Court of Appeal (WA)|2005-06-03|Before: Smith JA

Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 (3 June 2005)

RE GRIFFITHS; EX PARTE HOMESTYLE PTY LTD [2005] WASCA 103 (3 June 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

MATTER : Application for writ of certiorari against the Honourable NICHOLAS DAVID GRIFFITHS, Minister for Housing and Works, Racing and Gaming, Government Enterprises, Land Information

Administrative law - Return of order nisi for writ of certiorari - Scope of s 401 of Local Government (Miscellaneous Provisions) Act - Whether subject to s 12A of Builders' Registration Act - Whether s 401 notice an abuse of process or unreasonable - Whether failure by Minister to comply with rules of natural justice

Building Regulations 1989 (WA), reg 3, reg 5, reg 11

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 671

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Dilatte v MacTiernan [2002] WASCA 100

Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Irving v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540

Kahn v Minister for Immigration Local Government and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Mosman Park Town Council v Walker (1991) 73 LGRA 30

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198

Rogers v The Queen (1994) 181 CLR 251

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423

Telstra Corp Ltd v Kendall [1995] FCA 1481; (1995) 55 FCR 221

Williams v Hunt [1905] 1 KB 512

Ashmore v British Coal Corporation [1990] 2 QB 338

City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305

El-Sayed v Minister for Immigration, Local Government & Ethnic Affairs (1991) 22 ALD 767

Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438

Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213

Perron Investments Pty Ltd v Assignment Holdings Pty ltd [2005] WASCA 2

Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction & Customs (1993) 40 FCR 332

Reichel v Magrath (1889) 14 App Cas 665

Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502

The Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305

1 ROBERTS-SMITH JA: I have read the reasons to be published by McLure JA. I agree with those reasons and have nothing further to add.

2 MCLURE JA: This is the return of an order nisi for a writ of certiorari against the former Minister for Housing and Works; Racing and Gaming; Government Enterprises; Land Information, Mr N Griffiths. The applicant, Homestyle Pty Ltd, seeks to quash the Minister's decision of 25 August 2003 ("decision") dismissing the applicant's appeal against a Notice issued by the City of Wanneroo dated 27 November 2002 pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) ("Act"). The Minister indicated he would abide the decision of the Court. In the absence of any other contradictor, the Court granted leave to Mr N Monahan to appear as amicus curiae.

3 The primary basis of the challenge is the alleged inconsistency between a decision made by the Building Disputes Tribunal ("Tribunal") under s 12A of the Builders' Registration Act 1939 (WA) and the Minister's dismissal of the appeal from the Notice. The background is as follows. By a contract in writing made in November 1998 between Homestyle and Errol and Rachel Felix, Homestyle agreed to construct a single-storey residence for Mr and Mrs Felix ("building contract"). During the course of the building works, Mr and Mrs Felix made a complaint to the Tribunal alleging, among other things, that Homestyle had failed to construct the concrete slab in accordance with the relevant plans and specifications under the building contract and in a proper and workmanlike manner resulting in it being defective and unfit for its intended purpose ("the complaint"). The Tribunal heard the complaint in November and December 2001, made orders on 27 May 2002 and published its reasons on 15 November 2002. The complainants and Homestyle were legally represented before the Tribunal. Both parties relied on expert engineering evidence. Mr R Stokes of Wood & Grieve Engineers gave evidence for the complainants and Mr G Purich and Mr Airey for Homestyle.

4 The Tribunal found that the concrete slab had not been constructed by Homestyle in accordance with the plans and specifications in that it was substantially less than the 85 mm thickness specified in the building contract and that it was not constructed in a proper and workmanlike manner. However, the Tribunal concluded that the failures had no deleterious effect on the performance of the slab and did not result in any lack of suitability for its purpose. The Tribunal also dismissed a claim that the concrete slab did not comply with Australian Standards (AS) 2870/96 or 3610 because the Tribunal said it was not persuaded the

standards applied. AS 3610 relates to slab levels, not its structural soundness.

5 The Tribunal did not make an order that required Homestyle to remedy the defect in the slab thickness. However, it concluded that topping applied by Homestyle (or an associated company) to the concrete slab was "drummy", demonstrating lack of adhesion to the concrete slab and that required correction. The application of the topping to the concrete slab is connected with earlier proceedings before the Tribunal. It appears the concrete slab was uneven and that defect was the subject of a Tribunal Order to Remedy dated 10 July 2000. On 27 May 2002 the Tribunal revoked that order to remedy and ordered that Homestyle pay the complainants the reasonable cost (to be assessed by the Tribunal on application by either party) of removing portions of the floor topping in specified areas of the house and reinstating the topping to a sound condition and finished to proper standards. Otherwise, the Tribunal dismissed the complaint.

6 The complainants appealed the Tribunal's decision to the District Court ("District Court appeal"). In the District Court appeal, the complainants sought an order that the Tribunal's orders be set aside and in lieu thereof Homestyle rectify the concrete pad so as to comply with the terms of the building contract and, in the alternative, to cause the concrete pad and floor to be rectified so as to comply with AS 2870/96 and AS 3610. By letter of 12 August 2003 the complainants' solicitors informed Homestyle's solicitors that they abandoned their claim that Homestyle rectify the concrete pad and limited their appeal to the claim for breach of contract. Thereafter, the parties consented to orders that the appeal be allowed and the matter be remitted to the Tribunal to assess damages in relation to the Tribunal's finding that the slab did not comply with the terms of the building contract and was not constructed in a proper and workmanlike manner.

7 After the commencement of the District Court appeal but prior to its settlement, the City of Wanneroo ("City") issued the Notice (dated 27 November 2002) which required Homestyle "to rectify the Works so as to remove the cause of the objection". The "Works" are identified as "Concrete floor slab is not in accordance with the approved plans". The cause of the objection is stated to be non-compliance with the approved plans.

8 Pursuant to s 401(3) of the Act, as it then stood, Homestyle appealed against the Notice to the Minister. In a letter dated 25 August 2003 the Minister informed the applicant's solicitors that he had dismissed the appeal. The Minister's letter materially provides:

"Having carefully considered all aspects of the appeal, including the recommendations contained in a report presented to me by the Department of Housing and Works, I have decided to dismiss your appeal against the requirements of the notice.

In making my decision I am mindful that you have provided structural engineering reports that suggest the slab is structurally sound. However, I am also informed that another structural engineer's report considers that the slab does not comply with the provisions of the Building Code of Australia.

I appreciate the effect of this decision and suggest that you continue to liaise with the City to reach a satisfactory solution."

9 The Minister received a briefing note from the Department of Housing and Works which contained background information, commentary and a recommendation to dismiss the appeal. Relevant source documents accompanied the briefing note. The briefing note is the "report" referred to in the Minister's letter. Homestyle relies on aspects of the briefing note in this application.

10 Homestyle abandoned a number of grounds of its challenge to the decision. The surviving grounds are as follows:

"1.2 (b) the power of the City to issue the Notice, or any notice, pursuant to section 401(1) of the Act, is subject to the provisions of the Builders' Registration Act 1939 and the Home Building Contracts Act 1991 such that the City is precluded from issuing the Notice, or any notice, pursuant to section 401(1) of the Act, when the matters specified in the Notice have been made the subject of a complaint to the Building Disputes Tribunal and/or have been made the subject of a determination by the Building Disputes Tribunal;

(c) there was no 'Building Code of Australia' that applied to the construction of the concrete slab;

1.3 the Minister failed to take into account the following as relevant considerations:

(a) the decision of the ... Tribunal ... published on 15 November 2002;

(b) the failure of the concrete slab to comply with the approved plans and specifications did not render the concrete slab unsuitable or unfit for its purpose;

(c) the question of compliance with certain Australian Standards was the subject of appeal to the District Court of Western Australia in Appeal No 63 of 2002 ('the District Court Appeal') at the time the Applicant lodged its appeal against the issue of the Notice, the District Court Appeal ultimately being abandoned on that point;

1.4 the Minister's decision was unreasonable in that:

(a) the Minister dealt with the appeal whilst the matters in issue were the subject of an appeal to the District Court of Western Australia in Appeal No 63 of 2002;

(b) the appropriate forum for the determination of the matters in issue was the ... Tribunal or the District Court of Western Australia on appeal from the Building Disputes Tribunal;

(c) the failure of the concrete slab to comply with the approved plans and specifications did not render the concrete slab unsuitable or unfit for its purpose;

(d) the Minister took into account erroneous and irrelevant considerations to the effect that the owners had a duty of care to advise prospective purchasers that the floor slab did not comply with relevant Australian Standards and that there was doubt about the concrete slab's ability to satisfy the alternative solution provisions of the Building Code of Australia;

(e) the Minister relied on information that another structural engineer's report (namely that of Wood and Grieve Engineers dated 10 September 2001) considered that the concrete slab did not comply with the provisions of the Building Code of Australia, when neither the report of the Department of Housing and works referring to that engineer's report, nor the engineer's report itself, was to that effect;

1.5 in making the Decision the Minister denied the Applicant natural justice in that the Minister denied the Applicant the opportunity to consider and comment upon a report, in respect of this matter, of the Department of Housing and Works."

The City's Power to Issue the Notice (Ground 1.2(b))

11 The ground is framed in terms of a limitation on the City's power to issue a notice under s 401 of the Act. However, in its written and oral submissions the basis of the challenge to the Notice was that it was an abuse of process because it involved a collateral attack on the Tribunal's decision.

12 The starting point is the relevant statutory schemes. Although the ground refers to the Home Building Contracts Act 1991 (WA), that legislation is of no factual relevance in this case and can be put to one side. The Tribunal was acting under s 12A of the Builders' Registration Act. Section 12A(1) materially provides:

"Where on complaint being made to it by any person ... the ... Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the ... Tribunal may by order in writing served on the person who carried out the building work order him to -

(a) remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or

(b) pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the ... Tribunal considers reasonable in which case any costs so ordered by the ... Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction."

13 Thus, the Tribunal's power under s 12A(1) is activated by receipt of a complaint and applies where building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory. Section 12A(1a) applies where building work has not been carried out in a proper and workmanlike manner other than by reason of it being faulty or unsatisfactory. That subsection materially provides:

"(1a) Where, on complaint being made to it by a person for whom building work has been carried out, the ... Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the ... Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to -

(a) remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order; or

(b) pay to the person for whom the building work was carried out -

(i) such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the ... Tribunal considers is reasonable; or

(ii) such sum of money as the ... Tribunal considers reasonable to compensate him for the failure to carry out the building work in a proper and workmanlike manner,

and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction."

14 Subsection (6) of s 12A is also relevant and provides:

"Nothing in this section has the effect of limiting, restricting or otherwise affecting any right or remedy a person would have had had this section not been enacted but in hearing and determining any matter in which a builder or other person against whom or which an order has been made under this section and a person for whom building work has been carried out are parties a court may have regard to any order made by the ... Tribunal under this section."

15 Section 12A(6) was added by the Builders' Registration Act Amendment Act 1975 (WA). It was not part of the amending Bill as originally introduced but was the result of an amendment moved in the Legislative Council during the committee stage. The mover of the amendment (the then Attorney-General) stated that the object of the amendment was to prevent a builder claiming that because the Board had taken action against the builder, the way was not open for a person to sue in Court.

16 The City acted under s 401 of the Act which provides:

"(1) A local government may, during or after the erection of a building in its district, give to the builder or owner of the building, written notice of anything, in the construction of the building -

(a) which tends to render the building unsafe or prejudicial to the public interest;

(b) which is not in compliance with, or is a departure from, the plans and specifications for the building, of which plans and specifications the approval of the local government has been obtained as required by this Act, or which is a contravention of this Act; or

(c) which, where permission of the local government is required for carrying it out, has been carried out without that permission;

and requiring him to pull down or so alter the building as to remove the cause of the objection and on being served with the notice the builder or owner shall comply with the requisition, unless where he has a right of appeal against the requisition, he exercises the right with due diligence and ... the Minister ... quash the requisition on appeal."

17 The appeal to the Minister is governed by subs (3) of s 401 of the Act as it then stood which materially provided:

"Where a person is given notice under this section to pull down or alter a building in order to remove a ground of objection mentioned in subsection (1)(b) or (c), he may ... if dissatisfied with the requisition in the notice, appeal to the Minister in the manner prescribed by the regulations, and the Minister may decide the appeal and his decision is not subject to appeal."

18 Subsection (7) of s 401 deals with what is to occur if the recipient of the notice does not appeal or an appeal is dismissed. It materially provides:

"If the builder or owner on whom a notice mentioned in subsection (1) has been served does not -

(a) within 35 days of that on which the notice is served upon him, unless the requisitions in the notice are the subject of an appeal under this section; or

(b) if an appeal under this section is dismissed, within 14 days of the dismissal,

comply with the requisitions in the notice, a court of petty sessions, on complaint by the local government that he has not so complied with all or any of the requisitions in the notice and that the requisitions in respect of which the complaint is made are not the subject of appeal under this section, may order the person on whom the notice has been served to comply with the requisitions within a time to be fixed by the order ...".

19 If an order made by the Court of Petty Sessions is not complied with, the local government may enter upon the land and give effect to the requisitions (s 401(8)).

20 Section 374(1) of the Act deals with local government approval of building plans and specifications. It provides that no person shall commence building "until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence ... a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built ...".

21 In this case the approved plan the subject of the building licence required the concrete slab "to be a minimum of 85 mm finished thickness of concrete reinforced with F53". It was not in dispute that the concrete slab did not comply. Accordingly, there is something in the construction of the building which was not in compliance with the plans for the building for which the approval of the City was obtained as contemplated in par (b) or s 401(1).

22 It was conceded that on a proper construction of s 401(1) of the Act, a local government has a discretion to issue a notice if the matters in par (a), (b) or (c) are satisfied. In my opinion, the concession is correctly made for a number of reasons. Firstly, by virtue of s 56(1) of the Interpretation Act 1984 (WA) there is a presumption that the word "may" imports a discretion. Secondly, the power is activated by a variety of conduct which may differ significantly in nature and degree. Thirdly, there would be little need for an appeal if the City was under an obligation to issue a notice. Fourthly, this Court has held that the Court of Petty Sessions has a discretion under s 401(7): Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72.

23 The first ground is to the effect that the power to issue a notice under s 401(1) is subject to the Tribunal's power to hear and determine complaints under s 12A of the Builders' Registration Act. The issue whether s 12A and s 401 are inconsistent such as to give rise to the question of implied repeal was not addressed by the parties. The formulation of the ground suggests Homestyle relies on the general presumption that the legislature does not intend to contradict itself but in fact intends both Acts (or the provisions of both Acts) to operate within their given sphere. As stated by Gaudron J in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 17:

"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."

24 The issue is whether there is scope for any relevant overlap or inconsistency in the exercise of the two statutory powers. In that context it is relevant to consider whether the legislation authorises orders and notices (respectively) that may on their face be inconsistent. The task of identifying with precision the issues litigated and determined by the Tribunal is not straightforward. The transcript of the Tribunal hearing is not in evidence. The initiating complaint is partially indecipherable; in particular, the relief sought (if recorded) is obscure. The Tribunal's reasons do not identify the relief sought. It appears (indirectly) from the expert reports that one of the complainants' experts may have suggested the slab be removed and replaced. Whether or not that was an issue before the Tribunal is not expressly disclosed. However, I infer from the substance of the complaints (being the slab was defective and unfit for the purpose) that the complainants sought an order remedying, or the costs to remedy, the defects in the slab. That being the case, the Tribunal dismissed the complainants' application for an order to remedy (or pay to remedy) the concrete slab. It was Homestyle's undisputed contention that the Notice requires it to rectify the concrete slab so as to make it comply with the plans approved by the City. It is unnecessary to deal with the (unaddressed) question whether the Notice could be complied with without removing and replacing the concrete slab. Prima facie, the Tribunal order and the Notice are inconsistent. However, they are only relevantly inconsistent if the scope, object and purpose of the powers overlap.

25 The power of a local government under s 401(1) of the Act is activated by a significantly wider range of matters than that of the Tribunal under s 12A of the Builders' Registration Act. The Tribunal's powers are limited to a builder's failure to carry out building works in a proper and workmanlike manner (with or without it being faulty or unsatisfactory). A local government's discretion is enlivened by matters of safety, prejudice to the public interest and non-compliance with the Act. Securing compliance with the Act would ordinarily be a very weighty consideration in the exercise of the discretion and may itself justify the exercise of the power. Further, the local government can act of its own motion and order the owner of the building or the builder to carry out the remedial works. There being differences in the scope, objects and purposes of the legislation, I am not persuaded there is any relevant inconsistency which requires s 401(1) of the Act to be read subject to s 12A of the Builders' Registration Act. I have reached that conclusion without reference to 12A(6) of the Builders' Registration Act. It is unclear whether the "person" with the rights or remedies referred to in the first part of subs (6) is limited to the person for whom the building work has been carried out. If so, local governments acting under s 401(1) would be excluded. However, in light of my conclusion that there is no relevant limitation on the s 401 power, it is unnecessary to determine the scope of s 12A(6).

26 The conclusion as to the scope of the power in s 401(1) does not necessarily answer the challenge to the issue of the Notice on the basis it was an abuse of process. It is to that matter I now turn. The term "abuse of process" applies to a number of disparate factual situations and the categories of conduct are not closed: Walton v Gardiner (1993) 177 CLR 378 at 393 - 394. However, it is as well to expressly exclude certain manifestations of the principle. We are not here concerned with the tort of collateral abuse of process where the improper purpose of the litigant is central: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. Further, the question of collateral challenge to an administrative decision is not directly relevant (see Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, (2004) at 632 - 637; Mosman Park Town Council v Walker (1991) 73 LGRA 30). However, there is a similarity and it lies in the fact that there is an earlier decision which has not been set aside.

27 The doctrine of abuse of process has been applied when an issue determined in earlier criminal proceedings is sought to be relitigated in subsequent criminal proceedings (R v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 251); when an issue determined in earlier civil proceedings is sought to be relitigated in subsequent civil proceedings (Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 at 203 - 205); when an issue determined in earlier criminal proceedings is sought to be relitigated in subsequent civil proceedings (Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529). Other variants include raising in subsequent proceedings matters which could and should have been raised in earlier proceedings (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589) and where there are concurrent overlapping proceedings when a complete remedy could be obtained in one proceeding (Williams v Hunt [1905] 1 KB 512).

28 In each of the above situations the doctrines of res judicata and issue estoppel (and their criminal law analogues) have no application; there is, in effect, an improper collateral attack on an earlier decision that has not been set aside; and the abuse lies in a party to the earlier proceeding seeking to litigate the issue in subsequent proceedings. A party who was not involved in the earlier proceedings is, however, not prevented from raising or pursuing an issue that has been determined between different parties in earlier proceedings: Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404 at 414 per Hunt CJ; R v O'Halloran [2000] NSWCCA 528; (2000) 159 FLR 260 at 292 per Heydon J.

29 Where earlier and subsequent proceedings are civil rather than criminal, greater flexibility is apparent in the application of the doctrine. In that situation, Giles CJ in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,089 said:

"... guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process."

30 It is also to be noted that all the cases to which I have referred concern abuse of the processes of a court in its civil or criminal jurisdiction. The basis of the Court's power to permanently stay proceedings is the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v Chief Constable of the West Midlands Police (supra) at 536 per Lord Diplock; approved in Walton v Gardiner at 593.

31 The High Court in Walton v Gardiner held there was an analogy between the concept of abuse of a court's process and the concept of abuse of a tribunal's process in relation to disciplinary proceedings, in that case a medical tribunal. The question is whether the analogy extends to the consideration and exercise by a decision-maker of an administrative discretion under s 401(1) where there are no parties or proceedings in the traditional sense.

32 As it has no involvement in the Tribunal process and has different interests to protect, it cannot, in my view, be an abuse of process for a local government to consider and determine whether or not to issue a s 401 notice. Indeed, if a relevant matter comes to its attention, it is likely the local government would be under a duty to consider whether or not to issue a notice. However, in appropriate circumstances a Tribunal determination may be relevant to the exercise of the discretion under s 401(1) and whether the exercise of the discretion or the decision in the appeal miscarried. In particular, some of the matters referred to by Giles CJ in the State Bank case may be relevant considerations. Those matters are more properly considered in the context of ground 1.4.

Failure to Take Into Account Relevant Considerations (Ground 1.3)

33 This ground of challenge only applies where the decision-maker is bound to take into account the considerations said to be relevant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. There are divergent authorities on what is required to satisfy the duty to take into account relevant considerations. On one view, it requires proper, genuine and realistic consideration: Kahn v Minister for Immigration Local Government and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291. The other view is that this ground merely requires the matter to be given some consideration: Peko-Wallsend (supra) at 40 - 41. It is unnecessary to determine the correct approach because even the more stringent test is satisfied in this case.

34 The evidence establishes that the Minister was provided with the briefing note and the entire file for the appeal. The file included Homestyle's notice of appeal (which refers to the decision of the Tribunal and the District Court appeal) and all relevant documents in support. The Minister states in his letter that he carefully considered all aspects of the appeal. I infer the Minister had regard to the briefing note and the relevant supporting documents. Homestyle has not discharged the onus of establishing that the Minister failed to take into account any of the considerations to which it refers. Accordingly, it is unnecessary to determine whether they are "relevant" in the sense of mandatory considerations.

Whether the Decision Unreasonable (Ground 1.4)

35 Homestyle relies on five matters. They include that the Minister dealt with the appeal while the District Court appeal was still on foot; the appropriate forum for the determination of the issue is said to be the Tribunal or the District Court appeal; and the Tribunal's finding that the failures did not render the concrete slab unsuitable or unfit for its purpose. The final two matters are based on the contents of the briefing note. Under the heading "Current Situation" the briefing note states:

"The City has indicated that it supports the appeal and has inferred that its objection to the works and subsequent notice is now redundant ... Their position appears to be based on reports from the two registered structural engineers advising the concrete slab meets the BCA as an alternative solution.

The owners have been advised by their consultant, Housing Quality Assurance Services, that, 'you would have a duty of care to advise possible future purchasers of the fact the slab to your home does not comply with the relevant standards and building approvals.' This has justifiably caused them great concern.

From the information made available to the Department, the departure in the construction of the slab is significant, with 4 of 5 core samples indicating the slab is less than the thickness required to meet the deemed to satisfy requirements of the BCA. Additionally, there is an engineering opinion that the slab does not meet the requirements of the relevant Australian Standards. This creates doubt of the slab's ability to satisfy the 'alternative solution' provision of the BCA.

In view of the significance of the departure from approved plans and the conflicting advice from the engineering consultants, I recommend that the appeal be dismissed. This would have the effect of requiring the City to decide if it will either withdraw the notice or proceed to enforce the requisition within their notice."

36 The engineering opinion referred to in the third paragraph is that of Mr Stokes of Wood and Grieve in a letter dated 10 September 2001. Homestyle contends the references in the briefing note to the duty of care to advise prospective purchasers and the doubt about the slab's ability to satisfy the alternative solution provisions of the BCA are erroneous and irrelevant considerations.

37 Further, the Minister's letter stated that "another structural engineer's report considers that the slab does not comply with the provisions of the Building Code of Australia". Homestyle contends neither the briefing note nor the engineer's report are to that effect.

38 Before addressing the five matters on which Homestyle relies to support its claim of unreasonableness, it is necessary to refer to the City's conduct. After issuing the Notice, it apologetically (and erroneously) informed Homestyle it was obligated to do so. When the Minister sought the City's advice on certain matters (which he was obliged to do under the Local Government (Appeals to Minister) Regulations 1961 (WA)), the City supported Homestyle's appeal because it said the building did not contravene the Building Code. It based that conclusion on the opinions of Homestyle's experts that the slab (I infer with the topping) was fit for the purpose. There is no indication the City had considered Mr Stokes' opinion. The final paragraph of the Minister's letter states that on dismissal of the appeal it remained open to the City to withdraw or enforce the Notice. It was not contended that the assertion was wrong.

39 Turning to the five matters relied on, I have already concluded that the Minister had regard to the contents of the briefing note in determining the appeal. As to the claim that the briefing note and the Minister's letter contain factually inaccurate and irrelevant statements, I start with the Building Code of Australia ("Building Code"). At the outset I wish to acknowledge the considerable assistance provided by the amicus curiae on the subject of the regulatory framework. Regulation 5 of the Building Regulations 1989 (WA) provides:

"(1) Subject to these regulations, the Building Code applies to and in relation to any building that can be classified according to use under Part A3 of volume one of the Building Code and to any work referred to in Part XV of the Act and in the Building Code.

(2) Any alteration, addition, restoration or repair to a building shall conform with these regulations but where the local government is of the opinion that any such work consists only of minor work and does not adversely affect the safety of persons accommodated in or resorting to a building or property ... the local government may determine that the Building Code does not apply in relation to such work and that the work shall conform to only such of the provisions of the Building Code as are specified by the local government."

40 The Building Code is defined (in reg 3(1)) to mean the latest edition of the Building Code of Australia published from time to time. It seems the building in question in this case is within the relevant classification identified in reg 5(1).

41 Regulation 11 refers to the particulars that must accompany an application for a building licence which includes drawings and specifications. Local government approval of plans are subject to compliance with the Act and the Building Code.

42 The Building Code sets out performance requirements and building solutions adopted to secure compliance with the performance requirements. There are two categories of building solutions; the first is termed the "deemed-to-satisfy provisions" and the second the "alternative solutions". The assessment methods applicable to alternative solutions includes expert judgment.

43 Performance requirement 2.1 concerns structural stability and resistance to actions and is in the following terms:

"(a) A building or structure, to the degree necessary, must -

(i) remain stable and not collapse; and

(ii) prevent progressive collapse; and

(iii) minimise local damage and loss of amenity through excessive deformation, vibration or degradation; and

(iv) avoid causing damage to other properties;

by resisting the actions to which it may reasonably be subjected."

44 The actions to be considered to satisfy (a) include, inter alia, permanent actions, imposed actions, wind action and earthquake action.

45 Performance requirement 2.2.3 relates to dampness and provides:

"Moisture from the ground must be prevented from causing -

(a) unhealthy or dangerous conditions, or loss of amenity for occupants; and

(b) undue dampness or deterioration of building elements."

46 The deemed-to-satisfy building solution for footings and slabs is contained in Pt 3.2 of the Building Code. Part 3.2.0 provides:

"Performance Requirements P2.1 and P2.2.3 are satisfied for footings and slabs if they are installed in accordance with one of the following manuals:

(a) the footing or slab is constructed in accordance with AS2870.

(b) ...".

"Slab thickness For slab on ground construction slabs are generally required to be 100 mm thick. This is regarded as the practical minimum thickness for normal building construction, unless the construction is supervised by a qualified engineer, in which case, the minimum slab thickness may be 85 mm."

48 However, in the accompanying notes, AS 2870 provides:

"In Western Australia, where specified by an appropriately qualified engineer, the slab thickness may be reduced to 85 mm with reinforcement as specified below ...".

49 F63 reinforcement is specified when the maximum slab length is greater than 12 metres and less than 18 metres.

50 As an alternative to AS 2870, the Building Code sets out what it describes as acceptable construction practice. In relation to footing and slab construction, it provides (in Pt 3.2.5):

"In parts of Western Australia (around Perth) and other locations where the site consists of extremely stable sands, and where specified by a professional engineer, the slab thickness may be reduced to 85 mm and reinforced as follows:

(a) Use F53 when slab length is less than or equal to 12 m.

(b) Use F63 when slab length is less than or equal to 18 m.

(c) Use F62 when slab length is more than 18 m."

51 It is apparent that the concrete slab constructed by Homestyle does not comply with the deemed-to-satisfy provisions of the Building Code. The remaining question is whether it complies with the alternative solution provisions for which expert judgment can be relied on. Expert judgment is defined in the Building Code to mean:

"The judgment of an expert who has the qualifications and experience to determine whether a Building Solution complies with the Performance Requirements."

52 It is said that in practice, a departure from approved plans and specifications may be sanctioned if an expert can satisfy the local government that what has been done, or is proposed to be done by way of rectification, is an alternative solution, being one that complies with the performance requirements of the Building Code.

53 It is clear that the purpose of the Building Code is to lay down uniform standards of building safety throughout Australia by reference to stated performance requirements. Regulation 5(2) deals with the very limited situations in which local governments can determine that the Building Code not apply.

54 Against that background it is necessary to assess Homestyle's contention that the statement in the briefing note concerning the doubt about the slab's ability to satisfy the alternative solution provisions of the Building Code is erroneous and irrelevant. In the context of, and with an understanding of the regulatory framework, it is abundantly clear that the question whether the alternative solution provisions of the Building Code are met is centrally relevant.

55 Further, an understanding of the regulatory framework also reveals that the issue considered and determined by the Tribunal is significantly different than that facing the City in the exercise of its discretion under s 401(1) of the Act. The Tribunal did not make its assessment by reference to whether the Building Code or AS 2870/96 had been complied with or what flowed from a failure to so comply. The Tribunal referred to AS 2870 and the two aspects earlier referred to and said:

"Those two statements obviously impose different requirements. No submission was made about which applies in this case. Nor was any submission made that the Standard in question applies in this case whether by operation of the Building Code of Australia, the building licence or pursuant to the contract or any other means by which the Standard might govern what is required of this slab. ...

We have not had the opportunity to consider the proper meaning to be given to the Standard nor its application to this case. If we considered this a crucial issue we would have asked for further submissions. We did not find that to be necessary."

56 The Tribunal's consideration was confined to notions of suitability and fitness for the intended purpose which appear in other areas of the law. There is no indication in the reasons as to whether and, if so, how the yardstick adopted by the Tribunal relates to the performance requirements of the Building Code.

57 As the Tribunal did not consider the suitability or fitness of the slab for its intended purpose by reference to the regulatory regime in which the City is obliged to operate and which is relevant to the exercise of its power under s 401(1), it cannot be said that the issues relevantly overlapped or that the Tribunal's findings were of any persuasive force in the exercise of the City's discretion.

58 I go now to the accuracy of the observation in the briefing note concerning the doubt as to whether the slab satisfies the alternative solution provisions of the Building Code. Wood and Grieve obtained and measured five core samples from the concrete slab. The average depth and the average topping depth at each of the locations is recorded as follows:

59 The Wood and Grieve report states that the slab does not comply with AS 2870 and continues:

"In our opinion, it would only be reasonable to include the topping thickness in this measurement if the topping was sound and had adequately bonded to the concrete substrate. We do not believe that this has been achieved in this case and would conclude that the thickness of the slab at locations 2 - 5 do not comply with Australian Standards requirements."

60 It is clear that the slab did not satisfy the deemed-to-satisfy provisions of the Building Code. Further, Wood and Grieve's comments concerning the topping, and the combined thickness of the slab and topping at locations 2 and 5, implies that the slab with the topping did not, or may not satisfy the alternative solution provisions of the Building Code. Further, it does not appear from the Tribunal's reasons that the opinions of Homestyle's experts were given or had been tested on the matter of concern to the City, which was whether the Building Code had, in effect, been complied with.

61 It is apparent from the briefing note that the most significant consideration in the appeal was whether the slab with properly applied topping met the Building Code requirements. However, the Minister's letter went further than the briefing note in saying the slab did not comply with the Building Code. That conclusion is not supported by the briefing note.

62 Homestyle also contends the briefing note erred in suggesting there was substance in the advice to the owners that they owed a duty to inform subsequent purchasers of the failure of the slab to comply with the Australian Standards or the building licence. This is not the appropriate time to consider whether there is a general duty of that nature; it is sufficient to note a duty of that kind may arise in appropriate circumstances. Indeed, having regard to the regulatory framework, potential purchasers would have a legitimate expectation that the terms of the building licence (and the Building Code) have been complied with. I am not persuaded that the duty of care statement is either erroneous in substance or irrelevant.

63 That is the factual matrix against which Homestyle's claim that the Minister's decision was unreasonable falls to be determined. The traditional statement of legal principle is that a reviewable error of law for unreasonableness is only made out if it is shown that no reasonable person could have reached the decision under challenge, a test aimed at ensuring the Court does not exceed its supervisory role by reviewing a decision on its merits: Peko-Wallsend (supra) at 41 - 42. Inconsistency can support a finding of unreasonableness: Dilatte v MacTiernan [2002] WASCA 100 [60] - [63] per Malcolm CJ.

64 There is another sense in which the term is used and that is where a decision-maker has made a discernable independent error of law such as, for example, acting for an improper purpose, acting under dictation, taking into account an irrelevant consideration or failing to take into account a relevant consideration: see Lord Greene MR's judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 - 230. There appears to be a further ground of review that does not, or may not, overlap with unreasonableness in the traditional sense and that is review on the basis of irrationality or illogicality: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [73] - [74] per McHugh and Gummow JJ and [142] - [146] per Kirby J. However, this seems to be an umbrella concept that provides a unifying principle for the specific errors to which I have referred. Further, it may provide a basis on which findings of fact leading to the exercise of discretion can be challenged. There is a difference of opinion as to whether traditional Wednesbury unreasonableness can be used to challenge grossly unreasonable fact finding: Peko-Wallsend at 41; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626, 656 - 657. However, on any view, an error of fact does not of itself vitiate a discretionary decision.

65 For the reasons given, the issue of the Notice (and the dismissal of the appeal therefrom) are not relevantly inconsistent with the Tribunal decision. None of the factors specified in the ground, either individually or collectively, justify a conclusion that the Minister's decision is one no reasonable person could have reached. Whether reliance is placed on the traditional notion of unreasonableness or the other categories of review under the umbrella notions of irrationality or illogicality, it cannot be said the decision to dismiss the appeal was unreasonable or otherwise an error of law. I would dismiss this ground.

66 Homestyle reformulated this ground at the hearing to complain of the denial of the opportunity to consider and comment on the briefing note and on whether there was, or may have been, a breach of the Building Code.

67 An aspect of the duty of procedural fairness or natural justice is the right to be heard. However, the content of the hearing rule and what it requires depends on the circumstances of each case. Homestyle contends the Minister had a duty to disclose the briefing note. It is sometimes said the duty to disclose applies to material received from other sources. On some occasions a departmental briefing note or submission to a Minister has been treated as material from another source (Irving v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540 at 570) and in other cases it has been characterised as part of the deliberate process of the decision-maker which does not require disclosure (Telstra Corp Ltd v Kendall [1995] FCA 1481; (1995) 55 FCR 221).

68 Insofar as the briefing note contains comment or evaluation on the issues raised and evidence relied on by the appellant, disclosure is not required: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 219.

69 However, the High Court in that case endorsed the statement of principle made by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591 - 592 as follows:

"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or mental processes or provisional views to comment before making the decision in question."

70 In this case, Homestyle should have recognised from the terms of s 401 of the Act that a central issue in the appeal was likely to be whether the performance requirements of the Building Code had been satisfied on the basis of the alternative solution provisions. However, it is clear from the material supplied by Homestyle in the appeal that it had not understood the significance of that matter or the significance of the failure of the Tribunal to address the relevant issues in the correct regulatory framework for the City's purposes under s 401(1) of the Act. That must have been apparent to the Minister and his advisers. In the unusual circumstances of this case, I am satisfied the Minister had a duty to disclose to Homestyle that there were concerns as to whether the concrete slab as rectified by the application of the topping complied with the Building Code and to give Homestyle the opportunity to make submissions on that matter. There being a failure to accord procedural fairness to Homestyle in this regard, certiorari should lie to quash the decision on this ground.

71 Homestyle has succeeded on ground 1.5. Accordingly, the order nisi should be made absolute and the decision of the Minister quashed on the return without further order of the Court as provided for in O 56 r 13 of the Rules of the Supreme Court 1971.

72 At the request of the Court, the amicus curiae filed submissions in writing after the hearing on whether the matter would go back to the Minister or SAT. Homestyle's solicitors have not made submissions on this point. The appeal to the Minister has now been replaced by review by the State Administrative Tribunal ("SAT"). Section 671(3) of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and

Repeal Act 2004 (WA) ("SAT Conferral of Jurisdiction Act") amends s 401 to delete references to an appeal to the Minister and confers jurisdiction on the State Administrative Tribunal to review the decisions of local governments made under s 401(1) of the Act. The relevant transitional provision is contained in s 167 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), the general effect of which is that, subject to specific exceptions, jurisdiction over s 401 matters was transferred from the Minister to SAT on 1 January 2005. The amicus submitted that on a proper construction of s 167(4) of the SAT Act, SAT has jurisdiction because there was no "determination" by the Minister before 1 January 2005 as his decision is void ab initio. That may be correct, however, the construction of the transitional provision is not without some difficulties. As we have not had the benefit of full argument on the question and as it is unnecessary for this Court to decide the matter, it is preferable to leave its determination to another time.

73 PULLIN JA: In my opinion there was a breach of the requirement for procedural fairness in relation to the appeal determined by the Minister. Homestyle should have been given the opportunity to make submissions about the applicability of the Code and whether there was compliance with the Code if it did apply: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576.

74 In my opinion the decision of the Minister should be quashed.

75 That has the effect that the notice issued by the City of Wanneroo remains on foot and must be complied with by Homestyle. If it were not for the SAT legislation, the matter would be remitted to the Minister to re-determine after allowing Homestyle to make further submissions. Whether it is the Minister or SAT who or which now has jurisdiction is a matter for Homestyle to consider.

76 If difficulties arise on this point, then it may be necessary for this Court to make further orders.

77 I agree with McLure JA in relation to the other grounds which were argued.

Government (Appeals to Minister) Regulations 1961

Government (Miscellaneous Provisions) Act 1960

Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004

Registration Act](/cgi-bin/viewdoc/au/legis/wa/repealed_act/bra1939246/) Amendment Act 1975

Registration Act 1939

Building Contracts Act 1991

Administrative Tribunal Act 2004

Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 (3 June 2005)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (172 paragraphs)

Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 (3 June 2005)

RE GRIFFITHS; EX PARTE HOMESTYLE PTY LTD [2005] WASCA 103 (3 June 2005)

Legislation Cited (7)

Cases Cited (23)