ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728 - [2020] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728 [2020] WASAT 91
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
HEARD:   27 JULY 2020
DELIVERED          :   11 AUGUST 2020
FILE NO/S:   CC 2735 of 2018
BETWEEN:   JENNIFER ENGWIRDA
Applicant
AND
THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728
Respondent

Catchwords:

Practice and procedure - Withdrawal - Strata Titles proceedings - Right to withdraw application without leave under enabling Act - Application withdrawn - Whether Tribunal has power to set aside 'order' that 'The application is withdrawn' where 'order' made without giving prior notice to or seeking submissions from respondent - Whether 'order' that 'The application is withdrawn' is a 'decision' amenable to review and revocation under s 84(2) of the State Administrative Tribunal Act 2004 (WA) or a decision that can be recalled and remade where there is a breach of the rules of natural justice under implied power in s 32(1) of the State Administrative Tribunal Act 2004 (WA) - Whether Tribunal denied procedural fairness to respondent in making 'order' that 'The application is withdrawn' without giving prior notice to or seeking submissions from respondent - Whether Tribunal had power to dismiss or strike out proceedings after application withdrawn - Words and phrases: 'decision', 'hearing', 'relevant hearing'

Legislation:

State Administrative Tribunal Act 2004 (WA), s 3(1), s 5, s 32(1), s 33, s 42(3), s 46, s 46(1), s 46(2), s 46(5), s 47, s 47(2), s 49, s 84, s 84(1), s 84(2), s 84(5)
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 81(5), s 102(1)(f), Div 3, Pt VI
Strata Titles Act 1985 (WA), Sch 5, cl 30(1)
Strata Titles Amendment Act 2018 (WA), s 82(b)

Result:

The Tribunal does not have power to set aside the 'order' that 'The application is withdrawn'

Category: B

Representation:

Counsel:

Applicant	:	Ms PE Cahill SC
Respondent	:	Mr CP Russell

Solicitors:

Applicant	:	N/A
Respondent	:	Wotton + Kearney Lawyers

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

Clark and Western Australian Planning Commission [2007] WASAT 33; (2007) 49 SR (WA) 277
Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2018] WASAT 39
Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2019] WASAT 149
Legal Profession Complaints Committee and Gandini [2013] WASAT 31
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Western Australian Planning Commission v Dungey [2010] WASC 52

REASONS FOR DECISION OF THE TRIBUNAL:

Preliminary issue

Section 42(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that '[a] proceeding before the Tribunal commences when the application is accepted by the executive officer'. On 18 December 2018, Ms Jennifer Engwirda (Ms Engwirda or applicant) filed an application in the Tribunal, which was accepted by the executive officer, commencing proceedings CC 2735 of 2018 (SAT proceedings). In the SAT proceedings, Ms Engwirda sought an order from the Tribunal appointing an administrator to The Owners of Queens Riverside Strata Plan 55728 (respondent) under s 102(1)(f) of the Strata Titles Act 1985 (WA) (ST Act) as it stood prior to 1 May 2020 (preamendment ST Act).[1] Under cl 30(1) of Sch 5 to the ST Act, a proceeding in the Tribunal under the ST Act commenced before 1 May 2020, such as the SAT proceedings, 'must be dealt with as if the [Strata Titles Amendment Act 2018 (WA)] had not been enacted', that is under the preamendment ST Act.
[1] Section 102(1)(f) of the pre-amendment ST Act was deleted by s 82(b) of the Strata Titles Amendment Act 2018 (WA) (ST Amendment Act), which commenced on 1 May 2020.
Section 81(5) of the pre-amendment ST Act stated as follows:[2]
An application may be withdrawn by the applicant at any time before an order is made.
[2] Section 81(5) of the pre-amendment ST Act was deleted by s 82(b) of the ST Amendment Act, which commenced on 1 May 2020.
At 1.43 pm on 4 December 2019, Ms Engwirda sent an email to the Tribunal, copied to the respondent and its legal representative, Mr William Robinson, in which she withdrew the application by which she had commenced the SAT proceedings (withdrawal).[3] It is common ground between the parties and clearly the case that the expression 'before an order is made' in s 81(5) of the pre-amendment ST Act referred to an order made by the Tribunal under the ST Act, in particular under Div 3 of Pt VI of the pre-amendment ST Act (which included s 102(1)(f) of the pre-amendment ST Act), rather than to any programming order made by the Tribunal under the SAT Act. The Tribunal had not made an order under Div 3 of Pt VI of the preamendment ST Act in the SAT proceedings before Ms Engwirda emailed the withdrawal to the Tribunal, and copied it to the respondent and Mr Robinson, at 1.43 pm on 4 December 2019.
[3] The withdrawal (Exhibit 2) is set out at [11] below.
Later on 4 December 2019, Mr Robinson sent a letter by email to President Justice Pritchard's associate, addressed to the President and carbon copied to Senior Member David Aitken and Member Dr Bertus De Villiers care of the President, stating that he had 'received the enclosed email from Ms Engwirda seeking to withdraw her application in CC 2735/2018' and that 'our client is considering its position and options in relation to Ms Engwirda's ostensible withdrawal in CC 2735/2018, including with respect to [s] 47 of the [SAT Act] and costs' (letter to the President).[4]
[4] Exhibit 3 (original emphasis).
On 5 December 2019, without giving prior notice to or seeking submissions from the respondent, Senior Member Aitken made and published what is termed on its face to be a '[d]ecision' of the Tribunal in the SAT proceedings, as follows:
In these reasons, I refer to 'order' 1 dated 5 December 2019 that 'The application is withdrawn' as ''order' 1'.
On 23 December 2019, the respondent filed a document entitled 'Respondent's outline of submissions in support of application pursuant to [s] 47 of the [SAT Act]', which states that '[t]he [r]espondent seeks to be heard on whether the [application by which the SAT proceedings were commenced] should have been withdrawn or whether they should be dismissed pursuant to [s] 47 of the [SAT Act]',[5] and in which the respondent submits that 'the Tribunal should dismiss the [application by which the SAT proceedings were commenced]'.[6] Under the heading 'Relief Sought', this document states as follows:
The [r]espondent seeks the following orders:[7]
6.1Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside; and
6.2The application (CC 2735/2018) is dismissed pursuant to [s] 47;
6.3In the alternative to orders 1 and 2, the [a]pplicant pay the [r]espondent's costs of the [application by which the SAT proceedings were commenced][.]
[5] Respondent's outline of submissions in support of application pursuant to [s] 47 of the [SAT Act] [4].
[6] Respondent's outline of submissions in support of application pursuant to [s] 47 of the [SAT Act] [5] (original emphasis).
[7] Respondent's outline of submissions in support of application pursuant to [s] 47 of the [SAT Act] [6].
In this context, on 25 February 2020, the President made the following order:[8]
The Tribunal is to determine as a preliminary issue the following questions:
(i)"Does the Tribunal have the power to make an order in the terms set out in paragraph 6.1 of the respondent's outline of submissions of 23 December 2019 [that is, an order that 'Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside']"; and
(ii)"Did the Tribunal have power, notwithstanding s 81(7) of the [pre-amendment ST Act], to make an order for costs at the time the application was withdrawn."
[8] Order 1 made on 25 February 2020.
On 20 July 2020, the respondent emailed the Tribunal advising that it 'no longer wishes to pursue costs from the [a]pplicant' and that '[a]ccordingly, the parties no longer require the second preliminary question to be answered'.

Background

On 20 July 2020, the parties filed the following statement of agreed facts for the determination of the preliminary issue (agreed facts):[9]
[9] Statement of agreed facts dated and filed on 20 July 2020 in accordance with order 2 made on 18 June 2020 (Exhibit 1) (original emphasis).
1.On 18 December 2018, the [a]pplicant commenced the proceedings CC 2735/2018 (Application) by applying to the State Administrative Tribunal (Tribunal) under s 102(1)(f) of the Strata Titles Act 1985 (WA) (STAct) to appoint an administrator: Application documents filed by [a]pplicant on 18 December 2018.
2.On 4 December 2019:
(a)the [a]pplicant emailed the Tribunal: Email from [a]pplicant to Tribunal dated 4 December 2019 - copy attached [the withdrawal]; and
(b)Wotton + Kearny, solicitors for the [r]espondent, wrote to the President of the Tribunal: Letter from Wotton + Kearney to the Tribunal dated 4 December 2019 - copy attached [the letter to the President].
3.On 5 December 2019, the Tribunal made orders that the application be [sic] withdrawn: Order of Tribunal dated 5 December 2019 and reasons for decision dated 19 May 2020.
4.Prior to the Tribunal making the order dated 5 December 2019:
(a)the Tribunal had not made an order pursuant to Part VI, Division 3 of the ST Act;
(b)the Tribunal did not give the [r]espondent notice of its intention to make the orders or seek any submissions or evidence from the [r]espondent.
The withdrawal referred to at [2(a)] of the agreed facts states as follows:[10]
[10] Exhibit 2.
From:    [email protected]
Sent:
Wednesday, 4 December 2019 1:43 PM

To:
SAT; 'William Robinson'

Cc:
Allan PEREIRA; SeokEan Tan; Susan Evans; Janet &      Graham Edwards; Ian Wright; Ali Qamar; Ian Laird;   QueensRiverside WA

Subject:
URGENT RE: CC 2735/2018 - Engwirda v The Owners of           Queens Riverside Strata Plan 55728
Dear SAT
Although the respondent continues to wrongfully withhold many strata records, including virtually all correspondence, it has failed to keep me from securing documents which justify the appointment of an administrator. Having prevented me from sharing that information with my fellow proprietors in the past, making the application in 2018 was my last resort. It no longer is and, accordingly, I must withdraw the application.
Regards
Jennifer Engwirda
As indicated earlier, the letter to the President referred to at [2(b)] of the agreed facts states that 'our client is considering its position and options in relation to Ms Engwirda's ostensible withdrawal in CC 2735/2018, including with respect to [s] 47 of the [SAT Act] and costs'.[11]
[11] Exhibit 3.
The 'reasons for decision dated 19 May 2020' referred to at [3] of the agreed facts is Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2019] WASAT 149, published on 19 May 2020, in which Senior Member Aitken gave reasons for the 'decision' dated 5 December 2019 which is set out at [5] above (Senior Member Aitken's reasons). Senior Member Aitken's reasons are succinct, comprising six paragraphs. The first four paragraphs of Senior Member Aitken's reasons set out the background to the 'decision' which I have already related in the first section of these reasons. Paragraphs [5]-[6] of Senior Member Aitken's reasons are as follows:[12]
5For the reasons stated in Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2018] WASAT 39, Ms Engwirda was entitled to withdraw the application before the Tribunal had determined it, without requiring the Tribunal to give leave for her to do so.
6Accordingly, on the morning of 5 December 2019 the Tribunal made an order that the application was withdrawn and vacated the directions hearing which was listed for that afternoon.
[12] Original emphasis.
Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2018] WASAT 39, which is the decision referred to and followed at [5] of Senior Member Aitken's reasons as the basis for the statement that 'Ms Engwirda was entitled to withdraw the application before the Tribunal had determined it, without requiring the Tribunal to give leave for her to do so', also involved the withdrawal by an applicant, under s 81(5) of the preamendment ST Act, of applications by which he had commenced proceedings under the ST Act. In Clay and The Owners of Carinya Court Rockingham Strata Plan 25819, Senior Member Aitken determined the following preliminary issue:[13]
Does the applicant require leave under s 46(1) of the SAT Act to withdraw his application?
[13] Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [6].
Section 5 of the SAT Act states as follows:
If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails.
The term 'enabling Act' is defined in s 3(1) of the SAT Act as follows:[14]
enabling Act means 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[.]
[14] Original emphasis.
In Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 at [13], Senior Member Aitken said that '[t]he 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 [the] enabling Act'. So too, in this case, the ST Act, in particular the pre-amendment ST Act, is the 'enabling Act' under which jurisdiction was conferred on the Tribunal in the SAT proceedings. The enabling Act in this case relevantly includes s 81(5) of the pre-amendment ST Act, which, as indicated earlier, stated that '[a]n application may be withdrawn by the applicant at any time before an order is made'. As also indicated earlier, under s 5 of the SAT Act, if there is 'any inconsistency' between the SAT Act and the relevant enabling Act, 'the enabling Act prevails'. Section 46(1) of the SAT Act states as follows:[15]
If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or a part of a proceeding.
[15] Emphasis added.
In Clay and The Owners of Carinya Court Rockingham Strata Plan 25819, Senior Member Aitken determined the preliminary issue as to whether 'the applicant require[d] leave under s 46(1) of the SAT Act to withdraw his application' in the negative at [15]-[19] as follows:
15Section 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.
16The 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.
17The 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.
18Therefore, 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.
19Under 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.
The decision and reasoning in Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 at [15]-[19] is not contested by either party in this matter and, in my respectful view, is clearly correct. Ms Engwirda did not require the leave of the Tribunal under s 46(1) of the SAT Act to withdraw the application by which the SAT proceedings had been commenced at 1.43 pm on 4 December 2019.

Consideration of preliminary issue

The respondent submits that the Tribunal has power to make an order that 'Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside' under s 84(2) of the SAT Act. Section 84 of the SAT Act states, in part, as follows:[16]
[16] Original emphasis.
(1)In this section —
relevant hearing, in relation to a decision of the Tribunal, means a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation.
(2)A person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing.
…
(5)If on hearing the application the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the relevant hearing, the Tribunal is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.
…
(7)A review under this section —
(a)is part of the original proceeding and not a new proceeding; and
(b)is not a review of a decision for the purposes of section 17.
Mr CP Russell, who appeared on behalf of the respondent, submits as follows:[17]
… [B]ecause the [T]ribunal made the order on 5 December [2019] without hearing from the [respondent] then, when the [T]ribunal was on notice that the [respondent] wished to be heard, that brings us - that brings the [respondent] [in] the circumstances within [s] 84(2) [of the SAT Act]. So, on that basis, if that is accepted, then the … preliminary [issue] must be answered [']yes['] because there is power. It's not a question as to whether or not it ought to be set aside but, rather, whether or not there is power.
[17] ts 11, 27 July 2020.
It is correct that, by reason of the letter to the President, 'the [T]ribunal was on notice that the [respondent] wished to be heard' when Senior Member Aitken made the 'decision' set out at [5] above including 'order' 1. As indicated earlier, the letter to the President stated that 'our client is considering its position and options in relation to Ms Engwirda's ostensible withdrawal in CC 2735/2018, including with respect to [s] 47 of the [SAT Act] and costs'.[18] As also indicated earlier, it is an agreed fact that 'the Tribunal did not give the [r]espondent notice of its intention to make the orders [on 5 December 2019] or seek any submissions or evidence from the [r]espondent'.[19] However, for reasons given below, these facts do not 'brin[g] the [respondent] [in] the circumstances within [s] 84(2) [of the SAT Act]' or have the consequence that 'the … preliminary [issue] must be answered [']yes['] because there is power'.
[18] Exhibit 3.
[19] Statement of agreed facts dated 20 July 2020 (Exhibit 1) [4(b)].
Mr Russell submits that '[b]y [s] 84 of the SAT Act, the Tribunal is empowered to review a decision it has [made] in respect of a person, if at the time of the hearing, the person did not appear and was not represented'[20] and that '[t]his contemplates the ability or power of the Tribunal to recall or review an order when a person has not had an opportunity to be heard'.[21] Mr Russell submits that, when Senior Member Aitken made 'order' 1 on 5 December 2019, without giving prior notice to or seeking submissions from the respondent, 'the Tribunal deprived the [r]espondent of the opportunity to be heard on whether the [SAT proceedings] should be withdrawn or orders should be made dismissing it under s 47 of the SAT Act',[22] which was 'the application that was flagged in [the] letter [to the President]'.[23] Mr Russell also submits that the respondent had 'a right to be heard with respect to [s] 46, subsection (2), [of the SAT Act] in any event'.[24]
[20] Respondent's outline of submissions as to preliminary questions dated 12 May 2020 [9].
[21] Respondent's outline of submissions as to preliminary questions dated 12 May 2020 [10].
[22] Respondent's outline of submissions as to preliminary questions dated 12 May 2020 [14].
[23] ts 19, 27 July 2020.
[24] ts 19, 27 July 2020.

Section 46(2) and s 46(5) of the SAT Act state as follows:
…
(2)The Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding or that part of it.
…
(5)The Tribunal may make an order under this section on the application of a party or on its own initiative.
Section 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
The respondent says that its 'primary aim' in seeking an order under s 47(2) (or s 46(2)) of the SAT Act dismissing or striking out the SAT proceedings is 'to prevent the [a]pplicant from bringing any more meritless and misconceived applications'[25] and, to this end, contends that it 'ought not be deprived of the protections in s 49 of the SAT Act in the current circumstances[,] [t]hose protections being the requirement of the [a]pplicant to obtain the leave of a judicial member before commencing similar proceedings'.[26] Section 49 of the SAT Act states as follows:
If a proceeding is dismissed or struck out under section 46, 47 or 48, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member.
[25] Respondent's outline of submissions as to preliminary questions dated 12 May 2020 [3].
[26] Respondent's outline of submissions as to preliminary questions dated 12 May 2020 [4].
Although not referred to by the respondent in its submissions, quite apart from the Tribunal's express power under s 84 of the SAT Act to review a 'decision' if the person in respect of whom the Tribunal made the decision 'did not appear and was not represented at a relevant hearing' and to 'revoke or vary [the decision] if the Tribunal considers it appropriate to do so', the Tribunal also has an implied power under s 32(1) of the SAT Act to recall and remake a decision which was made in breach of the rules of natural justice or procedural fairness. Section 32(1) of the SAT Act states as follows:
The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
As President Justice Chaney held in Legal Profession Complaints Committee and Gandini [2013] WASAT 31 at [6], referring to the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597:
… [I]f the Tribunal were satisfied that it had acted in breach of rules of natural justice it could, on the basis of that authority, remake its decision and substitute a new decision for that which was reached in breach of those rules.
If, when on 5 December 2019 Senior Member Aitken made 'order' 1 that 'The application is withdrawn', the Tribunal had power to dismiss or strike out the SAT proceedings under s 46(2) or s 47(2) of the SAT Act, then, in light of the indication in the letter to the President that the respondent was considering its position and options, including with respect to an application under s 47 of the SAT Act, the Tribunal arguably breached the rules of natural justice by denying the respondent its right or reasonable expectation to be heard in order to argue that the SAT proceedings should be dismissed or struck out under s 46(2) or s 47(2) of the SAT Act. However, for reasons given below, the Tribunal did not have power on 5 December 2019 to dismiss or strike out the SAT proceedings under s 46(2) or s 47(2) of the SAT Act.
As indicated earlier, the term 'relevant hearing', in relation to a 'decision' of the Tribunal for the purposes of s 84(2) and s 84(5) of the SAT Act, is defined in s 84(1) of the SAT Act to mean 'a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation'. The term 'hearing' is nonexhaustively defined in s 3(1) of the SAT Act as follows:[27]
hearing includes a compulsory conference or mediation[.]
[27] Original emphasis.
As the definition of the term 'hearing' in s 3(1) of the SAT Act is nonexhaustive and 'includes a compulsory conference or mediation' and as the term 'relevant hearing' is exhaustively defined in s 84(1) of the SAT Act to mean 'a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation', a 'relevant hearing', for the purposes of s 84(2) and s 84(5) of the SAT Act, is a 'hearing' within the ordinary apposite meaning of the noun 'hearing' (excluding a compulsory conference or mediation) at or following which a relevant 'decision' was made by the Tribunal. The ordinary apposite meaning of the noun 'hearing' is 'the presentation of a matter before a tribunal'.[28] It appears that 'order' 1 was not made at or following 'the presentation of a matter before [the Tribunal]' and neither Ms Engwirda nor the respondent could 'appear' or be 'represented' (which are terms used in s 84(2) of the SAT Act) when or before 'order' 1 was made. However, as Ms Engwirda does not contest the respondent's position that 'order' 1 was made at or following a 'relevant hearing', I assume (without deciding) for the purposes of these reasons that 'order' 1 was made at or following a 'relevant hearing' within the meaning and for the purposes of s 84 of the SAT Act.[29]
[28] Macquarie Dictionary (6^th ed, 2013) page 687.
[29] Cf Western Australian Planning Commission v Dungey [2010] WASC 52 (Beech J) [48] and see also [2] and [19].
However, in my view, for the reasons which follow, on 5 December 2019, the Tribunal did not relevantly make a 'decision', within the meaning of, and which is amenable to review and revocation under, s 84 of the SAT Act, or a decision which it can recall and remake under the implied power in s 32(1) of the SAT Act. Furthermore, in my view, for the reasons which follow, on 5 December 2019, the Tribunal did not have power to dismiss or strike out the SAT proceedings under s 46(2) or s 47(2) of the SAT Act and the respondent did not, therefore, have a right or reasonable expectation to be heard in order to argue that the SAT proceedings should be dismissed or struck out under s 46(2) or s 47(2) of the SAT Act. Consequently, the Tribunal did not deny the respondent procedural fairness in the circumstances of the case in making the 'order' that 'The application is withdrawn' without giving prior notice to or seeking submissions from the respondent. It follows that the Tribunal does not have power to make an order that 'Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside'.
Notwithstanding that, on its face, 'order' 1 that 'The application is withdrawn' is stated to be an 'order' and a '[d]ecision' of the Tribunal constituted by Senior Member Aitken on 5 December 2019, in my view, it is not, in substance and effect, an 'order' of the Tribunal and is not a 'decision' made by the Tribunal, within the meaning and for the purposes of s 84 of the SAT Act, which is amenable to review and revocation under that provision, or a decision the making of which could ground a denial of natural justice.
The term 'decision' is nonexhaustively defined in s 3(1) of the SAT Act as follows:[30]
decision of the Tribunal includes an order, direction, or determination of the Tribunal[.]
[30] Original emphasis.
Because the term 'decision' is non-exhaustively defined in s 3(1) of the SAT Act, it bears its ordinary apposite meaning in addition to 'an order, direction, or determination of the Tribunal' in terms of the inclusive (or extended) part of the definition of the term. The ordinary meaning of the noun 'decision' is as follows:[31]
decision 1. the act of deciding; determination (of a question or doubt). 2. a judgement, as one formally pronounced by a court. 3. a making up of one's mind. 4. that which is decided; a resolution. 5. the quality of being decided; firmness, as of character.
[31] Macquarie Dictionary (6^th ed, 2013) page 388 (original emphasis).
The term 'order' is not defined in the SAT Act. The ordinary apposite meaning of the noun 'order' is 'an authoritative direction, injunction, command or mandate' and 'a direction given by a court, judge, or minister of the crown'.[32]
[32] Macquarie Dictionary (6^th ed, 2013) page 1035.
Although 'order' 1 is expressed to be an 'order' of the Tribunal, it is, in substance and effect, not an order at all, because it was unnecessary to effect the withdrawal of the application and, indeed, is of no legal effect or consequence. 'Order' 1 is not an authoritative direction, injunction, command or mandate by the Tribunal. It is simply otiose.
As Ms PE Cahill SC, who appeared on behalf of Ms Engwirda, submits, s 81(5) of the pre-amendment ST Act was 'not prescriptive about the form of withdrawal'[33] and '[t]he withdrawal of an application pursuant to s 81(5) is a unilateral action of the applicant and does not require the imprimatur of the Tribunal in order to take effect'.[34] Furthermore, as Ms Cahill submits, '[w]hether or not it was necessary or, indeed, correct for [Senior] Member Aitken to make the order he did[,] the withdrawal of the application took effect in any event'.[35] In particular, Ms Engwirda effectively withdrew the application by which she had commenced the SAT proceedings when she emailed the Tribunal (copied to the respondent and its legal representative) at 1.43 pm on 4 December 2019. As the Tribunal had not made an order under Div 3 of Pt VI of the pre-amendment ST Act before that time, the application by which Ms Engwirda had commenced the SAT proceedings was withdrawn by the applicant, under s 81(5) of the pre-amendment ST Act, at the instant that the withdrawal was emailed to and received by the Tribunal at 1.43 pm on 4 December 2019. Thus, the application was withdrawn and the SAT proceedings were at an end at 1.43 pm on the day prior to the making of 'order' 1 and 'order' 1 was therefore unnecessary and, indeed, of no legal effect or consequence.
[33] Applicant's outline of submissions as to preliminary questions dated 8 June 2020 [5].
[34] Applicant's outline of submissions as to preliminary questions dated 8 June 2020 [6].
[35] Applicant's outline of submissions as to preliminary questions dated 8 June 2020 [9].
Although 'order' 1 is expressed to be a '[d]ecision' of the Tribunal, it is not, in substance and effect, a decision, because, for the reasons given above, it is not, in substance and effect, an 'order' of the Tribunal, and is not a 'decision' within the ordinary meaning of that word. In particular, when 'order' 1 was made, there was no question or doubt to be decided or determined, no judgment to be pronounced, and nothing to be decided or resolved by the Tribunal, in relation to or to effect the withdrawal of the application.
At its highest, 'order' 1 constitutes an administrative notation by the Tribunal to the effect that the application had been withdrawn by the applicant on the previous day under s 81(5) of the pre-amendment ST Act.
Furthermore, from the instant that the application was withdrawn at 1.43 pm on 4 December 2019, and certainly at the time when Senior Member Aitken made 'order' 1 on 5 December 2019, the respondent did not have a right or reasonable expectation to be heard in order to argue that the SAT proceedings should be dismissed or struck out under s 46(2) or s 47(2) of the SAT Act. It is correct, as Mr Russell submits, that 'the [T]ribunal made ['order' 1] on 5 December [2019] without hearing from the [respondent] then, when the [T]ribunal was on notice that the [respondent] wished to be heard' by means of the letter to the President on 4 December 2019.[36] However, at the time when Mr Robinson wrote and sent the letter to the President, the application had already been withdrawn and the SAT proceedings were at an end. In this regard, as indicated earlier, the letter to the President refers to Mr Robinson having 'received the enclosed email from Ms Engwirda seeking to withdraw her application in CC 2735/2018'.[37]
[36] ts 11, 27 July 2020.
[37] Exhibit 3 (original emphasis).
Section 46(2) of the SAT Act empowers the Tribunal to make an order dismissing or striking out 'a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding …' and s 47(2) of the SAT Act empowers the Tribunal to order that 'the proceeding be dismissed or struck out …' if s 47 applies, that is, if, under s 47(1), the Tribunal believes that 'a proceeding … is frivolous, vexatious, misconceived or lacking in substance; … is being used for an improper purpose; or … is otherwise an abuse of process'. Clearly, in order for the Tribunal to have power to make an order dismissing or striking out a proceeding under s 46(2) or s 47(2) of the SAT Act, the relevant proceeding must be before the Tribunal at the time. However, once Ms Engwirda withdrew the application by which she had commenced the SAT proceedings, as she was entitled to do under s 81(5) of the preamendment ST Act, the SAT proceedings were no longer before the Tribunal. Certainly, at the time when Senior Member Aitken made 'order' 1 on 5 December 2019, there was relevantly no longer a proceeding before the Tribunal which could be dismissed or struck out under s 46(2) or s 47(2) of the SAT Act.
Mr Russell submits that 'on a withdrawal, the only way the proceeding comes to an end is not that it's withdrawn but that it is dismissed or struck out, some order of the [T]ribunal has to be made'[38] and that 'the application is on foot until the order is made by the [T]ribunal'.[39] This submission is incorrect. As indicated earlier, the withdrawal of an application under s 81(5) of the pre-amendment ST Act involved a unilateral action of the applicant and did not require any order or any other action by the Tribunal in order for the withdrawal to take effect. In this case, the application by which the SAT proceedings were commenced was effectively withdrawn, and the SAT proceedings were therefore at an end, at 1.43 pm on 4 December 2019, when Ms Engwirda's email withdrawing the application was sent to and received by the Tribunal. No order of the Tribunal was required for the application to be withdrawn or for the SAT proceedings to be concluded.
[38] ts 14, 27 July 2020.
[39] ts 15, 27 July 2020.
Mr Russell also submits that, whereas there is an inconsistency between s 46(1) of the SAT Act (which requires the Tribunal to give leave in order for the applicant to withdraw or agree to the withdrawal of a proceeding) and s 81(5) of the pre-amendment ST Act (which enabled the applicant to withdraw the application at any time before an order under Div 3 of Pt VI of the ST Act is made), and that, therefore, s 81(5) of the enabling Act prevails under s 5 of the SAT Act, 'there's no inconsistency between [s] 81(5) of the [pre-amendment ST Act] and [s 46(2)] of the [SAT Act] for the purposes of [s] 5 of the [SAT Act] in the sense that the enabling Act prevails'.[40] Mr Russell submits that, on its proper interpretation, s 46(2) of the SAT Act conferred power on the Tribunal when it made 'order' 1 on 5 December 2019 to dismiss or strike out the SAT proceedings, notwithstanding the applicant's withdrawal of the application under s 81(5) of the preamendment ST Act at 1.43 pm on 4 December 2019, and, indeed, that an order under s 46(2) of the SAT Act dismissing or striking out the SAT proceedings is necessary to bring the SAT proceedings to an end. The respondent's submissions in this regard were expressed as follows:[41]
So we say that the way they're read together is that, by virtue of [s] 81(5) in the [pre-amendment ST Act], you leapfrog [s] 46(1) [of the SAT Act]. So you don't require the leave but, rather, the [T]ribunal doesn't have to make a decision whether or not the applicant is permitted to withdraw. The applicant is allowed to withdraw. But that doesn't dismiss the proceedings, that doesn't get rid of the proceedings …
… [O]n the plain reading of the two provisions, how those provisions worked, we would say. It doesn't say that the [T]ribunal may make an order having granted leave, or anything like that. It simply says that the [T]ribunal may make an order dismissing or striking out all or any part of a proceeding before it - if the applicant withdraws. And the language:
If the applicant withdraws.
There's no permissive in there. So it's - it assumes that there is permission to withdraw. Now, when one reads that together with [s] 81(5) of the [pre-amendment ST Act], there's no inconsistency because there is permission in the [pre-amendment ST Act] to withdraw. However, the [T]ribunal then has the question of what to do under [s] 46(2) [of the SAT Act].
[40] ts 12, 27 July 2020.
[41] ts 13 and 14, 27 July 2020.
In my view, the respondent's submissions in this regard misconstrue the meaning and effect of s 46(2) of the SAT Act. On the clear grammatical meaning of that provision, and as also confirmed by a contextual analysis in terms of s 46(1) of the SAT Act, the power of the Tribunal to make an order dismissing or striking out the SAT proceedings under s 46(2) of the SAT Act was not available to the Tribunal when it made 'order' 1 on 5 December 2019. As clearly stated in the provision, the Tribunal only has power under s 46(2) of the SAT Act to 'make an order dismissing or striking out all, or any part, of a proceeding before it …'.[42] In the circumstances of this case, in consequence of the terms of s 81(5) of the pre-amendment ST Act and the withdrawal of the application by Ms Engwirda at 1.43 pm on 4 December 2019, the SAT proceedings came to an end at the instant that the withdrawal was emailed by Ms Engwirda to and received by the Tribunal. Thereafter, including when 'order' 1 was made on 5 December 2019, there was relevantly no longer 'a proceeding before [the Tribunal]' and the Tribunal, therefore, did not have power to make an order dismissing or striking out the SAT proceedings under s 46(2) of the SAT Act.
[42] Emphasis added.
There is also contextual support for this interpretation of the meaning of s 46(2) of the SAT Act. As Ms Cahill observed in the course of her submissions in reply, 'the language of subsection (2) mirrors, relevantly, [the language of] subsection (1)' of s 46.[43] In particular, s 46(2) of the SAT Act confers power on the Tribunal to 'make an order dismissing or striking out all, or any part, of a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding or that part of it' and s 46(1) of the SAT Act confers power on the Tribunal to grant 'leave [to] the applicant [to] withdraw or agree to the withdrawal of a proceeding or a part of a proceeding'.[44] The similar language used in s 46(1) and s 46(2) of the SAT Act is a contextual indication that these provisions, while conferring different powers and discretions (under s 46(1) to give leave to withdraw or agree to the withdrawal of a proceeding or a part of a proceeding and under s 46(2) to make an order dismissing or striking out all, or any part, of a proceeding), are intended to operate in a supplementary and concurrent manner (at a time when, before withdrawal of a proceeding, there remains a proceeding before the Tribunal). In the (typical) circumstances where there is no inconsistency between s 46(1) of the SAT Act and the relevant enabling Act and, therefore, an applicant requires the leave of the Tribunal to withdraw or agree to the withdrawal of a proceeding or a part of a proceeding under s 46(1), at the time when the Tribunal considers whether to grant leave under s 46(1) (and thus there remains a proceeding before the Tribunal), the Tribunal also considers 'on the application of a party or on its own initiative'[45] whether to make an order dismissing or striking out all, or any part of, the proceeding under s 46(2) of the SAT Act. However, in the (atypical) circumstances of this case, where s 81(5) of the preamendment ST Act conferred a right on the applicant to withdraw the SAT proceedings without requiring the leave of the Tribunal to do so under s 46(1) of the SAT Act and Ms Engwirda effectively exercised that right at 1.43 pm on 4 December 2019, the enabling Act and the withdrawal had the consequence that the Tribunal was not able to exercise the supplementary and concurrent power to granting leave to withdraw under s 46(1) of the SAT Act of making an order dismissing or striking out the SAT proceedings under s 46(2) of the SAT Act.
[43] ts 22, 27 July 2020.
[44] Emphasis added.
[45] Section 46(5) of the SAT Act.

The supplementary and concurrent nature of s 46(1) and s 46(2) of the SAT Act was recognised by the Tribunal[46] in Clark and Western Australian Planning Commission [2007] WASAT 33; (2007) 49 SR (WA) 277 as follows at [33]-[34]:
33Section 46(1) of the SAT Act precludes an applicant from withdrawing a proceeding without the leave of the Tribunal and confers a discretion on the Tribunal as to whether to grant leave. However, the SAT Act does not expressly disclose the reason why leave to withdraw is required and does not set out considerations that the Tribunal must take into account in exercising its discretion.
34Section 46(2) of the SAT Act suggests that one reason for the requirement to obtain leave is to enable another party to seek an order dismissing or striking out all, or any part, of a proceeding before withdrawal and to enable the Tribunal to make such an order on its own initiative: s 46(5). The dismissal or striking out of a proceeding is significant, because s 49 of the SAT Act requires the leave of a judicial member in order to commence another proceeding of the same kind in relation to the same matter. Another likely reason why leave is required is to enable another party to make an application for costs against the applicant or a third party under s 87(2) of the SAT Act and to enable the Tribunal to make an order that a party pay the costs of a proceeding under s 88(2) of the SAT Act. If a party could withdraw a proceeding without leave, it could arguably preclude a costs order from being made against it or another party in the proceeding.
[46] Mr DR Parry SM.
The supplementary and concurrent nature of s 46(1) and s 46(2) of the SAT Act is also reflected in the Tribunal's usual practice and standard order in circumstances where an applicant seeks leave to withdraw or agree to the withdrawal of a proceeding or a part of a proceeding under s 46(1) of the SAT Act. The Tribunal's usual practice is to either request the other parties to indicate their positions by correspondence or to list the proceeding for a directions hearing in order to consider whether to grant leave to the applicant to withdraw the proceeding under s 46(1) of the SAT Act and to consider whether to make an order dismissing or striking out the proceeding under s 46(2) of the SAT Act whether on the application of a party or on its own initiative. The Tribunal's Practice note 2 - Review proceedings and Practice note 3 Original proceedings, issued by the Rules Committee under s 33 of the SAT Act, both provide that '[t]he orders that the Tribunal will usually make at directions hearings' are set out in the Tribunal's standard orders document available on the SAT website.[47] Standard order 55 in this document is in the following terms:[48]
Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw this proceeding and the proceeding is [hereby withdrawn.] [dismissed / struck out pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).]
[47] Practice note 2 - Review proceedings [4] and Practice note 3 Original proceedings [15].
[48] The member making the order deletes any parts of the standard order which are not applicable in the circumstances before making and publishing the order.
As s 46(2) of the SAT Act requires that there be 'a proceeding before [the Tribunal]' in order for the Tribunal to be able to make an order dismissing or striking out the proceeding, standard order 55 provides for such an order to be made by the Tribunal (in circumstances where it is appropriate to make such an order[49]) in the form of the same order as in which it grants leave to the applicant to withdraw the proceeding under s 46(1) of the SAT Act. The powers and discretions under s 46(1) and s 46(2) of the SAT Act, while separate, are exercised by the Tribunal concurrently, 'in the same breath', as it were, while the Tribunal still has 'a proceeding before it'.
[49] In many cases, the Tribunal makes an order under s 46(1) of the SAT Act granting leave to withdraw the proceeding and does not make an order under s 46(2) of the SAT Act dismissing or striking out the proceeding.
While s 46(2) of the SAT Act confers a different power and discretion to that conferred by s 46(1) of the SAT Act, the similar expression in the two provisions indicates that they are intended to operate in a supplementary and concurrent manner (at a time when, before withdrawal of a proceeding, there remains a proceeding before the Tribunal) and provides contextual support for the interpretation based on the clear grammatical meaning of the words in s 46(2) that the Tribunal may make 'an order dismissing or striking out all, or any part, of a proceeding before it …'.[50] On its proper interpretation, the power of the Tribunal to make an order dismissing or striking out the SAT proceedings under s 46(2) of the SAT Act was not available to the Tribunal when it made 'order' 1 on 5 December 2019.
[50] Emphasis added.
As Ms Cahill submits, when Ms Engwirda withdrew the application by which she had commenced the SAT proceedings at 1.43 pm on 4 December 2019 under s 81(5) of the pre-amendment ST Act, the application and the SAT proceedings which it had initiated was 'at an end, and that's it … the matter is at an end'.[51] In the circumstances of this case, to use Mr Russell's expression, the withdrawal did 'get rid of the proceedings'.[52] Consequently, when Senior Member Aitken made 'order' 1 on 5 December 2019, the Tribunal did not have power to make an order dismissing or striking out the SAT proceedings under s 46(2) or s 47(2) of the SAT Act and hence the respondent did not have a right or reasonable expectation to be heard in order to argue that the SAT proceedings should be dismissed or struck out under s 46(2) of s 47(2) of the SAT Act. The Tribunal did not deny procedural fairness to the respondent in the circumstances of this case.

Conclusion

[51] ts 24, 27 July 2020.

[52] ts 13, 27 July 2020.

The Tribunal does not have power to make an order that 'Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside'. 'Order' 1 is not a decision which is amenable to review and revocation under s 84 of the SAT Act or a decision which can be recalled and remade under the implied power in s 32(1) of the SAT Act. Furthermore, when Senior Member Aitken made 'order' 1, the SAT proceedings had already been withdrawn and were at an end, the Tribunal therefore did not have power to dismiss or strike out the SAT proceedings under s 46(2) or s 47(2) of the SAT Act, and hence the respondent did not have a right or reasonable expectation to be heard in order to argue that the SAT proceedings should be dismissed or struck out under s 46(2) or s 47(2) of the SAT Act. The Tribunal did not deny the respondent procedural fairness in the circumstances of this case.
Consequently, I make the following order:
The preliminary issue is answered as follows:
The Tribunal does not have power to make an order in the terms set out at [6.1] of the respondent's outline of submissions dated 23 December 2019, that is an order that 'Order 1 of the Orders of Senior Member Aitken dated 5 December 2019 is set aside'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
11 AUGUST 2020