HARTWIG and CITY OF CANNING
[2008] WASAT 243
•20 OCTOBER 2008
HARTWIG and CITY OF CANNING [2008] WASAT 243
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 243 | |
| HEALTH ACT 1911 (WA) | |||
| Case No: | CC:591/2008 | 11 JULY 2008 | |
| Coram: | MR M SPILLANE (MEMBER) | 20/10/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | THOMAS GEORGE HARTWIG CITY OF CANNING |
Catchwords: | Practice and procedure Application for extension of time in which to commence an application for review Factors for consideration and exercise of discretion to extend time |
Legislation: | Health Act 1911 (WA), s 36(1), s 139 State Administrative Tribunal Act 2004 (WA), s 20(1), s 27(1) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 |
Case References: | Goedhart and Western Australian Planning Commission [2006] WASAT 49 Jackamarra v Krakouer (1998) 195 CLR 516 O'Connor and Town of Victoria Park [2005] WASAT 161 |
Orders | The Tribunal makes the following orders:,1. The application for review is out of time.,2. The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time for commencement of these proceedings is refused. |
Summary | The owner of a property in Lynwood applied to the Tribunal to extend the time allowed to apply for a review of a Notice he had received under the Health Act 1911 (WA) to clean up the property.,The period of delay was approximately five months, and although there appeared to be an arguable case and no prejudice to the respondent, the Tribunal was not satisfied with the reasons given for the significant delay and refused to extend the time to apply. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : HEALTH ACT 1911 (WA) CITATION : HARTWIG and CITY OF CANNING [2008] WASAT 243 MEMBER : MR M SPILLANE (MEMBER) HEARD : 11 JULY 2008 DELIVERED : 20 OCTOBER 2008 FILE NO/S : CC 591 of 2008 BETWEEN : THOMAS GEORGE HARTWIG
- Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Practice and procedure - Application for extension of time in which to commence an application for review - Factors for consideration and exercise of discretion to extend time
Legislation:
Health Act 1911 (WA), s 36(1), s 139
State Administrative Tribunal Act 2004 (WA), s 20(1), s 27(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
(Page 2)
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A Atkinson
Respondent : Mr D H Nadebaum
Solicitors:
Applicant : Solomon Brothers
Respondent : McLeods
Case(s) referred to in decision(s):
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer (1998) 195 CLR 516
O'Connor and Town of Victoria Park [2005] WASAT 161
(Page 3)
Summary of Tribunal's decision
1 The owner of a property in Lynwood applied to the Tribunal to extend the time allowed to apply for a review of a Notice he had received under the Health Act 1911 (WA) to clean up the property.
2 The period of delay was approximately five months, and although there appeared to be an arguable case and no prejudice to the respondent, the Tribunal was not satisfied with the reasons given for the significant delay and refused to extend the time to apply.
Introduction
3 Thomas George Hartwig (applicant) has applied for an order to extend the period within which he is entitled to bring an application for review under s 36(1) of the Health Act 1911 (WA) (Health Act) in respect of a Notice under s 139 of the Health Act, dated 5 September 2007, (Notice) issued by the City of Canning (respondent) and served on the applicant on 18 October 2007.
4 The Notice was issued in respect of premises at No 23 (Lot 36) Montrose Street, Lynwood, Western Australia (premises) being the land in the Certificate of Title Volume 1722 Folio 220.
5 The Notice required the applicant:
a) to render clean the House within five (5) days and in the manner specified in Item 3 of the schedule attached to the Notice; and
b) to repair and clean the House within twenty-one (21) days and in the manner specified in Item 4 of the schedule attached to the Notice.
6 In his application, the applicant requested the time fixed for the commencement of the application for review be extended up to and including the date of the application, being 18 April 2008, pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (Tribunal Rules).
7 Rule 10 provides as follows:
10. Extension of time limit
- (1) The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2) Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
8 The Health Act does not set down any time within which an application for review may be made to the Tribunal. However, r 9 of the Tribunal Rules states:
9.Time limit for applications: review jurisdiction
Subject to these rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of
(a) the day on which the decisionmaker gives a notice under the Act section 20(1);
(b) the day on which the decisionmaker makes the decision under the Act section 20(5); or
(c) if, under the Act section 3(3)(a), the Act applies as if a person had made a decision, the day on which any provision of the enabling Act as to when the decision is taken to have been made has effect.
20. Advice of decision and right to have it reviewed
(1) If this subsection applies to a reviewable decision, the decisionmaker is to give any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of
(a) the decision; and
(b) that right.
(e) If you are aggrieved by the decision of the Local Government to issue this Notice, you may apply to the State Administrative Tribunal for a review of the decision to issue this notice.
(Page 5)
- (f) Your attention is drawn to the need to make any such application within twenty-eight (28) days of the date of the giving of this Notice to you.
11 For the application for review to be within time, it would have had to have been received by the Tribunal on or before 15 November 2007.
12 By 18 April 2008, the date upon which the application for review was filed, it was 155 days or five months after the time limit for bringing the application had expired.
Issues for consideration in the exercise of discretion
13 In a number of previous matters, the Tribunal has outlined the principal considerations it sees as relevant in the exercise of discretion regarding an extension of time.
14 They were succinctly set out by the President of the Tribunal, Barker J, in O'Connor and Town of Victoria Park [2005] WASAT 161 (O'Connor) at [38 40] when he stated:
In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J held, at 459, as follows:
'The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR1 187 at 194 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a 'vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 922
(Page 6)
- at 935:
'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'
In a passage quoted with approval and applied by Malcolm CJ (with whom Kennedy and Franklyn JJ agreed) in Girando and Anor v Girando (1997) 18 WAR 450 at 454, Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
'In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.'
The four factors identified by Kennedy J are the principal matters for consideration in the exercise of discretion as to whether to extend the period within which an application for review under s 66 of the TPD Act may be commenced. In Jackamarra v Krakouer [1998]HCA 27; (1998) 195 CLR 516, Brennan CJ and McHugh J expressed doubt, at [6] [7], as to whether the four factors identified by Kennedy J were the correct matters for consideration in the exercise of the discretion which was in question in that case. Their Honours noted that Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) was, like the matter before them, concerned with the failure to enter an appeal for hearing in accordance with O 63 r 7(1) of the Rules of the Supreme Court 1971 (WA), that is 'a purely procedural application to extend time for doing an act in respect of an appeal already lodged'; see also Kirby J at[66.7]. However, their Honours did not doubt the correctness of the four factors identified by Kennedy J as being the principal matters for consideration in the exercise of a discretion to extend the period in which an appeal may be commenced.
15 Both parties tendered written and oral submissions, together with affidavit evidence as to the circumstances and both parties accepted these four factors as being the principal considerations in the exercise of discretion as to whether to extend time.
16 The applicant furnished an affidavit sworn by him on 30 May 2008 and the respondent submitted an affidavit by Cassandra Collyer, an environmental health officer with the respondent, sworn 11 June 2008.
(Page 7)
Submissions
Applicant's submissions as to reasons for delay
17 The applicant submitted that the delay was fully explained in that:
1) The respondent induced the applicant to believe the time was not of the essence;
2) The applicant was proceeding on the basis of a reasonable but mistaken belief that the house was occupied until late November 2007; and
3) The applicant could not enter upon and effect repairs to the house, given the violent and aggressive nature of the tenant, until the house was vacant.
18 In his affidavit, the applicant confirmed he is a director of KBE Construction Pty Ltd and indirectly owns that company. He manages its business which primarily carries out the erection of home patios and home extensions. He engages between 17 18 permanent trade contractors, between seven to eight casual trade contractors and approximately 12 office and factory contractors and he himself works long hours.
19 He is the owner either directly or through a company of in excess of 30 residential properties in the Perth metropolitan area, including the property the subject of this application. He confirmed that he manages all of the properties himself.
20 He also confirmed that he began acquiring investment properties approximately 15 years ago and has been managing the properties since that time and has experience in applying to the Magistrates Court to evict tenants.
21 He explained that it takes a couple of months to evict tenants through the court system and in his experience it is better to permit the tenants to leave voluntarily rather than forcing them.
22 In respect of the premise at 23 Montrose Street, Lynwood, he confirmed it was rented to a tenant in or about May 2005 but by June 2006 the tenant was substantially behind in rent and by the end of October 2006 had virtually stopped paying rent.
(Page 8)
23 To the best of his recollection, he remembers visiting the premises towards the end of 2006 when the tenant and her daughter verbally abused him, and approximately a month or two after that visit he went to the house again with the same result.
24 To the best of the applicant's recollection, some months after his last visit to the house the tenant's daughter visited his workplace with a person, who he assumed to be a boyfriend, and was again abusive and threatening. The applicant stated that by the beginning of 2007 he did not dare go to the house again because he apprehended that he would be physically assaulted.
25 The applicant confirmed receiving a telephone call from Cassandra Collyer at the City of Canning, which he stated to the best of his recollection took place in the middle of 2007 and possibly earlier, and that they spoke about the refuse and junk around the house. At [13 17] of his affidavit he stated:
Some months later Cassandra came to my place of work with a young fellow. Cassandra gave me a letter. When Cassandra handed me the letter she explained to me that it obliged me to remove the junk and refuse from around the House. I again explained to Cassandra that it was not my problem and she should be chasing the tenant. Cassandra said that the Council had done all it could with the tenant. I disputed this. I knew at the time that it was impossible for me to do anything until such time as the tenants moved out of the House. I explained to Cassandra that I would not be able to attend to the House until the tenant left. I explained to Cassandra also that it was going to take time to remove the material from around the House because we were in the middle of a housing boom and it was difficult to get contractors and labourers to do jobs generally. Cassandra said: 'we'll see how you go'. The matter of the material at the yard of the House had by then been outstanding for well over a year and as far as I knew the City had taken no steps to have the tenant (Jodie) remove the material. In fact I was most annoyed that the City had not taken up the matter with the tenant and I told Cassandra that. Based on my conversation with Cassandra I believed that the matter of removal of the materials was not an urgent matter. I did not read the letter which Cassandra gave me until much later. It is claimed by the respondent that on 18 October 2007 Cassandra Coller [sic] served me with a notice dated 5 September 2007 ('Notice'). On that basis I believe that my meeting with Cassandra took place on 18 October 2007 and that the letter which Cassandra gave to me at that meeting was the Notice.
After my meeting with Cassandra I drove past the House on a fairly regular basis to see if Jodie had vacated the House. I did not want to go to the House and knock on the door as I feared a violent confrontation or some other retribution such as the trashing
(Page 9)
- of the House or the trashing of my car. I already had noticed damage to the House when I drove past it.
At around the end of November 2007 I saw the mail pile up in and around the mailbox of the House. I believed that the House had been vacated by Jodie. I did not go inside the House. I did not have the keys on me at that time. The next day or so I spoke to John from John's Handyman Services and asked him to provide me with a quote to collect and dispose of the material around the House. He agreed to do so at an hourly rate. I ordered bins from WA Bins to be deposited near the House so that John could throw away all of the material in those bins.
Around the end of November 2007 I telephoned Cassandra and informed her that the tenant had moved out and that I was in the process of organising for the removal of the refuse and junk from the House. Cassandra replied 'that's good' or words to that effect. She did not explain to me that it was too late to do so or voice any disapproval or concern at that stage.
A couple of weeks later John telephoned me and advised me that he had wanted to start the job at the House but he was unable to do so because the bins had not been delivered. I sent an email to WA Bins and never received a response. I thereafter organised bins to be replaced at the House through Melville Bin Hire. I then telephoned John of John's Handyman Services and advised him that he could proceed with the job. At that time, John told me that he had got busy and he was unable to do the job. I rang around to try to find someone who could do the job but with no success. I then spoke to several contractors who worked for KBE. They were willing to help me with the removal of the refuse at the House but they had full work schedules and would only be able to do the work whenever they were not booked to do jobs. I provided the contractors my bobcat to do the cleanup. The contractors started the job at the House within a week or two. They were unable to complete the job immediately because the bobcat broke down and had to be repaired. The cleanup job at the house was not completed until the end of February 2008 because of the time it took to repair the bobcat and because of the contractor's hectic work schedules and the intervening Christmas break. Annexed hereto and marked 'TGHI' are copies of invoices for the work carried out in December 2007 and the invoice for the repair of the bobcat. [original emphasis]
26 The applicant in his affidavit went on to explain his efforts from that point to the start of cleaning up around the house, and that in December 2007 the contractors reported to him about the state of the house as follows:
They said it was left in a badly damaged condition. The floors in the house had been deliberately damaged, the windows had been smashed and the plumbing fixtures in the house had been removed. I had previously considered demolishing the House but had
(Page 10)
- wanted to inspect the House and make up my mind about it once it was cleaned up. However when the contractors described the state of the house to me I decided that I would demolish the House.
27 It is common ground that the respondent issued proceedings in the Magistrates Court, dated 7 December 2007, for failure to comply with the Notice and both counsel agreed those proceedings were served on the applicant sometime in December 2007.
28 The first mention date for that summons in the Magistrates Court appears to have been 29 February 2008.
29 At paragraph 22 of his affidavit, the applicant confirmed that a default judgment was obtained against him in those proceedings which was later set aside and the matter then set down for hearing at the Magistrates Court on 18 April 2008.
30 The applicant also confirmed that, having decided in December 2007 to demolish the house, he requested another builder, who does contract work for one of his companies, to apply for and obtain a demolition licence and that, following various delays, an application for a demolition licence was made on 6 February 2008 and the demolition licence granted on 29 February 2008.
31 In respect of the preparation and lodging of the review proceedings before this Tribunal the applicant states at paragraph 23 of his affidavit:
On 16 April 2008 my solicitor, Alexander Atkinson of Solomon Brothers ('Mr Atkinson'), received an email from the City's solicitors. Mr Atkinson advised me and I verily believe that the email disclosed that the City had photographs in their possession which were taken on 3 September 2007 and subsequently and which showed that the House was vacant since 3 September 2007 (and not from November 2007 as I thought). I am further advised by Mr Atkinson that the email contains an offer from the City and for that reason it is not annexed. As a consequence the House was always vacant and never occupied from the date the Notice was served on me. My solicitor received the photographs referred to in the email from the City's solicitor on 17 April 2008. I met with my solicitor on 17 April 2008 and based on the email and photographs I instructed my Solicitor to make an immediate application to the State Administrative Tribunal ('SAT') to set aside the Notice. I am advised by my solicitor and verily believe that the application to the SAT was prepared and filed on 17 April 208 but was on stamped as having been received on 18 April 2008.
(Page 11)
Respondent's submissions as to reasons for delay
32 The respondent filed an affidavit by Cassandra Collyer, an Environmental Health Officer with the respondent.
33 The relevant matters referred to by Ms Collyer are that on 19 September 2007, in a telephone discussion, the applicant advised her that he was the owner of the property but queried why the respondent had waited until the tenant had vacated the property to take action. Ms Collyer stated that she advised the applicant that she could not comment as she had only commenced employment with the respondent earlier that week.
34 Ms Collyer went on to state:
At the time of my inspection in September 2007, all of the windows to the House were smashed and broken and there was broken glass scattered across the floors in the bedrooms. The front door was missing. Floorboards in the living room had been pulled up and the fireplace smashed. All of the plumbing fixtures in the House had been disconnected or removed. There was rubbish scattered throughout the House and nearly every surface within the House was covered in dirt and filth. The Toilet was clogged with refuse and had been disconnected. There were also large amounts of refuse and broken household items piled up against the outside walls at the rear of the House and scattered on the ground under the rear verandah and carport to the House.
35 Ms Collyer confirmed that on 18 October 2007 she attended the applicant's business premises and handed him the Notice the subject of the review proceedings dated 5 September 2007. Ms Collyer stated that she advised the applicant that she had inspected the premises and that the tenant was no longer at the property. She went on to state that the applicant said that he was having difficulty getting a contractor to carry out the works and that she advised the applicant that it was his responsibility to ensure the works required pursuant to the Notice were carried out.
36 Ms Collyer confirmed that on 6 December 2007 she carried out another inspection of the property and it was in the same state as in September. She denied that she advised the applicant or suggested to the applicant that the City was not concerned about the time it was taking for the applicant to comply with the Notice or that the City would not commence legal proceedings for failing to comply with the Notice.
(Page 12)
Applicant's submissions as to whether there is an arguable case
37 The applicant raises two main arguments; the first being that the Notice itself is invalid because s 139 of the Health Act, under which the Notice was issued, is limited in its operation to the building or the structure on the land and not the surrounding grounds, and that the entire Notice is invalid unless the bad portions are severable.
38 The Notice clearly attempts to cover two issues:
(a) to render clean the House within five (5) days in the manner specified in Item 3 of the schedule; and
(b) to repair and clean the House within twenty-one (21) days in the manner specified in Item 4 of the schedule.
39 Item 3 of the schedule, under the heading 'Clearing', deals with removal of matter from the front yard, the rear yard, the House and the garage.
40 Item 4 of the schedule under the heading 'Repairs' deals with matters both external and internal to the House itself.
41 Section 139 of the Health Act states:
139. Owner may be required to clean or repair house
In addition to the powers contained in the preceding sections of this Part, a local government may, if in its opinion any house is unfit for human habitation by reason of uncleanness or want of repair, require the owner of such house by a notice served on such owner to render clean or to repair such house within the time and in the manner specified in such notice.
'House' means any building or structure whether temporary or otherwise common, including tents and vans, and includes the place of worship, school, factory, workroom, shop, hotel, public house …
43 The applicant's second argument is that, in reviewing its decision, the Tribunal may, pursuant to s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), take into account any additional or new information that was not at the disposal of the decisionmaker at the time when the decision was made and that, in effect, the hearing before the Tribunal is a hearing de novo. In the present case the applicant has applied for, and been granted, a demolition licence and clearly intends to demolish the house, and it would therefore be unreasonable upon the hearing
(Page 13)
- de novo to require him to repair the house prior to its demolition.
Respondent's submission as to whether there is an arguable case
44 The respondent argues that to the extent that the Notice requires it, any parts of the Notice that are invalid are severable and that they do not invalidate the part of the Notice requiring the applicant to clean and repair the house.
45 They further argue that the applicant's intention to demolish the house does not make the issuing of the Notice unreasonable because the house remains unfit for human habitation and that the respondent does not have the power pursuant to s 139 of the Health Act to require the demolition of the house.
Consideration
46 As outlined earlier, there are four issues to be dealt with by the Tribunal, namely:
a) the length of the delay;
b) the reason for the delay;
c) whether there is an arguable case; and
d) the extent of any prejudice to the respondent.
47 In the present case, three of these; namely, (a), (c) and (d), can be dealt with reasonably quickly. However, the principal issue to be addressed which was identified by counsel for the applicant in oral submissions, is in respect of (b), the reasons for the delay, and in particular whether the reasons given are adequate or acceptable.
Length of delay
48 In O'Connor, the President described a delay of just over five weeks, in the context of a statutory period of one month in which to seek a review, as 'borderline'. In Goedhart and Western Australian Planning Commission [2006] WASAT 49 at [16], Senior Member Parry described a delay of between 81 and 87 days, in the context of a 28day review period as 'considerable'.
49 In the present case, a delay of 155 days or approximately five months from the time the 28day review period expired is clearly significant.
(Page 14)
Whether there is an arguable case
50 The fact the applicant has obtained a demolition licence does not mean he must actually demolish the house. Therefore, the scope of the Notice, given the definition in the Health Act, the validity of the Notice and questions of severability would all be matters to be argued. In the circumstances, the Tribunal is satisfied that there is at least an arguable case for review.
The extent of any prejudice to the respondent
51 The applicant argued that no prejudice would be suffered by the respondent which cannot be remedied by an appropriate costs order against the applicant.
52 The respondent made no submissions in respect of this issue although they did submit that they saw the entire matter as an exercise in futility as the applicant had received two Notices, had done nothing, had been prosecuted and the day before the hearing brought on this application. They also submitted that if there is an arguable case with respect to the Notice, that can be raised in the prosecution proceedings.
53 In the circumstances, as to the extent of any prejudice, the Tribunal accepts that there is unlikely to be significant prejudice suffered by the respondent.
Reasons for delay
54 The principal issue to be decided in the matter is whether the reasons for delay are adequate or acceptable.
55 The applicant argued that the delay was fully explained in that:
1) He was induced by the respondent to believe that time was not of the essence; and
2) He had proceeded on the basis of a reasonable but mistaken belief that the house was occupied until late November and he therefore could not enter and effect repairs given the violent and aggressive nature of the tenant.
56 In Jackamarra v Krakouer (1998) 195 CLR 516, Kirby J at [66] stated:
(Page 15)
- Necessarily, the indulgence is not granted as a course. It is for the party seeking to persuade the decision maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred.
57 The applicant by his own evidence is an experienced contractor in the building industry running a large company and engaging a substantial number of trade contractors and other staff.
58 He is the owner either directly or through a company of in excess of 30 residential properties in the Perth metropolitan area and has experience in applying to the Magistrates Court to evict tenants.
59 By the end of October 2006, the tenant occupying the house had virtually stopped paying rent, and by the beginning of 2007, because of the behaviour of the tenant and her daughter, the applicant stated that he did not dare go to the house again. However, although experienced in applying to the Magistrates Court to evict tenants, which by his own evidence took a couple of months, the applicant took no action throughout 2007.
60 When the representatives of the City of Canning visited the applicant at his work on 18 October 2007 and handed him a letter containing the Notice and explained that it obliged him to remove the junk and refuse from around the house, the applicant did not read the Notice until much later.
61 From an inspection of the property in September 2007, it was clear to the respondent that the property was vacant as all of the windows were broken and the front door was missing. The applicant however, despite driving past the house on a fairly regular basis after receiving the Notice and noting damage to the house, only believed the house became vacant at the end of November when he saw mail piled up.
62 The applicant confirmed that in or around the same time (the end of November) he telephoned the respondent and informed them that he was in the process of organising the removal of the rubbish.
63 In December 2007, when contractors reported the state of the house, the applicant decided to demolish it. For various reasons, the application for a demolition licence was not lodged until 6 February 2008 and still no application was made to review the Notice.
64 In December 2007, the applicant was served with prosecution proceedings for failure to comply with the Notice and he still did not seek a review of the Notice. Default judgment was later obtained against the applicant in respect
(Page 16)
- of those prosecution proceedings.
65 As stated, the applicant is an experienced building contractor and property owner with substantial resources at his disposal and, by his own admission, experienced in the court system, yet he:
1) received a Notice to clean up the property on 18 October 2007, and approximately two months later in December 2007, received prosecution proceedings for failing to comply with the Notice, yet took no action to seek a review of the Notice at that time; and
2) decided to demolish the property, the subject of the Notice in December 2007, and applied for and was granted a demolition licence in February 2008, but again took no action to seek a review of the Notice.
66 It was not until 17 April 2008, the day before the hearing of reinstated prosecution proceedings, that he finally instructed his solicitor to lodge an application for review.
67 The Tribunal's has made no findings as to credibility and its decision is based solely on the applicant's evidence alone. Although the applicant submitted that the delay was fully explained, the Tribunal is not satisfied that those reasons constitute an adequate or acceptable explanation for the significant delay in all the circumstances of this case.
Conclusion
68 Although the Tribunal is satisfied there is an arguable case, and there would appear to be no material prejudice to the respondent, the significant delay and the lack of an adequate or acceptable explanation for that delay, in the Tribunal's view, outweigh the other considerations in the exercise of the Tribunal's discretion on this occasion, and the Tribunal is not prepared to exercise its discretion to extend the time for commencement of these proceedings.
Orders
69 The Tribunal makes the following orders:
1. The application for review is out of time.
(Page 17)
- 2. The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time for commencement of these proceedings is refused.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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