We have successfully handled large construction disputes in the courts, in the State Administrative Tribunal ('SAT') and in the Building Disputes Tribunal for all sorts of clients including construction companies, structural steel companies, developers and home owners.
We handled a case involving the owners of Lots in a Mandurah Canal subdivision in dispute over access to jetties and the case was won.
We represented a prominent winery in dispute with a builder that was set down for a 4 day trial in the SAT. On day 2 of the trial the other side's lawyers advised us their client would not continue defending the case and they consented to judgment for all of our client's claims and completed rectification work as ordered by the SAT.
SAT has been created by a range of legislation which gives it jurisdiction to deal with a variety of matters. The State Administrative Tribunal Act 2004 (the “SAT Act”) is the central legislation as it creates the tribunal and establishes how it will operate.
The companion to the SAT Act is the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (Conferral Act). It amends 137 Acts (“enabling Acts”) and repeals two Acts. The jurisdiction of the enabling Acts has been transferred to the SAT.
When dealing with a SAT matter practitioners should look to:
* the SAT Act
* the enabling Act (as amended by the Conferral Act)
* the regulations under both Acts
* SAT rules (SAT Act s172)
* Practice notes issued by the Rules Committee (SAT Act s33)
s13 of the SAT Act sets out the SAT’s two primary sources of jurisdiction:
* enabling Acts which permit applications to be made to the SAT and confer jurisdiction on the SAT – in this case check the enabling Act.
* jurisdiction given to the SAT by the SAT Act
s14 of the SAT Act sets out the type of jurisdiction the SAT will have:
1. Original jurisdiction – where SAT members adjudicate matters relating to areas including guardianship issues and Commercial Tribunal matters. When acting in its original jurisdiction the SAT must act in accordance with the SAT Act (s9) and the enabling Act that confers jurisdiction (s16).
2. Review jurisdiction – where the SAT reviews government-based decisions made by a primary decision maker. This will occur where the enabling Act refers to the SAT a matter that expressly or necessarily involves the review of a decision. This decision is deemed to be a reviewable decision for the purposes of the SAT Act (s17).
Our practice is located outside of the Perth CBD and because of this our hourly rates are 20% lower than the standard rates charged by most Perth law firms. Our rates are extremely competitive compared to the rates charged by other commercial law firms.
In our experience sometimes clients shop around with quotes that we provide, which of course is their right. We always tell clients, therefore, if they receive what they think is a better price they can forward it to us and we will match it.
Constitution of the Tribunal
- In most matters the tribunal is to be constituted by three members. An enabling Act may provide for more than three members. The President decides the constitution of the tribunal.
- When dealing with the decision of a vocational regulatory body (as defined by s3) there must be one member who has extensive experience in the same profession or industry as the person effected by the decision, one lawyer, and one person who is not engaged in the same industry but who has a knowledge of the interests of the person who deals with persons engaged in the relevant industry.
Members of the Tribunal
Section 107 sets out the membership of the Tribunal. There is to be three judicial members – the President and two Deputy Presidents, senior members with more than eight years legal experience or special knowledge, members with over five years legal experience or special knowledge, and magistrates who are used primarily for hearings in regional areas. Public sector employees may be members in certain circumstances (s117(5)).
Important aspectsof the SAT Act
- Section 5: states that the enabling Act prevails
- Section 6: states that the Crown is bound by the SAT Act
- Section 9: sets out the main objectives of the SAT
- Section 19: sets out the relationship between the statutory review under this Act and judicial review by a court
- Sections 20-24: provide a framework for obtaining the reasons for why decisions have been made and the reviewing of the decision
- Section 27: outlines the nature of the hearing undertaken in the review jurisdiction
- Section 28 provides that if government policy was used by the original decision maker then that policy will be looked at in the course of review
- Section 29: puts the SAT “In the shoes of the decision maker” in making its review
Rules of Procedure for hearings before the SAT
- The rules of natural justice will apply. The SAT is not bound by the rules of evidence (s32).
- Fundamental premise is that the SAT must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities (s32(2)(b)).
- The SAT can control proceedings by limiting the amount of time parties can take to present their arguments (s32(7)).
- The SAT is to be flexible (s32).
- Hearings are to be public (s61) but applications can be made for in camera hearings (s61(4)).
- The SAT may place restrictions on what is published from the hearings (s62).
- People are not excused from answering questions or producing documents on the ground it may incriminate them (s68).
- Parties are able to request that they wish to summons witnesses (s66).
- Person may be directed to produce documents notwithstanding rules of law regarding privilege or public interest (s34(5) and s35).
- Specified by s36 and include the applicant, person joined as a party, and intervenors
- Any person can apply to the SAT for an order joining a person as a party (s38).
- The SAT is to be a tribunal not a court and so parties can appear in person and represent themselves. However, they may also have a lawyer represent them (s39).
- Articled clerks do not have automatic right of appearance (s39). This section also sets out the circumstances where a non-lawyer may represent a person in proceedings before the SAT.
Minor Matters procedure
- A minor matter is one with a monetary value of less that $7,500 or where an enabling Act or regulations provide it to be a minor matter.
- If a matter is a minor matter the applicant may elect that no party have legal representation, that the matter be dealt with on the papers, and that there be no appeal from the SAT’s decision.
Serving the Application
- When the Executive Officer of the SAT accepts an application the proceeding commences (s42(3)).
- The applicant must give a copy of the application to all other parties to the proceedings (s45(1)).
- Service may be waived in some circumstances (s45).
Conferences and Mediation
- Private compulsory conferences are held to identity issues and attempt settlement of disputes (s52).
- A compulsory conference can proceed in the absence of a party and a determination can be made (s53).
- A person approved by the President of the SAT can refer the matter to private mediation without the parties’ consent (s54).
- A member who acts as mediator can not later participate in a hearing without the parties’ consent.
- Things said and done in a compulsory conference and/or mediation are inadmissible as evidence unless the parties agree, unless it is evidence of directions or orders, or unless it is relevant to proceedings regarding false and misleading statements (s98), contempt (s100).
- Each party is to bear their own costs of proceedings unless otherwise provided for by the SAT Act, an enabling Act or an order of the tribunal (s87(1)).
- The tribunal may order costs where a party who is not a party to the proceedings is asked to supply a document. The SAT may require the applicant to pay any costs incurred in the production of such documents. In addition the tribunal may order costs to be paid as compensation for any expense, loss or embarrassment caused to a party as a result of being a party to the proceedings.
- Costs may be imposed as a ‘penalty’ in the review jurisdiction if a party is found to have failed to assist the decision maker to make the decision in the original jurisdiction which has led to the review(s84(4)).
- An order for costs against a party may be made if the actions of a party’s representative resulted in unnecessary costs (s87(6)).
Decisions and orders
- Where a decision is final or reserved the SAT must give the decision in writing. It must also give it in writing where the party requests it be provided in writing (s74).
- A transcript of proceedings may be adequate to constitute a written decision (s79).
- The written decision must be given to each party, to any other person entitled to notice, and to any other person prescribed in the rules (s75).
- The SAT is to deliver its decision within 90 days after which it makes its decision, unless granted an extension by the President (s75).
- The SAT is required to give reasons for its decision (s77).
- The SAT’s decisions take effect immediately (s82) unless the decision specifies a later time or unless the decision is made in the review jurisdiction under s29(5) whereby the decision made takes effect from when the original decision the subject of the review was made. In addition, a stay of the decision my by ordered by the Supreme Court under s106.
- A person who did not appear or who was not represented at a hearing may apply to the SAT for a review of their decision. This may occur where the person did not receive notice of the hearing as they were away or where their representative fails to appear at the hearing (s84).
Enforcement of Orders
- A party may enforce a monetary order made by the SAT in an appropriate court (s85).
- A non-monetary order made by the SAT should be filed in the Supreme Court. Once this is done it is deemed to be a decision of the Supreme Court and can be so enforced (s86). Note, a member of the SAT must certify that the decision is appropriate to be filed in the Supreme Court.
- The SAT may enforce its orders where they relate to contempt proceedings (s100), failing to comply with a decision or summons (s95 and 96), failing to give evidence (s97), giving false or misleading information (s98), and misbehaviour and other conduct (s99).
- As a general rule a person is entitled to appeal a decision of the SAT on a question of law with leave (s105). However, an enabling Act may provide otherwise. The provision of the enabling Act will prevail.
- Where a non-judicial member has presided over the proceedings any appeal must be made to the Supreme Court. Where a judicial member presided the appeal must be made to the Appeal Court.
- An appeal of fact or law may be made under the Acts listed in Schedule 1.
Liability limited by a scheme approved under Professional Standards Legislation.