Applications for Leave to Review: Guiding Self-Represented Litigants

Navigating the complexities of the Building and Energy and State Administrative Tribunal (SAT) dispute resolution process can be overwhelming, particularly for self-represented litigants in Western Australia.

Many individuals attempt to address their disputes without legal assistance. Navigating the building dispute resolution process alone can be highly risky. Sometimes, self-represented litigants make mistakes during the dispute resolution process. This article explains what to do if you are dissatisfied with a decision made by Building and Energy or the SAT.

Time Limit for Reviews

First and foremost, the unrepresented litigant must understand that Rule 9 of the State Administrative Tribunal Rules 2004 (WA) prescribes a time limit of 28 days to commence review proceedings.

Although it is possible to extend the time limit within which to commence review proceedings under Rule 10, litigants must understand that it is never guaranteed that an extension will be granted for a review out of time.

Litigants contemplating review proceedings should immediately seek legal advice from a competent lawyer to ensure that the 28-day period is not missed and to understand when the 28-day time period commences and ends.

Review of a Decision by Building and Energy

The review of decisions of the Building Commissioner is governed by section 57 of the Building Services (Complaints Resolution and Administration) Act (BSCRA Act).

Such reviews are conducted “de novo”, which means “from the beginning’’.

The SAT hearing a review de novo must reassess the case from the beginning, rather than merely examining whether the original decision was correct. In a de novo hearing, the SAT stands in the shoes of the original decision-maker (See M & P Russo Holdings Pty Ltd and Gray [2012] WASAT 205).

A de novo hearing also grants the SAT the same powers as the original decisionmaker, enabling it to make an entirely new decision. This is fundamentally different from an appeal, which pertains to legal errors in the original finding. 

Review of a Decision by the SAT

Under section 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the SAT also exercises its review jurisdiction by conducting a de novo hearing.

In a de novo hearing, the SAT has all the powers of the original authority as conferred by the BSCRA Act and section 29 of the SAT Act. Importantly, section 29(3) empowers the SAT to re-evaluate decisions with a focus on achieving the most accurate and fair outcome based on the available evidence.

Before a hearing de novo can take place, the litigant seeking a review is required by section 58(5) of the BSCRA Act to obtain "leave" (permission) from the SAT for a review hearing de novo.

What Is an Application for Leave to Review?

An application for leave to review is a hearing before the SAT to determine whether the aggrieved litigant should be entitled to a de novo hearing. A de novo hearing will only be allowed if the aggrieved litigant can convince the SAT to grant "leave to review".

Leave to review is not required where the Building Commissioner’s decision is subject to review. Leave to review is, however, required where the SAT’s own decision is subject to the review.

Applications for leave to review are not automatically granted. The applicant must meet the specific criteria established in Myran Holdings Pty Ltd v Bombak [2013] WASAT 20, cited with approval in Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 102. Some of the criteria include:

1. Error or Sufficient Doubt: The applicant must demonstrate that the original decision was incorrect or attended with sufficient doubt.
2. Substantial Injustice: It must be shown that denying leave would cause substantial injustice to the applicant.
3. Beyond Apparent Error: Additional factors, such as a significant question of law or a breach of natural justice, must necessitate further review.

Challenges Faced by Self-Represented Litigants

Self-represented litigants often encounter hurdles due to limited understanding of the legal system, language barriers, and procedural nuances. We have commonly encountered litigants who face the following challenges:

• Uninformed decisions: We have encountered clients who made uninformed decisions during the dispute resolution process, which has significantly complicated the direction of the litigation, resulting in incorrect decisions being made by the SAT. The SAT is obligated by the SAT Act to come to the assistance of self-represented litigants, but in practice this does not always happen.
• Inadequate Evidence: Some litigants sometimes fail to present sufficient documentary and witness evidence to support their claims, resulting in unfortunate decisions being made on the available evidence.
• Review Out of Time: Self-represented litigants often fail to commence their review applications within 28-days.

How We Can Assist

Our legal team provides tailored support for individuals seeking to review decisions of the Building Commissioner and of the SAT. We offer:

• Legal Advice: We can critically analyse transcripts and documents and provide you with tailored advice as to your prospects of success.
• Representation: We can represent you at the de novo hearing to ensure that the Tribunal arrives at the correct and preferred decision.
• Persuasive Legal Argument: We can prepare clear, comprehensive legal argument to help you obtain leave to review and ultimately achieve the correct and preferred decision on review.

Previous Successful Review Based Decisions

An example of instances where Will Vogt has been successful in applying for a review of a decision of the tribunal is: Dumbreck v Tangent Nominees Pty Ltd [2017] WASAT 88 

Why Legal Representation Matters

While a de novo review provides the chance to present new evidence, it is a missed opportunity without proper guidance. Experienced legal representation ensures that your case is effectively presented, procedural nuances are navigated, and your rights are protected.

Take the Next Step

If you are aggrieved or dissatisfied with a decision of the SAT or the Building Commissioner and believe you have grounds for review, do not attempt to navigate this complex process alone. You only have one last chance to make it right. Contact our experienced team today to discuss your case and explore how we can assist in achieving a favourable outcome on review.