BETWEEN : THE OWNERS OF 38 - 40 ONSLOW ROAD, SHENTON PARK & ANOR

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Determination of preliminary issue - Whether Tribunal has power to dismiss if claim commenced out of time under s 47 of State Administrative Tribunal Act 2004 (WA) as being misconceived - Whether claims made out of time

Builders Registration Act 1939 (WA), s 12A, s 27

Building Act 2011 (WA), s 66, Pt 5, Div 1

Building Regulations 2012 (WA), cl 2, Sch 4

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 6, s 7, s 7(3), s 8, s 9, s 10, s 11, s 11(1)(d), s 13, s 36, s 37, s 38, s 38(4), s 41, s 42, s 43, s 43(4), s 51, s 55, s 57, s 57(2), s 58, s 58(6), s 68, s 71, s 85, s 86

Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 7

Interpretation Act 1984 (WA), s 18, s 19

State Administrative Tribunal Act 2004 (WA), s 3, s 5, s 6, s 42(1), s 47, s 92, Pt 3, Div 3, Pt 4, Div 1, Div 2

State Administrative Tribunal Rules 2004 (WA), r 10

Strata Titles Act 1985 (WA)

Application for dismissal granted in respect of part of the proceedings

The respondent applied for an order that two separate complaints made by the applicants under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) be dismissed, in the event that formulated preliminary issues be determined in its favour. During the course of the parties endeavouring to agree a statement of facts, agreement was reached that the complaint made by the second applicant would need to proceed to a final hearing and would not be the subject of the application for dismissal and that if the preliminary issues were determined in favour of the respondent, 102 claim items advanced by the first applicant would be dismissed.

The respondent contended that the Building Commissioner had failed to determine whether or not the complaints were made out of time and that therefore, the referral of the complaints to the Tribunal was unlawful. It was submitted that, notwithstanding the limited powers granted to the Tribunal under s 38 of the Building Services (Complaint Resolution and Administration) Act 2011, the Tribunal retained the power under s 47 of the State Administrative Tribunal Act 2004 (WA) to dismiss a complaint, or part of a complaint, which was not commenced within the statutory time limit.

The Tribunal found that there were competing constructions of the legislation which were open. On one construction, the Building Commissioner was required to make a final decision about whether or not a complaint was made out of time, the decision was intended to be final, and the Tribunal would have no power other than that under s 38 to either uphold the complaint found to be justified and issue a building remedy order, or otherwise dismiss the complaint. The other construction, and which the Tribunal found was the proper construction to adopt, was close to that contended for by the respondent but differed in material respects. The Tribunal found that the scheme of the legislation was such that it was not intended that the Building Commissioner determine complex questions of law or disputed facts which required proper forensic testing. On this construction, if the material before the Building Commissioner established that a complaint was out of time, the Building Commissioner was bound to dismiss the complaint. If the Building Commissioner could not come to a positive finding that the complaint was out of time, the matter could be referred to the Tribunal for determination. It was therefore not unlawful for a matter to be referred to the Tribunal where the Building Commissioner was unable to make the necessary positive finding that the complaint was out of time.

The Tribunal found that the resondent was correct in asserting that power was retained under s 47 of the State Administrative Tribunal Act 2004 to dismiss a complaint as being misconceived, if it was made outside the statutory time limit.

The respondent had raised whether the Tribunal had power to extend the statutory time limit. The Tribunal found it was not necessary to determine this matter because even if it had the power to extend time in this manner, there was no evidence before the Tribunal upon which it could properly exercise a discretion.

The Tribunal concluded on the facts that the 102 identified complaints were made out of time, that the Building Commissioner was unable on the material before him to determine whether the complaints, or any part of them were out of time because of the difficulty of determining whether any of the complaints were related to previous remedy orders made by the Building Disputes Tribunal. As the first preliminary issue had been drafted in terms which mandated a finding that the Building Commissioner had failed to determine whether or not the complaint was made out of time, the Tribunal declined to determine that preliminary issue. The Tribunal determined the remaining preliminary issue in favour of the respondent by finding that part of the first applicant's complaint, being the 102 identified items of complaint, had been made out of time and indicated that in the context of an application for dismissal, it was able to apply its construction of the legislation. The Tribunal concluded that the complaint items which were out of time should be dismissed.

Asterleigh Pty Ltd as Trustee for the Lahdo Family Trust and Volley Investments Pty Ltd [2012] WASAT 201

De Campo and J­Corp Pty Ltd T/As Oswald Homes [2013] WASAT 143

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Houssein v Under Secretary, Department Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88

Jackamarra v Krakouer (1988) 195 CLR 516

Laurent and Commissioner of Police [2009] WASAT 254

O'Connor and Town of Victoria Park [2005] WASAT 161

R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1; Sparks v Bellotti (1981) WAR 65

The Owners of Strata Plan 41133 and Lendlease Project Management [2014] WASAT 6

Western Australian Planning Commission v Dungey [2010] WASC 52

1 The applicants, the Owners of 38 ­ 40 Onslow Road, Shenton Park (Strata Company) and Dr Jonathon Foster (Dr Foster), made separate complaints to the Building Commissioner, pursuant to s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), in respect of alleged faulty or unsatisfactory building work or work not carried out in a proper and proficient manner by C&I Constructions Pty Ltd (respondent). The complaints were referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act.

2 The respondent contends that the complaints were lodged out of time and that the Building Commissioner failed to make a decision on that issue and therefore to exercise jurisdiction under the BSCRA Act. Consequently, the respondent alleges that the referral of the complaints by the Building Commissioner to the Tribunal is unlawful.

3 The respondent submits that although of s 38 of the BSCRA Act does not provide power to dismiss, the Tribunal has power to do so under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It is submitted that as the referral is unlawful the complaint should be dismissed as being misconceived.

4 The respondent has applied for the proceedings to be dismissed in the event that formulated preliminary issues be determined in its favour. The preliminary issues, after amendment on the day of the hearing, are expressed in the following terms:

There be a determination of preliminary issues whether:

(a) the Tribunal has jurisdiction to determine a complaint referred to it under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in circumstances where the Building Commissioner has failed to determine whether or not the complaint was made out of time;

(b) either or both applicant's complaints or any part of them have been made out of time.

5 During the course of preparation for the hearing and at a time when the Strata Company had legal representation, agreement was reached to the effect that a positive determination of the preliminary issues in favour of the respondent would result in 102 complaint items made by the Strata Company being dismissed. The Strata Company agrees that it will not proceed with 32 identified complaint items. The respondent and the Strata Company agree that there are 16 complaint items advanced by the Strata Company which potentially relate to previous complaints or remedy orders made by the former Building Disputes Tribunal which need to proceed to a substantive hearing.

6 Dr Foster and the respondent remain in dispute as to whether or not the complaint advanced by him comprised new matters, which, on the respondent's contentions, would fall to be dismissed, or whether the matters potentially relate to previous complaints or remedy orders made by the former Building Disputes Tribunal. In the circumstances, it is agreed that Dr Foster's complaint be held over for determination at a substantive hearing. The substantive hearing will also have to address either all the 118 complaint items still pursued by the Strata Company, or if the respondent succeeds in relation to the determination of the preliminary issues, the 16 complaint items which might potentially relate to previous complaints or remedy orders. In short, if the respondent succeeds on this application, an order is sought dismissing the identified 102 complaint items characterised as new complaints which are alleged to be made out of time.

7 The parties have agreed a statement of facts in relation to the preliminary issues. The applicants have also filed a document headed 'Statement of facts which are not agreed' identifying the factual matters which they expressly dispute. The effect of the facts not agreed is to put into contention whether a notice of practical completion was delivered, as asserted by the respondent, and whether practical completion has ever been achieved as a result of the failure of the respondent to obtain a certificate of classification from the local authority. The respondent relies on the witness statement of Mr Clive Raymond Hartz to establish service of the notice of practical completion on 5 January 2006. Mr Hartz is the sole director of Commercial Properties Pty Ltd, the company which together with him personally owned the land on which the building works were carried out and contracted with the respondent to carry out the works. The respondent submits that practical completion is deemed to have been achieved by reason of the then owners of the property not responding to the notice of practical completion by giving notice in writing of any matters or things which required to be done for practical completion to be achieved.

8 At the hearing, Dr Foster, who represented himself and the Strata Company, declined the opportunity to cross­examine Mr Hartz. The respondent has filed initial submissions running into some 28 pages in length and supplementary submissions of eight pages in length. The applicants have filed submissions which reassert the matters raised in the statement of facts which are not agreed, and are otherwise mainly responsive to the submissions made on behalf of the respondent. The various issues raised are subsumed within the issues set out under the following headings of issues to be determined.

9 Consideration has been given to the entirety of the submissions filed by the parties. The outcome of the application to dismiss based upon the preliminary issues will be determined by resolution of the following issues.

1. Under the applicable statutory scheme, must the Building Commissioner determine whether or not a complaint or part of a complaint has been lodged out of time?
2. Was the Strata Company's complaint, insofar as it relates to the 102 identified new claims, lodged out of time?
3. If any part of the Strata Company's complaint was lodged out of time, does the Tribunal have power under the applicable statutory scheme established by the BSCRA Act and the SAT Act to dismiss that part of the complaint on that ground?
4. If the Tribunal has the power to dismiss if part of a complaint is out of time, should that part of the claim be dismissed?

10 In the consideration of the above issues, the facts stated have been taken from the statement of agreed facts, unless otherwise stated, or indicated by the context. It is convenient to deal with issues 1) and 3) together.

Issues 1 and 3: Must the Building Commissioner determine whether a complaint, or part of it, is lodged out of time, and does the Tribunal have power to dismiss a proceeding before it on that ground?

11 All references to sections or other parts of legislation hereafter are references to sections or parts of the BSCRA Act unless the context indicates otherwise.

12 Section 5 permits the making of complaints about a regulated building service or home building work contract (HBWC) matter in the following terms.

1. Making a complaint about a building service or home building work contract matter

(1) Subject to the regulations, 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.

(2) An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5.

(a) under subsection (1) irrespective of whether the regulated building service was carried out before or after the coming into operation of this Act; and

(i) the matter complained about occurred before or after the coming into operation of this Act; or

(ii) the home building work contract to which the complaint relates was entered into before or after the coming into operation of this Act.

13 This matter concerns a regulated building service, not a HBWC matter, although it will be relevant later to consider the powers granted the Tribunal when either a building service complaint or a HBWC contract matter is referred to it. Relevant to this matter, a regulated building service is defined as follows under s 3:

regulated building service means any of the following -

(a) a building service carried out by a registered building service provider or an approved owner­builder;

...

14 A building service complaint, which is defined under s 3 to mean a complaint made under s 5(1), must be made within a limited time frame. Section 6 provides as follows:

(1) A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.

(2) For the purposes of subsection (1) a regulated building service is taken to be completed ­

(a) if the criteria for determining the date of completion for that building service are prescribed - on the date determined in accordance with the criteria;

(b) if paragraph (a) does not apply ­ on the date on which the building service was last carried out.

15 The criteria for determining the date of completion of the building service are prescribed by the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regs) by reg 7 as follows:

1. Criteria for determining date of completion of regulated building service

For the purposes of section 6(1) of the Act the following criteria apply when determining the date of completion of a regulated building service -

(a) in the case of building work or demolition work carried out under a building permit or a demolition permit -

(i) if, under the Building Act 2011 section 34(1), the responsible person in relation to the permit gives notice of cessation to act as the responsible person to a relevant permit authority, the work, in relation to that person, is completed when the notice is given;

(ii) otherwise, the work is completed when a notice of completion of the work is given to a relevant permit authority under the Building Act 2011 section 33(1);

(b) in the case of a regulated building service that -

(i) is not carried out under a building permit or demolition permit; and

(ii) is carried out under a home building work contract or other contract that provides for a date of practical completion; and

the building service is completed on the date practical completion is achieved.

16 After receiving a complaint under s 5, the Building Commissioner must make a preliminary decision whether to accept the complaint, or whether to refuse to accept it. Section 7 provides as follows:

1. Preliminary decision by Building Commissioner

(1) After receiving a complaint under section 5 the Building Commissioner must decide whether, and to what extent -

(2) The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.

(3) The Building Commissioner may refuse to accept a complaint under subsection (1) if -

(a) the complaint is not made in accordance with this Act; or

(b) the Building Commissioner is not satisfied that the complainant has taken preliminary action prescribed under section 5(5)(b); or

(c) the complaint is made out of time as referred to in section 6; or

(d) in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance; or

(e) the matter complained about is the subject of another complaint under this Act; or

(f) an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter complained about; or

(g) the matter complained about has been the subject of a previous complaint to the Building Commissioner that has been refused or in respect of which the Building Commissioner has made a decision under section 11(1)(a).

(4) Except as provided in subsection (5), if an issue raised in a complaint has already been dealt with by the Building Commissioner or a complaint about the issue has already been referred to the State Administrative Tribunal under this Act, the Building Commissioner may refuse to accept the complaint to the extent to which it relates to that issue.

17 Section 8 provides a mechanism for the Building Commissioner to obtain further details about the complaint and permits the Building Commissioner to refuse to accept a complaint if the person making the complaint does not comply with a request for further details within a reasonable time.

18 If the Building Commissioner decides to refuse to accept the complaint, that decision is reviewable by the Tribunal, subject to leave being first granted to review the decision (s 57(2)).

19 Once the Building Commissioner makes the preliminary decision to accept a building service complaint (or a HBWC complaint), the Building Commissioner must cause an investigation of the complaint to be carried out by an authorised person.

20 Section 68 provides power to an authorised person, for the purposes of carrying out an investigation under s 9, to direct a person to give such information as the authorised person requires and to answer questions in relation to the matter under investigation. It is an offence to fail to comply with such a direction without reasonable excuse and for which a penalty of up to $10,000 may be imposed (s 71).

21 Section 10 provides that an authorised person must prepare a report on an investigation carried out under s 9, and that the report must be given to the Building Commissioner. The authorised person may include in the report recommendations as to the manner in which the complaint should be dealt with.

22 Section 11 prescribes how the Building Commissioner must act once he is in receipt of the investigation report.

(1) The Building Commissioner must consider any report given to the Building Commissioner under section 10 and may, subject to the other provisions of this section -

(b) commence a conciliation proceeding under Division 3; or

(c) deal with the complaint under section 37 or 42, as the case requires; or

(d) refer the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.

(2) The Building Commissioner may adopt some or all of the recommendations, if any, in the report but is not required to adopt the recommendations.

(3) The Building Commissioner must (emphasis added) dismiss a complaint if it is made out of time as referred to in section 6.

(4) A complaint by an owner referred to in the Home Building Contracts Act 1991 section 17 about a breach of section 15 or 15A of that Act -

(a) must not be dismissed under this section unless it is made out of time; and

(b) if not dismissed, must be referred to the State Administrative Tribunal for it to deal with under section 43.

(5) The regulations may prescribe circumstances in which the Building Commissioner must deal with the complaint by referring the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.

23 Section 13 provides as follows:

(1) A building service complaint or a HBWC complaint may, subject to this section, be withdrawn by the complainant.

(2) The complaint may be withdrawn even though the Building Commissioner has commenced or completed an investigation of the complaint, but cannot be withdrawn if the complaint has been referred to the State Administrative Tribunal.

(3) This section extends to the withdrawal of a complaint so far as it relates to some only or part only of the matters that form the subject of the complaint.

(4) This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 section 46.

24 If the Building Commissioner decides to refer the complaint to the Tribunal to deal with under s 38 or s 43, as the case requires, the Tribunal is then empowered under those provisions as follows:

1. How State Administrative Tribunal may deal with building service complaint

(1) If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -

(a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or

(b) otherwise, decline to make a building remedy order.

(2) The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider -

(a) to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or

(b) to pay any amount exceeding the prescribed amount,

(c) the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or

(d) the respondent consents to the order being made.

(3) Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.

(4) Nothing in this section prevents a building service complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.

25 A building remedy order and what it may include is specifically defined under s 36, but is not relevant for present purposes.

1. How State Administrative Tribunal may deal with HBWC complaint

(1) If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may -

(a) if satisfied that the order is justified, make a HBWC remedy order; or

(2) The State Administrative Tribunal cannot make a HBWC remedy order requiring a party -

(a) to do work of a value estimated by the Tribunal to exceed the prescribed amount; or

(b) to pay an amount exceeding the prescribed amount,

(3) Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.

(4) Nothing in this section prevents a HBWC complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.

26 A HBWC remedy order is specifically defined under s 41 but is not relevant for present purposes.

27 Apart from referral to the Tribunal under either s 38 or s 43, there is only one other mechanism by which a matter before the Building Commissioner may be dealt with by the Tribunal. Section 55 provides a mechanism for the Building Commissioner to transfer a matter that the Building Commissioner had decided to deal with under s 37 or s 42, or that is before the Building Commissioner under s 51. The applicants' complaints were not transferred to the Tribunal under s 55.

28 Finally, the review powers granted to the Tribunal under s 57 may bear upon the proper construction of the statutory provisions. Section 57 provides as follows:

1. Review by State Administrative Tribunal of orders given by Building Commissioner

(b) an order under section 33 to vary an interim order; or

(c) a building remedy order made by the Building Commissioner; or

(d) a HBWC remedy order made by the Building Commissioner; or

(e) an order made by the Building Commissioner under section 49,

may apply to the State Administrative Tribunal for a review of the order.

(2) If the State Administrative Tribunal gives leave, a person aggrieved by a decision of the Building Commissioner to refuse to accept a complaint may apply to the Tribunal for a review of the decision.

29 Section 58 provides for an internal review by the Tribunal of decisions made in the exercise of jurisdiction given under s 38 or s 43 by a member other than a judicial member. Subsections 58(6) and 58(7) provide as follows:

(6) Unless otherwise provided by the regulations, the State Administrative Tribunal Act 2004 Part 3 Division 3 Subdivision 3 applies in relation to a review under this section.

(7) The regulations may modify the operation of the State Administrative Tribunal Act 2004 in relation to a review under this section.

30 Finally, insofar as the BSCRA Act is concerned, the Building Commissioner's functions are set out in s 86. The Building Commissioner is required by s 85, read with s 3, to be an executive officer of the department of the Public Service principally assisting the Minister with the administration of the BSCRA Act. There is no requirement for any legal qualifications.

31 The respondent also relies upon powers granted to the Tribunal under the SAT Act. Relevant provisions of the SAT Act are as follows:

If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails.

33 Section 3 of the SAT Act defines enabling Act to mean another Act under which jurisdiction is conferred on the Tribunal and, if relevant, includes subsidiary legislation under that other Act.

1. Frivolous etc. proceedings, dismissal of etc.

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

35 Part 4 Div 1 and Div 2 of the SAT Act sets out various procedural powers including the power to conduct compulsory conferences and mediations (s 52 and s 54). Part 3 Div 3 of the SAT Act sets out various provisions relevant to the Tribunal's exercise of its review jurisdiction. Part 4 Div 1 of the SAT Act sets out procedural powers including the conduct of directions hearings, and provisions requiring the Tribunal to ensure the parties understand the nature of the assertions made, the legal implications of the assertions and to ensure all relevant information is placed before the Tribunal.

36 The principles of statutory construction are conveniently set out by Beech J in Western Australian Planning Commission v Dungey [2010] WASC 52 at [27] ­ [32]. It is not necessary to set out those principles in full, but relevant to the proper construction of the above legislation, the following principles are extracted.

1. The starting point for the construction of a statute is the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
2. In determining a question of construction of statutes, attention is to be given to the consideration of the context, object and inconvenience or improbability of result. Inconvenience or improbability of result may assist in preferring to the literal meaning an alternative construction which is reasonably open and more closely conforms to the legislative intent.
3. By s 18 if the Interpretation Act 1984 (WA), a construction that promotes the purpose or object underlying a written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object. That section is not directed to a construction which better achieves the object of an Act. Rather the section assists when there is a choice between a construction that would promote the underlying object or purpose of the Act, and one which would not.
4. A provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute.
5. Section 19 of the Interpretation Act identifies extrinsic material which might be considered in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning, but secondary materials must not be substituted for the text of the legislation.

37 I add that, for the purposes of construing what powers might be vested in the Tribunal, that the Tribunal is vested only with those powers which are found within the statute either expressly or by implication according to accepted standards of statutory construction: R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1; Sparks v Bellotti (1981) WAR 65

38 The obligation of the Building Commissioner to make a provisional decision whether or not to accept a complaint is clearly expressed. The complaint may not be accepted on a number of stated grounds. There is no controversy between the parties in this respect.

39 The controversy is, whether having provisionally accepted the complaint, the Building Commissioner must make a finding whether or not the complaint is out of time. Section 11(3) expressly requires that the Building Commissioner must dismiss a complaint if it is made out of time. This begs the question raised in this case, which is, whether it is open to the Building Commissioner to refer the matter to the Tribunal to be dealt with under s 38 or s 43, as the case may be, if he does not dismiss the complaint and makes no finding as to whether or not the complaint is out of time.

40 There are competing constructions. The respondent submits that by way of comparison with the summary nature of the decision under s 7, it is a reasonable conclusion to reach that Parliament's intention was that a decision of the Building Commissioner, which is informed by a written report which details an investigation carried out pursuant to s 9, ought to be final; and that this conclusion is supported by there being no right of review of a decision to dismiss the complaint following that investigation and reporting process. The respondent further submits that neither s 38 nor s 43 provide the Tribunal with the power to dismiss, rather the power is limited to making the relevant building remedy order or HBWC order, or declining to do so.

41 However, the respondent submits that the Tribunal has been granted original jurisdiction to determine matters in the Building Commissioner's stead, by way of referral, that there is a very clear intention to impose a statutory time limit on complaints and that s 38 and s 43 must be read in the context of s 6, 7 and s 11 which clearly convey that a complaint made outside the statutory time limit must be dismissed. Therefore, it is submitted that it would be remarkable if the Tribunal's power under a referral was such that it could not dismiss a complaint where it formed the view that it was out of time and, as there is no express power to do so in s 38 or s 43 (or elsewhere) of the BSCRA, the power to dismiss must be found within s 47 of the SAT Act.

42 An alternative construction is that it is intended that the Building Commissioner make a decision when considering the report provided under s 10, whether or not to dismiss because the complaint is out of time and that the decision of the Building Commissioner is intended to be final. Thus, when the matter is referred to the Tribunal, its only power (leaving to one side whether it might be open to examine whether or not it is in fact a building services complaint which is referred to it) is to make a building remedy order, or a HBWC order or otherwise decline to do so.

43 There are factors which favour the alternative construction.

1. There is no right of a review of a decision to dismiss made by the Building Commissioner on any of the grounds open to him, including that the complaint is out of time. That is strongly indicative of an intention that the Building Commissioner's decision be final, particularly when read with the limited powers granted to the Tribunal under either s 38 or s 42.
2. The reservation of only some procedural powers which might be exercised by the Tribunal might be regarded as indicative that other general procedural powers granted to the Tribunal do not apply. The specific powers which are preserved are the powers to conduct mediation or a compulsory conference (s 38(4) and s 43(4)). Similarly, there is an express provision that the Tribunal's procedural powers in relation to reviews, apply to an internal Tribunal review (s 58(6)). Thus, on the principle expressio unius est exclusio alterius, it might be concluded that the Tribunal's other procedural powers, including the power to dismiss under s 47, are excluded.

44 There are however other indicators which favour a construction of the legislation closer to that contended for by the respondent.

1. The BSCRA Act provides for a two stage dispute resolution service. The Building Commissioner is not required to have legal qualifications, has no power to conduct contested hearings and on the face of it, would not be expected to make final decisions on points of law or contested facts, supported by evidence requiring proper forensic testing.
2. While the Building Commissioner has power to retain and determine a matter which is before him, that must be viewed in the context of a scheme which provides for matters to be referred to the Tribunal for determination on the merits. The powers and functions of the Tribunal were established prior to the commencement of the BSCRA Act and the Tribunal retains the powers set out in the SAT Act, unless excluded expressly, or by necessary implication, by the BSCRA Act.
3. The express powers bestowed on the Tribunal under s 38 and s 43 clearly relate to orders to be made at a final hearing. The Tribunal has statutory obligations to ensure that matters are properly prepared prior to final hearing and to ensure that all relevant material is disclosed to the Tribunal. This can only be achieved through the Tribunal conducting its normal pre­hearing procedures and exercising the powers set out in Pt 4, Div 1 of the SAT Act. Those powers have not been expressly reserved in the same way as the powers to conduct compulsory conferences or mediations under Pt 4, Div 2 of the SAT Act, nor as in the case of the Tribunal's powers in review proceedings, when conducting an internal review under s 58. However, the obvious need to apply the above general powers is an indicator that the express powers which have been reserved, have been reserved out of abundant caution.
4. The above factors are an indication that this is not an appropriate case for the application of the principle expressio unius est exclusio alterius. This is:

[a] maxim [which] must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument ... it is 'a valuable servant, but a dangerous master' ... : Houssein v Under Secretary, Department Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94; and the discussion in Statutory Interpretation in Australia, 7th Ed, by DC Pearce and RS Geddes, LexisNexis Butterworths Australia, 2001.

1. Dealing specifically with a decision as to whether a complaint is made out of time or not, it is to be noted that s 6 read with reg 7, provides for alternate bases upon which to determine when a regulated building service is taken to be completed. In those cases where a building work or demolition work permit is issued under the Building Act 2011 (WA) (Building Act), the existence or otherwise of criteria that particular notices be given under that legislation can be easily and objectively determined. Building work carried out prior to that legislation coming into operation will not have been carried out under such permits. In addition the Building Act contemplates that there will be many circumstances in which building or demolition permits are not required: see Pt 5, Div 1, s 66 of the Building Act and the Building Regulations 2012 (WA) Sch 4, cl 2 and the Table thereunder. In these cases, the building service will be taken to be completed in some circumstances on the date of practical completion being achieved, and in other circumstances, when the building service was last carried out. The determination of the date of practical completion being achieved can be extremely contentious. Under the Building Act, the definition of 'building work' includes repair of a building (or an incidental structure) and the definition of a 'building' includes part of a building, so that the date on which the last building service was completed is also potentially contentious. In cases in which both parties contend for different dates and produce some evidence to support their respective positions, the Building Commissioner is not well equipped, under the legislative scheme, to make a fair and proper determination.
2. In order to properly understand the context of the legislation and its purpose it is appropriate to have regard to the Second Reading of the Building Services (Complaint Resolution and Administration) Bill 2010: Hansard, Legislative Assembly, Wednesday, 10 November 2010 at p8496b ­ 8497a where the Minister for Commerce, Mr WR Marmion stated:

The Building Services (Complaint Resolution and Administration) Bill brings significant reform to the Western Australian building complaint and compliance process. ... The main impetus for this bill arises from the need to update the current building dispute and enforcement processes in the Builders' Registration Act 1939. In the mid­1980s, all Australian jurisdictions except Western Australia modernised their building legislation. Much has changed in the building industry and society since the current legislation was enacted. Accordingly, the state needs to update its mechanisms for dealing with disputes of this nature.

The bill implements key recommendations of two inquiries that considered the current dispute resolution framework. An inquiry launched in June 2007 by the Legislative Council Standing Committee on Legislation concluded that the current Building Disputes Tribunal - BDT - should have its functions transferred to the State Administrative Tribunal. Similarly the Gunning Committee of Inquiry into Fair Trading Boards and Committees in 2000 also recommended major changes to the operation of the BDT.

The key reform made by this bill relates to how building complaints or disputes are handled. The bill provides for a two­stage dispute resolution service, with complaints being received and dealt with at the front end by the Building Commissioner and intractable disputes being determined by SAT. For the first time, a formal process of conciliation will be put in place to bring together both parties to a building dispute in an attempt to reach an agreement before the dispute becomes entrenched and the courts become involved. This will ensure a more cost­effective and consumer­friendly process that saves time, money and resources for both the parties involved and the court system.

When a building dispute is unable to be resolved by the Building Commissioner, the bill provides for the matter to be heard and determined by SAT. SAT is a full­time specialist legal body already in operation that is independent of the Building Commission. By allowing SAT to hear complaints, SAT will be able to determine building disputes impartially and in a more professional, timely and consistent fashion.

1. The Building Disputes Tribunal (BDT) was formally charged with the resolution of building disputes under the Builders Registration Act 1939 (WA). The Tribunal was chaired by persons with legal qualifications: see s 27 Builders Registration Act 1939. The intention to transfer the BDT's function to the Tribunal will not be effectively achieved, if areas of significant controversy may be determined by the Building Commissioner on a final basis, and without hearing before an appropriately constituted Tribunal, either exercising original or review jurisdiction.
2. It is to be noted that s 7(1) clearly requires the Building Commission to decide whether to accept the complaint, or to refuse to accept it. On the other hand, s 11 requires only that the Building Commissioner must dismiss a complaint if (after full investigation and considering the authorised person's report) it is concluded that the complaint is made out of time. The language used is quite different. There is no express requirement to make a determination whether or not the complaint must be dismissed. This leaves it open to conclude that, consistent with the above, there will be some cases in which the Building Commissioner is unable to make a positive decision about whether the complaint is made out of time. It is unlikely, that it should be intended in such circumstances, that the Tribunal should be required simply to determine the merits of the dispute, when it is in a position to properly assess and determine whether or not the complaint is made out of time. Section 47 of the SAT Act gives the Tribunal the power to dismiss a complaint made out of time, on the basis of it being misconceived. That power may be exercised at any time including at a final hearing: see Laurent and Commissioner of Police [2009] WASAT 254 (Laurent); Asterleigh Pty Ltd as Trustee for the Lahdo Family Trust and Volley Investments Pty Ltd [2012] WASAT 201.
3. It is not obvious why Parliament has chosen not to provide a right of review when the Building Commissioner does positively determine that a complaint has been made out of time and therefore dismisses the complaint. Consistent with the above reasoning, and because there will be cases in which the Building Commissioner is not well equipped to make such a decision, it may be assumed that the Building Commissioner would exercise its power to dismiss under s 11(1)(a) only in very clear cases. When a party is aggrieved by that decision, it is strange that there should not be a cost effective and consumer­friendly right of review before the Tribunal as opposed to the possible right to pursue prerogative writ proceedings in the Supreme Court. This appears to be an error which should be addressed by legislative amendment. However, the lack of right of review by the Tribunal can be rationalised on the basis that the Building Commissioner should be aware of the circumstances which prevent him determining any difficult questions of law or disputed facts so that matters of that type are not dismissed, but are instead referred to the Tribunal.

45 If, as is clearly the case, the object of the BSCRA Act is to modernise and to provide a more effective and consumer­friendly process that saves time, money and resources for both the parties involved and the court system, the first of the above competing interpretations, although capable of being supported by the express language used, would not promote that purpose. On the other hand, a construction to the effect that the Building Commissioner is not required to make a final decision on whether or not to dismiss, but must dismiss a complaint if the material before him demonstrates the complaint is out of time, would promote that purpose. If the Building Commissioner is unable to come to a conclusion that the matter must be dismissed, the matter may be referred to the Tribunal and the Tribunal may decide whether to dismiss a claim which is out of time. This construction is to be preferred because it does promote the purpose of the legislation. It is a construction which, for the reasons outlined above, does not require any displacement of the clear meaning of the text. The context enables the text to be read in conjunction with the powers granted to the Tribunal under the SAT Act and for the provisions of the SAT Act to supplement not supplant the text of the BSCRA Act.

46 It remains to determine whether the Building Commissioner must consider whether part of a complaint may be dismissed as being out of time, and whether the Tribunal can do so.

47 The respondent has set out detailed submissions on this issue which are not contradicted by the applicants. In summary, it is submitted that the definition of 'regulated building service', 'building service', 'building' and 'building work' read with s 13, which allows withdrawal of part of a complaint, demonstrates that a complaint may be made about separate parts of the building work or building service which has been carried out. This submission is accepted: see The Owners of Strata Plan 41133 and Lendlease Project Management [2014] WASAT 6 at [21]. Section 7(1) and s 7(4) expressly permit the Building Commissioner to decide to what extent to accept a complaint, conveying that part but not all of a complaint may be accepted. It follows that the Building Commissioner must dismiss part of a complaint which is out of time if the material before him enables him to come to a positive conclusion to that effect. The Tribunal may do likewise under s 47 of the SAT Act (see Laurent) when a complaint is found by it to be out of time and the complaint was referred to it because the Building Commission was unable to come to that conclusion.

48 It follows that for the above reasons, that the Building Commissioner is not obliged under s 11(3) to dismiss a proceeding or part of a proceeding, unless he is positively able to conclude, relevant to these proceedings, that the complaint, or part of it, is out of time. If the Building Commissioner is unable to come to such a positive conclusion, it is open to the Building Commissioner to refer the complaint to the Tribunal. If the Tribunal is able to determine on the evidence before it that the complaint, or part of it, is out of time, it has power under s 47 of the SAT Act to dismiss the complaint or part of it, on that basis.

Issue 2: Was the Strata Company's complaint, in so far as it relates to the 102 identified new claims, lodged out of time?

49 There is no issue between the parties, as their respective positions are understood, that pursuant to s 6 and reg 7, the event from which time commences to run for the purposes of calculating the period of six years within which any new complaint must be made, is the date on which practical completion of the building works was achieved.

50 The building works were carried out pursuant to a contract entered into between Commercial Properties Group Pty Ltd and Clive Hartz (as owners) with the respondent dated 4 May 2004. A building licence was issued to the respondent which contained a condition 12 to the effect:

This building shall not be occupied until a new certificate of classification has been issued. Occupation of the building in contravention of the Regulations is an offence.

51 Clause 27 of the contract deals with practical completion of the works in the following terms:

(a) Practical Completion is that stage when the Works are completed except for any omissions and/or defects which do not prevent the Works from being reasonably capable of being used for their intended purpose by the Owner, and such testing or certification by any authority having jurisdiction has been complied with. For the purposes of this clause the phrase 'the Works' does not include any labour or materials which are to be supplied and/or fixed by the Owner.

(b) When, in the opinion of the Builder, the Works are practically completed, the Builder shall give to the Owner notice thereof in writing, in the form set out in Appendix III.

(c) Within seven (7) days after the service of such notice the Owner shall give to the Builder notice in writing, of those matters and things (if any) which the Owner considers are required by this Contract to be done for practical completion. The Builder shall forthwith do all such things (if any) as may be required by this Contract for the achievement of practical completion and shall give to the Owner further notice in writing when he has done all such things.

(d) In the event that the Owner does not give any notice within the time specified in sub­clause (c) of this clause, the Works shall be deemed to have been practically completed at the date of service of the notice given by the Builder pursuant to the provisions of subclause (b) of this clause.

(e) Should the Owner or any tenant of his or their employees or agents take possession of the Works or any part thereof without the written agreement of the builder, the date of practical completion shall be the date possession is taken, unless practical completion has already been achieved having regard to the provisions of this clause.

(f) The Works shall be at the risk of the Owner in all respects upon practical completion.

52 The applicants submit that practical completion has never been achieved because the City of Subiaco, being the local authority having jurisdiction in respect of the works, has never issued a 'certificate of completion' (submissions paragraph 13). This is presumably intended to refer to a certificate of classification as referred to in condition 12 of the building licence.

53 There is no evidence before the Tribunal which establishes that a certificate of classification was ever issued. The respondent contends that a new certificate of classification was not required because the building was a Class 2 building as defined under the Building Code of Australia, and that classification 'does not appear to have altered as a result of the works and there is nothing before the Tribunal to suggest otherwise'.

54 I do not accept the respondent's submissions in this regard. It was a condition of the building licence that a new certificate of classification be issued and it was therefore a requirement which had to be met under clause 27(a) of the contract.

55 However, this is not, in my view, of any significance because the respondent establishes through the witness statement of Mr Hartz (this fact having not been agreed) that on 5 January 2006, the builder issued and served on Mr Hartz, a notice that practical completion had been achieved. As already noted, Mr Hartz and a company of which he was sole director, Commercial Properties Pty Ltd, contracted with the respondent for the respondent to carry out the building works in question. The notice which is at page 116 of the respondent's bundle is in accordance with that set out in Appendix III of the contract. Further, Mr Hartz's evidence is that he was fully aware of the status of the works at all times, he was satisfied that the works had achieved practical completion and therefore the owners did not advise the builder within 7 days of service of the notice, or at all, of any matters which they considered were required to be done for practical completion to be achieved.

56 The respondent relies on clause 27(d) of the contract to assert that the works must be deemed to have been practically completed at the date of service of the notice given by the builder pursuant to the provisions of sub-clause (b), namely 5 January 2006.

57 The effect of sub­clause 27(d) of the contract is such that it is immaterial whether practical completion had in fact been achieved by 5 January 2006. There may well have been omissions and/or defects present which prevented the works from being reasonably capable of being used for their intended purpose, but if so, the owner was obliged to give notice to the builder of the matters and things required for practical completion to be achieved. The owner did not do so and therefore practical completion is taken to have been achieved on that date.

58 I find that practical completion was achieved on 5 January 2006.

59 The applicants also contend that in previous proceedings before the BDT, the then representative for the respondent, Mr Sunits, did not challenge the date of completion of the works. This is a reference to earlier proceedings commenced by the Strata Company and separate proceedings by a number of owners, including Dr Foster. The complaint forms required the applicants to state the date on which completion has been achieved. The respective BDT files are before the Tribunal. The complaint form completed by the Strata Company incorrectly stated that the date the building work was completed was 16 July 2004. Presumably, it was intended to state 16 July 2006. The complaint was made on 20 March 2009.

60 Dr Foster stated in his complaint form to the BDT that the building was not completed until May 2006. His complaint was also lodged on 20 March 2009. The statutory time limit which then applied under s 12A of the Builders Registration Act 1939 (WA) of six years was not in issue and the complaints were dealt with on their merits. Nothing therefore turns on Mr Sunits not challenging the applicants' assertion of when practical completion was achieved. The issue was not one which was determined by the BDT.

61 The Strata Company's current complaint to the Building Commission was lodged on 23 February 2012, which is more than six years from the date of practical completion of 5 January 2006.

62 The parties have agreed that there are 102 items of claim which are new, and unrelated to any previous order to remedy issued by the BDT. In their categorisation of the claims, the parties have acknowledged that it is arguable that a complaint that there has been a failure to comply with an order to remedy defective workmanship, or that the work then carried out constitutes the provision of a regulated building service within the meaning of the BSCRA Act, such that the time from when the complaint would have to be made would not be taken from the date on which practical completion was achieved. The 102 items of complaint have been identified as those referred to in paragraph 40(a) of the agreed statement of facts, being those items numbered 1­19, 21-23, 26, 30-42, 44-46, 49, 55, 56, 59­115, and 149­151.

63 Unfortunately, I am unable to identify any of the documents attached to the original complaint form, or subsequent documents filed in support of the complaint, which follow this numbering. The original consultant's report filed with the complaint did not enumerate each complaint. The correspondence reflects that this presented a difficulty for the Building Commissioner in dealing with the matter. On 3 August 2012, the Strata Company's agent re­presented the claim in 22 separate schedules. Unfortunately, the numbering of each following schedule is not sequential and starts again with item 1 in each schedule. The total number of complaint items in this document is 148 items, not 151 items.

65 It follows, on the above findings, that the identified new claims were lodged out of time.

Issue 4: If the Tribunal has the power to dismiss that part of a complaint which is out of time, should that part of the claim be dismissed?

66 This question arose out of the issues raised in the parties' submissions, because the respondent's construction of the legislation required the Building Commissioner to make a finding that the complaint was either in time or not. On the construction found by the Tribunal, while the Building Commissioner must dismiss a complaint if he can positively find it is out of time, there will be some circumstances in which the Building Commissioner is not able, on contested evidence before him, to come to that conclusion.

67 Consequently, the respondent's submissions address whether the referral to the Tribunal was unlawful and in that context, raise the use of s 47 of the SAT Act to dismiss the proceedings as being misconceived.

68 The effect of the above findings is that, if the Building Commissioner is unable to reach a positive conclusion that a matter is out of time, a referral of the matter to the Tribunal is not unlawful. It is nevertheless necessary for the Tribunal to make a finding whether the Building Commissioner gave consideration to whether the complaints were made out of time, because a failure to exercise jurisdiction would, I accept, render a referral to the Tribunal unlawful.

69 The various reports provided to the Building Commissioner in respect of both applicants' complaints show that the complaints were related and that they were considered and conducted in a manner to ensure a consistent approach. The reports identified difficulty in determining whether the complaints were made out of time. As reflected in the investigator's report dated 9 October 2012 in C 79379 (which was Dr Foster's complaint), the investigating officer recommended, and the Building Commissioner's delegate appears to have accepted, that 'matter C79379 and matter C79834 [the Strata Company's complaint] be referred to the State Administrative Tribunal with the liberty to deal with them together or as separate matters. The respondent may present its evidence to the SAT to determine "the statutory period"'. It is evident that the Building Commissioner had difficulty in determining which, if any, of the complaint items related to previous complaints to, or remedy orders made by the BDT. It is not established that the Building Commissioner failed to exercise jurisdiction in this regard. The effect of the reports is to convey that the Building Commissioner did not conclude that the complaints, or part of them, were out of time. It is therefore not necessary to address the respondent's submissions based upon the referrals to the Tribunal being unlawful.

70 On the Tribunal's construction of the legislation and the above findings, it is not appropriate for the Tribunal to determine first of the preliminary issues as formulated. To do so would be to determine a hypothetical situation. In the context of this application for dismissal, the Tribunal is able to apply its construction of the legislation to a determination of the second preliminary issue.

71 The respondent further raises whether the Tribunal had power to extend the timeframe within which the complaint could be lodged with the Building Commissioner. The respondent submits that the proceeding commenced upon referral of the matter to the Tribunal under s 11(1)(d), relying on O'Connor and Town of Victoria Park [2005] WASAT 161 (O'Connor). O'Connor was a review matter. The Tribunal (constituted by Justice Barker, the then President) observed in that case that the 'proceeding' before the Town Planning Appeal Tribunal was concluded and that the application for review of that determination made to the Tribunal was a new review 'proceeding'.

72 In De Campo and J­Corp Pty Ltd T/As Oswald Homes [2013] WASAT 143 (De Campo) the Tribunal held that in respect of a complaint lodged under the BSCRA Act, the proceedings commence when the complaint is lodged with the Building Commission (see [14 ­ [16]).

73 The respondent raises a number of criticisms of what the Tribunal stated at [15] in De Campo, relying on the language of various sections of the SAT Act to support a view that an application is made and therefore a proceeding is commenced by the acceptance of an application by the executive officer. These submissions made no reference to [14] which formed an important part of the Tribunal's rationale that a proceeding (referred to in the Tribunal in its original jurisdiction) under the BSCRA Act, commences by a complaint lodged with the Building Commissioner. The statutory provisions relied on by the respondent must be read in the context of s 42(1) of the SAT Act which provides that an application for review, or otherwise brought by referral or other means has to be made in accordance with the SAT Act except to the extent the enabling Act states otherwise, as it does under the BSCRA Act. Although the Tribunal erred in one respect, as submitted by the respondent, in referring to the heading of s 55 of the BSCRA Act, the provision itself is consistent with the heading and is referred to in [14]. I am not persuaded that De Campo is clearly wrong in concluding at [15] that 'the proceeding may be said to have commenced before the Tribunal when the executive officer receives or "accepts" it, but that is not when the proceeding itself commenced'. In order to foster consistent decision­making, I should therefore follow De Campo.

74 It may therefore be argued that s 92 of the SAT Act read with r 10 of the State Administrative Rules 2004 (WA) (SAT Rules), permits the Tribunal to extend the time for the commencement of the proceeding. I have some doubt that s 92 of the SAT Act is intended, relevantly, to deal with anything other than the extension of time to take the steps by referral or other means necessary to enliven the Tribunal's jurisdiction. It is not necessary to determine this issue because even if the Tribunal has power to extend the time to commence proceedings before the Building Commissioner there is no evidence before the Tribunal addressing the criteria upon which any discretion could be exercised: see Jackamarra v Krakouer (1988) 195 CLR 516; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198.

75 In circumstances in which the intent of the BSCRA Act is that a complaint made out of time must be dismissed, and the relevant part of the complaint has been held to be out of time, it is obvious that a proper exercise of discretion under s 47 of the SAT Act requires that the relevant parts of the claim be dismissed.

76 For the above reasons, the Tribunal concludes that those complaint items, identified by the parties as being in respect of new claims, not related to any previous proceedings before the BDT, or any order of that Tribunal, must be dismissed.

77 There is a difficulty, as discussed above, in correlating the complaint item numbers identified in paragraph 40(a) of the agreed statement of facts, with the complaint items as numbered in the re­presentation of the complaints attached to the letter from the Strata Company's agent to the Building Commission dated 3 August 2012.

78 In the circumstances, the matter will be adjourned to a directions hearing and the respondent will be directed to file a minute of proposed orders consistent with these reasons for decision, to which the parties will be given an opportunity to speak at the directions hearing so that there is no uncertainty as to the complaint items which are dismissed. That minute must reflect that the preliminary issues are determined as follows:

(a) The Tribunal declines to determine this preliminary issue because it has found that the Building Commissioner is not obliged to decide whether or not a complaint is made out of time; and

(b) Part of the complaint made by The Owners of 38 ­ 40 Onslow Road, Shenton Park has been made out of time.

79 The parties should then also be in a position to discuss what further programming orders are required to enable the matter to progress to a final hearing.

80 The Tribunal will cause an order to issue as follows:

1. The matter is adjourned to a further directions hearing on 7 October 2014 at 2.15 pm.
2. Not less than three days prior to the above directions hearing the respondent must file and provide to the applicants a minute of proposed orders to be made consistent with these reasons for decision, and to which the parties will be given an opportunity to speak at the above directions hearing.
3. Further programming orders will be made at the directions hearing to enable the matter to proceed to a final hearing.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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