Byrne v The Owners of Ceresa River Apartments Strata Plan 55597

[2016] WASC 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BYRNE -v- THE OWNERS OF CERESA RIVER APARTMENTS STRATA PLAN 55597 [2016] WASC 153

CORAM:   PRITCHARD J

HEARD:   10 NOVEMBER 2015

DELIVERED          :   20 MAY 2016

FILE NO/S:   GDA 8 of 2015

BETWEEN:   JAMES ANTHONY BYRNE

Appellant

AND

THE OWNERS OF CERESA RIVER APARTMENTS STRATA PLAN 55597
Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :DR B DE VILLIERS (TRIBUNAL MEMBER)

File No  :CC 186 of 2015

Catchwords:

Strata titles - Where appellant had been renting out apartment for short-term accommodation - Where State Administrative Tribunal concluded that short-term letting contravened strata scheme by-laws - Appeal to Supreme Court - Whether Tribunal member erred in interpretation of by-law - Where Tribunal member erred in treating by-law as subsidiary legislation - Where error of law did not affect outcome - Appeal dismissed

Appeal from State Administrative Tribunal - Whether appeal on a question of law - Identification of question of law for purposes of State Administrative Tribunal Act 2004 (WA) s 105(2) - Whether relevant question of law should be set out in appeal notice - Whether ordinary meaning of word is a question of law

Strata Titles Act 1985 (WA) - Where default by-laws under s 42 of Act replaced by by-laws created by management statement - Whether by-laws created by management statement are subsidiary legislation or statutory contract - Interpretation Act 1984 (WA) s 5 - Whether by-laws made by management statement have legislative effect - Strata plan by-laws made by management statement are statutory contract not subsidiary legislation

Contractual interpretation - Principles applicable to the interpretation of statutory contracts - Whether ordinary rules of contractual construction are modified - Whether terms used in strata plan by-laws made by management statement should be given the meaning they bear in Strata Titles Act 1985 (WA)

Statutory interpretation - Meaning of 'resident' in Strata Titles Act 1985 (WA) - Whether Strata Titles Act 1985 (WA) and Residential Tenancies Act 1987 (WA) are in pari materia - Whether Strata Titles Act 1985 (WA) and Planning and Development Act 2005 (WA) are in pari materia

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)
Federal Court Rules 2011 (Cth)
Interpretation Act 1984 (WA)
Local Government Act 1960 (WA)
Local Government Act 1995 (WA)
Planning and Development Act 2005 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA)
Strata Titles Act 1973 (NSW)
Strata Titles Act 1985 (WA)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr C P Shanahan SC

Respondent:     Mr M A Atkinson

Solicitors:

Appellant:     Dwyer Durack

Respondent:     Atkinson Legal

Cases referred to in judgment:

Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71

Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399

Bargouthi v ING Custodians Pty Ltd [2003] FCA 1272

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253

Chin v Legal Practice Board Western Australia [2009] WASCA 117

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commissioner for Consumer Protection v Carey [2014] WASCA 7

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Dainford Ltd v Smith (1985) 155 CLR 342

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491

Lennon v Gibson & Howes Ltd [1919] AC 709

Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; (2005) 223 ALR 560

Lourey v Legal Profession Complaints Committee [2012] WASCA 112

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990

National Roads and Motorists' Association Ltd v Parkin [2004] NSWCA 153; (2004) 60 NSWLR 224

North Wind Pty Ltd v Proprietors ‑ Strata Plan 3143 [1981] 2 NSWLR 809

Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320

Owners of Pearl Beach Survey-Strata Plan 49019 and Heyns [2011] WASAT 66

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724

R v Lavender [2005] HCA 37; (2005) 222 CLR 67

Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92

Rowell v Clark [2006] WASC 159

Ryan v Worthington [2015] QCA 201

Sea Shepherd Australia Ltd v State of Western Australia [2014] WASC 66; (2014) 313 ALR 184

Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233

Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 231 CLR 160

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72

The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239

Zhu v Treasurer of New South Wales [2004] HCA 56; (2004) 218 CLR 530

Table of Contents

1.     The terms of By-Law 16
2.     The factual context
3.     The grounds of appeal
4.     Why leave to appeal should be granted

The scope of an 'appeal' under s 105 of the SAT Act
Identification of the 'question of law'
Is the appeal brought on a question of law?
Should leave to appeal be granted?

5.     The principles applicable to the construction of By-Law 16

Characterisation of the By-Laws
By-laws made under the ST Act
Are the By-Laws properly characterised as subsidiary legislation?
What principles of construction apply to the By‑Laws?

6.     The Tribunal's findings
7.     Disposition of the grounds of appeal

Ground 1(1) of the grounds of appeal

Mr Byrne's contentions
Why Mr Byrne's contentions must be rejected

Ground 1(2) of the grounds of appeal
Ground 1(3) of the grounds of appeal
Ground 1(4) of the grounds of appeal
Ground 1(5) of the grounds of appeal
Ground 2 of the grounds of appeal
Ground 3 of the grounds of appeal

Conclusion

1. PRITCHARD J:  In recent years it has become increasingly common for owners of residential premises to rent out their premises to third parties for short periods for holiday or business purposes. Those arrangements can give rise to a number of problems. The present case is one example.

2. Mr Byrne and his wife are the owners, as joint tenants, of an apartment (Lot 14)[1] in a 113‑lot complex in Rivervale (the Complex).  The Complex is the subject of a strata scheme, and a strata plan in respect of that scheme (known as The Owners of Ceresa River Apartments Strata Plan 55597) was registered in 2008, pursuant to the Strata Titles Act 1985 (WA) (the ST Act). The Respondent is the strata company for the scheme.

   [1] Lot 14 on Strata Plan 55597 Certificate of Title 2695 Folio 414.

3. For some time, Mr and Mrs Byrne have been renting out Lot 14 to others for accommodation, for periods as brief as four days.  They would like to keep doing so.  A dispute has arisen as to whether the proprietors of lots in the Complex are entitled to rent out their lots for accommodation on a short-term basis as Mr and Mrs Byrne have been doing. 

4. The Respondent has taken the view that to do so constitutes a breach of By-Law 16 of the by-laws applicable to the strata plan (the By‑Laws).  It commenced proceedings in the State Administrative Tribunal seeking an order that Mr and Mrs Byrne, and the proprietors of two other lots in the Complex who were also renting out their lots on a short-term basis, refrain from entering into any letting agreement, leasing arrangement, or any agreement conferring a right to occupy their lots, for a term of less than three months in any 12‑month period, and that they refrain from advertising their lots as available for let, lease or occupation for such period.

5. The Respondent was successful on that application.  The Tribunal made orders (the Orders) on 24 June 2015, with effect from 1 August 2015.  It published reasons for making the Orders.[2]  The Orders included an order that Mr and Mrs Byrne (and the other owners who were parties to the application) should not utilise their lots for 'short-stay accommodation', because such a use was inconsistent with, and unauthorised by, By-Law 16.  Regrettably, the Orders are, on their face, ambiguous in so far as they prohibit use of the lots for 'short‑stay accommodation', because that term was not defined in the Orders, nor anywhere in the reasons for decision of the learned Member.

   [2] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72.

6. However, there was undisputed evidence before the Tribunal that in the case of Mr and Mrs Byrne, they had offered to rent out Lot 14 for periods as brief as four days,[3] and Mr and Mrs Byrne admitted that they had accepted bookings for Lot 14 for 'short-term accommodation'. For present purposes, I have approached any references to 'short-term accommodation' or 'short‑stay accommodation' in the learned Member's reasons and in the Orders as encompassing the grant of a right to occupy Lot 14 for accommodation for periods as brief as four days.

   [3] Applicant's Documents in the Tribunal, 114.

7. Mr Byrne now seeks to appeal against the Tribunal's decision to make the Orders, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).[4]  Mr Byrne requires leave to do so.[5]  The question of leave to appeal was dealt with at the hearing of the appeal.

   [4] The appeal was brought only by Mr Byrne.  None of the other owners the subject of the Orders appealed.  Rather, counsel for Mr Byrne suggested that if the appeal were successful, it was contemplated that at that stage, orders might be sought to join other parties in the appeal, with a view to extending to them the operation of any orders made by the Court.

   [5] State Administrative Tribunal Act 2004 (WA) s 105(1).

8. For the reasons outlined below, leave to appeal should be granted, but the appeal should be dismissed.

9. In these reasons for decision, I deal with the following matters:

   1.The terms of By-Law 16;

   2.The factual context;

   3.The grounds of appeal;

   4.Why leave to appeal should be granted;

   5.The principles applicable to the construction of By‑Law 16;

   6.The Tribunal's findings; and

   7.Disposition of the grounds of appeal.

1. The terms of By-Law 16

1. When the strata plan for the Complex was lodged for registration, it was accompanied by a management statement[6] which repealed all of the by-laws in sch 1 and sch 2 to the ST Act which would otherwise have been deemed to apply to the Respondent (the default by-laws),[7] and set out the By-Laws that were to have effect.[8] 

   [6] Strata Titles Act 1985 (WA) s 5C(1).

   [7] Strata Titles Act 1985 (WA) s 42(2).

   [8] Strata Titles Act 1985 (WA) s 5C(2) and s 5C(5); and see also s 42, s 42A and s 42B.

2. The By-Laws include By-Law 16, which provides:

   16.Use of Premises

   16.1Subject to the Schedule 1 bylaw 16 a proprietor of a residential lot may only use his lot as a residence.

   16.2Notwithstanding bylaw 16.1 a proprietor of a residential lot may:

   16.2.1grant occupancy rights in respect of his lot to residential tenants;

   16.2.2conduct business from his lot so long as:

   16.2.2.1the proprietor does not invite customers of the business to visit the lot for the purpose of conducting the business;

   16.2.2.2the conduct of the business from the lot does not breach any local authority bylaw or regulation;

   16.2.2.3the conduct of the business does not cause any inconvenience to the proprietors of other lots;

   16.2.2.4the business does not involve the manufacture storage or vending of goods.

   16.3Notwithstanding bylaw 16.1 the original proprietor of the land may use any lot owned by the original proprietor for the purposes of display to prospective purchasers of that or other lots within the scheme.

   16.4If a proprietor grants occupancy rights in respect of his lot he shall:

   16.4.1promptly provide the council with the full name of each occupier;

   16.4.2give each occupier a copy of the bylaws and the rules (if any) at the commencement of occupation; and

   16.4.3procure that the occupancy agreement contains a provision to the effect that the occupier will comply with the bylaws and the rules and that any breach thereof will constitute a breach of the occupancy agreement which will entitle the proprietor to terminate the occupancy agreement with the occupier.

1. The factual context

1. In its application to the Tribunal, the Respondent filed a Statement of Issues, Facts and Contentions (SIFC).  Mr and Mrs Byrne filed a responsive SIFC, in which they admitted the facts pleaded by the Respondent in the SIFC in so far as those facts applied to them. 

2. The facts in relation to these matters were as follows:[9]

   [9] Paragraph numbers of the Respondent's Statement of Issues, Facts and Contentions, and references to the documents filed in the Tribunal in relation to the pleaded facts, have been omitted.

   The strata scheme known as The Owners of Ceresa River Apartments Strata Plan 55597 was created on 14 July 2008 on registration of strata plan 55597.

   It is a 113-lot scheme comprising 113 residential apartment dwellings within the City of Belmont and accordingly all lots with[in] the scheme are residential lots.

   …

   … Mr and Mrs Byrne are the proprietors of lot 14 on the strata plan (Lot 14).

   Mr and Mrs Byrne reside [elsewhere] and have not notified to the [Respondent] the name of any residential tenant.

   …

   Registered on the strata plan pursuant to section 5C [of the ST Act] is a management statement K654715 (management statement).

   The management statement includes [by-law 16.1, 16.2 and 16.4].

   …

   Zoning and Permitted Use

   The parcel is within a Mixed Use Zone.

   …

   By Planning Approval dated 23 May 2013 (Lot 14 Planning Approval) the city of Belmont approved a change of use for Lot 14 from Multiple Dwelling to Serviced Apartment.  The Lot 14 Planning Approval noted, in footnote i., that the planning approval did not negate the need to obtain other approvals.  Such approvals may include from the strata company.

   …

   Under the City of Belmont Local Planning Scheme 15 (LPS 15):

   (a)serviced apartment means an independent living residential unit providing for short stay accommodation;

   (b)short stay accommodation means the accommodation of short stay guests providing on site facilities for the convenience of guests and management of the development, where occupation by any person is limited to a maximum of 3 months in any 12 month period, and excludes any other use falling within a use class specifically defined in this scheme.

   Under the Residential Design Codes (State Planning Policy 3.1):

   (a)Dwelling means a building or a portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or not more than 6 persons not comprising a single family;

   (b)Mixed use development means buildings that contain commercial and other non-residential uses in conjunction with residential dwellings in a multiple dwelling configuration; and

   (c)Multiple dwelling means a dwelling in a group of dwellings on a lot where any part of the plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other but:

   •Does not include a grouped dwelling; and

   •Includes any dwellings above the ground floor in a mixed use development.

   The … Lot 14 Planning Approval … [was] also subsequent to the registration of the strata plan and management statement.

3. In addition, the SIFC referred to the existence of a by-law which was included in the By-Laws in 2010, and which dealt with short-term use of lots in the Complex (the Short-Term Use By-Law).  The facts and the agreed position in relation to that By-Law were as follows.

   Recorded on the strata plan on 4 October 2010 (the date the short-term use by-law became effective) pursuant to section 42 is Notification L444294, which contains schedule 2 by-law 1 (short-term use by-law).

   The short-term use by-law is in the following terms:

   1.Short-term Use

   In this by-law the term 'Short-term Use' means the use of a proprietor's Lot for occupancy as short-term temporary or holiday accommodation for periods of less than three (3) months.

   Subsequently to the adoption of the by-law no proprietor shall change the use of his or her Lot to use or allow to be used his or her Lot for Short-term use as herein defined or for any commercial use without first obtaining the consent of the Strata Company pursuant to a Special Resolution.

4. At the hearing of the appeal, it was not in dispute[10] that in separate proceedings before the Tribunal in 2015 Mr Byrne had applied for an order, which was not opposed by the Respondent, declaring that the Short‑Term Use By-Law was invalid, and that the Tribunal made an order of that kind.[11] 

[10] ts 19.

[11] According to a Statement of Agreed Facts filed in proceeding CC 459/2015 in the Tribunal (which formed part of the materials placed before the Court in this Appeal), the basis for Mr Byrne's application for a declaration as to the invalidity of the Short-Term Use By-Law was that that by-law could only be included in the by-laws pursuant to a special resolution of the proprietors of the lots in the strata scheme, and that the number of proprietors present when the resolution was passed was insufficient to meet the requirements for a special resolution.  That Statement of Agreed Facts indicated that the Respondent did not oppose an order declaring the Short-Term Use By-Law to be invalid on that basis.

1. The grounds of appeal

1. The grounds of appeal are as follows:

   1.The learned member, having correctly found that "nothing in By law 16 explicitly prohibits short stay accommodation", erred in law in determining that short­stay accommodation was inconsistent with, and unauthorised by, the By-Laws of the Strata Scheme ("By‑Laws"), in that the learned member:

   (1)Misconstrued the Strata Titles Act 1985 ("ST Act") in construing that it did not assist in construing the terms "residence", "occupancy rights"  or "residential tenants"  appearing in the By‑Laws ("Terms").

   (2)Misconstrued the terms of the Residential Tenancies Act 1987 ("RT Act") to conclude that s 5(2)(e) of the RT Act specifically excluded from the definition of "residence" or "residential" in that Act, any accommodation occupied for the purposes of a holiday (or short-term accommodation).

   (3)Selected a meaning of each of the Terms that was inconsistent with the terms of the By-Laws read as a whole within the context of the ST Act.

   (4)Failed to approach construction of the Terms on the basis that the By-Laws were subsidiary legislation, and

   (5)Failed to approach the construction of the Terms on the basis that they are each technical legal terms, terms that are, absent clear words to the contrary, to be construed consistently with cognate legislation.

   2.In the alternative if the correct approach was to construe the Terms as if they were not subsidiary legislation, the learned member nevertheless erred in selecting preferred meanings for the Terms without regard to the statutory framework under which By-Law 16 was made, and the Appellant repeats Grounds 1(1), 1(2), 1(3) and 1(5).

   3.Further in the alternative if the correct approach was to construe the terms used in the By-Laws as if they were ordinary words not legal technical terms, the learned member nevertheless erred in selecting preferred meanings for those Terms without regard to the statutory framework under which By-Law 16 was made, and the Appellant repeats Grounds 1(1), 1(2), and 1(3).

1. Why leave to appeal should be granted

1. As I have already noted, an appeal may be pursued only if the Court grants leave to appeal. As s 105(2) of the SAT Act provides that an appeal may only be brought 'on a question of law'[12] the first issue requiring consideration in determining whether to grant leave to appeal is whether the appeal is brought on a question of law.[13] 

   [12] State Administrative Tribunal Act 2004 (WA) s 105(2).

   [13] Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing).

2. Counsel for Mr Byrne submitted that the question of law raised by the grounds of appeal was the proper construction of By-Law 16, and in particular, whether the learned Member erred in law in construing By‑Law 16 and concluding that short-stay accommodation was not authorised by the By-Laws.[14] 

   [14] Applicant's Submissions [13].

3. Counsel for the Respondent submitted that the appeal was not brought on a question of law. He also submitted that the question of law for the purposes of s 105(2) of the SAT Act had to be identified with precision, and that it was not sufficient for that question of law 'to be distilled from, or only provided in, the Applicant's submissions'.[15]

The scope of an 'appeal' under s 105 of the SAT Act

[15] Respondent's Submissions in Reply [19].

1. For present purposes, there are four things to note about the scope of an appeal under s 105.

2. First, the limits of the Court's jurisdiction to consider an appeal against a decision of the Tribunal are set out in s 105. Other than in respect of decisions of the Tribunal made under 'relevant Acts' (as defined in s 105(13) of the SAT Act), involving what may be called disciplinary or vocational decisions of the Tribunal, the Court's jurisdiction is confined to dealing with an appeal on a question of law.[16]  The existence of a question of law is thus a qualifying condition to the existence of the Court's jurisdiction.[17] 

   [16] State Administrative Tribunal Act 2004 (WA) s 105(2).

   [17] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [165] (Buss JA) citing Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [21] (French CJ, Gummow & Bell JJ) and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J) both of which dealt with similarly worded provisions in s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

3. Secondly, the scope of the appeal which may be brought is narrow.  An appeal may only be brought 'on a question of law'.  The subject matter of the appeal itself is the question (or questions) of law.[18]  That is a narrower basis for an appeal than an appeal which 'involves a question of law'.[19]  The position may be contrasted with appeals in respect of the disciplinary or vocational decisions of the Tribunal to which I have already referred, where an appeal may be brought on a much wider basis, namely 'on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact'.[20] 

   [18] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [165] (Buss JA) citing Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [21] (French CJ, Gummow & Bell JJ) and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J) both of which dealt with similarly worded provisions in s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

   [19] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].

   [20] State Administrative Tribunal Act 2004 (WA) s 105(13).

4. Thirdly, it is useful to bear in mind why the Court's jurisdiction to hear appeals from decisions of the Tribunal is so narrowly confined. The jurisdiction conferred on this Court under s 105(2) is a jurisdiction to review, for legal error, what has been done in the Tribunal. Leaving to one side appeals against decisions of the Tribunal in disciplinary or vocational matters, the reason for limiting appeals to this Court to appeals on a question of law is to ensure that the merits of the Tribunal's decisions are not dealt with by this Court.[21]  The merits of administrative decisions (and the findings of fact which are the basis for those decisions) are thus reserved for the discretion of the Tribunal.[22]  But if the Tribunal makes a legal error in the way in which it undertakes its fact-finding, or a legal error in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning, then an appeal lies to correct that legal error.  The appeal thus ensures that, amongst other things, the Tribunal does not act outside its jurisdiction.[23]  It is for that reason that the avenue of 'appeal' under subsections 105(1) and (2) has been seen as analogous to judicial review.[24]

   [21] Cf Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [194], [201] (the Court).

   [22] Cf Corporation of the City of Enfield v Development Assessment Commission[2000] HCA 5; (2000) 199 CLR 135 [43] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

   [23] Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [201] (the Court).

   [24] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331 - 332 [18] (French CJ, Gummow & Bell JJ); Commissioner for Consumer Protection v Carey [2014] WASCA 7 [163] (Buss JA).

5. Fourthly, the narrow scope for an appeal against a decision of the Tribunal is also confirmed by the fact that there is no appeal as of right against a decision of the Tribunal.  Rather, an appeal may only be brought with the leave of the Court.[25]

Identification of the 'question of law'

[25] State Administrative Tribunal Act 2004 (WA) s 105(1).

1. The fact that the Court's jurisdiction turns on whether the appeal is brought on a question of law means that identifying the question of law assumes a central importance in the appeal. 

2. Perhaps regrettably, neither O 65 r 10 of the Rules of the Supreme Court 1971 (WA) nor the applicable Appeal Notice (Form 83) requires the applicant to identify the question of law on which the appeal is brought. Rather, the only requirement is that the appeal notice set out the grounds of appeal, subject to some restrictions on what those grounds may allege.[26] (The position may be contrasted with r 33.12 of the Federal Court Rules 2011 (Cth), which expressly requires that the notice of appeal state 'the precise question or questions of law to be raised on the appeal'.) Despite the absence of an express requirement to do so, it would be desirable if the grounds of appeal filed by an applicant also set out a statement of the question or questions of law raised by those grounds.

   [26] Rules of the Supreme Court 1971 (WA) O 65 r 10(2).

3. The question of law on which the appeal is brought should be identified with precision by an applicant.[27]  If the question of law is not set out in the notice of appeal, then at the very least, the applicant's written submissions should set out the question of law, and explain how it arises from the grounds of appeal.  It should not be left to the Court to try to distill the question of law by reference to the ground or grounds of appeal.[28] 

   [27] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [165] (Buss JA)

   [28] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [21] (French CJ, Gummow & Bell JJ).

4. A failure by an applicant to specify the question of law, or some deficiency in the applicant's formulation of the question of law, will not mean that the Court does not have jurisdiction to deal with the appeal.[29]  But it will likely mean that the Court will turn its attention, at the outset, to ensuring that it does have jurisdiction to deal with the appeal.

   [29] Cf Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [97] (the Court).

5. Identification of the question of law on which the appeal is brought must be viewed as a matter of substance, rather than merely one of form.  In this respect, the observations recently made by the Full Federal Court in Haritos v Commissioner of Taxation,[30] in relation to appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), are in my respectful view, equally apt here:

   In our opinion, the issue must be approached as one of substance.  In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

   …

   Thus, although questions of law are not to be distilled from the grounds of appeal (Osland at [21]), this is a matter of practice and procedure rather than jurisdiction, and of degree, and should not be reduced to semantics at the expense of substance.

   [30] Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [94], [105] (the Court).

6. Similarly, it is not enough merely to assert that the appeal is brought on a question of law, or that the Tribunal 'erred in law' in making a particular finding or in its process of legal reasoning, if what the Tribunal did cannot properly be characterised as an error of law.[31]  If the question raised by an applicant is not, on its proper analysis, a question of law, 'linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law'.[32]

Is the appeal brought on a question of law?

[31] Cf Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [92] (the Court).

[32] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].

1. The distinction between errors of law, errors of fact, and mixed errors of law and fact, can be elusive.[33]  Many learned judges and academics have attempted to explain the distinction,[34] but 'no satisfactory test of universal application has yet been formulated'.[35]

   [33] Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233 [38] (Newnes AJA, Buss & Miller JJA agreeing).

   [34] See, for example, the various references set out by Allsop J (as his Honour was then) in Bargouthi v ING Custodians Pty Ltd [2003] FCA 1272 [27].

   [35] Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394 (Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ).

2. Some general statements of guidance in this area are well known.[36]  It is unnecessary to attempt any summary of those statements here.  The present dispute is, in my view, susceptible of a relatively straightforward answer. 

   [36] See, for example, Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 382 [54] ‑ [57] (Buss JA, Wheeler & Pullin JJA agreeing); Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394 (Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (the Court).

3. The proper construction of a statute or instrument is a question of law.[37]  Consequently, the question whether a word or phrase in a statute is to be given its ordinary meaning, or some technical or other meaning, is a question of law.[38]  Similarly, the proper construction of a contract is a question of law.[39]  On the other hand, determining the ordinary meaning of a word, or its non‑legal technical meaning, is a question of fact.[40]  In short, determining how the instrument is to be construed involves a question of law, but if the answer is that the words used are simply to be construed having regard to their ordinary meaning, the determination of what their ordinary meaning actually is will be a question of fact.[41] 

   [37] Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60, 79 (Isaacs J).

   [38] Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491 (Beaumont & Burchett JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (the Court).

   [39] Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60, 79; Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239 [82] (Heydon J) citing Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724, 736; Ryan v Worthington [2015] QCA 201 [12] (Morrison JA, Philippides & Flanagan JJA agreeing).

   [40] Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491 (Beaumont & Burchett JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (the Court).

   [41] See generally the discussion in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 396 ‑ 397 (Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ).

4. Counsel for the Respondent submitted that the proper construction of By-Law 16 involved giving the words used in the By-Law their ordinary meaning, and that determining the meaning of the words used in an instrument, when those words are used according to their common meaning, is a question of fact.[42]  However, those submissions do not fairly reflect the questions to which the grounds of appeal give rise.

   [42] Respondent's Written Submissions [17] ‑ [18].

5. As counsel for Mr Byrne submitted, the question raised by the appeal is the question of the proper construction of By-Law 16. Formulated in that very general way, there is room for argument about the extent to which a question of law may be involved. However, having regard to the grounds of appeal and to the submissions of counsel, it is apparent that the appeal raises a number of specific questions relating to the construction of By-Law 16, including the proper characterisation of by-laws made pursuant to the ST Act (as delegated legislation or as a statutory contract or otherwise); the proper approach to the construction of the By-Laws in view of that characterisation; the construction of the terms used in By‑Law 16 having regard to the context in which those terms are used; whether By-Law 16 must be construed so that it is consistent with the ST Act or the Residential Tenancies Act 1987 (WA) (RT Act); and whether the Short-Term Use By‑Law is of any relevance to the task of construing By-Law 16. Each of those questions ‑ which may be viewed as sub‑questions forming part of the broader question of the proper construction of By-Law 16 ‑ is a question of law.

Should leave to appeal be granted?

1. Once it is determined that an appeal raises a question of law, leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[43]  Whether it is in the interests of justice to grant leave to appeal will be informed by a variety of considerations, and there are no rigid or exhaustive guidelines governing the grant of leave.[44]  Considerations which may be relevant to that question include the importance of the question of law, whether there is sufficient doubt about the question of law to justify the grant of leave and whether substantial injustice would result if the error of law were not corrected.[45]  If the order below is final, that injustice will often be more readily discernible.[46]  Leave will not be granted simply because an error of law is alleged, if the error is not a vitiating error (that is, one which might have affected the ultimate decision).[47]

   [43] Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [28] (Murphy JA); Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing).

   [44] See the authorities discussed in Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27] (Martin CJ).

   [45] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 ‑ 373 [17] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing).

   [46] Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 [16] (Phillips JA, Tadgell & Batt JJA agreeing), referred to in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17] (Buss JA).

   [47] Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (the Court); Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [93] - [101] (Mitchell J).

2. In my view, leave to appeal should be granted for two reasons.

3. First, the question of the principles which should be applied in the construction of By-Law 16 (and in the construction of by-laws of strata companies more generally) is clearly one of general importance.  Although the construction of by‑laws has been addressed in decisions of the Tribunal,[48] the Tribunal does not appear to have given full consideration to the proper characterisation of by-laws made under the ST Act, and there is a dearth of authority in this Court directly addressing the point.

   [48] Owners of Pearl Beach Survey-Strata Plan 49019 and Heyns [2011] WASAT 66.

4. Counsel for the Respondent submitted that the appeal gave rise to no question of general importance because there was nothing to suggest that it could have general application.  He submitted that there was no evidence about the number of strata schemes in which short-stay arrangements exist.[49]  That consideration is not determinative.  The more pertinent question may be whether by‑laws in the same or similar terms have been made by other strata companies.  In that respect, I note that at the hearing before the Tribunal, counsel for the Respondent submitted that the By-Laws were similar to the by-laws adopted in respect of other strata developments built by a particular developer.[50]  In any event, even if the questions of construction raised by this appeal pertained only to By-Law 16, the outcome of its construction has the potential to affect all of the 113 proprietors of the lots in the Complex, either in the way in which they wish to use their own lots, or the impact on them of the use of lots in the Complex by other proprietors. 

   [49] Respondent's Submissions [21(a)].

   [50] ts 8 (16 June 2015).

5. Secondly, although I have formed the view that ultimately the appeal should be dismissed, the questions of law raised by the grounds of appeal are attended by sufficient doubt to warrant the grant of leave to appeal. 

6. For completeness, I note that counsel for the Respondent submitted that Mr Byrne sought to raise issues at the hearing of the appeal which had not been ventilated before the Tribunal, and that he should not be permitted to raise those matters.  The question of the construction of the By-Laws was raised before the Tribunal.  To the extent that new arguments in relation to that construction are now raised, there is no suggestion that the Respondent would have adduced different or additional evidence before the Tribunal had those arguments been canvassed before the Tribunal.  I see no reason why those arguments should not be considered in this appeal.

1. The principles applicable to the construction of By-Law 16

1. In order to determine the proper construction of By-Law 16, it is necessary first to determine the principles which govern that exercise of construction.

2. The primary submission advanced by counsel for Mr Byrne was that the By-Laws should be regarded as delegated legislation and that principles of statutory construction should therefore apply in their construction.  In the alternative he submitted that the By-Laws could be regarded as a 'statutory contract' and the principles of contractual construction would apply to the By‑Laws.  However, he submitted it was unnecessary to resolve the question as the outcome would be the same, whatever conclusion may be reached, having regard to the matters he submitted were relevant to the construction of the By‑Laws, and which he submitted that the learned Member had failed to take into account.[51]

   [51] ts 11.

1. Counsel for the Respondent also submitted that it was unnecessary to determine the question whether the By-Laws should be characterised as subsidiary legislation or a statutory contract because either way the task for the Tribunal was 'to determine the meaning of the words in By-Law 16 from its text, in context, and in light of the statutory purpose'.[52]

   [52] Respondent's Submissions [26] - [27], ts 61.

2. There are many parallels in the interpretation of a statute and the interpretation of a contract.[53]  The fundamental task is to discern the meaning of the words used, having regard to their context.  But in the case of statutory provisions, particular rules of construction apply which do not necessarily have a direct counterpart in contractual interpretation.  And in contractual interpretation, it is possible, in some circumstances, to have regard to extrinsic evidence of the surrounding circumstances known to all of the parties to the contract.[54]  In many cases, there will be no role for these particular rules of statutory construction, or for recourse to extrinsic evidence, so the principles actually employed in the construction exercise may be the same, irrespective of whether an instrument is characterised as statutory or contractual in nature. 

   [53] See Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [97] ‑ [100] (Heydon & Crennan JJ); Michael Kirby 'Towards a Grand Theory of Interpretation: The Case of Statutes and Contracts' (2003) 24 Statute Law Review 95.

   [54] CodelfaConstruction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason J).

3. This is not such a case.  Ground 1(3) of the grounds of appeal contends that the learned Member erred in his approach to the construction of By-Law 16, in that, amongst other things, he failed to take into consideration the Short‑Term Use By-Law.  As I explain below, if the By-Laws are characterised as a statutory contract, the Short‑Term Use By‑Law would be irrelevant to their construction.  The same conclusion may not necessarily follow if the By‑Laws are subsidiary legislation. 

4. Accordingly, in my view, in order to answer the questions of law raised by the appeal, it is necessary to undertake the task of characterising the By-Laws with a view to identifying the appropriate principles of construction which should be applied. 

Characterisation of the By-Laws

1. The Australian authorities relevant to the construction of by-laws of strata companies were comprehensively analysed by McColl JA (with whom Mason P agreed) in the New South Wales Court of Appeal in The Owners of Strata Plan No 3397 v Tate.[55]That analysis took place within the context of by-laws made under s 58 of the Strata Titles Act 1973 (NSW) (as it was then), which is in relevantly similar terms to s 42 of the ST Act. However, McColl JA did not express any final view on the question whether the by-laws in that case constituted subsidiary legislation or a statutory contract.[56] 

   [55] The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344.

   [56] The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344 [72] (McColl JA).

2. The decision in Tate is thus not determinative of the characterisation of the By-Laws in this case. And none of the authorities to which McColl JA referred is determinative of the characterisation of the By-Laws in this case, because none of them concerned by-laws made under the ST Act.

3. The question whether by-laws in, or made pursuant to, the ST Act should be characterised as subsidiary legislation or a statutory contract, has not been determined by this Court. In Rowell v Clark[57] Templeman J dealt with an appeal against a decision of the Tribunal on the ground that the Tribunal had failed to afford procedural fairness when it had regard to extrinsic material in construing a by-law, without giving interested parties the opportunity to respond to submissions made by others in respect of that material.  His Honour concluded that if the by-law was ambiguous then it was appropriate for the Tribunal to have regard to extrinsic evidence in its construction, but that the failure to permit the parties the opportunity to respond to any submissions made meant that it may not have received evidence which it should properly have taken into account.  His Honour also observed that if the by-law was not ambiguous, then it was not appropriate for the Tribunal to have had regard to any extrinsic material in ascertaining its meaning.[58]  On either view, the Tribunal had erred.  It does not appear that the issue of the characterisation of the by‑laws or the proper approach to their construction were the subject of argument before his Honour, but his Honour's conclusion appears to have proceeded on the implicit premise that the by-laws constituted a statutory contract.

   [57] Rowell v Clark [2006] WASC 159.

   [58] Rowell v Clark [2006] WASC 159 [40] - [41] (Templeman J).

4. More recently, in Re Carey; Ex Parte Exclude Holdings Pty Ltd[59] the Court of Appeal heard an application for judicial review of orders made by the Tribunal pursuant to s 81 of the ST Act directed to enforcing the by-laws of a strata company which were made under the ST Act. The characterisation of the by‑laws does not appear to have been expressly argued, but in an observation made by way of obiter dictum the Chief Justice (with whose reasons Wheeler JA agreed) expressed the view that the by-laws were in the nature of a statutory contract.  His Honour observed:[60]

   …in the circumstances of this case, the jurisdiction of the Tribunal which was invoked pursuant to s 83(1), was a jurisdiction to enforce the performance of duties imposed by the by-laws made by the relevant strata company which, by virtue of s 42 of the [ST Act], took effect as if covenants in a deed under seal executed by all relevant parties. The jurisdiction invoked was therefore an alternative means of enforcing the statutory contract created by the making of by-laws and the provisions of s 42 of the [ST Act], which obligations could otherwise have been enforced in any Court with jurisdiction over contractual disputes.  (emphasis added)

By-laws made under the ST Act

[59] Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501.

[60] Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 5019 [41] (Martin CJ, Wheeler JA agreeing).

1. The starting point in the characterisation of by‑laws in relation to a strata company is the provisions of the ST Act.

2. The default by-laws set out in sch 1 and sch 2 to the ST Act are deemed to be the by-laws of every strata company.[61]  However, the default by‑laws may be amended or replaced in either of two ways.

   [61] Strata Titles Act 1985 (WA) s 42(2).

3. First, when the strata/survey-strata plan is lodged for registration by the original proprietor, a management statement must be included which sets out the by-laws that are to have effect, including any amendments and repeals of the default by-laws as referred to in s 42(2) of the ST Act.[62]  As I mentioned earlier, in the present case, the management statement indicated that the default by-laws were repealed in their entirety, and replaced with the By-Laws.

   [62] Strata Titles Act 1985 (WA) s 5C(2).

4. Secondly, a strata company may at any stage replace the default by‑laws, either wholly or partially, with other by-laws in accordance with the relevant provisions of s 42.[63]  The ST Act requires that such alterations or amendments be effected by a resolution of the strata company passed without dissent, or by a special resolution.[64] Under s 42(1) of the ST Act, a strata company has a very wide power to make by-laws for its corporate affairs, any matter specified in sch 2A[65] and any other matters relating to the management, control, use and enjoyment of the lots and any common property, including a by‑law to confer on a particular proprietor special privileges in respect of the common property or part of it.[66]

   [63] Strata Titles Act 1985 (WA) s 42(2).

   [64] Strata Titles Act 1985 (WA) s 42(2), s 42(2b) and s 42(8).

   [65] The matters set out in sch 2A are matters that may be provided for in a management statement, including the control, management, use and maintenance of common property, internal and dividing fences, maintenance of services and utilities to the lots, and insurance of the common property.

   [66] Strata Titles Act 1985 (WA) s 42(8).

5. The by-laws of a strata company at any point in time may therefore be comprised of either the default by-laws (which are set out in their entirety in the ST Act); a hybrid of the default by-laws in the ST Act, together with additions or alterations made by the original proprietor or by resolution of the strata company; or may be comprised of terms which are, in their entirety, adopted by a resolution of the strata company, or (as in this case) by a decision of the original proprietor, who decides to replace all of the default by-laws at the point when the management statement for the strata/survey‑strata plan is registered. Whether the different forms that the by‑laws of a strata company may take has any bearing on their proper construction was not addressed in the submissions in this case, and for present purposes it is unnecessary to address that possibility. Instead, the analysis below is confined to the circumstances presented by this case, namely where the default by-laws are wholly replaced by by-laws made pursuant to a management statement.

Are the By-Laws properly characterised as subsidiary legislation?

1. The term 'subsidiary legislation' is defined in s 5 of the Interpretation Act 1984 (WA) in the following way:

   subsidiary legislation means any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect.

2. The term 'by-law' is also defined in s 5 of the Interpretation Act to mean 'a by-law made under the Act in which the term is used'.  The By‑Laws fall within that definition. 

3. The submission by counsel for Mr Byrne that the By-Laws should be characterised as subsidiary legislation is not devoid of merit. The By‑Laws are given the nomenclature of 'by-laws' by the ST Act, and are made under that Act. And by‑laws fall within the list of instruments referred to in the definition of 'subsidiary legislation' in the Interpretation Act. Furthermore, by‑laws under the ST Act apply to persons other than the strata company itself and the proprietors of the lots in the strata/survey‑strata plan.[67]  (I note that any alteration of the by-laws of a strata company does not become effective until notice of the alteration has been given to the Registrar of Titles, and a reference to that alteration has been made on the registered strata/survey‑strata plan.[68]  The content of the by-laws applicable to any strata company will thus be ascertainable by any interested third party by a search of the plan registered with the Registrar of Titles.)

   [67] Strata Titles Act 1985 (WA) s 42(6).

   [68] Strata Titles Act 1985 (WA) s 42(4).

4. In addition, unless a change to the by-laws of a strata company is made pursuant to the ST Act, the by-laws which will apply are the default by‑laws set out in sch 1 and sch 2 to the ST Act, and are in that sense directly mandated by the Parliament itself.[69] Furthermore, the power in the ST Act for a strata company to change its by-laws is cast in the language of legislative change: the by-laws may be 'amended, repealed or added to by the strata company'.[70]  Finally, if the by‑laws are altered by a strata company, the process by which that alteration may be effected means that the by-laws which subsequently apply may not necessarily reflect the consensus of each person who is, or will be, bound by them,[71] as would be the case if the terms of a contract were varied by the parties to that contract.

   [69] Strata Titles Act 1985 (WA) s 42(2).

   [70] Strata Titles Act 1985 (WA) s 42(2).

   [71] Strata Titles Act 1985 (WA) s 42(2).

5. Notwithstanding that the By-Laws have some of the features of subsidiary legislation, in my view the proper characterisation of the By‑Laws is that they are in the nature of a statutory contract.  I have reached that view for the following reasons.

6. First, the by‑laws of a strata company apply as if they were mutual covenants as between the strata company and the other persons bound by the by‑laws. That is made clear by s 42(6) of the ST Act, which provides:

   Without limiting the operation of any other provision of this Act, the by‑laws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the by-laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws.

7. The By-Laws are thus applied as if they constitute a contract between each of the persons referred to in s 42(6).[72] 

   [72] North Wind Pty Ltd v Proprietors ‑ Strata Plan 3143 [1981] 2 NSWLR 809, 814 (Rath J).

8. The terms of s 42(6) of the ST Act are capable of some analogy with s 140 of the Corporations Act 2001 (Cth) (and similar provisions in earlier companies legislation) which provides that the constitution of a corporation has effect as a contract between the company, each director and company secretary, and each member. Such instruments have come to be regarded as 'statutory contracts', reflecting the fact that their terms are deemed by statute to have contractual effect, although in a way significantly modified from that of an ordinary contract.[73]

   [73] See the discussion in Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399, 433 ‑ 438 (McHugh & Gummow JJ); Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 231 CLR 160 [30] (Gleeson CJ), [203] (Hayne J), [230] ‑ [231] (Callinan J).

9. Secondly, the By-Laws do not meet all of the requirements of the definition of subsidiary legislation in the Interpretation Act.  In my view, it is not sufficient to say that simply because the By-Laws are called 'by‑laws' they constitute subsidiary legislation within that definition.  Accordingly, before they may be regarded as 'subsidiary legislation', the by-laws of a strata company must be made under a written law (as to which there is no dispute in this case) and they have must have legislative effect. 

10. The meaning of the phrase 'legislative effect' in s 5 of the Interpretation Act was given detailed consideration by Edelman J in Sea Shepherd Australia Ltd v State of Western Australia.[74]  I am indebted to his Honour for his identification and discussion of the factors relevant to the determination of whether an instrument can be said to have 'legislative effect'.  Factors which will support the conclusion that the instrument has legislative effect include that the instrument creates a rule of conduct or contains a declaration as to a power, a right or duty; that there is a measure of control by the Parliament over the power reposed in the executive government to make the instrument; that there is a requirement for public consultation before an instrument takes effect; that there is a requirement for a decision maker to take into account a wide range of considerations before making the instrument; the broad nature and impact of the decision underlying the instrument; the absence of executive control over the decision; and the omission of a power of merits review.[75]  However, as his Honour observed, these are not exhaustive factors, and '[a]t the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation'.[76]

    [74] Sea Shepherd Australia Ltd v State of Western Australia [2014] WASC 66; (2014) 313 ALR 184.

    [75] Sea Shepherd Australia Ltd v State of Western Australia [2014] WASC 66; (2014) 313 ALR 184 [77] ‑ [81] (Edelman J).

    [76] Sea Shepherd Australia Ltd v State of Western Australia [2014] WASC 66; (2014) 313 ALR 184 [81] (Edelman J).

11. In my view, it cannot be said that the By-Laws have legislative effect. Although the by-laws of a strata company set out powers, rights and duties in respect of the strata company and the lots and common property which comprise the strata/survey‑strata plan, the by‑laws of a strata company do not have a general application because they apply only to the persons set out in s 42(6) of the ST Act.[77] 

    [77] Cf Dainford Ltd v Smith (1985) 155 CLR 342, 359 (Wilson J).

12. Historically, the term 'by-laws' was 'used to describe the legislation of a body having a limited geographical jurisdiction'.[78] Given that the by‑laws of a strata company apply only in respect of the lots the subject of the strata/survey‑strata plan, it is perhaps not surprising that that nomenclature was used in the ST Act. However, the by‑laws of a strata company made under the ST Act may be contrasted with 'by-laws' made under other legislation, and which are clearly given legislative effect by virtue of the provisions of the statutes under which they are made. Perhaps the most obvious example lies in the extensive power given to local governments to make by-laws under the Local Government Act 1960 (WA),[79] and what are now referred to as 'local laws' under the Local Government Act 1995 (WA).[80] 

    [78] See the discussion in D Pearce and S Argument, Delegated Legislation in Australia (4th ed, 2012) [1.7].

    [79] See Local Government Act 1960 (WA) pt VIII.

    [80] See Local Government Act 1995 (WA) s 3.5.

13. Other factors militate against the conclusion that the By-Laws have legislative effect. If the by-laws of a strata company are altered, the Parliament retains no control over when that occurs or the content of the by-laws (save in so far as the ST Act itself makes provision for those matters);[81] there is no requirement for any public consultation before the by-laws are amended; and there is no general requirement for the strata company to take into account any, or any specific, considerations before an amendment of the by-laws is made.[82]

    [81] Cf Strata Titles Act 1985 (WA) s 42(2) and s 42(8).

    [82] An amendment constituting a re-subdivision of the strata plan must, however, have the consent of every person who has a registered interest in a lot, or an interest protected by a caveat:  see Strata Titles Act 1985 (WA) s 42(4a).

14. Finally, if the By‑Laws are characterised as subsidiary legislation, the specific provisions of interpretation referred to in the Interpretation Act, and the principles developed at common law for the construction of statutes, would be applicable to the By-Laws.  Those principles of statutory construction are premised on the assumption that the drafter will be aware of, and will comply with, a variety of conventions applicable to legislation.  In a case where the default by-laws apply, that assumption will be apt.  However, any amendment or alteration of the default by‑laws made by the original proprietor or the strata company will not be drafted by the parliamentary counsel who drafted the default by‑laws.  Consequently, in a case (such as the present one) where the default by‑laws have been wholly replaced, it cannot be assumed that the replacement by-laws have been drafted in such a way as to comply with legislative drafting conventions.  That also suggests that the application of the principles of statutory construction is not appropriate in relation to the By‑Laws.

15. In my view, the By‑Laws should instead be characterised as a statutory contract.

What principles of construction apply to the By‑Laws?

1. The conclusion that the By-Laws should be characterised as a statutory contract does not mean that all of the principles which would usually apply to the construction of a contract will apply to the By-Laws.  The authorities in relation to the modification of the principles of contractual interpretation in their application to statutory contracts ‑ in particular National Roads and Motorists' Association Ltd v Parkin[83] and Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd[84] ‑ were discussed in Tate.  McColl JA (with whom Mason P agreed) distilled from those authorities a number of principles applicable to the construction of the by‑laws in that case.  In my view, those principles should be applied to the construction of the By-Laws here. 

   [83] National Roads and Motorists' Association Ltd v Parkin [2004] NSWCA 153; (2004) 60 NSWLR 224.

   [84] Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; (2005) 223 ALR 560 (Finn J), approved on appeal in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 (Weinberg, Kenny & Lander JJ).

1. In addition, irrespective of whether the By-Laws are characterised as subsidiary legislation or as a statutory contract, they could not operate inconsistently with the provisions of the ST Act. Not surprisingly, that limitation is expressly reflected in the ST Act itself, in that a strata company's power to make by‑laws is limited to by-laws which are 'not inconsistent' with the ST Act.[85]  The by-laws made by a strata company should thus be construed, as far as is possible, on the basis that they were not intended to be inconsistent with the Act (because the contrary conclusion would lead to their invalidity).[86]

   [85] Strata Titles Act 1985 (WA) s 42(1).

   [86] Widgee Shire v Bonney (1907) 4 CLR 977, 983 (Griffith CJ).

2. Having regard to the matters referred to above, and drawing on the discussion in Tate, the principles applicable to the construction of the By‑Laws can in my view be summarised as follows. 

3. The ordinary principles of contractual construction should guide the construction of the By-Laws.  They are that the rights and liabilities of parties under a term of a contract are determined objectively,[87] by reference to the contract's text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.[88]  However, in the case of the By-Laws, those principles are subject to four qualifications.

   [87] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [46] (French CJ, Nettle & Gordon JJ).

   [88] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [46] (French CJ, Nettle & Gordon JJ).

4. First, to the extent that their terms permit, the By-Laws should be construed so that they are not inconsistent with the ST Act (bearing in mind that a strata company has no power to make a by-law which is inconsistent with the ST Act).

5. Secondly, in interpreting a term of a contract which is ambiguous, it is possible in some circumstances to refer to objective extrinsic material to ascertain the meaning of the term.[89] However, in the context of the By‑Laws, caution should be exercised in going beyond the language of the By-Laws and their statutory context to ascertain their meaning, and a tight rein should be kept on having recourse to surrounding circumstances. (That reflects the fact that although (as I noted at [59] above) the by-laws of a strata company may be inspected by third persons, such persons would ordinarily have no access to the circumstances surrounding the making of those by‑laws.)

   [89] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [48] ‑ [50] (French CJ, Nettle & Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 657 [35]; CodelfaConstruction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 350 - 352 (Mason J).

6. Thirdly, the statutory context of the by‑laws of a strata company should be taken into account by the Court in construing the By-Laws.  That statutory context includes the fact that the function of the By‑Laws is to regulate the rights and liabilities of the Respondent, the proprietors of the lots in the Complex and certain other parties with rights or interests in the lots and the common property in the Complex.

7. Fourthly, in ascertaining the meaning of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood its terms to mean.  That will involve a consideration of the language used, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.[90]  Unless a contrary intention is indicated, the court will approach the task on the assumption that the parties intended to produce a commercial result,[91] so that the contract should be construed so as to avoid it making commercial nonsense or working a commercial inconvenience.[92]  However, in the case of the By‑Laws, there is no basis for saying that they should be interpreted as a business document, with the intention that they be given business efficacy.  That does not mean that the By-Laws may not have a commercial purpose, and be interpreted accordingly, but due regard must be paid to the statutory context in so doing. 

   [90] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [47] (French CJ, Nettle & Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan & Kiefel JJ).

   [91] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [51] (French CJ, Nettle & Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan & Kiefel JJ).

   [92] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 [51] (French CJ, Nettle and Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan & Kiefel JJ), citing Zhu v Treasurer of New South Wales [2004] HCA 56; (2004) 218 CLR 530, 559 [82].

1. The Tribunal's findings

1. It is convenient at this point to consider the approach taken by the learned Member in reaching his decision to make the Orders.

2. After outlining the facts, the terms of By-Law 16, and the parties' contentions, the learned Member identified three issues for determination,[93] two of which are presently relevant.  The first was whether the use of the word 'residence' in By-Law 16 referred to the 'type' of use to which a lot was put, or to the 'intent' with which or duration for which a lot was occupied. 

   [93] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [15].

3. The learned Member rejected a submission made on behalf of Mr and Mrs Byrne and the other proprietors to the effect that the use of the word 'residence' was used to distinguish between different types of uses of the lots (such as between residential, commercial or industrial uses) and thus should be construed solely as referring to the use of a lot for habitable purposes regardless of the duration of the habitation or the intent of the occupant.  He concluded that land use (that is, the zoning of land) was a matter for the local government, rather than for regulation in the By‑Laws.  The learned Member therefore concluded that the By‑Laws had to be construed by reference to the powers and functions of the Respondent, and that that supported the conclusion that the use of the words 'residence' and 'residential tenants' in By‑Law 16 referred 'to the intent with which a lot is occupied'.[94] 

   [94] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [25].

4. Secondly, the learned Member turned to consider the meaning of the words 'residence', 'occupancy rights' and 'residential tenants' in By-Law 16 and the implications of the meaning of those terms for the use of the lots for short‑stay accommodation. 

5. The learned Member commenced by setting out the principles applied in the Tribunal in interpreting by-laws,[95] which were set out in Owners of Pearl Beach Survey-Strata Plan 49019 and Heyns.[96]  Counsel for the parties before the Tribunal did not dispute the application of those principles.[97] Those principles appear, in essence, to be equivalent to the application of principles of contractual construction, with some modifications which appear to be directed to the fact that by-laws are made under the ST Act.

   [95] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [27].

   [96] Owners of Pearl Beach Survey-Strata Plan 49019 and Heyns [2011] WASAT 66, 43.

   [97] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [27].

6. The learned Member proceeded to determine the meaning of 'residence', 'residential tenant' and 'occupancy rights' having regard to three primary considerations, namely the ordinary meaning of the words; the meaning given to those words in a number of decisions of the Tribunal and other courts and tribunals (none of which were in an identical context); and the context, namely By‑Law 16 in its entirety. 

7. The learned Member concluded that the ordinary meaning of the word 'residence' entailed a degree of permanence and an intention to reside for a substantial period of time.[98]  He concluded that the terms 'residence' and 'residential' were consistently construed to refer to an 'intent of a person to reside permanently or for a substantial period of time, to call the place home, or to have the place as their fixed address'.[99]

   [98] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

   [99] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

8. The learned Member also noted that the word 'tenant' generally referred to a person who was given a legal right of exclusive possession of land for a term.  Consistently with this meaning, the learned Member concluded that the term 'residential tenant' should be construed as referring to a person who made a lot his or her 'residence' pursuant to an arrangement with the proprietor of the lot.[100] 

   [100] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

9. The learned Member also concluded that the words 'occupancy rights' must be interpreted within the context of the words 'residence' and 'residential tenants'.  He held that the term 'occupancy rights', when used with reference to a 'residential tenant', meant:

   little more than the right of a person to reside or take up a tenancy or utilise accommodation.  The emphasis, for purposes of this proceeding is on the rights being exercised by 'residential tenants' and those rights are linked to the intention to stay long-term, to make the lot home, or to use it as an abode.[101]

   [101] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

10. The learned Member also considered the context of By‑Law 16.1 and noted that the construction he favoured was consistent with the operation of By‑Law 16.4.  He noted that it would be 'impractical to employ By‑Law 16.4 with short-stay visitors since by-laws are often complex, it may take time to resolve disputes, and tenancy agreements cannot be summarily terminated without due process'.[102]

    [102] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

11. The learned Member observed that 'although the rules of interpretation allow, in certain circumstances, for parliamentary debates to be considered, neither of the parties relied on such debates'.[103] 

    [103] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [29].

12. The learned Member rejected a submission by the owners that the Short‑Term Use By‑Law was relevant to the construction of By-Law 16 because the Short‑Term Use By‑Law was no longer operative.[104] 

    [104] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

13. Finally, the learned Member also rejected a submission by the proprietors that the RT Act was relevant to the construction of the By‑Laws. He noted, in particular, that the RT Act did not define 'residence' or 'residential' and observed that s 5(2)(e) of the RT Act made clear that it did not apply to any accommodation occupied for the purposes of a holiday. The learned Member observed that that exclusion would in any event reinforce the conclusion he had otherwise reached, namely that short-term accommodation was not to be regarded as 'residential'.[105]

    [105] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

14. Having considered all of these matters, the learned Member concluded that:[106]

    the only ordinary, objective meaning that can reasonably be given to the words 'residence' and 'residential tenant' is that of an occupant who demonstrates the intention to reside at the lot for an extended or substantial period of time; who makes the lot his address; who intends to call the lot 'home' and to make the lot his abode.

    [106] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

15. The learned Member concluded that a short-stay occupant demonstrated none of these intentions.

16. As the summary above reveals, the learned Member thus appears to have applied principles of contractual interpretation, and ultimately his conclusion as to the meaning of By-Law 16.1 relied upon the ordinary meaning of the words used, when considered within their context.  However, in the course of his reasoning, the learned Member made reference to matters which would have been relevant had the principles of statutory construction been applicable.  For that reason, I am unable to avoid the conclusion that the approach adopted by the learned Member involved legal error as to the applicable principles.

17. However, that does not mean that the appeal should succeed.  For the reasons set out below, the error in the approach adopted by the learned Member was not a vitiating error.  Although he referred to factors relevant in statutory construction, he did not ultimately rely upon those matters in reaching his conclusion as to the meaning of the words used in By-Law 16.

1. Disposition of the grounds of appeal

Ground 1(1) of the grounds of appeal

Mr Byrne's contentions

1. Ground 1(1) contends that the learned Member misconstrued the ST Act in concluding that it did not assist in construing the terms 'residence', 'occupancy rights' or 'residential tenants' appearing in the By‑Laws. The ground of appeal itself is rather vaguely expressed, but was clarified in the course of the submissions by counsel for Mr Byrne.

2. There were essentially three planks to the argument advanced in support of this ground.

3. The primary argument advanced by counsel for Mr Byrne in support of this construction was that the ST Act applied the phrase 'proprietor, occupier or other resident of a lot' as a 'genus' to describe all of the persons affected by the by-laws of a strata company, namely a genus of all persons with a right to occupy the lots, and that those persons were all 'residents'.[107] He submitted that this was apparent from s 6(2), s 42(10), s 42(15)(a), s 92 and s 94(2) of the ST Act, and from the default by‑laws (namely by‑laws 1(2) and 1(2)(c) in sch 1, and by-laws 1-10, 11(c), 12 and 14 in sch 2 to the ST Act).[108] He submitted that when the ST Act sought 'to engage those with a legal interest who may not be in occupancy of a lot it adds those persons to the phrase' such as by referring to mortgagees in possession (in s 38(2), s 38(3), s 38(4)(a), s 42(6) and s 43(1)(c)(iv)), or to an administrator or to a person having an estate or interest in the lot (in s 81(3), s 83(1), s 91 and s 92).[109]

   [107] ts 30, 38.

   [108] Applicant's Submissions [61].

   [109] Applicant's Submissions [62].

4. Counsel for Mr Byrne noted that the term 'proprietor' (and 'original proprietor') was defined in the ST Act, as was the term 'occupier'. He submitted that in the phrase 'proprietor, occupier or other resident' the meaning of the word 'residents' must include 'occupiers' because the term 'other residents' included 'occupiers'. Counsel for Mr Byrne submitted that the concepts of occupancy and residence were thus equated in the ST Act.[110] He submitted that the term 'occupier' was a technical term and when used in By-Law 16 it had to be used with the same meaning it had in the ST Act, and that the term 'residence' in By‑Law 16 had to be construed 'through the prism of the definition of occupier'.[111]  He submitted that an 'occupier' ‑ a person in lawful occupation of a lot - need not have any subjective intention regarding the use of the lot to make that occupation lawful, so that a person occupying a lot only for a short-stay could still lawfully occupy the lot.[112]

   [110] Applicant's Submissions [64], ts 38.

   [111] ts 27.

   [112] Applicant's Submissions [70].

5. Counsel for Mr Byrne then submitted that because the terms 'resident' and 'occupier' in the ST Act could be equated, both a resident and an occupier would need to have the subjective intent identified by the learned Member (that is, a subjective intention to make a unit in a strata/survey‑strata plan their permanent place of abode). He submitted that the result would be that the ST Act and the default by‑laws would not apply to lawful occupants of lots who did not have that subjective intention, nor to those legally entitled to possession but who were not occupants of a lot who also did not have that subjective intention. In addition, he submitted that a person in possession would have to establish that they had that subjective intention before they would be entitled to bring an application before the Tribunal under s 83 of the ST Act. Counsel for Mr Byrne submitted:[113]

   … that position is untenable.  That would mean that absent any change in the [default] by-laws by a strata company those by-laws that apply to a 'proprietor, occupier or other resident of a lot' would not apply to anyone who was not a 'proprietor' and who did not have the subjective intention found by the learned Member.  This would exclude their application to otherwise lawful 'occupants' or 'other residents'.

   [113] Applicant's Submissions [69].

6. The second plank of the argument advanced by counsel for Mr Byrne was that the ST Act used the term 'residential' to identify the type of use of a lot and not the intent or duration of that use. In support of that submission, counsel for Mr Byrne pointed to s 42(14) of the ST Act.[114]

   [114] Section 42(14) of the Strata Titles Act 1985 (WA) provides: 'Notwithstanding subsection (2), in the case of a scheme in which none of the lots is used or intended to be used for residential purposes, the strata company may, by special resolution, amend by-laws contained in Schedule 1 for the purpose of making special provision that in an election of the members of the council of the strata company the voting rights of the proprietors shall be proportionate to the unit entitlements of their respective lots; and any such special provisions may be further amended or repealed by special resolution of the strata company.'

7. Counsel for Mr Byrne contended that the term 'residential' in that subsection was used to describe the type of use to which a lot is put, and not the intention of the occupier of the lot. He submitted that the learned Member's construction of the term 'residence' in By-Law 16 was contrary to the meaning of 'residential' in s 42(14) of the ST Act.

8. Counsel for Mr Byrne also submitted that the learned Member erred in concluding that the second reading speech for the ST Act did not assist in the interpretation of By-Law 16. He noted that in the Second Reading Speech for the Strata Titles Bill 1985, the Attorney General stated that the Bill 'facilitates the multiple ownership of individual parcels of land for both residential and commercial purposes'.  Counsel for Mr Byrne submitted that this indicated that the Bill contemplated that the meaning of the 'residential' use of land was to be contrasted with that of the 'commercial' use of land.[115] Counsel for Mr Byrne submitted that 'residence' should therefore be construed to mean 'non‑commercial use'. Counsel for Mr Byrne submitted that the meaning of 'residence' which ran through the ST Act, the default by-laws and the By-Laws in this case was that 'residency':

   means non-commercial use because if it did not the by-law would be unenforceable and the provisions of the ST Act as they relate to 'proprietor, occupier or other resident of a lot' would be unintelligible.[116]

   [115] Applicant's Submissions [78].

   [116] Applicant's Submissions [74].

9. The third way in which counsel for Mr Byrne submitted that the ST Act was of relevance to the construction of By-Law 16.1 relied on s 6(1) of the ST Act. That subsection permits a strata plan to delineate an area in which a particular use is restricted, but to the extent that the proposed restriction would limit the powers of the local government, s 6(1), s 6(1A), s 6(3) and s 6(3a) of the ST Act make it clear that such restriction would only be 'legally effective if approved by the relevant local government'.[117]  Counsel for Mr Byrne submitted that if 'residence' in the By-Laws were construed to refer to a permanent place of abode, By-Law 16 would be ultra vires on the basis 'that it seeks primacy over the powers of the local government authority to grant a development approval to permit short‑stay accommodation'.[118] 

   [117] Applicant's Submissions [72].

   [118] Applicant's Submissions [71].

1. Counsel for Mr Byrne submitted that the ST Act and the default by‑laws:

   [anticipated] the Applicant's business of letting a lot on a short stay basis where that use has been approved by the local authority.  Such 'occupants' are 'residents' for the purposes of the ST Act, and that is expressly recognised in the phrase … 'proprietor, occupier or other resident of a lot'.[119]

Why Mr Byrne's contentions must be rejected

[119] Applicant's Submissions [73].

1. I am unable to accept these submissions, for the reasons set out below.

2. First, at the outset, I do not accept the premise of the submission that the learned Member adopted a construction of the term 'residence' that would be satisfied if there existed merely a subjective intention on the part of the occupant to make the lot his or her permanent place of abode.  The learned Member referred to the 'intent' with which a lot was occupied at two points in his reasons (referred to at [82] and [86] above).  In my view, the learned Member's observations make it clear that whether a particular lot is a 'residence' should be determined objectively, by reference to all of the circumstances.  That is apparent from his statement that 'residence' referred to an occupant who 'demonstrates the intention'[120] to reside at the lot for an extended period, or to make it his address, or who intends to call the lot 'home' or his place of abode.

   [120] The Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 [38].

3. Secondly, the starting point for the construction of the words in By‑Law 16 is, as I have observed, the ordinary meaning of the words used, viewed within their context. The learned Member employed that approach to the construction of By‑Law 16. Had that approach produced the result that By‑Law 16 operated in a way which was inconsistent with the ST Act, then a construction which avoided that inconsistency would have been warranted, if it was open. However, nothing in the ST Act prohibits a strata company from limiting or restricting a proprietor in the use of his or her lot, or from granting an occupancy right to his or her lot other than to a tenant for use as a 'residence' (that is, as a permanent place of abode). The learned Member's construction of By‑Law 16 did not mean that that By‑Law was inconsistent with the ST Act in that sense.

4. Instead, the thrust of the submissions advanced on Mr Byrne's behalf was that the terms 'resident' and 'occupier' have a particular meaning in the ST Act, and that the terms 'resident' and 'occupier' in the By-Laws should be given the same meaning. If the By-Laws were, on their proper characterisation, subsidiary legislation, that would be correct.[121] But as the By-Laws are a statutory contract, the question is whether the terms used in By‑Law 16 are used in the ST Act, whether those terms are used in the ST Act with a meaning different from their ordinary meaning, and whether By‑Law 16, as construed by the learned Member, could therefore be said to operate in a way which would be inconsistent with the ST Act.

   [121] Cf Interpretation Act 1984 (WA) s 44(1).

5. The submission by counsel for Mr Byrne must be rejected because the term 'resident' in the ST Act does not have an equivalent meaning to the term 'occupier'. In my view, the word 'resident' in the ST Act should be understood by reference to the ordinary meaning of that word.

6. Unlike the words 'proprietor' and 'occupier', the word 'resident' is not defined in the ST Act.[122]  On its ordinary meaning, the term 'resident' has the same meaning given to it by the learned Member, that is, it refers to a person who makes a lot his or her permanent place of abode.

   [122] Strata Titles Act 1985 (WA) s 3.

7. The next question is whether the context in which 'resident' is used in the ST Act gives that word a different meaning. The word 'resident' is used as part of the composite term 'other resident', which appears in a number of different contexts in the ST Act. On each occasion, the term 'other resident' is used in a list of persons, each of whom has, or is given, some right or obligation under the ST Act. Sometimes the term 'other resident' is used as part of the composite phrase 'proprietor, occupier or other resident' (see, for example, s 6(2), s 42(10) and s 42(15) of the ST Act). On other occasions, it is used as part of the phrase 'occupier or other resident' (see, for example, s 42(7)). And finally the term 'other resident' is included in the list of persons who are given the right to make an application to the Tribunal (see, for example, s 83(1), s 91 and s 92, which refer to 'a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot').

8. In my view, it is clear that when the term 'other resident' is used as part of these composite phrases, the Parliament has endeavoured to describe all persons with the use or benefit of, or with an interest in, a lot, and who do not fall within the other descriptions used (such as a proprietor, occupier, administrator, person having an estate or interest in the lot, and so on). 

9. The phrase 'proprietors, occupiers and other residents' imports a distinction between persons who own, occupy or reside in lots forming part of a strata/survey‑strata plan. That distinction is also reflected in the default by‑laws. By‑Law 12(a) of the default by-laws in sch 1 to the ST Act provides that 'a proprietor, occupier or other resident shall not use the lot that he owns, occupies or resides in' for certain purposes.

10. The term 'resident' is used in this composite phrase in a way which reflects that the person described has something in common with an 'occupier' (hence the use of the term 'other') but is clearly used so as to include persons who would not otherwise fall within the definition of an 'occupier'. In other words, there may be an overlap between the terms 'occupier' and 'other resident' but the term 'resident' is not co-extensive in meaning with the term 'occupier'. That is because the definition of 'occupier' contains no reference to any requirement of residence, which is hardly surprising given that the ST Act does not apply solely to strata lots which are zoned for residential use.

11. That that is so is also evident from s 42(14) of the ST Act, which refers to a scheme in which none of the lots is used or intended to be used for 'residential purposes'. In addition, that subsection does not advance the argument that the word 'residential' in the ST Act, and in By-Law 16.1, should be construed to mean any non-commercial use. Nothing in that subsection suggests that a meaning other than the ordinary meaning of the word 'residential' is warranted by the context.

12. In summary, having regard to the contextual considerations set out above, the term 'other resident' in the ST Act is used to ensure that the provisions of the ST Act in which that term is used apply to any person who resides at a lot, whether or not that person otherwise falls within the definition of an 'occupier'.

13. Nothing in the use of the term 'other resident' or 'residential purposes' in the ST Act prohibits a strata company from making by-laws which deal with the question of whether a registered proprietor may grant a right of occupancy only to a person who will be a 'resident' (that is, a person for whom the lot will be their home or their permanent place of abode). And nothing in the provisions of the ST Act in which the term 'resident' is used suggests that there would be any inconsistency between those terms and By-Law 16.1 as construed by the learned Member.

14. Two further submissions made by counsel for Mr Byrne should be addressed.  In my view, the second reading speech for the Strata Titles Bill 1985 does not provide support for the construction of the term 'resident' which is advanced by Mr Byrne. The passage from that speech on which counsel relied does not support the conclusion that the term 'resident' in the ST Act should be construed as referring to a person who occupies a lot which is used for a non‑commercial purpose.

15. Finally, in so far as counsel for Mr Byrne relied on s 6 of the ST Act to support his construction of the By-Laws, that subsection is of no assistance in this case. Amongst other things, s 6(1) and s 6(1a) of the ST Act permit a strata/survey‑strata plan to be endorsed, or amended to endorse, a restriction on the use to which the parcel of land, or part thereof, may be put. Any change to that use under the strata/survey‑strata plan requires the consent of the local government.[123] In this case, the By‑Laws were made and registered before the City of Belmont granted approval for a change of use under LPS 15, to permit the use of Lot 14 as a serviced apartment. Section 6 of the ST Act has no application in this case, nor does that section assist in construing the words used in the ST Act which also appear in By‑Law 16.

    [123] See Strata Titles Act (WA) s 6(3a).

16. Ground 1(1) should be dismissed.

Ground 1(2) of the grounds of appeal

1. Ground 1(2) contends that the learned Member misconstrued the terms of the RT Act, and in particular, construed s 5(2)(e) of the RT Act as excluding from the definition of 'residence' or 'residential' any accommodation occupied for the purposes of a holiday (or short-term accommodation). Subsection 5(1) of the RT Act provides:

   Subject to this section and sections 6 and 7, this Act applies to any residential tenancy agreement entered into, renewed, extended, assigned or otherwise transferred after the commencement of this Act.

2. Subsection 5(2)(e) of the RT Act relevantly provides:

   This Act does not apply to any residential tenancy agreement in any of the following circumstances ‑

   (e)where the agreement is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday;

3. In addition, s 5(4) provides:

   For the purposes of subsection (2)(e), an agreement conferring a right to occupy premises for a fixed term of 3 months or longer shall be deemed, in the absence of proof to the contrary, not to have been entered into bona fide for the purpose of conferring a right to occupy the premises for a holiday.

4. A 'residential tenancy agreement' is defined in s 3 of the RT Act to mean:

   any agreement, whether or not in writing and whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence;

5. Three arguments were advanced in relation to ground 1(2). First, counsel for Mr Byrne submitted that the By-Laws should be construed consistently with any cognate Act, that the RT Act was a 'cognate Act' vis‑à‑vis the By‑Laws, that it referred to the term 'residential tenant', and contained definitions of the terms 'residential premises', 'residential tenancy agreement' and 'tenant', and that the terms 'residence' and 'residential tenant' as used in By-Law 16 should be construed consistently with those terms as they appear in the RT Act.[124]

   [124] Applicant's Submissions [88].

6. Secondly, counsel for Mr Byrne submitted that the By‑Laws had to be construed so that they were consistent with the ST Act, and that the ST Act itself had to be construed by reference to the provisions of the RT Act, because the RT Act could be considered 'cognate' legislation vis‑à‑vis the ST Act. It was submitted that the learned Member erred in failing to take into account the meaning of the terms in the ST Act, as construed by reference to the meaning of similar terms in the RT Act, when he construed By-Law 16, which had the result that the learned Member's construction of that By‑Law was inconsistent with the ST Act.[125]

   [125] ts 11.

7. Thirdly, counsel for Mr Byrne submitted that the learned Member erred in the conclusion he reached about the significance of s 5(2)(e) of the RT Act. Counsel for Mr Byrne submitted that s 5(2)(e) of the RT Act:

   makes clear that, but for that provision, an agreement … made for the purpose of conferring on a person the right to occupy residential premises for a holiday is a 'residential tenancy' and a holiday-maker using residential premises for short-stay accommodation should be regarded as a residential tenant which would otherwise be subject to operation of the RT Act: Re Glynn: ex parte Royle and Ors [2003] WASCA 122 at [57] ‑ [58]'.[126]

   [126] Applicant's Submissions [87].

8. Ground 1(2) should be dismissed, for two reasons. 

9. First, in construing a term used in a statutory provision, reference may be made to the meaning of the same or a similar term in a similar statute in order to discern the meaning of that term ‑ a principle of construction sometimes called the in pari materia principle.[127]  However, that principle has no application in the construction of a statutory contract, and thus does not apply directly in the construction of the By-Laws.

   [127] See the discussion in D Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.36].

10. Secondly, in so far as it was contended that the terms 'resident' and 'residential' which are used in the ST Act should be construed by reference to the meaning of those terms in the RT Act, on the basis that the RT Act constitutes 'cognate' legislation, I am not persuaded that the in pari materia principle applies.  The principle will typically apply if the same word is used in a subsequent statute and in a similar context.[128] 

    [128] Lennon v Gibson & Howes Ltd [1919] AC 709, 711 ‑ 712 (Privy Council).

11. The problem here is two‑fold. The ST Act pre-dates the RT Act. The terms used in the ST Act cannot be construed on the basis that the Parliament must have intended that they have the meaning given to similar terms in a statute enacted later in time. When this difficulty was raised with counsel in the course of oral submissions, counsel for Mr Byrne advanced an alternative submission, which was that there had been amendments to the ST Act since the RT Act was enacted, and 'if there was a perception that the two Acts couldn't work together well, one would imagine that there would be amendments that are put'.[129]  That argument does not support the application of the in pari materia principle here.

    [129] ts 50.

12. The second problem with the argument is that the in pari materia principle is not regarded as applicable if the term in question has been used in a different and dissimilar context.[130] The ST Act on the one hand, and the RT Act, on the other, involve different spheres of regulation. The ST Act establishes a regime 'to facilitate the horizontal and vertical subdivision of land and the disposition of titles thereto'[131] and is not limited in its application to land used for any particular purpose (residential, industrial, commercial or otherwise). In contrast, the RT Act regulates the use of, and terms to be included in particular tenancy agreements, namely residential tenancy agreements.

    [130] Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92 [71].

    [131] See the Long Title to the Strata Titles Act 1985 (WA).

13. In any event, the RT Act does not define the terms 'residence', 'residential' or 'residential tenant' and s 5(2)(e) of the RT Act, when read with the definition of 'residential tenancy agreement', does not provide a sufficiently clear indication of the meaning of those terms to assist in the construction of the term 'resident' in the ST Act, or in the construction of those terms in By‑Law 16.

14. Counsel for Mr Byrne submitted that the terms of s 5(2)(e) of the RT Act suggest that but for the exclusion in that paragraph, the Parliament's intention was that occupation of premises for a holiday could be the subject of a 'residential tenancy agreement'. That is one possible explanation for s 5(2)(e) of the RT Act. An alternative possibility is that s 5(2)(e) was intended to exclude the possibility of any confusion as to whether a right to occupy premises for a holiday was required to be the subject of a residential tenancy agreement. The three‑month fixed term adopted in s 5(4) of the RT Act is consistent with statutory intention to draw a clear distinction as to when a residential tenancy agreement would be required.

Ground 1(3) of the grounds of appeal

1. Ground 1(3) contends that the learned Member erred in that he selected a meaning of the terms 'residence', 'occupancy rights' and 'residential tenants' which was inconsistent with the terms of the By-Laws read as a whole within the context of the ST Act.

2. The thrust of this ground largely appears to replicate that of ground 1(1), save in one respect.  Counsel for Mr Byrne submitted that the learned Member erred in deciding that the Short-Term Use By-Law was irrelevant to the construction of By-Law 16.  The basis for that submission was that 'it is permissible to have regard to a repealed portion of a statute for the purpose of construing what remains'.[132]  He submitted that by pursuing the Short-Term Use By-Law, the Respondent had 'implicitly acknowledged that absent that definition such a use remained a permitted residential use under the By-Laws', and that that use was 'consistent with the meaning advanced' by Mr Byrne.[133]

   [132] Applicant's Submissions [92].

   [133] Applicant's Submissions [93].

3. Ground 1(3) should be dismissed, for the reasons given in relation to ground 1(1), and for the following additional reason. 

4. Had the By-Laws been characterised as subsidiary legislation, consideration of the Short-Term Use By-Law might have been warranted as part of the overall legislative context.[134]  However, as By-Law 16 is a term of a statutory contract, the Short-Term Use By-Law, which was included in the By‑Laws some years after the registration of the management statement in respect of the Strata Plan, is irrelevant to the construction of By-Law 16. 

Ground 1(4) of the grounds of appeal

[134] Cf R v Lavender [2005] HCA 37; (2005) 222 CLR 67 [31] (Gleeson CJ, McHugh, Gummow & Hayne JJ, Heydon J agreeing at [148], Callinan J agreeing generally at [139]), and [114] (Kirby J); but cf also Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203, 212.

1. Ground 1(4) contends that the learned Member erred in law in that he failed to approach construction of the By-Laws on the basis that they were subsidiary legislation.

2. Ground 1(4) should be dismissed for the reasons set out above at [57] ‑ [71].

Ground 1(5) of the grounds of appeal

1. Ground 1(5) contends that the learned Member failed to approach the construction of the terms 'residence', 'occupancy rights' and 'residential tenants' on the basis that they are each technical legal terms, which are (in the absence of clear words to the contrary) to be construed consistently with 'cognate' legislation.  The 'cognate' legislation referred to in this ground of appeal was said to be the Planning and Development Act 2005 (WA) (the PD Act).

2. Counsel for Mr Byrne submitted that the learned Member had not grasped the significance of the planning approval given by the City of Belmont for a change in use of Lot 14 to permit its use as a 'serviced apartment'. As noted at [13] above, that term is defined in LPS 15 as 'an independent living residential unit providing for short-stay accommodation'. Counsel for Mr Byrne submitted that the learned Member's construction of By-Law 16 deprived the By-Laws of consistency with the PD Act.

3. Counsel for Mr Byrne also submitted that the construction preferred by the learned Member placed the By-Laws in contest with the use of Lot 14 which was permitted under LPS 15, and placed Mr Byrne in an 'invidious position' in that 'to comply with the planning approval given by the City of Belmont would place him in contempt of the SAT's orders'.[135] 

   [135] Applicant's Submissions [100].

4. These submissions must be rejected. 

5. First, there is nothing to suggest that the terms 'residential', 'occupancy rights' and 'residential tenants' were used in By-Law 16 as technical legal terms. 

1. Secondly, as the By-Laws are not subsidiary legislation, there is no basis for construing the terms in By-Law 16 by reference to the meaning of the same or similar terms in the PD Act or LPS 15. But even if I am wrong in my conclusion that the By-Laws should be characterised as a statutory contract, nothing in the material put before the learned Member, or in the submissions of counsel on the appeal, identified why the definition of 'serviced apartment' in LPS 15 was of relevance to the construction of the terms used in By-Law 16. The By-Laws pre-dated the change in use approved by the City. The import of the submission of counsel for Mr Byrne appeared to be that whatever its earlier construction, the meaning of By-Law 16 (which applies to all of the lots in the Complex) should now change because the City gave approval for a change in use of Lot 14. I do not see any scope for the application of the in pari materia principle in these circumstances.

2. The thrust of the submissions of counsel for Mr Byrne on this issue was that as a result of the change in approved use, there is a conflict between the use of Lot 14 which is permitted under LPS 15, and the permitted use of Lot 14 under By-Law 16.1.  The asserted consequence of that conflict is that Mr Byrne is unable to use Lot 14 as a residence (that is, as a permanent place of abode), because to do so would be contrary to the approved use under LPS 15 as a 'serviced apartment', but nor can he use Lot 14 as a 'serviced apartment' (as defined in LPS 15) because that would be contrary to By-Law 16.1, as construed by the learned Member. 

3. For the purposes of resolving the questions raised by the appeal, it is not necessary to make any determination as to whether the change in the approved use of Lot 14 under LPS 15 has actually resulted in that outcome for Mr Byrne. The submissions made by counsel for Mr Byrne did not adequately explain the implications of the change in the approved use of Lot 14 under LPS 15, so as to permit any such determination to be made. In addition, I note that By‑Law 16 formed part of the By-Laws prior to the purchase by Mr Byrne of Lot 14, yet he subsequently made the application to the City of Belmont for a change in the approved use of Lot 14. Furthermore, the Development Approval issued to Mr Byrne by the City of Belmont expressly noted that that approval did not remove any requirement for him to obtain other necessary approvals, including under the ST Act.[136]

   [136] Applicant's Documents in the Tribunal, 68 ‑ 69.

4. If the change in the approved use of Lot 14 to a 'serviced apartment' under LPS 15 now poses a difficulty for Mr Byrne because it means that his use of Lot 14 as a 'residence' is prohibited, the means for resolving that difficulty does not lie in the construction of the By-Laws.

5. Ground 1(5) should be dismissed.

Ground 2 of the grounds of appeal

1. This ground of appeal contends that even if the By-Laws are not subsidiary legislation, the learned Member should nevertheless have construed By-Law 16 having regard to the statutory framework under which the By-Laws were made, and should have construed the terms in By-Law 16 consistently with their use in the ST Act, the RT Act, and so that the By-Laws operated consistently with the planning approval given under LPS 15 made under the PD Act.

2. Ground 2 should be dismissed, for the reasons already set out above.

Ground 3 of the grounds of appeal

1. Ground 3 contends, in the alternative, that if the correct approach was to construe the terms used in the By-Laws as if they were ordinary words and not legal technical terms, then the learned Member erred in selecting preferred meanings for the terms 'residence', 'occupancy rights' and 'residential tenants' used in By-Law 16 without regard to the statutory framework under which By‑Law 16 was made.  This ground repeats grounds 1(1), 1(2) and 1(3) of the grounds of appeal.

2. In so far as this ground of appeal relies on the matters the subject of grounds 1(1), 1(2) and 1(3), this ground should be dismissed for the reasons set out above in respect of those grounds.

3. Counsel for Mr Byrne also submitted that the meaning of the term 'residential tenant' had to be taken from the particular context in which it appeared.  He submitted that by failing to consider whether the context required that the meaning given to the term 'residential tenant' should import a degree of permanence, the learned Member erred in law.[137]

   [137] Applicant's Submissions [115].

4. These submissions must also be rejected.  The learned Member clearly construed By-Law 16.1 within its context.  He clearly had regard to the practical difficulties of compliance with By-Law 16.4 if By-Law 16.1 were construed so that it did not prohibit the use of a lot for 'short‑stay' accommodation.

Conclusion

1. Leave to appeal should be granted, but the appeal should be dismissed.

2. I will hear from counsel as to the orders which should be made.