LEWIS -v- GARVEY [2017] WADC 76 (14 June 2017)

Building Services (Complaint Resolution and Administration) Act 2011 (WA) s 5(2)

Home Building Contracts Act 1991 (WA) s 17

Interpretation Act 1984 (WA) s 8 and s 18

Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6(1) and (5)(e) and s 17(1)(d)

Quash the order made by the Magistrates' Court of Western Australia on 5 December 2016

Order that the appellants' application of 20 June 2016 is granted

ABB Power Plants v Electricity Commission of New South Wales t/as Pacific Power (1995) 35 NSWLR 596

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Appleyard v Walker [2009] WASCA 141

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2012] WASC 228

City of Kwinana v Lamont [2014] WASCA 112

Eastwood and Holt v Studer (1926) 31 Com Cas 251

Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99

Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221

Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10

Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 312 ALR 537

R v Middlesex Justices [1933] 2 KB 1

R v Wallis [1949] HCA 30; (1949) 78 CLR 529

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4

Stokes (by a tutor) v McCourt [2013] NSWSC 1014

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5

1 In early January 2013 the respondent, Mr Garvey, made a claim in the Magistrates Court against the appellants, Kerry and Maree Lewis. The claim arose out of building works said to have been carried out at their property. The sole basis for the pleaded claim at that stage was under a contract dated 14 January 2010.

2 The date when a breach of the contract is alleged to have occurred was not pleaded.

3 A notice of intention to defend was filed on behalf of the appellants on or around 15 January 2013.

4 It is not in dispute that this claim was made within the period permitted by statute so far as the jurisdiction of the Building Commissioner is concerned. It was not, however, a claim made to the Building Commissioner.

5 On 26 February 2013, Registrar Ormesher dismissed the respondent's claim on the basis that the court lacked jurisdiction. The decision of a registrar is to be taken to be a decision of the court unless it is set aside on an appeal: Magistrates Court Civil Proceedings Rules 2005 r 80(1). The respondent appealed from that decision by an appeal notice dated 15 March 2013.

6 The respondent was unrepresented at that time. His first ground of appeal was that the registrar had erred in ruling that the court had no jurisdiction. His second 'ground of appeal' could not be so considered. Rather, it asserted that payment was sought under terms of a building contract, 'and or the common law claim of quantum merit' (sic).

7 On 8 May 2013 the solicitors acting for the appellants wrote to the respondent in order to confirm their client's position and to invite the respondent to withdraw the appeal, so as to avoid the possibility of an application for costs on an indemnity basis. Quite properly the solicitors also suggested to the respondent that he might benefit from taking independent legal advice.

8 The respondent, still without legal representation at this stage, withdrew his appeal by letter dated 22 May 2013.

9 By order of Deputy Registrar Hewitt on 27 May 2013, the respondent's notice of 22 May 2013 was accepted and the appeal was thereby discontinued.

10 Two and a half years then passed. On 3 November 2015 the respondent, who by now was represented, brought proceedings again in the Magistrates Court.

11 It is not in dispute that this claim was made more than three years after the cause of action arose and by this stage was out of time so far as the jurisdiction of the Building Commissioner is concerned.

12 This claim arose from the same contract dated 14 January 2010. In the alternative to the claim under the contract the respondent claimed payment on the basis of quantum meruit.

13 Plainly, the respondent's position then and now was that he wished to bring his claim in the Magistrates Court. He had been told in February 2013 that the Magistrates Court lacked jurisdiction. He initially appealed that decision but then abandoned his appeal. Because he seemingly did not wish to pursue matters before the Building Commissioner, he waited out the three years and then brought the 3 November 2015 claim in what appears to be his jurisdiction of choice.

14 On the respondent's case waiting out the three years had two consequences. Firstly, it meant that the Building Commissioner now no longer had any jurisdiction. The appellants agree with that proposition. Secondly, he was now in a position to bring the claim again in the Magistrates Court. The appellants fundamentally disagree with that proposition.

15 The appellants submit that the relevant legislation sets up a framework under which if a builder wishes to bring a home building and work contract, 'HBWC' claim, the builder is obliged to take it to the Building Commissioner and nowhere else. If the builder does not do so, then at the end of three years the potential claim expires.

The application to strike out as an abuse of process

16 So it was that the appellants, by written application dated 20 June 2016, sought an order that the 3 November 2015 claim be struck out in its entirety under s 17(1)(d) of the Magistrates Court (Civil Proceedings) Act 2004 (the MC Act). This provision relevantly provides that the court may strike out all or a part of a case statement if it is an abuse of the court's process. The basis for the application was that the claim had already been dismissed and that it was an abuse of the court's processes to bring it again.

17 The application was heard by Her Honour Magistrate Boon on 5 December 2016. The appellants put their case in the following way. Because the contractual claim under the 3 November 2015 claim had been dismissed it was subject to res judicata. Accordingly, it was not appropriate for the issue to be re-agitated in the same jurisdiction when it was the subject of a decision already made.

18 The appellants also submitted that the alternative claim brought on 3 November 2015 was subject to an anshun estoppel. That was because it arose out of exactly the same facts and circumstances as the January 2013 claim, which had been dismissed on 26 February 2013. It should have been litigated contemporaneously with the contractual claim.

19 Her Honour dismissed the application setting out her reasons in an ex tempore judgment.

20 The appellants appealed from that decision asserting that it was wrong at law. That was said to be so for two reasons. Firstly, the contractual or primary claim as advanced by the 3 November 2015 claim is res judicata and therefore an abuse of process.

21 Secondly, the alternative claim of quantum meruit is subject to the doctrine of anshun estoppel.

22 The appellants filed written submissions dated 2 May 2017 with the respondent filing responsive submissions on 16 May 2017. The appellants filed amended supplementary submissions on the date the appeal was heard, 24 May 2017. Having heard the appeal on that date I reserved my decision.

23 In considering this appeal it is necessary to have regard to the Home Building Contracts Act (WA) 1991 (the HBC Act), the Building Services (Complaint Resolution and Administration) Act 2011 (the BSCRA Act) and s 6(1) and s (5) of the MC Act.

24 Section 6(3)(b) of the BSCRA Act relevantly provides that a HBWC complaint is made out of time if the complaint is about a matter referred to in s 17 of the HBC Act and is made more than three years after the cause of action arose.

25 Section 7(1) of the BSCRA Act requires the Building Commissioner, after receiving a complaint under s 5 of that Act, to decide whether, and to what extent to accept or to refuse to accept the complaint, applying the criteria set out in s 7(3).

The issues that arise for consideration in this appeal

• What was the nature of the 26 February 2013 decision?
• Does the Magistrates Court have jurisdiction to consider a HBWC complaint that the Building Commissioner or the State Administrative Tribunal also has jurisdiction to deal with?
• Is the 26 February 2013 decision res judicata?
• If it is not res judicata is the 3 November 2015 claim in any event an abuse of process?
• Even if the primary or contractual claim is res judicata or in any event an abuse of process should the alternative claim of quantum meruit be struck out or can it nonetheless proceed in the Magistrates Court?

27 A judicial decision is only res judicata if it is final: Eastwood and Holt v Studer (1926) 31 Com Cas 251, 256 - 257 (Roche J) cited by Spencer Bower and Handley Res Judicata (fourth ed) at 5.01:

where a decision of a competent tribunal is relied on as creating an estoppel and preventing a subsequent review of the matter, it is necessary that the matter should have been raised and controverted before the earlier tribunal and shall have been clearly, and finally, decided by it.

28 The rule of res judicata depends not upon the correctness of the judgment but upon its existence. See for example Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90, 114-115 where Issacs J regarded subsequent proceedings as res judicata, resting on the well-known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere.

The nature of the order said to be res judicata

29 The only material before me as to the nature of the order made is a copy of a general order made by Magistrates Court of Western Australia (civil jurisdiction) at Joondalup on 26 February 2013:

1. Claim dismissed - no jurisdiction
2. Costs to the defendant

30 The only further information comes from the appeal notice which identifies the judicial officer as Registrar Ormesher.

31 There are two possible ways of construing the order.

32 The first possibility is that the registrar concluded that the Magistrates Court would never have jurisdiction to consider a HBWC complaint that the Building Commissioner or the State Administrative Tribunal also has jurisdiction to deal with. The appellants submit that if the registrar so concluded, the registrar was correct to do so on their construction of the legislation.

33 Counsel for the respondent in the court below understood that the registrar determined that s 6(5)(e) of the MC Act precluded the Magistrates Court from dealing with the matter.

34 The second possibility is that the registrar concluded that the Magistrates Court does have jurisdiction to consider a HBWC complaint but did not have jurisdiction as of 26 February 2013 because the claim was still within the three years period that runs from the date of contract or cause of action. Whilst not stating a definitive view, it seems clear from her Honour's comments at ts 33 - 34 and 36 that the magistrate concluded that this second interpretation should be applied to the decision.

35 The appellants also submit that even if the court did in fact have such jurisdiction, the decision remains res judicata even when the three year period during which the Building Commissioner or the State Administrative Tribunal had jurisdiction lapsed.

36 In my view, if the decision, which was not challenged on appeal, was indeed based on the premise that the Magistrates Court would never have jurisdiction to hear such a claim, it is res judicata and the claim should be struck out as an abuse of process.

37 In the absence of an appeal it is not possible for the respondent to assert in any subsequent proceedings that the decision of the registrar was wrong. He has not done so. He is bound by it. A fundamental question in this appeal, as I see it, is for what does the decision stand? To answer that it is necessary to consider a further question; given the relevant legislation, does the Magistrates Court have jurisdiction to hear a HBWC complaint that the Building Commissioner or the State Administrative Tribunal also has jurisdiction to deal with?

38 In asserting that it does not, the appellants rely upon the wording of s 17 of the HBC Act, in conjunction with the BSCRA Act, and s 6(1) and (5)(e) of the MC Act. The appellants submit that matters that the Building Commissioner has jurisdiction to deal with under the BSCRA Act, are not provided for by the MC Act and indeed are expressly excluded by s 6(5)(e) from the Magistrates Court's jurisdiction.

39 The Building Commissioner's jurisdiction had now lapsed because of the effluxion of time. The appellants submit that as of November 2015, there was no jurisdiction for any court or tribunal to hear the respondent's claim.

40 The appellants rely upon the text of the HBC Act and the BSCRA Act and extrinsic materials. The appellants submit that s 17 of the HBC Act gives, in this case, a builder discretion as to whether or not to make a complaint. It does not confer a choice as to jurisdiction for such a complaint.

41 The respondent contended that the jurisdiction of the Building Commissioner is enlivened by a complaint to the Commissioner under the relevant legislation. Until such time the Magistrates Court is not deprived of jurisdiction. The respondent submits that having chosen not to prosecute the appeal in May 2013, once the time limit expired for such a claim, the respondent was then free to again bring a contractual claim in the Magistrates Court.

42 In my view if the basis for the decision was on the second of these two possibilities I would have expected the order to read, 'no jurisdiction at this time' as opposed to the bald assertion, 'no jurisdiction'. I conclude that the premise of the decision was that the Magistrates Court would never have jurisdiction to consider a HBWC complaint that the Building Commissioner or the State Administrative Tribunal also has jurisdiction to deal with.

43 My view that this was the premise of the decision is reinforced by the conclusion I have reached, for the reasons that follow, that this premise is in fact correct.

44 Omitting citations, the relevant principles are encapsulated in City of Kwinana v Lamont [2014] WASCA 112 [47]:

The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text. The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision.

45 In Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 312 ALR 537 French CJ, Hayne, Crennan, Kiefel & Keane JJ observed, without citations, that [42]:

the meaning of [a] provision must be determined by reference to the language of the instrument viewed as a whole. And an Act must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals. Construction should favour coherence in the law.

46 In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [54], Gummow & Hayne JJ observed:

whilst 'rules' or principles of construction may offer reassurance, they are no substitutes for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.

47 I turn first to considering s 17. The long title of the HBC Act 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.

48 Section 17 of the HBC Act relevantly provides that:

if a builder under a contract claims that there has been a breach of the contract then, subject to the BSCRA Act the owner or builder may make a complaint under section 5(2) of that Act.

49 The significant word in this subsection is 'may'.

50 As originally enacted s 17(1) had provided (that) an owner or builder, 'may apply to the Disputes Committee for relief'. 'Disputes Committee' meant the Building Disputes Committee established by s 26 of the Builders' Registration Act 1939.

The 'Anthony Hordern principle' of statutory interpretation

51 The appellants submit that where contractual or statutory provisions provide that a party 'may' if dissatisfied in some way, avail of a particular procedure, such as dispute resolution, the word 'may' should be interpreted as meaning may take matters further, as opposed to doing nothing.

52 If a party chooses to do something then, subject to any clear provision to the contrary, the matter has to be pursued through the procedure specified by the contractual or statutory provision and not in some other way.

53 Consequentially, when under s 17 of the HBC Act a builder claims that there has been a breach of the contract, the reference to the builder 'may' make a complaint under s 5(2) should be interpreted as may choose to take the matter further. It does not mean may make a complaint under s 5(2) or alternatively may make a claim in the Magistrates Court.

54 The respondent contends for the latter interpretation.

55 In their amended supplementary submissions the appellants rely upon what is, as noted in Plaintiff S4/2014 at [43], sometimes referred to as the 'Anthony Hordern principle' (extracted from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7).

56 As articulated by DixonJ in R v Wallis [1949] HCA 30; (1949) 78 CLR 529, 550:

If (an Act) confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given (elsewhere in the Act).

This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

57 The appellants rely upon the application of that principle in ABB Power Plants v Electricity Commission of New South Wales t/as Pacific Power (1995) 35 NSWLR 596 by Handley JA (599), with whom Sheller JA agreed at 611 - 612; Cole JA at 617 - 618 not expressing a concluded view.

58 In particular Handley JA, at 599, rejected the appellant's submission that the presence of the word 'may' in the dispute resolution clause under consideration in ABB (cl 46.2) conferred on the dissatisfied party an unfettered choice either to arbitrate or litigate. The use of the word 'may' was readily explicable because a party dissatisfied with the superintendent's decision, or with the breakdown in the procedure under an earlier clause (cl 46.1) or may prefer to take the matter no further.

59 The approach of Handley JA in ABB has been considered and applied in Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2012] WASC 228 [56] - [57] (Corboy J) and in Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 [65] - [66] (Martin CJ).

The respective contentions as to the interpretation of s 17 of the HBC Act

60 The appellants' contention is that s 17 of the HBC Act is an enactment in affirmative words appointing a course to be followed. It therefore imports a negative, namely that the same matter is not to be done in some other way, in this case by bringing a claim in the Magistrates Court.

61 I note that mandatory terms such as 'shall' or 'the procedures prescribed in this section must be strictly followed', are not used in s 17. Clearly they could have been, if the legislative intent was to require parties to have disputes of this type decided under s 5(2) of the BSCRA Act and only in accordance with that Act.

62 The respondent emphasises that the appellants' letter of 8 May 2013, seemingly authored by counsel appearing at the appeal before me, acknowledged the respondent's right to take the matter to the District Court or Supreme Court. The letter also acknowledged the respondent's right to proceed with a quantum meruit claim, either on its own or as an alternative to the contractual claim. In the letter it was contended that if the quantum meruit claim was to be pursued along with the contractual claim, however, that could only occur in the District or the Supreme Court.

63 The respondent submits that the approach taken in that letter should be contrasted with the approach now taken by the appellants on appeal.

64 I have read and considered the parliamentary debate on the bill that ultimately became the BSCRA Act. In particular I note that Mr M P Whiteley, on behalf of the opposition in the second reading debate in the Legislative Assembly, observed that the proposed process was 'certainly preferable to civil redress through the Courts': 17 March 2011 second reading in the Legislative Assembly, page 1658.

65 On 6 April 2011 the bill was read in council for the second time and was moved by the Minister for Commerce, the Honourable Simon O'Brien. The minister noted that the bill provides for a two-stage dispute resolution service with complaints been received and dealt with at the front end by the Building Commissioner and intractable disputes being determined by the State Administrative Tribunal. When a building dispute is unable to be resolved by the Building Commissioner, the bill provides for the matter to be heard and determined by SAT. This bill, it was said, will significantly improve the way building disputes are handled in this State: Council - 6 April 2011, pages 2429 - 2430.

66 There is no definitive authority on the point. I will come to the decision of Appleyard v Walker [2009] WASCA 141 shortly, but in that case the Court of Appeal assumed that the Magistrates Court lacked jurisdiction without needing to determine the point. Similarly the decision of Stevenson DCJ in Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99, is on this point, in my view, obiter.

The decision in Instant Transportable Offices Pty Ltd

67 In the hearing before Magistrate Boon, her Honour expressed some surprise about the 26 February 2013 decision and referred to the observations of Stevenson DCJ in Instant Transportable Offices Pty Ltd as supportive of the notion that the Magistrates Court did actually have jurisdiction.

68 The appellants submit that the observations of Stevenson DCJ in that case at [67] should not be followed.

69 In Instant Transportable Offices Pty Ltd the essential issue in the appeal was whether or not the contract for the construction and supply of certain prefabricated modules was a 'home building work contract' as defined by the HBC Act: [2].

70 The second ground of appeal (the first being inadequate reasons) was that the magistrate erred in law in finding that the appellant's claim was not justiciable in the Magistrates Court. The appellant contended that the claim was justiciable because the work was not home building work: [32].

71 His Honour disposed of the appeal, in the appellant's favour, on the basis that the contract was not a 'home building work contract' governed by the HBC Act: [71].

72 His Honour allowed the appeal, quashed the order made by the Magistrates Court and remitted the matter to the Magistrates Court to be determined according to law.

73 The respondent had also contended, however, that if the contract between the parties was a contract governed by the HBC Act, contrary to His Honour's ultimate decision, the Magistrates Court in any event did not have jurisdiction to deal with the dispute between the parties: [61].

74 In the court below the magistrate had accepted the respondent's submission in that respect and had made a further order that the appellant's claim be transferred to the Building Commissioner under s 55(2) of the BSCRA Act.

75 The appellant filed a notice of appeal seeking to have that order quashed on the basis that the Magistrates Court did have jurisdiction to deal with the dispute between the parties.

76 His Honour referred at [55] to the long title of the HBC Act and observed it is what is sometimes termed 'beneficial' legislation.

77 His Honour expressed the view at [56] that 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 (residential) consumers.

78 I note that the relevant part of the long title of the BSCRA Act reads:

An Act to provide for a system for dealing with complaints about building services, home building (and) work contract (HBWC) matters.

79 His Honour had regard to the broad purpose and policy objectives of the relevant legislation: [59].

80 Like the respondent in the present matter, the appellant in Instant Transportable Offices Pty Ltd contended that because no complaint had been made to the Building Commissioner 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. It followed that the Building Commissioner had no jurisdiction in relation to the dispute, so that the exclusionary effect of s 6(5)(e) of the MC Act did not apply.

81 His Honour disposed of that argument based on a consideration of the text of s 54 and s 55 of the BSCRA considered together. They relevantly read:

S54. Avoidance of concurrent proceedings

(1) If -

(b) a HBWC complaint is made claiming that there has been a breach of a home building work contract,

the matter to which the complaint relates is not, unless subsection (2) applies, justiciable by a court that would otherwise have jurisdiction to determine the matter.

(a) the matter was before the court at the time when the complaint was made; or

(b) the Building Commissioner does not accept the complaint; or

(c) the complaint is dismissed for want of jurisdiction or without deciding the matter on its merits; or

(e) the matter is ordered to be transferred to the court under section 55(3); or

(f) as a result of judicial review, a determination of the complaint is quashed or declared invalid on the ground that there was not jurisdiction to deal with the complaint under this Act.

S55. Transfer of proceeding

(1) The Building Commissioner may, with the consent of the State Administrative Tribunal and in accordance with the rules of the Tribunal, transfer a matter that the Building Commissioner has decided to deal with under section 37 or 42, or that is before the Building Commissioner under section 51, to the Tribunal.

(2) If a matter that could be dealt with under this Act as a building service complaint or a HBWC complaint is before a court, the court may order that the matter be transferred to the Building Commissioner to be dealt with as a building service complaint or a HBWC complaint, as the case requires.

(3) If a matter that a court has jurisdiction to determine is the subject of a building service complaint or a HBWC complaint before the State Administrative Tribunal, the Tribunal may order that the matter be transferred to that court in accordance with the rules of the court.

82 The predecessor of those sections was s 22 and s 23 of the HBC, as originally enacted, which relevantly read:

Avoidance of concurrent proceedings

Subject to section 23, where an application is made to the Disputes Committee claiming, under section 17 (1) (a) (i) that there has been a breach of a contract, the matter to which the application relates is not justiciable by a court unless

(a) that matter was before that court at the time when the application was made to the Disputes Committee; or

(b) the application to the Disputes Committee is withdrawn or not pursued.

(1) Where a matter that the Disputes Committee has jurisdiction to determine under this Act is before a court, the court may order that the matter be transferred to and determined by the Disputes Committee.

(2) Where a matter that a court has jurisdiction to determine under this Act is before the Disputes Committee, that Committee may order that the matter be transferred to and determined by that court.

83 These sections were deleted by s 120 of the BSCRA Act and effectively replaced by s 54 and s 55.

84 I note that at the time that s 22 and s 23 of the HBC Act were enacted there was no equivalent provision to s 6(5)(e) of the MC Act.

The conclusion in the Instant Transportable case

85 The respondent in Instant Transportable, as is the case here, submitted that the proper construction of the relevant provisions required 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. His Honour, however, at [68] - [69] accepted the appellant's argument that it is implicit in s 55 (2) that a matter could be before a court, and necessarily therefore not solely before the Building Commissioner.

86 Importantly his Honour regarded these contentions as all matters for debate which did not require final resolution for the purpose of the appeal: [66].

87 His Honour held at [67] and [74] that if the Building Commissioner's jurisdiction has been invoked by a claimant under s 17 of the HBC Act, read with s 5(2) of the BSCRA Act, it is solely in those circumstances that s 6(5)(e) of the MC Act operates to prevent the Magistrates Court from having jurisdiction to deal with the matter.

88 His Honour considered that the magistrate erred in purporting to transfer the appellant's claim in the Magistrates Court to the Building Commissioner. In his Honour's view the Building Commissioner does not have exclusive jurisdiction to hear the dispute, even if the contract is regulated by the HBC Act.

89 In the case before me the appellants submit that s 54, relating as it does to concurrent proceedings, only relates to courts which would otherwise have jurisdiction. At par 18 of their written submissions the appellants assert that the Magistrates Court does not have such jurisdiction (and thus is not contemplated by s 54). The submissions were silent as to the position of the District Court.

90 I will return to his Honour's conclusions at [67] and [74] when I deal with the application of s 6(5)(e).

91 His Honour's reasoning, however, was not in respect of 'the threshold issue' raised by the appeal. As I have noted, his Honour disposed of the appeal on the basis that the contract was not a 'home building work contract' governed by the HBC Act: [71].

Does s 17 prevent the District Court or Supreme Court from having jurisdiction in these matters?

92 As noted the appellants argue that 'may' in s 17 and s 5(2) means 'shall'. The respondent submits that the inevitable consequence of the argument that if one wishes to pursue a HBWC dispute, one is obliged to take the matter to the Building Commissioner, is that neither the District Court nor the Supreme Court would have jurisdiction to deal with the matter. That appears to be contrary to the position set out on behalf of the appellants in the 8 May 2013 letter.

93 I do note that ever since the inception of the HBC Act, s 3(1) has provided that a home building work contract does not include a contract for the performance of home building work, if the amount stated in the contract as being payable under the contract for the work is $200,000 or more.

94 Accordingly for contracts concerning amounts in excess of $200,000 the Building Commissioner would necessarily lack jurisdiction, so that a claim would have to be pursued in the District Court or the Supreme Court.

95 Similarly the Building Commissioner cannot make a HBWC remedy order as defined by s 41 (2) of the BSCRA Act if the work to be done or the amount to be paid exceeds $100,000. Nor can the State Administrative Tribunal make a HBWC remedy order if the work to be done or the amount to be paid exceeds $500,000.

96 Following on from my observations at [89], at par 20 of the written submissions the appellants appear to allow for the possibility of the District Court having jurisdiction (despite s 17) but then transferring the matter to the Building Commissioner or the State Administrative Tribunal.

Conclusion on effect of s 17 on jurisdiction of the Magistrates Court

97 Notwithstanding the application of the 'Anthony Hordern principle' and also the extrinsic material I have referred to, I am not persuaded that s 17 in and of itself means that sole jurisdiction reposes in the Building Commissioner or the State Administrative Tribunal. To my mind, the only logical interpretation of s 54 and s 55 is that there are circumstances where courts, not defined in those sections, do have jurisdiction.

98 The key issue in my view is whether s 6(1) and s (5)(e) of the MC Act preclude the Magistrates Court from holding jurisdiction, so that the reference to 'Court' in s 54 and s 55 of the BSCRA Act does not include the Magistrates Court.

Construction of s 6(1) and s (5)(e) of the MC Act

s6. General civil jurisdiction

(1) The Court has jurisdiction to deal with -

(i) a debt or damages, whether liquidated or unliquidated

(5) Despite subsection (1), the Court does not have jurisdiction to deal with

(e) a claim that the Building Commissioner or the State Administrative Tribunal has jurisdiction to deal with under the Building Services (Complaint Resolution and Administration) Act 2011.

100 In observing that there is no definitive authority on the point, I referred to Appleyard v Walker [2009] WASCA 141. In that case the appellant applied for leave to appeal and to appeal from orders made by Groves DCJ dismissing her application for leave to amend her notice of appeal to the District Court and her appeal.

101 The appeal to the District Court was from orders made by a magistrate dismissing the appellant's claim and entering judgment against her on the respondent's counterclaim. In her application to amend, the appellant sought leave to contend that the learned magistrate lacked jurisdiction to determine the claim and counterclaim. McLure JA observed that this contention was contrary to submissions put to the magistrate on her behalf.

102 The appellant's claim was for breach of a contract for the provision of landscaping services. The respondent counterclaimed for damages for the early termination of the landscaping contract. Following the trial of the action the magistrate reserved his decision.

103 The magistrate then advised the solicitors for each party by letter that his initial conclusion was that he did not have jurisdiction to determine the claim and counterclaim given s 6(5)(e) of the MC Act as it was then framed.

104 The magistrate's provisional reasoning was that the Building Disputes Tribunal (the predecessor of the Building Commissioner) had jurisdiction to deal with the matters under the HBC Act. The appellant and the respondent each then provided written submissions on the proper construction of the Building Contracts Act and contended that the magistrate did have jurisdiction to determine all matters.

105 In his ultimate written reasons the magistrate indicated that he remained of the opinion that he had no jurisdiction to deal with this matter, but he made his decision based on the evidence before him in anticipation of bringing this matter to a conclusion. The magistrate made orders that the appellant's claim be dismissed and judgment was entered for the respondent. The appellant filed an appeal.

106 Several months later the appellant filed an application to amend the notice of appeal to delete the original ground and insert three new grounds to the effect that, relevantly, the magistrate erred in law in finding that he had jurisdiction.

107 The application to amend was heard and dismissed by Groves DCJ on the basis that the appellant had accepted and acquiesced in the position that the magistrate had jurisdiction and could not be permitted to depart from that position. Groves DCJ dismissed the application without considering the merits of the proposed grounds.

108 McLure JA noted at [16] that it was apparent that for the purpose of the proceedings before him, the magistrate accepted and acted on the submissions of both parties that he had jurisdiction, notwithstanding he had a different opinion on the construction of the Building Contracts Act.

109 McLure JA observed at [17] that the only arguable proposed ground of appeal was that the Magistrates Court did not have jurisdiction to deal with the claim and counterclaim because they were claims that the Building Disputes Tribunal had jurisdiction to deal with under the Building Contracts Act.

110 Her Honour assumed at [18], without deciding, that the subject matter of the claim and counterclaim were matters within s 6(5)(e) of the MC Act and thus beyond the statutory jurisdiction of the magistrate.

111 Her Honour found at [22] that the magistrate's orders were valid and binding unless and until they are set aside. It followed that the principles of res judicata and issue estoppel applied to the magistrate's decision. The application of those principles would prevent the appellant from re-litigating the issues in the Building Disputes Tribunal.

112 Such matters went to the merits of the appeal. However, her Honour (with whom Pullin & Newnes JJA agreed) decided the application for leave solely on the second limb of the relevant test, being whether substantial injustice would be done by leaving the decision unreversed: [25].

113 I am very conscious of the fact that her Honour's assumption as set out at [110], was purely for the purpose of the appeal. Nonetheless no member of the court expressed the view that the magistrate's view was in any way controversial or unsustainable.

The history of s 6 of the Magistrates' Court Act 2004

114 Section 129(2) of the BSCRA Act amended the MC Act by deleting the former s 6(5)(e) and inserting:

(e) a claim that the Building Commissioner or the State Administrative Tribunal has jurisdiction to deal with under the Building Services (Complaint Resolution and Administration) Act 2011.

115 Section 6(5)(e) as enacted in November 2004 had read:

a claim that the Building Disputes Tribunal, established by the Builders' Registration Act 1939, has jurisdiction to deal with under that Act or under the Home Building Contracts Act 1991.

116 The MC Act came before the Parliament as the Magistrates Court (Civil Proceedings) Bill 2003. It received bipartisan support (see page 651b - 657a on 9 March 2004 and page 4437 and 4446 on 29 June 2004).

117 In the second reading debate in council on 25 June 2004 at page 4384, the Honourable Peter Foss on behalf of the opposition referred to cl 6 as follows:

Clause 6 may seem to be a minor procedural clause but it provides very important functional provisions in the scheme of things. This is a very far-reaching piece of legislation, with small bits of words making fairly substantial changes.

118 The appellants rely upon the explanatory memorandum of the Magistrates Court (Civil Proceedings) Bill 2003 which relevantly stated:

Clause 5 provides that the civil jurisdiction of the Court is as set out in the proposed Act.

The effect of this clause is that the civil jurisdiction is limited to the matters provided for in the proposed Act. If a civil matter is not provided for in the proposed Bill then it is not within the jurisdiction of the Court. These matters are listed, primarily, in proposed section 6.

Clause 6 is an important clause providing an extensive list of the civil matters that the Magistrates Court has jurisdiction to hear.

Subclause (5) lists the matters that the Court does not have jurisdiction to decide including claims to title to land, under a will or bequest, libel or slander and damages for personal injury arising out of a motor vehicle accident. Matters in relation to the Building Disputes Committee are also outside the jurisdiction of the Court.

Interpretation of 'has' in s 6(5)(e) of the Magistrates Court Act 2004

119 The appellants submit that even if, which is disputed, the Magistrates Court had jurisdiction in February 2013 it did not have jurisdiction in November 2015.

120 If one was to read 'has' in s 6(5)(e) as 'had', in the sense that the Building Commissioner did once have jurisdiction but does no longer, that would mean that regardless of the situation in February 2013, by November 2015 s 6(5)(e) denied jurisdiction to the Magistrates Court.

121 In support of that argument the appellants rely upon s 8 of the Interpretation Act 1984 (WA) which provides that:

A written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true spirit, intent, and meaning.

122 The appellants therefore submit that, applying s 8, the reference to 'has' in s 6(5)(e) should be read as 'had'. On this approach the 26 February 2013 decision precluded the Magistrates Court from obtaining jurisdiction, once the effluxion of time deprived the Building Commissioner of jurisdiction, even if, contrary to the appellants' primary submission, it would ever hold such jurisdiction.

123 The appellants submit that such an approach is necessary to give effect to the true intention and spirit of this subsection which is to exclude jurisdiction not to extend it. A construction which supports the underlying purposes of the legislation should be preferred to one that does not: s 18 of the Interpretation Act.

124 The appellants therefore contend that the application of s 6(5)(e) is destructive of the respondent's case in two respects.

Conclusion on the effect of s 6(5) of the Magistrates Court Act 2004

125 As I have noted the only cases that offers any assistance in construing s 6(5)(e) are Appleyard and Instant Transportable Offices Pty Ltd.

126 In his obiter comments in Instant Transportable Offices Pty Ltd Stephenson DCJ held that it is only if the Building Commissioner's jurisdiction has been invoked by the claimant under s 17 of the HBC Act, read with s 5(2) of the BSCRA Act, that s 6(5)(e) of the MC Act operates to prevent the Magistrates Court from having jurisdiction.

127 In my view that requires reading 'has jurisdiction' in s 6(5)(e) as meaning 'is before'. For my part I find that construction more strained then a construction that s 6(5)(e) reflects the stated intention in the explanatory memorandum, so as to make it clear that matters in relation to the Building Commissioner are outside the jurisdiction of the Magistrates Court. It follows that the jurisdiction that is otherwise conferred under s 6(1) does not apply.

128 The respondent argues that if the intention of s 17 of the HBC Act was to provide sole jurisdiction for such disputes to the Building Commissioner, s 6(5)(e) of the MC Act has no work to do. In my view s 17 of the HBC Act does not in itself compel the conclusion that the Magistrates Court does not have jurisdiction to hear such disputes. Section 6(5)(e) of the MC Act, however, does.

129 Whilst I was not persuaded that s 17 of the HBC Act in and of itself conferred sole jurisdiction in the Building Commissioner or the State Administrative Tribunal, in my view a proper consideration of s 6(5)(e) compelled the conclusion reached by the registrar on 26 February 2013.

130 I am quite satisfied from the plain wording of the statutory text, the extrinsic material and in particular the explanatory memorandum, that from the enactment of the MC Act, a claim that, firstly the Building Disputes Tribunal and then the Building Commissioner or the State Administrative Tribunal has jurisdiction to deal with, are matters within s 6(5)(e) of the MC Act and thus beyond the statutory jurisdiction of the Magistrates Court.

131 In my view the Magistrates Court did not have jurisdiction to deal with the respondent's claim, either in February 2013 or any other time.

132 I accept the appellants' argument that the 26 February 2013 decision that the Magistrates Court has no jurisdiction, was not confined to a finding that as of that date the court has no jurisdiction. Rather, it was a finding that as of that date, and any future date, including a date after the expiration of the three year time limit, it continued to have no jurisdiction. The decision accordingly, in my view, is res judicata.

133 The respondent accepted that if the decision of 26 February 2013 is res judicata then the magistrate would have erred in dismissing the application and the appeal should be allowed, at least so far as the primary contractual claim is concerned.

134 In reaching the conclusion that the decision is res judicata I do not rely upon the High Court authority of Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529.

135 The authority of Bailey establishes that an inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited. In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall.

136 The respondent did not seek to correct the perfected order of Registrar Ormesher. Nor did Registrar Ormesher ever seek to correct the perfected order. Nor is that the effect of the order of the magistrate in dismissing the application.

137 The High Court in Bailey did not invoke the doctrine of res judicata. I note that in the recent decision of Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, which considered res judicata in the strict sense, the High Court did not refer to its previous authority in Bailey.

138 I should add that, whilst not necessary for me to express a view, I favour the interpretation placed by the appellants on 'has' in s 6(5)(e) so that even if, the Magistrates Court had jurisdiction in February 2013 it did not have jurisdiction in November 2015.

139 It is not necessary to consider whether if, contrary to my findings, the order of 26 February 2013 temporarily disposed of proceedings until the three years expired, it would still be res judicata.

140 I would have taken considerable persuasion that, in those circumstances, the decision would have been res judicata.

141 In Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Lindsay J observed at [104]:

In Spencer Bower & Handley, Res Judicata, at para 2.15, Justice Handley records that a decision by a tribunal that it has no jurisdiction will not support a plea of res judicata on any other question for reasons expressed by the Privy Council in Upendr Nath Bose v Lall [1940] AIR (PC) 222 at 225. However, he records, a decision by a tribunal denying jurisdiction makes that question res judicata in that tribunal, unless jurisdiction is later conferred by statute.

142 It is correct that no statute has been enacted since the 26 February 2013 decision that retrospectively alters the position that existed at that time. No authority is cited, however, for the proposition that a decision by a tribunal that at the time of the decision it lacks jurisdiction is res judicata; even if the application of statute(s) that were in force at the time of the decision, confers jurisdiction at some later point in time.

143 In my view R v Middlesex Justices [1933] 2 KB 1 suggests that, analogously, the subsequent acquisition of jurisdiction would mean that the earlier decision could not be subject to res judicata.

If the decision is not res judicata, is the 2015 claim nonetheless an abuse of process?

144 For sake of completion if I had found that the 26 February 2013 decision is not res judicata, I would still have been required to consider whether the bringing of the November 2015 claim constituted an abuse of process.

145 The respondent accepted that the November 2015 claim could still constitute an abuse of process. So much is clear from Tomlinson [26], from Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5 [72] and from Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [11] (Buss JA).

146 In Tomlinson, French CJ, Bell, Gageler & Keane JJ explained at [24] the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia.

147 The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. It overlaps with the doctrine of estoppel.

148 Thus, the assertion of a right, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

149 Their Honours noted at [25] that abuse of process, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

150 In Tyne (Trustee) v UBS AG (No 2) Jagot & Farrell JJ (who formed the majority, Dowsett J dissenting) noted at [90] that the parties had not identified any case involving a finding of an abuse of process where the issue sought to be raised in the subsequent proceeding was not decided on its merits in the earlier proceeding.

151 In the present case the respondent's claim has never been considered on its merits.

152 Their Honours observed at [101] that as the cases disclose, a relevant consideration in determining where the interests of justice lie in a particular case is whether it would be unfair and oppressive for a party to have to deal with an issue which has been previously litigated.

153 In Sheraz Pty Ltd Buss JA set out at [4] - [10] the following relevant principles:

• Every court has inherent or implied power to prevent its procedures being abused [4];
• What will constitute an abuse of process is incapable of being described exhaustively [5];
• The High Court has stated, however, that at least one of three characteristics will be apparent in many cases of abuse of process;
• They are, firstly a court's processes being invoked for an illegitimate or collateral purpose;
• Or, secondly the use of a court's procedures being unjustifiably oppressive to a party;
• Or thirdly the use of a court's procedures bringing the administration of justice into disrepute [6];
• An example of an abuse of process is where an estoppel cannot be established, but the proceedings in question are unjustifiably oppressive in that it is sought to re-litigate an issue which has already been disposed of by earlier proceedings [10].

154 In the present case, if it had been necessary to consider the point, the issue is whether it would be unfair and oppressive for the appellants to have to deal with the respondent's claim from 3 November 2015 onwards, when his claim had been dismissed in February 2013 and the appeal against that decision had been discontinued by order as of 22 May 2013.

155 There is nothing in the materials before me that would have justified a conclusion that it was unfair and oppressive for the appellants to have to deal with the respondent's claim from 3 November 2015 onwards.

156 In relation to the second basis for the 3 November 2015 claim it is quite clear that the alternative claim has not been dismissed previously. It was not the subject of the application that was dismissed. It was added as a purported ground of appeal but could not be so regarded. Rather it was an endeavour to add an additional or alternative cause of action on appeal, from a dismissal of the sole basis of the claim.

157 Those acting for the appellants seemingly so appreciated by the letter of 8 May 2013, 14 days before the respondent withdrew his appeal, in which they pointed out that one of his options was to take a claim in equity for quantum meruit, on its own, to the Magistrates Court.

158 As I have noted at the hearing before the magistrate, counsel for the appellants submitted that the alternative claim brought on 3 November 2015 was subject to an anshun estoppel.

159 Ground 3 of the appeal notice dated 19 December 2016 asserts that the alternative claim of quantum meruit is subject to the doctrine of anshun estoppel because it should have been raised contemporaneously with the contractual claim.

160 The appellants outline of written submissions did not expressly deal with the alternative claim of quantum meruit save that it was argued that the 3 November 2015 claim, including as it does the alternative claim of quantum meruit, is an abuse of process because the 26 February 2013 decision is res judicata.

161 The appellants' amended supplementary submissions put the argument on the third ground of appeal on a different basis. Paragraph 2 asserted that a quantum meruit claim cannot be pursued when there is a contract in existence between the parties, citing Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221. A quantum meruit can only be pursued if there is no contract or for some reason, the contract is unenforceable.

If there was a valid and enforceable agreement governing the claimant's right to compensation, there would be neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration. The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution.

163 At the appeal before me on 24 May 2017, counsel for the appellants stated that he was no longer pursuing the anshun estoppel point. Counsel instead took the new point, namely that since the quantum merit claim is doomed to fail, it is for that reason an abuse of process to try and pursue it.

164 I again note that this submission runs counter to the options suggested to the respondent by the appellants in the 8 May 2013 letter.

165 In oral argument before me, counsel for the respondent noted that those acting for the appellants had by another letter, dated 19 May 2016, asserted that because the respondent was not, by the terms of his building licence, permitted to enter into the 14 January 2010 contract, it was therefore unlawful. It is not necessary to go to the merits of that argument.

166 The basis for this alternative claim therefore, was to cater for an eventuality that the contract was invalid. In that scenario the quantum meruit claim arises because absent a validly binding contract, the principle noted by Deane J in Pavey does not apply.

167 It can be seen therefore that for the quantum meruit claim to be considered, there has to be a consideration of the primary, contractual claim and a determination, adverse to the respondent, that it was invalid.

168 The obstacle for the respondent is my finding that the 26 February 2013 decision dismissing his contractual claim in the Magistrates Court is res judicata. Accordingly it is not possible for the contractual claim to be considered in the Magistrates Court. Given that for the quantum meruit claim to be considered, there has to be firstly a consideration of the primary, contractual claim, and then a determination adverse to the respondent that it was invalid, there is no basis for the Magistrates Court to consider the alternative quantum meruit claim either.

1. Allow the appeal;
2. Quash the order made by the Magistrates Court of Western Australia on 5 December 2016; and
3. Order that the application of 20 June 2016, that the respondent's claim in this matter dated 3 November 2015 be struck out in its entirety under s 17(1)(d) of the Magistrates Court (Civil Proceedings) Act 2004 is granted.