Zornada and Mercuri
[2008] WASAT 306
•23 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: ZORNADA and MERCURI [2008] WASAT 306
MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 DECEMBER 2008
FILE NO/S: CC 33 of 2008
BETWEEN: RICCARDO ANTONIO FULVIO ZORNADA
VICTORIA ALICE ZORNADA
ApplicantsAND
DENNIS MERCURI
TANYA MERCURI
Respondent
Catchwords:
Builders' Registration Act 1939 (WA) - Review of decision of Building Disputes Tribunal in relation to costs - Decision of Building Disputes Tribunal set aside and decision of State Administrative Tribunal substituted awarding costs to applicant - Applicant subsequently applying for variation of order to include additional witness fees - Application of slip rule
Legislation:
Builders' Registration Act 1939 (WA), s 41
State Administrative Tribunal Act 2004 (WA), s 83
Result:
Application refused
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr T G Darge
Solicitors:
Applicants: Self-represented
Respondent: SRB Legal
Case(s) referred to in decision(s):
Commonwealth v McCormack (1984) 155 CLR 273
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gould v Vaggelas (1985) 157 CLR 215
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590
Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On the review of a decision of the Building Disputes Tribunal, the State Administrative Tribunal upheld the review, substituted its decision for that of the Building Disputes Tribunal and awarded the applicant the costs of the proceedings.
The applicant had omitted to seek as part of its costs, the cost of a witness attending the review hearing. The witness was required to attend for crossexamination. Directions had been issued to the effect that witness statements would be admitted without formal proof unless notice was given by the other party requiring the witness to attend. The respondent had given notice to that effect. However, shortly before the hearing commenced, the respondent conveyed that there was no need for the witness to attend. The only costs identified were filing fees of $270. Mr Zornada was uncertain whether any charge would be made by the witness for preparation and attendance. This was because he considered that the witness had been required to attend by virtue of the directions orders made, rather than at the applicants' request.
The State Administrative Tribunal referred to the circumstances under which an order could be corrected under s 83 of the State Administrative Tribunal Act 2004 (WA) and the requirements for the exercise of a discretion as discussed in Gould v Vaggelas (1985) 157 CLR 215, Tak Ming Co Ltd v Yee Song Metal Supplies Co [1973] 1 WLR 300 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400.
The State Administrative Tribunal held that Mr Zornada's failure to raise the possibility of a charge being made by the witness could not be regarded as an inadvertent omission because he was conscious of the possibility. It was an error of judgment on his part not to have raised the matter. The State Administrative Tribunal held that the slip rule is not intended to protect against errors of judgment but against accidental omissions. The application was dismissed.
Background and the application
On 23 May 2008 the applicants (the owners) were granted leave pursuant to s 41 of the Builders' Registration Act 1939 (WA) (BR Act) to review a decision of the Building Disputes Tribunal reflected in an Order to Pay No 91/2007-08 dated 14 November 2007. The grounds of review were limited to a consideration of whether or not the amount that the respondents (the builder) were ordered to pay the owners should have included the charges of expert witnesses retained by the owners. The review was held on 1 August 2008 and resulted in the application being granted. The Tribunal, which was constituted by Senior Member Raymond and Senior Sessional Member Affleck, an engineer, ordered the builder to pay the additional costs to the owner and also ordered the builder to pay the owners' costs of the application filing fee in the sum of $270.
By letter dated 14 August 2008, the owners applied for additional costs to be awarded to them in an amount of $324.06 relating to the costs of an expert engineering witness. The invoice from Airey Taylor Consulting reflects that the charge made is for the cost of a director preparing for and attending the hearing on 1 August 2008. Also attached to the application is a letter dated 13 June 2008 from the builder's solicitors. The letter consists of several parts. In part, it refers to a without prejudice offer of settlement, which is irrelevant to the present application, and to which it is not appropriate to have regard. However, the letter also expressly states:
We put you on notice that at this stage, we will not be prepared to have any statement admitted by consent without the attendance of the witnesses. Accordingly, Mr Airey will be required to attend the hearing on 1 August 2008. …
That notice was given in accordance with O 5 of a set of directions orders made by the Tribunal on 12 June 2008, which provided that unless either party gives written notice to the other, not less than 10 days prior to the hearing, the parties' witness statements would be admitted without formal proof and the witness would not be required to attend the hearing.
Part of the disputed costs, the subject of the review application, related to charges made by Airey Taylor Consulting in respect of the professional services provided by Mr Airey.
The application for the allowance of additional costs, based on the letter, and as clarified at the hearing, is to be treated as an application under s 83 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to correct the Tribunal's decision as a result of an error arising from an accidental slip or omission.
The directions hearing
A directions hearing was convened following receipt of the owners' letter of 14 August 2008 in order to clarify the basis of the application and to ensure that the matter was dealt with in the most appropriate manner. As it transpired, all information relevant to dealing with the matter was provided at the directions hearing which was conducted by Senior Member Raymond sitting alone. In order to avoid a further unnecessary hearing, the parties agreed that the application be determined by the fully constituted Tribunal on the documents, including a transcript of the directions hearing. It became clear that the application is to be treated as an application to vary the order made on 1 August 2008 under s 83 of the SAT Act.
It is convenient to deal first with a matter raised by Mr Darge, solicitor for the respondent. The Tribunal was informed that Mr Darge could find no record of the application having been served. He had no idea of the basis of the application and it is to be inferred that he knew of the application only by reason of the Tribunal's notice of the directions hearing.
Mr Darge advised that if he had known that the application was only about $324, he probably would not have come because it has cost his client more than that amount for him to review the file and attend.
Mr Zornada advised that he had sent a copy of the invoice in question to the builder's solicitors. It appears that the application consisting of the letter to the Tribunal, the attached letter from SRB Legal dated 13 June 2008 and the invoice dated 12 August 2008 was not served.
Mr Zornada should have been well aware from his prior experience of the conduct of these proceedings that any documents provided to the Tribunal had to be provided to the other party.
As to merits of the application, Mr Zornada stated that he was not sure that there would be a charge for Mr Airey's attendance at the hearing on 1 August 2008. The basis for that uncertainty was explained as arising from the Tribunal having ordered the provision of witness statements, and also that witnesses would not need to attend unless notice was given by the other party. The Tribunal also clarified with the parties, and it was common cause, that Mr Airey had attended the hearing on 1 August 2008, the builder having given notice in accordance with the Tribunal's directions that he do so, but was then effectively released from attendance by the builder prior to the hearing commencing. In the result, the correspondence from Mr Airey which was relied on as his statement was therefore admitted without formal proof.
Applicable law
Section 83 of the SAT Act provides relevantly as follows:
83.Correcting mistakes
(1)The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify
(a)a clerical mistake;
(b)an error arising from an accidental slip or omission;
(c)a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or
(d)a defect of form.
An application was made under the High Court slip rule O 29r11 in Gould v Vaggelas (1985) 157 CLR 215 at 271 and following. The High Court stated (at 274) 'recent decisions of this court provide illustrations of the injustice that may be caused to litigants by the inadvertence of counsel and the willingness of the court in appropriate circumstances to grant a remedy: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590; the Commonwealth v McCormack (1984) 155 CLR 273; Cf. also Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300 (Tak Ming Co Ltd). Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation.
Even if the requirements of the slip rule are met, there remains a discretion to refuse to make an order if something has intervened which would render it inexpedient or inequitable to do so: see Tak Ming Co Ltd above and Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407.
Consideration
The application is understood to be advanced on the basis that through the inadvertence of Mr Zornada, who effectively acted as counsel in the matter, the owners omitted to inform the Tribunal that it would be necessary to ascertain the charges to be made by Airey Taylor Consulting, before finalising the amount of costs to be awarded.
Given the effort of the owners to pursue the recovery of some $1200 of costs not awarded by the BDT but allowed on review, it is inconceivable that the owners would not have sought to recover the $324.06 charged for preparation and attendance at the hearing on 1 August 2008. Nevertheless, we do not accept that the matter comes within the slip rule. Mr Zornada's only explanation that he was not sure that a fee could be charged because the witness might be regarded as having to attend by virtue of the Tribunal's order, shows that he was aware of the possibility of a charge being made. He was not sure about it but, unwisely, did not raise the matter. That cannot be regarded as an inadvertent omission because he was conscious of the possibility of a charge being made. It was an error of judgment on his part not to have raised the matter. The slip rule is not intended to protect against errors of judgment but against accidental omissions.
If we had held that the matter came within the slip rule we would have exercised our discretion in favour of amending the order to include the expert witness costs for the following reasons.
We acknowledge that a factor militating against the exercise of the discretion is the owners' failure to serve a copy of the application on either the builder or the builder's solicitors. Because of that, it is contended that the builder may have unnecessarily incurred costs in attending the directions hearing and that those costs will exceed the additional costs now sought by the owners.
On the other hand, the builder required Mr Airey to attend in order that he be available for crossexamination at the review hearing on 1 August 2008 and then consented to Mr Airey leaving the Tribunal shortly before the commencement of the hearing. There has been no suggestion put forward of any change in circumstances to explain why Mr Airey's presence was initially required but later not required.
The invoice from Airey Taylor Consulting is dated 12 August 2008 and the owners applied within days for the additional costs to be allowed to them. A copy of the invoice was forwarded to either the builder or the builder's solicitors. There has therefore been no relevant delay. There is no suggestion that the builder will suffer any prejudice, other than of course the obligation to pay an increased amount, or that any third party's interests might be affected.
As there has been no challenge of the amount charged, and the basis of charges for Mr Airey's services was dealt with in the review hearing and found to be justified, we would have allowed the full amount which has been charged of $324.06. Unfortunately, as we have concluded that the matter does not come within the slip rule the application to vary the order made on 1 August 2008 to include the above charges must be dismissed.
Order
For the above reasons the Tribunal will issue an order as follows.
1.The application to vary the order made on 1 August 2008 is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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