Carden v Vallelonga - [2019] WASC 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   CARDEN -v- VALLELONGA [2019] WASC 192
CORAM:   QUINLAN CJ
HEARD:   ON THE PAPERS
DELIVERED          :   6 JUNE 2019
FILE NO/S:   GDA 14 of 2018
BETWEEN:   CILLA CARDEN
Appellant
AND
CARMEL VALLELONGA
First Respondent
TOAN VU
Second Respondent

Catchwords:

Application for leave to appeal - Appeal against State Administrative Tribunal - Application withdrawn following mediation - No basis to appeal decision granting leave to withdraw proceedings

Legislation:

State Administrative Tribunal Act 2004 (WA)
Strata Titles Act 1985 (WA)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Appellant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Case(s) referred to in decision(s):

SH v Chief Executive Officer of Department of Communities [2009] WASCA 31

QUINLAN CJ:

The appellant, Ms Carden, seeks leave to appeal a decision of the State Administrative Tribunal (the Tribunal) made on 19 July 2016.
The proposed appeal is one of a number brought in this Court as a consequence of the regrettable breakdown of relations between the owners and occupants of the units at 18 Rochford Way, Girrawheen. Ms Carden is the owner of Unit 18C, Ms Vallelonga is the owner of Unit 18A and Mr Vu the owner of Unit 18B.
The appeal, which was filed on 10 October 2018, requires the leave of the court pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). It is also, of course, well out of the time within which an application for leave to appeal can be made.[1]
[1] SAT Act s 105(5).
On 7 January 2019, I made orders that the parties file submissions as to whether leave to appeal should be given under s 105(1) of the SAT Act and ordered that the question of whether leave to appeal should be given be determined on the papers, without the need for the parties to attend at a hearing.
The parties have filed extensive documentation in relation to the appeal, some of which relates to other proceedings before this Court and the State Administrative Tribunal.
Insofar as this appeal is concerned, the procedural history of the matter before the Tribunal is as follows:
(a)The application to the Tribunal was filed on 2 May 2016 and was allocated Tribunal number CC582 of 2016 (the SAT application).
(b)The SAT application was made pursuant to s 83 of the Strata Titles Act1985 (WA) (the Strata Titles Act), which provides that the Tribunal may, on the application of a proprietor of a lot under a scheme:
make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme …
(c)The by-laws (which, subject to a power of amendment, are contained in Schedule 1 and 2 of the Strata Titles Act) relevantly include a duty on a proprietor or resident that they 'not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier'.[2] It is by this mechanism that the Tribunal has its 'neighbour jurisdiction'.
(d)The orders sought in the SAT application related to a variety of complaints on the part of Ms Carden, including the presence of fluorescent lights on the other lots, the erection of a patio, building and gardens not being maintained and parking taking place on strata lawns damaging sprinklers.
(e)The SAT application came before the Deputy President of the Tribunal on 20 June 2016 who ordered the matter be referred to mediation on 19 July 2016.
(f) The matter proceeded to mediation on 19 July 2016 before Member Whitney. At the conclusion of the mediation, Member Whitney made the following order pursuant to s 46(1) of the SAT Act:
The applicant has leave to withdraw the proceeding, and the proceeding is hereby withdrawn.
There were otherwise no orders arising from the mediation.
[2] Strata Titles Act Schedule 1, cl 1(2)(b).
The order made by Member Whitney pursuant to s 46 of the SAT Act brought the SAT application to an end.
In this appeal, Ms Carden alleges that, at the mediation, the parties agreed to hire a professional strata manager and that the first respondent agreed to certain matters concerning the patio lighting and other matters. While it is the case that a mediator that is a member of the Tribunal may reduce the terms of a settlement reached at mediation to writing and make orders necessary to give effect to the settlement,[3] no such orders were made in the present case.
[3] SAT Act s 54(8).
Accordingly, if there were an agreement reached at the mediation (as to which I express no view), it formed no part of the orders of the Tribunal.
Both parties to this appeal have provided evidential material in relation to the matters discussed at the mediation on 19 July 2016. In this context, I note that s 55 of the SAT Act provides that, subject to limited exceptions, evidence of anything said or done in the course of a mediation is not admissible at any later stage of the proceeding. While that provision is strictly limited to later stages of the proceedings in the Tribunal, it nevertheless reflects the intention of the legislature as to the confidentiality of mediation proceedings.
Whether or not such material is strictly admissible in this appeal does not, in my view, need to be decided. That is because, the simple fact is that the SAT application was withdrawn in accordance with s 46 of the SAT Act. There is no operative order in relation to which either party could appeal.
If there were some binding agreement reached following the mediation in the Tribunal in this matter (not reflected in an order of the Tribunal), it could not be enforced by an appeal to this Court from the order granting leave for the proceeding to be withdrawn.
In all of the circumstances, this appeal is misconceived.
As the Court of Appeal recently made clear in SH v Chief Executive Officer of Department of Communities:[4]
Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.
[4] SH v Chief Executive Officer of Department of Communities [2009] WASCA 31 [53].
In the present case I am satisfied that leave to appeal must be refused.
An appeal from a decision granting leave to withdraw proceedings is not a proper legal basis for enforcing an agreement alleged to be made by the parties but separate from the proceedings. In any event, in the present case, there is no question of law raised concerning that order.
Ongoing disputes between the parties would need to be raised by fresh proceedings in the Tribunal, as indeed they have been.
For the above reasons leave to appeal must be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
6 JUNE 2019