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[2015] WASAT 12
General information, not legal advice.
State Administrative Tribunal (WA)
2015-02-11
Original judgment source is linked above.
CITATION : SHAKUR and AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Complaint that building services defective - Competing arbitration proceedings - Effect of Commercial Arbitration Act 2012 (WA) - Whether dispute resolution clause gives right to insist on arbitration - Whether complaint capable of determination in arbitration proceeding - Effect of alleged failure to give notice of proposed complaint
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6(2), reg 6(3), reg 6(4)
Commercial Arbitration Act 2011 (Vic), s 8, s 8(1)
Interpretation Act 1984 (WA), s 19
Trade Practices Act 1974 (Cth)
Parties referred to arbitration and proceedings otherwise dismissed save in relation to costs
The respondent applied to have the proceedings dismissed as being misconceived or an abuse of process under s 47 of the State Administrative Tribunal Act 2004 (WA), or in the alternative that part of the proceedings be referred to arbitration. The basis of the application was that there were competing proceedings on foot before an arbitrator and the Tribunal.
It was necessary for the Tribunal to determine the effect of s 8 of the Commercial Arbitration Act 2012 (WA). The Tribunal concluded that for the purposes of that legislation the Tribunal was a court, and that the legislation applied to a commercial domestic arbitration conducted in Western Australia. The effect of s 8 of the Commercial Arbitration Act 2012 (WA) is that the Tribunal is required to refer the parties to arbitration in respect of a matter before it which is the subject of an arbitration agreement. The Tribunal found that the effect of clause 16 of the agreement between the parties was that either party was entitled to refer the dispute to arbitration. Submissions by the applicant that the arbitration agreement did not permit a referral to arbitration of a statutory claim brought under the Building Services (Compliant Resolution and Administration) Act 2011 (WA) were rejected.
The Tribunal further declined to follow an earlier decision of Cooper and Hegarty [2013] WASAT 82 which found that the Tribunal did not have jurisdiction to deal with a complaint where there had not been a compliance with the prescribed preliminary action requirements. The Tribunal considered that the decision was clearly wrong because there had been no consideration of the power granted to the Building Commissioner to waive or modify the preliminary action requirement. On the facts of this case the Tribunal found that there was sufficient material on which the Building Commissioner could make a decision to waive or modify the preliminary action requirements and the Tribunal noted that the matter could not have been referred to the Tribunal unless the Building Commissioner had decided to waive or modify the requirements. Accordingly, it was held that the Tribunal had jurisdiction to deal with a particular complaint item that had not been referred to in the notice of proposed complaint given by the applicants.
Having regard to all the circumstances, the Tribunal concluded that the proceedings were misconceived and an abuse of process. As the dispute before the Tribunal was framed in a form different to that before the arbitrator, and as one complaint item had not been dealt with in the notice of referral to arbitration, the Tribunal ordered that the parties be referred to arbitration so that the entire controversy was before the arbitrator and otherwise dismissed the proceedings, save in respect of cost.
BGC Construction and Vagg & Anor [2006] WASAT 367
Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45
Cooper and Hegarty [2013] WASAT 82
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
IBM Australia Limited v National Distribution Services Ltd (1991) 100 ALR 361
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142
1 The applicants entered into a lump sum building contract (contract) with the respondent for the construction of a residential house at 1 Cable Cove, Mosman Park for a consideration of $1,300,832. The applicants gave notice requiring the respondent to carry out certain works in order to bring the dwelling to practical completion, as well as intimating an intention to claim damages for delay, compensation for the applicants' time spent in addressing construction defects and compensation for stress, frustration, anguish and inconvenience, loss of amenity or non-pecuniary loss. Subsequently, the applicants gave the respondent notice of a proposed claim to be made under the Building Services (Complaint Resolution and Administration Act) 2011 (WA) (BSCRA Act). This notice was consistent with the earlier notice to which reference had been made. The respondent responded by issuing a notice of dispute and referring the matter to arbitration.
2 The applicants proceeded to lodge a complaint with the Building Commission which was subsequently referred to this Tribunal for determination pursuant to the relevant provisions of the BSCRA Act. The respondent then applied for the proceedings before the Tribunal to be dismissed as being misconceived or an abuse of process on the basis that the respondent had referred the matters in dispute to arbitration and the applicants had participated in the arbitration proceedings. That application was heard on 1 December 2014 on which date the Tribunal issued an order referring the parties to arbitration and otherwise dismissing the proceedings pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) save in respect of costs, in relation to which programming orders were made.
3 At the time of making those orders, I indicated that the Tribunal would publish its written reasons for decision at a later date. This course was followed in order to ensure that the arbitration proceedings were not delayed, in the interests of both parties.
4 The parties filed extensive submissions, all of which were carefully considered, together with the relevant facts, in considering the issues identified below. In my view, the following issues are determinative of the matter.
Is the Tribunal a court for the purposes of s 8 of the CA Act?
Arbitration agreement and substantive claim before court (cf. Model Law Art 8)
(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
...
5 Section 2 of the CA Act defines 'the Court' to mean, subject to s 6(2) of the Act, the Supreme Court. Section 6(1) of the CA Act provides that the functions referred to in various sections are, subject to s 6(2) of the Act, to be performed by the Supreme Court. The sections referred to all deal with procedures aiding the process of the arbitration, its enforcement, or appeal against an award.
6 Section 6(2) of the CA Act provides, in essence, that if an arbitration agreement, or the parties to the agreement agree in writing, that the District Court or the Magistrates Court is to have jurisdiction under the CA Act, that the functions are to be performed by the District Court or the Magistrates Court, as the case requires.
7 The scope of the application of the CA Act is canvassed under the heading which follows below. For the purposes of considering whether the Tribunal is a court within the meaning of s 8(1) of the CA Act, it is assumed that the provision applies in respect of the arbitration agreement entered into between the parties.
8 Section 1C of the CA Act sets out the paramount object of the Act as being to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense. Section 1C(2)(ii) of the CA Act provides that the Act aims to achieve its paramount object by enabling parties to agree about how their commercial disputes are to be resolved and by providing arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly. Section 1C(3) of the CA Act provides that the Act must be interpreted and the functions of an arbitral tribunal must be exercised so that 'as far as practicable' the paramount objects of the CA Act are achieved.
9 Section 1D of the CA Act sets out an explanation of the origin and structure of the Act as being based on the 'Model Law' (the UNCITRAL Model Law) on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law). Section 1D(2) of the CA Act notes that some changes have been made to those provisions of the CA Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in Western Australia or to accommodate modern drafting styles and conventions.
10 Section 2A(1) of the CA Act provides that, subject to s 1C, in the interpretation of the CA Act, regard is to be had to the need to promote, so far as is practicable, uniformity between the application of the CA Act to domestic commercial arbitrations and the application of the provision that the Model Law (as given effect by the International Arbitration Act 1974 (Cth)) to international commercial arbitrations in the observance of good faith.
11 The Model Law Article 2 does not contain a definition of 'the Court'. Article 2(c) of the Model Law defined 'court' to mean a body or organ of the judicial system of a State. Article 6 of the Model Law provides that the functions referred to in specific articles of the Model Law shall be:
... performed by ... [each State enacting this model law specifies the court, courts, or where referred to therein, other authority competent to perform these functions].
12 The definition of the Court as meaning the Supreme Court and the express references to the District Court and Magistrates Court in s 6 of the CA Act give rise to some difficulty interpreting what is meant by 'the court' in s 8 of the CA Act, particularly in circumstances in which the definition of 'the court' as contained in Article 2 of the Model Law has been omitted from the definitions in s 2 of the CA Act.
13 As the meaning of 'the court' in s 8 of the CA Act is ambiguous, s 19 of the Interpretation Act 1984 (WA) permits reference to extrinsic material. In introducing the Commercial Arbitration Bill 2011 (WA), the Honourable Attorney General, Mr CC Porter, stated in the second reading speech, as set out in Hansard, 15 June 2011 at page 4254c as follows:
The Commercial Arbitration Bill 2011 will repeal the Commercial Arbitration Act 1985 and provide a new procedural framework for the conduct of domestic commercial arbitrations. The Bill facilitates the use of arbitration agreements to manage domestic commercial disputes and will ensure that arbitration provides a cost-effective and efficient alternative to litigation in Australia. The current act is part of a uniform domestic arbitration and legislation scheme that applies in all Australia states and territories. This uniform legislation has not kept pace with changes in international best practice and still reflects the old English arbitration acts. At the May 2010 meeting of the Standing Committee of Attorneys-General, the Ministers agreed to update the uniform legislation. ...
The Bill is based upon the text and spirit of the UNCITRAL model law. This delivers consistency with the commonwealth's international arbitration law and the legitimacy and familiarity of internationally accepted practice. However, the UNCITAL model law does not provide a complete solution to the regulation of domestic commercial arbitration. The Bill, therefore supplements the model law to provide appropriately for domestic dispute management. At the April 2009 Standing Committee Meeting, Ministers agreed on two principles to guide the drafting of the uniform legislation. They were that the Bill should give effect to the overriding purpose of commercial arbitration - namely to provide a quicker, cheaper and less formal method of finally resolving disputes and litigation - and that the Bill should deliver a nationally harmonised system for international and domestic arbitration ...
14 The State of Victoria has enacted similar legislation, being the Commercial Arbitration Act 2011 (Vic). In Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142 (Subway Systems, the Court of Appeal had cause to consider the meaning of 'the court' in s 8 of that legislation. While there are some differences in the legislation, it is materially the same. Maxwell P and Beech JA (Kyrou AJA dissenting) held that 'the court' in s 8 of the Victorian legislation is intended to cover a body or organ of the judicial system of a State, rather than a court in the strict sense.
15 It is important that uniform legislation be consistently interpreted in all Australian States and Territories. While the decision in Subway Systems is not one which binds the Tribunal, as not being part of the judicial hierarchy covering the Tribunal, the decision should be followed unless considered to be clearly wrong: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45 (Deegan).
16 The majority decision in Subway Systems is based on distinguishing between court jurisdiction in relation to adjectival functions on one hand, as described in Article 6 of the Model Law (s 6 of the CA Act) and the exercise of jurisdiction in a substantive sense as contemplated by Article 8 of the Model Law (s 8 of the CA Act). In relation to the exercise of court jurisdiction in the substantive sense, the majority relied on the definition of 'court' in Article 2 of the Model Law to find that the reference to the court intended to cover bodies or organs of the judicial system beyond a court in the strict sense. Such an interpretation is arguably consistent with the paramount objective of the Act and the provisions of s 1C of the CA Act, and although the majority view is certainly not free from doubt, neither party argued the contrary. The applicants' written submissions did not address this issue and their oral submissions were limited to the applicability of the CA Act as a whole, which was dealt with in the following issue discussed below. I am not persuaded that Subway Systems is wrongly decided and will therefore follow the decision on this aspect.
17 Subway Systems also determined that the Victorian Civil and Administrative Tribunal was a court within the meaning of s 8 of the Victorian legislation. The reasons for doing so apply equally to this Tribunal. The Tribunal is not called a court, but it is the function and purpose of the Tribunal and not its nomenclature which must determine whether it qualifies as a court for the purposes of s 8 of the CA Act: see, in this regard, the principles discussed in BGC Construction and Vagg & Anor [2006] WASAT 367 at [27] and following.
18 I find that the Tribunal is a 'court' for the purposes of s 8 of the CA Act.
Does s 8 of the CA Act apply in relation to the arbitration commenced between the parties?
19 In their oral submissions, the applicants submitted that the effect of s 1(2) of the CA Act is that s 8 thereof did not apply in respect of an arbitration taking place in Western Australia. It is not in dispute that the arbitration proceedings between the parties are being conducted in Western Australia.
20 Section 1 of the CA Act provides, relevantly, as follows:
(1) This Act applies to domestic commercial arbitrations.
Note: The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.
(2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in Western Australia.
(3) An arbitration is domestic if -
(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and
(b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and
(c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 (Commonwealth)) applies.
21 On an initial reading of s 1(2) of the CA Act, there appears to be some force in the applicants' submissions. However, I do not accept that the legislation is to be read in the way in which the applicants contend.
22 The CA Act applies to all domestic commercial arbitrations and s 1(3) of the Act provides that domestic arbitration is one in which the parties, at the time of the conclusion of the agreement, have their places of business in Australia, the parties have agreed that any dispute is to be settled by arbitration, and the arbitration is not one to which the Model Law (as given effect by the International Arbitration Act 1974 (Cth) applies). There is no suggestion that the arbitration commenced between the parties is not a domestic arbitration as defined.
23 It is clear, therefore, that the whole of the CA Act applies to commercial arbitration agreements entered into between parties who may have their places of business in other States or Territories in Australia. On a proper reading, s 8, s 9, s 17H, s 17I, s 17J, s 35 and s 36 of the CA Act apply to commercial arbitrations, meeting the definition of a domestic arbitration, where the parties have their place of business outside of Western Australia in one of the other States or Territories, whereas all of its provisions of the CA Act apply to domestic commercial arbitrations conducted within Western Australia.
24 This is consistent with the paramount object of the CA Act because it facilitates the conduct of arbitrations as a method of dispute resolution by enabling the court to take steps by exercising the functions referred to in s 8, s 9, s 17H, s 17I, s 17J, s 35 and s 36 of the CA Act, which will uphold the integrity of the arbitration proceedings conducted anywhere in Australia. This ensures that all courts (including this Tribunal) give priority to the parties agreement to arbitrate even where the arbitration is conducted outside of Australia. This reading is supported by the views expressed in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 3rd Ed, by Dr Peter Binder, Sweet & Maxwell at page 26. The learned writer there states that the provisions referred to immediately above 'apply even if the place of arbitration is outside the adopting State'. This view is also supported by the discussion at paragraph 9 of the UNCITRAL 2012 Digestive Case Law on the Model Law on International Commercial Arbitration. It is there stated:
The principle embodied in Article 1(2) is that the model law as enacted in a given state applies only if the place of arbitration is in the territory of the state. However, Article 1(2) also contains important exceptions to that principle, to the effect that certain articles apply, irrespective of whether the place of arbitration is in the enacting state or elsewhere ...
25 I accordingly find that the whole of the CA Act applies to the arbitration agreement entered into by the parties.
26 Clause 16 of the contract entered into by the parties reads as follows:
(a) In the event of any dispute, disagreement, or difference between the Owner and the Builder at any time whatsoever as to any matter or thing arising hereunder or in any way concerned or connected herewith or relating to the construction of this Contract then notwithstanding the rights of either party to apply to the Building Commissioner or State Administrative Tribunal or any other relevant Statutory Authority, either party may give to the other notice of such dispute, disagreement or difference and at expiration of FIVE (5) days thereafter and in the absence of any settlement the same be referred to arbitration either by:
(i) a single arbitrator appointed by mutual consent; or
(ii) in the event that agreement of the appointee is not reached within FIVE (5) days a single arbitrator shall be appointed by the President or his nominee of the Housing Industry Association Western Australian Division provided that such appointee shall be an arbitrator approved by the Institute of Arbitrators Western Australian Chapter. At the time of application for such appointee the party applying shall deposit with the Housing Industry Association such sum as may then be required by way of security for costs of the arbitration proceedings and further sums so contributed whether by direction of the arbitrator or otherwise (but always in equal shares) shall be applied in accordance with the directions of the arbitrator.
(b) The conduct of the arbitrator shall be in accordance with and subject to the provisions of the Commercial Arbitration Act 1985 and the decision of the single arbitrator appointed shall be final. The rights and obligations of the parties under this Contract shall be modified only to the extent made necessary by such arbitration.
27 The applicants submit that clause 16 of the contract does not prohibit the parties from commencing proceedings before the Building Commission or this Tribunal and that, in effect, the parties have a right to advance claims before those bodies or to refer the matter to arbitration. The applicants further contend that s 8 of the CA Act cannot be relied upon because of the steps taken by the applicants in advancing the dispute before the Building Commission and this Tribunal.
28 This contention by the applicant is misconceived because s 8 of the CA Act is conditioned by the party requesting that the matter be referred do so not later than when submitting that party's first statement on the substance of the dispute; namely, in this instance, the respondent. There is nothing before me which shows that the respondent has submitted any statement on the substance of the dispute in the proceedings before either the Building Commission or the Tribunal. The respondent has consistently sought the dismissal of the proceedings because of the existing referral to arbitration and, alternatively, in relation to complaint item 5, referral to arbitration.
29 Insofar as the operation of clause 16 of the contract is concerned, I am unable to accept the applicants' submissions. All that the clause does is recognise the statutory right which either party has to apply to the Building Commissioner or this Tribunal, or any other relevant statutory authority. It provides that, notwithstanding such rights, either party may give the other notice of such dispute, disagreement or difference and, in the absence of any settlement, may refer the dispute to arbitration. That is exactly what has occurred. That, therefore, triggers the operation of s 8(1) of the CA Act. Consequently, I find that the respondent is entitled to insist that a dispute, if it comes within the description of s 8(1) of the CA Act, be referred to arbitration. Whether, in fact, the dispute is one coming within the subsection is discussed in the next subheading.
Is the dispute before the Tribunal capable of being determined in the arbitration proceedings?
30 The applicants strenuously argued that the proceedings before the Tribunal are based on a statutory remedy provided under the BSCRA Act and that the arbitrator has no power to deal with a valid complaint made to the Building Commission under s 5(1) and s 5(2) of the BSCRA Act. I do not except this submission for the reasons which follow.
31 Firstly, what may be determined by an arbitrator and the ambit of the arbitrator's jurisdiction depends on the agreement of the parties. If the arbitration clause is wide enough the discretions and remedies granted under legislation may be exercised by an arbitrator. In this regard, see for instance IBM Australia Limited v National Distribution Services Ltd (1991) 100 ALR 361 and Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 which recognised that arbitration clauses referring disputes 'related to this agreement or breach thereof' and ; providing that a dispute or difference 'arising out of' were words of wide import which empowered the arbitrator to exercise the discretionary powers granted under the then Trade Practices Act 1974 (Cth). In this instance clause 16 of the agreement between the parties is of even wider import permitting referral of 'any matter or thing arising hereunder or in any way concerned or connected here with'.
32 Secondly, the substance of the dispute is the alleged failure of the respondent to construct aspects of the works free of defects. While the particular language of the BSCRA Act has been used in advancing a claim under that legislation, it is an express term of the agreement between the parties under clause 1(a) that the respondent will execute and complete the work in a proper and workman like manner. Section 8(1) of the CA Act provides that a court before which an action is brought in the matter which is the subject of an arbitration agreement must, in the circumstances outlined, refer the parties to arbitration unless it finds the agreement is null and void, inoperative or incapable of being performed. The 'action' which is brought before the Building Commission and which has been transferred to this Tribunal is in substance no more than a dispute about whether the particular building works have been constructed in a proper and workman like manner or are defective. I consider that such a dispute is capable of being determined in the arbitration proceedings.
Does the Tribunal have jurisdiction to deal with complaint item 5?
33 The respondent submits that the applicants failed to give notice of a proposed complaint in respect of complaint item no 5. In so submitting the respondent relies on Cooper and Hegarty [2013] WASAT 82 (Cooper).
34 In Cooper the applicant had failed to give any notice of proposed complaint prior to the making of a complaint to the Building Commissioner. At invitation of the Building Commissioner a notice of 'proposed' complaint was made some five months after the complaint had been filed with the Building Commissioner and a further notice of 'proposed' complaint was given approximately nine months after lodgement of the complaint. The Tribunal concluded that the intention of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) is to give an intended respondent adequate notice about the complaint and that none of the notices complied with the requirement to give a written notice of proposed complaint at least 14 days before making a complaint under s 5(1) or s 5(2) of the BSCRA Act. Based on this finding and other grounds, which are not relevant to these proceedings, the Tribunal concluded that the Tribunal did not have the jurisdiction to hear the matter.
35 The Tribunal in Cooper gave no consideration to the effect of reg 6(4) of the BSCRA Regulations, which provides:
The Building Commissioner may waive or modify the requirement to comply with subregulation (2) or (3) if the Building Commissioner is satisfied that, in the particular circumstances, the complainant has given adequate notice about the proposed complaint.
36 It is reg 6(2) which provides the requirement for at least 14 days notice of the proposed complaint. Subregulation (3) provides that a complaint under s 5(1) or s 5(2) of the CA Act must be accompanied by proof that notice has been given as required under the regulation.
37 In this matter complaint item 5 as lodged with the Building Commissioner relates to an allegation that the guest room door, on the first floor, fouls the adjacent ensuite door frame. The notice of proposed complaint alleged against the respondent states:
Failure to carry out the remedial works necessary to fix the construction defects in four bathrooms; failed [sic] to bring the house to practical completion, delay, damages compensation.
38 Subsequent to the notice of proposed complaint (9 September 2014), the applicants furnished the respondent with a report from their expert building consultant and a cover of a letter dated 22 September 2014, which was sent by email and registered post.
39 The respondent submits that it should not have to trawl through the expert report to find any amplification of the notice of proposed complaint. It is a voluminous report which apart from raising some specific defects, raises many matters said to require further investigation.
40 Under the legislative scheme the Building Commissioner must make a preliminary decision whether or not to accept a complaint. The Building Commissioner may refuse to accept a complaint if the Building Commissioner is not satisfied that the complainant has taken preliminary action prescribed under s 5(5)(b) of the BSCRA Act. This section simply provides that the regulations may make provision, relevantly, as to any preliminary action required before making a complaint. As outlined above, however, the Building Commissioner is empowered to waive the preliminary action required if satisfied that, in the particular circumstances, the complainant has given adequate notice about the proposed complaint.
41 It is only after a decision has been made whether or not to accept the complaint, and after further investigation and consideration of a report that the Building Commissioner is permitted under s 11 of the BSCRA Act, amongst other things, to refer the complaint to this Tribunal. It follows that the intent of the legislation is that the Building Commissioner must turn his mind to whether or not adequate notice has been given about the proposed complaint. If so, the Building Commissioner may waive full compliance with the preliminary action requirements. It is only when this course has been followed that the matter could progress to the point of a referral to the Tribunal.
42 In this matter there is clearly material upon which the Building Commissioner could form a view whether or not to be satisfied in all the circumstances that there had been a sufficient compliance with the preliminary action requirements. The only inference which can be reasonably drawn is that the Building Commissioner regarded that there had been sufficient compliance because otherwise the matter would not have progressed to the point of the Building Commissioner considering a report and determining to the refer the matter to the Tribunal.
43 On the facts as outlined in Cooper it is more difficult to come to the same conclusion. It appears selfevident from the facts found that there had been no compliance at all with the preliminary action requirements until after the complaint had been lodged. Nevertheless the complaint could only have been referred to the Tribunal if in all the circumstances the Building Commissioner was satisfied that the complainant had given adequate notice about the proposed complaint. It cannot be discerned from the reported decision whether there had been any other communications with the respondent prior to the making of the complaint.
44 Insofar as the Cooper decision stands as authority that the Tribunal does not have jurisdiction if there has been non-compliance with the preliminary action requirements, I respectfully decline to follow the decision. As outlined above, the decision should be followed unless considered to be clearly wrong: see Drake and Deegan above. The decision makes no reference to the Building Commissioner's power to waive the preliminary action requirements. Whether to waive or not is a power granted only to the Building Commissioner, but unless the preliminary action required is waived or modified having regard to all the circumstances, the matter can simply not reach the Tribunal unless there is a failure on the part of the Building Commissioner to exercise jurisdiction. If that is the case, questions will arise as to whether the only appropriate remedy is by way of prerogative relief granted by the Supreme Court. None of this was considered in Cooper, which on the facts outlined might well support the conclusion that the Building Commissioner failed to exercise his jurisdiction to decide whether or not to waive or modify the requirements. On the other hand, the fact that the Building Commissioner invited subsequent notices to be given suggests that the Building Commissioner intended to modify the requirements, although there may be a question as to whether the Building Commissioner has power to go so far as he did, and whether that could constitute a modification or not. These are questions to be examined in an appropriate case but I do not consider that Cooper is correctly decided in circumstances in which there has been no consideration of the Building Commissioner's power to waive or modify the requirements, and no findings about whether the Building Commissioner did so, and if not, the effect thereof.
45 On the facts of this case there is no basis on which one could possibly infer that the Building Commissioner had not waived or modified the preliminary action requirements.
46 I accordingly find that the Tribunal has jurisdiction to deal with complaint item 5.
Are the proceedings misconceived or an abuse of process?
47 Having regard to the above findings, I conclude that proceeding with the complaint before the Tribunal is misconceived in circumstances in which s 8 of the CA Act requires in peremptory terms that the parties to a dispute which is the subject of an arbitration agreement must, in the circumstances outlined, refer the parties to arbitration.
48 Further, the applicants are participating in the arbitration proceedings insofar as it relates to contractual complaints raised by them. The Tribunal does not have jurisdiction to deal with these contractual complaints because the contract value exceeds the upper limit imposed under the Home Building Contracts Act 1991 (WA) of $750,000. It is inappropriate, and an abuse of process, to litigate before two different bodies when the one body, in this case the arbitrator, has jurisdiction to deal with all matters in controversy between the parties.
49 The arbitrator already has before him the matters in dispute, save that the issue in relation to complaint item 5 was not raised in the notice of dispute referring the matter to arbitration (and is therefore not before the arbitrator) and the issues relating to workmanship are before the arbitrator in a form different to the statutory complaint before the Tribunal. It was for this reason that I considered it appropriate to make an order referring the parties to arbitration so that there can be no doubt that the entire controversy is before the arbitrator.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1991) 100 ALR 361
(1996) 39 NSWLR 160