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Appeal - Magistrates Court (Civil Proceedings) Act 2004 - Whether appeal should be struck out in view of the nature of the claim - Whether the matter should be remitted to the Magistrates Court where no reasons for decision

Home Buildings Contract Act 1991 - Statutory construction - Whether works covered by the Act - Definition of 'dwelling' - Definition of 'home building work' - Prefabricated modules for different purposes - Whether Magistrates Court has jurisdiction to deal with claim

Building Services (Complaint Resolution and Administration) Act 2011 - Whether exclusive jurisdiction to deal with claims arising out of home building work contracts - Interaction with Magistrates Court (Civil Proceedings) Act 2004 - Transfer of proceedings

Building Services (Complaint Resolution and Administration) Act 2011 (WA) s 5(2), s 7, s 55(2), s 55(3)

Home Building Contracts Act 1991 (WA) s 3, s 10(2), s 17

Interpretation Act 1984 s 18

Magistrates Court (Civil Proceedings) Act 2004 s 6(5)(e), s 43(3)

Order made by the Magistrates Court of Western Australia on 20 February 2012 quashed

Matter remitted to the Magistrates Court of Western Australia to be determined according to law

Consolidated Constructions Pty Ltd v Satellite Group (Harold Park) Pty Ltd [2000] NSWSC 1235

Cristovao v John Horton & Associates [2012] WASCA 12

Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60l; (2010) 269 ALR 262

Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71

1 STEVENSON DCJ: [This judgment was delivered orally on 15 June 2012 and has been edited from the transcript.]

2 The substantive issue in this appeal is whether or not the contract between the appellant and the respondent for the construction and supply of certain prefabricated modules is a 'home building work contract' as that term is defined in the Home Building Contracts Act 1991 (WA) (HBC Act).

3 If the contract between the parties is a contract governed by the HBC Act, then the respondent contends that the Magistrates Court does not have jurisdiction to deal with the dispute between the parties.

4 Before turning to the substantive issue raised by the appeal, two preliminary issues are raised by the respondent. The first is a threshold issue concerning the nature of the appeal and whether this court should entertain the appeal. The second involves a procedural consequence of the first ground of appeal (which is not contested) arising out of the alleged failure of the learned magistrate to provide any reasons for decision.

5 The first preliminary issue concerns the application by the respondent that the appeal should be struck out by the court using its discretionary power contained in s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004. Section 43(3) of the Act provides as follows:

The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.

6 Usually such an application is made in the early stage of an appeal. In this case the application is being heard at the same time as the appeal after both parties have incurred the cost of the preparation of the appeal book and written submissions for the purpose of the hearing of the appeal. The power is obviously a discretionary power vested in the court and must be exercised judicially having regard to the circumstances pertaining to the appeal in question. I, myself, have used the power in appropriate cases in the past.

7 During submissions reference was made to Cristovao v John Horton & Associates [2012] WASCA 12 and relied upon by the respondent. In my view, the circumstances of that matter are fundamentally different to the circumstances of this appeal. It concerned an appeal from an interlocutory decision which the Court of Appeal described as a 'relatively minor procedural point which involved an exercise of discretion by the magistrate' [27]. In that case the claim was for $2,700 which fell well within the $10,000 limit of the minor cases jurisdiction of the Magistrates Court.

8 In Cristovao v John Horton & Associates the Court of Appeal in a joint judgment explained the rationale of, in particular, the second limb of s 43(3) as follows:

[20] There are therefore two limbs to s 43(3). In determining whether the likely costs of the appeal would be disproportionate, the first limb is concerned with the amount of the claim in the Magistrates Court, and the second limb is concerned with 'the nature of the case which is the subject of the appeal'. Section 43 is not concerned with the substantive merits of the appeal: Defendi v Eden Hill Plasterers [2008] WASCA 269 [16].

[21] The 'nature of the case which is the subject of the appeal' in s 43(3) is not, in our view, confined to the nature of the substantive proceedings in the Magistrates Court. Where, as here, the appeal is against an interlocutory order, it includes the nature of the particular issue in those proceedings which is the subject of the appeal. If 'the nature of the case' was confined to the nature of the substantive proceedings in the Magistrates Court, it would mean that where an appeal was brought against an interlocutory order, the nature of the interlocutory order would be irrelevant on an application under s 43(3). The only question would be as to the amount of the claim or the nature of the substantive proceedings. So long as the costs of the appeal were not disproportionate to the amount of the claim or the nature of the substantive proceedings, it would be irrelevant that the appeal concerned a minor procedural issue in respect of which the costs of the appeal were entirely disproportionate. Such an appeal would not be susceptible to being struck out under s 43(3).

[22] That, in our view, could never have been intended. Section 43(3) is concerned to prevent disproportionate costs being incurred by the parties on appeals from proceedings in the Magistrates Court. It is not concerned with proportionality in any other respect, such as the court resources required for the determination of the appeal. It is evident that the requirement of proportionality under s 43(3) is intended to enable a party to litigate a modest claim in the Magistrates Court without the risk that an opponent who (for whatever reason) is unconcerned with costs might pursue appeals of disproportionate and even crippling expense. That intention would be defeated if, so long as the costs of the appeal were not disproportionate to the nature or amount of the substantive proceedings, a party unconcerned with costs could pursue with impunity an appeal against any (or even, every) adverse interlocutory decision, even where the issue on the appeal was of a minor or trifling nature.

9 The respondent relies on the second limb of s 43(3) of the Act, namely 'the nature of the case which is the subject of the appeal' to invite the court to strike out the appeal. I accept the nature of the case is not confined to the nature of the substantive proceedings in the Magistrates Court.

10 This appeal is essentially concerned with the issue of construction of legislation. It is not dependent on any disputed factual evidence. The decision which is the subject of the appeal is self-executing on the proceedings in the Magistrates Court. The practical effect of the decision is to end the proceedings in the Magistrates Court and to compel the appellant to seek redress and a hearing of the merits of its claim elsewhere.

11 In my view, the costs involved in the hearing of the appeal and the costs associated with counsel being here today have substantially already been incurred by the parties. The only costs which remain to be incurred are the costs associated with the further court time required to hear the parties' oral submissions.

12 In my opinion the subject matter of the appeal is one that raises an important point of principle and should be determined by this court, as asked by the appellant. No relevant authority directly on point is referred to or relied upon by either party. The decision in question raises an issue of statutory construction which by reference to the circumstances of the case involves a consideration of the context, policy and purpose of the 'home building' legislation and statutory scheme in Western Australia.

13 In my view, there is no proper basis upon which this court should strike out the appeal using the power contained in s 43(3) of the Magistrates Court (Civil Proceedings) Act. The circumstances when the discretionary power may be invoked by this court on an appeal are not constrained (except by the proper construction of the provision) and must be determined by reference to the circumstances of each individual appeal. As I have indicated, in my view this is not such an appeal.

Failure of the learned magistrate to give reasons for decision

14 There is a second preliminary issue which arises in this appeal. Both parties accept that the learned magistrate did not provide any, or any proper, reasons for the decision which he came to before he made the order on 20 February 2012, in effect, dismissing the proceedings in the Magistrates Court on the basis that the court did not have jurisdiction to hear and determine the dispute between the parties.

15 The court's order on that occasion also purported to transfer the appellant's claim to the Building Commissioner pursuant to s 55(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). In the course of the appeal, I heard submissions as to the proper construction of that provision and whether the Magistrates Court had the power to make the order it did in relation to the purported transfer of the dispute to the Building Commissioner. I will come to that later in my reasons for decision.

16 The primary issue though is the respondent's contention that the matter should be remitted to the learned magistrate to enable the Magistrates Court to prepare reasons for decision for the conclusion it reached.

17 As indicated in the course of submissions with counsel, in my view there would be no utility in this particular case in adopting that course of action. The only result would be to incur further costs for both parties and to waste further time in the resolution of the real dispute between them. The only benefit in doing so, as identified by counsel for the respondent, was that the reasons for decision might persuade the appellant of the futility of the appeal. That is a matter for debate.

18 I have had regard to the authorities referred to in the submissions of the parties as to when it is appropriate for an appeal court to remit a matter for the provision of reasons where they have not been properly provided in the first place. In that regard reference was made to the decision of the Federal Court in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 and also North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60l; (2010) 269 ALR 262 where the Full Court of the Federal Court said [38]:

The consequence of a judge's failure to give adequate reasons was recently considered by the Full Court in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 (Echo) [41]:

'A failure by a trial Judge to give adequate reasons does not necessarily mean that the matters should be remitted for a new trial or for the purpose of the trial Judge formulating adequate reasons for the orders. In Bourke v Beneficial Finance, for example, the Full Court considered (at 284) that, although the trial Judge in that case had not given adequate reasons for his conclusions, the appropriate course was for the Court to analyse the documentation upon which the appellants relied and reach its own conclusions as to whether the orders made at first instance were justified. Since the analysis showed that the appellants could not succeed in their claims for relief, the Court concluded that there was no point in sending the matter back for a new trial ...'.

Their Honours pointed out that in Echo [2008] FCAFC 58, as in Bourke v Beneficial Finance Ltd (1993) 47 FCR 264 (Bourke), there was no issue concerning the credit of witnesses, and the case depended entirely on the documentation and on unchallenged evidence. In those circumstances, they thought the appropriate course was for them to determine, on the evidence before the primary judge, whether his orders were properly made.

19 It was recognised by the Supreme Court of Western Australia in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29], that an appeal court should consider the matter and if it can do so (where for example only one conclusion or outcome is available on the evidence), it may itself decide the matter.

20 In my view, there is no proper basis in this case to remit the matter to the learned magistrate for the preparation of reasons. It would merely involve the learned magistrate preparing reasons, which would then be made available to this court for the purpose of determining the appeal. In any event, the likely reasons can, in part, be discerned from the transcript of the hearing before the learned magistrate and his exchanges with counsel in the course of submissions.

21 This is not a case where there is anything further or additional to the material put before this court that the learned magistrate could refer to or would need to refer to in order to determine the substantive issue raised by the appeal, which involves the proper construction of legislation against the background of the contractual relationship between the parties, which is not in dispute.

22 For these reasons, in my view, this court should proceed to hear the appeal, as it has to this point, and it should determine the issue raised by the appeal.

23 Before I turn to the substantive issue raised by the appeal and the submissions of the parties, I will refer briefly to the background of the proceedings. On 13 October 2010 the appellant filed a general procedure claim in the civil jurisdiction of the Magistrates Court at Perth. The claim was for the sum of $12,610.83.

24 On 28 October 2010 the respondent filed a notice of its intention to defend the claim. On 9 September 2011 the appellant filed its statement of general procedure claim in the Magistrates Court. The summary of facts contained in the claim included the following (pars 2 - 6):

1. The claimant's business involved the design and construction of transportable buildings.
2. By a contract in writing made on 6 April 2010 between the claimant and the defendant (the contract), the claimant agreed to construct and supply to the defendant certain mobile accommodation units (the units) subject to the terms and conditions of the contract and in consideration for a fee (the fee).
3. The claimant supplied the units to the defendant on 30 July 2010 pursuant to the contract.
4. In breach of the contract the defendant has paid only part of the fee.
5. The balance of the fee which the defendant has not paid pursuant to the contract or at all is $12,610.83.

25 As I understand it, the respondent has not yet filed particulars of its defence. In the course of submissions it was not made clear whether the root cause of the dispute concerns a certain aspect of the building works undertaken by the appellant that relates to one or all of the particular types of modules constructed by the appellant for the respondent. The parties have not yet joined issue as to what the real dispute between them is. It seems that the appellant is not yet on notice of the basis upon which the respondent intends to defend the claim.

26 On 7 November 2011, the respondent filed an application in the Magistrates Court which is the genesis of this appeal. The application sought orders for the dismissal of the appellant's claim; judgment in favour of the respondent; and that the appellant pay the respondent's costs of the proceedings, including the application. This was on the basis that the Magistrates Court did not have jurisdiction to hear and determine the appellant's claim.

27 That application was heard by a learned magistrate on 9 January 2012 and 20 February 2012. At the conclusion of the second hearing, after hearing oral submissions from counsel, his Honour pronounced his judgment that formed the basis of the orders he made on 20 February 2012 (which are the subject of the appeal to this court).

28 In short, his Honour was persuaded, based on the material before him and the submissions made to him, pursuant to s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act, the Magistrates Court did not have jurisdiction to deal with the appellant's claim because it related to a 'home building work contract' in respect to dwellings as defined by the HBC Act.

29 His Honour went on, as mentioned, to make a further order that the appellant's claim be transferred to the Building Commissioner pursuant to s 55(2) of the BSCRA Act, presumably on the basis it was a 'HBWC complaint' under s 5(2) of the Act.

30 On 9 March 2012, the appellant filed a notice of appeal in the District Court and sought to have the order made by the Magistrates Court on 20 February 2012 quashed on the basis that the Magistrates Court does have jurisdiction to deal with the dispute between the parties.

31 As mentioned, the first ground of appeal is that the learned magistrate erred in law in failing to provide any reasons for his decision that the appellant's claim was not justiciable in the Magistrates Court. This was not contested by the respondent, which was proper in the circumstances, as the learned magistrate merely stated his conclusion and pronounced his consequential orders (ts 28).

32 The second ground of appeal is that the learned magistrate erred in law in so finding when the position was, and he should have found, that the claim was justiciable because the work undertaken by the appellant was not home building work for the purposes of s 3 of the HBC Act.

33 This appeal is to be determined on the material and evidence that was before the Magistrates Court and any other evidence admitted by leave of the court. At the commencement of the hearing it was agreed by the parties that the appeal should be determined on the contents of the appeal book, taking into account the written submissions provided by both parties and, obviously, counsel's subsequent oral submissions.

Application of Home Building Contracts Act 1991

34 The essential question before the court is whether the contract entered into between the parties on 6 April 2010 is regulated by the provisions of the HBC Act. The answer is to be determined by the proper statutory construction of the Act and taking into account the relevant factual circumstances. This involves a consideration of the context, purpose and policy of the statutory scheme regulating home building work, which must be discerned from the relevant legislation as enacted by Parliament.

35 Section 3 of the HBC Act defines a 'contract' for the purposes of the Act to mean 'a home building work contract'. A 'home building work contract' is defined to mean 'a contract between a builder and an owner for the performance by the builder of home building work, but does not include ... (certain contracts for work not relevant for present purposes)'. The resolution of the issue is not assisted by the definition of 'owner' or 'builder' in the Act, both of which bring the inquirer back to the essential question of whether the contract between the parties consists of or involves the performance of 'home building work'.

36 The term 'home building work' is defined in s 3 of the HBC Act to mean the whole or part of the work of:

(a) constructing or re-constructing a dwelling including an existing dwelling and/or strata-titled dwelling; or

(b) placing a dwelling on land; or

(c) altering, improving or repairing a dwelling, including a strata-titled dwelling; or

(d) constructing or carrying out any associated work in connection with -

(i) any work referred to in paragraph (a) or (b); or

(ii) an existing dwelling, including a strata-titled dwelling;

37 The definition of 'home building work' calls into question the meaning of the term 'dwelling'. 'Dwelling' is defined in s 3 of the Act to mean:

A building occupied or intended for occupation solely or mainly as a place of residence.

38 If it is considered that the meaning of the term 'dwelling' is extended by the use of the term in the definition of 'home building work', in my view, any extension is just a clarification of the primary meaning as defined and entirely consistent with the definition of the term.

39 I am quite certain that if either party had turned its mind to whether or not the HBC Act applied to the contract at the time they entered into it, both would have said, 'No'. That of course is entirely irrelevant and not an answer to the question which this court must determine in the appeal. However there is nothing in the contractual material or the evidence before the court which indicates that any part or provision of the statutory scheme established by the HBC Act was referred to or applied by either of the parties in the course of their contractual relationship. The issue seems to have only arisen some time after the appellant commenced proceedings against the respondent in the Magistrates Court.

40 In my view, it is informative to look to the contract, including the respondent's purchase order and the appellant's terms and conditions which governed the contract. I accept of course that the nature of the actual contract between the parties and the content of the contractual material cannot, of itself, be determinative of whether or not the HBC Act applies to and governs their relations.

41 It is for the court to determine whether the contract between the parties can properly be characterised as a 'home building work' contract for the purposes of the legislation. Both parties have made submissions in relation to the way in which they say the position is governed by the statutory scheme and the relevant definitions.

42 The appellant places reliance on the contention that its claim is a monetary claim arising out of the contract. That of course is the position, at this stage, in relation to the dispute. I put it that way because it is not yet known what the basis of the defendant's defence is, or will be, when the dispute itself comes to be determined. It may be the core of the dispute is alleged defective workmanship in the construction works, but that is just speculation.

43 The appellant says that the relevant legislation has no application to the contract between the parties because the HBC Act is directed to, and concerned with, the construction of and works associated with a 'home'. This is underlined and made plain, according to the appellant, by the definition of 'dwelling' and 'home building work' in the legislation.

44 The appellant says, in support of its contention, that the fabricated modules or units, the subject of its contract with the respondent, are not individually or collectively caught by the definition of 'home building work' or 'dwelling' on the basis that it cannot properly be said that persons who stay in the modules 'live there'. It is asserted that their stay is temporary while they are working and that the module is not therefore 'occupied or intended for occupation solely or mainly as a place of residence'.

45 The position is not an easy one because of the way in which the term 'dwelling' is defined in the legislation. It includes a reference to a building. The term, 'building' itself, is not defined, but it is clear from the definition of 'home building work', and also s 10(2) of the Act, that the Act may apply to prefabricated modules or units which are then transported to a place and either fixed to the land permanently or for a short period of time. That of course involves a reference to the physical subject matter of the works and not the purpose or intention for which the 'building' will be used. What is required is that the module be a place which is occupied or intended to be occupied 'solely or mainly as a place of residence'.

46 The term 'residence' is not defined for the purpose of the HBC Act by the Act. It is noteworthy that The Macquarie Dictionary defines 'residence' to mean:

1. the place, especially the house, in which one resides; dwelling place; dwelling.
2. a large house.
3. the act or fact of residing.
4. the time during which one resides in a place

47 The Oxford English Dictionary defines 'residence' to include as follows:

1. The fact of living or staying regularly at or in a specified place for the performance of official duties, for work, or to comply with regulations; (also) the period during which such a stay is required of one.
   1. (a) The circumstance or fact of having one's permanent or usual dwelling place or home in or at a certain place; the fact of residing or being resident. Also in extended use.

(b) Cultural Anthropol. The fact of settling in a particular place after marriage, according to the prevailing kinship system.

1. Continuance in some course or action. with residence: continuously, insistently

(a) The place where a person resides; the dwelling place or home of a person (esp. one of some rank or distinction).

(b) A dwelling, a house, esp. an impressive, official, or superior one; a mansion.

48 In this case, the evidence is that the prefabricated modules manufactured by the appellant for the respondent were placed by the respondent on trailers to enable the modules to be moved around from worksite to worksite. There is evidence before the court that the respondent using the modules for this purpose, at a number of different worksites.

49 If one was to deal with each unit or module, there were three different types of module constructed by the appellant; firstly, accommodation modules; secondly, a male shower module; and thirdly, a female shower and laundry module. Clearly if one was to have regard to the male shower and female shower/laundry module only, it would be difficult to accept that they could properly be regarded as intended for occupation 'solely or mainly as a place of residence'. The same might not be said of the accommodation modules.

50 On the other hand, the respondent says that the modules, either individually or collectively, are caught by the term 'dwelling', as defined in the Act on the basis that the intended use is one of occupation - even be it that it is not permanent occupation. The respondent says that the proper construction of the term 'dwelling' is concerned primarily with the purpose or intended use of the building, namely as a place of residence. On this basis, the respondent says the Act would not cover a building if the purpose of the place was for it to be used as an office or an industrial shed. In addition, the respondent says that the words of limitation 'solely or mainly as a place of residence' do not prescribe that the persons living in the dwelling should be doing so on the basis that they regard it as their 'home'.

51 The respondent relies on the use of the term 'residence' in the definition to inform its primary submission that, as a matter of construction, it is necessary to have regard to the use or intended use of the building. I accept this submission, but on its own it is not a complete answer because it is qualified by reference to the extent of the use of the building as a residence.

52 There is evidence, which is not in dispute, in the material before the court in affidavit form that the modules are used by the respondent to house workers on different building sites and construction sites for short periods of time. The persons who occupy the modules do so on a come and go basis. The evidence also discloses that the modules have been moved and, used at a number of different locations. The respondent has fixed the modules to trailers so they are mobile. The contract between the parties did not include the construction of any modules for use as a kitchen or eating facilities.

53 Reference was made in the parties' submission to s 18 of the Interpretation Act 1984, which provides that in the interpretation of a provision of written law, a construction that would promote the purpose or object underlying the written law, whether that purpose or object is expressly stated in the written law or not, shall be preferred to a construction that would not promote that purpose or object.

54 I accept that a literal interpretation is not always the proper construction and that the court should have regard to the context and purpose for which the relevant terms or legislation is to be construed. It is noteworthy that the legislation is entitled Home Building Contracts Act. I place emphasis on the use of the word 'home'.

55 I also note that the long title of the HBC Act provides that it is an Act for the regulation of contracts between consumers and builders for the performance of certain home building work, to make provision for home indemnity insurance and funds providing corresponding cover and for connected purposes. It is what is sometimes termed 'beneficial' legislation.

56 When one has regard to the legislative regime and policy contained in the HBC Act and the BSCRA Act, it is both prescriptive and in some respects, voluminous in an attempt to provide remedial legislation to govern contractual relations between builders and consumers of places where the occupiers intend to live either solely or mainly as their place of residence.

57 The court has been referred to the decision of Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 in relation to the way in which the Land and Environment Court of New South Wales construed the term 'dwelling' in the context of the legislation which applies in that state. I accept the fact that the fabricated modules do not contain, for example, any kitchen or cooking facilities, does not of itself provide a complete answer to the issue of whether or not the contract was governed by the HBC Act.

58 It is of course quite plain that building work, for example, the erection of an outside ablution facility on land could form works which would be the subject of the HBC Act as part of or associated with a 'dwelling'. Likewise, I do not find the need to characterise the use of any particular part of a building as occupied for the sole or main purpose as a residence, determinative on its own of whether the place is a 'dwelling'. Each case must be determined by reference to the defined terms, in particular 'dwelling' and the actual facts of the case in question.

59 In my view, the court may (where the position is not clear and unequivocal) in arriving at its interpretation have regard to the broad purpose and policy objectives of the relevant legislation. It must have regard to a general characterisation of the contract documentation which governs the contractual relationship between the parties. It should also obviously have regard to a broad characterisation of the subject matter of the construction works the subject of the contract, including obviously the use and purpose of the facilities being constructed.

60 There does not need, in my view, to be any degree of permanency of residence in order to make it a dwelling for the purpose of the legislation, provided the place is occupied solely or mainly as a place of residence. So, short-term residential accommodation could, in my opinion, quite properly be subject to the legislative scheme: see Consolidated Constructions Pty Ltd v Satellite Group (Harold Park) Pty Ltd [2000] NSWSC 1235 where, in New South Wales, consideration was given to the legislation in that state and in particular to the proper interpretation of the term 'dwelling'.

61 Before returning to decide the substantive issue raised by the appeal, I want to deal with another submission made by the appellant which concerns the proper construction of s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act and its inter-relationship with s 17 of the HBC Act and s 5(2) and s 55 of the BSCRA Act. The respondent implicitly relies upon these provisions for its position that the Magistrates Court does not have jurisdiction because the contract is subject to the HBC Act which, it says, requires the dispute in the first instance to be determined by the Building Commissioner under the BSCRA Act.

62 In short, the appellant's submission is that because no complaint has been made to the Building Commissioner about the dispute pursuant to s 17 of the HBC Act and s 5(2) of the BSCRA Act, the jurisdiction of the Building Commissioner has not been enlivened, and therefore the Building Commissioner has no jurisdiction in relation to the dispute.

63 It follows from this reasoning (according to the appellant) that s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act also has not been enlivened and, as a result, the exclusionary effect of that subsection does not apply. The appellant relies upon s 55(2) and s 55(3) of the BSCRA Act for its construction and that those provisions indicate and underline the appellant's contention because s 55(2) contemplates the dispute being 'before a court', even though the matter could be dealt with by the Building Commissioner under that Act. The appellant says that it follows that s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act is not an exclusion of the court's jurisdiction to hear the dispute unless the Building Commissioner or the State Administrative Tribunal is already seized of the matter. But, if it is not, then the appellant contends there is no limitation on the jurisdiction of the Magistrates Court to hear and determine the claim.

64 The respondent says that the proper construction of these provisions is one which imposes an obligation on the appellant to make a complaint under s 17 of the HBC Act and s 5(2) of the BSCRA Act, if it claims that there has been a breach of the contract (which of course it does, because the appellant says the respondent has failed to pay monies due to it under the contract). The respondent says the appellant has no choice but to make a complaint under these provisions and, as a result of the operation of s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act, the Magistrates Court does not have jurisdiction to hear the matter. This approach requires the use of the term 'may' in s 17 of the HBC Act and s 5(2) of the BSCRA Act to be read as 'shall' in the mandatory sense. I accept that sometimes the term 'may' can properly be construed as compelling or absolute, in the sense of 'shall' or 'must'.

65 The appellant says that, if the intention of the legislature had been to provide that owners and builders must proceed in the way contended for by the respondent (that is through a complaint to the Building Commissioner), then it would have and could have expressed this plainly and without any ambiguity, including the ouster of any (and all) jurisdiction of the Magistrates Court in relation to such matters.

66 These are all matters for debate which, in my view, do not in themselves require final resolution for the purpose of the appeal, but they do bear upon the primary contention of the respondent in this appeal that the contract between the parties is subject to the provisions of the HBC Act and, for this reason, the Magistrates Court does not have jurisdiction to hear the matter.

67 In my view, the Building Commissioner (or the State Administrative Tribunal) only has jurisdiction to deal with a claim if that jurisdiction has been invoked by the claimant using the power under s 17 of the HBC Act to make a complaint to the Building Commissioner pursuant to s 5(2) of the BSCRA Act. In my opinion if, and only if, such a complaint is made (and the Building Commissioner, after receiving the complaint decides to accept it - see s 7 BSCRA Act) does s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act then operate to prevent the Magistrates Court from having jurisdiction to deal with the matter.

68 Section 55(2) of the BSCRA Act is consistent with this interpretation because it assumes that the court (in this case the Magistrates Court) has jurisdiction to hear the matter, even though the subject matter of the action could have been dealt with under the BSCRA Act as a 'building service complaint or HBWC complaint' (as those terms are defined).

69 In my opinion the plain construction of s 55(2) of the BSCRA Act is to permit a court, in the exercise of its discretion in an appropriate case, to transfer the matter to the Building Commissioner to be dealt with under the Act and its procedures. This would involve the court assessing the nature of the dispute and hearing from the parties as to whether it is appropriate in the particular case for the matter to be transferred. This may require a detailed consideration of the pathways, risks and pitfalls for the parties if the matter is resolved under the BSCRA Act because it contains many self-regulating limitations, including time limits (presumably the provision in s 7 of the Act which require the Building Commissioner to make a preliminary decision whether to accept or reject the claim will not apply if the court makes an order transferring the matter, although this may be moot). It may be the case that the Building Commissioner and his or her officers are better placed by their knowledge and skill sets to resolve matters of alleged defective work and the courts are in a better position to resolve contractual legal issues. There are many ponderables which will inform parties as to how they choose to exercise their legal rights and for the court, if the matter is sought to be transferred to the Building Commissioner under s 55(2) of the BSCRA Act.

70 It must be remembered that the learned magistrate was not asked in this case to exercise the court's discretion in s 55(2) of the BSCRA Act to transfer the matter to the Building Commissioner. He purported to do this for one reason only, because he formed the view that the Magistrates Court did not have jurisdiction to hear the appellant's claim 'by virtue of s 6(5)(e) of the Magistrates Court (Civil Proceedings) Act ... as the claim relates to a home building contract in respect to dwellings' (ts 28 - 20/2/2012). This is not an appeal from a decision involving the exercise of the discretionary power in s 55(2) of the BSCRA Act.

71 I now return to the threshold issue raised by the appeal. In my view, on a proper construction of the relevant provisions to which I have referred and having regard to the terms and conditions of the contract between the parties (and the resultant works), the contract is not a 'home building work contract' governed by the HBC Act. My opinion is based on a consideration of the relevant definitions referred to in the Act; the scheme, purpose and objects of the relevant legislation; and, in particular, the nature and circumstances of the contract between the parties in this case, and the building works to be performed.

72 I am not persuaded that the prefabricated modules built by the appellant for the respondent, whether considered individually or collectively, and taking into account their intended and actual use, constitute a 'dwelling' as that term is defined in the HBC Act for the objects, purpose and policy of the legislative scheme regulated by the Act.

73 If I am wrong in that regard, I am of the opinion that the learned magistrate was in error in purporting to transfer the appellant's claim in the Magistrates Court to the Building Commissioner using the power under s 55(2) of the BSCRA Act, because the exercise of discretion was not informed by reference to all the relevant considerations that would normally attend such a decision (and about which the parties were not given an opportunity to be heard). In my view the Building Commissioner does not have exclusive jurisdiction to hear the dispute, even if the contract is regulated by the HBC Act.

74 It follows, in my respectful opinion, that the learned magistrate was wrong in law when he ruled that the Magistrates Court did not have jurisdiction to deal with the dispute. I would add that, in my view, the jurisdiction of the Building Commissioner has not been enlivened as a fact because no complaint has been made under s 5(2) of the BSCRA Act. For this reason, it follows that s 6(5)(e) Magistrates Court (Civil Proceedings) Act does not apply to prevent the Magistrates Court from hearing and determining the dispute between the parties in this case. That section, in my view, merely prevents the Magistrates Court from dealing with a claim that is already the subject of complaint proceedings being conducted by the Building Commissioner (or the State Administrative Tribunal) under the BSCRA Act.

1. Allow the appeal;
2. Quash the order made by the Magistrates Court of Western Australia on 20 February 2012; and
3. Remit the matter to the Magistrates Court of Western Australia to be determined according to law.