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[2007] WASAT 124
State Administrative Tribunal (WA)
2007-05-24
Mr J
Original judgment source is linked above.
The applicant's participation before the Disputes Tribunal
16 Evidence was filed in this Tribunal going to whether or not the builders received hearing notices and other documents relating to the matter in the Disputes Tribunal. The Disputes Tribunal, in its reasons for decision published on 16 February 2007, made the following findings and conclusions going to that issue:
the builders had actual knowledge of the proceedings and actual knowledge of the hearing dates of 24 August 2006 and 1 September 2006 (T: 7);
the applicant was not, contrary to his assertion at the time, prevented by inclement weather from attending the hearing on 24 August 2006 (T:7);the builders had ample opportunity to participate in the proceedings, obtain evidence and adduce it before the Disputes Tribunal (T:8);any prejudice caused to the builders by the matter proceeding in their absence was caused entirely by their own contumelious disregard for the proceedings and was outweighed by the prejudice that would be suffered by the respondents not having the matter finally determined (T:8);on 21 August 2006 the respondents caused a bundle of documents relied upon by them to be served on the builders (T:6). The actual affidavits of service, which are before this Tribunal, indicate that although the applicant's wife was served on 21 August, the applicant was served on 17 August, 7 days before the first day of the final hearing;the correct address for service of documents and notices, to which the respondents' and the Disputes Tribunal's correspondence and notices were sent, was "C/- Signpower, 191 Hay Street, Kalgoorlie, WA 6430"(T:7, by inference);the builders had eschewed any involvement or participation in the proceedings from March 2004 (T:8).
17 The only complaint raised by the applicant stemming from the builders' absence from the hearing related to the Disputes Tribunal's failure to give them the opportunity to be heard once it had heard evidence from the respondents' witnesses that the defects in the house were to be rectified by demolishing the house and rebuilding. I will return to this complaint in my consideration of the natural justice ground. As none of the above findings and conclusions is challenged, they are to be taken as correct, save for the amended date for service on the applicant to which I have referred.
18 The principles were the subject of broad agreement between the parties, and are set out conveniently by Senior Member Raymond of this Tribunal in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 at [35]- [44]. In summarised form, the principles are:
19 The Disputes Tribunal's decision that it had jurisdiction to hear and determine the complaint was made orally on 19 August 2004 and was the subject of an order sent to the parties on 24 August 2004. Consistent with the finding of the Disputes Tribunal that the builders received all its correspondence and notices, they are to be taken as having received the order.
20 As both the notification to the parties of the hearing of the preliminary issue (which, again, must be taken as having been received by the builders) and the Disputes Tribunal's reasons for decision made clear, the question determined in reaching its decision on jurisdiction was whether the complaint was lodged within six years of completion of the building works, in accordance with s 12(1aa) of the BR Act. The answer to that question depends upon when the building work was completed and when the complaint with the Disputes Tribunal was lodged. The Disputes Tribunal found that the building work was completed on 30 March 1998 and that the complaint was lodged on 29 March 2004, one day before the expiry of the limitation period.
21 The applicant submitted that the Disputes Tribunal erred in deciding that it had jurisdiction because there was insufficient evidence upon which it could find exactly when the building work was completed. The only evidence on that issue was the notation "Completed 30/03/98" on a computer record held by the City. That evidence, according to the applicant, did not provide a reliable or accurate indication of when the building was actually completed. He pointed to evidence of a building surveyor with the City, Mr Bassett, at the final hearing, in response to the Dispute Tribunal's own questioning, that the completion date recorded by the City was for rating purposes and was likely to have been the date on which a drive-by of the property occurred to see if the house was occupied.
22 The applicant, by his amended ground 2, also sought to cast the Disputes Tribunal's conduct in making its final decisions as beyond power, in circumstances where the evidence did not permit the finding that the building work was completed on 30 March 1998 and not before that date. That, according to the applicant, was a matter about which the Disputes Tribunal had to be satisfied on the evidence it had heard at the time it made its final orders. Therefore, whether one looked at the matter in terms of the decision on jurisdiction or exercise of power, the Disputes Tribunal was in error in proceeding to hear the matter and determine it by making the orders it did.
23 The respondents submitted that the Disputes Tribunal made its decision on the jurisdictional issue on the basis of the evidence before it at the hearing of the preliminary issue, there existed a discernable basis for that decision, and the evidence upon which the applicant relies was not produced at that hearing and could not be relied upon subsequently. They rejected the proposition that the Disputes Tribunal was required to keep the question of its jurisdiction and power to make orders under constant review, so that if it became aware of evidence suggesting that its decision on jurisdiction was incorrect, it should feel unconstrained to overturn it or alternatively decide that it lacked power to award the relief that the respondents sought.
24 What then is the effect of the Disputes Tribunal's decision, made at the hearing of the preliminary issue on 19 August 2004, that the Disputes Tribunal did have jurisdiction? This question can be analysed in a number of ways. Is the Disputes Tribunal functus officio in relation to the jurisdiction/power issue? Does the earlier decision create an issue estoppel? Is the decision final so as to give the party adversely affected an immediate right to seek its review which was not exercised by the builders?
25 In the end, the nature of the decision as determining jurisdiction resolves the matter in favour of the view that the Disputes Tribunal retained the capacity to reassess its decision in light of evidence at the final hearing before it. It was certainly required to be satisfied of its power to make the orders it ultimately made. The following passage from Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18 is apposite:
" ... It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently 'final' and 'determinative' to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]- [77].
It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a 'jurisdictional fact' is neither conclusive, nor binding: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179."
26 The following short passage from Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 provides an example of a jurisdictional fact which applies to the facts of this case (at 178):
"If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain."
27 It is clear that the Disputes Tribunal was required to review the issue of jurisdiction/power in light of new evidence at the hearing casting doubt upon its decision on the preliminary issue that it had jurisdiction, rather than simply relying upon its earlier decision. It is also apparent, in light of Mr Barrett's evidence, that its finding that building work was completed on 30 March 1998 was unsafe.
28 The respondents submitted that if this Tribunal reached the conclusions just stated, it was necessary to consider whether, in light of the entirety of the evidence, it can be said that the house has ever been fit for occupation in a free and uninterrupted manner, being the statutory test for completion of building work under s 12A(1aa) of the BR Act. Alternatively, because the Disputes Tribunal found that the whole construction is so seriously defective as to require demolition, and demolition would disrupt the respondents' occupation of the house, it followed that the building work has not yet been completed.
29 At page 15 of the reasons for decision, the Disputes Tribunal said:
"The Tribunal finds on the balance of probabilities that the construction of the whole house was faulty and unsatisfactory and the Tribunal accepts the evidence of the inspectors, Mr Girando, Ms Herman and Mr Todd. It is the experience of the Tribunal that rarely will an engineer assert that a house is structurally unsound or assert demolition to be the least expensive and most effective means of remedying defective building work ...
The Tribunal found that on the facts of this particular case the defective building work:
is so widespread from the roof sheeting to the footings of the house;
has detrimentally effected [sic] the structural integrity of the home; andis not capable of being reasonably remedied by piecemeal work."
30 Details of the evidence of the various witnesses appear at pages 11-14 of the reasons, and include the following:
31 Counsel for the applicant submitted that the respondents' argument based on the definition of completion of building work under the BR Act is an attempt to support what the Disputes Tribunal did on a different basis, in relation to which, if the matter went on appeal in the normal way, notice would be required. This is the applicant's application for leave, and it is for the applicant to establish that the Disputes Tribunal's decision was wrong or attended by doubt. I can see nothing wrong in the respondents seeking to meet the case for leave by an assertion that if the applicant's argument about the significance of the computer record of the City is upheld, leave should be refused because the findings of the Disputes Tribunal must lead to the same result, albeit by a course of reasoning which the Disputes Tribunal did not employ. The applicant was provided with notice of the alternative argument and made submissions in response to it. I will return to those submissions after making reference to a decision, upon which both parties sought to rely, of the District Court in Content Living Pty Ltd v McIntosh & Anor [2005] WADC 173.
32 The question for Commissioner Schoombee in Content Living was whether the decision of the Deputy Chairperson of the Disputes Tribunal that that Tribunal had jurisdiction should be overturned. The Deputy Chairperson had found that the limitation period commenced when repairs were effected to a defective item, thereby permitting a rolling series of dates of completion of building works in the case of repairs. Commissioner Schoombee rejected this approach on the basis of her interpretation of s 12A(1aa) of the BR Act, which led her to conclude (at [43]):
"The intention must therefore have been that a single date, namely when the building became fit for occupation in a free and uninterrupted manner, determines the start of the limitation period and not a series of different dates which may related to different items of building work being completed."
33 Commissioner Schoombee distinguished the test under s 12A(1aa) of "when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner" from "practical completion", which is the concept employed in the Home Building Contracts Act 1991 (WA), and which concept was the basis for the Deputy Chairperson's decision. However, she dismissed the appeal on the basis that the Deputy Chairperson's finding that the complaint was filed within time was upheld, albeit on a different interpretation of s 12A(1aa). The Commissioner's interpretation is summarised at [50] as follows:
"In my view the only sensible interpretation of s 12A(1aa) is that it was meant to provide a cut off for complaints to the Disputes Tribunal six years after the building became fit for occupation in a free and uninterrupted manner irrespective of what later repairs are carried out. Once any initial substantial defects, which prevented free and uninterrupted occupation, have been fixed or repaired, there is no reason why the limitation period of six years should not start to run. If an initial substantial defect is not repaired properly so that it is still interfering with the owner's free and uninterrupted occupation, the limitation period will not start to run. If a defect is only discovered at a later stage, it must be a latent defect which could not of itself have prevented free and uninterrupted occupation, because the owner was not aware of it. As long as the defect is discovered within the six year period after the owner enjoyed free and uninterrupted occupation the owner can still file a complaint. But the period in which the complaint can be filed will be shortened by the time that it took to discover the defect after the owner had free and uninterrupted occupation."
34 In this case, there was no suggestion of any of the defects the subject of complaint having been fixed or repaired. Subject to the issue of latent defects, to which I will return, the question to be answered is whether any of the original defects the subject of the respondents' complaint can be said to have prevented free and uninterrupted occupation. If so, not only had the limitation period not expired when the respondents lodged their complaint, but it has still yet to commence. The applicant submitted that there is no evidence that the respondents' occupation has been interrupted. The builders moved into the house at the end of 1996 and remained there until 2003 when the respondents purchased the house, providing further proof of the free and uninterrupted occupation of the building for a number of years.
35 Commissioner Schoombee dealt with the concept of occupation in a free and interrupted manner in the Content Living case. She referred to case law in the area of landlord and tenant concerning the covenant of quiet enjoyment. At [61] she said:
"On the basis of the more recent Australian decisions it appears that a substantial interference with the lessee's use of the premises, even though it be temporary in character, qualifies as a breach of the covenant of quiet enjoyment and that it is not necessary for the lessee's normal use of the premises to be rendered impossible or impracticable. In Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 at [95], Young CJ further held that in deciding whether there was substantial interference with the lessee's enjoyment, one should look at 'the whole package' of disturbances."
"Taking some guidance from the case law dealing with convenants for quiet enjoyment, it is my view that any disruption which causes the building not to be fit for occupation in a free and uninterrupted manner, must be not insignificant, although it may be temporary. It is not necessary that the disturbance or interruption caused the owner to be unable to use the building for the purpose for which it was intended. This means that although an owner may still be able to live, sleep and eat in a dwelling, the disturbance caused by a defect or by repair work carried out may be such that his or her occupation of the dwelling can no longer be described as 'free and uninterrupted'. For example, if the dwelling has only one shower and this cannot be used for a substantial period of time because of a defect, the owner may be able to attend to personal hygiene in a different manner, but his or her occupation would not longer be free and interrupted."
37 Commissioner Schoombee's determinative finding appears at [74]:
" ... on the basis of the finding in Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd (supra) that one must look at 'the whole package', it is likely that the number of matters complained about by the respondents as at 14 October 1998, at least in their totality, caused the respondents not to have enjoyed free and uninterrupted occupation prior to that date and for some time thereafter until at least the substantial defects were fixed. As I do not have detailed evidence on the extent of each defect and the nature and extent and repair required, I prefer to base the finding that there was no free and uninterrupted occupation as at 20 July 1998 on the respondents' inability to make use of the bath. In my view a bath is a substantial aspect of the use and enjoyment by an owner of his home and where the bath cannot be utilised this constitutes a substantial interference with the free occupation of the dwelling."
38 The outcome in Content Living, which the applicant did not seek to challenge, relies upon the concluding words in s 12A(1aa), "in a free and uninterrupted manner". Commissioner Schoombee's focus upon these words is made explicit in [54] and the heading preceding that paragraph. However, there might be cases where the focus is on the preceding words in the subsection, "fit for occupation". There is no reason to presume that "fit for occupation" and "in a free and interrupted manner" are co-extensive. The defect which ultimately founded Commissioner Schoombee's decision, the owner's inability to use a bath, led to a conclusion of no free and uninterrupted occupation six years prior to the filing of the complaint, and therefore the matter was not time barred. Compared with the defects found by the Disputes Tribunal in this case, the problems with a bath pale into insignificance, yet the applicant argues against the completion of building work on the basis of actual occupation of the house without the interruption for a number of years. This argument in my view ignores the primary requirement that the building to which the work relates becomes fit for occupation. A house which is so structurally and fundamentally flawed cannot on any view be fit for occupation. Further, the qualification relating to latent defects in Commissioner Schoombee's reasons at [50] does not apply, because the serious defects as found by the Disputes Tribunal remained and continued to compromise the fitness for occupation of the house.
39 For the above reasons, I have concluded that the power of the Disputes Tribunal to make the order to pay and costs order was not excluded by s 12A(1aa) BR Act, as the complaint was made before the expiration of six years from the time when the building was completed, given that I have found that the building has not yet been completed in accordance with that subsection. As occurred in Content Living, the decision of the Disputes Tribunal is upheld, although on a different interpretation of s 12A(1aa). Leave to review its decision on grounds 1 and 2 is refused.
40 The applicant sought to challenge the Disputes Tribunal's finding that the preliminary notice was validly given in accordance with s 12A(2) and s 12A(3) of the BR Act. Those provisions are set out here:
A complaint under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3).
A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending complainant complains and calling on the other party to ¾
(b) otherwise attempt to settle any matters that are in dispute."
41 There might be an issue as to whether the Disputes Tribunal purported, as part of its decision on the preliminary issue, to determine finally that a valid preliminary notice was given. The transcript of the hearing of the preliminary issue, which was in evidence, discloses questioning by the Disputes Tribunal of Mr Evans regarding the sending by registered mail of a letter relied upon as the preliminary notice. Immediately after the pronouncement by the Chairperson of the Disputes Tribunal of the finding that the complaint was filed within time, she said the following in relation to the preliminary notice issue (T:9):
"I am satisfied that there has been an attempt to issue a preliminary notice but as the ... if this matter proceeds to a hearing it would be prudent for you to produce the registered mail documentation to establish that. It appears as though that has occurred."
42 Although the reasons published subsequently suggest that, in its deliberation on the preliminary issue, the Tribunal found that the respondents had issued the required preliminary notice, this is at odds with the quoted passage, which speaks of "an attempt to issue" the notice, and an indication that, at the final hearing, evidence of "registered mail documentation" should be produced "to establish that". For the purpose of this leave application, I have proceeded on the assumption that the Disputes Tribunal's satisfaction that a preliminary notice was given in accordance with s 12A of the BR Act was the subject of a preliminary finding only at the preliminary issue stage, which was crystallised after further evidence was produced at the final hearing.
43 The preliminary notice upon which the respondents relied and which the Disputes Tribunal accepted as valid was a registered mail letter dated 24 March 1998 to the builders. The letter referred to the fact that the builders were the owner/builder of the respondents' house, advised that both the original and added structures were of poor workmanship standard, and set out a list of 30 defects which were introduced by the following:
"We are therefore writing to you to request that you rectify the following defects which are a direct result of poor workmanship by you."
"Under the Home Building Contracts Act you are required to ensure that the work you carry out is done to a proper standard. If it is not, it is, as owner/builder, your responsibility to rectify."
45 The letter contained no reference to the BR Act.
"Please advise within seven days of the date of this letter as to whether you intend to commence the repairs requested. In the event that you don't we intend to lodge a complaint with the Building Disputes Tribunal in relation to your poor workmanship."
47 The applicant raised a number of challenges to the validity of the respondents' letter dated 24 March 2004 as a preliminary notice. He noted that the letter was not in the prescribed form for preliminary notices (being Form 12 in the first appendix to the Builders Registration Regulations (WA)), but acknowledged that compliance with that form was not essential. In fact, the applicant submitted that the letter complied with the substantive requirements of the BR Act, except for the letter's reference to the Home Building Contracts Act 1991 and lack of reference to the BR Act. In my view, given the applicant's concession that the substantive requirements of s 12A(3) were met, which in my view is well made, the mistaken reference to the Home Building Contracts Act 1991 is neither here nor there. Section 12A does not by its terms have any requirement for stipulation of the appropriate legislation, the reference in the prescribed form to that matter being a matter of form rather than substance.
48 The applicant's next challenge to the purported preliminary notice was that the time which it permitted for response was unreasonable. The applicant submitted in order for a preliminary notice to be valid, it must allow a reasonable period to permit either of the alternatives in s 12A(3) (rectify the defects or otherwise attempt to settle any matters in dispute) to occur. In this case, no contact by the respondents was received by the builders prior to the sending of the letter, and the defects to which the letter referred were significant ones, in relation to which the builders needed a reasonable period to consider and, if necessary, obtain advice. To allow seven days in which for this to occur was unreasonable. Further, the complaint was filed some four days after the registered mail was sent, which was prior to the time which even the letter allowed.
49 The applicant relied upon the decision of this Tribunal in Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 243, particularly at [26]-[34]. In that decision, this Tribunal considered the purpose of the preliminary notice to be the resolution of as many complaints as possible before complaints are filed with the Disputes Tribunal, which gave rise to an inference, it was submitted, that the time stipulation in the notice must be reasonable to allow either of the possibilities under the provision to occur.
50 The facts in Tangent Nominees were quite different from the facts in this case. In that case, the purported preliminary notice, while referring to the number of defects, merely indicated that a complaint was being made to the Builders Registration Board and no request was made of the builder to rectify the defect or otherwise attempt to settle the matters in dispute. This Tribunal determined that the purported preliminary notice was not valid because it did not give the builder the required opportunity. It did not need to go into the technicalities of the opportunity provided, because none was.
51 In my view, assuming that the letter dated 24 March 1998 complied with service requirements, it was a valid preliminary notice. There is no time requirement in s 12A(3). Although the general policy of the provision as stated in Tangent Nominees might be accepted, in my view, so long as some opportunity is given for the builder to address the matters the subject of complaint and respond, the preliminary notice is to be regarded as valid. The BR Act is beneficial legislation in favour of victims of unsatisfactory building work and the Tribunal should be slow to strike a preliminary notice which is a condition precedent to the making of a complaint. Although it is not necessary for the purpose of deciding this case to express a finalised view, there might be cases where the period between the giving of a preliminary notice and the filing of a complaint is so short that the builder has no real opportunity to respond. However, in my view, that is not the case here where, assuming the preliminary notice was read, the builder had some days in which to give a meaningful response. The fact that the owners had only allowed themselves a period of a few days from the giving of the notice before the last day for filing a complaint might be the subject of some criticism, and might have meant, for example, that the prospects of reaching settlement with the builder prior to the issue of a complaint were limited. However, filing of the complaint did not prevent the parties from continuing with negotiations initiated by the giving of the preliminary notice, which could have occurred before the proceedings in the Disputes Tribunal advanced much at all, which would also have been consistent with the intent of the legislation as stated in Tangent Nominees. In any event, based on the interpretation of s 12A(3) I have adopted, the letter complied with the requirements of the subsection.
52 The applicant's final submission in relation to the preliminary notice was that no preliminary notice was "given" as required by s 12A(2) BR Act on the basis of the evidence before the Disputes Tribunal. That evidence included that the letter was sent by registered mail, which was returned unopened with a notation "Delivery refused".
53 The exhibits before the Disputes Tribunal were forwarded to this Tribunal. Exhibit 4 is the actual registered post envelope and contents relied upon by the applicant, addressed to the builders, bearing a stamp of the Kalgoorlie post office dated 25 March 2004 and, on the back, a standard "Return to sender" stamp with a number of alternative reasons for the return, in this case with the box for "Delivery refused" checked. The envelope was addressed to the builders care of the 191 Hay Street address. The application of s 76 and s 75 of the Interpretation Act 1984 (WA) (Interpretation Act) in the circumstances of the return of the letter to the respondents was the subject of competing submissions by the parties.
54 It was common cause that s 76 of the Interpretation Act applied to those circumstances. That section provides that where a written law authorises or requires a document to be served (which included "given", being the word used in s 12A(2) of the BR Act), without directing it to be served in a particular manner, service may be effected by, amongst other ways, post in accordance with s 75(1) of the Interpretation Act. Section 75(1) provides:
Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post."
55 The applicant submitted that "given" must mean bringing to the attention of the proposed recipient. According to the applicant, the evidence indicating that the notice was not given in that sense took precedence over the deeming operation of s 75(1) of the Interpretation Act.
56 The High Court considered the operation of s 39(1) of the Acts Interpretation Act 1954-1962 (Qld), a provision in similar but not identical terms to s 75(1) of the Interpretation Act, and s 42(1)(c) of the Hire-Purchase Act 1959 (Qld), which bears resemblance to s 76 of the Interpretation Act, in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. In that case, the appellants deposed that they had not received certain notices under the Hire-Purchase Act 1959 sent by the respondent. The relevant notices had not been returned in the post and there was no other circumstance which suggested that they did not reach their destination. At 96-97 the Court said:
"There is a line of cases, commencing with Reg. v County of London Quarter Sessions Appeals Committee; Ex parte Rossi (19), which deal with the effect of proof of non-delivery where service by post is permitted and used, having regard to s. 26 of the Interpretation Act 1889 (U.K.). That section is the equivalent of s. 39(1) of the Queensland Acts Interpretation Acts. The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed: see Beer v Davies (20); Hewitt v. Leicester Corporation (21); Saga Ltd. V. Avalon Promotions (22); A/S Cathrineholm v. Norequipment (23); cf. Lombard Australia Ltd v. Mohrwinkel (24). It may be thought that there is an anomaly in such a result because it means that, notwithstanding adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is, however, unnecessary to pursue these decisions here save to remark that they are all cases in which delivery was disproved. Despite remarks in the judgments about non-receipt, it was non-delivery which was significant because the second limb of s. 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery. It follows that the application of s. 39(1) of the Acts Interpretation Acts in no way affects the proof of service of the notices in this case in accordance with s. 42(1)(c) of the Hire-Purchase Act and that such service is deemed to have taken place in the due course of the post." [Emphasis is mine.]
57 There is a number of observations to be made in relation to this passage. First, the High Court noted the paradox arising from the cases to which it referred that where non-delivery is proven, although, under the equivalent section in the Queensland legislation, service is deemed to have occurred, the non-delivery will preclude the establishment of service at any particular time. Second, it is non-delivery, not non-receipt, which will have that effect. Third, the fact, if it be established, of non-receipt will not displace the presumption that delivery has been effected at the time at which it would have taken place in the ordinary course of post.
58 The applicant contended that no inference could be drawn, in the absence of any evidence of post office practice, that the "refusal" referred to on the back of the registered post letter was by the intended recipient. There might be some debate about that, given the other possible alternatives according to the "return to sender" standard stamp - for example, left address, unoccupied, unclaimed and unknown address. However, the passage from Fancourt v Mercantile Credit Ltd indicates that the focus needs to be on whether or not "non-delivery" has been proved. If not, then the presumption in s 75(1) of the Interpretation Act should be applied according to its terms, which would result in service of the notice being deemed to have occurred for all purposes at the time when the letter would have been delivered in the ordinary course of post. It is for the intended recipient to prove non-delivery if he is to avoid the operation of the presumption.
59 The only matter upon which the applicant relied here is the return of the registered post letter denoted "Delivery refused". As noted by counsel for the applicant, in the case of registered mail, the item is retained at the "receiving" post office in the area of the proposed recipient who is provided with a card informing that person that the item is available for collection at that post office. As was the said of the post office address to which the notices in Fancourt v Mercantile Credit Ltd were sent, delivery of the registered post item at the Kalgoorlie post office was the most that could be done to bring the item to the builders' attention. On receiving the card left at the address which, as the Disputes Tribunal found, was the correct address for service of notices on them, it was for the builders to accept receipt of the item. Regardless of whether the "Delivery refused" notation supports the inference that it was one or both of the builders, or someone purportedly acting with their authority, who attended the post office and refused acceptance, what the notation records is the response to notification of the availability of the item for collection. That, in my view, does not form part of the series of acts amounting to delivery, but rather constitutes a failure to receive. This is the very distinction considered by the High Court in Fancourt v Mercantile Credit Ltd to be critical. The shorthand notation employed by Australia Post is to this extent misleading.
60 For these reasons, I find that the evidence upon which the applicant relies fails to establish non-delivery of the preliminary notice. I accept the respondents' submission that, by operation of s 75(1) of the Interpretation Act, the notice is deemed to have been delivered to the builders in the ordinary course of post on 26 March 2004.
61 Leave under s 41 of the BR Act in relation to the grounds sought to be agitated concerning the obligation to give a preliminary notice is refused.
62 The ground sought to be relied upon is in the following terms:
"The Tribunal erred in finding that the applicant and Mrs Braham carried out the building work the subject of the complaint when there was no or no sufficient evidence to support that finding."
63 The applicant's written and oral submissions made clear that the ground is limited to the extensions to the original house. There is no dispute that the builders constructed the original house. What the applicant seeks to argue is that the extensions, to which many of the defects as found by the Disputes Tribunal related, were constructed by a third party. He submitted that the fact that the only relevant building permit, for construction of the original house, was granted to the builders was insufficient to permit the Disputes Tribunal to infer that they also built the extensions, in relation to which no building licence was ever issued.
64 The Disputes Tribunal's reasoning on the point appears at page 4 of its reasons for decision, in the following terms:
"As detailed below in these reasons the house as purchased by the complainants does not comply with the configuration of the house depicted in the plans referred to in the building permit dated 23 January 1995. Mr Bassett testified that there were no other building licences issued save for those referred to above. The Tribunal finds that the respondents constructed the house other than in accordance with the approved plan, the subject of the permit dated 23 January 1995 and then subsequently altered the home, without any approval from the City or a new building licence and are the people who performed the building work in constructing the house, for the purposes of s 12A(1) BR Act."
65 The issue of the correct identity of the builder of any parts of the building works the subject of complaint was clearly one within the province of the Disputes Tribunal to determine. It was also one which was within the applicant's specific knowledge and capacity to contest. By the time of the hearings in the Disputes Tribunal, the fact that no building licence was issued for the extensions was known to the respondents, but there was no reason for them to suspect that anyone other than the builders constructed the extension. The non-compliance of the original house with the approved plans, and the unsatisfactory nature and standard of the entire construction including the extensions, were in my view matters upon which the Disputes Tribunal was entitled to rely in finding that the extensions were constructed by the builders. Leave on the basis of the Disputes Tribunal's decision that the extensions were constructed by the builders will be refused.
66 Although referred to in the applicant's written outline of submissions filed prior to the hearing of the leave application, this was the first of two grounds raised in any formal sense for the first time at the hearing. In relation to both of the new grounds, counsel for the respondents did not seek an adjournment and indicated his willingness to respond within the confines of the hearing, which is what occurred.
67 The applicant submitted that once the Disputes Tribunal reached the stage where it was considering making an order to pay for $425 000 on the basis of a conclusion that the most cost effective way of remedying the found defects was to demolish the house and re-build it, it should have notified the builders of what it proposed so as to give them the opportunity to attend and be represented by counsel. This was so, notwithstanding the builders' failure to attend and participate in the proceedings to that point, on the basis that all that had been conveyed to them was that the Disputes Tribunal would hear and determine the complaint and consider the defects as alleged in the complaint, which would give rise to the reasonable expectation that the Disputes Tribunal may make an order that the builders rectify or pay for the rectification of the defects. The house and extensions had cost the applicant approximately $150 000 to build, but the Disputes Tribunal heard and accepted evidence that the defects could only be rectified by demolishing the house and completely rebuilding it at a cost of $425 000. The evidence which had now been obtained and filed with this Tribunal was to the effect that it was not necessary to demolish and rebuild the house and that the defects could be rectified for less than $200 000. The Disputes Tribunal's obligation to give notice of the proposed conclusions about relief was particularly clear, it was argued, where the builders were not present at the hearing and the respondents appeared by counsel.
68 In his oral submissions, counsel for the applicant also referred to the finding of the Disputes Tribunal that the builders had actively concealed defects prior to the sale of the house by option as another matter notice of which should have been given. That finding (which appears to be limited to the acceptance of evidence that potted plants were strategically positioned around missing footings) was simply in response to an assertion in the applicant's letter to the Disputes Tribunal that the items of complaint did not exist at the time of sale or beforehand. The applicant has not sought to contend that the Disputes Tribunal's findings on the existence of defects were wrong, which is the issue to which its concealment finding went. Any failure to afford procedural fairness in relation to that finding cannot therefore be regarded as affecting the final outcome, and is not a matter upon which leave should be granted.
69 As indicated earlier, failure to give natural justice, or procedural fairness as it is now more commonly known, is a sufficient basis for the grant of leave. However, the concept is not one given to easy definition or obvious application. As Tucker LJ said in his well known observation in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."
70 Procedural fairness generally seeks to allow participation before a hearing, if there is one, and any conclusions are reached. For this reason, proposed conclusions do not normally need to be disclosed: Dobby v Department of Social Security (Unreported, FCA; Full Court; 7 April 1995). Generally, in adversarial proceedings, the possible range of conclusions available to a decision-maker is limited by the issues defined by the parties, being one of the objectives of the pre-hearing procedures. Although the Disputes Tribunal is not a forum of pleadings, its powers are limited to adjudicating on matters raised in the complaint before it. Acting within those powers, it is permitted, indeed bound, to exercise its adjudicative function in order to determine the complaint. This involves making factual findings and determining any legal issues in order to decide whether a particular complaint is made good, and to determine the appropriate relief. Where the complaint is properly brought under s 12A(1) of the BR Act, two alternative forms of relief are open: an order to remedy and an order to pay.
71 In Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591, the Full Federal Court said, in relation to the need to forewarn a person coming before it of adverse conclusions reached by decision-makers:
"Where the exercise of statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." [Emphasis is mine.]
72 Here, it was unnecessary for the Disputes Tribunal to identify to the applicant that an order to pay was a possible outcome, as that is one of the alternatives in the legislation. Although it is true that the question of remedy is at large, in the sense that the Disputes Tribunal can make an order to pay in any amount, provided that there is appropriate evidence to support it, there might be some cases where the outcome is so far removed from that which a reading of materials filed before a hearing would indicate that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome. Each case needs to be determined on its own circumstances.
73 The Tribunal found (reasons 6) that on 21 August 2006, a bundle of documents relied upon by the respondents and the notice of hearing were served upon the builders. That was three days before the first hearing date. As I have found, the evidence in fact was that the applicant was served with the bundle on 17 August 2006, meaning that he had a full week in which to read them and determine a response. Those documents included a structural report of GHD Structural Engineers which, under the heading "preferred repair option", stated:
"The preferred repair method to give total compliance with the relevant Australian Standards is to demolish and reconstruct the residence."
74 Other comments alluding to the author's preference for demolition and reconstruction are contained in the report.
75 The book of documents also included a quotation from Peter Girando, a builder. The quotation included the following narration:
"For the repair and/or rebuilding of 12 O'Burne [sic] Crescent as per engineer's structural report.
After reading the report and taking their recommendations into account, I have come to the following conclusions, Is it cost effective to simply demolish the building and rebuild it to conform to all building codes of that year, and not have the added burden of trying to rectify all the recommendations of the report whilst the family is still living in the house ... The fact that there are so many variables in rectifying all the problems apparent by the report, and some not covered by it, mainly electrical, plumbing, drainage, roof plumbing and non-approved building work it is easier for me to cost out to rebuild."
76 The invoice then noted a costs quotation of $350 000 GST exclusive to demolish the existing building and rebuild. At the hearing, Mr Girando revised this quotation to $425 000 inclusive of GST.
77 The respondents arranged for service of the documents on 17 and 21 August 2006 by reason of the return of previous letters, by ordinary and registered post, to the builders at the 191 Hay Street address. One of those letters, dated 6 January 2006, was in evidence before the Disputes Tribunal (Exhibit 9) and enclosed copies of the engineer's report and builder's quote to which I have just referred. A further letter (Exhibit 10), dated 30 January 2006, referred to the directions hearing scheduled for 9 February 2006 and stated:
"We would also like to inform you that according to an Engineer's report etc it is quite possible that we may have to move out of our home while it is fixed to Australian Standards or knocked down and rebuilt."
78 All this correspondence was sent to the address which the Disputes Tribunal found was the correct address for service.
79 In all of these circumstances, there was, in my view, no obligation on the Disputes Tribunal to do as the applicant urges it should have. On the basis of the evidence before the Disputes Tribunal, the applicant was apprised that the preferred method of rectification in the opinion of the respondents' witnesses was to demolish the house and rebuild it. The applicant was provided with those documents by post in January 2006 but ignored them. Even if one considers that he should be forgiven for not accepting that mail, he was served personally with documents which informed him of the preferred method of rectification a week before the hearing. The applicant was provided with ample opportunity to respond to the very clear suggestion that rectification by demolition and rebuilding was the appropriate course, but failed to do so. It was not necessary for the Disputes Tribunal to delay the matter further to provide yet another opportunity.
80 Leave to review the decision of the Disputes Tribunal on the basis of a failure to afford procedural fairness is refused.
81 This was the second of the new grounds sought to be relied upon by the applicant for the first time at the hearing. The applicant submitted that at the time of the building work, there was no builder/owner relationship between the parties, which the applicant contended was necessary for the respondents to have standing to bring their complaint. That was despite the language used in s 12A(1) of the BR Act, which is introduced by "Where on complaint being made to it by any person" (the emphasis is mine).
82 The applicant relied upon parts of the reasons of Senior Member Raymond in Salthouse and APG Homes Pty Ltd [2006] WASAT 43. That was a case involving a claim by a neighbour of the property on which the relevant building work was in issue and there was a finding that the neighbour came within the descriptor "any person" in s 12A(1). In my view, the reasoning in that case would not prevent the respondents, as purchasers from the applicant as owner/builder, as falling within the descriptor. At [27] in Salthouse, Senior Member Raymond said:
"s 12A(1) by its terms, makes it plain that a complaint may be made 'by any person, including the Board'. There is no prerequisite that the complaint must be made by the owner."
83 Equally, in my view, there is no prerequisite that the complaint must be made by a person who has or had a contractual relationship with the builder in relation to the construction of a building. Provided that unsatisfactory building work impacts upon a complainant in a real or substantial way, the complainant is permitted by the wide language employed by the BR Act to bring a complaint.
84 The applicant then submitted that, as the respondents had purchased the house by auction, they took the property as they found it, and they were seeking to achieve through the BR Act something that they were not entitled to at common law. This, it was said, would be an "absurd result". But there is nothing absurd in relief being obtained in accordance with an Act of Parliament which was not otherwise available. The fact that particular situations are not amenable to relief as the law stands is a common reason for Parliament to enact legislation.
85 The Disputes Tribunal itself dealt with the issue of standing (reasons 3). It found that the respondents had demonstrated a sufficient nexus with the building to warrant their having made the complaint and seeking relief. We can see no error in that conclusion. Leave to review the Disputes Tribunal's decision on its finding on standing is refused.
86 The substance of the grounds relied upon by the applicant in relation to the costs order is that the relevant legislative provision for the making of costs orders could not apply to the applicant and Mrs Braham. The relevant provision is s 38(5) of the BR Act, which is in the following terms:
(i) under section 12A, a person who is not registered under this Act is the person who carried out the building work_;_ or
(ii) under section 17 of the Home Building Contracts Act 1991, a person who is not registered under this Act is the builder;
(b) a decision is made by the Disputes Tribunal against the person,
the Disputes Tribunal may, if it thinks fit, order that person to pay to the Disputes Tribunal such of the costs of and incidental to the consideration and determination of the matter being inquired into as it considers appropriate."
Subsection (5) does not apply to a person who, under section 4(1)(A)(aa) or (1a), is not required to be registered under this Act."
Subject to this section, a person who is not registered under this Act shall not ¾
(aa) construct for himself any building other than a dwelling house ..."
89 Reading these provisions together, the applicant's argument appears well-founded. However, no other ground to disturb the Disputes Tribunal's decision has been upheld. In those circumstances, the order to pay $425 000 is operative. In an affidavit sworn for the purposes of the leave application, the applicant said that his financial position was very poor and, if forced to pay the amount ordered by the Disputes Tribunal, he would be financially ruined and would probably declare himself bankrupt. In those circumstances, it is difficult to see how any substantial injustice would flow from the costs order of $5000 remaining undisturbed. No purpose would therefore be served by a grant of leave limited to the costs issue. Leave to seek review of the costs order is refused.
90 The application sought a stay of the order to pay and costs order pending determination of the review. On 24 October 2006, this Tribunal granted an interim stay until the hearing and determination of the application for stay. The parties did not make submissions on the question of continuation of the stay which the parties agreed would depend upon the outcome of the leave question. It is a necessary consequence of the decision on leave that the applicant is prevented from a review of the orders of the Disputes Tribunal. It is therefore appropriate to discharge the interim stay.
I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1995) 184 CLR 163
(1983) 154 CLR 87
(1994) 49 FCR 576
(1973) 130 CLR 353
(1998) 158 ALR 623