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: [email protected]
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.