ZIMOWSKI and IDEAL HOMES PTY LTD
[2022] WASAT 82
•8 SEPTEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ZIMOWSKI and IDEAL HOMES PTY LTD [2022] WASAT 82
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 APRIL 2022
PUBLISHED : 8 SEPTEMBER 2022
FILE NO/S: CC 910 of 2021
CC 1706 of 2021
BETWEEN: LUKASZ ZIMOWSKI
First Applicant
JOLANTA ZIMOWSKA
Second Applicant
MAREK ANDRZEK ZIMOWSKI
Third Applicant
AND
IDEAL HOMES PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for joinder of persons as additional applicants - Whether power to join a person as a party is available in proceeding concerning building service complaint referred to Tribunal by Building Commissioner - Consideration of exercise of discretionary power by Tribunal to join a person as a party to a proceeding
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3(1), s 5(2), s 6(1), s 7(1), s 7(2), s 9, s 10, s 11, s 11(1), s 11(1)(d), s 12, s 12(a), s 12(b), s 37, s 48(3), s 48(4), s 57, s 57(1)(c), s 57(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6(2), reg 6(4)
Home Building Contracts Act 1991 (WA), s 17
Interpretation Act 1984 (WA), s 56
State Administrative Tribunal Act 2004 (WA), s 3(1), s 5, s 13(1), s 14, s 16(1), s 16(2), s 38, s 38(1), s 38(1)(a), s 38(1)(b), s 51(1)
Strata Titles Act 1985 (WA)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Result:
Application for joinder of additional persons as applicants successful
Second and third applicants joined to proceedings
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Third Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | Summers Legal |
| Second Applicant | : | Summers Legal |
| Third Applicant | : | Summers Legal |
| Respondent | : | Palmos Legal |
Case(s) referred to in decision(s):
Coleman and The Owners of Peace Street Community (Survey-Strata Scheme 655005) [2020] WASAT 105
Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155
FMG Pilbara Pty Ltd and Minister for Indigenous Affairs [2012] WASAT 31
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Holman and W & D Moffatt Pty Ltd [2015] WASAT 100
Kruger v Commonwealth of Australia (1997) 190 CLR 1
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Seares and The Owners of Matilda Units Strata Plan 33443 [2018] WASAT 75
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 28 April 2022 I made an order pursuant to s 38(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) joining Ms Jolanta Zimowska as the second applicant to these proceedings and joining Mr Marek Andrzek Zimowski as the third applicant to these proceedings (the joinder order).
The application to join the second and third applicants to the proceedings (the joinder application) was made by the respondent to the proceedings, Ideal Homes Pty Ltd. It was not opposed by the first applicant, Mr Lukasz Zimowski.
As far as I am aware, no previous reasons for decision have been published by the Tribunal regarding the joinder of parties to a proceeding concerning a building service complaint which has been referred to the Tribunal by the Building Commissioner (building complaint referral proceeding) under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Resolution Act).
Therefore, I have decided to publish my reasons for the decision to make the joinder order.
Background
In 2015[1] the respondent constructed a new dwelling on land jointly owned by the three applicants in Landsdale under a building contract between the respondent as builder and the three applicants as owners.
[1] Construction commenced on 8 January 2015 and was completed on 19 October 2015.
On 3 May 2021 the first applicant made a building service complaint to the Building Commissioner against the respondent. The complaint concerns alleged faulty or unsatisfactory building work or work not carried out in a proper and proficient manner in the construction of the dwelling. The Building Commissioner referred the building service complaint to the Tribunal on 4 June 2021 pursuant to s 11(1)(d) of the Complaint Resolution Act, which is the subject of proceeding CC 910 of 2021, with the first applicant as the applicant in the proceeding.[2]
[2] Under s 12(a) of the Complaint Resolution Act the person who makes the complaint to the Building Commissioner is taken to be the applicant in the proceeding in the Tribunal.
On 6 October 2021 the first applicant made a further building service complaint to the Building Commissioner against the respondent concerning the construction of the dwelling, which the Building Commissioner referred to the Tribunal on 15 October 2021, and which is the subject of proceeding CC 1706 of 2021.
On 1 November 2021 I made an order pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that proceedings CC 910 of 2021 and CC 1706 of 2021 are to remain as separate proceedings but be heard and determined together.
On 15 December 2021, the parties filed a minute of proposed consent orders, which included the proposed joinder of the second and third applicants to the proceedings. At the directions hearing on 27 January 2022, I explained to the parties that, as far as I was aware, the Tribunal had not previously considered the question of whether it can join parties to a building complaint referral proceeding and I made an order that the respondent file an application for the joinder of the second and third applicants to the proceedings with supporting submissions. The first applicant did not wish to file submissions regarding the joinder application.
On 11 February 2022, the respondent filed the joinder application and submissions in support of the joinder application.
Issues to be determined regarding the joinder application
To determine whether to join the second and third applicants as parties to the proceedings, I needed to answer the following two questions:
1)Does the Tribunal have the power to join additional persons as parties to a building complaint referral proceeding? (first question)
2)If the first question is answered in the affirmative, should the second and third applicants be joined as parties to the proceedings? (second question)
Submissions in support of the joinder application
The respondent's submissions in support of the joinder application are as follows:
1)Section 38(1) of the SAT Act provides that the Tribunal may join a party to a proceeding if (a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party.
2)Section 38(1) of the SAT Act appears to confer a broad discretion to join parties in a proceeding before the Tribunal.
3)The respondent has been unable to locate any authority suggesting that orders cannot or should not be made to join the second and third respondents as parties to these proceedings.
4)Orders of a similar kind were made in the proceeding the subject of the decision of the Tribunal in The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (The Owners of 52 Mill Point Road).
5)The building work complained of in the proceeding was performed by the respondent under a building contract between the respondent as builder and the first, second and third applicants as owners.
6)The land upon which the building work was carried out was and remains jointly owned by the first, second and third applicants.
7)The second and third applicants' legal interests in the property are directly affected by the outcome of these proceedings, which satisfies the criterion in s 38(1)(b) of the SAT Act.
8)The relief sought by the first applicant is not limited to building remedy orders for the remediation of the building work. The first applicant has claimed significant sums for 'lost rental' and prima facie the first, second and third applicants, as joint owners of the property, have a legal interest in any 'rental award', which enlivens the criterion in s 38(1)(a) of the SAT Act.
9)The Tribunal ought to join the second and third applicants as applicants to these proceedings so that any decision made about the building work the subject of these proceedings will be binding on all relevant parties and avoid a multiplicity of proceedings.
10)In the matters of Coleman and The Owners of Peace Street Community (Survey-Strata Scheme 655005) [2020] WASAT 105(Coleman) and Seares and The Owners of Matilda Units Strata Plan 33443 [2018] WASAT 75 (Seares) respondents who were all registered proprietors of affected lots were joined to the proceedings by the Tribunal pursuant to s 38(1) of the SAT Act.
The jurisdiction of the Tribunal to deal with a building service complaint
Before considering the first question (does the Tribunal have the power to join additional persons as parties to a building complaint referral proceeding?) it is useful to consider the jurisdiction of the Tribunal to deal with a building service complaint.
The Tribunal is given jurisdiction to deal with a matter if an 'enabling Act' confers jurisdiction on the Tribunal to deal with the matter.[3] The Complaint Resolution Act is an enabling Act.
[3] See the definition of 'enabling Act' in s 3(1) of the SAT Act and s 13(1) of the SAT Act.
The Tribunal has two kinds of jurisdiction: original jurisdiction and review jurisdiction.[4] A matter referred to the Tribunal falls within the original jurisdiction of the Tribunal.[5]
[4] Section 14 of the SAT Act.
[5] See para (b) of the definition of 'application' in s 3(1) of the SAT Act.
In exercising its original jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.[6] The enabling Act may modify the operation of the SAT Act in relation to the matter.[7]
[6] Section 16(1) of the SAT Act.
[7] Section 16(2) of the SAT Act.
If there is any inconsistency between the SAT Act and the enabling Act, the enabling Act prevails.[8]
[8] Section 5 of the SAT Act.
A proceeding which is commenced by the referral of a building service complaint to the Tribunal by the Building Commissioner falls within the original jurisdiction of the Tribunal.
When the Building Commissioner refers a complaint to the Tribunal under s 11(1)(d) of the Complaint Resolution Act the complainant is taken to be the applicant in the proceeding before the Tribunal and the Building Commissioner is not a party to the proceeding unless joined as a party under s 38(1) of the SAT Act.[9]
[9] Section 12 of the Complaint Resolution Act.
When a building service complaint is referred to the Tribunal by the Building Commissioner under s 11(1)(d) of the Complaint Resolution Act, the Tribunal only has jurisdiction to deal with the items of complaint which are referred to the Tribunal by the Building Commissioner.[10] That means that the Tribunal does not have the power to allow any additional item/s of complaint to be added to the proceeding. If an applicant wishes to pursue any additional item/s of complaint against a respondent, they must make a further building service complaint to the Building Commissioner.
[10] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 at [67] and Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155 at [26].
In my mind that limitation raised the question of whether any additional party can be joined to a proceeding in respect of a building service complaint which has been referred to the Tribunal by the Building Commissioner under s 11(1)(d) of the Complaint Resolution Act.
The power of the Tribunal to join a person as a party to a proceeding before the Tribunal
As the submissions of the respondent have pointed out, under s 38(1) of the SAT Act the Tribunal may join a party to a proceeding if (a) the person ought to be bound by or have the benefit of a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party.
However, as I have noted above:
•in dealing with a building service complaint the Tribunal is to deal with the matter in accordance with both the SAT Act and the Complaint Resolution Act;[11] and
•the Complaint Resolution Act may modify the operation of the SAT Act in relation to the matter and if there is any inconsistency between the SAT Act and the Complaint Resolution Act, the Complaint Resolution Act prevails.[12]
Does the Complaint Resolution Act modify the operation of s 38(1) of the SAT Act or is there any inconsistency between s 38(1) of the SAT Act and the Complaint Resolution Act?
[11] See [16] above.
[12] See [16] and [17] above.
There are two provisions in the Complaint Resolution Act which refer to s 38(1) of the SAT Act.
The first is s 12(b) of the Complaint Resolution Act, which provides that when the Building Commissioner refers a building service complaint or a HBWC complaint[13] to the Tribunal, the Building Commissioner is not a party to the proceeding unless joined as a party under s 38(1) of the SAT Act.
[13] A HBWC complaint is a complaint about a matter referred to in s 17 of the Home Building Contracts Act 1991 (WA): see the definition of 'HWBC complaint' in s 3(1) of the Complaint Resolution Act and s 5(2) of the Complaint Resolution Act.
The second is s 48(3) of the Complaint Resolution Act, which gives the Tribunal the power to join a person to a proceeding in respect of a HBWC complaint in the circumstances described in that provision. Those circumstances do not apply to these proceedings. However, it is relevant that s 48(4) of the Complaint Resolution Act provides that the power given to the Tribunal under s 48(3) does not limit the powers of the Tribunal under s 38 of the SAT Act.
Neither s 12(b) nor s 48(3) of the Complaint Resolution Act modifies the operation of s 38(1) of the SAT Act or is inconsistent with the operation of s 38(1) of the SAT Act.
In my view there is no provision in the Complaint Resolution Act which is inconsistent with s 38(1) of the SAT Act. It is significant that s 48(4) of the Complaint Resolution Act specifically states that the power given to the Tribunal under s 48(3) of the Complaint Resolution Act does not limit the powers of the Tribunal under s 38 of the SAT Act. This demonstrates a clear legislative intent that s 38 of the SAT Act is to apply to proceedings in the Tribunal arising under the Complaint Resolution Act.
The Tribunal has the power to join a party to a building complaint referral proceeding
I have concluded that the Complaint Resolution Act does not modify the operation of s 38(1) of the SAT Act and that there is no inconsistency between s 38(1) of the SAT Act and the Complaint Resolution Act.
In my view, therefore, under s 38(1) of the SAT Act the Tribunal has the power to join additional persons as parties to a building complaint referral proceeding. The first question is answered in the affirmative.
Consideration of the power given to the Tribunal under s 38(1) of the SAT Act
Before answering the second question (should the second and third applicants be joined as parties to these proceedings?) it is necessary to consider the power given to the Tribunal under s 38(1) of the SAT Act to join a party to a proceeding and the exercise of that power.
No automatic right to joinder arises simply by satisfying any of the three descriptions of a potential party in s 38(1)(a), s 38(1)(b) and s 38(1)(c) of the SAT Act. There remains a discretion on the part of the Tribunal as to whether to order that a person be joined as a party to a proceeding. Section 56 of the Interpretation Act 1984 (WA) provides that where a written law uses the word 'may' that implies that the power conferred may be exercised or not, at discretion.[14]
[14] FMG Pilbara Pty Ltd and Minister for Indigenous Affairs [2012] WASAT 31 at [21].
It is, however, implied in a discretionary power conferred by statute that the discretion must be exercised reasonably.[15]
[15] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [108] and Kruger v Commonwealth of Australia (1997) 190 CLR 1, 36 (Brennan CJ).
In the case of the exercise of the discretionary power by the Tribunal to join a party to a building complaint referral proceeding, in my view, it is necessary to consider the circumstances in which the complaint has been referred to the Tribunal and also the circumstances in which the application for the joinder of a party to the proceeding has been made to the Tribunal.
Before a building service complaint is referred to the Tribunal by the Building Commissioner under s 11(1)(d) of the Complaint Resolution Act there is a process the complaint must go through.
Section 7(1) of the Complaint Resolution Act provides that when a building service complaint is made, the Building Commissioner must decide whether to accept the complaint or refuse to accept it. Under s 7(2) of the Complaint Resolution Act the Building Commissioner may make such enquiries as are appropriate to enable the making of the decision whether to accept or refuse to accept the complaint. Section 7(3) of the Complaint Resolution Act provides that the Building Commissioner may refuse to accept the complaint if any of the circumstances set out in s 7(3) of the Complaint Resolution Act apply, including where the Building Commissioner is not satisfied that the complainant has taken the preliminary action prescribed under s 5(5)(b) of the Complaint Resolution Act.[16]
[16] Regulation 6(2) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) provides that a person proposing to make a building service complaint or a HBWC complaint must give to the person who will be the respondent at least 14 days before making a complaint to the Building Commissioner a written notice of the proposed complaint with a description of the remedy the complainant proposes to seek and the evidence on which the complainant proposes to rely. However, under reg 6(4) the Building Commissioner is given the power to waive or modify that requirement if the Building Commissioner is satisfied that, in the particular circumstances, the complainant has given adequate notice about the proposed complaint.
Having accepted a building service complaint, under s 9 of the Complaint Resolution Act, the Building Commissioner must cause an investigation of the complaint to be carried out by an authorised person and, under s 10 of the Complaint Resolution Act, the authorised person must prepare a report on the investigation and give it to the Building Commissioner. Section 11(1) of the Complaint Resolution Act provides that the Building Commissioner must consider the investigation report and, subject to the other provisions of s 11, the Building Commissioner may (a) dismiss the complaint; or (b) commence a conciliation proceeding; or (c) deal with the complaint under s 37 of the Complaint Resolution Act, or (d) refer the complaint to the Tribunal.
In my view, the required steps in that process (including preliminary action before a complaint is made, an investigation being carried out and a report being provided to the Building Commissioner before a complaint can be referred to the Tribunal) are relevant considerations in the exercise of the discretion by the Tribunal as to whether to join a party to a building complaint referral proceeding. It may be relevant for the Tribunal to consider whether the interests and/or involvement of the person proposed to be joined as a party to the proceeding in the subject matter of the complaint was considered during the investigation of the complaint by the Building Commissioner. Also, it may be relevant for the Tribunal to consider what notice of the complaint has been given to the person proposed to be joined as a party to the proceeding if an application is made for the joinder of a person as an additional respondent.
Also, the stage that the building complaint referral proceeding has reached when an application to join a person as a party to the proceeding is made will be relevant to the exercise of the discretion by the Tribunal as to whether to make a joinder order. The Tribunal will need to consider the consequences of joining an additional party, with regard to the delay this may cause in the matter getting to a final hearing and any increased costs which the existing parties to the building complaint referral proceeding may incur as a result of the joinder. Relevant considerations may include whether the parties have already filed all relevant expert reports and other relevant documents and whether the additional party will want to obtain their own reports and other evidence and run their own case or whether they will join with an existing party in running their case.
As far as I am aware, there have only been two published decisions of the Tribunal in proceedings under the Complaint Resolution Act in which the issue of the joinder of parties to a proceeding under s 38(1) of the SAT Act has arisen. Those decisions are The Owners of 52 Mill Point Road (which has been referred to in the respondent's submissions) and Holman and W & D Moffatt Pty Ltd [2015] WASAT 100 (Holman). Neither of those proceedings concerned a building complaint referral proceeding. Both of those proceedings were commenced by the applicants in those matters under s 57 of the Complaint Resolution Act and they were within the Tribunal's review jurisdiction.
The proceeding in which the decision in The Owners of 52 Mill Point Road was made was an application under s 57(2) of the Complaint Resolution Act seeking the review of the decision of the Building Commissioner to refuse to accept a building service complaint as being made out of time. That proceeding was within the Tribunal's review jurisdiction. The applicant was a strata company, which claimed that it had made the application within the time limit imposed by s 6(1) of the Complaint Resolution Act and its strata manager applied to be joined as a party to the proceeding because the first respondent (which was the builder) was asserting that the strata manager was negligent in its conduct in relation to the making of the complaint on behalf of the applicant (strata company) and that the complaint was made out of time. The strata manager submitted that it ought to be afforded the opportunity to be heard in the proceeding because if the Building Commissioner's decision was upheld it would adversely affect the financial interests and reputation of the strata manager. The Tribunal ordered that the strata manager be joined to the proceeding as a respondent, so that it could be heard in the proceeding. However, at the final hearing the issue of negligence on the part of the strata manager was not pursued by the first respondent (builder) and the strata manager adopted the same position as the applicant (strata company) and relied on the evidence of the applicant.
The proceeding in which the decision in Holman was made was an application under s 57(1)(c) of the Complaint Resolution Act for the review of a building remedy order made by the Building Commissioner. That proceeding was within the Tribunal's review jurisdiction. The building service complaint which had been made to the Building Commissioner concerned an extensive degree of cracking of a number of walls in a dwelling and issues were raised in the review proceeding regarding the cause of the cracking and whether that was due to engineering drawings for the dwelling and plumbing works. The applicant in that proceeding (who was the owner of the dwelling which had been constructed by the respondent) applied to the Tribunal for the joinder of the engineer and the plumber to the proceeding asserting that their joinder would avoid a multiplicity of proceedings because they would then be bound by any decision of the Tribunal. The Tribunal dismissed the application for the joinder of the engineer and the plumber for the reasons stated in Holman.
In Holman, the Tribunal referred to several decisions of the Victorian Civil and Administrative Tribunal (VCAT) dealing with the joinder of parties to proceedings before VCAT under a provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in identical terms to s 38 of the SAT Act and stated that the following principles applied to the application for joinder in Holman:
•The power to join a person as a party is both conditional and discretionary.
•The power is conditional in the sense that it may not be exercised until the Tribunal is satisfied that at least one of the conditions set out in the provision has been met.
•The power is discretionary in the sense that the Tribunal may refuse to exercise it even if it is satisfied that at least one of those conditions has been met.
•It is a serious matter to join a party to a proceeding and the power is not to be exercised lightly.
•A person may be joined as an applicant or a respondent to a proceeding or as a 'joined party' or 'interested party' and there is no requirement that the joined party must be seeking any claim or relief from the proceeding nor is there any requirement that any claim or relief be sought against the joined party.
•The provision is purely a procedural one and does not authorise the grant of relief for or against the party joined.
The proceedings in which the decisions in Coleman and Seares were made were both proceedings under the Strata Titles Act 1985 (WA) in which the initial respondent was the strata company of a strata scheme and owners of lots in the strata scheme were joined as respondents to each of those proceedings under s 38(1) of the SAT Act because as the owners of lots their interests might be affected by the outcome of those proceedings. I think there is a similarity between the situation of those lot owners and the situation of the second and third respondents in this proceeding, even though the lot owners were joined as respondents (because a proceeding was brought by an owner of a lot in their strata scheme which might affect their interests) in contrast to the joinder of the second and third applicants in these proceedings (because they and the first applicant are the joint owners of the property on which the building works were carried out).
Why the second and third applicants should be added as parties to these proceedings
I accept the submissions of the respondent set out in [12 5)-9)] above.
In particular, I note that the building work the subject of these proceedings is on land, which is jointly owned by the first, second and third applicants and the second and third applicants' legal interests as joint owners of the property with the first applicant will be directly affected by the outcome of these proceedings. The second and third applicants are represented by the same law firm which represents the first applicant and their joinder as parties to these proceedings will not cause any delay in the proceedings getting to a final hearing or any additional costs being incurred by the existing parties to these proceedings.
I am, therefore, satisfied that it is appropriate, considering the criteria set out in s 38(1)(a), s 38(1)(b) and s 38(1)(c) of the SAT Act, that the second and third applicants be joined as parties to these proceedings. The second question is answered in the affirmative.
Order
In each proceeding the Tribunal ordered:
1.Pursuant to s 38(1) of the State Administrative Tribunal Act 2004 (WA):
(a)Jolanta Zimowska is joined as the second applicant to this proceeding; and
(b)Marek Andrzek Zimowski is joined as the third applicant to this proceeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
8 SEPTEMBER 2022
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