I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

JETPOINT NOMINEES PTY LTD and LEE [2021] WASAT 10 | Case summary | Zoe

Legislation Cited (7)

Services (Complaint Resolution and Administration) Act 2011

Services (Complaint Resolution and Administration) Regulations 2011

Administration Act 1990

Tribunal Act 2004

Building Contracts Act 1991

Administrative Tribunal Act 2004

Administrative Tribunal Rules 2004

Cases Cited (29)

JETPOINT NOMINEES PTY LTD and LEE [2021] WASAT 10 (2 February 2021)

Chin v Legal Practice Board of Western Australia [2011] WASCA 110

Filimon and Rimmer [2013] WASAT 13; (2013) 83 SR (WA) 348

Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Lee and Holmes [2020] WASAT 108

Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62; (2020) 100 SR (WA) 187

Lee and Jetpoint Nominees Pty Ltd [No 2] [2020] WASAT 79

LP [2020] WASAT 25

Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Myran Holdings Pty Ltd and Bombak [2013] WASAT 20; (2013) 83 SR (WA) 383

Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135

R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382; (2014) 238 A Crim R 205

Under the heading 'Building remedy order', the original Tribunal then said the following in the second decision at [43]-[45]:
1. When it was explained to Jetpoint that the Tribunal did not possess equitable jurisdiction to grant an estoppel, the submission was clarified to, if the Tribunal was to exercise a discretion, that any such discretion should be exercised to make no order at all, or at the very least, made in the respondent's favour. Pursuant to s 38(1)(a) of the [BSCRA] Act, if the Tribunal finds that the item of complaint has not been carried out in a proper or proficient manner or is faulty and unsatisfactory, the Tribunal is to deal with the complaint by making a BRO. We find that there is no discretion in s 38(1)(a) of the [BSCRA] Act, where the Tribunal is relevantly satisfied, to not make a BRO as submitted by Jetpoint.
2. A BRO can take different forms. The builder can be ordered to rectify the faulty work or the applicant can be awarded the cost of rectification and then organise the work themselves or compensation can be paid for the faulty work, or even a combination of these orders.
3. The Tribunal must exercise its discretion to determine the appropriate BRO rather than be directed in any way by the parties, however of course the preference of the parties are relevant considerations: see Gemmill Homes Pty Ltd and Sanders [2018] WASC 179 at [131]- [135].
Jetpoint does not challenge the original Tribunal's reasoning set out immediately above and I consider that it is correct.
As to the type of BRO that should be made, the original Tribunal had earlier noted Ms Lee's submission that 'if the Tribunal found any or all of the nine items had not been carried out by [Jetpoint] in a proper and proficient manner or were faulty or unsatisfactory, the appropriate BRO for the Tribunal to make in the facts and circumstances was a monetary BRO'.[32] Having again referred to Ms Lee's submission that 'the Tribunal should make a monetary BRO'[33] and to Jetpoint's submission 'in the alternative ..., that a works BRO should be made by the Tribunal',[34] the original Tribunal determined that it should make a monetary BRO and not a works BRO, for the following reasons at [48][50] of the second decision:

In Jorgensen, the Full Court elaborated upon these grounds as follows:
1. The first ground, which Kourakis CJ referred to as the "disruption ground" is made out where the interventions unfairly undermine the proper presentation of a party's case: see also Ellis v R [2015] NSWCCA 262 at [65]. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 6364.
2. The second ground is where the questioning or interruptions give an appearance of bias...
3. The third ground, which Kourakis CJ referred to as the "dust of conflict" ground (an expression coined by Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189), is made out where the questioning or intervention is "such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance".
In R v T, Kourakis CJ at [39] explained the "dust of conflict ground" in terms of compromising the capacity of the judge to adjudicate. His Honour observed that the ground is based on an objective standard and measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence.
A ground that the trial was conducted unfairly ("the disruption ground" and "the dust of conflict ground"), is distinct from a ground of apprehended bias, the former turning largely upon whether the litigant has had a proper opportunity to advance his or her case: ; at . However, the grounds may overlap.

This passage from Johnson v Johnson applies equally where a party is self-represented. It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343.
In Chin v Legal Practice Board of Western Australia [2011] WASCA 110, Newnes JA said the following in relation to the tests for the disqualification of a judicial officer on the basis of a reasonable apprehension of bias and on the basis of actual bias in the conduct of proceedings at [3] and [5]:
1. The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.

Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].
As Kirby ACJ (Meagher JA agreeing) said in Galea v Galea (1990) 19 NSWLR 263 at 281, 'greater latitude in questioning and comment will be accepted where a judge is sitting alone [in a civil trial, as opposed to where a judge is sitting with a jury]', 'because ... a trained judicial officer ... will be more readily able to correct and allow for preliminary opinions ...', '[a]lthough there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court'. Furthermore, although the rules of natural justice apply in SAT proceedings (subject to any express or implicit indication to the contrary in the relevant enabling Act) in the same way as they apply in court proceedings, as discussed below, a member of the Tribunal will generally have greater latitude in questioning and comment than would a judge sitting alone in civil proceedings in a court. In particular, the greater latitude in questioning and comment that will generally be accepted in the conduct of SAT proceedings qualifies the application in SAT of the 'dust of conflict ground' identified by Kourakis CJ in R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382; (2014) 238 A Crim R 205 at [38][76] as the third of the three grounds upon which excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice, that is that 'the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance'. The 'dust of conflict' ground derives its name from the judgment of Lord Green MR (MacKinnon and du Parcq LJJ agreeing) in the English Court of Appeal in ; at 20; 189, where the Master of Rolls said that 'a judge who himself conducts the examination [of a witness] ... [,] so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict'. To a greater or lesser extent, depending on the nature of the jurisdiction being exercised, the provisions of the relevant enabling Act, and the applicable provisions of the SAT Act and the (WA) (SAT Rules), a Tribunal member may enter the 'arena' to ask relevant questions of, and seek necessary information from, parties and witnesses, without the 'dust of conflict' clouding their vision and compromising their role and function as objective evaluator of the evidence, to a degree that is not available to a judge conducting a civil trial in a court. However, the greater latitude in questioning and comment that is generally available to a member of the Tribunal does not qualify the application in SAT proceedings of either of the other two grounds identified by Kourakis CJ in at [38] upon which excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice, namely the 'disruption ground', that is that 'the questioning unfairly undermines the proper presentation of a party's case', and the 'bias ground', that is that 'the questioning gives an appearance of bias', because the Tribunal is bound by the rules of natural justice (unless the enabling Act authorises a departure from those rules). In the same way as a judge conducting civil proceedings in court, a SAT member may not, by questioning or comment, unfairly undermine the proper presentation of a party's case or give the appearance of bias.

(2000) 201 CLR 488

(2008) 37 WAR 149

(2018) 232 LGERA 331

(1990) 19 NSWLR 263

(2019) 271 FCR 530

(2013) 118 SASR 382

(2006) 229 CLR 577

(2000) 199 CLR 620

(2002) 209 CLR 597

(1978) 20 ALR 323

(2001) 205 CLR 507

Due to the findings in the preliminary [first] decision and in particular the way that Jetpoint's directors conducted Jetpoint's case during the final hearing day of these proceedings having received the Tribunal's preliminary [first] decision, the Tribunal is concerned that the directors of the respondent are still failing to understand the respondent's obligations under the [BSCRA] Act. The Tribunal is not confident that Jetpoint, through its directors, understands its obligations as a registered building service provider to abide by the [BSCRA] Act and to abide by the terms of a works BRO. An example of this lack of understanding is Jetpoint's misconceived submission requesting the Tribunal to order the parties to enter into a written contract regarding a works BRO. A works BRO is something that Jetpoint would be ordered to comply with under the [BSCRA] Act, with consequences to follow under the [BSCRA] Act if not complied with such as conversion proceedings under s 51 of the [BSCRA] Act. Another example, is the submission from Jetpoint during the final hearing day on 30 June 2020 that it is not responsible or liable for the nine items of complaint and that the responsibility is with some of the subcontractors. These submissions do not provide the Tribunal with confidence that Jetpoint would properly manage its obligations as a registered building service provider to arrange and oversee completion of a works BRO.
Further, the breakdown of not only a commercial relationship between Jetpoint and Ms Lee but also a personal friendship between Mr O'Reilly and Ms Lee resulting in Mr O'Reilly being banned from [No.] 23 MacLeod Street [sic] in February 2019 is an important relevant factor against making a works BRO. However, having found that, a positive factor for making a works BRO is the good commercial relationship maintained between Mr Andreou and Ms Lee through to May 2019.
In the exercise of the Tribunal's discretion as to which form of BRO we should make, we conclude it is appropriate that there needs to be a decisive progression toward finality of the dispute between Ms Lee and Jetpoint, such that a monetary BRO is appropriate in the facts and circumstances of these proceedings.

In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed), in a passage reflecting the overlapping nature of the grounds, set out the following principles at 281-282:

The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion".
The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.

Section 27 of the SAT Act concerns the nature of proceedings within the Tribunal's review jurisdiction. Under s 27(1) of the SAT Act, a review proceeding 'is not confined to matters that were before the [original] decision-maker[,] but may involve the consideration of new material whether or not it existed at the time the [original] decision was made'. Under s 27(2) of the SAT Act, '[t]he purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review'. Under s 27(3) of the SAT Act, the Tribunal is not limited in a review proceeding by '[t]he reasons for decision provided by the [original] decision-maker' for the reviewable decision or by 'any grounds for review set out in the application'. As the Court of Appeal[78] held in Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR135 at [122], the provisions in s 27 of the SAT Act 'make it plain that the applicant for review does not bear any legal or practical onus of identifying error in the [original decision-maker's] decision, or showing that there should be some departure from that decision'. Rather, it is the Tribunal's function in a review proceeding to consider the material before it and to form its own view as to the correct and preferable decision in the circumstances of the case. Moreover, although the parties in review proceedings are entitled to present evidence, crossexamine witnesses and make submissions, and, depending on the issues in question and their significance, the hearing in the review jurisdiction may adopt an adversarial or quasi-adversarial character, in consequence of the nature of these proceedings under s 27 of the SAT Act, the often specialist statutory jurisdiction that is being exercised under the relevant enabling Act, and the provisions of the SAT Act and the SAT Rules regulating the conduct of all Tribunal proceedings referred to at [69]-[70] below, a member conducting a review has greater latitude in questioning and comment than would be accepted where a judge is sitting alone in civil proceedings in a court.

Furthermore, the nature of the Tribunal's jurisdiction being exercised and the provisions of the enabling legislation conferring jurisdiction may, in effect, confer greater latitude in questioning and comment on the Tribunal than would be accepted in civil proceedings conducted by a judge sitting alone in a court. The Tribunal exercises specialist statutory jurisdiction not only in review proceedings, but also in original proceedings, and the enabling legislation in a specialist jurisdiction may affect the conduct of the hearing. Under s 5 of the SAT Act, if there is any inconsistency between the SAT Act and the relevant enabling Act, 'the enabling Act prevails'. For example, as the Full Tribunal[79] said in LP [2020] WASAT 25 at [90], although guardianship and administration proceedings fall within the Tribunal's original jurisdiction,[80] and the parties are permitted 'to present their own cases, call evidence and cross-examine witnesses (which are hallmarks of the adversarial judicial system)', in 'consequence of the Tribunal exercising a 'best interests' and 'protective' jurisdiction in these matters', the nature of these proceedings is 'generally non-adversarial' and best described as 'investigative'. As the Full Tribunal said in LP at [88], 'in guardianship and administration proceedings, no party bears any legal burden of proof'. The Full Tribunal also said in LP at [90] that '[a]s a result [of the investigative nature of these proceedings,] after the application is filed and the hearing is listed, the Tribunal exercises its powers under the SAT Act, principally s 32(4), s 32(7)(a), s 34 and s 35, to obtain evidence, in addition to the evidence presented by the parties, in relation to the proceedings'. During the hearing in guardianship and administration proceedings, the member continues the 'investigative' process by asking relevant questions of, and obtaining necessary information from, parties and witnesses, in addition to allowing the parties to present their own cases, including calling witnesses and cross-examining witnesses called by other parties or required by the Tribunal to give evidence.

Even in proceedings within the Tribunal's original jurisdiction where, like the plaintiff in civil court proceedings, the applicant bears the onus or legal burden of proving their case on a balance of probabilities, and the hearing consequently has an adversarial character, such as building dispute proceedings, as in the original proceeding, the Tribunal still generally has greater latitude in questioning and comment than would be accepted in the conduct of court proceedings, because of certain provisions of the SAT Act and SAT Rules. Under s 32(2) of the SAT Act, the Tribunal 'is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices and procedures' and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms'. The statutory powers of the Tribunal in all proceedings include, under s 32(4) of the SAT Act, to 'inform itself on any matter as it sees fit', and, under s 32(7)(a) of the SAT Act, 'to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding'. Section 32(5) of the SAT Act provides that '[t]o the extent that the practice and procedure of the Tribunal is not prescribed by or under [the SAT] Act or the enabling Act, it is to be as the Tribunal determines'. Thus, for example, r 39C(1) of the SAT Rules provides that, unless the Tribunal orders otherwise, expert witnesses 'with a common or overlapping expertise' are to give evidence concurrently and r 39C(2)(a) of the SAT Rules provides that the expert witnesses 'may be questioned together or separately by the Tribunal, the parties or the parties' representatives'.[81] Section 34(1) of the SAT Act also confers power on the Tribunal to 'give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding' and s 34(3) of the SAT Act provides that the Tribunal's power to give directions may be exercised 'on its own initiative or at the request of a party'. Furthermore, s 9 of the SAT Act sets out the main objectives of the Tribunal as follows:

JETPOINT NOMINEES PTY LTD and LEE [2021] WASAT 10 (2 February 2021)

At a glance

Court

Decision date

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Judgment (64 paragraphs)

Legislation Cited (7)

Cases Cited (29)

JETPOINT NOMINEES PTY LTD and LEE [2021] WASAT 10 (2 February 2021)