Vukmirovic and Kotsoglo - [2009] WASAT 28

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: VUKMIROVIC and KOTSOGLO [2009] WASAT 28

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 9 FEBRUARY 2009

DELIVERED : 9 FEBRUARY 2009

FILE NO/S: CC 2059 of 2008

BETWEEN: PETER VUKMIROVIC
Applicant
AND
MARCUS KOTSOGLO
CHRISTINE MORAN
Respondents

Catchwords:

Building disputes review Error in law Rules of natural justice Substantial injustice Did the Building Disputes Tribunal err in law by allowing a hearing to continue regardless of nonattendance of a party Did the BDT err by sending mail to an allegedly wrong address provided by the applicant Last known address for service Credibility of evidence in regard to the circumstances surrounding the change of address Does an error in law automatically give rise to leave to review

Legislation:

Builders' Registration Act 1939 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondents : Self-represented

Solicitors:

Applicant: Self-represented
Respondents : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Vukmirovic contended that the Building Disputes Tribunal erred in law when it decided to continue a hearing in his absence. As a result, the rules of natural justice were breached and leave should be granted for the matter to be reheard.
Mr Vukmirovic said that he is entitled to be heard and that, since he was not aware of the proceedings before the Building Disputes Tribunal, he could not attend the hearing, present evidence or challenge evidence given. Mr Vukmirovic argued that the Building Disputes Tribunal had sent the notice of the hearing to the wrong address. Although he admits that the address to which the notice of the hearing was sent appears at the bottom of an email he sent to the Building Disputes Tribunal, he alleged that a typing error had been made. He also said that his email did not explicitly nominate the address as his 'business address' and the Building Disputes Tribunal therefore erred by using it.
Mr Kotsoglo contended that no error in law was made. The Building Disputes Tribunal requested Mr Vukmirovic's his business address in an email dated 30 July 2008 and he replied to the request on the same day by providing an address which Mr Vukmirovic now contends is the wrong address. In the reply, Mr Vukmirovic rejected the complaint and gave his address and mobile telephone number at the bottom of the email. The Building Disputes Tribunal acted properly by sending the notice of the hearing to the address given by Mr Vukmirovic. The Building Disputes Tribunal further acted properly when it decided to continue with the proceedings after Mr Vukmirovic failed to attend or to apologise for non‑attendance.
The Tribunal explained to Mr Vukmirovic during the hearing that the credibility of his evidence in regard to the circumstances surrounding the email of 30 July 2008 was important for the Tribunal to decide whether it accepts his explanation that a spelling error had been made and whether the Building Disputes Tribunal acted reasonably by sending the notice of the hearing to the given address.
The Tribunal, after careful consideration, did not accept Mr Vukmirovic's explanation of the events that gave rise to the incorrect address being given to the Building Disputes Tribunal. The Tribunal found, for reasons explained in detail in its reasons for decision, Mr Vukmirovic's explanation of events unreliable, inconsistent and lacking credibility.
As a result of this finding, the Tribunal was satisfied that the Building Disputes Tribunal acted properly when it accepted the address given to it in the email of 30 July 2008 as the business address for Mr Vukmirovic. The Tribunal accepted further that the Building Disputes Tribunal acted properly and in accordance with law when it decided to continue with proceedings in the absence of Mr Vukmirovic.
The application for review of the decision of the Building Disputes Tribunal was dismissed.

Issue

The issue in dispute is whether leave to review a decision of the Building Disputes Tribunal (BDT) should be granted on grounds that the notice of hearing was allegedly sent to an incorrect address. There are two addresses the subject of these proceedings: 2/172 Elliott Road, Scarborough, which is the correct address, and 9/178 Elliott Road, Scarborough, which is the wrong address.
The Tribunal's reasons for decision were handed down orally on 9 February 2009. The Tribunal undertook it would provide the parties with an edited transcript of the proceedings.

Background

The background to the application is as follows.
A dispute regarding work done by Mr Vukmirovic was declared on 9 June 2008. The address of Mr Vukmirovic was noted by Mr Kotsoglo on the complaint form as 2/172 Elliott Road, Scarborough. A notice of inspection by the Building Disputes Tribunal was sent to the parties on 23 June 2008. The BDT sent the notice to 2/172 Elliott Road, Scarborough. Mr Vukmirovic received the notice. The inspector's report was sent to the parties on 15 July 2008. The report was sent to 2/172 Elliott Road, Scarborough. Mr Vukmirovic received the report.
On 30 July 2008, the BDT sent an email to Mr Vukmirovic and requested him to confirm his business address. In an email dated 30 July 2008 from the office of Mr Vukmirovic, the address 9/178 Elliott Road, Scarborough was at the bottom of the email. A notice of hearing was sent to the parties by the BDT on 9 September 2008. The notice was sent to 9/178 Elliott Road, Scarborough. Mr Vukmirovic claims that he did not receive the notice.
The hearing took place on 8 October 2008. Mr Vukmirovic was not in attendance at the hearing. An order to remedy was sent out on 9 October 2008. The order was sent to 9/178 Elliott Road, Scarborough. Mr Vukmirovic claims that he did not receive the order.
On 3 December 2008, a notice was sent by the BDT that the matter had been referred back for determination, presumably to convert the order to remedy into an order to pay. The notice was sent to 2/172 Elliott Road, Scarborough. Mr Vukmirovic received the notice.
On 12 December 2008, a notice was sent by the BDT that the reconvened hearing would take place on 12 February 2008. The notice was sent to 2/172 Elliott Road, Scarborough. Mr Vukmirovic received the notice. That is as far as the background to the application is concerned.

Fairness in judicial proceedings

Next I will deal with basic principles of fairness in judicial proceedings. The rules of natural justice are a cornerstone of our legal system. It entails, in essence, that a person in legal proceedings is entitled to be heard, to make submissions, to give evidence and to examine evidence. It is an error in law if a court or a tribunal does not comply with the rules of natural justice, but absence of a party at a hearing does not automatically mean proceedings cannot go ahead.
The reasons for the failure of a party to attend a hearing or to make submissions must be considered. Mere non‑attendance at hearing does not necessarily mean the rules of natural justice have been breached. A mere error of law is also not enough in building disputes to grant a review. There must also be a substantial injustice if the decision is not reversed.

Questions to determine

There are therefore two questions in these proceedings before me. The first question is, did the BDT commit an error in law when it decided to continue the hearing on 8 October 2008 in the absence of Mr Vukmirovic and, if so, would a substantial injustice be suffered if the decision were to remain unreversed? The Tribunal will deal with each of these questions separately.

BDT decision

Next I deal with the key elements of the BDT's decision as far as the attendance of Mr Vukmirovic is concerned.
The BDT used the address given to it by Mr Vukmirovic in the email dated 30 July 2008 to send the notice of the hearing. The BDT went ahead with the hearing on 8 October 2008. It did not call the parties prior to the hearing to remind them of the hearing. It relied on the written correspondence.
When no attendance was recorded by Mr Vukmirovic, the BDT decided to determine the matter in his absence. There were no other experts or contractors at the hearing to give evidence on the part of Mr Vukmirovic. There were also no other submissions handed in prior to the hearing by Mr Vukmirovic.

Submissions

I will next deal with the submissions made by each of the parties; first, the submissions made by Mr Vukmirovic.
Mr Vukmirovic contends that the BDT denied him the opportunity to be heard. All he wants is for the matter to be properly heard and determined. He has no reason or interest to give a wrong address, because he believes he can win the dispute.
The BDT, Mr Vukmirovic said, used his correct address, and then, for some unexplained reason, started using 9/178 Elliott Road, Scarborough, and then, again for some 'unexplained reason', reverted back to using the correct address. Although the address 9/178 Elliott Road, Scarborough appears at the bottom of the email dated 30 July 2008, Mr Vukmirovic contends that this was a spelling error and that the BDT should not have used it.
Mr Vukmirovic further says that it is not clear to him how the BDT could have used the right address to send a notice of inspection, then used the wrong address to send the notice of hearing, and then, without a good reason, revert back to the correct address to notify him of the redetermination.
Mr Vukmirovic concluded that the BDT clearly made an error and the best way is for the matter to be reheard. He also said that, even if he had received the notice, he would not have been able to attend, since he was on holiday at the time.
I will next deal with the summarised submissions of Mr Kotsoglo.
Mr Kotsoglo contended that Mr Vukmirovic had opportunity to be heard at the BDT and failed to make use of it and, as a consequence, there was no error on the part of the BDT. According to Mr Kotsoglo, the BDT used the address provided by Mr Vukmirovic in the email of 30 July 2008, and Mr Kotsoglo said that the BDT acted 'out of caution' to request in writing the business address of Mr Vukmirovic.
That explains why the BDT sent the email dated 30 July 2008, in which it requested Mr Vukmirovic's business address. It was not wrong for the BDT to assume that the address at the bottom of the email dated 30 July 2008 was the preferred address. It was, after all, in reply to its request and on the same email that the information was given by Mr Vukmirovic.
Mr Kotsoglo said, in conclusion, that there was no injustice done by allowing the hearing to continue and the rules of natural justice were not breached. Mr Vukmirovic simply failed to participate in proceedings and there were no grounds for the matter to be reopened.

Consideration

The Tribunal took into account all the submissions and evidence before it. The grounds of leave for review of a decision of the BDT are within the discretion of the Tribunal.
At face value, the decision of the BDT to continue the hearing in the absence of Mr Vukmirovic may seem as if it offended the rules of natural justice, but the factual circumstances before the Tribunal are more complex than appears at face value.
All of the background events leading to the decision must be taken into account to determine if the BDT had erred by allowing the hearing to continue. The fact that the hearing went ahead in the absence of Mr Vukmirovic does not automatically mean that there was an error in law on the part of the BDT.
The Tribunal must take into account the reasons why Mr Vukmirovic was not at the hearing, whether he had been served with a notice of the hearing or whether it can be deemed that he has been served.
While a person has the right to be heard, the conduct of the person in the events leading to the hearing and at the hearing itself must be taken into account to determine whether the Tribunal has erred in law.
Two questions arise. The first question is, was Mr Vukmirovic given an opportunity to be heard by the BDT? The second question is, if not, would it give rise to substantial injustice if the decision of the BDT were to remain unreversed?
I will first consider the question of whether the BDT acted reasonably and properly when it sent correspondence regarding the hearing to 9/178 Elliott Road, Scarborough.
The Tribunal's analysis of the dispute arising from the change of address is as follows.
The correct address for service, according to Mr Vukmirovic, is 2/172 Elliott Road, Scarborough, and the incorrect address for service, according to Mr Vukmirovic, is 9/178 Elliott Road, Scarborough.
The BDT commenced using the address 2/172 Elliott Road, Scarborough for purposes of its correspondence, so that was the address on the complaint form: refer, for example, to the notice of inspection dated 23 June 2008 and the report of the inspector dated 15 July 2008. For reasons that are not clear to the Tribunal, according to Mr Kotsoglo, the BDT took what he called 'a precautionary approach'. The BDT asked in an email dated 30 July 2008 to Mr Vukmirovic 'Please advise us of your business address'. The email was sent at 12.40 pm.
At 3.49 pm on the same day, a reply was sent from Mr Vukmirovic's email to the BDT. Mr Vukmirovic's reply went to some length to dispute the merit of the claim, and the address '9-178 Elliott Road' was at the bottom of the page. Mr Vukmirovic's mobile telephone number was also provided. It must be noted that Mr Vukmirovic used the same email he received from the BDT enquiring about his address to reply to the BDT.
The BDT used this address subsequently to send the notice of hearing dated 9 September 2008 and order to remedy dated 9 October 2008. It is only after Mr Vukmirovic contacted the BDT on 19 November 2008 that it reverted back to the address 2/172 Elliott Road, Scarborough.
Mr Vukmirovic said to the Tribunal that it was 'inexplicable' why the BDT started using 9/178 Elliott Road, Scarborough and then reverted back to using 2/172 Elliott Road, Scarborough again.
The Tribunal explained to Mr Vukmirovic during the hearing that the credibility of his evidence was important for the Tribunal to decide whether it accepts his evidence that a spelling error has been made with the address in the email of 30 July 2008. Mr Vukmirovic gave a detailed explanation, and often conflicting evidence, as to why he believed the wrong address was used.
The Tribunal, after careful consideration, does not accept Mr Vukmirovic's -
(a)explanation of the events giving rise to the incorrect address given to the BDT; and
(b)the surprise he expressed at the BDT reverting back to using the correct address.
The reasons for this conclusion are as follows:
1)Mr Vukmirovic's evidence as to who authored the email of 30 July 2008 was inconsistent. At the directions hearing of 22 January 2009, he said that he had never seen the email and did not know what it was about. At the hearing, he commenced by saying that he might have sent the email, but that it also may have been his partner. He said he could not establish who had actually sent it. Under further examination later in the hearing, he changed his evidence and said it was definitely his partner who sent it. The Tribunal found these different versions unreliable and inconsistent. It appeared as if Mr Vukmirovic was adjusting his evidence to reply to questions put by the Tribunal, rather than to be consistent, firm and truthful.
2)As already mentioned, Mr Vukmirovic said that he did not recall who sent the email of 30 July 2008. When asked if he had spoken to his partner about who authored it prior to the hearing, to find out if she might have sent it, his answer was 'No, I did not discuss it with her at all'. When the Tribunal asked him how it was possible that he did not discuss such an important matter as legal proceedings with his partner, he replied by saying that he was 'very busy and did not have time to discuss all issues'.
On further questioning by the Tribunal, he confirmed that he had two proceedings before the BDT and yet he could not give a plausible reason why he had not raised the authorship of the email of 30 July 2008 with his partner, although the credibility of his entire review application rests on the authorship of that email. He also did not provide the Tribunal with a statement or an affidavit from his partner, nor did he call his partner to give evidence as a backup for his own explanation. The Tribunal finds it most unlikely that he would not have discussed with his partner such a serious matter as these proceedings before the BDT, the accuracy of an address on the email or whether she had typed the email. The Tribunal therefore rejects his evidence.
3)Mr Vukmirovic said that if his partner had typed the email, he would have told her what to say, but he did not dictate it or give the address to type. In the absence of evidence that he used a dictaphone or, in the alternative, evidence from his partner in which she recalled that he had dictated the reply to her personally, the Tribunal finds his explanation implausible. The nature of the email is such that it is written in the first person. In the absence of any contradictory evidence, it is more likely than not that Mr Vukmirovic authored the email.
4)Mr Vukmirovic said that he had never seen nor received the request from the BDT for his business address. Nevertheless, before he recanted his evidence, he told the Tribunal that he probably typed the reply to the BDT. The Tribunal finds it unlikely that neither he, nor for that matter his partner, would have replied to the BDT's email without being aware that the BDT had requested his address in the very same email. The email from the BDT was very simple and straightforward in stating 'Please advise us of your place of business address', and Mr Vukmirovic replied to it. It is entirely implausible that he did not see the request from the BDT. The Tribunal therefore rejects his assertion that he did not see the request from the BDT for his business address.
5)Mr Vukmirovic said categorically and repeatedly to the Tribunal that he had had no contact with the BDT between 15 July 2008 and 3 December 2008. He said he only called the BDT after he received the notice dated 3 December 2008 of the reconstituted hearing. The Tribunal repeatedly asked him if he was absolutely sure about his evidence that he had no contact with the BDT during that time and his reply was 'Yes, 100 per cent'.
It appeared, however, on closer scrutiny, that Mr Vukmirovic had, in fact, personally contacted the BDT on his own on 18 November 2008 to make enquiries about the proceedings. It was this call of his that caused the BDT to revert to the previously used address, since he told the BDT that he had not received any correspondence. Hence the reply from the BDT in the email dated 19 November 2008 saying 'As discussed yesterday, please find attached copies of documentation that you alleged have not been received by you'.
His evidence that he had had no contact whatsoever with the BDT between 15 July 2008 and 3 December 2008 is therefore incomplete and is rejected. His apparent dismay and surprise that the BDT started using his correct address again was a fabrication. He clearly knew that the BDT started using his correct address again because he called the BDT to request them to use that address, although he denied it in the hearing. This further erodes the credibility of his evidence.
6)Mr Vukmirovic contended that the BDT, without good reason, used the wrong address to send him the notice of hearing and the decision, and then for some 'unexplained reason', the BDT started sending mail again at his correct address to inform him of the referral of the matter back to the BDT. This evidence of Mr Vukmirovic is rejected. It is clear from the examination and the evidence before the Tribunal that it was Mr Vukmirovic who contacted the BDT on 19 November 2008 and asked them to send mail to the correct address. The explanation for the BDT changing back to the previously used address was therefore that Mr Vukmirovic intervened, in contrast to what he told the Tribunal. His accusation that the BDT reverted from the wrong address to the right address without good reason is therefore unfounded.
7)Mr Vukmirovic said that the address at the bottom of the email of 30 July 2008 was a spelling error. He said it was easy to make such an error, since the numbers are so close on the keyboard. The Tribunal does not find this explanation credible. The numbers 9 and 2 are not close on the keyboard and the same can be said of the numbers 8 and 2. The rest of the email also has no apparent spelling errors. The Tribunal finds it unlikely that whoever typed the email made two such crucial errors.
8)Mr Vukmirovic said, on questioning by the Tribunal, that he always concludes his emails with 'Peter Vukmirovic' and never gives an address. He could not explain why, in reply to the BDT's email of 30 July 2008, an address was given, and then on top of that, a wrong address. The Tribunal concludes that Mr Vukmirovic's reply was intended to answer the BDT's question about his address and that he was fully aware that the BDT had sought his business address.

In light of the above analysis, the Tribunal finds that the explanation given by Mr Vukmirovic for the alleged misunderstanding about his address was implausible and not credible. The Tribunal rejects his evidence.
The Tribunal is therefore satisfied that the BDT acted correctly and within its powers and in accordance with the law when it:
(a)sent notices of the hearing to 9/178 Elliott Road, Scarborough as his last known business address; and
(b)decided to continue with proceedings regardless of the absence of Mr Vukmirovic.
The BDT did not commit any error in law.
In response to the first question, the Tribunal concludes that no error in law was committed by the BDT when it allowed proceedings on 8 October 2008 to continue in the absence of Mr Vukmirovic. In light of the fact that the Tribunal has found that the BDT did not err in law, there is no need to consider the second question, namely, whether a substantial injustice would be suffered if the decision remained unreversed.

Conclusion

The Tribunal's finding is, therefore, that the application for leave to review the decision of the BDT, Order to Remedy 37 of 2008/09, must be refused.

Orders

1.The application for leave to review the decision of the Building Disputes Tribunal, Order to Remedy 37 of 2008/09, is refused.
2.The decision of the Building Disputes Tribunal is affirmed.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER