CLAY and THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819
[2018] WASAT 39
•25 MAY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: CLAY and THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819 [2018] WASAT 39
MEMBER: SENIOR MEMBER D AITKEN
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 MAY 2018
PUBLISHED : 31 MAY 2018
FILE NO/S: CC 703 of 2018
BETWEEN: MARK GREGORY CLAY
Applicant
AND
THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819
Respondent
FILE NO/S: CC 773 of 2018
BETWEEN: MARK GREGORY CLAY
Applicant
AND
JEFFREY SHANE WHITE
First Respondent
THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819
Second Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Whether leave is required to withdraw an application
Legislation:
State Administrative Tribunal Act 2004 (WA), s 3(1), s 5, s 46(1), s 60(2)
Strata Titles Act 1985 (WA), s 81(5)
Result:
Preliminary issue determined
Applications withdrawn
Category: B
Representation:
CC 703 of 2018
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr M Atkinson |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Atkinson Legal |
CC 773 of 2018
Counsel:
| Applicant | : | In Person |
| First Respondent | : | Mr M Atkinson |
| Second Respondent | : | Mr M Atkinson |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Atkinson Legal |
| Second Respondent | : | Atkinson Legal |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
REASONS FOR THE DECISION OF THE TRIBUNAL:
During the directions hearing in these matters on 18 May 2018 the applicant, Mr Mark Gregory Clay stated that he wished to withdraw his applications.
Mr Atkinson, as counsel for the respondents, contended that Mr Clay requires leave from the Tribunal under s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to do so.
I expressed the view that leave was not required to be given under s 46(1) of the SAT Act because, firstly s 81(5) of the Strata Titles Act 1985 (WA) (ST Act) provides that an application may be withdrawn by an applicant at any time before an order is made by the Tribunal determining the matter and, secondly under s 5 of the SAT Act that provision prevails over s 46(1) of the SAT Act.
Mr Atkinson contended that there is no inconsistency between s 46(1) of the SAT Act and s 81(5) of the ST Act and that, therefore, s 5 of the SAT Act does not apply.
Mr Clay agreed with my view.
I decided that I would determine as a preliminary issue in each matter the following issue:
•Does the applicant require leave under s 46(1) of the SAT Act to withdraw his application?
Both Mr Atkinson and Mr Clay stated that they did not wish to file any written submissions and they agreed that the preliminary issue be determined on the documents pursuant to s 60(2) of the SAT Act.
I have considered the issue and my view has not changed.
Section 5 of the SAT Act provides as follows:
If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails.
Section 81(5) of the ST Act provides as follows:
An application may be withdrawn by the applicant at any time before an order is made.
Section 46(1) of the SAT Act provides as follows:
If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or part of a proceeding.
Section 3(1) of the SAT Act defines 'enabling Act' as follows:
… another Act, or a portion of another Act under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act.
The ST Act confers jurisdiction on the Tribunal to deal with the applications made by Mr Clay in each of these proceedings and therefore it is an enabling Act.
The law regarding statutory construction is wellsettled and was stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention[.]
Section 81(5) of the ST Act clearly provides that an application made under that Act can be withdrawn by an applicant before an order is made and does not qualify that ability to withdraw the application in any way and, in particular, does not require leave to be granted by the Tribunal for the application to be withdrawn.
The words 'before an order is made' clearly refer to an order being made by the Tribunal under that Act, not to any programming order in a proceeding made by the Tribunal under the SAT Act.
The provision in s 81(5) of the ST Act is clearly inconsistent with the provision in s 46(1) of the SAT Act, which requires that the Tribunal must give leave for an applicant to withdraw a proceeding.
Therefore, there is an inconsistency between the SAT Act and the ST Act regarding the ability of an applicant to withdraw an application made under that Act, and under s 5 of the SAT Act the ST Act, as the enabling Act, prevails.
Under s 81(5) of the ST Act Mr Clay, as the applicant, may withdraw each of these applications before the Tribunal determines them, without requiring the Tribunal to give leave to him to do so.
Orders
The Tribunal makes the following orders in each matter:
CC 703 of 2018
1.The preliminary issue: Does the applicant require leave under s 46(1) of the State Administrative Tribunal Act 2004 (WA) to withdraw his application?, is answered in the negative.
2.The application is withdrawn.
CC 773 of 2018
1.The preliminary issue: Does the applicant require leave under s 46(1) of the State Administrative Tribunal Act 2004 (WA) to withdraw his application?, is answered in the negative.
2.The application is withdrawn.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
31 MAY 2018
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