CARTER and WHITBY MLA
[2021] WASAT 168
•29 DECEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EMERGENCY MANAGEMENT ACT 2005 (WA)
CITATION: CARTER and WHITBY MLA [2021] WASAT 168
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 DECEMBER 2021
FILE NO/S: DR 210 of 2021
BETWEEN: LOANNE CARTER
Applicant
AND
REECE WHITBY MLA
Respondent
Catchwords:
Practice and procedure - Claim for compensation - Residential tenancy - No compensation available - Strike out application - Review application misconceived and lacking in substance - Review struck out
Legislation:
Commonwealth of Australia Constitution Act, s 109
Emergency Management Act 2005 (WA), s 46, s 47, s 48, s 56, s 69, s75(1)(f), s 78, s 78(1), s 79, s 80, s 81, s 82, s 83, Pt 7, Div 1, Div 2
Legislation Act 2003 (Cth), s 12(2)
Public Health Act 2016 (WA)
Residential Tenancies (COVID-19 Response) Act 2020 (WA), s 19, s 68, s 69
Residential Tenancies Act 1987 (WA), s 60, s 60(1), Pt V
State Administrative Tribunal Act 2004 (WA), s 17, s 17(1), s 47, s 47(2), s47(4)
Result:
Application struck out
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
Building Services Board and Bailey [2021] WASAT 149
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a somewhat unusual application. Ms Loanne Carter (Applicant) seeks review of a decision made by the Minister for Emergency Services (Minister) in relation to compensation that she seeks under s 78 of the Emergency Management Act 2005 (WA) (EM Act).
The claim for compensation arises from a residential tenancy agreement for a property at Ilex Place, Rangeway (Lease) in the context of the declaration of a state of emergency arising from 'the pandemic caused by virus COVID-19'.
The Applicant's review is premised on the contention that the EM Act was used to amend the Residential Tenancies Act 1987 (WA) (RT Act), the effect of which was that rent was not payable under the Lease between 30 March 2020 and 29 March 2021. The Applicant therefore seeks compensation under s 78 of the EM Act. A decision of the Minister in relation to an application under s 78 is reviewable in the Tribunal (Review).[1]
[1] Section 83, EM Act.
The Minister (Respondent) applies for an order under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to dismiss or strike out the Review on the basis that it is misconceived or lacking in substance. The Respondent submits that no 'reviewable decision'[2] has been made that would enliven the Tribunal's jurisdiction.
[2] As that term is defined in s 17, SAT Act.
For the reasons that follow, the Respondent's submissions should be accepted. The Review will therefore be struck out pursuant to s 47(2) of the SAT Act.
Background
The following facts, which are not in contest, inform the relevant background to the Review.
On 15 March 2020, a state of emergency was declared in respect of 'the pandemic caused by virus COVID-19' for the State of Western Australia. The declaration was made pursuant to s 56 of the EM Act and has been extended multiple times.
The Applicant is the lessor of a residential property in Rangeway, the subject of the Lease. For context, Rangeway is a suburb of Geraldton.
On 4 May 2021, the Applicant sent an email to the Respondent and the Minister for Health claiming compensation for rental income she has lost during the current state of emergency (Email).
The Email set out that between 30 March 2020 and 29 March 2021 her tenant had not paid rent under the Lease. The tenants had claimed that they were were unable to pay the rent arising under the Lease on account of the state of emergency. As a result, the Applicant claims she is entitled to compensation under the EM Act and the Public Health Act 2016 (WA).
On 25 June 2021, the Applicant was advised that her request for compensation under the EM Act had been referred to the Respondent for consideration. On or about 10 August 2021, the Applicant was advised by letter from the Respondent that any loss she had suffered as a consequence of the declaration and subsequent extension of the state of emergency did not give rise to any entitlement to compensation under s 78 of the EM Act.
On or about 19 October 2021, the Applicant lodged the Review.
Compensation under the EM Act
Part 7 of the EM Act deals with compensation and insurance. Division 1 of Pt 7 sets out the basis on which compensation may be paid, the process for applying as well as the determination of any entitlement to compensation. Division 2 deals with Tribunal reviews.
Section 78 outlines who is entitled to compensation under Pt 7. Specifically, it provides that subject to certain exceptions:
… [A] person who suffers loss or damage because of the exercise, or purported exercise, of a power under section 46, 47, 48, 69 or 75(1)(f) [of the EM Act] is entitled to be paid just and reasonable compensation for the loss or damage[.]
In terms of compensation under the EM Act, it is relevant to note that:
a)s 46 provides a local government with the power to destroy dangerous vegetation or premises in a cyclone area if certain conditions are met;
b)s 47 complements s 46 by providing a local government with the power to require the owner or occupier of land to take action regarding any dangerous vegetation or premises on his or her land in a cyclone area if certain conditions are met;
c)s 48 complements s 47 and provides for additional powers when a direction under s 47 is given, including that if the person who is given the direction fails to comply with it, the local government may do anything that it considers necessary to achieve, so far as is practicable, the purpose for which the direction was given;
d)s 69 provides 'for the purposes of emergency management during an emergency situation or state of emergency, a hazard management officer or authorised officer may take control of or make use of any place, vehicle or other thing'; and
e)s 75(1)(f) provides that, in amongst other general powers conferred during a state of emergency, an authorised officer may 'remove, dismantle, demolish or destroy a vehicle, or any premises, in the emergency area'.
Section 79 provides the process by which an application for compensation can be made to the Respondent. Section 80 provides for how such an application may lapse.
Section 81 of the EM Act then provides:
As soon as is practicable after deciding the application the Minister is to give the applicant a written notice stating -
(a)the decision and the reasons for it;
(b)if the Minister decides to pay compensation -
(i)details of the amount and how the amount was assessed; and
(ii)if the amount is less than the amount claimed - that the applicant may apply for a review of the decision, and how the applicant may apply for the review;
(c)if the Minister decides not to pay compensation - that the applicant may apply for a review of the decision, and how the applicant may apply for the review.
Section 82 provides that the Consolidated Account is charged with the payment of any compensation payable and expenses incurred in the administration of Pt 7 of the EM Act.
Division 2 of Pt 7 then provides:
An applicant who is dissatisfied with a decision of the Minister to refuse to pay compensation or about the amount of compensation may apply to the State Administrative Tribunal for a review of the decision.[3]
The Review
[3] Section 83, EM Act.
In the Review, the Applicant states the following:
I want the WA Government to pay the compensation owed to me due to loss of rent because the WA Government stopped me from being able to evict the people living in my rental property for not paying rent.
The Applicant further described the grounds upon which she is seeking review as:
No rent has been received between March 2020 to March 2021. During this time the [State Government] used the [EM Act] to change the [RT Act] to prevent landlords from evicting tenants for not paying their rent. My investment property has a signed lease for $200 per week. I am seeking $10,000 in compensation and costs from the WA Government as per s 78 of the [EM Act].
Respondent's submissions
General principles
Section 47 of the SAT Act provides that the Tribunal, constituted by a legally qualified member, may order that a proceeding be dismissed or struck out and may make any appropriate orders, if the member finds the proceeding is 'frivolous, vexatious, misconceived or lacking in substance; or being used for an improper purpose; or otherwise an abuse of process'.
The Tribunal can make such orders on its own initiative or on the application of a party.[4] Thus, the Respondent is able to bring an application to have the application struck out or dismissed.
[4] Section 47(4), SAT Act.
When an application under s 47 of the SAT Act is made at the interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider from that perspective whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance.[5]
[5] Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) [16]; Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) [20].
The principles to be applied by the Tribunal in order to dismiss or strike out a proceeding prior to the final hearing, on the basis that it is misconceived or lacking in substance, are analogous to the principles applied by courts to summarily dismiss a proceeding. Those are that 'it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed'.[6]
[6] Ambrus [8] referring to the statement of Barwick CJ in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125.
In this context the term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact.[7]
The Review is misconceived
[7] See Laurent [23].
The Review is purportedly brought in the Tribunal's review jurisdiction.
Section 17 of the SAT Act provides what comes within the Tribunal's review jurisdiction. Section 17(1), in short, provides the Tribunal has jurisdiction in respect of 'matter that an enabling Act gives the Tribunal jurisdiction to deal with ... that expressly or necessarily involves a review of a decision'.
The 'matter' that the EM Act, as an enabling Act, gives to the Tribunal are decisions made by the Minister in relation to applications for compensation following the exercise of power under s 46, s 47, s 48, s 69 or s 75(1)(f) of the EM Act.
The Respondent therefore submits that there is no relevant 'matter' within the meaning of s 17 of the SAT Act that can be reviewed by the Tribunal. The Tribunal's review jurisdiction is therefore not enlivened.
This is because:
a)The Applicant's application contends that her loss is attributable to the State Government using the EM Act to amend the RT Act 'to prevent landlords from evicting tenants for not paying their rent'.
b) As a matter of law, that proposition is untenable. On 30 March 2020 the Western Australian Parliament passed the Residential Tenancies (COVID-19 Response) Act 2020 (WA) (RTCR Act). Relevantly, this provided that during the 'emergency period' a tenant could only have his or her lease terminated for failure to pay rent if they were not in financial hardship due to the coronavirus (COVID-19) pandemic.[8] That provision applied 'despite' s 60(1) of the RT Act.[9]
c)In those circumstances, any loss the Applicant has suffered is not attributable to the exercise, or purported exercise, of powers under s 46, s 47, s 48, s 69 or s 75(1)(f) of the EM Act. Instead, assuming that her tenant was in financial hardship due to the coronavirus (COVID-19) pandemic, the Applicant was prevented from terminating the tenancy agreement because of the relevant provisions of the RTCR Act.
d)Thus, the Applicant was not a person entitled to compensation under s 78(1) of the EM Act. As a result, there was no basis upon which the Respondent could have properly refused or granted an amount of compensation under Pt 7 of the EM Act.
e)Accordingly, the Respondent wrote to the Applicant to explain that that any loss she suffered did not give rise to any entitlement to compensation under s 78 of the EM Act.
f)In those circumstances, the Respondent made no decision to refuse to pay compensation or about the amount of compensation. Instead, the Respondent effectively advised the Applicant that he, as Minister, did not have the power to make a decision regarding her application under the EM Act because she was not entitled to make such an application.
[8] Section 19, RTCR Act.
[9] Section 60 of the RT Act provides for the process by which residential tenancy agreements and tenant's interests in agreements are terminated.
Accordingly, there has been no relevant 'decision' within the meaning of s 17 of the SAT Act that can be reviewed by the Tribunal. The Tribunal's review jurisdiction is therefore not enlivened.
For completeness, the matter is not one which could come within the Tribunal's original jurisdiction.
The Review is lacking in substance
Additionally, or in the alternative to the submission that the application is misconceived, the lack of a reviewable decision to enliven the Tribunal's review jurisdiction under s 17 of the SAT Act forms a basis for the Tribunal to find that the Review is lacking in substance.
Applicant's submissions
The Applicant filed detailed submissions on the strike out application. The Applicant is not represented in this proceeding. I have done my best to set out those submissions, as I understand them.
The Applicant asserts that she is claiming compensation for 'loss or damages' suffered under the instruction of the State Government with respect to the removal of the Applicant's rights as a lessor under the Lease. Her submissions were as follows:
a)The application for compensation is made pursuant to s 78 of the EM Act.
b)The RTCR Act was 'passed' on 23 April 2020 and commenced on 9 July 2020.
c)The Respondent's claim that the Review is 'misconceived' is in error, as is the claim that it is 'lacking in substance'.
d)The RTCR Act had retrospective application. However, at the time the RTCR Act was passed, the Applicant had already commenced the process of terminating the Lease.[10]
[10] This alleged 'fact' is not open on the materials before me. There is no evidence before me that the Applicant had terminated, or commenced the process of terminating, the Lease. Certainly, there is no reference to any termination in the Email. In any event, whether or not the Lease could be terminated under the RT Act is not the question that is before me.
The Applicant then relies on provisions contained in the Legislation Act 2003 (Cth) (Legislation Act), in support of a contention that the retrospective application of the RTCR Act cannot apply to a person if it disadvantages them. In particular the Applicant refers to s 12(2) of the Legislation Act The overall effect of that submission, as I understand it, is that a retrospective State law cannot operate to limit the effect of the the Legislation Act to the extent that the two laws are inconsistent: s 109 Commonwealth of Australia Constitution Act (The Constitution).
The Applicant further submits that:
a)The Constitution must be used to determine which law has 'jurisdiction'. As the RTCR Act has retrospective application, the Legislation Act must be referenced to determine if the RTCR Act 'had jurisdiction for determining who had the authority for the use of the property in question'.
b)Under the 'Rule of Law', the Legislation Act 'removed the jurisdiction that the RTCR Act had over the property' in relation to compensation.
c)Therefore, assuming the RTCR Act 'is no longer the ruling jurisdiction, the [State Government] still refused to give the [Applicant] the use of the property[,] the only legislation that gave the [State Government] authority to prevent the Applicant from terminating the [Lease] was [s 69 of the EM Act]'.
d)There is no other legislation that gives the State Government the power to terminate the Lease. Therefore, this matter 'must be judged under the [EM Act]'.
e)The state of emergency was declared on 15 March 2020 and the 'emergency' has extended beyond the lifespan of the RTCR Act. During that time the Applicant had the ability to enforce her rights as a lessor removed by the RTCR Act and she has suffered financial loss accordingly of around $10,000. This should be compensated under the EM Act, but the claim has been denied by the Respondent.
(f)As the RTCR Act does not apply to the Lease by reason of the Legislation Act, the Review is not 'lacking in substance' nor 'misconceived'.
Consideration and answer
The Respondent's submissions should be accepted. The Review is misconceived and must be struck out pursuant to s 47(2) of the SAT Act. My reasons can be shortly stated.
The compensation regime under the EM Act does not include the compensation that the Applicant seeks.
The compensation scheme under Pt 7 of the EM Act relates to the destruction of vegetation or premises in cyclone events or the taking control, or destruction, of a place, vehicle or other thing or premises, during emergency events under the EM Act. There is nothing in those compensation provisions, not any other provisions that I can locate, that lend support to the Applicant's claim for compensation under Pt 7 of the EM Act in relation to the Lease.
Put another way, there is no compensation available under the EM Act, by reason of the effect of the RTCR Act on the Lease.
As Judge Glancy recently observed in Building Services Board and Bailey, the Tribunal is a creature of statute and only has the jurisdiction that is conferred on it by, in this instance, the EM Act and the SAT Act.[11] The Court of Appeal emphasised as much in The Match Group v Metropolitan South West Joint Development Assessment Panel.[12] It follows that because the Respondent did not make a reviewable decision in refusing compensation under the EM Act, the Tribunal has no jurisdiction to entertain the Review.
[11] Building Services Board and Bailey [2021] WASAT 149 [35] (Glancy DP).
[12] The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 [21] (Pullin JA, Newnes JA, Murphy JA).
The Respondent's submissions, and in particular those set out at [31](a)(f) are correct and I accept them. That conclusion is sufficient to resolve the question before me. The Application must be struck out under s 47(2) of the SAT Act on the basis that it is both misconceived and lacking in substance.
However, I would also note, for completeness, that that Applicant's focus on the relationship between the RTCR Act and the Legislation Act is misplaced and without merit. In any event, it is of no consequence. If the Applicant's argument is that the RTCR Act did not apply to the Lease, that is not an argument that arises under the EM Act.
Furthermore, to the extent that the Applicant's argument is that the Lease was not captured by s 19 of the RTCR Act and that there remained, despite the commencement of the RTCR Act, an entitlement to terminate the Lease under Pt V of the RT Act, that is not a question that arises under the EM Act.
I would also observe that it appears that the question of terminating leases, both before and during, the 'pre-assent emergency period' is addressed in s 68 and s 69 of the RTCR Act. As I have stated, such questions do not arise under the EM Act and, moreover, they are not questions for the Tribunal.
The Review should be struck out.
Orders
The Tribunal orders:
1.The Review is misconceived and lacking in substance and is therefore struck out pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
29 DECEMBER 2021