StateAdministrativeTribunal

Western Australia

StateAdministrativeTribunal

Western Australia

Contact usAddress: State Administrative Tribunal Level 4, 12 St Georges Terrace Perth,WA 6000

Postal address: GPO Box U1991 Perth WA 6845

Phone: 9219 3111 or 1300 306 017

Fax: 9325 5099

Email: info@sat.justice.wa.gov.au

Website: www.sat.justice.wa.gov.au

Depending on the circumstances of each case, the

review may be limited to a particular issue or issues to

determine liability. If liability is decided in favour of the

applicant, a further hearing will be held to determine

the remaining issues, such as an appropriate amount of

compensation or whether particular remedial building

work is defective.

Combined Leave and Review Hearing

If the issues raised are particularly technical, such as the

interpretation of the building contract, or of a statutory

provision, the Tribunal will hold a single hearing at which

both the application for leave, and the review, will be

heard together.

If determination of those issues in favour of the

applicant has the consequence that findings have to

be made concerning matters such as the amount of

compensation payable, or whether building work is

defective, the Tribunal may direct that those matters be

determined at a later hearing. The procedures relating

to review hearings outlined above will then apply.

Further Information

The Tribunal oversees the preparation of the matter

for hearing through the conduct of directions hearings.

Further details of the process following the lodging

of the application, the holding of a directions hearing

and the form of orders usually made are set out in the

Tribunal’s Practice Note 13 - Review Proceedings under the

Building Services (Complaint Resolution and Administration)

Act 2011 which can be found on the Tribunal’s website

www.sat.justice.wa.gov.au.

A Guide for the Conduct of Internal Reviews of OrdersMade Under Section 38 and Section 43

of the Building Services (Complaint Resolution

and Administration) Act 2011

The Purpose Of This Pamphlet

The purpose of this pamphlet is to explain the

procedures and criteria which apply to applications

under s 58 of the Building Services (Complaint Resolution

and Administration) Act 2011 (the Act) which allows an

internal review of orders made by the Tribunal under s

38 and 43 of the Act when constituted without a Judicial

Member (Original Tribunal).

There is no automatic right to such a review and it is

necessary to obtain leave (permission) of the Tribunal

to do so. An application for leave must be made to the

Tribunal and cannot be made later than 30 days after the

order which is sought to be reviewed was made. That

time period may be extended by the Tribunal. Whether

an extension of time will be granted depends upon a

consideration of the extent of the delay, whether the

delay is fully and satisfactorily explained, the prospects

of success of the proposed review and prejudice to the

other party.

The application for leave and the review (if leave is

granted) must be heard by a Judicial Member or a Senior

Member who is legally qualified. Application can be made

to extend the time within which to apply for leave.

Criteria For The Grant Of Leave

There is a broad discretion whether to grant leave but

generally the following criteria and principles will be

applied.

1. The applicant must show:

• Either that the decision was wrong or the

decision was at least attended with sufficient

doubt to justify the grant of leave; and

• a substantial injustice would be done by leaving

the decision unreversed.

2. The Judicial or Senior Member will be slow to

grant leave to review except in cases where there

is no discernible basis for the decision or where

fundamental rules of natural justice have been

breached.

3. What is a substantial injustice depends entirely on

the circumstances of the case but the following

principles apply:

• if the value of the dispute is trivial, an inability to

have the decision reviewed would generally not

lead to a substantial injustice;

• the significance of the amount in dispute might

depend upon the value of the building work out

of which the dispute arose;

• it may be that in some cases it will be sufficient

to show that there is a significant question of law

to be considered. In others it may be possible to

point to some other feature which requires the

consideration of a Judicial or Senior Member to

avoid a substantial injustice if leave is not granted.

Internal Review Procedures

The proposed grounds for review and the reasons

for the earlier decision will be assessed to decide the

appropriate procedure to be followed.

Leave Application Hearing

The leave application hearing is usually limited to

the evidence put before the Original Tribunal. New

evidence may be permitted, but the Tribunal will usually

only allow new evidence if it can be shown that the

evidence with the exercise of reasonable diligence

could not have been presented at the initial hearing,

that if presented the evidence is likely to have led to a

different result and the evidence is credible.

If the issues raised by the proposed review are

wide-ranging, or dependant on an assessment of the

evidence given earlier, the application for leave will

usually be set down for a separate hearing.

If it is determined that leave should be granted, usually

only short reasons for decision will be given explaining

why that is so, without any final decision being made.

It is not uncommon, that leave should be granted,

in respect of some, but not all proposed grounds

for review. In that event, more detailed reasons for

decision will be given explaining why leave is refused

in respect of some grounds and will succinctly indicate

why leave is granted in respect of the other grounds.

If leave is granted in respect of any proposed grounds

of review the review hearing will then take place at a

later date.

The Review Hearing

Once leave has been granted the review is by way of

a rehearing, and is not confined to the material which

was before the Original Tribunal, but may involve the

consideration of new material, whether or not it

existed at the time when the decision under review

was made.

In most cases, reviews consider the transcript

of evidence before the Original Tribunal, and the

exhibits which were tendered in those proceedings,

supplemented by any necessary further evidence.

However, in an appropriate case, it may assist a better

determination of the matter by conducting an entirely

fresh hearing, at which all evidence is led again, with

limited reliance being placed on the transcript of

evidence before the Original Tribunal, such as for the

purpose of cross-examination of witnesses, or to

demonstrate inconsistencies in either party’s case.