Building (Services Complaint Resolution and Administration) Act 2011 (WA), s 55

Corporations Act 2001 (Cth)

State Administrative Tribunal Act 2004 (WA), s 32(7)

Application for adjournment of hearing of dismissal application granted

Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Thurin v Krongold Constructions and Others (No S EAPCO 2022 0051)

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression).

1. This proceeding was commenced by an application by the Building Commissioner under s 55 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to transfer an application before the Commissioner to the State Administrative Tribunal (Tribunal) under s 51 of the BSCRA Act (SAT Application). The application which was before the Commissioner was an application by the Owners of Strata Plan 58161 (Strata Company) to revoke a building remedy order made in 2015 against Hanssen Pty Ltd (Hanssen). The building remedy order required Hanssen to undertake remedial works on an apartment building it had constructed, and which is now occupied by members of the Strata Company. The Strata Company sought the issue of a monetary building remedy order instead.
2. In the course of the SAT Application, Hanssen made an application for the Tribunal to dismiss the SAT Application on the basis that the Tribunal lacks jurisdiction to deal with it (Dismissal Application). Hanssen's argument is that the SAT Application is a matter within federal jurisdiction because the Tribunal's ability to make a building remedy order against Hanssen, which can be enforced against the company, depends upon provisions of the Corporations Act 2001 (Cth) (Constitutional Argument). Hanssen says that the Constitutional Argument having been raised, the SAT Application is now, and always will be, a matter arising under a law of the Commonwealth for the purposes of s 76(2) of the Commonwealth Constitution so that the SAT Application is a matter within federal jurisdiction. Hanssen says that the recent decision of the High Court in Citta Hobart Pty Ltd & Anor v Cawthorn[1] (Citta) requires that the Tribunal dismiss the SAT Application on the ground that the Tribunal has no jurisdiction to deal with the matter.
3. The Tribunal listed the Dismissal Application for hearing on 21 June 2022. On that date, the Tribunal heard the submissions of Hanssen. Counsel for the Strata Company was not in a position to respond to some of the arguments as to the implications of Citta, and the matter was adjourned to a further hearing on 15 August 2022.
4. In the intervening period, we decided that, given the significance and novelty of the Constitutional Argument, we would be assisted by submissions from the Attorney-General of Western Australia in the capacity of an amicus curiae. The Attorney­General has now been given leave to appear in these proceedings on that basis.
5. The submissions filed by the Attorney-General helpfully indicated that the Constitutional Argument now advanced by Hanssen has been raised in a proceeding in the Victorian Court of Appeal, namely Thurin v Krongold Constructions and Others[2] (Thurin), which is listed for hearing on 1 and 2 September 2022.
6. In light of those submissions by the Attorney-General, the Strata Company applied for an adjournment of the hearing on 15 August 2022 until after the decision in Thurin is delivered (Adjournment Application). The Adjournment Application is opposed by Hanssen.
7. For the reasons which follow, the Adjournment Application should be granted. We have formed the view that the preferable course is to adjourn the Dismissal Application to a fixed date, rather than to an unspecified date after the Victorian Court of Appeal delivers its decision. We propose to adjourn the Dismissal Application to a directions hearing before the President on 6 December 2022, at which point consideration can be given to whether further programming orders are required at that stage. If the decision in Thurin has not been delivered by that stage, then the directions hearing can be deferred to a later date, pending delivery of the Thurin decision.
8. We now turn to explain the reasons for that conclusion.

Considerations relevant to the adjournment application

1. It is convenient to commence by noting the considerations relevant to an adjournment application in the Tribunal.
2. The Tribunal has power to grant an adjournment of proceedings in the Tribunal under s 32(7) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal clearly has a discretion as to whether a proceeding should be adjourned.
3. The SAT Act does not prescribe the considerations relevant to the grant of an adjournment. In our view, the factors which are relevant will include:

(a) the reason for the adjournment and any prejudice to the applicant for the adjournment if the hearing is not adjourned;

(b) any prejudice to other parties to the proceeding if the adjournment is granted;

(c) the effect of an adjournment on the Tribunal's use of its resources; and

(d) the impact of delay as a result of the grant of the adjournment.

1. The Strata Company says that the adjournment should be granted for the reasons outlined in the Attorney­General's submissions, namely, that the Victorian Court of Appeal decision in Thurin will provide the first authoritative appellate decision on the Constitutional Argument. It also points to the prejudice to the Strata Company if the Dismissal Application is granted. It is said that those factors warrant the Tribunal adjourning the Dismissal Application until after the decision in Thurin is delivered.
2. The Strata Company also seeks that an adjournment be granted on the basis that this will ultimately save costs. Counsel for the Strata Company accepted a concern we raised, namely that if the Tribunal hears argument in the Dismissal Application on 15 August 2022 and reserves its decision, and if the decision in Thurin is delivered before the Tribunal determines the Dismissal Application, then the parties will need to be heard in respect of the implications of the Thurin decision and that will involve the cost of further submissions and possibly a further hearing. It was submitted that those costs would be visited upon the parties, but also upon the Tribunal itself, which would have to expend its resources in two hearings.
3. Hanssen says that the Adjournment Application is futile because whatever the outcome of the decision in Thurin, it cannot alter the outcome of the Dismissal Application. That submission proceeded on the basis that the SAT Application is already cloaked with federal jurisdiction, and that that will not change, even if the decision in Thurin is that the Constitutional Argument is dismissed. Counsel for Hanssen did acknowledge, however, that there may be an exception to this if the Victorian Court of Appeal finds that the Constitutional Argument is manifestly hopeless. However, it was submitted that that was an unlikely scenario, having regard to the competing authorities on this question and to the possibility that the Victorian Court of Appeal may not ultimately determine the Constitutional Argument (having regard to the variety of questions which have been referred to the Court for its determination).
4. Hanssen does not contend that it will suffer any material prejudice as a result of the grant of the Adjournment Application. In a practical sense, that is no doubt because it has already made its submissions on the Dismissal Application. However, counsel for Hanssen did point to the fact that any further delay in the resolution of this matter would be unfavourable to it, in that it is undesirable for a corporation to operate while subject to a claim for a significant amount of money. Counsel for Hanssen submitted that the delay and that prejudice to his client was not justified in circumstances where the Victorian Court of Appeal decision may not ultimately determine the Constitutional Argument in Thurin.

1. In addition to the factors set out in [11] above, the exercise of the Tribunal's discretion in relation to the grant of an adjournment must necessarily take into account the statutory framework within which that discretion falls to be exercised. In that respect, it must be recalled that the objectives of the Tribunal are to act as speedily and with as little formality and technicality as is practicable. The grant of a lengthy adjournment, or of repeated adjournments, of a final hearing, in particular, may be regarded as antithetical to the achievement of that objective.
2. However, that is not the only objective of the Tribunal, nor even its primary objective. The Tribunal is required to achieve the resolution of questions before it fairly. The grant of an adjournment may be necessary in a proceeding to ensure that the Tribunal can resolve questions fairly. Indeed, the reason the Tribunal adjourned the hearing of the Dismissal Application in the first place, was because counsel for the Strata Company was not in a position to respond to some of the issues which arose out of Hanssen's submissions in relation to the Citta decision.
3. Another of the Tribunal's statutory objectives is that in dealing with matters before it, the Tribunal is required to minimise the cost to the parties. Any costs consequences for the parties arising from the grant of an adjournment will be one factor to be taken into account, and balanced with all other relevant considerations, in determining whether an adjournment should be granted.
4. Finally, the Tribunal's procedure is to be as the Tribunal determines. The Tribunal employs considerable flexibility in its procedures to respond to the particular features of an individual case.
5. Taking into account all of these considerations from the statutory framework, we turn to consider the arguments advanced by the parties.
6. In our view, the following factors weigh in favour of the grant of the Adjournment Application.
7. First, the Strata Company, and Hanssen too, may incur additional and unnecessary costs if the hearing of the Dismissal Application proceeds on 15 August 2022 but it subsequently transpires that the parties need to be given the opportunity to make further submissions in light of the decision of the Victorian Court of Appeal in Thurin.
8. Secondly, Hanssen does not contend that it would suffer any material prejudice from an adjournment, although, as we have said, counsel did point to the prejudice to his client operating while subject to a large and unresolved claim for a lengthy period of time. We note that the Adjournment Application would not, of itself, result in a substantial delay, having regard to the totality of the period for which the dispute between the parties has been ongoing.
9. Thirdly, the Constitutional Argument is one of significance not only for this matter, but for other matters in the Tribunal. It is in the interests of justice, in our view, that the Tribunal's decision on the Constitutional Argument be informed by an authoritative judgment of an appellate court.
10. As for Hanssen's argument that the Adjournment Application is futile, we do not accept that the outcome of the decision in Thurin will not affect the outcome of the Dismissal Application. The Tribunal has yet to determine the Dismissal Application and there are many unresolved questions in relation to the Citta principles. It appears to be the case that the key question for the Tribunal on the Dismissal Application is whether the Constitutional Argument is one which is 'not incapable on its face of legal argument' or, put another way, 'not constitutional nonsense or manifestly hopeless'. How that test is applied, having regard to what is decided in Thurin, remains to be seen. The argument by counsel for Hanssen that the SAT Application is, and always will be, in federal jurisdiction presupposed that, unless the Victorian Court of Appeal concludes that the Constitutional Argument is incapable of argument or manifestly hopeless, the same Constitutional Argument would still be regarded, in the present case, as one which cloaks the SAT Application with federal jurisdiction.
11. How the Citta principles are applied, as we have said, remains to be seen. If the court in Thurin determines the Constitutional Argument, then there can be no doubt that that will be a highly relevant, if not possibly determinative, decision in the resolution of the Constitutional Argument in this case. On the one hand, the Thurin decision may support Hanssen's argument that the Constitutional Argument is not incapable of legal argument, and not manifestly hopeless and, therefore, the Dismissal Application argument should be upheld. On the other hand, if the court in Thurin rejects the Constitutional Argument as hopeless, that may support the conclusion that the Constitutional Argument advanced by Hanssen in this case is incapable, on its face, of legal argument, and is manifestly hopeless.
12. The uncertainty about the implications of the Thurin decision for this case does not, in our view, militate against the grant of an adjournment. Rather, that uncertainty merely illustrates that numerous questions arise from Citta, and confirms the likely benefit for this Tribunal of a considered decision of the Victorian Court of Appeal.
13. The implications for the use of the Tribunal's scarce resources, as a result of the grant of an adjournment in this case, are not significant. This is not a case where the adjournment of a lengthy final hearing is sought. The conclusion of argument on the Dismissal Application is unlikely to take longer than half a day.
14. As for the implications of the grant of an adjournment having regard to the Tribunal's objectives, the delay which will result from an adjournment is unlikely to be substantial. We note that the hearing of the Thurin case is listed for 1 and 2 September 2022. That is less than three weeks after the listed hearing date for the Dismissal Application on 15 August 2022. The Court in Thurin is dealing with a confined legal question in relation to the Constitutional Argument. The parties would be hopeful of a judgment within a few months of the hearing. As we have already observed, in the context of the broader dispute between the Strata Company and Hanssen (which has been ongoing since the original building remedy order was made in 2015) a delay in the resolution of the dispute for a few months more cannot be regarded as significant.
15. We acknowledge that there is no guarantee that the Victorian Court of Appeal in Thurin will determine the Constitutional Argument, notwithstanding that the Argument has been specifically referred to the Court for determination. Nor is there any guarantee about the likely outcome, or how the Court will decide the Argument. However, in our view, a relatively short adjournment, in the overall context of the present lengthy dispute, is in the interests of justice, given the likely benefit if the Court in Thurin gives close consideration to the Constitutional Argument. That is particularly so in circumstances where, to date, the relevant competing authorities are all decisions of single judges, not all of whom have determined the Constitutional Argument as part of the ratio decidendi of their decision.
16. Taking all of these considerations into account, we consider the proper exercise of discretion is to grant the Adjournment Application.
17. The Strata Company sought that the hearing of the Dismissal Application be adjourned, without fixing a date, but until after the decision in Thurin is delivered. As a general rule, proceedings in the Tribunal are adjourned to fixed dates and we would prefer to adopt that course. Therefore, we propose to adjourn the further hearing of the Dismissal Application for a directions hearing before the President on 6 December 2022 at 9.30 am. If by that point the decision in Thurin has been delivered, then the parties can confer in relation to any further programming orders and, if at all possible, the Tribunal will seek to complete the hearing of the Dismissal Application before the end of this year. Should the decision in Thurin not have been delivered by 6 December 2022, the directions hearing can be deferred to a later date, pending the delivery of the Thurin decision.
18. For the avoidance of doubt, nothing in these reasons should be understood as indicating any view about how the Citta decision or the Thurin decision should be applied to any determination of the Constitutional Argument in this case.
19. Further, nothing in these reasons should be understood to indicate that a further adjournment would be warranted if special leave to appeal to the High Court were to be sought in respect of Thurin.
20. Therefore, the order that we will make today is that the Dismissal Application is adjourned to a directions hearing before the President on 6 December 2022 at 9.30 am.

1. The Tribunal makes the following orders:
   1. The respondent's application to dismiss the proceedings is adjourned to a directions hearing before the President at 9.30 am on 6 December 2022.
   2. Orders 2 and 3 made on 21 June 2022 are vacated.

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

[1] Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476.

[2] Thurin v Krongold Constructions and Others (No S EAPCO 2022 0051).