Smith and Owners Of Strata Plan No 46493
[2015] WASAT 63
•9 JUNE 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: SMITH and OWNERS OF STRATA PLAN NO 46493 [2015] WASAT 63
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 9 JUNE 2015
FILE NO/S: CC 1993 of 2012
BETWEEN: BRIAN SMITH
Applicant
AND
OWNERS OF STRATA PLAN NO 46493
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Internal review proceedings Whether Tribunal has power and should make consent orders giving effect to parties' settlement Effect of consent orders being to set aside decision sought to be reviewed and an earlier decision determining a jurisdictional issue
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 38, s 58, s 58(2), s 58(5)
State Administrative Tribunal Act 2004 (WA), s 29, s 56, s 56(1), s 58, s 105
Result:
Application refused
Summary of Tribunal's decision:
The applicant in review proceedings applied for the Tribunal to make consent orders pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA) disposing of the review proceedings, in terms which required the decision under review, and an earlier decision on a jurisdictional issue, to be set aside.
The Tribunal referred to the principles to be applied in relation to such an application and found that it had a discretion whether or not to make the orders, which should be exercised only if it was appropriate to do so. The Tribunal found that it had no power to make the orders sought, as its powers upon review were preconditioned by the grant of leave and leave had not been granted. The application was accordingly dismissed and the matter listed for directions to determine how the matter should best proceed.
Category: B
Representation:
Counsel:
Applicant: Mr J F Park
Respondent: Mr R Cullen
Solicitors:
Applicant: Park Linfoot Legal Solutions
Respondent: Cullen Babington Macleod
Case(s) referred to in decision(s):
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79
Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 326
Filimon and Rimmer [2013] WASAT 13
Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Owners of Strata Plan No 46493 and Smith [2012] WASAT 218
Owners of Strata Plan No 46493 and Smith [2012] WASAT 41
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 29 November 2011, the respondent made a complaint to the Building Commissioner under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The complaint was referred to the Tribunal for determination pursuant to s 11(1)(d) of the BSCRA Act.
The Tribunal, as then constituted, directed that there be a hearing of preliminary issues whether, in effect, the complaint had been made in time, the applicant was the correct respondent as being the person who carried out the relevant building services, which goes to its jurisdiction of the Tribunal, and whether or not the preliminary action requirements were met and were invalid. The Tribunal's reasons for decision were published on 24 February 2012: see Owners of Strata Plan No 46493 and Smith [2012] WASAT 41 (first decision). The Tribunal determined that the complaint was made within time, that the applicant was the registered building service provider who carried out the regulated building service in issue, and that the preliminary action and complaint form were valid and effective.
The matter was subsequently listed for hearing to determine the remaining issues, which were whether or not the regulated building service had been carried out in a manner which was faulty or unsatisfactory or in a manner which was not proper and proficient, and if so, the amount to be awarded to the respondent in respect of the costs of remedying the building service. The Tribunal, which was reconstituted for the purposes of the further hearing, handed down its decision which is reported in Owners of Strata Plan No 46493 and Smith [2012] WASAT 218 (second decision). By application lodged on 29 November 2012, the applicant applied for a review of the second decision pursuant to s 58(2) of the BSCRA Act.
Unless expressly stated or the context indicates otherwise, all further references to sections or parts of legislation are to sections or parts of the BSCRA Act.
Section 58(5) expressly provides that an application for review under s 58(2) cannot be made unless the Tribunal, constituted by a Judicial Member, or a Senior Member who is a legally qualified member, and such other members, if any, as the President considers appropriate, gives leave. Consequently, the matter was listed for hearing of an application for leave on 19 March 2013. At the hearing of the leave application, the Tribunal was informed that the applicant had applied to the Supreme Court pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for leave to review the first decision, on the basis that the Tribunal had incorrectly found that the applicant was the registered building service provider who had carried out a regulated building service and that the Tribunal therefore lacked jurisdiction.
It was, and remains, unclear to the Tribunal as to the basis upon which the application to appeal was made to the Supreme Court instead of by way of application for leave to review pursuant to s 58(2). Although the determination had been in respect of preliminary issues going to jurisdiction, the consideration of jurisdiction is a matter which has to be considered by the Tribunal in the exercise of any jurisdiction bestowed by an enabling Act. On the face of it, the Tribunal would appear to have been exercising the jurisdiction given to it under s 38, with the consequence that a review would appear to lie under the mechanism provided under s 58. In any event, upon becoming aware of the Supreme Court appeal, the Tribunal directed that the review proceedings be stayed pending determination of the proceedings before the Supreme Court. The Supreme Court proceedings did not proceed with any expedition, it appears, because the parties entered into settlement negotiations.
The Tribunal is now informed that the parties have entered into a settlement agreement. The settlement agreement has not been furnished to the Tribunal but the applicant has applied to the Tribunal for the making of two consent orders. The consent orders proposed are as follows.
Firstly in matter number CC 1993 of 2012 which is these review proceedings:
1.The applicant be given leave to, and does withdraw these proceedings.
2.These proceedings be dismissed.
3.All extant costs Orders be dismissed.
4.There be no orders to costs.
Secondly in relation to the proceeding the subject of the proposed review, being matter CC 32 of 2012:
1.The orders made on 24 February 2012 against the respondent be set aside. (This is a reference to the orders made by the Tribunal pursuant to the first decision parenthesis added).
2.The orders made on 31 October 2012 including the judgment against the respondent be set aside. (This is a reference to the second decision, the subject of the review proceedings parenthesis added).
3.The applicant be given leave to, and does, withdraw these proceedings.
4.These proceedings be dismissed.
5.All extant cost orders be dismissed.
6.There be no order as to costs.
The applicant has filed extensive written submissions in support of the application. It is submitted that the above orders will give effect to the settlement agreement between the parties. The submissions were filed pursuant to leave granted by the Tribunal enabling the parties to file submissions in support of the minute of proposed consent orders filed, or any other minute of proposed consent orders which the parties might agree and which are filed with the Tribunal. No further consent orders have been filed.
The issues to be determined
1)Does the Tribunal have power to make the orders sought?
2)If so, is it appropriate to exercise that power to make the orders sought?
Conclusion
For the reasons which follow, the Tribunal has concluded that it does not have power to make the orders sought and it is obviously therefore not appropriate to make the orders. Although the Tribunal has come to this conclusion, the general principles for which the applicant contends in its submissions are accepted, as discussed below, so that it may be possible for the Tribunal to grant orders in a different form which include that leave be granted for the review proceedings. The matter will be listed for a further directions hearing to address how the matter is to proceed.
Does the Tribunal have power to grant the orders sought?
Section 56 of the SAT Act provides:
(1)If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement.
(2)The Tribunal cannot make an order under subsection (1) unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
In Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 (Erujin) Senior Member Parry, as he then was, held that s 56(1) of the SAT Act conferred a power to be exercised at discretion based on the language of the section and from the nature of the function conferred on the Tribunal in determining an application to review a planning decision which involved the application of public law and the exercise of a statutory discretion to produce the correct and preferable decision. That conclusion was expressly approved in the subsequent appeal decision by Allanson J in Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 326 at [43]. I consider that conclusion to be apt in the case of a review under s 58(2). Although matters under this legislation involve disputes between citizens there is a public interest in the finality of litigation which is reinforced by the right of review being preconditioned by the grant of leave. There is also a public interest in the maintenance of final judgments and orders properly made because the administration of justice and good repute of a Court or Tribunal is not advanced by final orders being set aside at the whim of the parties.
The question of the exercise of that discretion is discussed further below. For the present, the focus is on the power of the Tribunal to make the orders sought. Clearly, under s 56 of the SAT Act, the Tribunal has power to give effect to the terms of an agreed settlement between the parties but it must also have power to make a decision in the terms of the agreed settlement or in terms that are consistent with it.
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision: s 29 of the SAT Act. However, in a review under s 58 of the SAT Act, that review power may only be exercised, if leave to review the decision has first been granted. Leave to review is not granted lightly: see the criteria and principles discussed in Filimon and Rimmer [2013] WASAT 13 and in particular the conclusion at [18] that because the hearing is a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted and because it is inconsistent with the Tribunal's objects to contemplate the grant of leave simply because a ground of review is arguable and therefore some doubt about the correctness of the decision proposed to be reviewed is established.
Notwithstanding the manner in which the orders sought have been formulated, they include the making of orders that the first decision and the second decision be set aside. The first decision is not the subject of any application for leave to review by the Tribunal. An application has been made for leave to review the second decision in the current proceedings but that leave has not been granted. In these circumstances, I find that the Tribunal does not have power to make the orders sought. The Tribunal would have power to make orders in an appropriate form which included an order that leave be granted in respect of the second decision.
The exercise of the discretion to make orders in terms of or in consistent terms with an agreed settlement
As referred to above in the Erujin decision, there is a public interest factor to be taken into account in determining whether or not to make orders in terms of an agreed settlement or in terms that are consistent with the settlement.
The principles to be applied by a court, and by analogy the Tribunal, are discussed in Australian Competition and Consumer Commission v Ticketek Pty Ltd [2011] FCA 1489 (22 December 2011) (Ticketek) by reference to a number of decided cases. Reference is made to a decision of French J in Australian Competition and Consumer Commissionv Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [18] where the following is stated by His Honour:
The question whether an undertaking is to be accepted or a consent order made is not concluded by a finding that it is within the power of the Court to do so. The power of the Court to make the orders sought is 'defined and conferred by public law not by private agreement' Fiss, 'Against Settlement' (1984) 93 Yale Law Journal 1073. In the exercise of that power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. This principle applies to the resolution of private litigation by consent orders or undertakings. A fortiori it applies to proceedings brought by the Crown or public or statutory authorities to enforce the law in the public interest. The Court has a responsibility to be satisfied that what is proposed is not contrary to the public interest and is at least consistent with it … Consideration of the public interest, however, must also weigh the desirability of non-litigious resolution of enforcement proceedings.
Reference is also made in Ticketek to the decision of the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. The Full Court stated at [298] and [299]:
We agree with the statement made in several of the cases cited that it is not actually useful to investigate whether, unaided by the agreement of the parties, we would have arrived at the very figure they propose. The question is not that; it is simply whether, in the performance of the Court's duty under s 76, this particular penalty, proposed with the consent of the corporation involved and of the Commission, is one that the Court should determine to be appropriate.
The Full Court further stated at [291]:
… a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.
These decisions address the making of consent orders in the context enforcement proceedings. The principles may nevertheless be applied, with necessary changes, to the making of consent orders under s 56 of the SAT Act. In the context of review proceedings under s 58 of the SAT Act which are preconditioned by the grant of leave, it is self-evident that the Tribunal must determine that it would be appropriate to grant leave. The Tribunal has a responsibility to be satisfied that what is proposed is not contrary to the public interest that decisions of the Tribunal in the exercise of jurisdiction under the BSCRA Act are final unless a case can be made for the grant of leave. That does not mean that the Tribunal should determine the merits of the leave application, but it should be satisfied that there is a sufficient basis for it to be appropriate to grant leave, taking into account, if it is the case, as in this matter, that the parties are legally represented and are able to understand and evaluate the desirability of agreeing to a settlement: see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 at [12], and at [14] where Justice French stated:
This approach for the making of consent orders does not require exacting enquiry into the basis of every such order that is sought.
Orders
In the circumstances, orders will issue in the terms set out below, dismissing the application for the making of the consent orders as presently sought. The orders will, however, include that the matter be listed for a further directions hearing in order to canvass with the parties how the matter may be best progressed.
The Tribunal will accordingly cause orders to issue as follows:
1.The application for the making of consent orders in accordance with the minutes filed on 23 October 2014 is refused.
2.The matter is listed for a directions hearing on 23 June 2015 at 9.30 am.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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