2) of the State Administrative Tribunal Act 2004 (WA) Whether extension of time should be granted Whether reasonable excuse for lack of attendance Meaning of reasonable excuse

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1)(b), s 36(1)(c), s 49(1), s 58, s 58(2)
Interpretation Act 1984 (WA), s 61
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 67(7)
State Administrative Tribunal Act 2004 (WA), s 48(2)(b)(i), s 84, s 84(2), s84(3), s 84(5), s 85
State Administrative Tribunal Rules 2004 (WA), r 3, r 10, r 20, r 46

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant	:	Mr Boni
First Respondent	:	In Person
Second Respondent	:	Mr Vogt

Solicitors:

Applicant	:	Western Legal
First Respondent	:	N/A
Second Respondent	:	Vogt Graham Lawyers

Case(s) referred to in decision(s):

Bovilla Pty Ltd and Johnson [2012] WASAT 46
Di Virgilio v McCleary [2012] WASC 437
McRobert and Ryan [2013] WASAT 167
Menz v Border Express Pty Ltd [2012] AATA 203
Sambastian v Australian Postal Corporation [2012] AATA 822

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Mr Eddie Mikhail, lodged a building service complaint with the Building Commission (as it was then) on 11 June 2017 against Mr Rafiek Badawy, the second respondent, alleging faulty and/or unsatisfactory workmanship in respect of roof, gutters and downpipes at 33A Bowden Place in Armadale. That complaint was accepted by the Building Commission.
In early July 2107 the Building Commission raised with the applicant that a building permit had been issued in respect of the relevant works in the name of Mr Muin Qaqish. It was therefore suggested to the applicant that he ought to also lodge a complaint against Mr Qaqish. The applicant proceeded in accordance with this proposal and it appears that in or about late September 2017 the Building Commission accepted an amended complaint which included Mr Qaqish as a named respondent. Mr Qaqish is the first respondent in this proceeding.
The complaint was also amended at the Building Commission to include a second building service complaint in relation to alleged faulty or unsatisfactory tiling work. The complaint was referred to this Tribunal on 20 November 2017 pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) and was listed for an initial directions hearing on 12 December 2017. The three parties to the proceedings were notified of the directions hearing by the Tribunal's usual electronic process, that is, by sending notices via email.
At the directions hearing on 12 December 2017 only the applicant was in attendance. The Tribunal attempted, unsuccessfully, to call both respondents during the course of the directions hearing. The following orders were made on that occasion:
1.Due to the non-attendance of the respondents today, the directions hearing is adjourned to 10.30 am on 9 January 2018.
2.The applicant shall, by 8 January 2018, provide to the Tribunal and to the respondents, an expert report and quotations relied upon.
3.The respondents are placed on notice that if they fail to attend again on 9 January 2018, that the Tribunal may make final orders adverse to them in their absence without further notice to them, pursuant to s 48(2)(b)(i) of the State Administrative Tribunal Act 2004 (WA).
On 9 January 2018 again only the applicant attended the directions hearing. The Tribunal attempted to call both respondents on their mobile phones and neither party answered the phone. Therefore the Tribunal proceeded to determine the matter pursuant to s 48(2)(b)(i) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An order was made pursuant to s 36(1)(b) and (c) of the BSCRA Act requiring the respondents to pay the sum of $62,601.75 to the applicant within 28 days of the date of the order. An order was also made pursuant to s 49(1) of the BSCRA Act requiring the respondents to pay to the applicant the amount of $1,249 by way of costs incurred in the proceeding within 28 days of the date of the order.
At the directions hearing, the Tribunal had the benefit of the documentary expert evidence as to whether the works were faulty or unsatisfactory and also had before it evidence in respect to the reasonable costs which would be incurred to remedy the work. That evidence was considered by the Tribunal and then brief oral reasons were provided as follows:
SENIOR MEMBER WALLACE: … So you have two respondents, effectively. And the Building Commission has accepted the complaint in respect to both. You have the first respondent who was the registered builder. There was a building permit in their name. They didn't file any notice of ceasing as builder. The notice of cessation wasn't filed until 1 September 2017 when they knew about your complaint.
So it's extremely late in time. It doesn't really identify any basis on why there was a cessation. They say they didn't perform any work. I don't accept that. And I accept what you say. They're not here, really, to say otherwise.
…
… it is possible for two different people to both jointly be responsible for carrying on building work or a regulated building service.
…
… the second respondent was the first homeowner …
…
He admitted to the Building Commission that he supervised. And, looking at the paperwork, it certainly appears that there is a justifiable position to say both respondents were responsible for this regulated building service. Mr Badawy did admit that he has been in the building and construction industry for over a decade and he was actively involved. Now, without a full hearing, it would be difficult to ascertain who was responsible for what.
What we have is a building permit in the name of the registered builder. We don't have an adequate explanation as to why the cessation notice was provided to the local authority so late after notification of a complaint. That doesn't sit well with me. I mean, the evidence on the file is that this registered builder did undertake some of the work in question. And it appears that the second respondent, ie, the homeowner, with all the expertise in the building and construction industry was also engaged in these works.
So for the purpose of the section 48 order under the SAT Act, I'm satisfied, on the basis of the material that I have, that I have jurisdiction to make an order equally against both these respondents. They're not here, they're not engaged in the process. They're not assisting me to make that determination. But I have decided that there is certainly sufficient information here for you to have brought this application properly against both of them as evident by the fact that the Building Commission accepted your complaint against both respondents.
They could have refused to accept it. They could have rejected it in respect of one or other of the respondents. They have chosen not to. And I agree with their assessment that there was certainly sufficient information here to not have dismissed against either of these respondents. That really placed an obligation on them to come, engage in the process and, if they wanted to defend their position and say, 'I'm not the appropriate person', that's really for them to raise.
They were there at the relevant time. But they're not here. But I'm satisfied there's jurisdiction here to make orders against them. I am also satisfied that it's not appropriate to make a remedial order requiring either one or other to perform remedial works. Their lack of participation in the process indicates to me that they would not perform those works if ordered to do so.
...
Which, really, leaves the only alternative is a building remedy order which reflects (a) the reasonable costs of performing these works and they're significant and (b) an order for compensation to remedy any consequential loss or damage to the property as a result of this faulty and unsatisfactory work being performed in the first place. I have read the expert report. I think that your expert is independent and suitably qualified. They have inspected the relevant items.
They have given their view. It supports the claim that you made that the work is, indeed, faulty and unsatisfactory and that you have suffered a loss as a result. They have also provided a very detailed quote that detailed the work required, it details the number of people, the time involved. The costs are high but that doesn't surprise me when we're talking about roof, and we're talking about water ingress and we're talking about retiling bathrooms and remedying, as I said, water damage to other areas of the home.
It is not going to be inconsequential. I agree with your comment that you had another oral quote which was around the same, if not more. It doesn't surprise me. Again, the respondents haven't participated. I accept that they received this material. They have not responded. They were put on notice by my order that I issued and sent to them. That was on 12 December. I can let you know we have not heard anything from either of them. No telephone contact, no correspondence, nothing whatsoever to indicate that they would be willing to participate in this process.
I think, then, to refer it to a hearing in the absence of any expert evidence from them, any submissions from them or any involvement, would put you to significant disadvantage in the length of time that it would take to get a resolution, let alone the further additional costs to yourself. You still have to identify whether you can recover from them. So I think section 48 of the SAT Act, the State Administrative Tribunal Act, is appropriate to invoke in these circumstances.
And it's that jurisdiction I'm relying on to make an order in your favour in the amount of, as I said, $62,601, which is not only the cost to remedy the complaint items but the cost to remedy the consequential loss that you have suffered as a result of those complaint items. As I said, we have a discretion also to award costs to parties. Costs don't follow, necessarily, success in outcome. The cases say the other side need to really conduct themselves in a way that disadvantages you in a way that results in you incurring additional costs.
The fact that they're not participating, the fact that we weren't able to try and facilitate an outcome earlier, the fact that we weren't able to send the matter to a mediation before you incurred these additional expert costs, I think, has disadvantaged you. However, as I said, I think the cost of the quote itself is excessive, in my view. But I'm happy to provide a costs order in your favour for both of the reports. So the expert views that you obtained. And, as I said, that amount is $1249.
So that will be the costs element. I am making the order equally against both of the respondents. … I am going to give 28 days, okay, from today. …
(ts 7-10, 9 January 2018)
On 8 February 2018 the second respondent lodged an application with the Tribunal pursuant to s 58(2) of the BSCRA Act seeking leave to review the decision of the Tribunal dated 9 January 2018. That application was listed for a directions hearing before Senior Member Aitken on 1 March 2018 at which time the solicitor representing the second respondent was asked why his client had not made an application pursuant to s 84 of the SAT Act pursuant to which a party can seek review of a decision if it is made in the parties' absence. Following the matter being raised with the second respondent's solicitor, the Tribunal received an application pursuant to s 84(2) of the SAT Act on 7 March 2018. That application was filed out of time.
The hearing of the s 84 application was listed on 10 May 2018. The Tribunal had the benefit of both written and oral submissions filed on behalf of the applicant and the second respondent. The Tribunal also had the benefit of affidavits filed on behalf of the applicant and on behalf of the second respondent. The second respondent also gave oral evidence at the hearing. The Tribunal admitted into evidence his affidavit as Exhibit A. The Tribunal also accepted into evidence an email from the applicant dated 20 October 2017 together with its attachment as Exhibit B.
Although the second respondent also filed with the Tribunal a day before the hearing an expert report of Mr Clark Taylor of Bit Tech Information Technology Services dated 6 May 2018, the Tribunal did not accept that expert evidence as an exhibit in the proceedings.
At the conclusion of the hearing the Tribunal reserved its decision.

Issues to be determined

The issues for determination by the Tribunal are as follows:
1)Whether the Tribunal ought to exercise its discretion to grant an extension of time to the second respondent within which to make his application taking into consideration the following factors:
a)the length of the delay;
b)the reasons for the delay;
c)whether there is an arguable case; and
d)the extent of any prejudice to the other parties.
2)If an extension of time is granted, pursuant to s 84(5) of the SAT Act the Tribunal needs to consider:
a)whether the Tribunal is satisfied that the second respondent had a reasonable excuse for not attending or being represented at the directions hearing on 9 January 2018; and
b)if the second respondent has a reasonable excuse for not attending or being represented at the directions hearing, whether when reviewing the decision it is appropriate to revoke or vary it.

Relevant statutory framework

Section 84 of the SAT Act provides relevantly as follows:
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.
Rule 20 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides as follows:
Time limit for purposes of section 84(3) of Act
The time limit specified for the purposes of the Act section 84(3) is
(a)in the case of a decision other than a final decision, within 2 days of the day on which the decision was made; or
(b)within 7 days of the later of the days referred to in the Act section 105(5)(a) or (b),
whichever is the later.
In relation to an extension of time, r 10 of the SAT Rules relevantly provides as follows:
Extension of time limit
(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.

Determination application for extension of time

It is important to note that whether the Tribunal has a discretion to extend time within which to file an application pursuant to s 84 of the SAT Act has never been considered. In my view, it is open to interpret that section as imposing a mandatory period within which to make an application. Further, if my preliminary view in this regard is correct or has merit, then the requirement to comply with r 20 cannot be dispensed with pursuant to r 46 of the SAT Rules despite the earlier decision of McRobert and Ryan [2013] WASAT 167 (McRobert) in the same context doing so.
However, because neither of these issues were addressed by the parties at the hearing, I don't intend to consider them in any detail and for the purposes of this determination I have assumed that a discretion to extend time exists.
The general principles which apply to the exercise of the discretion to grant an extension of time are set out by Hall J in Di Virgilio v McCleary [2012] WASC 437 (Di Virgilio), at [38] - [41] as follows:
The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances. The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 454 Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
In O'Connor and The Town of Victoria Park Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.

It was not in dispute between the parties that the second respondent was required to file his application pursuant to s 84(2) of the SAT Act by 26 February 2018. This is because the second respondent had requested written reasons for the decision which were provided to him on 19 February 2018 and pursuant to r 20 of the SAT Rules that provided the second respondent with seven days to file his application. The second respondent has correctly calculated seven days as being 26 February 2018. It is also not in contention that the application was received by the Tribunal on 7 March 2018.
A matter of concern arises in relation to the submissions made on behalf of the second respondent in relation to the Tribunal's consideration of the length of the delay. Although the solicitor calculated the seven days within which to file the s 84 application correctly, it was submitted to the Tribunal that in calculating the period by which the application was filed late, the Tribunal ought to calculate by way of business days.
Paragraph 15 in the Second Respondent's Outline of Submissions dated 9 April 2018 provides relevantly as follows:
Accordingly given that Transcript of the reasons for decision delivered on 9 January 2018 were received by the Second Respondent on 19 February 2018, the last date for filing an application pursuant to section 84(2) of the SAT Act, was 26 February 2018. Accordingly, the Second Respondent was 5 business days out of time to make such an application, and, therefore, must obtain leave of the Tribunal to make the application out of time.
(Original emphasis)
During the course of the hearing I attempted to correct the solicitor's submission in this regard (ts 43-44, 10 May 2018):
VOGT, MR: Yes. The only other submissions that I need to make are in relation to the timing of the application and it being out of time by five days.
…
SENIOR MEMBER WALLACE: I think it was more than that …
…
VOGT, MR: But my calculation was five business days.
SENIOR MEMBER WALLACE: Well, yes, we don't calculate it that way.
VOGT, MR: No?
SENIOR MEMBER WALLACE: Within seven days.
It is unclear to the Tribunal whether the representative was attempting to mislead the Tribunal due to the inconsistent approach to the calculation of the period of delay, but it was clearly a submission that was incorrect. The second respondent cannot calculate the period of time within which to file his application in one way, and calculate the period of delay in another in an attempt to reduce the period of delay. It is abundantly clear in the SAT Rules that the reference to days is not a reference to business days. Indeed, 'business day' is a defined term in r 3 of the SAT Rules. Rule 20 clearly does not use the term 'business days'. The calculation of time for the purposes of any written law including the SAT Rules is set out in s 61 of the Interpretation Act 1984 (WA). The calculation is clearly by reference to days and in the absence of the written law specifying otherwise, is not calculated by reference to business days.
Therefore, contrary to the submissions made by the representative on behalf of the second respondent, the application made pursuant to s 84(2) of the SAT Act was in fact made nine days late. That is, the second respondent took 16 days to file his application rather than the seven days provided for in r 20 of the SAT Rules.
Despite conceding that the length of the delay is a relevant consideration that the Tribunal needs to take into consideration, the solicitor for the second respondent made no substantive submissions on this point other than an attempt at suggesting that the period was minimal. Certainly the Tribunal was not directed to any precedents in relation to the issue of length of delay. In my view, the length of the delay is significant. Effectively, the second respondent took double the period of time provided for in r 20 of the SAT Rules. The period of time within which to make the application is expressly narrow. In those circumstances the period of delay is not favourable to the Tribunal exercising its discretion.
However, I also need to take into account the other relevant factors before forming a view on whether to exercise my discretion. The second relevant consideration is the reason why there was a delay in making the application. The reason provided on behalf of the second respondent was the solicitor's inadvertence or lack of awareness of that course of action being available to his client. Indeed it was only when the option of making a s 84 application was raised by Senior Member Aitken on 1 March 2018, that the application was pursued.
In my view this is not a reason for the delay which would support the Tribunal exercising its discretion to extend time. Ignorance is rarely a reasonable excuse as to why applications have not been made. This applies even more so in the second respondent's situation because he had the benefit of legal advice and representation. He therefore was not disadvantaged in relation to considering possible causes of action available to him. The legal advice he received was to pursue an application pursuant to s 58 of the BSCRA Act. He chose to pursue that application. The failure of his solicitor to identify that he may also have the option of making an application pursuant to s 84 of the SAT Act is a matter as between the second respondent and his solicitor. But it does not and cannot be a matter in support of the Tribunal exercising its jurisdiction to extend time. In my view that would set a dangerous precedent. I am not aware of any other decisions of this Tribunal where such an explanation for delay was accepted as a factor which supported the exercise of a discretion to extend time. Indeed, the second respondent identified no such precedent to me. Therefore this relevant consideration also sways against the Tribunal exercising its jurisdiction.
Thirdly, the Tribunal needs to consider whether there is an arguable case. That is, whether the second respondent has some prospects of success in respect to the s 84 application. Because I had the benefit of a hearing in relation to the s 84 application I have all of the evidence already before me to determine whether an arguable case exists. In my view, no such arguable case exits. To avoid repetition I will not detail the full findings of the Tribunal in this regard as they will be dealt with in the next section of these reasons. However, in summary, I do not find that the second respondent had a reasonable excuse for his lack of attendance at the directions hearing on 9 January 2018.
Lastly, the Tribunal needs to consider whether in exercising the discretion to extend time, whether any prejudice would be suffered by the applicant. Certainly if the Tribunal extended time, prejudice would be suffered by the applicant. At the present time the applicant has a final order in his favour that he wishes to enforce. At the moment enforcement proceedings may be impacted both by the s 84 application and also by the s 58 application pursuant to BSCRA Act. The determination of this matter is delaying the determination of the internal review application, of all which of course impacts in a prejudicial manner on the applicant.
In summary, the Tribunal refuses to grant an extension of time to the second respondent within which he can make an application pursuant to s 84(2) of the SAT Act. However, if I am incorrect in this regard I have in any event considered and determined the s 84(2) application. That determination is set out below.

Determination of s 84(2) SAT Act application

Applications made pursuant to s 84(2) of the SAT Act require the Tribunal to be satisfied that the applicant 'had a reasonable excuse for not attending or being represented'. If the Tribunal is satisfied that a reasonable excuse exists, then it must review its earlier decision and has a discretion to revoke or vary it 'if the Tribunal considers it appropriate to do so': s 84(5) of the SAT Act.
At the hearing on 10 May 2018 there was some discussion of the McRobert decision which provides at [22]-[23] as follows:
The effect of s 84 of the SAT Act is that the Tribunal is to review the decision if it considers that Capethorn, under s 84(5) of the Act, had a 'reasonable excuse' for not being represented at the hearing …
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[.]
Therefore as is clear from a review of s 84(5), if the Tribunal is satisfied that a reasonable excuse exists for the failure to attend a hearing, the Tribunal is to review the decision made in the party's absence. The review requires the Tribunal to exercise a discretion to revoke or vary the decision 'if the Tribunal considers it appropriate to do so'.
The Tribunal's usual approach to the consideration of whether there is a reasonable excuse and the review itself, is to determine both matters at the hearing of the s 84 application. That is, the question of whether there is a reasonable excuse is not ordinarily addressed first, with a review hearing held at a later time. Although published decisions in this area are sparse, this approach is illustrated in both Bovilla Pty Ltd and Johnson [2012] WASAT 46 at [12]-[13] and in McRobert.

Reasonable excuse

There has been no previous decision of this Tribunal which looks closely at the meaning of the words 'reasonable excuse' in s 84(5) of the SAT Act. Those words are of common parlance and clearly should be given their natural and ordinary meaning. It is useful, however, to briefly consider their meaning in the context of the current determination.
The Macquarie Dictionary Online (2013) defines 'reasonable' as, amongst things:
1.endowed with reason;
2.agreeable to reason or sound judgement: a reasonable choice.
'Excuse' is defined, relevantly to this context, as 'something serving to excuse; a ground or reason for excusing'.
Although the phrase 'reasonable excuse' has not been the subject of earlier determination by this Tribunal, there is useful guidance given by decisions of the Administrative Appeals Tribunal, albeit in the context of considering different legislation. In the decision of Menz v Border Express Pty Ltd [2012] AATA 203, Senior Member Creyke, when looking at whether an excuse was reasonable when considering s 67(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), provided the following at [46]:
A 'reasonable excuse' is not defined. It is a statutory expression couched in ordinary English words. For an excuse to be 'reasonable' there must be an acceptable explanation for the failure to comply with a statutory requirement[.]
Also, offering useful guidance is the discussion set out in Sambastian v Australian Postal Corporation [2012] AATA 822, where the presiding members considered the use of the words 'reasonable excuse' in the context of the same legislation and stated at [26]:
[A]ccording to the Macquarie Dictionary the meaning of the noun 'excuse' can include 'that which is offered as a reason for being excused' as well as the objective meaning (preferred in Ganin) of 'something tending to excuse; a ground or reason for excusing', and the verb 'excuse' means relevantly 'to release from an objection or duty'. In view of the conclusion we have reached on the evidence now before us it is not necessary to choose between these two meanings of 'excuse'. The additional qualification that the excuse is to be 'reasonable' imports, in our view, a requirement that the excuse should have some justification, assessed objectively.
In relation to the application of the use of the words 'reasonable excuse' as set out in s 84(5) of the SAT Act, I note that the following is relevant:
1)The excuse provided for the failure to attend must be the reason which existed as at the date of the relevant hearing when the party was absent; and
2)The consideration as to whether the excuse is reasonable is an objective test. That is, whether the excuse justifies the absence of the person viewed objectively in the context of all of the relevant facts.
Many of the facts in relation to the reason why the second respondent failed to attend the directions hearing on 9 January 2018 are not in contention. Those facts are set out below.
The Tribunal received the referral from the Building Commission on 20 November 2017. The contact details provided by the Building Commission to the Tribunal in respect to the second respondent were limited to his address and mobile telephone number. They did not include an email contact. The Tribunal's practice is to send orders and notices by way of electronic distribution. All three parties in this matter were therefore provided communications via email. The Tribunal's practice is to identify email addresses on the basis of the email address used by a party to contact the Building Commission as evidenced by the documents provided with the referral.
In the referral documents there were a number of emails sent to both the applicant and to the Building Commission by the second respondent. Those email correspondences displayed the second respondent's email address as 'rafiq[email protected]'. Whilst there were also emails sent to the second respondent in the referral documents which utilised the address 'rafiek[email protected]' the referral documents contained no email sent by the second respondent from that address.
At the 12 December 2017 directions hearing only the applicant attended. During the course of the directions hearing the Tribunal attempted to call both of the respondents by calling the mobile telephone numbers provided as their contact details by the Building Commission. Neither of the respondents answered those calls.
The matter was then adjourned to 9 January 2018 and a warning was provided by way of order 3 notifying the respondents that if they failed to attend again that final orders may be made adverse to them in their absence without further notice to them. The order of 12 December 2017 was again sent to each of the parties by way of email correspondence using the email addresses used previously.
The second respondent's evidence was that the email address utilised by the Tribunal was not his email address and that any correspondence sent to that address was not received by him. His solicitor submitted to the Tribunal that when the second respondent's iinet account was set up either the second respondent or the service provider made an error such that when the second respondent sends an email his email address displays as being sent from '[email protected]' (second respondent Outline of Supplementary Submissions dated 7 May 2018).
Despite this technological issue, the second respondent conceded in evidence that he did receive the notices and orders from the Tribunal. In respect of the 12 December 2017 directions hearing, the second respondent received the notice on 30 November 2017. The Tribunal's email was forwarded to him by the first respondent (Exhibit A page 25). The Tribunal correspondence provided as follows:
Dear Muin Qaqish,
The following link contains correspondence from State Administrative Tribunal relating to your matter:
SAT Notice CC 2415/2017 Mikhail v Qaqish & Anor 30 Nov 2017
This email was sent from an automated address, and replies are not monitored.
If you have any queries or questions, please contact the State Administrative Tribunal:
Email             [email protected]
Phone            08 9219 3111 or 1300 306 017
In Person        565 Hay Street Perth 6000
  The reception is on level 6.
Executive Officer
30 November 2017
The second respondent's evidence was that he was not familiar with a hyperlink and did not understand that he had to click on the link to open the notice. However, the communication was clear that it contained correspondence from the Tribunal. It also set out how the second respondent could direct any queries or questions to the Tribunal. Despite knowing that there was correspondence provided by the Tribunal, the second respondent did not contact the Tribunal to identify what the correspondence was about and nor did he appear to contact either the applicant or the first respondent to discuss the matter.
The second respondent's evidence is that he did not attend the directions hearing on 12 December 2017 because he requested it to be adjourned (Exhibit A para 13). However, this is simply incorrect on the evidence. The adjournment request sent to the Tribunal by a Mr Mousa Joseph, who is not a party to the proceedings, was a request to adjourn the directions hearing listed for 9 January 2018. It was sent in response to orders sent by email to the parties on 12 December 2017 at 7.02 pm (Exhibit A page 26). This clearly could not be a request to adjourn the December directions hearing which had already taken place and orders issued to the parties. Thus the second respondent simply did not attend the 12 December 2017 directions hearing because on his evidence he could not access the hyperlink which provided him details of the date of attendance.
The second respondent clearly received the orders of the Tribunal made on 12 December 2017 as they were forwarded to him by Mr Joseph (Exhibit A para 13). Consistently with his evidence in respect to the Notice of the Tribunal dated 30 November 2017, the second respondent gave evidence that he did not understand how to use the hyperlink in order to access the orders of the Tribunal. However, the second respondent gave evidence that on 12 December 2017 he had a telephone conversation with Mr Joseph during which they discussed the correspondence received from the Tribunal and agreed that they needed to request an adjournment of the directions hearing to a date in February 2018 (Exhibit A para 13). Following that telephone discussion Mr Joseph sent the email previously referred to (Exhibit A page 26). That correspondence provided as follows:
Dear Sir Madame,
Please refer to below correspondence from the First Respondent,
We also advise second respondent will be in Melbourne until midJanuary 2018
We kindly request adjournment of hearing until February please.
Much appreciated.
Regards,
Mousa Joseph
General Manager
The email sent from Mr Joseph was sent to the address '[email protected]'. That is, Mr Joseph simply responded to the automated email sent by the Tribunal despite the contents of the correspondence stating 'this email was sent from an automated address, and replies are not monitored'. This is also despite the correspondence identifying that if there are any queries or questions that the parties could contact the Tribunal in a number of ways including by email to '[email protected]'. As such, the email correspondence from Mr Joseph was not received by the Tribunal and no response to it was ever provided. The email was copied to the second respondent.
The email to which Mr Joseph refers from the first respondent also appeared to be an email sent to the Tribunal's email account that is not monitored and is of the same date and requested an adjournment of the 9 January 2018 listing on the basis that the first respondent would be overseas until 12 January 2018.
The second respondent's evidence at the Tribunal was that although he asked Mr Joseph to contact the Tribunal and seek an adjournment of the next directions hearing, that he was unaware of the date of the next directions hearing (ts 15, 10 May 2018).
The second respondent admits that there was no email correspondence from the Tribunal in response to the request to adjourn the January directions hearing (ts 16, 10 May 2018). He also admitted that he did not make any contact with the Tribunal in order to ascertain whether the request to adjourn had been granted. He admitted that the Tribunal attempted to contact him on the day of the directions hearing but that he would never answer a telephone call from a private number or a number unfamiliar to him (ts 16-17, 10 May 2018). The second respondent conceded in evidence that he was in fact in Perth at the time of the directions hearing and was not away as previously planned (ts 27, 10 May 2018).

In summary, the second respondent's position in respect to his absence at the directions hearing on 9 January 2018 is as follows:
•Although he received correspondence from the Tribunal forwarded to him in respect to both the December 2017 directions hearing and the January 2018 directions hearing, he was unfamiliar with accessing hyperlinks and therefore did not access the correspondence.
•The second respondent made no contact directly with the Tribunal at any point to query what was happening with the proceeding or to identify the nature of the correspondence which had been forwarded to him.
•Although the second respondent conceded that the Tribunal attempted to telephone him on his mobile phone, he gave evidence that he would never answer the call because the number was private.
•The second respondent, via a person who is not involved as a party in the proceeding, requested an adjournment of the January 2018 directions hearing and believed that he would be automatically granted an adjournment.
•Although having a conversation with Mr Joseph on 12 December 2017, the second respondent did not discuss any of the details of the Tribunal proceedings including not enquiring when the matter was next listed despite discussing the need for an adjournment because of his unavailability.
•The second respondent was in fact available on 9 January 2018 to attend the directions hearing but did not because he assumed that a request to adjourn had been granted despite no correspondence to that effect having been received from the Tribunal.
In light of the above circumstances, the Tribunal is not satisfied that the second respondent had a reasonable excuse not to attend. Although the Tribunal accepts that he did not receive the notices and orders directly from the Tribunal, on his own evidence he nevertheless did receive those documents on the day that they were delivered electronically by the Tribunal. Therefore, despite much being made of the technological issues, those matters were ultimately irrelevant. The second respondent received the very correspondence he would have received from the Tribunal via Mr Joseph. The Tribunal struggles to accept his evidence that he has no knowledge of how to access correspondence via hyperlink. If he was unfamiliar he certainly did not seek any assistance from any person including not seeking assistance from the Tribunal despite receiving the correspondence which identified the ways in which he could access such assistance. He knew he was receiving correspondence from the Tribunal.
The second respondent was aware of the matter having been served with notice of the complaint by the applicant and having been involved in the matter during the period of time that it was with the Building Commission. He was aware that the complaint had been referred to the Tribunal by the Building Commission. He had a conversation with Mr Joseph on 12 December 2017 during which time, based on the second respondent's own evidence, they discussed requesting an adjournment of the January directions hearing. The evidence of the second respondent that he was unaware of the January date is disingenuous and lacks credibility. It simply makes no sense to the Tribunal that he would have a discussion about communicating to the Tribunal a request to adjourn not knowing if an adjournment was even necessary. In the Tribunal's view, the second respondent was dishonest in this evidence.
The more likely position is that the second respondent assumed that in making the request, that the adjournment would automatically be granted. He delegated the responsibility of making the request to a person who is not a party to the proceeding. He made no such request himself directly and nor did he follow up whether the request had been successful. In the circumstances it was unreasonable for the second respondent to take such a position. The Tribunal finds that he was aware of the 9 January 2018 date. If he made even the most cursory enquiries, he would have been aware of the danger of his lack of attendance on that second occasion. It was unacceptable to merely take the risk and not attend.
Lastly, before I depart from consideration of this issue, I note that the solicitor representing the second respondent has sought to submit that there has been a breach of procedural fairness on the part of the Tribunal. It was put at the hearing that the Tribunal failed to satisfy the requirement to affect the giving of notice because it was given via another person. With all due respect to the solicitor for the second respondent, the issue is misconstrued in making this submission. What the Tribunal needs to determine is whether the second respondent has a reasonable excuse for his lack of attendance. If the second respondent's position is that he never received the notices because the email address was incorrect, then that may have sufficed as a reasonable excuse. However, in circumstances where he did receive the notices, irrespective of how, that reasonable excuse is not available to him. It is not an issue of whether the Tribunal has failed in its obligation to give notice, assuming such an obligation exists; the issue is whether the second respondent has a reasonable excuse for lack of attendance.

Whether the Tribunal considers it appropriate to revoke or vary the decision

In relation to the review itself and whether the Tribunal ought to exercise its discretion to revoke or vary the decision, I note that no submissions were made on behalf of the second respondent in relation to this issue. Given that I have not been satisfied that a reasonable excuse exists, there is no need to decide this issue.

Orders

The Tribunal therefore makes the following orders:
1.The application seeking an extension of time pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) and the application pursuant to s 84(2) of the State Administrative Tribunal Act 2004 (WA) are both hereby dismissed.
2.The applicant has liberty to make any application seeking costs on or before 5 July 2018.
3.The second respondent has liberty to file and serve any responsive submissions to the costs application on or before 19 July 2018.
4.Any costs application will be determined entirely on the documents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C WALLACE, SENIOR MEMBER
22 JUNE 2018