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Sharma and Carlino

Sharma and Carlino

Case [2019] WASAT 1 2 January 2019

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SHARMA and CARLINO [2019] WASAT 1
MEMBER:   MR D AITKEN (SENIOR MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   2 JANUARY 2019
FILE NO/S:   CC 1655 of 2018
BETWEEN:   MUNISH SHARMA
UPASANA SHARMA
Applicants
AND
VINCENZO CARLINO
SERGIO DEMALI
Respondents

Catchwords:

Proceeding under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) Applicants residents of New South Wales Jurisdiction Whether there is a matter between residents of different States for the purposes of s 75(iv) of the Australian Constitution The preclusion of the conferral of jurisdiction on the Building Commissioner and the Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in a matter between residents of different States as a result of the decision in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423

Legislation:

Anti-Discrimination Act 1977 (NSW)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(c), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37, s 38, s 51, s 55, s 85
Civil and Administrative Tribunal Act 2013 (NSW)
Commonwealth of Australia Constitution Act 1900 (Cth), s 75, s 75(iv), s 76, s77(iii), Ch III
Interpretation Act 1984 (WA), s 7
Interpretation Act 1987 (NSW), s 31
Judiciary Act 1903 (Cth), s 39(2)
State Administrative Tribunal Act 2004 (WA), s 15(1), s 16(1), s 47(2), s 60(2)

Result:

Preliminary issue determined
Application dismissed

Category: B

Representation:

Counsel:

Applicants	:	In Person
Respondents	:	In Person

Solicitors:

Applicants	:	N/A
Respondents	:	N/A

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

Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423
CGU Insurance Limited v Blakely (2016) 259 CLR 339
Cox v Journeaux (1934) 52 CLR 282
Crouch v Commissioner for Railways (1985) 159 CLR 22
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Fencott v Muller (1983) 152 CLR 570
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
Momcilovic v The Queen [2011] HCA 34
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palmer v Ayres (2017) 259 CLR 478
R v Langdon; Ex parte Langdon (1953) 88 CLR 158
R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197
R v Oregan; Ex parte Oregan (1957) 97 CLR 323
Re Judiciary and Navigation Acts (1921) 29 CLR 257
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Rizeq v Western Australia (2017) 91 ALJR 707
Rochford v Dayes (1989) 84 ALR 405
Shuttleworth and Pearson [2018] WASAT 112
The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290
Watson and Godfrey v Cameron (1928) 40 CLR 446
Watson v Marshall and Cade (1971) 124 CLR 621

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding is a matter that was before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharma and Carlino

Details

AGLC: Sharma and Carlino [2019] WASAT 1
Case: [2019] WASAT 1
Decision Date: 2 JANUARY 2019

CaseChat Overview and Summary

In this case, the applicants, Sharma and Carlino, brought a complaint resolution proceeding under section 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Both Sharma and Carlino are residents of New South Wales. They filed their application before the Building Commissioner, seeking resolution of their dispute over a building service provided in Western Australia. The Commissioner referred the matter to the Supreme Court of Western Australia to determine whether the court had jurisdiction to hear the case.

The central legal issue before the court was whether there was a matter between residents of different States for the purposes of section 75(iv) of the Australian Constitution. Specifically, the court needed to determine if the Building Commissioner and the Tribunal had the jurisdiction to hear a complaint from Sharma and Carlino, both of whom were residents of New South Wales, in a matter involving a service provided in Western Australia. This issue arose from the decision in Burns v Corbett, where the High Court held that the conferral of jurisdiction on state tribunals in cases between residents of different states is precluded unless the jurisdiction is expressly conferred by the Commonwealth.

The court found that the Building Services (Complaint Resolution and Administration) Act 2011 (WA) did not expressly confer jurisdiction on the Building Commissioner and the Tribunal in a matter between residents of different states. The court relied on the reasoning in Burns v Corbett, which established that the absence of express conferral of jurisdiction in the legislation precluded the tribunal from hearing such matters. Consequently, the court held that it did not have the jurisdiction to hear the complaint brought by Sharma and Carlino under the circumstances presented.

The Supreme Court of Western Australia dismissed the application for want of jurisdiction. The court concluded that, based on the statutory provisions and the High Court's decision in Burns v Corbett, it did not have the authority to proceed with the complaint from Sharma and Carlino.

Orders