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[2017] WASAT 73
State Administrative Tribunal (WA)
2017-05-17
Original judgment source is linked above.
CITATION : SHAMI and TEO [2017] WASAT 73
HEARD : 12 TO 13 OCTOBER 2016 AND 2 FEBRUARY 2017
Proper construction of phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of building remedy order made by Building Commissioner Whether person who did tiling work as part of completion of dwelling by an owner was the person who 'carried out' that tiling work
Building Act 2011 (WA), s 51(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 4, reg 5, reg 5A
In response to a complaint made by the first respondent, the Building Commissioner made a building remedy order against the applicant in respect of tiling work done by the applicant.
The tiling work was part of the construction of a new dwelling in circumstances where the second respondent was the registered builder who held the building licence, but only constructed the dwelling to lockup stage. The owner had arranged for all the building work after that stage to complete the construction of the dwelling and subsequently sold the dwelling to the first respondent.
The Tribunal decided to determine, as a preliminary issue, whether either the applicant or the second respondent had carried out a regulated building service for the purposes of s 37(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of the tiling and associated waterproofing work which was the subject of the complaint.
To determine the preliminary issue the Tribunal needed to decide the proper construction of the phrase 'carried out' in s 36(1) and s 37(1) of the Act.
The Tribunal decided that the proper construction of the phrase 'carried out' for the purposes of s 36(1), s 37(1) and s 38(1) of the Act (which all contain that phrase) is that it is the entirety of the building work which is carried out (which could be described as 'the building project') of which the work the subject of a building services complaint forms part, not the components of the building project.
Accordingly, the Tribunal decided that it was the previous owner of the dwelling in this case who had carried out the tiling work as part of the completion of the dwelling after it reached lockup. Therefore, neither the applicant nor the second respondent had carried out the tiling work for the purposes of s 37(1) of the Act and the building remedy order made by the Building Commissioner against the applicant was set aside.
As part of its consideration of the matter the Tribunal commented on the circumstances in which an ownerbuilder may have a building remedy order made against them under s 37(1) or s 38(1) of the Act and the limited circumstances in which a subcontractor or other person may have a building remedy order made against them, where they were the only person who carried out 'home building work' for an owner which was not part of a bigger building project.
Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1986)
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982)
Voce v Watson (1989) 89 ACTR 1
1 On 20 June 2016, pursuant to s 37(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), the Building Commissioner made Building Remedy Order (Revised) No 127 of 2016 (Building Remedy Order) which requires the applicant, Mr Basel Shami to remedy tiling work which was carried out at 6 Central Road, Rossmoyne, Western Australia (Dwelling) in 2011.
2 The Building Remedy Order was made in respect of a complaint made to the Building Commissioner by the first respondent, Mr Chiang Howe Teo regarding faulty tiling and waterproofing in four bathrooms/ensuites, two powder rooms, the laundry and a balcony of theټDwelling.
3 Mr Teo's complaint was initially against the second respondent, Mr Leonardo Farinola.
4 Mr Farinola held the building licence for the construction of the Dwelling (issued on 25 March 2010) and had a contract with the owner, Mr John Parkin regarding the construction of the Dwelling for Mr Parkin (dated 29 March 2010). The construction of the Dwelling commenced sometime after the end of March 2010 and was completed in or about October 2011, with Mr Parkin and his wife, Ms Zoey Parkin moving into the Dwelling at that time.
5 Mr Teo subsequently added Mr Shami as an additional respondent to his complaint after the Building Commission invited him to do so, in view of Mr Farinola's submission to the Building Commission that he was only responsible for the construction of the Dwelling to lockup stage, which did not include wall and floor tiling.
6 Mr Teo purchased the Dwelling from Mr Parkin in June 2015.
7 Mr Shami has applied to the Tribunal for a review of the Building Remedy Order, pursuant to s 57(1)(c) of the BSCRA Act, on the following grounds:
8 When the Tribunal reviews a building remedy order under s 57(1)(c) of the BSCRA Act it has the power under s 29(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to affirm the order, vary the order, or set aside the order.
9 Mr Shami is seeking that the Building Remedy Order be set aside and that no order be made against him. Mr Teo is seeking an order that Mr Shami pay him a considerable amount of money (in excess of $60,000) as the cost of remedying the faulty work. Mr Farinola contends that he had nothing to do with the faulty work and that no order should be made against him.
10 Under s 27 of the SAT Act the review is by way of a hearing de novo. It is not confined to the matters which were before the Building Commissioner and it may involve the consideration of new material.
11 The final hearing of the review was held on 12 and 13 October 2016 (October 2016 hearing).
12 It is not in contention that the work which is the subject of Mr Teo's complaint is faulty and needs to be remedied.
13 However, it became apparent late on the second day of the October 2016 hearing that the amount of money for which Mr Teo is seeking an order against Mr Shami is not based on the extent of the remedial work required by the Building Remedy Order and that it will be necessary for a number of additional witnesses to be called to give evidence regarding the extent of the remedial work which is required and the cost of performing that work.
14 At that stage, Mr Shami suggested that the Tribunal determine who is responsible for the faulty work before it determines the extent of the remedial work required, so that if he is found to not be responsible then he will not have to be involved in the remainder of the proceeding. Mr Teo and Mr Farinola agreed with that suggestion.
15 The Tribunal decided to determine the following issue as a preliminary issue:
Did either Mr Shami or Mr Farinola carry out a regulated building service for the purposes of the BSCRA Act in respect of the tiling and waterproofing which is the subject of the complaint made by Mr Teo to the Building Commission in this matter?
16 The parties were given the opportunity to file written submissions and the decision regarding the preliminary issue was reserved.
17 The Tribunal explained to the parties that for a building remedy order to be made against a person under the BSCRA Act, that person must have carried out a regulated building service for the purposes of the Act. The Tribunal pointed out that it is possible that it might find that either Mr Shami or Mr Farinola had done so in respect of the tiling and waterproofing, or that neither of them had done so.
18 Subsequently, Mr Teo sought to introduce some further evidence regarding a particular issue, namely whether or not there were hobs around the showers when Mr Shami did his tiling work. The order which reserved the decision was vacated and the preliminary issue was listed for a further hearing to enable each party to call witnesses and submit further documentary evidence regarding that issue. The further hearing was held on 2 February 2017 (February 2017 hearing).
19 A hearing book was prepared for both the October 2016 hearing and the February 2017 hearing.
20 At the October 2016 hearing a bundle of documents submitted by Mr Farinola was taken into evidence.
21 At the October 2016 hearing oral evidence was given by Mr Hamdi Tarawneh (a tiler who had worked for Mr Shami), Ms Heba Tarawneh (a personal assistant to Mr Shami), Mr Shami, Mr Jason An (a tiler who had worked for Mr Shami), Mr Farinola, Mr Parkin and Mr Neil Rimmer of Giddyup Tiling and Renovations (who had provided a quote to Mr Teo to carry out remedial works).
22 At the February 2017 hearing photographs submitted by Mr Teo were taken into evidence.
23 At the February 2017 hearing oral evidence was given by Mr John Henry Morgan of Forensic Instinct Pty Ltd (a digital forensics consultant, who had analysed a digital photograph submitted by Mr Teo), Mr Farinola, Ms Parkin (who had taken the digital photograph which was analysed by Mr Morgan) and Mr Parkin.
24 Section 5(1) of the BSCRA Act provides that a person may make a complaint to the Building Commissioner about a 'regulated building service' not being carried out in a proper and proficient manner or being faulty or unsatisfactory (a building service complaint).
25 'Regulated building service' is defined in s 3 of the BSCRA Act as meaning any of following types of service or work:
26 Regulation 5A of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) prescribes two categories of work for the purpose of the definition of 'regulated building service':
27 Regulation 5 of the BSCRA Regulations imposes the limitation that only a person whose interests are being or have been adversely affected by the carrying out of a regulated building service may make a building service complaint. That includes a person who purchases a building after it is constructed or a regulated building service has been carried out in respect of it.
28 Section 37(1) of the BSCRA Act provides that if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may make a 'building remedy order'.
29 Section 38(1) of the BSCRA Act gives the Tribunal an equivalent power to make a 'building remedy order' in respect of a building service complaint which the Building Commissioner refers to the Tribunal to deal with pursuant to s 11(1)(d) of the Act.
30 Under s 36(1) of the BSCRA Act, a 'building remedy order' is an order that a person who carried out a regulated building service remedy the building service, or pay to an aggrieved person either the costs of remedying the building service or a sum of money to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work (a building remedy order).
31 To determine the preliminary issue the Tribunal must firstly decide whether either Mr Shami or Mr Farinola 'carried out' the tiling and waterproofing work within the meaning of that term in s 37(1) of the BSCRA Act.
32 If the Tribunal decides that one of them did so, the Tribunal must then decide whether that work was a 'regulated building service' for the purposes of the BSCRA Act.
33 However, if the Tribunal decides that neither of them did so, then a building remedy order cannot be made against either of them and the Building Remedy Order made by the Building Commissioner against Mr Shami will be set aside.
Who 'carried out' the tiling and waterproofing work?
34 It is common ground that Mr Shami did tiling work in the Dwelling, although he says that he did not do the waterproofing of the areas he tiled and that Mr Parkin had done the waterproofing. Mr Shami also says that the tiling of the floors where there are showers was subsequently changed by someone other than him, with the removal of the shower hobs which had been in place when he did his tiling work.
35 However, the fact that Mr Shami did tiling work does not necessarily mean that he 'carried out' that tiling work for the purposes of s 36(1) and s 37(1) of the BSCRA Act. That depends on the proper construction of the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act.
36 Also, although Mr Farinola did not himself do any tiling work, likewise that does not necessarily mean that he did not 'carry out' the tiling work for the purposes of s 36(1) and s 37(1) of the BSCRA Act.
37 In Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237, Mitchell J at [99] [100] stated the task of statutory construction to be as follows:
... The proper construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.
Those rules require primary attention to be directed to the text of the relevant provisions. There must be regard to the language of the statute viewed as a whole, considered in its context. An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions). Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so.
(Footnotes omitted)
38 The Tribunal will undertake the task of construing the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act by considering the text of those subsections in the context of the Act viewed as a whole and its purpose, noting that a construction that would promote that purpose is to be preferred to a construction that would not do so.
What is the proper construction of the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act?
39 As has already been stated, the provisions of s 37(1) and s 38(1) of the BSCRA Act are similar. They give the Building Commissioner and the Tribunal respectively the power to make a building remedy order in accordance with s 36(1) of the Act if the regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. The words 'carried out' appear in each of those subsections.
40 In Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction), Mitchell J, in the course of considering the proper construction of s 38(1) of the BSCRA Act, referred to the case of Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1986) (Bradshaw) and made the following relevant comments:
... a builder is responsible to the building owner for faulty workmanship carried out by subcontractors ... I agree with what Pidgeon J had to say thereon in Shaw v McLeod. (citation omitted)
... It would, in my view, be an erosion of what the legislature intended by s 12A for a builder to escape the jurisdiction of the Board by submitting that the work complained of was not within the builder's specialty and had been done by a specialized subcontractor. ...
41 As referred to above, the operation of s 12A of the Builders' Registration Act was also considered in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982) (Shaw), which was an appeal from the decision of a Magistrate that the appellant had failed to comply with an order made under s 12A. One of the grounds of appeal was that the appellant was not the person 'who carried out the building work' within the meaning of that term in s 12A. Pidgeon J in Shaw, at 11, said:
[The Magistrate] considered the charge was validly brought against the accused and gave the following as his reasons:
'I consider that in referring to the person who "carried out the building work" s12A(1) of the [Builders' Registration Act] is referring specifically to the person responsible for the building of the edifice whatever it may be. I do not consider that it is the specific bricklayer, carpenter, plumber or such other tradesmen as actually did the work who is that person ...
My reading of the [Builders' Registration Act] as a whole leads me to the same conclusion as the learned Magistrate and that the person referred to as being the person 'who carried out the building work' would not be the subcontractors engaged. The person who physically carries out the work may not even be the subcontractors and could well be a bricklayer on wages or a builder's labourer. It could not have been the intention of the [Builders' Registration Act] that the [order] goes to such person. I consider that the words 'building work' in s.12A is the whole work the subject of the contract which normally would be the work in respect of which the permit issues or what his Worship describes as 'the edifice'[.]
42 The case of Voce v Watson (1989) 89 ACTR 1 (Voce) dealt with the proper construction of a regulation which imposed a duty on any person who 'carries out any building work' to take safety measures to prevent injury to persons engaged in the building works. Kelly J, at 7, referred to the intended meaning of the phrase 'person who carries out' as being:
... a person who, in effect, has the role of ensuring that the necessary building work is performed normally to its completion either by himself or by his servants or agents. It does not ... mean that every person who is actually performing any of the building work in question 'carries out' such building work[.]
43 Then Kelly J, went on to state in Voce, at 9:
When one turns to the meaning given the phrase 'carry out' in the Shorter Oxford Dictionary one finds that the relevant meaning is 'to conduct to conclusion'. This meaning may not, of course, be entirely applicable in respect of a partly completed building, but obviously in completing such a building the person concerned with the building work is carrying out the necessary building work from the beginning of the works upon which he is engaged.
44 The meaning given to the phrase 'carry out' in the Macquarie Dictionary Online (2017) is 'to accomplish or complete (a plan, scheme, etc.)'. That is similar to the meaning given to the phrase in the Shorter Oxford Dictionary referred to by Kelly J in Voce.
45 The Tribunal agrees with the view expressed by Mitchell J in Diploma Construction that the similarity between the language of s 12A of the Builders' Registration Act and s 38(1) of the BSCRA Act (and hence also s 37(1) of the BSCRA Act), strongly suggests that s 37(1) and s 38(1) are intended to operate in a similar manner to that established for s 12A.
46 Therefore, in construing the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act, the Tribunal adopts the approach taken by Wallace and Pidgeon JJ in Bradshaw and by Pidgeon J in Shaw regarding the construction of the phrase 'carried out' in s 12A of the Builders' Registration Act and also the approach taken by Kelly J in Voce regarding the construction of the phrase 'carries out' in the regulation considered in that case.
47 Accordingly, the Tribunal has decided that the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the BSCRA Act is that it means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. That entirety of work could be described as 'the building project'. In the case of the construction of an entire building the building project will be the construction of the 'edifice' referred to in Shaw. In other cases the building project could be the completion of a building after it has reached a certain stage, or the alteration, improvement or repair of a building.
48 For the purposes of s 36(1), s 37(1) and s 38(1) of the BSCRA Act, it is the entirety of the work of the building project which is carried out, not the components of it. What follows from that construction is that a building remedy order can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. It does not matter whether the work was done personally by that person or by other persons whom they arranged to perform the various components of the overall work. However, it needs to be noted that for a building remedy order to be made against that person the building project must be a 'regulated building service' as defined in s 3 of the BSCRA Act.
49 Where an owner of a building undertakes a building project, whatever the scope of that project may be, they put themself in the same position as a builder (or to be more precise, a registered building service provider if a building permit is required for the project under the Building Act) or a contractor (if a building permit is not required and the owner chooses a contractor who is not a registered building service provider) would be if they were engaged to carry out the entire project.
50 The comment made by Wallace J in Bradshaw that a builder is responsible to the building owner for faulty workmanship carried out by subcontractors, and the comment made by Pidgeon J in Bradshaw that it would be an erosion of what the legislature intended for a builder to escape the jurisdiction of s 12A of the Builders' Registration Act by claiming that the work complained of was not within the builder's specialty (or put another way, expertise), apply equally to an owner who undertakes a project themself and arranges for subcontractors or other persons to perform parts of the work. Such an owner will fall within the provisions of s 37 or s 38 of the BSCRA Act, as the case may be, if the building project is a regulated building service as defined in s 3 of the Act and, if that is the case then a building remedy order may be made against that owner under s 36 of the Act in favour of a subsequent owner of the building.
51 An ownerbuilder may have a building remedy order made against them under s 37(1) or s 38(1) of the BSCRA Act in any of the following circumstances:
52 If the building work does not fall into any of those categories then a building remedy order cannot be made against an ownerbuilder under s 37(1) or s 38(1) of the BSCRA Act because the building work will not be a 'regulated building service'.
Does this construction promote the purpose of the BSCRA Act?
53 Viewing the BSCRA Act as a whole the Tribunal notes the following:
54 The BSCRA Act clearly has a focus on 'building services' (as distinct from 'regulated building services') and 'registered building service providers' and 'approved ownerbuilders'. The phrase 'building service' appears in the long title and in s 86 and s 88 of the Act. Registered building service providers and approved ownerbuilders can be the subject of a disciplinary complaint and are also referred to in s 86 of the Act, in the context of the Building Commissioner's function of providing advice to the public on avenues available for grievances against them.
55 A building service complaint can be made against a registered building service provider or an approved ownerbuilder under the Building Services Registration Act in respect of a building service carried out by those persons. A building service complaint can also be made against someone who was a registered builder or who held an ownerbuilder licence under the Builders' Registration Act before it was repealed. A building service complaint can also be made against someone who has carried out 'unauthorised work', such as work for which a building permit should have been obtained, but was not obtained.
56 There is a clear emphasis in the BSCRA Act on persons who are registered or approved under the Building Services Registration Act carrying out building services and being liable to having a building remedy order made against them if they do not carry out such building services in a proper and proficient manner or if the building services are faulty or unsatisfactory. Correspondingly, a building remedy order can be made against a person who should have been, but was not, registered or approved under the Building Services Registration Act in respect of a building service carried out by them. To become a registered building service provider or an approved ownerbuilder under the provisions of the Building Services Registration Act, a person must satisfy the Building Commissioner that they have the necessary knowledge and skills to be able to carry out building work competently. In the Tribunal's view, the purpose of the BSCRA Act is primarily to have a system to deal with complaints against persons who are, or should be, registered or approved under the Building Services Registration Act.
57 As Mitchell J noted in Diploma Construction at [55], '[r]egard may be had to the explanatory memorandum to identify the purpose of the provisions, and a construction which promotes that purpose preferred, pursuant to s 18 and s 19 of the Interpretation Act 1984 (WA)'. The Explanatory Memorandum which accompanied the Building Services (Complaint Resolution and Administration Bill) 2010 (WA) when it was introduced into Parliament stated that the term 'regulated building service' would 'cover the work of all registered or licensed practitioners, approved ownerbuilders and other providers who are regulated through legislation administered by the Building Commission'. That statement is consistent with the purpose identified above.
58 The construction of the phrase 'carried out' arrived at by the Tribunal above will promote the purpose of the BSCRA Act.
59 At first glance it is not clear why paragraph (b) has been included in the definition of 'regulated building service' in the BSCRA Act. It is based on the definition of 'home building work' in the Home Building Contracts Act. However it is broader in scope than the building work covered by the Home Building Contracts Act. It does not contain all of the limitations contained in the definition of 'home building work contract' in that Act, in particular the monetary limits and the requirement that the person who carries out the work must do so as part of a business.
60 If 'carried out' is construed to mean the completion of an entire project then paragraph (b) of the definition of 'regulated building service' will be confined to building work carried out solely by one person for an owner in circumstances where no other building work is being done in conjunction with that work. That construction is consistent with the purpose of the BSCRA Act to make the person who is responsible for the overall building project the person against whom a building remedy order may be made, with the consequence that such person (whether they are a registered building service provider, an approved ownerbuilder in the case of building work which requires a building permit, an owner who arranges their own building or renovation project or a contractor who solely carries out the work in such a project in the case of work which does not require a building permit) must pursue any claim against a subcontractor for faulty work performed by that subcontractor through the courts rather than under the BSCRA Act.
61 It is not consistent with the purpose of the BSCRA Act that a person who purchases a building which suffers from faulty or unsatisfactory building work arising from a building project which was carried out prior to their purchase of the building should have to make separate complaints against a number of persons who did the separate components of the building work. The affected person should be entitled to make a complaint against the person who was responsible for the entire project.
Did either Mr Shami or Mr Farinola carry out the tiling and waterproofing work for the purposes of the BSCRA Act?
62 The Tribunal has decided that Mr Parkin was the person who had the role of ensuring that the construction of the Dwelling was completed after it was at lockup stage (Completion Project).
63 Both Mr Farinola and Mr Parkin stated in their evidence that Mr Farinola only constructed the Dwelling to lockup. There was no other evidence to contradict that and the Tribunal finds that to be the case.
64 Mr Parkin stated in his evidence that he organised all the trades and building work after lockup (T:78; 13.10.16).
65 Mr Parkin also stated in his evidence that he arranged for the following work to be done as part of the Completion Project:
66 As part of the Completion Project, Mr Parkin did some work himself:
67 Mr Shami was engaged by Mr Parkin as a subcontractor to do tiling work and Mr Shami, in turn, employed Mr Tarawneh and Mr An to assist him with that tiling work. Mr Parkin supplied the materials for the tiling, namely the tiles, the glue and the grout (T:58; 02.02.17).
68 As stated by Pidgeon J in Shaw at 11, the person who carried out building work of the Completion Project was not the subcontractors engaged by Mr Parkin (such as Mr Shami, the cabinet maker, the electrician or the installer of the shower screens), nor other persons who physically carried out the work (such as Ms Parkin who did painting work). It was Mr Parkin who carried out the whole work required for the Completion Project.
69 Therefore, for the purposes of s 37(1) of the BSCRA Act, Mr Parkin was the person who carried out the tiling and waterproofing work as part of the work which comprised the Completion Project. It is not necessary as part of this proceeding to decide whether that work was a regulated building service, because Mr Parkin is not a party to the proceeding.
70 It follows that neither Mr Shami nor Mr Farinola was the person who carried out the tiling and waterproofing work for the purposes of s 37(1) of the BSCRA Act and therefore a building remedy order should not be made against either of them in respect of the tiling and waterproofing work.
71 Therefore, the Tribunal has determined the preliminary issue in the negative. Neither Mr Shami nor Mr Farinola carried out a regulated building service for the purposes of the BSCRA Act in respect of the tiling and waterproofing which is the subject of the complaint by Mr Teo to the Building Commission in this matter.
72 Accordingly, the Building Remedy Order made by the Building Commissioner against Mr Shami should be set aside.
73 The question of whether or not there were hobs on the showers when Mr Shami did his tiling work was hotly contested. However, due to the conclusion of the Tribunal that Mr Shami was not the person who carried out the tiling work for the purposes of s 37(1) of the BSCRA Act the Tribunal does not need to decide that question.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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