Stone and Anor and Szczepanik and Son

[2008] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION:   STONE & ANOR and SZCZEPANIK & SON [2008] WASAT 132

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   10 JUNE 2008

DELIVERED          :   12 JUNE 2008

FILE NO/S:   CC 1876 of 2007

BETWEEN:   KEITH STONE

BRIDGET STONE
Applicants

AND

SZCZEPANIK & SON
Respondent

Catchwords:

Review of decision of the Building Disputes Tribunal - Principles for review

Legislation:

Nil

Result:

The application for leave to review the decision (Order to Pay No 79/2007-08) of the Building Disputes Tribunal is dismissed

Category:    B

Representation:

Counsel:

Applicants:     Self­represented

Respondent:     Self­represented

Solicitors:

Applicants:     Self-represented

Respondent:     Self-represented

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

Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119

Wilson v Metaxas (1989) WAR 285

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicants sought an order for the decision of the Building Disputes Tribunal to be reviewed.  The applicants contended that the Building Disputes Tribunal was biased and that it had not taken into account all the information before it.  The respondent opposed the application.

2. The Tribunal found that there are no grounds for the decision to be reviewed and that the application should be dismissed.

Issue

1. The applicants (only referred to as Mr Stone) seek leave to review a decision of the Building Disputes Tribunal (BDT) (Order to Pay No 79/2007­08).  Mr Stone was awarded an amount of $2,090 in respect of rectification work that had to be done.  Mr Stone contends that the amount did not accurately reflect the remedial work that was required.

2. Mr Stone claims bias on behalf of the BDT as well as failure to take into account all the relevant information in regard to the dispute.  He contends therefore that the application for review should succeed and the matter should be heard de novo.

3. The respondent (Mr Szczepanik) opposes the application on grounds that the BDT had dealt with the issues in their entirety.  There was, according to Mr Szczepanik, no bias on the part of the BDT.  There was ample time to submit evidence and submissions to the BDT, a site inspection occurred and expert witnesses were called.  The application for review should therefore be dismissed.

Background

1. The application for leave to review the decision of the BDT was lodged with the State Administrative Tribunal (Tribunal) on 26 November 2007.  At that stage the applicant was represented by the firm Jackson McDonald.  Jackson McDonald provided in the letter dated 26 November 2008 a brief outline of why the application for review should succeed.

2. The matter was set down for an initial directions hearing on 6 December 2007 during which the time to lodge the application was extended and the BDT were ordered to provide reasons for its decision.

3. The matter was listed for a further directions hearing on 7 February 2008 and had to be adjourned again since the reasons of the BDT had not yet been received.

4. A further directions hearing was held on 6 March 2008 at which the Tribunal ordered its administrative section to make enquiries as to why the BDT had not yet complied with previous orders.

5. The BDT's reasons for decision were finally received on 2 April 2008.

6. At the directions hearing on 1 May 2008 programming orders were made for the review application to be heard on 10 June 2008.

7. The Tribunal explained to the parties that the application for review would be progressed in two phases.  The first phase is aimed solely at the question whether leave to review the decision should be granted.  If leave is granted, the parties will then be invited to make further submissions regarding the merit of the matter.  If leave is refused, the matter is concluded and the decision of the BDT is affirmed.  It is only when leave it granted that additional evidence and information may be submitted to the Tribunal since such a hearing will be de novo.

8. Mr Stone filed a submission on 15 May 2008 and enclosed therewith were letters from Trison Construction and Mr O'Meara.  There were also several photographs enclosed.

9. Mr Szczepanik filed a submission on 30 May 2008 in which he opposed the application.  The submission was prepared by Zilkens & Co.

10. The matter was heard on 10 June 2008.

11. Both parties appeared in their personal capacity at the hearing.  Both parties made further oral submissions to the Tribunal.

12. The Tribunal took all of the submissions as well as the reasons for decision provided by the BDT into account before making its decision.

Contentions in support and against leave for review

1. In his application, Mr Stone contended that leave should be granted on the following summarised grounds:

   a)The findings of the BDT were inadequate and he disagreed with it.

   b)The statement in regard to the footings of the wall was inaccurate since the trenches were not dug for purposes of the construction but for removing roots.

   c)Purported conservations between client and builder that the BDT relied on, never took place.

   d)The BDT was biased.  This is reflected in the way it treated the qualification of Mr O'Connor compared to that of Mr Rawlinson; the preference that was given to the evidence of Mr O'Connor; the comment of the BDT regarding the submission of photographs; the refusal of the BDT to allow Mr Stone to respond to the evidence of Mr Szczepanik; and the purported legal advice that was given to the builder.

2. Mr Szczepanik opposed the application for leave to review for the following summarised reasons:

   a)The general principle is that the Tribunal should be slow to grant a review of a decision of the BDT unless certain strict requirements are met.

   b)The dispute was dealt with in detail by the BDT, the parties gave evidence, they had a site inspection and its decision should be accepted.

   c)The findings of fact made by the BDT should be accepted since all the issues were fully ventilated, evidence was heard, and a site inspection took place.

   d)There was no bias on the part of the BDT - it merely preferred one expert's evidence to that of another.  The proceedings addressed all the concerns raised by Mr Stone and the BDT disposed of it with an amount to rectify certain parts of the work.

   e)There was no obligation on the BDT to allow further evidence after Mr Szczepanik had completed his evidence, unless there were compelling grounds.  In this matter there were no compelling grounds since all the evidence had been heard.

   f)There is no substance to the suggestion that the BDT gave legal advice to Mr Szczepanik.

Principles for leave to review

1. As explained to the parties during the directions hearing and at the hearing, the following principles must guide the decision of the Tribunal in regard to an application for leave to review.  These principles are usefully set out in the matter of Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 and follows previous Supreme Court decision in Wilson v Metaxas (1989) WAR 285 at 294.

2. Leave can therefore not be granted on the mere basis that an applicant is not satisfied with the decision of the BDT or on the basis that the Tribunal may have come to a different conclusion.  It is a higher test as indicated in the following principles:

3. The principles are that:

   a)It must be shown that the decision of the BDT in respect of which review is sought is wrong or at least attended with sufficient doubt to justify the grant of leave;

   b)Substantial injustice would be done if the decision is unreversed.  What constitutes substantial injustice depends on the circumstances of each case;

   c)Is there a significant question of law to be considered; and

   d)The intent and purpose of the legislation may be frustrated if ordinary principles of appeal are applied and that the Tribunal must therefore be slow to grant leave unless in cases where there is no discernable basis for the decision or where the rules of natural justice have been breached.

Consideration

1. The Tribunal will now apply the above principles to the BDT's reasons for decision to determine if there is a basis upon which to grant leave to review the decision:

   a)The Tribunal is satisfied that the BDT considered all the evidence before it prior to it coming to its decision. Although Mr Stone may have a different opinion and may feel aggrieved that his contentions were not accepted by the BDT, the Tribunal is not satisfied that Mr Stone has shown that the decision of the BDT was wrong or attended with sufficient doubt as to justify leave to review.  Mr Stone has failed to provide the Tribunal with references in the BDT's reasons for decision where it had purportedly erred.  The submissions made by Mr Stone to the Tribunal were either similar to what he contended before the BDT or, in the alternative, he had opportunity to make those submissions to the BDT.  For example, the submissions of Mr Stone in regard to the front wall, the trench for removal of roots, the grid of the fence, the quality of work on the driveway were all the subject of proceedings in the BDT.  The BDT heard all the evidence, it had the benefit of the evidence of two expert witnesses, it conducted a site inspection and it made findings of fact.  The Tribunal understands that Mr Stone may feel aggrieved, but I am not satisfied that the decision of the BDT is wrong or attended with sufficient doubt as to grant leave for the matter to be reviewed.

   b)The Tribunal is not satisfied that a substantial injustice would occur if the decision of the BDT is left unreversed.  The BDT took account of all the evidence before it and came to a decision which was well explained and motivated in its reasons for decision.  The reasons for decision are cohesive, clear and findings made by the BDT are well explained and motivated.  The BDT has addressed the evidence and explained the reasons why it preferred some evidence.  Mr Stone has not shown that a substantial injustice would occur if the leave is refused.  The Tribunal understands that Mr Stone may feel aggrieved, but that cannot be equated with a "substantial injustice".  The BDT preferred the evidence of one expert (Mr O'Connor) to another (Mr Rawlinson).  That does not constitute bias.  The BDT explained why it preferred the evidence of Mr O'Connor.  He was an inspector appointed by the BDT and the BDT found his evidence and the explanations he gave credible.  The BDT also referred to the reasons why it found that some of the concerns raised by Mr Stone was, in the light of the evidence of Mr O'Connor, not well grounded.  The BDT further preferred the evidence of Mr Szczepanik's version of events to that of Mr Stone.  That does not constitute bias but is a function of the BDT when competing evidence is heard.  The information provided to the Tribunal in these proceedings was either a repeat of information already put to the BDT or could have been made available to the BDT.  Although Mr Stone may feel aggrieved that he was not awarded more costs, the Tribunal is not satisfied that a substantial injustice flows from the decision.

   c)There is not, in the mind of the Tribunal, a significant question of law to be considered.  The hearing of the BDT was conducted in an open and transparent manner.  Parties had opportunity to place evidence before the BDT.  The reasons for decision given by the BDT do not give rise to any question of law that justifies a review.  The Tribunal is therefore satisfied that the BDT made its decision on the basis of the available information and that no questions of law remain unanswered and that no issues require reconsideration.  The Tribunal is not satisfied that Mr Stone has shown any error in law that was made by the BDT.  The test for leave to review is not whether the Tribunal might have come to a different decision - the test is whether the BDT had erred in its process of reasoning.  There is insufficient evidence to support a finding that the Board had erred in its reasoning or that a significant question of law needs to be considered.

   d)The Tribunal is satisfied that the rules of natural justice were adhered to by the BDT.  This is illustrated by the opportunity both parties had to attend the site inspection, to give evidence, to submit expert evidence, to examine evidence, and to make submissions to the BDT.  The Tribunal therefore finds that no breach of the rules of natural justice occurred.

   e)The Board did its calculation of costs for the remedial work on the basis of the recommendation put to it by the inspector and its findings of fact.  There is no reason for the Tribunal to revisit the calculation.

2. On consideration of the above grounds the Tribunal finds that the application for leave to review the decision of the BDT must be dismissed.

Order

1.The application for leave to review the decision (Order to Pay No 79/2007-08) of the Building Disputes Tribunal is dismissed.

2.The decision is affirmed.

I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER