Court of Appeal (WA)|2009-08-06|Before: Wheeler JA

HARTWIG -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASCA 138 (6 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HARTWIG -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASCA 138

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and HARTWIG [2008] WASAT 154

Disciplinary proceedings under Builders' Registration Act 1939 (WA) - Preliminary question before the State Administrative Tribunal - Procedure to be followed by registrar hearing complaints under Builders' Registration Act - Question amounted to collateral attack on decision of deputy registrar - State Administrative Tribunal may not in its original jurisdiction hear a question which amounts to review - Desirability of Court of Appeal answering question which is purely hypothetical

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 569

Mustac v Medical Board of Western Australia [2007] WASCA 128

Office of Communications v Floe Telecom Ltd [2009] EWCA Civ 47

Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69

1 This application for leave to appeal has a most unsatisfactory procedural history. It is probable that the State Administrative Tribunal (SAT) did not have jurisdiction to determine the question which it purported to determine. Its determination appears to go further than the question asked. The facts on which the determination is, in part, based appear to be hypothetical. There is some agreement between the parties, apparently, that an answer in some form to the preliminary question posed would lead to the respondent withdrawing its proceedings against the appellants, but there is no agreement on precisely the form of the answer which would lead to that result. Finally, the grounds of appeal go beyond the tribunal's answer to the question posed, attack some of the tribunal's incidental reasoning, and contend for answers to questions which were not asked.

2 I will shortly outline the chronology which led to the application for leave to appeal to this court. Before I do so, I note the principles which appear to me to be appropriate to deal with an application which bears the features described above.

3 I acknowledge that SAT was intended to provide procedures which were informal, expeditious, relatively economical, and designed to focus on the correct decision or outcome, without undue attention to the procedure by which that outcome was reached (see s 27 and s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in particular). However, the SAT Act itself draws a distinction between the tribunal's original jurisdiction and its review jurisdiction. Different issues arise, and it may be that different procedures are appropriate, in relation to each of those jurisdictions. That is a distinction which cannot be simply ignored. Further, it is important to recall that the SAT Act provides a means for the determination of real, rather than hypothetical, controversies. It is the antithesis of an expeditious and economical proceeding, for the tribunal to determine a question unless it is very clear that the question will have some practical effect upon the rights of the parties before it.

4 In the case of Office of Communications v Floe Telecom Ltd [2009] EWCA Civ 47, the appellants had been successful in the tribunal below, but wished to appeal its reasoning. In that case, Mummery LJ, with whom Collins LJ and Sir John Chadwick agreed, said the following at [20] - [23]:

It is the unnecessary nature of the Tribunal's legal rulings in its judgment that is most troubling. The court itself drew the attention of the parties at the hearing to R (Burke) v GMC [2006] QB 27. There are sound reasons why courts and tribunals at all levels generally confine themselves to deciding what is necessary for the adjudication of the actual disputes between the parties. Deciding no more than is necessary may be described as an unimaginative, unadventurous, inactive, conservative or restrictive approach to the judicial function, but the lessons of practical experience are that unnecessary opinions and findings of courts are fraught with danger.

Specialist tribunals seem to be more prone than ordinary courts to yield to the temptation of generous general advice and guidance. The wish to be helpful to users is understandable. It may even be commendable. But bodies established to adjudicate on disputes are not in the business of giving advisory opinions to litigants or potential litigants. They should take care not to be, or to feel, pressured by the parties or by interveners or by critics to do things which they are not intended, qualified or equipped to do. In general, more harm than good is likely to be done by deciding more than is necessary for the adjudication of the actual dispute.

One of the dangers of unnecessary rulings is that, with only the assistance of the parties and without the benefit of wider consultation on relevant aspects of the public interest, the court's opinions, though meant to be helpful, may turn out to be damaging in practice and wrong in law. The court may be unaware of all the available arguments or ignorant of the practical implications of what it says. Those who rely on its advisory opinions when applying the law in practice may be misled or confused. A judgment aimed at giving authoritative advice and guidance may be misused by selective citation in different and unforeseen disputes and circumstances.

It is also the case that the Court of Appeal is faced with a dilemma when presented with unnecessarily wide ranging judgments at first instance or, as in this case, at a lower appellate level. If, on the one hand, the Court of Appeal accepts an appeal against unnecessary rulings on points of law, it risks making the situation even worse by itself expressing unnecessary opinions, apparently impressed with greater authority. If, on the other hand, it takes a purist stance and refuses to accept the appeal at all, those who have reasonable grounds to be aggrieved by parts of the judgment of the lower court may have to wait a very long time in the happenstance of litigation before they have an opportunity to challenge those parts of the judgment. Indeed, they may never have the chance to get what has been said judicially examined and, if necessary, corrected.

The competing considerations which are the focus of [23] are of particular importance in the present case.

5 It is necessary also to apply the observations of the High Court in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [49] about the undesirability of answering preliminary question which are hypothetical:

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.

6 Finally, I note that this court should also refrain from determining questions which go well beyond the scope of those raised by the parties, upon which they have had no opportunity to be heard.

7 This matter arose from a proceeding before SAT in its disciplinary jurisdiction. The appellants were, respectively, the sole director of the second appellant, and a company which was a builder registered under the Builders' Registration Act 1939 (WA) (BRA). The second appellant carried out three pieces of construction, for three different complainants. The contract for the construction of the first piece of work, a garage, was entered into on 13 August 2005, and the contract for the third on 15 June 2006. The first complaint was laid on 12 April 2006 and the third on 21 November 2006. At various periods between 25 July 2006 and 15 January 2007, the acting deputy registrar of the Builders' Registration Board (BRB) made orders pursuant to s 12A(1) of the BRA ordering the second appellant to remedy faulty or unsatisfactory building work within 28 days. In each case, it was alleged that the second appellant had failed to do so. Also in each case, it was common ground that the orders to remedy had been revoked at a time subsequent to the expiration of the 28-day period within which works were to be carried out, and there had been substituted orders to pay certain sums by way of compensation to the complainants. Those sums had been paid. The revocation of the orders and the substitution of orders to pay were the subject of the second of the two preliminary questions stated for SAT. SAT's answer to that question is not in dispute, and it is not necessary to mention it further.

8 On 27 November 2007, that is, some nine months after the last of the alleged failures to comply with an order, the respondent commenced disciplinary proceedings against the appellants pursuant to s 12D of the BRA. There was a mediation conference on 29 January 2008, and that led to the stating of two agreed preliminary questions for SAT on 13 February 2008. The first of those questions was:

Is a registrar or authorised person who, pursuant to s 33A(1) of the Builders' Registration Act 1939 (WA) (BR Act), is exercising "such of the jurisdiction of the Disputes Tribunal as is prescribed", required to comply with or give effect to the provisions of the BR Act set out in the schedule below in the course of making a decision or order in respect of a complaint under s 12A(1) or s 12A(1a) of the BR Act?

Schedule of Provisions of BR Act

9 No facts were stated. That may not be of great importance in relation to s 37(1) of the BRA, which reads:

(1) The Disputes Tribunal shall cause to be given to a person who is a party to proceedings before the Disputes Tribunal reasonable notice of the time when and place where it intends to conduct those proceedings, and shall afford any such person a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, and to make submissions to the Disputes Tribunal.

10 Presumably, the parties had agreed that no relevant notice had been given. However, s 36(1) reads:

(1) At all its sittings the Disputes Tribunal shall act according to equity, good conscience, and the substantial merits of the case and without regard to technicalities and legal forms, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

11 How it could be determined whether that section had been complied with, assuming it to apply, in the absence of any facts found or agreed, does not appear.

12 A variety of written submissions were exchanged. Perhaps because the preliminary question was, on its face, in the form of a hypothetical question, SAT, on 28 May 2008, made the following order:

ORDER

On the application by the respondent by letter dated 13 February 2008 for the determination of a preliminary issue, it is on 20 May 2008 ordered by Justice ML Barker that:

On or before 3 June 2008, the applicant must file and serve:

(a) a statement of the procedure followed by the Building Disputes Tribunal in reviewing decisions of the Registrar under s 33A of the Builders' Registration Act 1939 (WA);

(b) a written submission as to whether the form of such review impacts on the extent of any obligation of the Registrar to accord procedural fairness to the parties in the exercise of the jurisdiction prescribed under s 33A of the Builders' Registration Act 1939 (WA).

On or before 10 June 2008, the respondent must file and serve any opposing statement and submissions relating to the matters referred to in Order 1 above.

13 It may be noted, however, that the order is concerned (in 1(b)) with any potential obligation of the registrar to accord procedural fairness, while the question which SAT was asked to determine dealt not with the question of procedural fairness generally, but with specific provisions of the BRA. Further, it should be noted that it was not suggested that in any of the three complaints involving the appellants, there had been any review by the Building Disputes Tribunal (BDT) of the decisions of the acting deputy registrar which founded the disciplinary proceedings. It is not clear how the procedure in fact followed in the usual case by the BDT (as opposed to the procedure which the BRA required it to follow) could affect the proper construction of the registrar's statutory obligations. The respondent did, however, as required, serve a statement of the "usual" procedures followed by the BDT.

14 On 30 June 2008, the president of SAT answered question 1 in the following way:

(a) Section 36(1) of the Builders' Registration Act 1939 (WA) does not apply to the exercise of the registrar's delegated jurisdiction, but the registrar remains obliged to afford the parties a fair process by providing them with an opportunity to attend and to make comment on any subject of complaint at any inspection which is held, and by providing an opportunity to respond to the investigating officer's report including by providing any relevant evidence.

(b) The registrar is not bound to comply with s 36(4) of the Builders' Registration Act 1939 (WA) which obliges the Building Disputes Tribunal to keep a record of the proceedings before it. In its context, the Building Disputes Tribunal there referred to is the Building Disputes Tribunal as fully constituted in accordance with s 35.

(c) Section 37(1) of the Builders' Registration Act 1939 (WA) does not apply to the registrar's exercise of a delegated jurisdiction. The duty to act fairly does, however, oblige the registrar to provide the parties with an opportunity to attend and to make comment on any subject of complaint at any inspection, and to respond to the investigating officer's report, including by providing any relevant evidence, prior to determination of the matter.

15 The jurisdiction conferred on SAT to entertain the application in the disciplinary proceedings arose from s 12D of the BRA. It reads:

12D. Allegation of cause for disciplinary action

The Board may allege to the State Administrative Tribunal that there is proper cause for disciplinary action, as mentioned in section 13, against a builder who is registered under this Act.

16 SAT's powers in disciplinary proceedings are found in s 13 and s 13A of the BRA. Section 13 relevantly reads:

Cancellation of registration for fraud or on other grounds

(1) In a proceeding commenced by an allegation under section 12D the State Administrative Tribunal may cancel or suspend the registration of any builder under this Act because there is proper cause for disciplinary action -

...

(db) who has failed to comply with an order of the Disputes Tribunal; or

...

17 Section 13A permits SAT to impose a fine instead of, or in addition to, cancellation or suspension of registration. The hearing of proceedings and the making of an order pursuant to s 12D, s 13 and s 13A of the BRA come within SAT's original jurisdiction (SAT Act s 15).

18 SAT also has a review jurisdiction in relation to decisions of the BDT, pursuant to s 41 of the BRA and s 17 of the SAT Act. Section 41 of the BRA reads:

(1) Subject to subsection (2), a party to proceedings before the Disputes Tribunal may apply to the State Administrative Tribunal for a review of a decision of the Disputes Tribunal.

(2) An application for a review cannot be made under subsection (1) unless the State Administrative Tribunal gives leave.

[(3), (4) deleted]

(5) Where the State Administrative Tribunal varies a decision of the Disputes Tribunal or substitutes a decision for that of the Disputes Tribunal, the decision of the State Administrative Tribunal has effect for the purposes of this Act or the Home Building Contracts Act 1991 as if it were a decision of the Disputes Tribunal.

19 However, the decision in this case was one made by the acting deputy registrar, exercising jurisdiction conferred by s 33A of the BRA. Section 33A(1) provides:

33A. Exercise of prescribed jurisdiction of the Disputes Tribunal

(1) Such of the jurisdiction of the Disputes Tribunal as is prescribed may be exercised by -

(a) the registrar, with the written approval of the Disputes Tribunal or the chairperson; or

(b) an authorised person, with the written approval of the chairperson,

and for that purpose the registrar or authorised person has all the powers of the Disputes Tribunal necessary to do so.

20 Review of decisions of the registrar is the subject of s 33A(2) and (4), which relevantly read:

(2) Where in the exercise of jurisdiction conferred by subsection (1), the registrar or an authorised person makes a decision or order, a party to the proceedings who is dissatisfied with the decision or order may, within 10 working days of the decision or order being made, request the Disputes Tribunal to review the decision or order and the Disputes Tribunal on receiving such a request, shall review the decision or order and confirm, vary or quash the decision or order.

...

(4) Nothing in this section prejudices any right of appeal that a person may have, but where the right of appeal is exercisable in respect of a decision or order made by the registrar or an authorised person in the exercise of jurisdiction conferred by subsection (1), it shall not be exercised until the right under subsection (2) to request a review of the decision or order has been exhausted.

It does not appear to be in dispute that the "right of appeal" in s 33A(4) includes a right to seek a review pursuant to s 41 of the BRA.

21 There are two issues of law which arise from these provisions. The first is whether it is open to a party, in proceedings in SAT's original jurisdiction - that is, relevantly disciplinary proceedings - to make a collateral attack on the validity of a decision of the BDT or of a registrar. If such a collateral challenge is otherwise available, the second question arises as to whether it is precluded by s 33A(2) and (4), if the person seeking to raise the collateral attack has not first sought review from the BDT.

22 Taking the second question first, as I understand the argument in the present case, the sections referred to in preliminary question 1 posed for SAT are alleged by the appellants to be sections which condition the exercise of the registrar's jurisdiction. That is, it is contended that the registrar is only validly exercising jurisdiction if he or she does so in compliance with those sections. In that context, the words "in the exercise of jurisdiction conferred by subsection (1)", appearing in both s 33A(2) and (4), may be significant although the appellants do not appear to rely on them. The respondent appears to have assumed, in its submissions, that s 33A(2) and (4) do apply. Its submissions do not consider the question whether s 33A(2) and (4) apply only to decisions made "within jurisdiction", and therefore do not consider what that expression might mean. Neither party advanced argument concerning whether or not s 36 and s 37 were "jurisdictional" requirements.

23 So far as the availability of collateral challenge is concerned, the written submissions of the parties failed to address a number of important issues. That is not surprising, because of the way in which they came to be made. When this application for leave to appeal came on for hearing, the availability or otherwise of collateral challenge did not at first emerge as an issue. The point had not been taken by the respondent. Rather, the court at first raised with the appellant the fact that it appeared that a number of the grounds of appeal went beyond the scope of the answers to the question, and attempted to challenge parts of the tribunal's reasoning which were not directly involved in answering the question the subject of the appeal. That, in turn, led to an examination of the way in which the matter had come before SAT. It was only during the course of argument that the court put to both parties the propositions that the preliminary question was in reality a collateral attack, which may or may not have been open, upon the acting deputy registrar's decision, and that there appeared to be no factual foundation for many of the issues considered by SAT and raised by the grounds of appeal. The parties were then directed to file written submissions going to those issues.

24 The written submissions of both the appellants and the respondent deal with the circumstances in which, in the course of court proceedings, it is open to a party to mount a collateral challenge to the decision of an administrative body.

25 The appellants' submissions do not contain arguments directed to the availability of collateral challenge in cases where a defect is not apparent on the face of the decision, while the respondent relies upon the latent/patent distinction, citing Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69. As I have noted, neither set of submissions really grapples with the words of s 33A BRA. Neither set of submissions deals with issues of statutory interpretation or possible abuse of process: see Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 569 at [14] - [24], [69] - [71], [92] - [93].

26 The fundamental difficulty with both sets of submissions, however, is that SAT is not a court, but an administrative tribunal: Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48]. SAT has only the jurisdiction which is conferred on it by the SAT Act, or any other Act which expressly confers jurisdiction upon it. The SAT Act divides the jurisdiction of SAT into ordinary and review jurisdiction. The BRA recognises and reinforces that distinction in s 14 and s 41. It appears to me that the better view, therefore, is that it is not open to SAT, in the course of a disciplinary proceeding in its original jurisdiction, to determine a question which might have been, but was not, the subject of review proceedings in its review jurisdiction. It may also be arguable that, in its disciplinary jurisdiction, it is the failure to comply with an order protective of consumers, regardless of the "validity" of the order, which is the "mischief" at which s 13(1)(db) of the BRA is directed. In that case, a collateral challenge to the validity of the order would be irrelevant.

27 SAT has power to consolidate proceedings where they concern the same or related facts (s 51), may give directions at any time to do whatever is necessary for the speedy and fair conduct of the proceeding (s 34) and, as I have already noted, is not bound by any practices or procedures applicable to courts of record, and is to act without regard to technicalities and legal forms (s 32(2)). It appears to me therefore that (subject to the possible effect of s 33A(4) BRA) it may have been open for SAT to have entertained a review proceeding, raising the question of the applicability of s 36 and s 37 of the BRA to the deputy registrar's functions, at the same time as the disciplinary proceeding in its original jurisdiction which was before it.

28 However, whether SAT should take that course would depend upon a number of matters. One is whether there is a time limit for the bringing of review applications; another would be the course of dealing between the parties (for example, whether the issues raised in the preliminary question had been raised by the appellants at the time of the original hearings before the deputy registrar). Any review would have been appropriately based upon facts found by the tribunal or agreed by the parties, not upon hypothetical facts.

29 I have expressed the above views tentatively, for the reason that the parties did not address them in their written submissions and have not had an opportunity to be heard concerning them. A grant of leave to appeal would necessarily require this court to address the complex issues to which I have referred without the benefit of assistance from the parties, or consideration by SAT, and in a factual vacuum.

30 Alternatively, the court could call the matter on for further hearing, or seek further submissions. It does not appear to me that it is desirable to delay these proceedings any further, however. Oral argument in the appeal was heard on 4 March. The written submissions were received in April. It is now approximately two and a half years since the appellants allegedly failed to comply with the last of the orders to rectify made against them and it is more than 18 months since the application to SAT was originally made. This matter has gone so far "off the rails" that the most appropriate course, in my view, is to refuse leave so as to permit the proceedings in SAT to move forward.

Administrative Tribunal Act 2004

Building Contracts Act 1991

Registration Act 1939

HARTWIG -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASCA 138 (6 August 2009)

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HARTWIG -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASCA 138 (6 August 2009)

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