MIKHAIL and QAQISH

Case [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

  1. 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. 

  2. 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.

  3. 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.

  4. At the directions hearing on 12 December 2017 only the applicant was in attendance.  The Tribunal attempted,…

Continue reading MIKHAIL and QAQISH

Sign in free to access the full text

Details
AGLC
MIKHAIL and QAQISH [2018] WASAT 50
Case
[2018] WASAT 50
Decision Date

CaseChat Overview and Summary

In this matter, Mikhail and Qaqish applied for an extension of time to apply for a review of a decision made by the State Administrative Tribunal (WA) in their absence. The application was brought pursuant to section 84 of the State Administrative Tribunal Act 2004 (WA). The key issues before the Tribunal were whether an extension of time should be granted and if the applicants had a reasonable excuse for their lack of attendance at the hearing. The definition of 'reasonable excuse' and its application to the facts of this case were also considered.

The Tribunal examined the evidence provided by the applicants regarding their failure to attend the hearing and whether they had a reasonable excuse for their absence. The Tribunal found that the applicants' excuse was not reasonable as it was not objectively justified in the context of all the relevant facts. The Tribunal concluded that the applicants had not demonstrated that they had taken all reasonable steps to ensure they were aware of the hearing and had not shown any compelling reason for their failure to attend.

As a result, the Tribunal dismissed the application for an extension of time and denied the applicants' request for a review of the decision made in their absence. The Tribunal's decision was based on the lack of a reasonable excuse for the applicants' absence and the failure to comply with the time limits set out in the State Administrative Tribunal Act 2004 (WA) and the State Administrative Tribunal Rules 2004 (WA). The applicants were not granted an extension of time, and the decision made in their absence stood.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

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; and2)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.rofail@iinet.net.au'. Whilst there were also emails sent to the second respondent in the referral documents which utilised the address 'rafiek.rofail@iinet.net.au' 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.