MILLER and WHITFORD-SMITH
[2021] WASAT 97
•13 JULY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: MILLER and WHITFORD-SMITH [2021] WASAT 97
MEMBER: MS P LE MIERE, MEMBER
HEARD: 13 JULY 2021
DELIVERED : 13 JULY 2021
FILE NO/S: CC 591 of 2021
BETWEEN: WILLIAM HENRY MILLER
Applicant
AND
MATHEW WHITFORD-SMITH
BUILDING COMMISSIONER
Respondents
Catchwords:
Extension of time - Leave to review decision of Building Commissioner to accept disciplinary complaint
Legislation:
Building Act 2011 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 15, s 16, s 16(3), s 16(3)(c), s 57(2), s 58(2)
State Administrative Tribunal Act 2004 (WA), s 24
Result:
Extension of time refused
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondents | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondents | : | N/A |
Case(s) referred to in decision(s):
Neil and Legal Profession Complaints Committee [2010] WASAT 39
O'Connor and Town of Victoria Park [2005] WASAT 161
Wilson v Metaxas (1989) WAR 285
REASONS FOR DECISION OF THE TRIBUNAL:
These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression and to add legal references.
Introduction
This is an application under s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The applicant Mr William Henry Miller seeks leave to review a decision of the Building Commissioner to refuse to accept a complaint, being a disciplinary complaint against the respondent Mr Matthew WhitfordSmith.
In considering this matter I have had regard to:
•the application filed by Mr Miller;
•the bundle of documents provided by to the Tribunal pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (a copy of which was provided to the parties pursuant to an order of the Tribunal dated 18 May 2021); and
•the correspondence sent to the Tribunal by Mr Miller.
Extension of time
The notice of refusal of the Building Commissioner to accept the complaint dated 19 March 2021 informed Mr Miller of his statutory right to seek a review of the Building Commissioner's decision within 28 days of the date of the notice.
The application was filed on 22 April 2021, that is 34 days after Mr Miller received the notice that the Building Commissioner had refused to accept his complaint.
The principles applicable to an application for an extension of time to lodge a review application have been articulated by the Tribunal in previous decisions of the Tribunal.[1] The underlying consideration is whether an extension of time is necessary to provide justice between the parties.
[1] O'Connor and Town of Victoria Park [2005] WASAT 161 at [38][40].
There are no rigid or exhaustive guidelines governing the grant of leave, however, in determining the question in the context of an application for an extension of time, the Tribunal usually has regard to the length of delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the other party(s).
Even though the delay in this instance is very short, it is still outside the required 28 days. There is a need for a party to comply with the time limits or there would not be any point in having them. Even a short delay requires an explanation.
Mr Miller's explanation for the delay is that he made an error in calculating the time.
The delay is very short and neither the Building Commissioner, the second respondent nor Mr WhitfordSmith have suggested they are prejudiced by the delay.
Having regard to the matters that follow, I consider that an extension of time to seek leave for the review should be refused.
If I had been satisfied Mr Miller's application for review of the Building Commissioner's decision was wrong or attended with sufficient doubt, I would have granted an extension of time to seek leave to review the Building Commissioner's decision.
Orders Sought in the application
It is not clear what orders are sought by Mr Miller in his application. It is clear, however, that he disputes the decision of the Building Commissioner to refuse his disciplinary complaint.
On review the Tribunal stands in the shoes of the original decisionmaker and can only make orders the original decisionmaker could make.
Justice JA Chaney in Neil and Legal Profession Complaints Committee [2010] WASAT 39 discussed the powers of the Tribunal on reviewing the decision of vocational regulatory bodies, not to refer complaints to the Tribunal and the possible difficulties that could entail.
As I have concluded that leave should not be granted to Mr Miller to extend the time to seek a review of the Building Commissioner's decision to refuse the disciplinary complaint, I don't consider it necessary to consider them in this matter.
Leave to Review
It is clear that the legislature did not intend that all aggrieved complainants, should have an unfettered right to seek a review of the Building Commissioner's refusal to accept a complaint.
Section 57(2) of the BSCRA Act is designed to restrict applications for review where the Building Commissioner has formed the view that the complaint should not be accepted.
Section 15 of the BSCRA Act allows for the making of the complaint regarding a disciplinary matter:
Making complaint about disciplinary matter
(1)Subject to the regulations, a person may make a complaint to the Building Commissioner about the alleged occurrence of a disciplinary matter in relation to a registered building service provider or an approved ownerbuilder.
(2)A complaint that is both a complaint about a matter referred to in section 5(1) or (2) and a complaint about a matter referred to in subsection (1) may be dealt with by the Building Commissioner as if there were a complaint under this section and a complaint under section 5.
(3)The regulations may make provision as to who can make a disciplinary complaint.
(4)A disciplinary complaint must be made in a manner and form approved by the Building Commissioner.
Section 16 of the BSCRA Act sets out what the Building Commissioner must do upon receiving the complaint.
Preliminary decision by Building Commissioner
(1)After receiving a disciplinary complaint the Building Commissioner must decide whether, and to what extent
…
(b)to refuse to accept it.
(2)The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.
Section 16(3) of the BSCRA Act stipulates the basis upon which the Building Commissioner may refuse to accept a disciplinary complaint.
The Building Commissioner may refuse to accept a disciplinary complaint under subsection (1) if
(a)the complaint is not made in accordance with this Act; or
(b)the complaint is made more than 6 years after the alleged occurrence of the disciplinary matter; or
(c)in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance; or
(d)the matter complained about is the subject of another complaint under this Act; or
(e)an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter complained about; or
(f)the matter complained about has been the subject of a previous complaint to the Building Commissioner that has been refused.
Where the issue of leave has been consider in other contexts, the object of a requirement for leave is said to be to reduce appeals as much as possible.[2] In my view, that is the obvious intent of s 57(2) of the BSCRA Act.
[2] Wilson v Metaxas (1989) WAR 285 at 294 (Wilson)
The parties have not referred me to any previous decisions of the Tribunal in respect of applications pursuant to s 57(2) of the BSCRA Act.
The principle's applying to the granting of leave for a review or of an appeal, are, however, well-established and have been considered by the Tribunal for reviews under s 58(2) of the BSCRA Act and in its review jurisdiction generally.
In previous matters where the Tribunal had to determine the issue of leave before a matter can be brought to the Tribunal, the Tribunal has adopted the criteria for the granting of leave identified by the full court in Wilson.
The principles the Tribunal has applied in reviewing decisions of regulatory bodies to refuse to refer matters to the Tribunal can be applied with respect to the Building Commissioner refusing to accept a complaint:
In summary they are:
It must be shown that the decision in respect of which leads leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave.
In addition, that substantial injustice would be done by leaving the decision unreversed. What is a substantial injustice must depend on all the circumstances of the case.
In this context, the applicant under s 57(2) of the BSCRA Act must demonstrate that the Building Commissioner's decision to not accept the complaint was wrong, or at least attended with sufficient doubt to justify leave, and that a substantial injustice would be done by leaving the decision of the Building Commissioner unreversed.
In this application the Building Commissioner refused to accept the complaint on the basis that the matters pertaining to the complaint did not disclose the existence of a disciplinary matter or gave the Building Commissioner grounds to take disciplinary action against Mr WhitfordSmith. The Tribunal infers from this that the Building Commissioner has refused to accept the complaint under s 16(3)(c) of the BSCRA Act on the basis that it is misconceived and/or without substance.
The issues raised by Mr Miller in his complaint to the Building Commissioner are summarised in the letter to Mr Miller dated 19 March 2021 by the Director Building Compliance. They are:
•Mr WhitfordSmith had unlawfully, that is without Mr Miller's consent, entered onto Mr Miller's property on various occasions in order to carry out work on Mr WhitfordSmith's own property;
•some of the works carried out by Mr WhitfordSmith caused damage to Mr Miller's property;
•Mr Miller was told that he would need to pay costs associated with the reconstruction of a retaining wall;
•driveway access to Mr Miller's property was repeatedly blocked by tradesperson's working for Mr WhitfordSmith;
•there had been unsafe asbestos removal; and
•property of Mr Miller's had been stolen.
The Building Commissioner concluded in respect of these matters.
That while consent is generally required when accessing another person's property for the purpose of carrying out building work by the completion of a BA20A Notice and request for consent (response notice): Protection structures, party walls, removal of fences, access to land form (BA20A) (as alleged by Mr Miller), Mr WhitfordSmith may have had reasonable grounds to believe a BA20A was not required.
Mr Whitford-Smith believed he was entitled to enter on to Mr Miller's property, having first given him notice of his intent to do so, for the purpose of working on his own property pursuant to a statutory easement.
In the context of a strata complex such as here, it was reasonable for Mr Whitford-Smith to believe the consent requirements were satisfied.
In the event that a breach of the Building Act 2011 (WA) (Building Act) had occurred, decisions about whether to prosecute a person for Building Act breaches is a matter for a building permit authority, such as the City of Melville to consider and not a matter for the Building Commissioner.
The allegation concerning the unsafe removal of asbestos is a matter that would be something for WorkSafe Western Australia to consider.
An allegation of theft is a matter for the police.
Mr Miler's submissions
From the matters raised by Mr Miller in his correspondence/submissions to the Tribunal, his main areas of concern appeared to be concerning Mr WhitfordSmith entering onto his property and the destruction by Mr WhitfordSmith of the boundary wall.
Mr Miller alleges that Mr WhitfordSmith entered onto his property on a continuous basis. The part of Mr Miller's property he alleges Mr WhitfordSmith entered is his driveway. Mr WhitfordSmith does not deny that he entered onto Mr Miller's driveway.
Originally, the properties now owned by Mr Miller and Mr WhitfordSmith were one block which were then divided into two surveystrata blocks. Mr Miller has the back block or what is commonly referred to as a 'battleaxe block'. Mr Miller's driveway runs down the side of Mr WhitfordSmith's property and provides access to that side of Mr WhitfordSmith's house.
Other than Mr Miller's belief that Mr WhitfordSmith has acted illegally and improperly and should face the consequences of his actions Mr Miller has not identified any substantial injustice that would flow from leaving the decision of the Building Commissioner unreversed.
The evidence the Building Commissioner relied upon
Prior to the decision to refuse to accept the complaint, the Building Commissioner invited Mr Miller to lodge a building service complaint regarding damage to his property. He has not done so.
The allegation regarding Mr Miller's driveway being blocked was not specifically addressed in the grounds for refusing his complaint.
The Building Commissioner, however, seems to have considered this issue in correspondence with Mr Miller. In any event, the various incidents described by Mr Miller would not appear on their face to be a matter that would warrant disciplinary action.
There is evidence by way of emails between Mr WhitfordSmith and the City of Melville to support the Building Commissioner's the view that Mr WhitfordSmith had a reasonable belief that he was entitled to enter upon Mr Miller's property pursuant to a statutory easement attached to strata complexes.
With respect to Mr Miller's complaint that Mr WhitfordSmith demolished a boundary wall. Mr WhitfordSmith alleges he had Mr Miller's permission to remove the boundary wall as it was in a state of disrepair and was damaged by roots from a tree on Mr Miller's property. Mr WhitfordSmith provided the Building Commissioner with a letter from a witness who says they were present when Mr Miller agreed to the removal of the wall.
The Building Commissioner formed the view that there was insufficient evidence of any wrongdoing by Mr WhitfordSmith regarding the boundary wall complaint to constitute grounds to take disciplinary action against Mr WhitfordSmith.
I find the decision of the Building Commissioner to refuse to accept the disciplinary complaint by Mr Miller against Mr WhitfordSmith is not attended with sufficient doubt to justify a grant of leave for review and that no substantial injustice would be done by leaving the decision unreversed.
Orders
The Tribunal orders:
1.The application for leave to extend the time to review the decision of the Building Commissioner to accept the complaint dated 19 March 2021 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
29 JULY 2021
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