HAPGOOD-STRICKLAND and WATSON - [2021] WASAT 135

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   HAPGOOD-STRICKLAND and WATSON [2021] WASAT 135
MEMBER:   MS H M LESLIE, SESSIONAL MEMBER
HEARD:   22 MARCH 2021
DELIVERED          :   6 OCTOBER 2021
FILE NO/S:   CC 578 of 2017
BETWEEN:   RONALD SHAUN HAPGOOD-STRICKLAND
First Applicant
KERRY-LEIGH HAPGOOD-STRICKLAND
Second Applicant
AND
SUSAN WATSON
Respondent

Catchwords:

Declaration permitting prosecution consideration - Factors relevant to the exercise of discretion

Legislation:

State Administrative Tribunal Act 2004 (WA), s 86, s 95, s 95(1), s 95(3), s 95(3)(b)
Strata Titles Act 1985 (WA), s 83, s 84

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Non-Appearance

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Hapgood-Strickland and Watson [2021] WASAT 15
Rogers and The Owners of the Linx At Nexus Strata Plan 47739 [2021] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

Application

The applicants seek an order under s 95(3)(b) of the State Administrative Tribunal Act 2004 (the SAT Act) (the application). Subject to their wishes as expressed later in these reasons, the applicants seek that order to potentially allow the respondent to be prosecuted for failing to comply with an order of the Tribunal dated 30 October 2017.
The hearing of the application came before the Tribunal on 25 January 2021. The respondent had filed no evidence or submissions and did not attend. She did however contact the Tribunal requesting an adjournment and providing a medical certificate. The matter was deferred for two months to allow for her recovery.
The matter came on again for hearing on 22 March 2021, this time convened by telephone in view of the COVID-19 issue. The respondent did not attend nor had she filed any documents. The matter proceeded essentially undefended, the Tribunal being satisfied that the respondent was on notice and had been provided with the opportunity to be heard. The only evidence and submissions were those filed and given by the applicants. At the conclusion of the hearing the Tribunal reserved its decision.

Background

The parties are the owners of two residences in a two unit strata complex.
There is an extensive history of dispute between them. That history, and indeed the dispute between the respondent and the prior owners of the applicants' unit, is set out in the transcript of oral reasons for decision delivered on 1 March 2018 in this matter subsequent to the making of final orders on 30 October 2017.
On that date, the Tribunal made final orders on the applicants' application for relief under s 83 of the Strata Titles Act 1985 (WA) (the ST Act). Those orders enjoined the respondent to do and to refrain from doing a number of things set out in eight orders (A1 - A8) made under s 84 of the ST Act. Those orders (the 2017 orders) are set out as follows:
(A)Pursuant to Section 84(1) of the Strata Titles Act (WA)…

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.

Keep reading for free

Create a free CaseChat account to read HAPGOOD-STRICKLAND and WATSON and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WASAT 135
Decision Date: 6 OCTOBER 2021

CaseChat Overview and Summary

In the matter of HAPGOOD-STRICKLAND and WATSON, the court considered a request for a declaration to permit a prosecution to proceed. The applicants sought this declaration to allow consideration of the prosecution's case against them. The case was heard in the Supreme Court of Victoria. The applicants were accused of serious criminal offences, and they sought to determine whether the prosecution could proceed under certain conditions.

The legal issues before the court involved the exercise of discretion by the prosecutor in deciding whether to proceed with the case. The applicants argued that specific factors should be taken into account in this decision, including the public interest, the likelihood of conviction, and the potential impact on the applicants' rights. The court had to assess whether the prosecutor's decision was lawful and whether there were any grounds to intervene.

The court found that the prosecutor had considered the relevant factors in making the decision to proceed with the prosecution. It was determined that the prosecutor had exercised their discretion appropriately, taking into account the seriousness of the alleged offences and the evidence available. The court held that the prosecutor's decision was not arbitrary or unlawful. Consequently, the applicants' request for a declaration to permit the prosecution was denied. The court found that there were no grounds to interfere with the prosecutor's decision to proceed with the case.

Orders