Builders Registration Act 1939, ss12A, 27, 28, 35, 36, 41

Bradshaw v Medical Board of WA (1990) 3 WAR 322

Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999

Gleeson v Lee (1996) 18 SR (WA) 353

Nationwide News Pty Ltd v Bradshaw (1985) 84 FLR 49

Roberts v Roberts (1992) 8 WAR 170

State of WA v Bond Corporation Holding Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

Wing Luck Foods v Lay Choo Lim [1989] WAR 358

Boomalli v Hake [1985] WAR 7

Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344

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

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Girando v Girando (1997) 18 WAR 450

Jackamarra v Krakouer [1998] HCA 27; (1998) 153 ALR 276

Palata Investments Pty Ltd v Burt & Sinfield Limited [1985] All ER 517

1 LA JACKSON DCJ: This is an application for leave to appeal against a decision of the Building Disputes Committee (the "Committee") pursuant to s41(2) of the Builders Registration Act 1939 and an application to extend the time for the lodging of such application pursuant to O8 r5 of the District Court Rules.

Extension of time

2 By O8 r29, O8 r5 applies to this application for leave to appeal. Order 8 r5 provides for the application to be filed and served within 21 days of judgment or such further time as a Judge or Registrar shall allow. That order was considered by Hammond CJ in Gleeson v Lee (1996) 18 SR (WA) 353. His Honour identified four factors to be considered.

3 His Honour was dealing with an application for an extension of time to appeal in a Criminal Injuries Compensation case. There is no requirement for leave to appeal in such cases. In this case I do not think Item 3 needs to be considered with respect to the extension of time because it is one of the factors relevant to the issue of leave to appeal.

1 Length of delay

4 The matter was heard before the Committee on 23 March 1999. Although it does not appear from the transcript, I am advised that the decision of the Committee was given on that day after a short adjournment. The reasons were published on 18 April 1999 and the appellants assert (and I accept) were received by them on or about 23 April 1999. The application for leave to appeal was filed on 26 July 1999.

5 Although the rules provide for the lodging of an appeal within 21 days of the date of the decision, for the purposes of an extension of time I do not consider time should effectively be running against a prospective appellant until the reasons are published and received by the appellant. That would allow for a reasonable starting point of mid-May 1999. Looked at this way the effective delay has been about 2½ months. That is, I think, not excessive.

2 The reasons for delay

6 The appellants assert, and there appears to be no dispute, that they sought legal advice and made other complaints. The appellants had themselves lodged a complaint with the Committee. That complaint included matters of a contractual nature as well as complaints of poor workmanship. It was clear from the proceedings before the Board that the complaint with respect to poor workmanship was to proceed later and the appellants say they thought they would have a further opportunity of challenging the contractual matters at the hearing of their own complaint. Shortly before this application was lodged, they were told that was not the case.

7 This is not a case where the prospective appellants have simply sat on their hands and allowed time to pass. I consider the reasons for the delay to have been sufficiently explained.

3 The extent of prejudice to the respondent

8 The judgment given in favour of the respondent was paid by the appellant shortly after the decision of the Committee. There is no evidence that necessary documents have been destroyed during the few months after the date of the Committee's decision. There is no evidence before me that would indicate there was any prejudice suffered by the respondent as a result of the delay.

9 In the circumstances I consider there should be an extension of time to file and deliver the application up to the date upon which it was filed and served.

The legislation

10 The Building Disputes Committee is a statutory body created by the Builders Registration Act. It consists of a chairperson who shall be a legal practitioner (s27) and one person as a representative of the interests of consumers and one person as a representative of the interest of builders (ss28, 35). Section 36(1) provides:

"At all its sittings the Disputes Committee shall act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit."

"At all the sittings of the Disputes Committee the (chairperson) shall preside and determine any question relating to the admissibility of evidence and any other question on law or procedure."

12 Although there is some tension between the subss (1) & (2) in that admissibility is governed by the rules of evidence, this is not the place to explore such an issue.

13 The Committee is as was described by Judge Viol in Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999 an informal board designed to give relatively speedy and inexpensive relief to the parties involved in building disputes. Amongst other things, this is exemplified by the fact that legal representation is only allowed by leave if the amount in dispute is less than $10,000. This was such a case.

14 Notwithstanding the informality the Committee, like any other statutory board exercising in substance a judicial power, is required to act fairly and in accordance with the rules of natural justice. For example, it must ensure that notice of the application has been properly served. It must give to the parties a reasonable opportunity to present the case. It must when coming to its decision decide the case on the evidence before it.

Leave to appeal

15 Section 41 of the Builders Registration Act provides for appeals. Subsections (1) and (2) provide:

"(1) Subject to subsection (2), a party to proceedings before the Disputes Committee may appeal to the District Court against a decision of the Disputes Committee in the manner and in the time prescribed by rules made by the District Court.

(2) An appeal does not lie under subsection (1) unless the Disputes Committee or the District Court gives leave to appeal."

16 There are many circumstances in which an appeal only lies by leave. In particular within the Rules of the Supreme Court an appeal only lies from an interlocutory order by leave. The Full Court in Wilson v Metaxas [1989] WAR 285 dealt with the issue. At page 294 Malcolm CJ said:

"The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431; Stanley-Hill v Kool [1982] 1 NSWLR 460; Monash University v Burg [1984] VicRp 30; [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VicRp 72; [1985] VR 756. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd at 759, per Fullagar J."

17 In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 360 the Full Court said:

"The grant of leave lies in the discretion of the court. Consequently, in order to give effect to the object and purpose of the requirement for leave the courts have formulated principles upon which the discretion should be exercised. In Victoria, it has been held that, on an application to the Full Court for leave to appeal against an interlocutory judgment, leave should be granted only where the decision was wrong, or at least attended with sufficient doubt to justify granting leave and, in addition, substantial injustice would be done by leaving the decision unreversed: Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431. Leave will be granted more readily if the practical effect of the order is to change substantive rights or finally determine the rights of the parties: cf per Murphy J at 440. The test formulated in Niemann has been followed in Stanley-Hill v Kool [1982] NSWLR 460; Monash University v Berg [1984] VicRp 30; [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VicRp 72; [1985] VR 756; and Re The WA Teachers' Financial Society Limited; Wilson v Metaxas [1989] WAR 285, per Malcolm CJ (with whom Brinsden and Smith JJ agreed)."

18 In Nationwide News Pty Ltd v Bradshaw (1985) 84 FLR 49 O'Leary CJ at 55-56 said:

"The legislation having provided that there should be no appeal from an interlocutory judgment, except by leave of the court, the prima facie presumption is against appeals from interlocutory judgments, and in favour of the correctness of the decision in question, that is, that there has been a proper exercise of his discretion by the primary Judge. As a general rule, therefore, the court will not interfere."

19 His Honour went on to set out the appropriate tests. His annunciation of those tests were criticised by Malcolm CJ in State of WA v Bond Corporation Holding Ltd (1991) 5 WAR 40, at 56-57 but his Honour did not quarrel with that part of the judgment of O'Leary CJ I have quoted.

20 The presumption of the correctness of the decision of the Committee is, in my view, strengthened by its character as a specialised tribunal. The chairperson needs to be a lawyer. There is a representative of builders and a representative of consumers. It is reasonable to assume that at least the lay members will only be appointed to the panels from which they will be chosen because of some knowledge of expertise within the building industry. A panel of lawyers has been named as being chairpersons of the Committee and it is also reasonable to assume that such lawyers will either have or will gain expertise in the building industry. Appeal courts are less likely to interfere with decisions of specialised tribunals on the merits, than decisions of courts possessing no particular expertise. See Bradshaw v Medical Board of WA (1990) 3 WAR 322 per Rowland J at 335.

21 It is apparent that in each case where leave to appeal is required to be obtained prior to there being a right of appeal, the issues relevant to the grant of leave may be different. See, for example, Pidgeon J in Roberts v Roberts (1992) 8 WAR 170, 175.

22 The jurisdiction of the Committee is to be found either in s12A of the Builders Registration Act relating to remedying unsatisfactory building work or under the Home Building Contracts Act 1991 relating to contractual issues. The very nature of decisions of the Committee will be "to change substantive rights or finally determine the rights of the parties" (Wing Luck Foods). To say leave to appeal will more readily be granted in such cases would be to substantially negate the need to obtain leave to appeal from decisions of the Committee. I do not consider it to be relevant to such cases.

23 It is I think important when dealing with a tribunal such as the Committee to recognise that its very informality can result in what would in a court of law be described as irregularities properly corrected on appeal. To take the same rigid approach with respect to the Committee's hearings would I think be to frustrate the legislation. It should, in my opinion, only be in cases where there has been a clear failure by the Committee to act in accordance with its own legislation or in accordance with traditional rules designed to ensure fair hearings that the Court should interfere. In this case, a nit picking analysis of the proceedings before the Board could well result in some criticisms of its procedures. But are they sufficient to say that the Committee has failed to give the applicants a fair hearing, or failed to allow them to adduce material which has prejudiced their position. I think not. The applicants were heard on all issues relating to the contractual issues. They were asked if they had anything to add. The fact that they might not have possessed the legal skills to understand there was more they should or could have put before the Committee is not to say the Committee has acted unfairly.

24 What is the meaning of "substantial injustice"? Should the District Court when considering applications for leave to appeal from decisions of the Committee take into account the amount of or the value of the decision of the Committee? The Builders Registration Act does not provide for any monetary limitation on appeals and it would therefore be wrong for the District Court to arbitrarily assume there to be one. I would not have thought that if the value of the dispute is trivial, an inability to appeal would lead to substantial injustice. The notion of a substantial injustice may depend upon the nature of the value of the building work out of which the dispute before the Committee arose. Thus, for example, a multi-million dollar contract resulting in disputes of a few thousand dollars might in the context be trivial and therefore create no substantial injustice if a party cannot appeal from a decision of the Committee. On the other hand, different considerations might well apply if the building work is a modest extension to a private residence.

25 Although it is a matter for the exercise of judicial discretion, in general, the tests to be applied to the application for leave to appeal from a decision of the Committee should be as follows.

(a) either the decision was wrong or the decision is at least attended with sufficient doubt to justify the granting of leave, and,

(b) substantial injustice would be done by leaving the decision unreversed.

2. The consideration of the criterion is 1(a) in the context

(b) that there is a prima facie presumption in favour of the correctness of the decision of the Committee, and

(c) that its proceedings will, by its nature, be relatively informal.

Circumstances of this case

26 In this case on 29 October 1998 the respondents applied for the balance outstanding on a building contract between them and the applicants. No formal answer appears to have been filed to that application. On 9 February 1999 the applicants filed an application part of which was in substance an answer to the respondents' application and part of which was a complaint of poor workmanship. Section 17 of the Home Contracts Act 1991 makes it clear that in dealing with building disputes a distinction is to be drawn between contractual issues and workmanship issues. At the hearing of the respondents' application it was clear the Committee understood the distinction and said that the workmanship issues would be dealt with at a later stage. The applicants now say they understood that the whole of their application would be dealt with at a later time. That was not what was said by the Committee. If the applicants misunderstood what was happening, then that of course is most unfortunate, but such misunderstanding would not of itself reveal error by the Committee.

27 In substance the respondents said there was an agreement to do some building renovation work for the applicants for the sum of $36,000. They say that during the course of the work some variations were requested by the applicants for which the applicants were charged. The applicants deny there was ever an agreement to do the work for such sum but were advised by the respondents that the work could be done and would cost no more than $36,000.

28 Both parties had adequate opportunity before the Committee to put their respective cases. It appears that all of the documents filed by the applicants with their complaint were not before the Board, notwithstanding that an official of the Committee advised they would be so. That, however, did not prevent the applicants from putting their case to the Committee. Both the first respondent and the second applicant gave evidence. The Committee refused to accept a statutory declaration by the second applicant's father. Having read the statutory declaration, it is difficult to say that its receipt would have made any difference to the Committee's decision. The applicants complain that included in the documents accompanying their claim was a document detailing the events and setting out the applicants' arguments and that it was not before the Committee. I have seen the document. It is headed "For Board Information Only" and was clearly not intended to be served on the respondent. Even if that document had been before the Committee it would have been quite improper for it to have considered it. The principles of natural justice would have required service on the respondent in time to properly answer it. But in any event, as I have noted, the applicants had the opportunity of putting their case to the Committee.

29 At the conclusion of the hearing the Committee gave a brief decision in which it upheld the respondents' claim based on the contract including the variations and allowed a judgment for the respondents in the sum of $6,814.87. As foreshadowed, it did not deal with the workmanship issues which were to be dealt with later after a report from an inspector under the Builders Registration Act had inspected the work.

30 In the circumstances of this case the applicants have failed to show that the decision of the Committee was wrong or attended with sufficient doubt to justify the granting of leave to appeal. Had they done so, I would have accepted that the judgment sum, in relation to the contract sum was substantial.

31 I would therefore dismiss the application for leave to appeal.