THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152 and HANSSEN PTY LTD - [2021] WASAT 102

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152 and HANSSEN PTY LTD [2021] WASAT 102
MEMBER:   MR D AITKEN, SENIOR MEMBER
MS R PETRUCCI, MEMBER

HEARD:   28 APRIL 2021
DELIVERED          :   4 AUGUST 2021
FILE NO/S:   CC 900 of 2020
BETWEEN:   THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152
Applicant
AND
HANSSEN PTY LTD
First Respondent
BUILDING COMMISSIONER
Second Respondent
CSM (WA) PTY LTD TRADING AS CUSTOM STRATA MANAGEMENT
Third Respondent

Catchwords:

Building complaint - Building Commissioner refusal to accept complaint on basis complaint made out of time - Application for leave to review decision of Building Commissioner's refusal to accept complaint - Time limit to make complaint - When is complaint 'made' - Whether intention to make complaint is sufficient - Proper construction of s 5(6) and s 6(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Tribunal powers under s 92 of State Administrative Tribunal Act 2004 (WA) - Relief from procedural requirements - Extend or abridge a time limit to make complaint - Words and Phrases: 'accompanied by' and 'made'

Legislation:

Builders' Registration Act 1939 (WA)
Building Services (Complaint Resolution and Administration Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(6), s 5(6)(a), s 5(6)(b), s 6, s 6(1), s 7, s 57(2), s 85
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 9, s 29(1), s 29(3)(a), s 29(3)(c)(i), s 92, s 92(1), s 92(4)
State Administrative Tribunal Rules 2004 (WA)

Result:

Application for leave refused
Decision of Building Commissioner affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr L.C.A. Palmos
First Respondent	:	Mr L. Swanson
Second Respondent	:	Mr J. Derby
Third Respondent	:	Mr J.N. O'Meara

Solicitors:

Applicant	:	Palmos Legal
First Respondent	:	Hotchkin Hanly Lawyers
Second Respondent	:	Department of Mines, Industry, Regulation and Safety
Third Respondent	:	Pragma Lawyers

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

Bailey and Legal Profession Complaints Committee [2011] WASAT 164
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484
De Campo and J-Corp Pty Ltd T/As Oswald Homes [2013] WASAT 143
Lee and Commissioner of State Revenue [2007] WASAT 271
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1
Owners of Island Apartments Strata Plan 52587 and Pindan Pty Ltd [2017] WASAT 25
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Brown [1996] 1 AC 543
SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51
The Owners of 39-40 Onslow Road, Shenton Park and C&I Constructions Pty Ltd [2014] WASAT 123
Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This case concerns the click of a button.[1] The applicant contends that 'on 21 May 2020 [it] clicked all of the buttons required'[2] to successfully make a complaint to the second respondent (Building Commissioner)[3] against the first respondent (builder).
[1] Exhibit 1, Hearing Book at page 61, Applicant's Outline of Submissions.
[2] Ibid.
[3] The Executive Officer of the Department of Mines, Industry Regulation and Safety is the Building Commissioner for the purposes of the BSCRA Act (s 85 of the BSCRA Act).
The Tribunal is required to determine whether the applicant (strata company), or the third respondent (strata manager) on behalf of the strata company, made a building service complaint with the Building Commissioner within the six year time limit imposed by s 6(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
A person may make a complaint within certain time limits to the Building Commissioner, about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (s5(1)and s 6(1) of the BSCRA Act and reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (complaint). Section 3 of the BSCRA Act provides that a regulated building service includes a building service carried out by a registered building service provider.
It is common ground that a regulated building service was carried out by the builder at 52 Mill Point Road, South Perth (property), being the construction of a residential strata apartment building (strata complex). It is also common ground that the strata company engaged the strata manager to manage the strata complex.
Under instruction from the strata company, the strata manager undertook to make a complaint against the builder to the Building Commissioner in respect of the construction of the strata complex.
The parties agree that if the strata company, or the strata manager on behalf of the strata company, made a complaint against the builder to the Building Commissioner on or before 23 May 2020,[4] then a complaint will have been made within the six year statutory time limit imposed by the BSCRA Act (within time).
[4] The terms 'make' and 'lodge' (and other variations) were used interchangeably by the parties. Nothing turns on the term(s) used. However, for consistency, we have used the term 'make' throughout these reasons for decision as that is the term used in s 6(1) of the BSCRA Act.
The strata company's position may be summarised as follows:[5]
[O]n 21 May 2020, the steps that were taken, in the context of what was said on that particular lodgment website, are such that the correct and preferable decision is to conclude that the making of that payment, the taking of those steps and the belief that our client had - or the client's agent had, in light of what was in front of them on the screen, are such that it ought to amount to a finding that the complaint was made on that date, and therefore within time.
[5] ts 111, 28 April 2021.
The strata manager's position is also that a complaint was made within time. Counsel for the strata manager states that the interests of the strata manager are largely aligned with those of the strata company and that the strata manager relies on the evidence of the strata company in thisproceeding.
The builder's position is that no complaint was made within time.
In compliance with orders of the Tribunal, the Building Commissioner filed with the Tribunal a Statement of Reasons for its decision.[6] TheBuilding Commissioner made Mr John Lawrence O'Sullivan, Manager Application Support and Maintenance in the Business Innovation Directorate of the Department of Mines, Industry Regulation and Safety (DMIRS)[7] available to assist the Tribunal. Otherwise, theBuilding Commissioner did not take an active part in the proceeding.
[6] Exhibit 1, Hearing Book at pages 196-197.
[7] DMIRS is the department of the Public Service that principally assists the Minister in the administration of the BSCRA Act.
A person aggrieved by a decision of the Building Commissioner to refuse to accept a complaint, may apply to the Tribunal, provided leave is granted, for a review of the decision under s 57(2) of the BSCRA Act.
On 30 July 2020, the strata company filed its application under s 57(2) of the BSCRA Act seeking the following orders from the Tribunal:
•leave for the strata company to apply for a review of the Building Commissioner's decision of 7 July 2020 which refused to accept building complaint BC2020-939;
•set aside the decision of the Building Commissioner made on 7 July 2020 refusing to accept building complaint (BC2020-939) lodged on 21 May 2020 and substitute by a decision of the Tribunal that the complaint be accepted;
•costs;[8] and
•other orders as the Tribunal sees fit.
[8] At the conclusion of the hearing, it was explained that if a party wishes to apply for costs, the party should notify the Tribunal within 14 days of the Tribunal publishing its decision in order for a directions hearing to be called to make programming orders (ts 125-125, 28 April 2021).
The builder opposes the orders sought by the strata company and submits that the application should be dismissed.
Counsel for each of the parties agree there are two issues to be determined by the Tribunal as follows:
Issue 1: Did the strata company, or the strata manager on behalf of the strata company, make a complaint to the Building Commissioner within the time limit imposed by s 6(1) of the BSCRA Act (thatis, on or by 23 May 2020)?
Issue 2: If 'no', does the Tribunal have the power under s 92 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to extend the time limit imposed by s 6(1) of the BSCRA Act for the strata company, or the strata manager on behalf of the strata company, to make a complaint to the Building Commissioner?
Counsel for the strata company submits that both issues are to be answered 'yes'. Counsel for the builder disagrees and submits that both issues are to be answered 'no'.
If the answer to either of the above issues is 'yes', it follows that the Tribunal will grant leave to the strata company under s 57(2) of the BSCRA Act and under the Tribunal's review jurisdiction in s 29(3)(c)(i) of the SAT Act, the decision of the Building Commissioner under review will be set aside and substituted with a decision that a complaint was made within time.
However, if the answer to both issues is 'no', it follows that leave will not be granted to the strata company under s 57(2) of the BSCRA Act and that under the Tribunal's review jurisdiction in s 29(3)(a) of the SAT Act, the decision of the Building Commissioner under review will beaffirmed.
The matter was heard on 28 April 2021. Counsel for each of the parties attended the hearing in person. There were two witnesses. Ms Caitlin Louise Henry was called as a witness by the strata company. Ms Henry's witness statement is dated 21 October 2020 and was filed with the Tribunal. At hearing Ms Henry confirmed the contents of her statement. As noted above at [10], the Building Commissioner made Mr O'Sullivan available to the Tribunal. His witness statement is dated 19 January 2021 and was filed with the Tribunal. At hearing, Mr O'Sullivan confirmed the contents of his statement. The witness evidence is summarised below at [24] to [35]. Following the hearing, the Tribunal reserved its decision.
For the reasons given below, we conclude that the answer to both issues is 'no'. That is, a complaint was not made within time and that s 92 of the SAT Act does not allow the Tribunal to extend the time period to make a complaint under the BSCRA Act. This means we:
a)refuse the strata company's application for leave under s 57(2) of the BSCRA Act; and
b)affirm the Building Commissioner's decision of 7July2020 pursuant to s 29(3)(a) of the SAT Act.

Relevant events and correspondence

We start by setting out the relevant events and correspondence in this matter which are uncontroversial:[9]
[9] Applicant's Outline of Submissions in support of an application for review of decision dated 7 July 2020 at paras 5 to 17 (Hearing Book at pages 62-64) and the Second Respondent's Response to the Applicant's Submissions dated 20 October 2020 at paras 10 to 31 (Hearing Book at pages 158 to 162).
1)The builder carried out building works at the property (the construction of the strata complex).
2)On 23 May 2014 a Notice of Completion in respect of the strata complex was lodged with the City of South Perth.
3)On 23 April 2020, Ms Joanne Dunn, Senior Strata Manager, of the strata manager emailed to the builder a Scott Schedule setting out a list of 51 items proposed for the builder to remedy (Scott Schedule). Later that day, Ms Vivienne Tiori, an employee of the builder, by email to Ms Dunn confirmed receipt of the Scott Schedule.
4)On 5 May 2020, Mr Darren Linton, General Manager, for the builder emailed Ms Dunn requesting a complete report with photos showing where each of the 51 items was located.
5)On 9 May 2020 Mr Linton emailed to Ms Dunn an annotated table indicating a willingness to negotiate on specific items and that other items were not the responsibility of the builder but were rather building maintenance.
6)On 14 May 2020 Ms Dunn emailed Mr Linton seeking confirmation that the builder has 'no intention to remedy all the items on the proposed notice of complaint'.[10] Mr Linton replied by email to Ms Dunn wherein he stated that the builder did not believe it was responsible for all 51 items in the Scott Schedule. Later, on the same date, Ms Dunn wrote to the builder (by email to Mr Linton) stating that the council of the strata company had instructed her to make a complaint to the Building Commissioner. In that letter, Ms Dunn stated:
[10] Exhibit 1, Hearing Book at page 234.
Please accept this letter as 14 days' notice of the intention that the strata company will be lodging the proposed notice of complaint (Building Complaint) along with an expert witness report and photos of each line item.
7)On 21 May 2021, Ms Henry, Administration Manager, of the strata manager used the DMIRS online system for making a complaint (DMIRS online system). From the DMIRS online system a receipt (tax invoice) was printed reflecting payment of $119 on 21 May 2021 with the description 'Dispute Application Complaint Fee Reference: 999215517'. The tax invoice also shows a 'Bank Receipt Number' 53808495013. The 'Building Commission Reference Number' 999215517 is provided twice on the tax invoice.
8)On 27 May 2020 DMIRS refunded $119 with reference 999215517 to a 'Bradley R Dunn'.
9)On 12 June 2020, Ms Henry by email to the Building Commissioner (the email was not addressed to a specific employee of DMIRS) provided a copy of two building permits in respect of the property.
10)On 18 June 2020, Ms Louise Priest, Team Leader Complaints, DMIRS emailed Ms Henry. In her email, Ms Priest referred to their earlier telephone conversation that day and provided a link to download the Building Commissioner's approved complaint form. Further, Ms Priest stated:
It appears your original complaint was not lodged. Whilst payment was successful the complaint form was not submitted. Therefore your complaint fee was refunded on 27 May 2020.
11)On 19 June 2020, Ms Henry emailed Ms Priest referring to their telephone conversation of the previous day and attached the downloaded complaint form (19 June form). In her email, Ms Henry stated in part:
With reference to the above Dispute Application which I understood to be lodged online on the 21^st May 2020, you have kindly brought to my attention that whilst payment of the fee was successful, the complaint form was not lodged with the [DMIRS]. This application was my first lodged using the online system and I have obviously misunderstood that there were more steps required in order to successfully lodge the application.
I have now attached the completed [19 June form] and credit card details for payment. It would be greatly appreciated if the application could be backdated to 21^st May 2020, as this is the date that I thought it had been lodged originally.
12)In reply, on 26 June 2020, Ms Priest by email to Ms Henry stated in part:
Reference is made to the complaint lodged … which was received on 19 June 2020.
It is noted that you attempted to lodge the complaint online on 21 May 2020 however the lodgment was not finalized. The complaint application fee was processed however the complaint form and documentation was never lodged. Therefore the complaint fee was subsequently refunded on 27 May 2020.
You have now provided the complaint documentation and requested that the complaint date be backdated to 21 May 2020, when you originally attempted to make the complaint.
…
A complaint cannot be considered more than six years after completion of the work. Therefore as the complaint documentation was not received by Building and Energy until 19 June 2020 the complaint has been made 'out of time'. Your complaint cannot be backdated.
…
Please note: I have not processed the complaint fee for lodgment of this complaint.
13)On 29 June 2020, Ms Dunn emailed Ms Priest requesting the 'application be dated the 21 May 2020 as this is the date the application was submitted to DMIRS along with payment'. Further, in the email, Ms Dunn asked:
Further - if the payment was received by your department and a refund was provided on 27^th of May, why didn't anyone ring us to ask 'what the fee is for'?
14)On 1 July 2020, Ms Priest emailed Ms Dunn in relation to her query 'what the fee is for?' (as set out above). Ms Priest advised that when the prescribed fee is paid, DMIRS does not receive any contact information or identifying information to ascertain the parties or the property associated with the payment made. Because of this, Ms Priest stated that DMIRS does not have any details to contact the payer.
15)Later, on 1 July 2020, Ms Dunn emailed Ms Priest where she stated that at the time of lodgement, the online application method was the only method available to make a complaint, as DMIRS was not accepting any paper lodgments due to COVID-19. Ms Dunn concluded her email stating:
I believe based on all of the information that [Ms Henry] has provided, there is enough evidence that the application was submitted on the 21^st of May 2020 (within time) by our office but, not received by your department. I can understand that the legislation is very strict in relation to applications being accepted within time however we believe that the application was lodged within the prescribed time.
16)On 2 July 2020, Ms Priest emailed Ms Dunn where she stated in part:
We acknowledge receiving the payment for the complaint application fee and recognise that this was received on 21 May 2020 when the attempt was made to make the complaint. However, no documentation or complaint information was received on 21 May 2020 by Building and Energy [DMIRS] therefore we consider that the complaint was not lodged.
My intention is to now refer the matter to the Building Commissioner's delegate, Peter Verrall, for determination.
17)On 7 July 2020, Mr Peter Verrall, Complaints Manager, DMIRS wrote to Ms Dunn advising that 'complaint BC2020-939' was received on 19 June 2020 and was refused under s 7 of the BSCRA Act because it was not made within time.
18)On 11 September 2020, Mr Verrall issued a 'Statement of Reasons for Decision' for refusing complaint BC2020-939. In that statement Mr Verrall writes that the complaint form provided by the strata manager was dated 21 May 2020 however it was not received by the Building Commissioner until 19 June 2020.

Agreed material facts

In the context of the relevant events and correspondence, as set out above, we find the following material facts. They are agreed by the parties and are uncontroversial:
1)The builder carried out a regulated building service at the property (construction of the strata complex) and therefore a complaint could be made in this case, provided it was made within time (see further below).
2)The date of completion for the building works for the strata complex was 23 May 2014.
3)For a complaint to be made within time in this case, a complaint must have been made on or before 23 May 2020.
4)Ms Henry, for the strata manager, and on behalf of the strata company, intended to make complaint on 21 May 2020.
5)Ms Henry, for the strata manager, paid the prescribed fee of $119 via the DMIRS online system on 21 May 2020. On 27 May 2020 that amount was refunded to a 'Bradley R Dunn'.
6)On 18 June 2020 Ms Priest emailed to Ms Henry a link to download the Building Commissioner's approved form (building complaint form) for lodgement of a complaint relating to a regulated building service.
7)On 19 June 2020 Ms Henry emailed to Ms Priest the 19 June form.

What is strongly in dispute, and what is the crux of the matter before us, is whether a complaint was made within time. Counsel for the strata company (with counsel for the strata manager agreeing) contends that a complaint was made on 21 May 2020 and therefore was within time. Counsel for the builder refutes that a complaint was made within time.
Before turning to the issues to be determined, we summarise the evidence of Ms Henry for the strata company (see above at [18]), and that of Mr O'Sullivan, who as explained earlier, the Building Commissioner made available to assist the Tribunal.

Witness evidence

Ms Henry

Ms Henry is employed as an Administration Manager by the strata manager. The strata company engaged the strata manager to manage the strata complex.
Ms Henry's evidence is that there was no choice on 21 May 2020 as to how a complaint could be made. According to Ms Henry, the only method to make a complaint to the Building Commissioner was by using the DMIRS online system. Further, it is Ms Henry's evidence that she had every bona fide intention of making a complaint and that she was generally aware of the time limit to make a complaint under the BSCRA Act.[11] Ms Henry said that if there was anything else that needed to be done to make a complaint, she would have done it.[12] Ms Henry recalls uploading the Strata Advice Services document (a report prepared by Mr R Martelli dated 18 March 2020) in one of the steps to complete the making of a complaint.[13]
[11] Ibid.
[12] ts 51, 28 April 2021.
[13] ts 51-52, 28 April 2021.
Ms Henry explained that she did not click on, or press the 'submit' button after making payment of the prescribed fee. This is because, according to Ms Henry, no further screens appeared and there was no 'pop-up' or other alert requiring her to complete any further steps to finalise the complaint.[14] Ms Henry recalled that having made the payment of the prescribed fee, the words 'Thank you' appeared which she believed meant the complaint was made.[15]
[14] ts 18 and 51-52, 28 April 2021.
[15] ts 109, 28 April 2021.
Ms Henry's evidence is that she did not save a copy of her DMIRS online system application.[16]
[16] ts 52, 28 April 2021.
Ms Henry explained that on or about 12 June 2020 she emailed further documents to the Building Commissioner and it was at that time that 'it was discovered that the original application wasn't lodged'.[17] However, later Ms Henry clarified her understanding stating that it was the Building Commissioner's position that a complaint had not been made within time because prior to 12 June 2020 she believed that she had done everything that was required to make a complaint.[18] Ms Henry confirmed that she had not heard from the Building Commissioner in the period 21 May 2020 to 12 June 2020.[19]
[17] ts 42, 28 April 2021.
[18] ts 50-51, 28 April 2021.
[19] ts 42, 28 April 2021.
In regards to dating the 19 June form, Ms Henry explained that she put the date of '21 May 2020' because '[t]his is what I had thought was the case. This was the document that [the Building Commissioner] had not received, but I intended to lodge [on 21 May 2020]'.[20]
[20] ts 51, 28 April 2021.
In our view, Ms Henry's witness statement was limited to what she thought she had done on and about 21 May 2020, rather than an explanation of what she actually did. Similarly, in giving oral evidence, much of what Ms Henry stated was what she 'thought she did' on and about 21 May 2020, rather than her recollection of what actually occurred on and about 21 May 2020. Ms Henry's evidence of what she did and what occurred on 21 May 2020 in regards to the online pages of the DMIRS online system is further limited as only a receipt (tax invoice) dated 21 May 2020, which she recalled printing on 21 May 2020, is before the Tribunal.

Mr O'Sullivan

Mr O'Sullivan explained that his responsibilities include the management of the DMIRS online system. He has held that position since 2016. Attached to Mr O'Sullivan's witness statement are screen shots of the 16 online pages to make a complaint.[21] Mr O'Sullivan explained that he generated the 16 online pages[22] apart from the payment process as he does not have access to that part of the online system and that the online pages were regenerated by his test team in order to go through and test each step in the DMIRS online system to make a complaint.^[23] [24]
[21] ts 73-74, 28 April 2021.
[22] Exhibit 1, Hearing Book at pages 174-188.
[23] Exhibit 1, Hearing Book at pages 174-193.
[24] ts 59-60, 28 April 2021.
It is Mr O'Sullivan's evidence that there have not been any substantive amendments to the DMIRS online system since 2016[25] and that to his knowledge there have not been any submissions for changes to the DMIRS online system.[26] Mr O'Sullivan confirmed that business decisions, such as amending text in one of the 16 online pages, is not a technical decision and such changes would not come to his attention.[27]
[25] ts 61, 28 April 2021.
[26] ts 60-61, 28 April 2021.
[27] ts 61, 28 April 2021.
Mr O'Sullivan stated that neither he nor his team requested in May 2020 to have 'a pop-up [on] the [DMIRS] online system to notify a user when using the online pages' that the only way to make a complaint to the Building Commissioner was by way of using the DMIRS online system. Further, Mr O'Sullivan stated that the DMIRS online system has never had a pop-up other than when the system was originally built.[28] In addition, Mr O'Sullivan said that he is not aware of any direction made by the Building Commissioner that complaints can only be made online.[29]
[28] ts 62, 28 April 2021.
[29] ts 63, 28 April 2021.
In terms of making a payment, Mr O'Sullivan explained that on the complainant's computer (in this case, the strata manager's computer), a separate window appears which links to the Commonwealth Bank BPOINT (which is external to the DMIRS online system). Once payment is made, Mr Sullivan said the complainant may print or save a copy of the receipt (tax invoice) and the DMIRS online system allocates a Building Commission Reference Number. It is Mr O'Sullivan's evidence that payment must be made of the automatically generated prescribed fee of $119 before the complainant can return to complete the online complaint process to make a complaint.[30] Mr O'Sullivan explained that if payment is made but the complainant does not click on, or press the 'submit' button, the DMIRS finance section will refund the money to where it came from but no information is electronically converted or saved to the DMIRS computer system (server storage database). In such a case, according to Mr O'Sullivan, if the complainant telephoned DMIRS to discuss the refund or to seek a refund, the complainant would be referred to the DMIRS finance section or to the Commonwealth Bank because the DMIRS computer system (server storage database) has no record of a complaint being made.[31]
[30] ts 76, 28 April 2021.
[31] ts 82, 28 April 2021.
Counsel for the strata company submits that we should infer that the DMIRS online system has been changed because the system is illogical and very confusing.[32] Further, counsel for the strata company's position is that we should not place much weight on Mr O'Sullivan's evidence suggesting that he was not overly familiar with the DMIRS online system.[33] With respect, we disagree with the submission of counsel for the strata company in regards to Mr O'Sullivan. We found Mr O'Sullivan to be very helpful in explaining how the DMIRS online system operates and in the case of anything outside his area of expertise, for example the finance system, he properly stated that he was not able to comment. Further, in regards to what the DMIRS online system prompted or did not prompt, we prefer the evidence of Mr O'Sullivan as he was able to clearly explain the system whereas Ms Henry's evidence was limited to what she thought she did on or about 21 May 2020. We accept Mr O'Sullivan's evidence without reservation.
[32] ts 109, 117 and 119, 28 April 2021.
[33] ts 106-107, 28 April 2021.
We now turn to determine if a complaint was made within time.

Issue 1: Did the strata company, or the strata manager on behalf of the strata company, make a complaint to the Building Commissioner within the time limit imposed by s 6(1) of the BSCRA Act (that is, on or by 23 May 2020)?

Applicable legislation

A complaint under the BSCRA Act must be made in accordance with s 5(6)(a) and (b) of the BSCRA Act. There are two parts to the making of a complaint as follows:
5(6)A complaint under this section must be
(a)made in a manner and form approved by the Building Commissioner; and
(b)accompanied by the prescribed fee, if any.
Importantly, s 6(1) of the BSCRA Act sets the time period in which a complaint may be made as follows:
6.Time limit for complaint
(1)A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.
In this case, the parties agree that the strata company, or the strata manager on behalf of the strata company, must have made a complaint against the builder to the Building Commissioner on or before 23 May 2020 in order for it to be within time. Further, the parties agree that the prescribed fee is $119 and that it was paid by the strata manager to the Building Commissioner on 21 May 2020 but it was subsequently refunded on 27 May 2020.
This leaves us with the issue of deciding whether a complaint was made by the strata company, or by the strata manager on behalf of the strata company, against the builder to the Building Commissioner on 21 May 2020 (or within time). In order to decide this issue, we will need to apply s 5(6)(a) and (b) and s 6 of the BSCRA Act, properly constructed, to the materials facts of this case as set out above at [21]. Before doing so, we will first consider each of the strata company's main contentions that a complaint was made within time.

BSCRA Act is consumer legislation

It is the position of the strata company that where there are alternative approaches to the construction of the BSCRA Act, the approach which achieves the legislative intent or promotes the underlying purpose of the BSCRA Act is to be preferred.[34] Counsel for the strata company submits that an approach that promotes the underlying purpose of the BSCRA Act, which is consumer legislation designed to be flexible and nontechnical and which allows for a liberal degree of flexibility including the toing and froing between the complainant and the Building Commissioner, is to be preferred.[35]
[34] The Owners of 39-40 Onslow Road, Shenton Park and C&I Constructions Pty Ltd [2014] WASAT 123 (Onslow Road) and ts 13, 28 April 2021.
[35] ts 12-13, 28 April 2021.
Counsel for the strata company referred us to The Explanatory Memorandum of the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) which explains the purpose of s 5(6) as follows:
[T]he Building Commissioner [is] to approve the manner and form in which complaints are lodged, such as evidence of preliminary action required under clause 5(5). This will avoid current problems where failure to comply strictly with procedure and notice requirements in the BR Act can result in a complaint being rejected on technical grounds when it reaches a tribunal hearing.
We accept that the BSCRA Act is at its core consumer legislation and the purpose of the BSCRA Act is to enable complainants (consumers) to make their complaints in a non-technical manner and for complaints not to be rejected for technical reasons. However, we are unable to find that the strata company, or the strata manager on behalf of the strata company, made a complaint against the builder to the Building Commissioner on 21 May 2020 (or within time) for the reasons explained below.

Substance and not form

Relying on Owners of Island Apartments Strata Plan 52587 and Pindan Pty Ltd [2017] WASAT 25 (Pindan 1) and Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 (Pindan 2) counsel for the strata company submits that this case should be approached on the basis that substance must be preferred over form to find that the strata company, or the strata manager on behalf of the strata company, made a complaint against the builder to the Building Commissioner within time. Counsel for the strata company contends that if the Tribunal was to conclude otherwise, it would be a complete triumph of form over substance and it would be the kind of decision that the BSCRA Act was designed to avoid, that is, complaints being rejected for technical reasons or technical issues.[36]
[36] ts 108, 28 April 2021.
Counsel for the strata company explained that the substance in this case is the genuine efforts and steps taken by Ms Henry, including the payment of a prescribed fee and completion of all but one step (to click on, or press the 'submit' button) for the making of a complaint using the DMIRS online system.[37] It is Ms Henry's evidence that she communicated the intention of the strata company to make a complaint to the builder as early as 14 May 2020. Further, it is Ms Henry's evidence that she did not receive any prompt or any other step after the DMIRS online system generated a receipt (tax invoice) when she paid the prescribed fee of $119.
[37] ts 117, 28 April 2021.
We accept that the purpose of the BSCRA Act is to provide consumers with a means to bring their complaints about the quality of performance of the regulated building service in a non-technical manner and therefore, as stated by the Tribunal in Pindan 2 at [300], 'it is about substance and not form'.
However, in this case, in our view, there is no substance. This is because the efforts and steps taken by Ms Henry, which we accept were genuinely taken, are not the substance of the matter. There was no substance of a complaint before the Building Commissioner on 21 May 2020 (or within time). At best, in our view, there was an intention by Ms Henry to make a complaint on 21 May 2020, which, as we explain below, is not enough to be a complaint to the Building Commissioner.
An example, of where substance over form may arise is when a building complaint form is received by the Building Commissioner which omits the details of the remedy sought, however details of the faulty works are set out including the date when the building work was completed. The true nature or substance in this example is a complaint.

Proper construction of s 5(6) and s 6(1) of the BSCRA Act

Counsel for the strata company described the DMIRS online system as not been a particularly clear system and stated:[38]
[T]he fact that you have to pay first, then lodge later. Where does that come from? That's just illogical.
Every other system …You pay when you lodge. It happens simultaneously. This is a unique, and I could say so, a very confusing system.
[38] ts 119, 28 April 2021.
Counsel for the strata company submits that the term 'accompanied by' in s 5(6)(b) of the BSCRA Act suggests that to make a complaint, a complainant is required to complete an approved form and simultaneously submit the same with the prescribed fee.[39]
[39] Exhibit 1, Hearing Book at page 45.
In interpreting legislation the starting point for analysis is the text of the legislation and not judicial statements of the common law: VisyPaper PtyLtdvAustralianCompetitionandConsumerCommission[2003] HCA 59; (2003) 216 CLR 1. Further, the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions: Project BlueSkyIncvAustralianBroadcastingAuthority(1998) 194 CLR 355 at 381. Finally, in deriving meaning from the text, so as to fulfil the purpose of Parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. Specifically, it requires an examination at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used: Collector ofCustomsvAgfa-GevaertLtd[1996] HCA 36; (1996) 186 CLR 389 at 396 to 397, quoting RvBrown[1996] 1 AC 543 at 561; MinisterforImmigrationandMulticulturalAffairsvKhawar[2002] HCA 14; (2002) 210 CLR 1 at 36 and [109]; SGHLtdvFederalCommissionerofTaxation[2002] HCA 18; (2002) 210 CLR 51 at 91 and [88].
As explained earlier (above at [41] - [43]), we accept that the BSCRA Act is consumer legislation with the purpose of enabling complainants to make their complaints to the Building Commissioner in a nontechnical manner and for complaints not to be rejected for technical reasons or technical issues. It is therefore in that context that we will consider what the proper construction of s 5(6) and s 6(1) of the BSCRA Act is to ultimately decide whether a complaint was made within time by the strata company, or the strata manager for the strata company.
Section 5(6) of the BSCRA Act requires two things for a complaint to be made to the Building Commissioner. First the complaint must be made in the manner and form approved by the Building Commissioner. Second the complaint must be accompanied by the prescribed fee.
The words 'accompanied by' in s 5(6) are not defined in the BSCRA Act. 'Accompanied' is the past tense of 'accompany' which in its ordinary meaning means is to be present or occur at the same time. 'By' as a preposition indicates the means of achieving something.
Section 5(6) of BSCRA Act expressly requires the complaint to be 'accompanied by' the prescribed fee and therefore the prescribed fee must be present or occur at the same time as the complaint is made. In other words, the prescribed fee cannot be paid by itself or at some other time.
Therefore, in our view, in order for a complaint to be made using the DMIRS online system the prescribed fee must be paid and the payment must be present with all the approved online pages of the DMIRS online system completed. This includes the final page where the complainant is required to make a declaration and click on, or press the 'submit' button. The reason for this is that it is only when the complainant clicks on, or presses the 'submit' button that the data is converted or saved from the complainant's computer system (RAM) to the DMIRS computer system (server storage database). The importance of clicking on or pressing the 'submit' button is explained further below.
Counsel for the strata company submits that it is commonplace in other jurisdictions that a receipt for payment is proof that a successful transaction has occurred. In our view, the receipt (tax invoice) is evidence that payment of the prescribed fee was made. However, that is only one of the two integral steps required to make a complaint per s 5(6) of the BSCRA Act. The other step is to submit the complaint by the completion of all the online pages when using the DMIRS online system which includes making the declaration on the last page and clicking on, or pressing the 'submit' button.
Section 6(1) provides that a complaint will be made out of time (that is, not within time) if it is made more than six years after the completion of the regulated building service to which the complaint relates. This reflects the common law and what was the statutory time limit in the predecessor to the BSCRA Act, that is, the repealed Builders' Registration Act 1939 (WA).
The word 'made' in s 6 of the BSCRA Act is not defined. In its ordinary meaning, the adjective, 'made' means formed in a particular place or by a particular process. The verb 'made' is the past participle of 'make' which has the ordinary meaning of causing (something) to exist or come about, or to bring about.

In this case, the parties agree that the six year time limit ended on 23 May 2020. We agree that the six year time limit for the strata company or the strata manager on behalf of the strata company to make a complaint against the builder to the Building Commissioner was on or before 23 May 2020.
Counsel for the builder described the DMIRS online system as 'clunky' because it requires the complainant to first complete all mandatory fields on a multitude of online pages, then to pay the automated prescribed fee before having to return to another online page to make a declaration and to finally click on, or press the 'submit' button.[40] It is not necessary for us to make a finding as to whether or not the DMIRS online system is 'clunky'. Having said that, even if the DMIRS online system is 'clunky' that does not, in our view, excuse the complainant from making a complaint in the manner and form approved by the Building Commissioner accompanied by the prescribed fee.
[40] ts 121, 28 April 2021.
In our view, in the context of the BSCRA Act, the proper construction of s 5(6) and s 6 of the BSCRA Act as it relates to the DMIRS online system, is as follows:
1)The Building Commissioner is to determine the manner and form in which a complaint is to be made using the DMIRS online system.
2)To bring about or make a complaint, the complainant must enter data into each of the mandatory fields on the online pages and once all the mandatory fields have been completed and payment of the prescribed fee is made, the complainant must return to the DMIRS online system to make the declaration and then click on, or press the 'submit' button. This clicking on, or pressing of the 'submit' button electronically converts or saves the data from the complainant's computer (RAM) to the DMIRS computer system (server storage database) and in doing so, brings about or makes a complaint.
3)The term 'accompanied by' in s 5(6)(b) of the BSCRA Act requires the prescribed fee to be paid and be present or occur at the same time that all the mandatory fields on the online pages are completed and the 'submit' button is clicked on or pressed.
4)If payment is made without clicking on, or pressing the 'submit' button when using the DMIRS online system, a complaint is not made. This is because the data remains in the complainant's computer (RAM) and is not electronically converted or saved to the DMIRS computer system (server storage database).
5)A complaint can only made with the six year time limit (in this case on, or by 23 May 2020).
Applying the proper construction of s 5(6) and s 6 of the BSCRA Act, as set out above, we conclude that a complaint was not made within time for following reasons.
First, while Ms Henry's evidence demonstrates that she had the bona fide intention of making a complaint for the strata company against the builder to the Building Commissioner in accordance with the BSCRA Act,[41] we find that she did not complete all of the mandatory fields on the online pages of the DMIRS online system; and in particular we find she failed to click on, or press the 'submit' button after making payment of the prescribed fee and therefore no complaint was made to the Building Commissioner on 21 May 2020 or within time.
[41] Ibid.
Counsel for the strata company submits that:[42]
[I]f you make genuine efforts to lodge a complaint, you intend to lodge a complaint, and you fully believe, on the basis of a reasonably held belief from what you see in front of you, that you have made a complaint, and you have further supporting evidence like a payment receipt and a Building Commission reference number, and the evidence bears out that the Building Commission, quite plainly, did receive the money, and did receive, on its end, an electronic notice that money had been received and it could only have been received for a Building Commission complaint, then … the requirements of making a complaint are made out.
[42] ts 108, 28 April 2021.
While we accept that it is Ms Henry's view that no further screen appeared or 'popped-up' or other alert given to her to complete any further steps to finalise the complaint for the strata company against the builder to the Building Commissioner on 21 May 2020, we prefer the evidence of Mr O'Sullivan who explained that no changes have been made to the DMIRS online system since 2016. Mr O'Sullivan explained that in order to progress from one online page to the next, certain mandatory fields have to have data inputted. Without the benefit of documentary evidence from Ms Henry as to what she inputted into the online pages on 21 May 2020, we are prepared to accept that Ms Henry did input information into certain mandatory fields up to the online page where she successfully paid the prescribed fee. However, as Ms Henry testified, she did not make the declaration and click on, or press the 'submit' button which, in our view, is essential to the making of a complaint when using the DMIRS online system. We explain this in more detail below.
Further, while we accept counsel for the strata company's submission that there is no evidence to suggest there was some collateral purpose to the strata company's application,[43] we do not accept counsel for the strata company's submission that the Tribunal should find on 21 May 2020 that Ms Henry intended to make a complaint, and did enough to satisfy the requirements of the BSCRA Act to make a complaint.[44] Rather, we agree with counsel for the builder's submission, that if the Tribunal accepted that an intention to make a building complaint was all that is required, this would obviate what the BSCRA Act requires to make a complaint.^[45]
[43] ts 109, 28 April 2021.
[44] ts 109, 28 April 2021.
[45] ts 99, 28 April 2021.
Second, receipt for payment is one of the integral steps in the making of a complaint as provided for in s 5(6) of the BSCRA Act. However, it is not the only step. In this case, with the DMIRS online system, data must be entered into all of the mandatory fields on a multitude of online pages and following payment of the prescribed fee, the complainant is required to return to the last online page and make a declaration followed by clicking on, or pressing the 'submit' button in order for the complaint documentation to be converted from the complainant's computer (RAM) and 'received' into the Building Commissioner's computer system (server storage database). We find this did not occur on 21 May 2020 (or within time). This concurs with Ms Henry's evidence that she did not click on, or press the 'submit' button. We conclude that as nothing was 'received' into the Building Commissioner's computer system (server storage database) there was no complaint made by the strata company or the strata manager on behalf of the strata company against the builder to the Building Commissioner on 21 May 2020 (or within time).
When the $119 prescribed fee was paid by Ms Henry, a Building Commission Reference Number was allocated by the DMIRS online system. In addition, a Bank Receipt Number was allocated. Those numbers relate to payment only. No Building Commission (BC) complaint number was allocated by the Building Commissioner on 21 May 2020 to the strata company or to the strata manager. The reason for this is explained below.
It is not clear from Ms Henry's evidence if she closed the payment window or anything else on her computer system after she paid the prescribed fee of $119 on 21 May 2020. However, what is clear is that there is nothing on the receipt (tax invoice) to suggest that a complaint was made to the Building Commissioner or that it had been 'received' (in the sense of Pindan 1 at [114]) by the Building Commissioner on 21 May 2020 (or within time). Ms Henry's evidence is that she did not get a confirmation that there had been a complaint submitted or received by the Building Commissioner. This supports Mr O'Sullivan's evidence that it is only upon the clicking on or pressing the 'submit' button that the data is electronically converted or saved from the complainant's computer (RAM) to the DMIRS computer system (server storage database) which can then be processed by an employee of DMIRS. All Ms Henry had was a reference number in respect of the $119 prescribed fee paid on 21 May 2020. The payment is but one step in the making of a complaint.
For similar reasons, we do not accept counsel for the strata company's contention that a complaint in this case was 'received' by the Building Commissioner on 21 May 2020 upon the Building Commissioner generating a payment reference number when Ms Henry paid the prescribed fee as it is a unique number. While we accept that a Building Commission payment reference number was generated on 21 May 2020 (999215517) as evidenced on the receipt (tax invoice),[46] we do not accept that the Building Commissioner 'received' a complaint on 21 May 2020 by reference to the payment reference number. This is because, as explained in more detail below, the complaint is only made once it has been 'received' by the Building Commissioner into its computer system (server storage database) and a 'BC number' (or building complaint number) is allocated by the DMIRS online system to the complaint.
[46] Exhibit 1, Hearing Book at page 202.
Third, no 'BC number' (or building complaint number which identifies the complaint) was allocated by the Building Commissioner to either the strata company or to the strata manager on behalf of the strata company in relation to the builder on 21 May 2020. This is because the Building Commissioner had not 'received' (in the sense in Pindan 1 at [114]) anything that on 21 May 2020 from the strata company or the strata manager. Consequently, in our view, as the Building Commissioner did not have any contact details on 21 May 2020 (as the information on the strata manager's computer (RAM) was not electronically converted or saved to the DMIRS' computer system (server storage database) because the 'submit' button was not clicked on or pressed), all the Building Commissioner could do was to refund the payment that had been made on 21 May 2020, in this case in the name of a 'Bradley R Dunn'.
We accept Mr O'Sullivan's evidence that any documents that are uploaded by a complainant when completing the online pages, are cached locally on the complainant's computer (RAM) but are not electronically converted or saved to the DMIRS computer system (server storage database) until the 'submit' key is clicked on, or pressed. It is because of this, Mr O'Sullivan explained, that DMIRS cannot see anything as there is no record of anything until the complainant clicks on, or presses the 'submit' button.[47] Once the complainant clicks on, or presses the 'submit' key, the data on the complainant's computer (RAM) is electronically converted or saved to the DMIRS' computer system (server storage database) and importantly, it is at that time, the DMIRS computer system (server storage database) allocates a 'BC number' following which a DMIRS employee can process the complaint including viewing any attachments uploaded.[48]
[47] ts 68-69, 28 April 2021.
[48] ts 65 and 80, 28 April 2021.
Fourth, while we accept that Pindan 1 at [59] and [114] and Pindan 2 at [300] provides that it is open for a complaint, once made, to be amended and that the effective date of the complaint would remain the same, amended or otherwise, we do not accept that what was done on 19 June 2020 was an amendment to an earlier complaint. This is because Ms Henry's evidence is that the link to the Building Commissioner's building complaint form was emailed to her by Ms Priest after 23 May 2020 and that she completed the building complaint form on 19 June 2020 but reflecting a completion date of '21 May 2020'. While the 19 June form was emailed by Ms Henry to the Building Commissioner on 19 June 2020, we do not accept that the 19 June form is part of the process, or an amendment to what Ms Henry intended to be a complaint on 21 May 2020. In our view, the action taken on 19 June 2020 was taken with a view to having the complaint backdated to 21 May 2020, being the date Ms Henry intended to make a complaint. However, in our view, as there was no complaint made on 21 May 2020 (or within time), all that the Building Commissioner could have done on 19 June 2020 was to consider whether the 19 June form emailed to the Building Commissioner by the strata manager on behalf of the strata company was a complaint made against the builder to the Building Commissioner within time.
Fifth, while we agree that Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 484 (Cyclone Constructions) concerns a matter where the approved application form was lodged with the relevant Queensland authority but the filing fee paid was short by $10, we do not accept counsel for the strata company's contention that in this case there is a procedural defect in the form of a technical or administrative issue that meant the Building Commissioner did not 'receive' the relevant documents despite Ms Henry's bona fide attempt to lodge the same electronically although she received a receipt on payment of the prescribed fee. In our view, that case is distinguishable from the current matter in that the matter before us because in our [this?] case, even though the Building Commissioner acknowledged receipt of the prescribed fee, the Building Commissioner had nothing in its possession on the DMIRS computer system (server storage database) of the complaint or any other documents as everything remained on Ms Henry's computer (RAM) on 21 May 2020 (and up to including 23 May 2020). The lack of a complaint or any other documents in the Building Commissioner's computer system (server storage database) in this case is not a procedural defect (as was the case in Cyclone Constructions) in the sense of some technical or administrative issue. In this case, besides the payment of the prescribed fee there was nothing in the Building Commissioner's computer system (server storage database) on or before 23 May 2020 to be actioned by the Building Commissioner.
Sixth, we do not accept counsel for the strata company's suggestion that the DMIRS online system changed remarkably and that the Tribunal should infer that the change occurred because the system was illogical as it led Ms Henry (for the strata manager) to believe that at the point in time in paying and seeing the words, 'Thank you', that the complaint was done.[49] It is Ms Henry's evidence that the online pages that she was asked to give evidence about during the hearing 'looked like what was before her on 21 May 2020'. We accept there may have been some change to text, as explained by Mr O'Sullivan,[50] however, we find there was no change to the DMIRS online system since about 2016 which requires the complainant to make a declaration and then to click on, or press the 'submit' button in order to make a complaint to the Building Commissioner.
[49] ts 109, 28 April 2021.
[50] ts 110, 28 April 2021.
The email from Ms Priest on 18 June 2020 to Ms Henry includes information that a complaint may be made by completing the Building Commissioner's approved building complaint form. This concurs with Mr Sullivan's evidence that the procedure for making a complaint has not changed since about 2016.
It is not necessary for us to make a finding as to whether the Building Commissioner was receiving complaints in person, by facsimile, by email, by post or online on 21 May 2020 (or on or before 23 May 2020). Even if we did find that complaints could only be made by the DMIRS online system on or before 23 May 2020, that does not assist the strata company in this case, because, as we have already concluded, no complaint was made by the strata company, or by the strata manager on behalf of the strata company, against the builder to the Building Commissioner on 21 May 2020 (or within time) using the DMIRS online system.
Seventh, we do not accept counsel for the strata company's submission that Lee and Commissioner of State Revenue [2007] WASAT 271 (Lee) has no relevance to the matter before us. In Lee, the applicant was led to believe, on the basis of conflicting information that he was provided, that he may have been able to lodge his application at any time. That is not the case here. Ms Henry's evidence is that she intended to make a complaint on 21 May 2020 and that she knew there was a time limit within which the complaint had to be made. We have earlier explained why an intention to make a complaint is not sufficient for there to be a complaint made to the Building Commissioner.
Further, in our view, Lee is relevant because the legislation in that case (First Home Owner Grant Act 2000 (WA)) had a time limit in which the application had to be made, and the applicant made his application late in that case. In Lee at [4] the Tribunal concluded that neither the statutory scheme nor the general law, nor any other Act of Parliament provided for, in that case, the acceptance of an application made out of time. That conclusion equally applies in this case. That is, neither the BSCRA Act, the general law nor any other Act of Parliament (including the SAT Act which we explain in detail below) provides for the acceptance of a complaint made out of time.
Finally, for completeness, we note that the Building Commissioner allocated a BC number to the 19 June form received on 19 June 2020 even though the complaint fee had not been processed.[51] The strata company submits that Mr Verrall in his reasons for decision dated 7 July 2020 was happy to state that the complaint was made on 19 June 2020 on the basis of the form received by email but without the prescribed fee. For the reasons set out earlier we have already determined that a complaint was not made on 21 May 2020 (or within time). Because of that, we do not, in this case, need to determine if the non-processing of the complaint prescribed fee by the Building Commissioner with respect to the 19 June form is fatal to the making of a complaint on 19 June 2020 as any complaint made after 23 May 2020 in this case was not made be within time.
[51] Exhibit 1, Hearing Book at page 271.
We turn finally to consider if the Tribunal has the power under s 92 of the SAT Act to extend the time limit to make a building complaint imposed under s 6(1) of the BSCRA Act.

Issue 2: Does the Tribunal have the power under s 92 of the SAT Act to extend the time limit imposed by s 6(1) of the BSCRA Act for the strata company, or the strata manager on behalf of the strata company, to make a complaint to the Building Commissioner?

In order to give effect to the objectives of the Tribunal, including to act 'speedily and with as little formality and technicality as possible'[52], s 92 of the SAT Act provides that the Tribunal may give relief from procedural requirements except to the extent, if any, that the power is curtailed by the enabling Act (in this case the BSCRA Act).
[52] s 9 of the SAT Act.
Section 92 of the SAT Act provides:
92.Relief from procedural requirements
(1)The rules may provide for the Tribunal to
(a)extend or abridge a time limit for doing anything in connection with a proceeding, or the commencement of a proceeding, even though the limit is imposed under this Act or the enabling Act; or
(b)waive compliance with any other procedural requirement in connection with a proceeding or the commencement of a proceeding.
(2)The extension or waiver may be authorised even though the time for complying has passed.
(3)This section has effect despite section 5 except to the extent, if any, that this section is expressly excluded by the enabling Act.
(4)The Tribunal cannot extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

The extension of time that may be authorised under s 92(2) of the SAT Act arises even when the time for complying has passed. However, the Tribunal cannot extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages (s 92(4) of the SAT Act).
The State Administrative Tribunal Rules 2004 (WA) (SAT Rules) allow the Tribunal to exercise any of the powers referred to in s 92(1) of the SAT Act in connection with any proceeding.
It is counsel for the strata company's submission that the Tribunal possesses the power to make the orders sought by the strata company (see above at [12]) as they are within the ambit of the Tribunal's review jurisdiction.[53]
[53] Exhibit 1, Hearing Book, Applicant's submissions for final hearing at page 47.
Counsel for the strata company submits that s 29(1) of the SAT Act affords the Tribunal with the functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision but does not limit the powers given to the Tribunal by the SAT Act or by the BSCRA Act.
Counsel for the strata company urges the Tribunal to make orders in this case which will serve to further the objectives of the Tribunal which are set out in s 9 of the SAT Act, and in particular the objective to 'make or review decisions, fairly and according to the substantial merits of the case' and to act with as 'little formality and technicality as practicable'.
We accept that in dealing with matters before the Tribunal that our aim is to achieve the main objectives of the Tribunal as set out in s 9 of the SAT Act, which includes that of dealing with matters speedily. This is because, as observed by the Tribunal in Bailey and Legal Profession Complaints Committee [2011] WASAT 164, at [46]:
It is certainly in the public interest that matters are dealt with speedily. There are clear prejudices which may arise if that is not done and this is one of the reasons why legislation often provides for time limitation periods within which actions are to be brought.
Counsel for the strata company in making its submissions noted that there are real questions about the Tribunal's power to provide relief from procedural requirements under s 92 of the SAT Act as observed in Onslow Road where the Tribunal (Senior Member Raymond) stated at [74]:
It may therefore be argued that s 92 of the SAT Act read with r 10 of the [SAT Rules], permits the Tribunal to extend the time for the commencement of the proceeding. I have some doubt that s 92 of the SAT Act is intended, relevantly, to deal with anything other than the extension of time to take the steps by referral or other means necessary to enliven the Tribunal's jurisdiction.
We note that Onslow Road, unlike the present case, concerned a complaint that the Building Commissioner had accepted and then referred to the Tribunal for determination. The issue before the Tribunal in that case was whether the strata company's complaint was made out of time, and if so, whether the Tribunal had power under the BSCRA Act or the SAT Act to dismiss part of the complaint. The Tribunal concluded as follows:
48[T]he Building Commissioner is not obliged under s 11(3) to dismiss a proceeding or part of a proceeding, unless he is positively able to conclude, relevant to these proceedings, that the complaint, or part of it, is out of time. If the Building Commissioner is unable to come to such a positive conclusion, it is open to the Building Commissioner to refer the complaint to the Tribunal. If the Tribunal is able to determine on the evidence before it that the complaint, or part of it, is out of time, it has power under s 47 of the SAT Act to dismiss the complaint or part of it, on that basis.
…
75In circumstances in which the intent of the BSCRA Act is that a complaint made out of time must be dismissed, and the relevant part of the complaint has been held to be out of time, it is obvious that a proper exercise of discretion under s 47 of the SAT Act requires that relevant parts of the claim be dismissed.
We agree with the decision in Onslow Road. That is, if the complaint accepted by the Building Commissioner, was in fact not made within time, it must be dismissed.
We agree with counsel for the builder's submission that s 92 of the SAT Act operates only to control the functions of the Tribunal. An example of when the Tribunal exercises its power under s 92 of the SAT Act is in the extension of time to take the steps by referral or other means necessary to enliven the Tribunal's jurisdiction.
In our view, s 92(2) of the SAT Act does not provide the Tribunal with a power to extend the statutory limitation period provided for in s 6(1) of the BSCRA Act. We have not found an express power within the BSCRA Act for the Tribunal to extend the time limit to make a complaint. We therefore conclude that the Tribunal does not have the power to override the statutory time limit set out in s 6(1) of the BSCRA Act.

Other issue

While not an issue directly raised by the parties in the matter before us, we note that when a complaint is made under the BSCRA Act, the proceeding is taken to have commenced when the complaint is made to the Building Commissioner (see De Campo and J-Corp Pty Ltd T/As Oswald Homes [2013] WASAT 143 at [14]-[16]). Consequently, in our view, as we have found that no complaint was made to the Building Commissioner on or before 23 May 2020, there is no proceeding that has commenced.

Conclusion

Counsel for the strata company urges the Tribunal to consider this case as a unique factual scenario when viewed in context of the BSCRA Act, being consumer legislation designed to be user friendly and with a focus on substance and not form to conclude that a complaint was made within time. Further, counsel for the strata company submits the present case is a perfect example of the kind of circumstances where common sense and fairness dictates that the strata company should be permitted to have its complaint against the builder accepted by the Building Commissioner and determined on its merits.
While we agree this is a unique factual scenario, we would refuse the applicant's application for leave under s 57(2) of the BSCRA Act. This is because, in our view, the Building Commissioner correctly refused to accept that a complaint, including the 19 June form, was made on 21 May 2020 (or within time). Further, in our view, the Tribunal does not have the power under s 92 of the SAT Act to extend the time limit imposed by s 6(1) of the BSCRA Act to make a complaint. Consequently, we would affirm the Building Commissioner's decision of 7 July 2020. The result is that we will make the following orders.

Orders

The Tribunal orders:
1.The applicant's application for leave, pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), to review the decision of the Building Commissioner made on 7 July 2020 to refuse to accept 'complaint BC2020-939', about a regulated building service at 52 Mill Point Road, South Perth, is refused.
2.Pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2004 (WA), the decision of the second respondent (Building Commissioner) made on 7 July 2020, to refuse to accept the applicant's 'complaint BC2020-939', about a regulated building service at 52 Mill Point Road, South Perth, is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

4 AUGUST 2021

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152 and HANSSEN PTY LTD [2021] WASAT 102 (S)
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS (FINAL WRITTEN SUBMISSIONS FILED ON 23 SEPTEMBER 2021)
DELIVERED          :   3 NOVEMBER 2021
FILE NO/S:   CC 900 of 2020
BETWEEN:   THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152
Applicant
AND
HANSSEN PTY LTD
First Respondent
BUILDING COMMISSIONER
Second Respondent
CSM (WA) PTY LTD TRADING AS CUSTOM STRATA MANAGEMENT
Third Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Legal costs in proceeding of Tribunal - Applicable principles to exercising discretion to award costs - Nature of dispute - Conduct of parties - Assessment of quantum

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(6), s 6, s 6(1), s 49, s 49(1), s 57(2)
Legal Profession Act 2008 (WA), s 275
State Administrative Tribunal Act 2004 (WA), s 9, s 38(1), s 87, s 92

Result:

Partly successful

Category: B

Representation:

Counsel:

Applicant	:	Mr L.C.A. Palmos
First Respondent	:	Mr L. Swanson
Second Respondent	:	Mr J. Derby
Third Respondent	:	Mr J.N. O'Meara

Solicitors:

Applicant	:	Palmos Legal
First Respondent	:	Hotchkin Hanly Lawyers
Second Respondent	:	Department of Mines, Industry, Regulation and Safety
Third Respondent	:	Pragma Lawyers

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

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Legal Professional Complaints Committee and in de Braekt [2012] WASAT 58 (S);(2012) 80 SR (WA) 194
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Western Australia and Kyi [2009] WASAT 22
Panegyres v Medical Board of Australia [2020] WASCA 58
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 4 August 2021, the Tribunal delivered its written decision in The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102. In summary, the Tribunal determined that the applicant's (strata company) complaint to the second respondent (Building Commissioner) was not made within the time allowed under s 6 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) and that s 92 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) does not allow the Tribunal to extend the time to make a complaint under the BSCRA Act. The Tribunal refused the strata company's application and affirmed the Building Commissioner's decision made on 7 July 2020.
The first respondent (the builder) now seeks an award of costs in the amount of $14,922.60 from the strata company.
For the reasons given below, I conclude that the builder's application for costs in the proceeding before the Tribunal is partly successful. I will fix the amount of costs at $6,000. The strata company will be required to pay $6,000 to the builder within 28 days of the Tribunal's order.
It is useful to start by setting out the relevant procedural history of the proceeding.

Relevant procedural history

On 31 July 2020 the legal representative for the strata company filed an application with the Tribunal under s 57(2) of the BSCRA Act for review of the refusal by the Building Commissioner to accept that the strata company's complaint was made within time. The respondent listed in the strata company's application to the Tribunal was the builder.
On 18 August 2020, the Tribunal ordered for the Building Commissioner to be joined as the second respondent to the proceeding. At the same directions hearing, the Building Commissioner was ordered to file with the Tribunal a statement of reasons for the decision and documents and other materials in its possession or under its control which are relevant to the Tribunal's review of the decision.
On 29 September 2020, the Tribunal ordered the strata company to file its submission and evidence in support of its contention that the complaint was made within time. Further, the Tribunal ordered the builder to file their submissions in reply.
On 27 October 2020, the Tribunal ordered the matter to be listed for a final hearing on or after 13 November 2020 and requested the parties to file their unavailable dates.
On 2 November 2020, the Tribunal ordered for the matter to be listed for a final hearing on 17 December 2020.
On 8 December 2020, the builder filed a Notice of Legal Representation in the proceeding.
On 9 December 2020, an interim application was filed with the Tribunal by the strata manager whereby it sought to be joined as an interested party to the proceeding pursuant to s 38(1) of the SAT Act. That interim application was heard on 14 December 2020. The Tribunal ordered for the strata manager to be joined as the third respondent to the proceeding. Further orders were made by the Tribunal on 14 December 2020 including vacating the hearing on 17 December 2020 and relisting it for 3 February 2021.
On 1 February 2021, the Tribunal vacated the hearing of 3 February 2021. On 9 February 2021, the Tribunal listed the matter for a final hearing on 28 April 2021.
On 28 April 2021 the matter was heard following which the Tribunal reserved its decision. Written reasons for decisions were published by the Tribunal on 4 August 2021.
On 18 August 2021, the builder filed its application with the Tribunal seeking an order for its legal costs in the proceeding to be paid by the strata company.
On 30 August 2021, the Tribunal ordered that the builder has liberty to apply for its costs in the proceeding by filing a schedule of costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the builder wishes to rely and written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed and the period of time which the strata company should be given to pay any costs awarded.
On 9 September 2021, the builder filed its submissions and schedule of costs.
On 23 September 2021, the strata company filed its outline of submissions on costs.
On 29 September 2021, the Tribunal reserved its decision on costs.

Issue for determination

The issue for determination in this proceeding is whether it is fair and reasonable in the circumstances of the proceeding in matter CC 900 of 2020 that the builder should be reimbursed for the legal costs it has incurred.
How costs in relation to the proceeding is to be considered by the Tribunal is set out below.

Applicable principles

Section 87(1) of the SAT Act directs that unless otherwise specified in the SAT Act, the relevant enabling Act or any other order of the Tribunal made pursuant to s 87(2) - s 87(6) of the SAT Act, the parties bear their own costs in a proceeding of the Tribunal.
However, s 87(2) of the SAT Act confers a discretionary power on the Tribunal to make an order for the payment of all or any of the costs of another party, unless specified to the contrary in the relevant enabling Act. Section 49 of the BSCRA Act (the enabling Act in this proceeding) relevantly provides:
(1)Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
…
(7)This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 Part 4 Division 5.
Therefore, s 49 of the BSCRA Act, by conferring a broad unrestricted discretion on the Tribunal to award costs, appears to be a departure from s 87(1) of the SAT Act. This means that the Tribunal in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, is not required to start from the position that each party bears its own costs. However, having said that, it is well understood that costs do not follow the event at the Tribunal and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.
In Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 at [149] a summary of the relevant principles on costs, as set out by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), was provided as follows:
(1)[t]here is no presumption that a successful party is entitled to costs;
(2)[t]he discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent;
(3)[t]he power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
(4)[t]he onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
(5)[t]he nature of the dispute is a relevant consideration in any application for costs;
(6)[e]very party to a proceeding before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality an technicality as possible and in a way which minimises the costs to the parties; and
(7)[t]he mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38]. Therefore, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49].
Even though fixing costs involves a relatively broad brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
The factors relevant in exercising the discretion to award costs pursuant to s 87 of the SAT Act are equally relevant in the exercise of the discretion pursuant to s 49(1) of the BSCRA Act. The factors were usefully identified in Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73][74] as follows:
… If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful[.]
Thus, the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.

Finally, in Panegyres v Medical Board of Australia [2020] WASCA 58 at [415], Vaughan JA provided guidance on the minimum amount of information required by the Tribunal for it to be in a position to evaluate and assess a claim as to cost as follows:
... At the least this requires that the Tribunal be appropriately informed as to the work done and time taken as is claimed for and the rates which are said to apply to that work. The detail required in this respect is a matter for the Tribunal. It may take the form of an affidavit attaching the tax invoices as charged. Alternatively, the Tribunal may consider it appropriate to require a short form bill of costs[.]
I will apply the principles, as set out above, in considering the builder's application for costs.

Costs application

For the purposes of its costs application, the builder provided the Tribunal with the following schedule of legal costs:

Date

Description

Amount

18 November 2020 to 10 February 2021

Considering client and other parties' documents and taking instructions

9 hours x $418

$3,762

20 November 2020, 23 November 2020 to 24 November 2020

Drafting submissions for hearings

9 hours x $418

$3,762

8 December 2020, 13 January 2021, 27 April 2021 to 28 April 2021

Preparation for hearings on 14 December 2020 and 28 April 2021

7.1 hours but say 6.5 hours x $418

$2,717

14 December 2020

Attendance at hearing on 14 December 2020

1.2 hours x $418

$501.60

28 April 2021

Attendance at hearing on 28 April 2021

7 hours x $418

$2,826

6 September 2021 to 7 September 2021

Costs application and submissions

3 hours x $418

$1,254

Total legal costs claimed

$14,922.60

The reasons given by the builder for seeking costs in this proceeding may be summarised as follows:
(a)the strata company commenced, and continued to pursue, the proceeding where it was clear, on the facts and at law, that the building complaint had been lodged out of time and the application had no prospects of success. Specifically, the sworn evidence of Ms Caitlin Henry contained express admissions that the building complaint had not been lodged on time and the filing fee had been returned by the Building Commissioner, and the authorities relied on by the strata company did not support its case;
(b)the strata company commenced, and continued to pursue, the proceeding where it was clear, on a plain reading of s 92 of the SAT Act, that the Tribunal had no power to extend the time for the strata company to lodge the building complaint;
(c)the builder was required to participate in the proceeding and was joined as party to the application by the strata company. Where the action was commenced and pursued against the builder, the builder was required to participate, and was ordered to do so by the Tribunal. Accordingly, the builder was required to participate to protect its interests and, as a consequence, was required to unnecessarily incur costs that otherwise could and should have been avoided had the strata company not pursued the application and (or) joined the builder to the action;
(d)the builder incurred costs preparing for and appearing at the final hearing of the strata company's application where it should have been clear to the strata company given (a) and (b) above and (or) after considering the builder's written submissions that the application had no prospects of success; and
(e)the strata company itself sought cost orders against the respondents. Accordingly, the Tribunal may infer that had the strata company been successful, it would have sought cost orders against the builder and the Building Commissioner, presumably on the basis that costs should follow the event and the strata company had incurred costs having to pursue the application.
The strata company's position is that while its application was ultimately unsuccessful, this is not a case where it would be appropriate for the Tribunal to make an award of costs against the strata company. The strata company's reasons for opposing any order for costs may be summarised as follows:
(a)against the background of a 'unique factual scenario', the strata company acted reasonably and sought a review of the Building Commissioner's decision concerning whether a building complaint (lodged by their agent) was made in time. The strata company did not choose to join the builder as a party to the proceeding. The builder was a party to the proceeding because it was a procedural requirement that they were a party. There was no requirement for the builder to participate in the proceeding, much less to engage counsel to act in the matter on their behalf. It was open to the builder to take no active part in the proceeding, and to simply abide by the decision of the Tribunal. This is was what the Building Commissioner did. In fact, the Building Commissioner did not attend most of the directions hearings, and only took part in the proceeding once the Tribunal ordered the Building Commissioner to file a witness statement to assist the Tribunal in reaching a decision. Instead, the builder elected to participate heavily in the proceeding despite having had no direct involvement in relation to any of the questions of fact and law in issue;
(b)the builder also elected to engage counsel (after acting in person from 30 July 2020 until 8 December 2020) and filed written submissions in the proceeding, with orders made permitting them to do so some two months prior to filing a Notice of Legal Representation;
(c)the builder did not file (and could not given that it had no involvement) any evidence in the proceeding. Its participation was strictly by its own choosing and was limited to making and filing submissions and appearing at the hearings. The builder was entitled to participate and present submissions on what was, on any view, a complex case involving questions of fact and law that have not yet been decided in this jurisdiction. However, it does not follow that the strata company should bear the costs of the builder's decision to take part and expend considerable sums on legal fees. It would be unjust for the strata company to be, in effect, punished further. Moreover, there is no legislative basis under the SAT Act or the BSCRA Act to order costs in these particular circumstances;
(d)at the directions hearing of 14 December 2020, being the only directions that the builder was represented by counsel, the Tribunal rejected the builder's position that the Building Commissioner should not be joined as a party to the proceeding;
(e)in its reasons for decision, the Tribunal acknowledged that the proceeding presented a unique factual scenario, and ultimately turned on the evidence given by the witnesses at the final hearing. The Tribunal accepted the evidence of Mr John Lawrence O'Sullivan. The Tribunal did not specifically reject Ms Henry's evidence or attack her credibility. The Tribunal simply said that her oral evidence concerned what she 'thought' she did. Ms Henry's witness statement dated 22 October 2020 does not 'contain express admissions' that the building complaint had not been lodged correctly or in time. It states, on oath, that she believed she did lodge the complaint on 21 May 2020 and substantiates her reasoning for that belief in her evidence. Based on this evidence, it was reasonable for the strata company to bring and maintain the proceeding and it is not open to conclude that the proceeding were trivial or vexatious;
(f)the builder's schedule of costs contains costs incurred prior to the solicitors for the builder filing a Notice of Legal Representation. Accordingly, there is no basis for making an award of those costs; and
(g)the builder seeks costs orders against the strata company in the proceeding where the Tribunal has held that it was the actions of the strata manager's employee that gave rise to the issue in dispute in the proceeding. The strata company submits that it would not be fair and reasonable for the Tribunal to make an order for costs against the strata company where there is evidence that the strata manager's employee failed to lodge the building complaint, which was ultimately held by the Tribunal.
I now turn to address the issue identified at [19] above.

The nature of the dispute

The nature of the dispute is a relevant consideration to the Tribunal's exercise of its discretion to make an order for costs.
The proceeding involved a unique factual scenario. It concerned the 'click of a button'. The strata company contended that on 21 May 2020 Ms Henry (for the strata manager) clicked all the buttons required to successfully make a complaint to the Building Commissioner. At hearing, Ms Henry gave evidence of what she thought she had done on or about 21 May 2021, rather than an explanation of what she actually did. In contrast, Mr O'Sullivan for the Building Commissioner was able to clearly explain the DMIRS online system.
The dispute raised important issues about whether the complaint was made within time which required the parties to make submission on the proper construction of s 5(6) and s 6(1) of the BSCRA Act and on s 92 of the SAT Act.
Even though the Building Commissioner did not actively participate in the hearing (as its position was as set out in its decision of 7 July 2021 that the application was not made within time), I find that it was open and appropriate for the builder to properly put forward its position in its written submissions and at hearing as to the proper construction of s 5(6) and s 6(1) of the BSCRA Act and s 92 of the SAT Act. The fact that the strata company was unsuccessful on the issue of whether the complaint was made within time, supports a finding that the builder had a reasonable basis to challenge the strata company's interpretation of these provisions.
Contrary to the strata company's statement that it did not choose to join the builder to the proceeding, but rather the builder was a party to the proceeding because it was a procedural requirement that they were a party, it is clear from the strata company's application to the Tribunal that the only respondent identified by the strata company (as the applicant) was the builder. The Building Commissioner and the strata manager were later joined as respondents in the proceeding by the Tribunal.
Separately, the strata company asserts that the builder's participation was strictly its own choosing and was limited to making submissions and appearing at the hearing. In my view, that is not correct, as the strata company in its application listed the builder as the only respondent. Therefore, in my view, it was open and appropriate for the builder to participate in the proceeding.
Even though the Tribunal rejected the builder's submission to not join the Building Commission as a respondent to the proceeding, it was open and appropriate, in my view, for the builder to properly put forward its position.
Finally, while the decision of the Tribunal ultimately turned on the evidence, it was reasonable on the evidence given by Ms Henry of the strata manager for the strata company to bring the proceeding. It was also open and appropriate for the builder to participate to protect its interests and in doing so incurred costs that it would not have otherwise incurred had the strata company not filed the application with the Tribunal.

The parties' conduct

The parties' conduct is also a relevant consideration to the Tribunal's exercise of its discretion to make an order for costs.
In exercising the Tribunal's discretion to consider making an order for costs, it is necessary to consider whether, and to what extent, the builder has established that the conduct of the strata company impaired the attainment of the Tribunal's objectives: Questdale at [54]. One of the objectives of the Tribunal in s 9 of the SAT Act is to act speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties.
The Tribunal had occasion to change orders regarding the proceeding, for example vacating and relisting the matter for final hearing when the strata manager was joined as the third respondent. In general, compliance with orders of the Tribunal assists the Tribunal to achieve its objective of acting speedily in the resolution of disputes and to minimise the costs to the parties.
On this occasion, I find the Tribunal was able to proceed to conclude the matter in accordance with its objectives as set out in s 9 of the SAT Act. In the circumstances, I do not find the strata company acted unreasonably in the proceeding.

Exercise of discretion in the proceeding

In relation to the legal costs sought by the builder, I will only consider the legal costs claimed by the builder from the date the Notice of Legal Representation was filed with the Tribunal. In the builder's case, the notice was filed on 8 December 2020. This means I will not consider any of the legal costs for drafting submissions for hearings from 18 November 2020 to 24 November 2020 ($3,762). Further, I will not consider any of the legal costs for considering the documents and taking instructions from 18 November 2020 to 10 February 2021 ($3,762) even though part of the work would have been done after the Notice of Legal Representation was filed with the Tribunal on 8 December 2020, as there was no breakdown in the costs.
This leaves $7,398 legal costs in the proceeding to be considered.
Even though the strata company was unsuccessful in its application, this does not automatically support the making of a costs order unfavourable to the strata company.
The nature of the dispute is relevant to the Tribunal's exercise of discretion under s 49 of the BSCRA Act and under s 87(2) of the SAT Act. In this proceeding, the dispute arose as to whether the complaint was made within time. The strata company points to the unique factual scenario and that the decision of the Tribunal ultimately turned on the evidence given by the witnesses at the final hearing and that based on the evidence of Ms Henry of the strata manager it was reasonable for the strata company to bring and maintain the proceeding. The builder maintains that it incurred legal costs preparing for and appearing at the final hearing where it should have been clear, on the facts and the law, that no complaint had been made within time and that therefore the application had no prospect of success.
In my view, the dispute did raise complex issues concerning the proper construction of s 5(6) and s 6(1) of the BSCRA Act and s 92 of the SAT Act. It was therefore open and appropriate, in my view, for the builder to make submissions. The fact that the strata company was unsuccessful in the proceeding supports a finding that the builder had a reasonable basis to contest the strata company's position and interpretation of s 5(6) and s 6(1) of the BSCRA Act and s 92 of the SAT Act.
I find the conduct of the strata company did not unnecessarily prolong the hearing. Further, I find that the strata company did not act unreasonably or inappropriately in the conduct of the proceeding so as to impair the attainment of the Tribunal's objectives in s 9 of the SAT Act.
Where the Tribunal makes an order for costs and fixes or assesses the amount of costs, the Tribunal applies 'as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the [SAT Determination]'.[54] In this case, the legal fees claimed by the builder are claimed on the basis of the maximum hourly rate for a Senior Practitioner (in the absence of a written costs agreement between solicitor and client) prescribed in the Legal Profession (State Administrative Tribunal) Determination 2020 (SAT Determination) made by the Legal Costs Committee under s 275 of the Legal Profession Act 2008 (WA).
[54] Legal Professional Complaints Committee and in de Braekt [2012] WASAT 58 (S);(2012) 80 SR (WA) 194 [53] (Judge Parry DP, Ms H Leslie M and Ms K Kemp SM).
Taking a broad brush approach in a relatively robust fashion, I consider that a total amount of $6,000 ought to be recovered by the builder from the strata company of their total legal costs (as set out in the table above at [30]). While this amount has been fixed in a robust manner, it results in a total costs award which is reasonable and not excessive in nature and, in my view, accords with the nature of the proceeding, the amount of time and effort required to properly prepare for and bring the proceeding to a conclusion, and is consistent with and reinforces the objectives and procedures of the Tribunal.
The result is that I would order the strata company to pay to the builder $6,000 by way of costs pursuant to s 49 of the BSCRA Act. The amount is to be paid within 28 days of these orders.

Conclusion

For the reasons set out above, I would make the following orders.

Orders

The Tribunal orders:
1.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the applicant shall pay to the first respondent $6,000 within 28 days of this order.
2.The first respondent's application for costs is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

3 NOVEMBER 2021

Date	Description	Amount
18 November 2020 to 10 February 2021	Considering client and other parties' documents and taking instructions 9 hours x $418	$3,762
20 November 2020, 23 November 2020 to 24 November 2020	Drafting submissions for hearings 9 hours x $418	$3,762
8 December 2020, 13 January 2021, 27 April 2021 to 28 April 2021	Preparation for hearings on 14 December 2020 and 28 April 2021 7.1 hours but say 6.5 hours x $418	$2,717
14 December 2020	Attendance at hearing on 14 December 2020 1.2 hours x $418	$501.60
28 April 2021	Attendance at hearing on 28 April 2021 7 hours x $418	$2,826
6 September 2021 to 7 September 2021	Costs application and submissions 3 hours x $418	$1,254
Total legal costs claimed		$14,922.60