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[2013] WASAT 143
General information, not legal advice.
State Administrative Tribunal (WA)
2013-09-02
Original judgment source is linked above.
CITATION : DE CAMPO and J-CORP PTY LTD T/AS OSWALD HOMES
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether proceedings can be dismissed for want of prosecution in respect of delay prior to referral to Tribunal Criteria to be applied in consideration of whether to dismiss for want of prosecution
The Tribunal raised on its own initiative whether the proceedings before it should be dismissed for want of prosecution pursuant to s 46 of the State Administrative Tribunal Act 2004 (WA). The parties were provided with an opportunity to place affidavit evidence before the Tribunal and to provide written and oral submissions. This course was followed because, on the face of it, the original complaint had been lodged before the Building Disputes Tribunal in 2005 and the applicant appeared not to have taken any action to advance the proceedings during periods of prolonged delay. The parties were provided with an opportunity to place affidavit evidence before the Tribunal and to file written submissions, which they did.
The Tribunal rejected submissions made on behalf of the applicant that it did not have power to dismiss the proceedings in respect of delay which took place prior to the matter being referred to the Tribunal by the Building Commissioner pursuant to s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Tribunal found that the statutory scheme under which proceedings were commenced with a complaint made to the Building Commissioner (or, as in this case, to the Building Disputes Tribunal, and then transferred to the Building Commission under the transitional provisions of the Building Services (Complaint Resolution and Administration Act 2011 (WA)) was such that there was a single proceeding which was capable of being referred or transferred to the Tribunal.
The Tribunal found that there had been three separate periods which, taken accumulatively, constituted inordinate delay and, further, that there was no adequate explanation for the delays which had occurred. However, on the principles discussed in Hancock Family Memorial Foundation Ltd v Fieldhouse 2005 (WASCA) 93; [2005] WASCA 93; (2005) 30 WAR 398, the Tribunal concluded that it was necessary for the respondent to demonstrate that the delay would give rise to a substantial risk that it would not be possible to have a fair trial of the issues in the proceedings. This was because the applicant would be statute barred from recommencing the proceedings. The Tribunal found that the respondent had not demonstrated this to be the case.
In weighing all relevant factors, the Tribunal concluded that it was not an appropriate case to dismiss for want of prosecution.
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 259
Birkett v James [1978] AC 297
Duke v Royalstar Pty Ltd [2001] WASCA 273
Filimon and Rimmer [2013] WASAT 13
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
Sangora Holdings Pty Ltd & Anor v Hodder & Anor [2003] WASCA 108
Smith v Bank of Western Australia Ltd [2010] WASCA 50
1 In this matter, the Tribunal must determine whether the proceeding should be dismissed for want of prosecution.
2 On 15 November 2005, the applicant (owner) lodged a complaint with the Building Disputes Tribunal. The complaint raised what were described as painting defects. As the owner had not contracted with the respondent (builder) for the construction of the dwelling to which the complaint relates, the complaint could only have been made under s 12A of the Builders Registration Act 1939 (WA) (BR Act).
3 On 29 August 2011, the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Act) came into operation. Unless otherwise stated, all subsequent references to sections or parts of legislation are to the Complaint Act. Under the transitional provisions (s 133 and s 134), the matter was transferred to the Building Commissioner on 29 August 2011, to be dealt with by the Building Commissioner in accordance with s 12A of the BR Act, notwithstanding its repeal as effected by the Building Services (Registration) Act 2011 (WA). Further, the complaint given to the Building Disputes Tribunal became of the same effect as if it had been given to the Building Commissioner to be dealt with under the Complaint Act (s 133(1)(b)).
4 There will be further discussion below concerning the scheme of the Complaint Act. It suffices at this stage simply to note that on 6 November 2012, the Building Commissioner applied under s 55 for the consent of the Tribunal to the matter being transferred to it. It was then not open for the matter to be transferred to the Tribunal, because the Building Commissioner had not made a decision to deal with the matter under either s 37 of the Complaint Act or s 42 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), nor was the matter before the Building Commissioner under s 51, being a necessary pre-requisite for such a transfer. Accordingly, and with the consent of both parties, the Tribunal declined to consent to the transfer and, by order made on 15 February 2013 in those terms, the matter was, in effect, remitted to the Building Commissioner.
5 On 5 April 2013, the Building Commissioner made a decision, as he was entitled to do under s 11(1)(d), to refer the complaint to the Tribunal.
6 Prior to the remittal, the Tribunal constituted by Member Wallace had raised with the parties that consideration should be given to whether or not the proceedings should be dismissed for want of prosecution. The Tribunal had power to adopt this course pursuant to s 46(3), s 46(4) and s 46(5) of the SAT Act. At the initial directions hearing, programming orders were made for the filing of submissions relating to that question, and it was during the course of that procedure that the parties identified difficulties with the manner in which the Building Commissioner had attempted to put the matter before the Tribunal. Accordingly, once the matter had been properly referred to the Tribunal, the original intended course was followed.
7 The builder identifies three periods of delay totalling some five years and four months. The builder contends that the ability of the parties to address, through evidence of expert witnesses, the possible causes of the owner's complaints relating to the building work and the responsibility of the builder have been seriously compromised. Further, that in the absence of any or any adequate explanation for the delay, in circumstances in which the builder is asserted not to be open to criticism, the proceedings should be dismissed.
8 The owner disputes that it is open to the Tribunal to dismiss the matter for delay which occurred prior to the proceedings being referred to the Tribunal. Further, the owner submits that the builder has not shown that it will suffer any real prejudice by reason of any difficulty caused by the periods of delay.
9 The parties agree that the principles to be applied in consideration of whether or not to dismiss for want of prosecution are as discussed in Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 (Hancock) as set out in Smith v Bank of Western Australia Ltd [2010] WASCA 50 (Smith). Accordingly, the matter will be determined by consideration of the following issues, all but the first of which reflect the principles discussed in Hancock.
11 An order for dismissal after a period of limitation has expired is by then a draconian order and will not be lightly made. It should not in any event be exercised without giving the complainant an opportunity to remedy its default, unless satisfied either that the default had been intentional and contumelious, or that the inexcusable delay for which the party or its legal representatives have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible: see Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 259; Sangora Holdings Pty Ltd & Anor v Hodder & Anor [2003] WASCA 108 (Sangora) at [51].
12 The owner's counsel refers to s 42(1) of the SAT Act, which provides that a person applying to the Tribunal for review, or otherwise bringing a matter before the Tribunal by referral or other means, has to do so in accordance with the SAT Act, except to the extent that the enabling Act states otherwise. Further reference is made to s 42(3) of the SAT Act, which provides that a proceeding before the Tribunal commences when the application is accepted by the executive officer. Reference was then made to Sangora at [82], where Hasluck J, with whom the rest of the court concurred, stated, with reference to whether a sufficient explanation had been given, that the crucial question was whether there was a sufficient explanation for delay occurring after the proceedings were commenced.
13 At first blush, this appears to be a sufficient basis on which to hold that the matter cannot be dismissed, because, as discussed further below, it is common cause that all the periods of delay occurred prior to the initial attempt to transfer the matter to the Tribunal, and its subsequent referral, as outlined above. But, in my view, it is necessary to have particular regard to the nature of the proceeding under the particular regime established under the Complaint Act.
14 Although the Tribunal is exercising original jurisdiction in relation to the matter which is before it, neither party initiated the commencement of proceedings before the Tribunal. The complaint has to be made to the Building Commissioner who, under the scheme of the legislation, must decide whether or not to accept it (which is not necessary in the case of a matter transferred under the transitional provisions), the complaint must be investigated (which may or may not be necessary, depending upon the stage at which the matter had progressed prior to its transfer under the transitional provisions), and must then make a decision under s 11 about how to proceed. The power of investigation does not provide the Building Commissioner with the ability to conduct an opposed hearing. Relevant to this issue, the Building Commissioner must decide whether or not to deal with the complaint himself under the limited jurisdiction (compared to that of the Tribunal) provided to him, or whether to refer the complaint to the Tribunal. If the Building Commissioner decides to proceed to exercise his limited jurisdiction, he may find it necessary at a later stage to apply to transfer the proceedings to the Tribunal under s 55. On either basis, it is the proceeding commenced by the complaint lodged with the Building Commission which, in my view, is determined by the Tribunal.
15 It appears self-evident that a proceeding cannot commence in the Tribunal before it has been accepted by the executive officer and, as counsel for the owner submitted, it would be strange if it could be said that a proceeding may have commenced in the Tribunal at a date prior even to the establishment of the Tribunal. But s 42(3) of the SAT Act must be read in the context of a complaint referred to the Tribunal under s 11. The referral is not subject to any formal acceptance by the executive officer. It is not commenced by any application to the Tribunal. There is no fee payable under s 43 of the SAT Act for the commencement of a proceeding. There is no scope by the executive officer to reject the application or, if he accepts it, to impose conditions as provided by s 44 of the SAT Act. The heading to s 55 refers to the transfer of a proceeding to the Tribunal, which supports the notion that the proceeding which is before the Tribunal upon a referral under s 11 of the Complaint Act is a single proceeding commenced by a complaint lodged with the Building Commissioner. In this sense, the proceeding may be said to have commenced before the Tribunal when the executive officer receives or 'accepts' it, but that is not when the proceeding itself commenced.
16 In that context, I find that the power to dismiss for want of prosecution provided to the Tribunal under s 46(3) of the SAT Act empowers the Tribunal to dismiss a complaint made to the Building Commissioner, or transferred to the Building Commissioner under the transitional provisions of the Complaint Act, even though the delay complained of occurred prior to the matter being referred to the Tribunal.
17 Counsel for the builder submitted that, in considering the length of delay, it should be regarded more seriously because of a delay in the lodging of the complaint with the Building Disputes Tribunal.
18 The dwelling, the subject of the complaint, was completed in 2001 and then purchased by the owner in 2003. The complaint was made on 15 November 2005.
19 I accept the principle that where a complainant has delayed in bringing a complaint in the first place, it must thereafter pursue the complaint with diligence: see Birkett v James [1978] AC 297 referred to in Sangora at [49]. However, I do not accept that it can be said that there was a delay in making the complaint. Under s 12A(1aa) of the BR Act, a complaint was required to be made before the expiration of six years from the time the building work was completed - which was taken to be when the building to which the work relates became fit for occupation in a free and uninterrupted manner. The complaint relates primarily to the deterioration of paintwork and to cracking. It is not clear when these defects materialised, and no complaint could have been made until they had materialised. In the absence of any evidence establishing when the alleged defects became apparent, I do not accept that it can be said that there was any delay in the making of the complaint. I turn to address the periods of delay alleged subsequent to the making of the complaint.
20 A chronology of the dispute is set out in full in the builder's written submissions and has not been disputed. It reflects that the complaint followed its normal course with an inspector of the Builders' Registration Board conducting an inspection and providing a report. An order to remedy was subsequently issued in respect of some of the complaints. This order was apparently made under the Registrar's delegated jurisdiction under s 33A of the BR Act as there was no hearing. The remaining complaints were then referred to the Building Disputes Tribunal for hearing on 20 September 2006. That hearing was adjourned by consent. At that time, the Building Disputes Tribunal informed the parties that the complaint would be held in abeyance until further written advice was received requesting the matter to be relisted for hearing. The adjournment was due to the ill-health of the owner. Shortly after the adjournment, arrangements were made for the builder's legal representatives and an expert witness to inspect the alleged defects. An inspection of the exterior complaints occurred on 14 November 2006, but the owner declined to give access to the interior in the absence of her husband.
21 On 15 November 2006, the builder's legal representative wrote to the owner's legal representative confirming what had occurred and requesting the owner to provide further convenient dates for an inspection to occur in December 2006 or January 2007. No response was received. On 3 November 2008, the owner's legal representatives wrote to the Building Disputes Tribunal requesting that the matter be re-listed for hearing. This is the first period of delay of effectively two years from 15 November 2006 to 3 November 2008.
22 On 10 November 2008, the builder's legal representatives wrote to the Building Disputes Tribunal advising that no steps had been taken by the owner for the last two years regarding the complaint and noting that, before any hearing, the builder would require access to the premises to allow its expert to carry out an inspection. On the same date, the builder's legal representatives sent a facsimile letter to the owner's legal representatives to much the same effect. An automatically produced report reflects that the facsimile was transmitted to the owner's legal representatives' facsimile machine. The evidence, which was uncontradicted, from the owner's legal representative, Mr Paul Fletcher, establishes that the facsimile never came to his attention and has never been located.
23 The Building Disputes Tribunal conducted a directions hearing on 15 January 2009. Relevantly, directions were made requiring that the owner provide particulars of the complaint items, and those particulars were furnished on 10 February 2009. Directions were also made with regard to the conduct of a further inspection, and that occurred on 20 April 2009. A representative of the builder and its expert witness, Dr Armand Zurhaar, conducted the inspection.
24 The directions orders included an order that the parties had liberty to apply for further directions.
25 The owner did not request any further directions, nor did the owner request that the matter be relisted for hearing. The next development was that on 4 May 2010, the owner's legal representatives wrote to the builder's legal representatives on a without prejudice basis regarding settlement of the complaint. This is the second period of delay of effectively 12 months from 20 April 2009 to 4 May 2010.
26 The parties entered into correspondence between 4 May and 15 June 2010 relating to settlement and regarding disclosure of certain reports.
27 The next development was on 15 October 2012 when the owner's legal representative wrote to the Building Disputes Tribunal requesting that the owner's complaint be listed for a directions hearing. This is the third period of delay of effectively two years and four months from 15 June 2010 to 15 October 2012.
28 It was as a result of the 15 October 2012 request that the Building Commission attempted unsuccessfully to transfer the proceedings to the Tribunal. The subsequent history has been mentioned above explaining how the matter was effectively remitted to the Building Commission and ultimately referred, properly, back to the Tribunal on 5 April 2013.
29 It is apparent that there have been lengthy periods of delay which should not have occurred if the proceedings had been advanced with any normal degree of attention. The accumulative delay can be properly described as inordinate.
30 There is no explanation offered in respect of the first and third periods of delay.
31 In relation to the second period of delay, it can be inferred from the documentation provided that the owner's legal representative was engaged in finalising expert reports. A report was obtained from a quantity surveyor on 5 October 2009, and that was sent to a representative of the Archcentre Building Advisory Service on 10 November 2009. This evidence could obviously have been obtained much earlier. The delay is not fully explained by the undertaking of these activities and cannot be regarded as an adequate explanation.
32 It is obvious that if the matter is dismissed, the claim is now statute barred: see s 12A(1aa) of the BR Act or, if applicable, s 6 of the Complaint Act and the effect of repeal of the BR Act discussed in Filimon and Rimmer [2013] WASAT 13 at [38] and following.
33 In its submissions, the builder raises a presumptive prejudice that, because a period of 11 years has now passed since the original surface coatings were applied, the ability of the parties to determine whether the deterioration of the surface coating is due to any faulty or unsatisfactory workmanship on the part of the builder has been seriously compromised.
34 I do not accept this submission. The chronology outlined above shows that the builder and its expert witness have conducted two inspections of the alleged defects. The second inspection on 20 April 2009 was after particulars of the complaint items had been furnished. There is no evidence from Dr Zurhaar, or from the builder, deposing to any difficulty in the presentation of the builder's defence. The evidence to be given at any final hearing of this matter at some time in the future should be exactly the same as if the hearing had been held some short time after 20 April 2009. There is no evidence that Dr Zurhaar has lost his notes or, indeed, cannot give evidence consistent with any report which he may have provided after the inspections he conducted.
35 It is also then submitted for the builder that witnesses who may have been available in 2006 are now not readily contactable. An example was given that Mr Knowles, the Builders' Registration Board inspector who performed the inspection on 10 February 2006, has since retired and is no longer in the jurisdiction. However, that was the case even prior to or at the very beginning of the first period of delay.
36 In an affidavit sworn on 29 November 2012, the sales service manager of the builder, Mr Dean John Harding, stated that Mr Knowles retired approximately six years ago and that he understood that he was no longer resident in Western Australia. It is also to be noted that Mr Harding does not say that he has made any enquiry and has been unable to obtain any address for Mr Knowles.
37 It is also noted that Mr Harding states that the contractor used to apply the external render is no longer contactable through the builder, and that he does not know the current whereabouts of the proprietor of the firm concerned or whether he is available to give evidence in the hearing of this complaint. However, any evidence from the proprietor of a plastering firm is likely to be of doubtful value. He may or may not have any firsthand knowledge of the work, but even if he could identify the persons who carried out the work, they would not be independent witnesses and the evidence would be of doubtful value compared to the expert evidence of Dr Zurhaar, who the builder clearly intended to rely on from the outset. The same applies if the proprietor of the firm carried out the work himself. In any event, a letter written on behalf of the builder on 30 January 2006 (Attachment DJH8 to Mr Harding's affidavit) establishes that the contractor concerned was no longer contactable through the builder as early as 30 January 2006. Even if the views I have expressed about the use of this evidence were wrong, there is no evidence that any attempt had been made at any time to contact a witness from the firm concerned.
38 Finally, the builder submits that prejudice would be suffered because of increased time and cost in dealing with the matter over a far greater period of time than is necessary. It is submitted that, by way of example, there will be a need for the builder to have its expert inspect and reinspect the premises due to the passage of time. Again, I do not accept this submission. It emerged during oral submissions that there is some confusion as to precisely what is the complaint referred to the Tribunal. This appears to arise from a subsequent letter from the owner's legal representatives dated 8 June 2010 which refers to a range of building defects. That letter cannot change the complaint which was referred to the Tribunal which comprises the original complaint form and its attachments (some of which seem to be missing from the documents provided to the Tribunal) and the particulars of complaint furnished on 10 February 2009. Under s 38, the Tribunal can only address the subject of the building service complaint referred to it. That complaint was well known to the builder and its expert witness prior to the last inspection and there is no apparent need for any further inspection, nor is there any evidence explaining why any further inspection might be necessary.
39 In a case involving this length of delay dependent on recollection of witnesses to an even earlier event, a presumptive prejudice might apply, but this is not such a case.
40 Counsel for the owner made much of the fact that the builder never warned the owner at any time that if the proceeding was not continued without delay, an application would be made to dismiss. I was not referred to any authority supporting the necessity for a respondent to take such a course. In the absence of any authority, I do not consider that there is any obligation on a respondent to take this course. I observe that in Duke v Royalstar Pty Ltd [2001] WASCA 273 at [20], the court was not critical of the approach taken by the master, who noted that the defendant had taken no steps to push the matter to trial, but that the responsibility for the proceeding rested with the plaintiff, and that there was no action or want of action on the part of the defendant which was open to criticism. This indicates that the inquiry into the conduct of the party is with a view to ascertaining whether that party can be criticised for the way in which the proceedings had been conducted.
41 The delay is not a single period of delay. There are three separate periods. When taken accumulatively, they do, in my view, constitute inordinate delay. There is no adequate explanation for any of the periods of delay.
42 On the other hand, the hardship to the owner is significant; she will be deprived of any opportunity to advance her case now or in the future. There is no suggestion that the delay has been intentional and contumelious. It is therefore unnecessary to show that the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the proceedings. I am far from satisfied that is the case.
43 I conclude on a weighing of all factors that this is not an appropriate case for the making of an order for dismissal for want of prosecution.
44 The Tribunal will accordingly cause an order to issue as follows.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2005) 30 WAR 398