JANEBA and THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266 - [2022] WASAT 83

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   JANEBA and THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266 [2022] WASAT 83
MEMBER:   MS N OLDFIELD, MEMBER
HEARD:   27 JULY 2022
DELIVERED          :   1 SEPTEMBER 2022
PUBLISHED           :   9 SEPTEMBER 2022
FILE NO/S:   CC 128 of 2022
BETWEEN:   BEDRICH BRUNO JANEBA
Applicant
AND
THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266
Respondent

Catchwords:

Strata titles - Request to inspect material pursuant to s 109 - Refusal to provide inspection of material in hard copy form - Application of s 119 to inspection of material - Whether strata company acted in a manner which was unfairly prejudicial or unfairly discriminatory

Legislation:

Equal Opportunity Act 1984 (WA)
Strata Titles (General) Regulations 2019 (WA), reg 84, reg 87, reg 88, reg 88(1)(b)
Strata Titles Act 1985 (WA), Div 1, Pt 8, s 107, s 109(1), s 109(2), s 109(3), s 109(5), s 119, s 119(1), s 119(2)(b), s 197, s 197(1)(f), s 197(4), Div 1, Pt 8

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr G Douglas
Respondent	:	Mr P Monaco

Solicitors:

Applicant	:	Douglas Cheveralls Lawyers
Respondent	:	GV Lawyers

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

Steele and The Owners of Cocos Beach Bungalows Survey Strata Plan 42074 [2021] WASAT 101

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 27 July 2022 and the decision delivered on 1 September 2022. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and setting out).

Introduction

This matter concerns an application for resolution of a scheme dispute pursuant to s 197(4) of the Strata Titles Act 1985 (WA) (ST Act). The application was lodged with the Tribunal on 4 February 2022 and a final hearing took place on 27 July 2022.
Records filed with the Tribunal by the parties were compiled into a hearing book provided to the parties which was taken into evidence as Exhibit 1. That is, save for page 68, which contained the statement of a witness who was not called to give evidence. The statement was removed upon the objection of the applicant, and the consent of the respondent. A bundle of documents lodged by the applicant after the compiling of the hearing book was admitted into evidence as Exhibit 2 after the respondent made no objection to the same.
There were only two witnesses called to give evidence, the applicant and Ms Deborah Morley who is an employee of B Strata Management (B Strata). The statements signed by those witnesses constituted their evidence-in-chief.

Facts

On the basis of the evidence as described, I make the following findings of facts. Except where noted the facts are uncontested.
The applicant is the owner of Units 10 and 11 at 4 Bulimba Road, Nedlands. B Strata was engaged by the respondent from 10 February 2021 to provide strata management services, which includes keeping the records of the respondent. Prior to that, strata management services were provided by Gow Property.
The applicant has made several requests to inspect the records of the respondent, which proceeded as follows:
•By a letter dated 6 December 2020, in response to which Gow Property replied by letter dated 9 December 2020 advising the requested documents would be made available, save for documents already supplied and those documents which were so broadly described by the strata manager was unable to identify which documents the applicant wished to inspect.[1]
[1] Exhibit 1, pages 141-142.
•On 16 December 2020 the applicant attended the office of Gow Property and was provided with a laptop to inspect the documents electronically. He asked for assistance which Ms Gow declined to provide. He asked to inspect the documents in hard copy and Ms Gow declined.[2]
•On 23 December 2020 the applicant wrote to the respondent stating he 'does not use computers' and did 'not have a computer or email address' and asking for the documents to be provided in hard copy for inspection. Gow Property wrote to the applicant on 29 December 2020 to advise hard copies would be made available as a one-off and the costs paid by the respondent.[3]
•On 6 January 2021 the applicant attended the office of Gow Property and was handed a USB flash drive which he was told contained all the requested records.[4]
•The applicant sent a further list of documents he wished to inspect by letter dated 6 July 2021. B Strata replied by letter dated 13 July 2021 stating it had some queries regarding the applicant's list of documents, advising a monitor would be provided to view the documents electronically at an agreed time and if the applicant wished to have hard copies of the documents there would be a fee of $50 for the first five pages and $1 per page thereafter.[5]
•The applicant responded to this by letter dated 16 July 2021 in which he stated the respondent had a statutory obligation to allow him to inspect hard copies of the requested documents, he did not wish to obtain copies of the documents because he would photograph any record he wished to retain and if the respondent did not comply by 5 pm on 19 July 2021 he would commence legal proceedings. The exact response to this correspondence is unclear, but by a letter dated 19 July 2021 B Strata wrote to the applicant to confirm a time for him to inspect the 'books and Records'.[6]
•The applicant attended the office of B Strata on 19 July 2021 whereupon he was provided a laptop and instruction from Ms Morley on how to navigate the Property IQ system to locate the documents he wished to inspect. The applicant stated he had difficulty navigating the system and spent three hours looking for documents with the assistance of the receptionist.[7]
•The applicant again attended the B Strata office on 6 August 2021 and photographed paper documents which had been made available for him.[8]
•The applicant sent a letter dated 18 January 2022 containing another list of documents he wished to inspect. By letter dated 21 July 2022 B Strata responded that the applicant was welcome to inspect the electronic versions of the documents, but B Strata held no paper records, and the provision of paper copies would attract a fee pursuant to reg 87 and reg 88 of the Strata Titles (General) Regulations 2019 (WA). (Regulations).[9]
•The applicant replied by letter dated 27 January 2022 in which he stated he was entitled to inspect hard copies of the records at no fee (save for the application fee of $1 which is uncontroversial). The failure to provide hard copies for inspection was, he claimed, in breach of the statement of regret, and discriminatory, and if paper copies of the documents were not made available for him to inspect then his only recourse would be an application to the Tribunal. B Strata responded on 31 January 2022 to state that the electronic records could be inspected at a set time but paper records would not be then available because that matter had been referred for legal advice.[10]
•The applicant attended the office of B Strata on 3 February 2022 but declined the offer of the use of a computer to view the documents in electronic form.[11]
[2] Exhibit 1, page 32, paras 24-25.
[3] Exhibit 1, pages 143-144.
[4] Exhibit 1, page 33, para 30.
[5] Exhibit 1, pages 175-176.
[6] Exhibit 1, pages 177-179.
[7] Exhibit 1, pages 35, paras 42-43.
[8] Exhibit 1, page 35 para 45.
[9] Exhibit 1, pages 186-188.
[10] Exhibit 1, pages 189-190.
[11] Exhibit 1, page 36, para 53.
The applicant states that in January 2021, as a consequence of being handed the USB flash drive by Gow Property, he lodged a complaint with the Equal Opportunity Commission because he believed he was being discriminated against by reason of his age.[12] It appears the parties reached an agreement through alternative dispute resolution procedures and as a result a document called a 'Statement of Regret' was signed which purported to contain a statement of ongoing policy of the respondent.[13] The Statement of Regret is not well expressed. The respondent claims it is an expression of the responsibilities of the respondent under the strata legislation. The applicant claims it is effectively an agreement to provide the applicant with paper copies of all strata records he wishes to inspect free of charge without limit.
[12] Exhibit 1, page 33, para 31and pages 229-230.
[13] Exhibit 1, page 232.
The applicant is 76 years old. He retired in 2001 and did not use computers as part of his work. He has a 'Mac' computer which he purchased in 2009 which he uses to write letters and manage photographs. He has a digital camera which he uses to pursue his hobby of photography and the photographs are transferred to the computer by taking the memory card out of the camera and putting it into the computer.
The applicant also has an iPhone which was purchased in 2013. He uses the iPhone for calls, text messages, emails and Google searching. The Google searching includes but may not be limited to the applicant's searches for decisions and other information relevant to legal disputes. The applicant stated that when he wishes to email or Google search, he does so on his iPhone via the wi-fi at a shopping centre or an Apple store.
The applicant stated he only uses his email to communicate with six friends who live overseas. He used to email more widely but in 2016 money was stolen from his credit card and in 2018 the email address he then used was hacked as a result of which the applicant estimates he lost hundreds of emails. As a result, he states he no longer uses email for any communication of importance and disconnected his home internet.
The applicant may also use the public computers at the Cambridge Library,[14] however this part of the applicant's witness statement was contradicted by the applicant in cross-examination.

The parties' submissions

[14] Exhibit 1, page 31, para 12.

The applicant states the respondent has implemented a process which unfairly discriminates against him on the basis of his age contrary to s 119(1) of the ST Act. This is founded on the following allegations:
1)Firstly, the respondent is aware of the applicant's inability to use computers and therefore his inability to operate the Property IQ system either at the offices of B Strata or by accessing the portal on his own device using email to receive a password.
2)Secondly, by requiring that documents may only be inspected electronically, the respondent is imposing a requirement that a high proportion of persons the applicant's age would not be able to meet.
3)Thirdly, the respondent has failed to consider the reasonable option which it says is encompassed by the undertaking in the 'Statement of Regret' and the email of Adrian Baddeley dated 16 July 2021.[15] In failing to consider this option, the respondent has breached s 119(2)(b).
[15] Exhibit 1, pages 64-65.
Accordingly, the applicant seeks a declaration the respondent has breached the ST Act and an order restraining further breaches.
The respondent rejects the allegations of the applicant for the following reasons:
1)Firstly, the applicant has not produced any probative evidence of his inability to use email or a computer due to his age. To the contrary, the evidence establishes can use email or a computer.
2)Secondly, the ST Act does not place any conditions on whether material is provided for inspection electronically or in hard copy.
3)Thirdly, the respondent has not refused to provide inspection of the documents but has simply availed itself of the option permitted under the ST Act to provide access electronically.
4)Fourthly, the respondent has not treated the applicant less favourably than it has treated any other person in the strata scheme. There cannot be said to be discrimination if the applicant chooses not to use his email address.
5)Fifthly, s 119 has no relevance to the present matter as it is concerned with the strata company's management of the use and enjoyment of lots and common property.

Legislation

Section 107 of the ST Act provides that a person with a proper interest about a strata titles scheme may apply in writing to the strata company for inspection of material under s 109. It is undisputed the applicant as a registered proprietor of Units 10 and 11 is such a person.
It is uncontroversial this matter constitutes a scheme dispute under s 197 of the ST Act and of course s 197(1)(f) defines a scheme dispute to include a dispute between an applicant under s 107 and a strata company about a matter arising under Pt 8, Div 1 subdivision 6 of the ST Act.
Section 109(1) and s 109(2) of the ST Act provide that a strata company commits an offence if, on an application under s 107, it does not make requested material available for inspection within a specified timeframe. Section 109(3) states the material may be made available in electronic or hard copy form. Section 109(5) provides the strata company may, but is not obliged, to provide copies of material at the request of the person applying and if it does may charge a fee not exceeding that fixed by regulation.
Regulation 88(1)(b) of the Regulations provides the maximum charge for providing photocopies of material under s 109(5) of the ST Act is $50 for the first five pages and $1 for each page after that (not including any GST).
Regulation 84 states that a record required to be kept by a strata company may be made and kept in electronic form.

Consideration

Upon a careful consideration of the parties' evidence and submissions, I consider the issues for determination can be distilled to the following questions:
1)Does the strata titles legislation impose an obligation upon a strata company to act in a manner which is not discriminatory in making records available for inspection?
2)If so, what is the nature of that obligation and has the respondent failed to comply?
Section 119 of the ST Act states a strata company is to have the objective of implementing processes and achieving outcomes that are not unfairly prejudicial to or discriminatory against a person having regard to the use and enjoyment of lots and common property.
This would appear to limit the obligation imposed by s 119 to those decisions and actions by a strata company which affect the use and enjoyment of lots and common property. This would mean a strata company is not bound by s 119 if making decisions which do not affect the use and enjoyment of lots and common property.
That interpretation is strengthened by a consideration of the terms of s 109 which provides if a person comes within the definition in s 107 of a person with a proper interest, the strata company must upon application make the documents available for inspection. This is a statutory entitlement and there is no exercise of discretion which might be exercised unfairly or in a discriminatory manner. Either inspection has been provided in accordance with s 109 or it has not, and the failure to do so is a breach of the ST Act.
The entitlement to an inspection of the records of a strata company does not appear to have a connection to the use and enjoyment of a lot or common property. It might be said that, to some extent any entitlement of a lot owner or occupant in a strata scheme may be said to ultimately link to the use and enjoyment of a lot or common property. However, there is nothing in the submissions of either party that would suggest such an interpretation, and to adopt such an approach would make a nonsense of the placement of those words in s 119(1) which on their face appear to be intended to limit the operation of that section.
On that basis then, s 119 does not apply to s 109 and accordingly there is no basis upon which to claim discrimination in providing inspection of documents under the terms of the ST Act.
If this conclusion is incorrect, and s 119 does apply to the right of inspection of documents under s 109 of the ST Act, what then is the effect of s 119 of the ST Act?
The applicant argued that as 'discrimination' is not defined in the ST Act, the Tribunal ought to be guided by the meaning of age discrimination under the Equal Opportunity Act 1984 (WA) (Equal Opportunity Act), specifically that by implementing an electronic recordkeeping system and making documents available for inspection electronically only, the respondent had required the applicant to comply with a requirement or condition with which a substantial number of persons the applicant's age could not comply and with which the applicant could not comply.
Without any disrespect to the applicant or his solicitors, I do not agree. The Equal Opportunity Act contains many specific definitions of discrimination which do not apply to an interpretation of the ST Act, which is a piece of legislation with an entirely different scope and purpose to the Equal Opportunity Act.
The meaning of 'unfairly prejudicial to or discriminatory against' was considered by this Tribunal in Steele and The Owners of Cocos Beach Bungalows Survey Strata Plan 42074 [2021] WASAT 101 in which the Tribunal determined the by-law in that instance did not satisfy the meaning of those terms because the by-law was not inherently unfair in its terms or likely operation, nor was the by-law likely to affect the applicants differently than any other lot owner.
This interpretation is repeated in similar decisions in other jurisdictions, essentially to the effect that unfair discrimination under strata legislation must in some way not affect all owners and residents equally but instead have some particular effect upon the complainant.
The respondent has chosen an electronic method of recordkeeping. This is permitted by reg 84. Due to this method of recordkeeping, the inspection of documents is offered electronically. This is in accordance with s 109(3) of the ST Act. On the face of it, this policy appears to apply to all persons entitled to an inspection of records equally.
The applicant claims this policy has been implemented in a discriminatory fashion because he is not able to use computers to a sufficient standard to utilise the Property IQ system and the respondent is aware of this because he has told them so on multiple occasions.
The applicant claims the 'Statement of Regret' is evidence in support of the discriminatory application of policy by the respondent. With respect I disagree. If there is any aspect of that document which may contain enforceable promises, that must be considered in another forum. Counsel for the applicant in submissions said that the document 'must mean something' and it may well do so, but there is nothing in that document which appears to me to constitute evidence of discrimination within the meaning of the ST Act.
The applicant stated in correspondence to the respondent dated 23 December 2020 and 27 January 2022 that he did not have an email address or a computer.[16] At the Annual General Meeting on 8 March 2021 the applicant stated to those present that he had no computer or email.[17] In his application lodged with the Tribunal on 4 February 2022 the applicant states at para 2(h) he had been told he could not be given the password to the owners' portal on the Property IQ system in part because he did not have an email address.
[16] Exhibit 1, pages 143 and 189.
[17] Exhibit 1, page 33, para 33 and page 171.
However, on the applicant's own evidence he has an active email account which he uses to correspond with friends and a computer which he uses to write correspondence and to store and manage the photographs he takes with his digital camera. Furthermore, the applicant admits to undertaking online research relevant to legal disputes and both the research and email correspondence are conducted on his iPhone using the wi-fi at shopping centres and Apple stores.

When asked in cross-examination why he had told the respondent he did not have an email address or computer, the applicant's response was that his email was private, and he did not consider his 'Mac' to be a computer but only a typewriter because his 'Mac' had not been connected to the internet since his home connection was terminated in 2018.
There is no basis upon which I can conclude, and the applicant agreed it would be incorrect to state, that age itself is an impediment to using technology. There is insufficient evidence that the applicant specifically is unable to use the relevant technology. On the contrary, the evidence supports a conclusion that the applicant is capable of using email, a computer and an iPhone. If the applicant chooses to not share his email address or chooses to not access the Property IQ system on his personal devices that is his right, but that does not mean he is incapable of doing so.
The applicant has claimed he struggled to use the Property IQ system at the office of B Strata. However, in his witness statement the applicant failed to mention at para 43 that he had operated the Property IQ system sufficiently to be able to provide a two page list of documents that he had found on the system but had difficulty in photographing. Overall, it appears to me the applicant has been less than entirely candid. Accordingly, in the absence of any corroborating evidence, I do not accept the applicant's assertion he cannot use the Property IQ system.
By reason of the foregoing, I do not accept the applicant had the disability claimed and accordingly even if s 119 of the ST Act did apply to s 109 there could be no finding of discrimination in this instance.

Orders

The Tribunal orders:
1.The application is dismissed.
2.The respondent has leave within 21 days to file with the Tribunal and serve upon the applicant its application for costs including all documents on which it intends to rely including but not limited to any receipts or other evidence of costs incurred.
3.Upon any application for costs filed and served by the respondent, the applicant shall have 21 days to file and serve any submissions in response.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS N Oldfield, MEMBER

9 SEPTEMBER 2022

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: JANEBA and THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266 [2022] WASAT 83 (S)
MEMBER:   MS N OLDFIELD, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   3 NOVEMBER 2022
FILE NO/S:   CC 128 of 2022
BETWEEN:   BEDRICH BRUNO JANEBA
Applicant
AND
THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266
Respondent

Catchwords:

Costs - Strata titles - Principles to be applied

Legislation:

Equal Opportunity Act 1984 (WA), s 66V, s 66ZF
Legal Profession (State Administrative Tribunal) Determination 2020 (WA), cl 8, cl 9(b)
Legal Profession (State Administrative Tribunal) Determination 2022 (WA), cl 9, cl 10(b)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Strata Titles (General) Regulations 2019 (WA), reg 87, reg 88
Strata Titles Act 1985 (WA), s 91, s 91(1)(b), s 107, s 109, s 109(2), s 109(3), s109(5), s116(1)(g), s 119, s 137(2)(b), s 139(1)(2), s197(4), s 199, s199(3)(a), s 200(1), s200(2)(m)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Douglas Cheveralls Lawyers
Respondent	:	GV Lawyers

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

Blasziewicz and The Owners of 7 Henderson Street (Strata Scheme 74918) [2021] WASAT 56
Chew and Director General of the Department of Education and Training [2006] WASAT 248
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Janeba and The Owners of Bulimba Grove Villa Strata Plan 3266 [2022] WASAT 83
Owners of Strata Plan 52843 and Psaros Builders Pty Ltd [2013] WASAT 46 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Pontifex and Smillie [2021] WASAT 163 (S)
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Bedrich Bruno Janeba is the owner of Units 10 and 11 at No 4 Bulimba Road, Nedlands. This property forms part of the strata scheme managed by the strata company known as The Owners of Bulimba Grove Village Strata Plan 3266 (Strata Company).
On 1 September 2022 I made orders dismissing the application of Mr Janeba under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act) for orders to the effect that the Strata Company had breached its statutory obligations by providing inspection of records in electronic, rather than hardcopy form. On the same day, following the verbal application of the Strata Company for costs, I also made orders for the filing of submissions and other relevant records by the parties in relation to costs.
On 15 September 2022 the Strata Company lodged submissions and a schedule in support of its application for costs.[18] On 29 September 2022, Mr Janeba lodged submissions in opposition to the Strata Company's application.[19]
[18] The Strata Company's Submissions on Costs and Schedule of Costs, both of which were dated and filed on 15 September 2022.
[19] Mr Janeba's Opposing Submissions on Costs dated and filed on 29 September 2022.
Mr Janeba was represented by solicitors at the final hearing. However, since the date of the final hearing, Mr Janeba has corresponded and filed documents with the Tribunal directly without the apparent involvement of a legal representative. So, although no Notice of Legal Representative Ceasing to Act was filed until 4 October 2022, it would appear Mr Janeba may have been selfrepresented in relation to the application for costs.

The submissions of the Strata Company

The submissions of the Strata Company might be summarised as follows:
1)An order for costs in favour of the Strata Company is justified by:
a)the Strata Company was entirely successful in the substantive proceedings;
b)the complexity of the matter justified the engagement of legal representation;
c)credibility of evidence was at the heart of the matter; and
d)the conduct of Mr Janeba led to unnecessary costs being incurred.
2)Regarding the complexity of the matter, the Strata Company pointed to the following factors:
a)the initial application of Mr Janeba sought remedies under the Equal Opportunity Act 1984 (WA) (EO Act);
b)the hearing book (HB) comprised 293 pages;
c)the final hearing proceeded over one day and included written submissions;
d)Mr Janeba was legally represented; and
e)the issues in dispute were such as to warrant the engagement of solicitors to advise and represent the Strata Company and to ensure its case was prepared and presented in a structured way.
3)Regarding the conduct of Mr Janeba leading to unnecessary costs, the Strata Company stated:
a)Mr Janeba was legally represented;
b)prior to the final hearing in correspondence and at the Annual General Meeting, Mr Janeba misled the Strata Company by untruthful statements that he did not have an email address or a computer;
c)Mr Janeba misled the Tribunal by stating he did not have an email address or computer;
d)In cross-examination during the final hearing, Mr Janeba admitted to undertaking online research with his iPhone and did not provide a satisfactory response as to why he had told the Strata Company he did not have an email address or computer; and
e)in the application by which Mr Janeba commenced these proceedings, a breach of the EO Act was alleged, but those claims were not pressed at the hearing.
4)Regarding assessment of the quantum of costs, the Strata Company submitted:
a)there is no prescribed scale of party/party costs in relation to Tribunal proceedings, but guidance as to appropriate rates may be obtained from the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) (2020 Determination);
b)the total party/party costs incurred in relation to this matter were $14,078;[20]
c)these costs were incurred on the basis of the relevant solicitor's rate of $550 per hour; and
d)given the difference between the relevant solicitor's rate and the maximum rate for a senior legal practitioner on a solicitor client basis in the 2020 Determination, the Strata Company applied a discount of 20%.
5)On the basis of the foregoing, the Strata Company sought costs of $11,262.40 and filed copies of the invoices substantiating the same.

The submissions of Mr Janeba

[20] All monetary amounts are inclusive of any GST.

The submissions of Mr Janeba might be summarised as follows:
1)Mr Janeba in the conduct of the proceedings acted in a timely, reasonable and appropriate manner in accordance with the statutory objectives of the Tribunal;
2)when under oath in cross-examination he answered questions honestly;
3)there were only two directions hearings, and the final hearing was of only three hours duration;
4)Mr Janeba did not conduct himself in such a way as to unnecessarily prolong the hearing, act unreasonably or inappropriately, was not capricious and did not act in any other way so as to constitute an abuse of process;
5)Mr Janeba's conduct in relation to the proceedings has not impaired the attainment of the Tribunal's statutory objectives;
6)there was a genuine dispute between the parties in relation to s 109 of the ST Act;
7)the Strata Company should have been aware the Tribunal is a 'no cost jurisdiction' and been prepared to meet its own costs of defending the application;
8)there was no compelling reason why the Strata Company should have engaged legal representation when the ST Act 'has a provision that allows providing of copies in hard form for a small charge' (sic); and
9)the amount claimed by the Strata Company is exorbitant.

Consideration

Legal Principles

Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) directs that unless otherwise specified parties bear their own costs in a proceeding in the Tribunal. However, s 87(2) of the SAT Act confers a discretionary power on the Tribunal to make an order for the payment of all or any of the costs of another party, unless the relevant enabling Act specifies to the contrary.
In this matter, the relevant enabling Act is the ST Act which contains no prohibition on the awarding of costs.
The decision of the Supreme Court of Western Australia in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 set out the following principles regarding costs:[21]
1)The 'starting point' under s 87(1) of the SAT Act is that each party will bear its own costs.
2)The discretionary power to award costs is to be exercised judicially, not arbitrarily, capriciously or so as to frustrate the legislative intent.
3)The rationale in awarding costs is not to punish the person against whom the order is made, but to compensate the person in favour of whom the order is made. The question being whether in the particular circumstances, it is fair and reasonable to reimburse that party.
4)The onus is on the party seeking a costs order to establish that an order in its favour ought to be made.
5)The nature of the dispute is a relevant consideration.
6)Each party is taken to be aware of the objectives of the Tribunal as provided in the SAT Act and therefore whether the party seeking costs can establish the other party has impaired the attainment of those objectives is relevant to the exercise of discretion.
7)The mere fact a party fails on a contention does not signify that party has acted inconsistently with the Tribunal objectives in the SAT Act.
[21] Murphy JA [46]-[58].
Relevant also is the following observation by this Tribunal in Blasziewicz and The Owners of 7 Henderson Street (Strata Scheme 74918) [2021] WASAT 56:[22]
Circumstances in which costs might be awarded include where a party has conducted itself unreasonably or inappropriately, where the weakness of the case is such that it could be described as 'incredible' or 'implausible' or 'obviously unmeritorious', or where an application undermines the integrity of proceedings under the relevant legislative scheme: Pearce & Anor and Germain [2007] WASAT 291(S) at [22] [24]; Gill & Ors and Wildnight Pty Ltd [No 2] [2008] WASAT 135 at [20].
[22] At [62].
Similarly, then President Justice Barker in Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) at [52] stated:
In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
Mr Janeba in his submissions also referred to the decisions of the Tribunal in Chew and Director General of the Department of Education and Training[23] and Pearce & Anor and Germain[24] which comparably provide there should not be an award of costs where there is a genuine dispute between the parties and where a party's rights are unclear, unless a party has conducted itself in a way that unnecessarily prolongs the hearing, has acted unreasonably or inappropriately in the conduct of the proceedings or in some other way the proceedings constitute an abuse of process.
[23] Chew and Director General of the Department of Education and Training [2006] WASAT 248, at [85].
[24] Pearce & Anor and Germain [2007] WASAT 291 (S), at [24].
When costs are to be awarded by the Tribunal, they are not intended to reimburse a party for its actual costs incurred.[25] Instead, quantum is to be assessed in a broadbrush fashion[26] of the reasonableness and proportionality of the costs,[27] bearing in mind the expectation that parties will approach proceedings in a manner that minimises costs.[28]

The proceedings before the Tribunal

[25] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67].

[26] Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].

[27] Owners of Strata Plan 52843 and Psaros Builders Pty Ltd [2013] WASAT 46 (S); Pontifex and Smillie [2021] WASAT 163 (S) at [13].

[28] J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 at [38].

In considering the parties' contentions on the question of costs, it is appropriate to consider the documents lodged by and the actions of the parties in relation to this matter.
Mr Janeba's application which commenced the proceedings on 4 February 2022 (Original Application) sought orders:
1)The Strata Company provide Mr Janeba 'with material in hard copy form in accordance with ST Act section 109(3) and the terms of the "Statement of Regret".[29]
2)The Strata Company provide Mr Janeba 'bi-monthly with a hard copy of the Balance Sheet and the Income and Expenditure Statement from the Owners Portal'.
3)Or in the alternative to 2), the Strata Company provide Mr Janeba 'access to the Owners Portal without the need for an email address'.
(The Owners' Portal was the means by which members of the Strata Company could obtain electronic access to records held by the strata manager.)
[29] The 'Statement of Regret' is described at [7] of Janeba and The Owners of Bulimba Grove Villa Strata Plan 3266 [2022] WASAT 83.
The application claimed the Strata Company had 'contravened or misconstrued':
1)section 91(1)(b), s 109(2), s 109(3), s 116(1)(g), s 119(1)(a), s 119(1)(b), s 119(2)(b), s 137(2)(b) and s 139(1)(2) of the ST Act;
2)regulation 87 and reg 88 of the Strata Titles (General) Regulations 2019 (WA) (ST Regulations);
3)section 66V and s 66ZF of the EO Act; and
4)the 'Statement of Regret'.
Mr Janeba clarified his application by lodging proposed amended orders and grounds (Amended Application) which sought:[30]
1)A declaration under s 91 of the ST Act or further or alternatively, under s 199(3)(a) of the ST Act, that the Strata Company had implemented a process of charging Mr Janeba a fee to inspect materials in hard copy form that was contrary to s 119(1) of the ST Act, and further when implementing this process the Strata Company failed to consider the reasonable option of providing to Mr Janeba hard copies of the materials at no cost, contrary to s 119(2).
2)A declaration under s 91 of the ST Act that the respondent discriminated against Mr Janeba due to his age and in doing so breached s 66V and/or s 66ZF of the EO Act.
3)An order under s 200(1) or s 200(2)(m) of the ST Act restraining the Strata Company from charging Mr Janeba a fee to inspect materials in hard copy.
[30] The 'applicant's Amended Proposed Orders and Grounds' filed 7 April 2022.
At directions hearings on 22 March and 14 April 2022, orders were made for the parties to lodge certain documents by certain dates. Orders were made on 28 March 2022, 12 May 2022, 23 May 2022 and 25 May 2022 extending the time for compliance by Mr Janeba.
Paragraph 2(h) of the Original Application stated:
The Applicant was told that he can not have the password [to obtain electronic access to the records of the Strata Company via the Owners' Portal] because:
a)he has no secure access
b)he has no email address
The Amended Application stated Mr Janeba 'is not capable of using a computer to view the [documents] electronically … due to his age and his computer illiteracy'.[31]
[31] Amended Application, para 5.14
At the directions hearing on 22 March 2022 Mr Janeba twice stated he did not have an email address, and when asked if he knew someone who did have an email address, stated 'I really wouldn't know … I do not ask about those things'. There was also this exchange:
Senior Member: … just so I better understand your argument, are you saying some of these documents, which would ordinarily be sent by the strata manager - or sent by the strata company, and, therefore, you wouldn't need a copy because they would have already been provided to you, aren't being sent to you because you don't have a computer?
Mr Janeba: Yes. Right.
These statements are in contrast to Mr Janeba's written statement[32] and oral evidence before the Tribunal in which he admitted having both a computer and an email address which prior to December 2018 had been used for extensive email correspondence but that now he uses other means of communication because he does not want his business, financial or personal affairs to be vulnerable to hacking and Mr Janeba currently uses an iPhone to conduct email correspondence and access the internet to conduct online research regarding the present and other legal disputes.
[32] Statement of Evidence of Bedrich Janeba dated 26 May 2022.
It might also be noted that the Senior Member appeared to feel the provisions of the ST Act were not in favour of the application and warned Mr Janeba that if he were wrong, he ran the risk of an application for costs being made against him, which costs would be significantly greater than the prescribed cost of photocopies. Mr Janeba confirmed he understood.

Determination

Mr Janeba was entirely unsuccessful in his application. Whilst it may be said there was a legitimate dispute as to the application of s 119 of the ST Act to s 109 of the ST Act, on the other hand:
1)the Strata Company was clearly entitled to provide inspection electronically;[33]
2)the Strata Company was not obliged to provide copies of material, but in agreeing to do so it was entitled to charge the fee which was charged;[34]and
3)in an application pursuant to s 197(4) of the ST Act, the Tribunal had no jurisdiction to hear or determine alleged breaches of the EO Act or a private agreement[35] between the parties.
[33] ST Act, s 109(3).
[34] ST Act, s 109(5) and ST Regulations, reg 88.
[35] Being the 'Statement of Regret'.

Furthermore, the claims of Mr Janeba were based upon an incorrect characterisation of the facts, in that:
1)Mr Janeba alleged the Strata Company had breached s 109(3) in failing to consider the 'reasonable' alternative of providing him documents upon request at no charge. However, the documents lodged by Mr Janeba made it clear the Strata Company had considered this request and provided some documents at no fee but was unwilling to continue to do so on an indefinite or permanent basis.[36]
2)Mr Janeba alleged he was the subject of age based discrimination because he did not have a computer or email and was unable to use a computer to the requisite standard to operate the Property IQ system. However, the evidence established that Mr Janeba was in possession of both a computer and an email address, engaged in email correspondence using his iPhone, paid fees to the strata manager via online banking and on at least one occasion had been capable of operating the Property IQ system to the extent of identifying a two page list of those documents he wished in hard copy.[37]
[36] Statement of Evidence of Bedrich Janeba dated 26 May 2022, para 19, 29, 45 and HB pages 171, 174, 188 and 190.
[37] Statement of evidence of Debbie Morley dated 10 May 2022, para 8; Statement of Evidence of Bedrich Janeba dated 26 May 2022, para 10, HB, pages 57-58, 187.
Even prior to the filing of evidence, the case of Mr Janeba appeared tenuous. On a full appreciation of the evidence, his case became unmeritorious - even had s 199 of the ST Act applied to the right of inspection under s 107 and s 109, there was no basis upon which a finding of discrimination could be made.
Mr Janeba made the point that he was truthful in his evidence and indeed his truthfulness is to be commended. What cannot be commended is relying upon statements of fact he knew to be less than true in bringing an application before the Tribunal and advancing grounds for that application which were clearly beyond the jurisdiction of the Tribunal to determine. In doing so, Mr Janeba acted inappropriately and impaired the Tribunal's attainment of its statutory objectives.
Mr Janeba complained there was no compelling reason for the Strata Company to engage legal representation to defend his application when the ST Act 'allows providing of copies in hard form for a small charge'. One might similarly observe Mr Janeba had the choice of paying that 'small charge' instead of engaging legal representation in relation to this application. Although the issues in this matter were not highly complex, both parties considered it necessary to engage legal representation and I see no basis on which to reproach either party for that choice.
Considering all the above factors, it appears fair and reasonable the Strata Company be reimbursed a portion of the costs incurred in relation to this matter. In considering the claim to costs of $11,262.40, I observe:
1)The Strata Company reduced its claim by 20% from $14,078 to $11,262.40 due to the difference between the rate charged by the relevant solicitor and the maximum allowed under the 2020 Determination. The maximum rate for a senior practitioner ($418) would more correctly be described as 76% of the rate charged ($550). On the other hand, from 1 July 2022 the maximum rate for a senior practitioner was increased to $429,[38] which is 78% of the rate charged to the Strata Company.
2)Each party called one witness to give evidence. The statements of each witness (not including annexures) were nine pages and three pages in length.
3)The solicitors for the Strata Company invoiced one hour's work for each of the telephone directions hearings on 22 March 2022 and 14 April 2022. However those directions hearings were respectively of 22 minutes and five minutes duration. Party/party costs would not normally include any client conferrals that might reasonably attend a directions hearing, and any travel associated with attendance at a hearing is to be charged at no more than half the relevant hourly rate.[39]
4)The duration of the final hearing was two hours and 58 minutes.
5)Disbursements totalling $434.49 were included in the Strata Company's claim, described as relating to a file administration fee, photocopying and email. Disbursements are payable to the extent they are necessarily or reasonably incurred.[40] I have no doubt photocopying was required, if only to produce the hearing book which was sent to the parties via email, but the Strata Company provided no explanation of the reason the disbursements were necessary, nor how each charge was calculated.
6)Mr Janeba stated the claim for costs was exorbitant but provided no reason or explanation of his assessment, nor any indication as to the amount he would consider reasonable.
[38] Legal Profession (State Administrative Tribunal) Determination 2022 (WA) (2022 Determination).
[39] 2020 Determination, cl 9(b); 2022 Determination, cl 10(b).
[40] 2020 Determination, cl 8; 2022 Determination, cl 9.
Considering the totality of the nature of the dispute, the conduct of the proceedings by the parties and the objectives and procedures of the Tribunal, I consider $8,000 to be an appropriate award of costs in favour of the Strata Company.
On the basis of the foregoing, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the applicant shall within 30 days of the date of this order pay to the respondent the sum of $8,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS N Oldfield, MEMBER

3 NOVEMBER 2022