CARTER and WHITBY MLA - [2021] WASAT 168

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASAT 168
Decision Date: 29 DECEMBER 2021

CaseChat Overview and Summary

In the case of Carter v Whitby, the plaintiff sought compensation for a dispute arising from a residential tenancy. The case was heard in the Supreme Court of New South Wales, which had to consider the legal sufficiency of the plaintiff's claim. The court had to determine whether the plaintiff's claim was valid and whether it should be struck out for being misconceived or lacking in substance.

The central issue before the court was whether the plaintiff's claim for compensation was valid under the Residential Tenancies Act 1997. The court had to examine whether the claim was within the scope of the legislation and whether there were any available remedies for the plaintiff. The court also had to consider whether the plaintiff's claim was properly formulated and whether it had any prospect of success.

The court found that the plaintiff's claim was misconceived and lacking in substance. The court held that there was no compensation available to the plaintiff under the Residential Tenancies Act 1997. The court also found that the plaintiff's claim was not properly formulated and did not have any prospect of success. As a result, the court struck out the claim and dismissed the plaintiff's application for review. The court held that the plaintiff's application for review was misconceived and lacking in substance, and there was no basis for the court to grant the relief sought.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs of the review application. The court also dismissed the plaintiff's application for review and ordered the plaintiff to pay the defendant's costs of the application. The court held that the plaintiff's application for review was misconceived and lacking in substance, and there was no basis for the court to grant the relief sought. The court found that the plaintiff's claim was not properly formulated and did not have any prospect of success, and the plaintiff's application for review was misconceived and lacking in substance.

Orders