Less than two weeks apart, two District Court Judges decided the same building law question, for the first time, in opposite ways.
The question was: can the Magistrates Court deal with a dispute that could have been raised before the Building Commissioner under the Building Services (Complaints Resolution and Administration) Act 2011, s.5?
Judge Goetze in Malatynksi v Ranclaud [2017] WADC 75 said yes; Judge Troy in Lewis v Garvey [2017] WADC 76 said no.
In reaching opposite conclusions, both judgments cited the views expressed by Judge Stevenson in Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99: Judge Goetze approving and Judge Troy rejecting those views.
The two Judges were free to reopen the question despite Judge Stevenson's prior consideration of it because Judge Stevenson's views had not formed part of his reasons for decision. Rather, Judge Stevenson had decided the jurisdictional question on the unrelated basis that the relevant buildings in the case before him, being transportable homes, were not "dwellings" and therefore could not come within the Commissioner's jurisdiction in any event.
The conflict between the judgments of Judges Goetze and Troy has thrown the law concerning the Magistrates Court's jurisdiction in WA building cases into a state of confusion which only the Court of Appeal or the legislature can clarify.
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