Zornada and MERCURI
[2008] WASAT 311
•23 MAY 2008
ZORNADA and MERCURI [2008] WASAT 311
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 311 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:33/2008 | 23 MAY 2008 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 23/05/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time and leave to review granted | ||
| B | |||
| PDF Version |
| Parties: | RICCARDO ANTONIO FULVIO ZORNADA VICTORIA ALICE ZORNADA DENNIS MERCURI TANYA MERCURI |
Catchwords: | Builders' Registration Act 1939 (WA) Application for extension of time to apply for leave to review decision of Building Disputes Tribunal Application for extension and leave heard together Whether Building Disputes Tribunal has power to recall and vary order prior to order being perfected |
Legislation: | Builders' Registration Act 1939 (WA), s 41 State Administrative Tribunal Rules 2004 (WA), r 9 |
Case References: | Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196 Sparks v Bellotti [1981] WAR 65 Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 |
Orders | The Tribunal therefore indicated the orders it would make were that:,1. The application to extend time to commence the proceedings is granted.,2. The application for leave to review the order to pay in respect of paragraph 1 of the application is granted.,3. Leave is refused in respect of paragraph 2 of the application. |
Summary | The applicant applied for an extension of time and for leave to review a decision of the Building Disputes Tribunal under s 41 of the Builders Registration Act 1939 (WA).,The applicant had been successful in the proceedings before the Building Disputes Tribunal and had been informed that he would be awarded the costs of obtaining engineering and technical advice. As the applicant did not have all of the invoices with him, he was advised to provide the details within 24 hours of the conclusion of the hearing. The applicant provided the details shortly after the conclusion of the hearing but omitted to include an invoice which the engineer issued that day. The applicant immediately informed an officer of the Building Disputes Tribunal of the omission and the amount of the additional invoice and a copy was later provided on the afternoon of the day on which the hearing had concluded.,In an extempore decision delivered at the conclusion of the hearing, the State Administrative Tribunal granted the extension of time and the application for leave to review the decision of the Building Disputes Tribunal. Reference was made to the criteria for the grant of an extension of time as set out in Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196. All but approximately two weeks of the period of delay was explained by the applicants awaiting the written reasons for decision of the Building Disputes Tribunal and Mr Zornada's absence from Perth.,In relation to the merits of the application, the State Administrative Tribunal held that on the principles discussed in Sparks v Bellotti [1981] WAR 64 (Full Court), the Building Disputes Tribunal had power to work out its own procedures and that included the ability to recall an order prior to it being perfected by execution and the affixing of a seal. The State Administrative Tribunal referred to the type of errors capable of being addressed under usual slip rule procedures, and in the case of the Supreme Court under its inherent power, as indicative of the circumstances in which the Building Disputes Tribunal could recall and vary an order prior to it being perfected.,Having regard to all of the circumstances, the State Administrative Tribunal held that the justice of the case required that the extension of time be granted and that leave be given to review the decision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : ZORNADA and MERCURI [2008] WASAT 311 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 23 MAY 2008 DELIVERED : 23 MAY 2008 FILE NO/S : CC 33 of 2008 BETWEEN : RICCARDO ANTONIO FULVIO ZORNADA
- VICTORIA ALICE ZORNADA
Applicants
AND
DENNIS MERCURI
TANYA MERCURI
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) - Application for extension of time to apply for leave to review decision of Building Disputes Tribunal - Application for extension and leave heard together - Whether Building Disputes Tribunal has power to recall and vary order prior to order being perfected
Legislation:
Builders' Registration Act 1939 (WA), s 41
State Administrative Tribunal Rules 2004 (WA), r 9
(Page 2)
Result:
Application for extension of time and leave to review granted
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondents : Mr D A Winburn-Clarke
Solicitors:
Applicants : Self-represented
Respondents : SRB Legal
Case(s) referred to in decision(s):
Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196
Sparks v Bellotti [1981] WAR 65
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
(Page 3)
Summary of Tribunal's decision
1 The applicant applied for an extension of time and for leave to review a decision of the Building Disputes Tribunal under s 41 of the Builders Registration Act 1939 (WA).
2 The applicant had been successful in the proceedings before the Building Disputes Tribunal and had been informed that he would be awarded the costs of obtaining engineering and technical advice. As the applicant did not have all of the invoices with him, he was advised to provide the details within 24 hours of the conclusion of the hearing. The applicant provided the details shortly after the conclusion of the hearing but omitted to include an invoice which the engineer issued that day. The applicant immediately informed an officer of the Building Disputes Tribunal of the omission and the amount of the additional invoice and a copy was later provided on the afternoon of the day on which the hearing had concluded.
3 In an extempore decision delivered at the conclusion of the hearing, the State Administrative Tribunal granted the extension of time and the application for leave to review the decision of the Building Disputes Tribunal. Reference was made to the criteria for the grant of an extension of time as set out in Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196. All but approximately two weeks of the period of delay was explained by the applicants awaiting the written reasons for decision of the Building Disputes Tribunal and Mr Zornada's absence from Perth.
4 In relation to the merits of the application, the State Administrative Tribunal held that on the principles discussed in Sparks v Bellotti [1981] WAR 64 (Full Court), the Building Disputes Tribunal had power to work out its own procedures and that included the ability to recall an order prior to it being perfected by execution and the affixing of a seal. The State Administrative Tribunal referred to the type of errors capable of being addressed under usual slip rule procedures, and in the case of the Supreme Court under its inherent power, as indicative of the circumstances in which the Building Disputes Tribunal could recall and vary an order prior to it being perfected.
5 Having regard to all of the circumstances, the State Administrative Tribunal held that the justice of the case required that the extension of time be granted and that leave be given to review the decision.
(Page 4)
Introduction
6 The reasons for decision which follow were delivered extempore immediately after the hearing held on 23 May 2008. The transcript of the oral reasons for decision have been put into a form suitable for publication. In doing so, the transcript has been amended in minor respects to present it in a suitable format for publication and otherwise to improve clarity and correct typographical errors.
The application
7 In this matter, the applicants have applied, pursuant to s 41 of the Builders' Registration Act 1939 (WA), by application lodged on 10 January 2008 for an extension of time and for leave to review a decision of the Building Disputes Tribunal (Disputes Tribunal) as reflected in an order to pay, number 1/2007-08. In that order, the respondents were ordered to pay the applicants the sum of $3,333 in respect to engineering and technical advice and reports obtained for the purposes of the proceedings before the Disputes Tribunal.
8 The orders sought in the application are for:
1) an increase in the amount, the subject of the order, to pay from $3,333 to an amount of $4,611.03 in respect of the engineering costs;
2) an order for reimbursement of $6,985 for legal costs; and
3) the costs incurred before this Tribunal in respect of any application and hearing fees.
9 During the course of directions hearings before this Tribunal and because of difficulties and the costs of obtaining the transcript, the applicant indicated that he would not pursue the relief sought in respect of order 2 relating to legal costs.
10 The criteria for an extension of time are, as set out in the respondents' submission, those discussed in the case of Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196. The criteria are the length of the delay, the reasons for the delay, whether an applicant has an arguable case and the extent of prejudice to either party if leave is not granted. It is accepted for the purposes of this application that no real prejudice arises and therefore that is not a matter to which it is necessary to give any particular attention.
(Page 5)
11 The criteria for the grant of leave are as settled in the decision of this Tribunal in Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119. Reference is also made to various principles discussed in decisions of the Disputes Tribunal and they include that one should not take a nitpicking approach to the decisions of the Disputes Tribunal and apply the strict principles applicable to appeals within the court system because of the purposes for which the Disputes Tribunal was established, namely that it should be able to, as a specialist tribunal, deal with the building disputes in an expeditious manner and without being bound by any firm procedural rules.
The delay and background
12 The order to pay, to which reference has already been made, was signed and bears the seal of the Disputes Tribunal and the date 14 November 2007. It is common cause that the hearing in this matter commenced on 12 November 2007 and that there was a view held at the commencement of the first day. The hearing concluded on 13 November 2007, in circumstances in which the applicant was afforded an opportunity to telephone and provide the Disputes Tribunal with the actual costs incurred in respect of the costs of the expert engineering and technical advice.
13 The applicant, Mr Zornada, says that the order would have been received on or about 16 November 2007. It was then clear to him, in the circumstances outlined below, that the full costs which had been sought had not been awarded. There had been an exchange between himself and an officer of the Disputes Tribunal on 13 November 2007 concerning those costs. There is no dispute that the hearing adjourned on the basis that the applicant was to inform the Disputes Tribunal, apparently within 24 hours, of the actual amount of the costs concerned.
14 Those costs were advised by telephone shortly after the hearing was adjourned. Within approximately one hour of that time, Mr Zornada learnt that there were additional costs of which he had been unaware. At approximately 1 pm on 13 November 2007, he telephoned an officer of the Disputes Tribunal and advised of the increased costs. That resulted in an exchange of email communications. In an email from the officer of the Disputes Tribunal, Mr Zornada was informed:
Mr Zornada thank you for your email. Further to our previous telephone discussion, I confirm the Tribunal has been notified of the situation in regard to the additional costs. Unfortunately, the Tribunal has advised the hearing has concluded. The Tribunal has awarded costs on the evidence presented to it at the time of hearing and an order has been finalised. This order will be
(Page 6)
- forwarded to the parties shortly. The only way this further invoice could be considered is for you to make an application for a further hearing (costs) for the Tribunal to consider the matter with all the parties present. I would suggest awaiting the Tribunal's order, then consider making a written request to this office in regard to a further costs hearing or you may consider an application to the State Administrative Tribunal to review the Tribunal's decision may be warranted.
15 At the foot of that email there is reference to an earlier email from Mr Zornada, apparently sent at 2.30 pm that day, attaching two invoices. Also provided is a later email from Mr Zornada on the same day, sent at approximately 4.33 pm, attaching the three invoices on which the applicants rely. It can be concluded from that exchange that the Disputes Tribunal acted on oral information which had been provided and did not have any of the invoices before it at the time it had apparently finalised the matter and, as the Disputes Tribunal saw it, had concluded the hearing.
16 On 27 November 2007, the applicants' solicitor, who had appeared on behalf of the applicants at the hearing, applied by letter to the Disputes Tribunal for the costs to be reviewed under what was referred to as the slip rule. The applicants heard nothing further until receipt of the Disputes Tribunal's reasons for decision. The reasons for decision were published on 4 December 2007 and Mr Zornada says that he received it approximately two days afterwards. In relation to costs, the decision reads as follows:
7. Costs
7.1 The Tribunal accepted that the Complainants were entitled to recover their costs of obtaining engineering and technical advice. Because the Complainants did not have the figures with them, they phoned the Tribunal later that morning to advise that the expenses incurred were:
| $2,343 |
| $715 |
| $275 |
$3,333 |
(Page 7)
- Accordingly an order was made for the OwnerBuilders to pay that sum to the Complainants as current Owners.
7.2 The Orders had been made and the Tribunal had concluded its work, when a further phone call was received by the staff to the effect that the expenses for Mr Airey were much higher, at $4,611. The lawyers for the Complainants have since asked that the Tribunal alter the decision under the sliprule used in the Courts. The Tribunal does not have any equitable authority to correct an Order. Even if it had, it is very doubtful whether this matter comes within the sliprule. It is not a case of the Tribunal making a slip by an incorrect addition of the figures supplied to it. The error was that of the Complainants. As stated we do not have what is an equitable power nor is there anything in the Acts under which the Tribunal operates to allow for such a change, where the fault did not lie with the Tribunal. In the circumstances, the Order cannot be amended.
17 It is apparent from the email exchange, to which reference has been made, that the applicants were aware of their right to apply to this Tribunal for a review. However, it is evident that the applicants sought to follow the first alternative that had been advised to them; that was, by way of applying to the Disputes Tribunal. Although they did not follow that advice to the letter, in that they did not seek a further hearing, it can be fairly inferred that their solicitor had formed the view that the matter could be properly dealt with under the slip rule.
18 That therefore explains the delay in the application to the State Administrative Tribunal (Tribunal) up to 6 December 2007. Pursuant to r 9 of the State Administrative Tribunal Rules 2004 (WA), an application for review must be made within 28 days of the day on which the decisionmaker makes the decision in question. That meant that the applicants had 28 days from 4 November 2007 within which to make application; that is, as calculated by the Tribunal, the application had to be made by 3 December 2007.
19 It is, however, accepted by the Tribunal that it was reasonable for the applicants to wait until they had the reasons for decision because, until then, the applicants were not aware of the outcome in respect of the slip rule application. In respect of the delay from 6 December 2007, Mr Zornada gave as a reason for not acting earlier than he did that he had hoped that the respondents would do the correct thing and pay the full amount of the costs.
20 That, with respect, is not a plausible explanation. Counsel for the respondent tendered a facsimile letter dated 14 November 2007 (but apparently sent by facsimile on 15 November 2007), addressed by the respondents' solicitors
(Page 8)
- to the officer concerned at the Disputes Tribunal, and which was copied to the applicants' solicitor. The letter reflects that the respondents opposed any award being made in respect of the invoice which gives rise to the additional claims now sought to be the subject of the review. In that letter, the solicitors stated:
In respect of the invoice of Mr Airey dated 13 November 2007, it is the respondents' view that it was unnecessary for Mr Airey to attend the residence prior to the hearing on 12 November. Mr Airey had already attended the premises and produced a report. It was therefore unreasonable to require the respondent to pay this portion of the invoice and the respondent opposes any such order that he be required to do so.
22 Mr Zornada also stated during the hearing that he had been informed that the Tribunal would be closed between Christmas and New Year. That advice, if given, was not correct, because apart from the actual public holidays, the Tribunal offices were open during that period. It emerges from this that the delay since 6 December 2007 is not as fully and adequately explained as to account for the full period of the delay.
23 However, taking into account the explanations to which reference has been made and the extent to which the Tribunal has accepted the explanations, it does mean that the period of delay which could be attributed to the applicants' neglect or inadvertence is probably not much more than two weeks. It is necessary to then have regard to the merits of the application.
The merits
24 Reference has already been made to the particular portion of the Disputes Tribunal's reasons for decision dealing with the question of costs. It emerges that the Disputes Tribunal had, as a matter of principle, determined that the applicants should be able to recover their costs of obtaining engineering and technical advice. To a lawyer, that phrase would ordinarily not include the costs of attending a view and attending at the hearing and it is in respect of those attendances that the omitted invoice relates.
(Page 9)
25 Having said that, it is not terminology which is particularly clear and the question must be raised as to whether or not the parties attending before the Disputes Tribunal envisaged that the costs charged by the expert witness were to be recovered in a more general sense. Certainly the rhetorical question arises as to what logical explanation exists for the applicants' counsel not applying for those costs, if it was not understood that those costs were included in what the Tribunal had accepted should be recovered by the applicants.
26 In that regard, it is also instructive to consider the respondents' solicitor's facsimile letter, to which reference has been made, dated 14 November 2007. Nowhere in that document is the point made, which is being pressed in this Tribunal, that no application had been made which was wide enough to cover those costs. The criticism and opposition to the award of costs was limited to the submissions referred to; namely, that the costs of attending the view were not necessary costs. Nothing is said about the costs of attendance at the Disputes Tribunal.
27 It is, nevertheless, clear that the respondents objected to any such order being made in respect of the additional invoice or the amounts reflected in the invoice dated 13 November 2007. If the Disputes Tribunal had power to give consideration to that invoice after the conclusion of the hearing and after the order had been finalised, although not signed and sealed, the proper course, given that objection, would have been to convene a further hearing.
28 It must be observed that the whole manner in which the Disputes Tribunal has dealt with the question of the costs to be awarded in respect of the expert witness is unsatisfactory. It is apparent the Disputes Tribunal acted on the oral advice of Mr Zornada and there was no opportunity given to the respondents to challenge the reasonableness of whatever amounts were informed to the Disputes Tribunal.
29 It is necessary, therefore, to have regard to whether or not the Disputes Tribunal had power to recall the order. It was not necessary for the Disputes Tribunal to rely on equitable powers to recall and vary an order. In Sparks v Bellotti [1981] WAR 65 (Full Court) (Bellotti) the court referred to the confusion caused by the manner in which earlier decisions had been applied, which held that a Court of Petty Sessions had no inherent jurisdiction. In Bellotti reference was made to statements in the earlier decisions and the point was made that the statements taken out of context might appear to support the view that Courts of Petty Sessions, being creatures of statute, the powers of magistrates and justices are limited strictly to the power specifically conferred by the relevant statute. The court continued at 67:
(Page 10)
- However, when regard is had to the subject under discussion in the two cited appeals, it will be realised that in each case the court was dealing with a question of jurisdiction. If the matter under discussion in this appeal went to jurisdiction, then indeed one is required to look at the Justices Act to see whether the power sought to be invoked was conferred thereby. But in this case the court was not dealing with a matter of substantive law it was dealing with a question of procedure and as Lord Widgery CJ stated in R v Camberwell Justices: ex parte Christie [1978] 2 All ER 377 [1978] 2 WLR 794: 'so far as the court is dealing with matters of practice it is permissible for the court to work out its practice in its own way and it is not necessary to find specific statutory authority for the doing of acts which are classified as part of the general practice'.
30 The Tribunal is satisfied that what was sought did not in any way go to the substantive jurisdictional limits of the powers of the Disputes Tribunal. It is a matter of procedure as to whether or not an order should be recalled prior to the order being sealed. That must be taken to be the case in this matter because the order is dated 14 November 2007, that is, the following day after the various communications with Mr Zornada to which reference has been made.
31 Obviously, in all cases, a significant consideration must be that there should be finality to litigation, but where an error of this nature is raised very shortly after the hearing was concluded, there is a power, as the Tribunal holds, which can be exercised to correct those types of errors which would ordinarily be covered by the slip rule. The question therefore arises whether this is the type of error which could be dealt with under the slip rule. Counsel for the respondents suggested that unless it was an error of a technical nature made by the Disputes Tribunal itself, it would not be appropriate to correct the order.
32 The Tribunal considers it is by far too narrow a view of the type of matters which can be dealt with under the slip rule. There is a discussion of what is referred to as the inherent jurisdiction of the Supreme Court to recall or vary orders contained in Civil Procedure Western Australia Supreme Court, Seaman at [63.0.7]. It is there stated:
The court has inherent jurisdiction to inquire whether the entered judgment expresses its decision or whether it requires amendment to keep its records in line with the real position, Permanent Trustee Co Canberra Limited v Stocks and (Holding) Canberra Pty Ltd (1977) 15 ACTR 45 at 48 unless some event has intervened which makes it inequitable or unjust to do so,
(Page 11)
- Hatten v Harris [1892] AC 547 at 560. The court also has inherent jurisdiction to amend an order which turns out to be incorrect by the inadvertence of counsel or by the mistake of a judge which is not corrected by counsel so as to rectify situations of injustice, Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524, (Full Court), or to amend an order made in a form which does not correctly express its intention, Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 at 390, 398.
33 The Tribunal accepts those general principles as there expressed as indicating the type of circumstances in which, absent a slip rule applying expressly to the Disputes Tribunal, it would be entitled to recall and vary its orders which have not been perfected. In this instance, there is a question as to whether or not the amounts claimed in the additional invoice fall within the original intent of the Disputes Tribunal.
34 For the reasons to which the Tribunal has already referred, the reasons for decision are not as clear as they might be in that regard. If the reasons for decision were to be read restrictively, it is surprising that the costs of the view and attendance at the hearing were not raised by the applicants' counsel. It is also surprising that the issue was not referred to in the respondents' solicitor's letter of 14 November 2007. So it is, at the very least, arguable that the additional amounts claimed fall within the ambit of the Dispute Tribunal's decision.
35 There is in addition the question of whether or not this should be regarded as the type of slip which can be equated to inadvertence on the part of counsel. Although the applicant had legal representation at the hearing, it is apparent that Mr Zornada acted for the applicants in providing these costs and that at the time he provided the costs, he was not aware of, but shortly thereafter became aware of, the true or the full amount of the costs for which the applicants were liable. There can be no doubt Mr Zornada intended to notify the Disputes Tribunal of all costs sought to be recovered and his omission to do so can be equated to an omission by counsel.
Conclusion
36 Taking all of these factors into account, the Tribunal concludes that the justice of the case requires that there should be a proper consideration of the additional costs sought to be recovered by the applicants. For those reasons and having regard to overall considerations of justice, orders should issue granting the extension of time and granting the application for leave in respect of the particular invoice.
(Page 12)
37 The Tribunal therefore indicated the orders it would make were that:
1. The application to extend time to commence the proceedings is granted.
2. The application for leave to review the order to pay in respect of paragraph 1 of the application is granted.
3. Leave is refused in respect of paragraph 2 of the application.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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