Janeba v AMIRTHALINGAM
[2012] WASC 222
•19 JUNE 2012
JANEBA -v- AMIRTHALINGAM [2012] WASC 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 222 | |
| Case No: | GDA:17/2011 | 19 JUNE 2012 | |
| Coram: | HALL J | 19/06/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BEDRICH BRUNO JANEBA VIMALA AMIRTHALINGAM |
Catchwords: | Appeal from State Administrative Tribunal Dispute by strata residents Whether by-law prohibiting storage of inflammable materials was breached Meaning of 'inflammable material' in sch 2 cl 8 Strata Titles Act 1985 (WA) Whether question of law with sufficient merit to justify grant of leave |
Legislation: | State Administrative Tribunal Act (2004), s 105 Strata Titles Act 1985 (WA), s 42, sch 2, cl 8 |
Case References: | Paridis v Settlement Agents Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
VIMALA AMIRTHALINGAM
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR D AITKEN
- MEMBER
File No : CC 880 of 2011
Catchwords:
Appeal from State Administrative Tribunal - Dispute by strata residents - Whether by-law prohibiting storage of inflammable materials was breached - Meaning of 'inflammable material' in sch 2 cl 8 Strata Titles Act 1985 (WA) - Whether question of law with sufficient merit to justify grant of leave
(Page 2)
Legislation:
State Administrative Tribunal Act (2004), s 105
Strata Titles Act 1985 (WA), s 42, sch 2, cl 8
Result:
Application for leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : In person
Solicitors:
Appellant : In person
Respondent : In person
Case(s) referred to in judgment(s):
Paridis v Settlement Agents Board [2007] WASCA 97; (2007) 33 WAR 361
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript).
Background
1 Mr Janeba, the appellant, lives in a strata unit in Nedlands. His unit is number 11. For some time he was unhappy about the activities of his neighbours in unit 5. They were a couple who did part-time work distributing newspapers and catalogues. Mr Janeba believed that the storage of bundles of newspapers contravened the strata by laws.
2 The Strata Titles Act 1985 (WA), s 42, provides that the provisions contained in sch 1 and sch 2 to the Act are deemed to be the by-laws of the strata company subject to any amendments, repeal or additions that the company makes. It is common ground that the relevant by-law in sch 2, being cl 8, has not been amended or repealed in the present case. That clause provides as follows:
Storage of Inflammable Liquids et cetera.
A proprietor/occupier or other resident of a lot shall not, except with the approval in writing of the strata company, use or store upon the lot or upon the common property any inflammable chemical, liquid or gas or other inflammable material other than chemicals, liquids, gasses or other materials used or intended to be used for domestic purposes or any such chemical, liquid, gas or other material in a fuel tank of a motor vehicle or internal combustion engine.
3 Mr Janeba contends that newspapers are inflammable and that therefore storage by his neighbours of newspapers on their lot contravenes cl 8 because that storage is not for domestic purposes and was not approved by the strata company.
4 Mr Janeba made complaints to the strata manager and to the respondent, who is the owner of unit 5. He sought that the respondent require her tenants to stop storing the newspapers at the unit. He did not receive a response to his complaints that he considered satisfactory. He then commenced proceedings in the State Administrative Tribunal (SAT).
5 By an application to the SAT dated 17 July 2011 Mr Janeba sought orders that the respondent:
(1) Cease immediately storing any kind of inflammable materials upon the lot and upon the common property;
(Page 4)
- (2) Remove immediately any inflammable material currently stored upon the lot or upon the common property;
(3) Make an order under section 95 of the State Administrative Tribunal Act.
6 The grounds for the application were that the respondent had allowed her tenants to store inflammable materials in breach of cl 8 and that this created a situation that endangered the lives and property of other owners. The application was supported by a number of photographs which show bundles of newspapers and catalogues by the door of unit 5 and also in a covered car parking bay. Most of these bundles are tied up, some appear to be wrapped in plastic. The photographs bear dates of between 21 March 2011 and 17 July 2011.
7 There was a directions hearing in the SAT the result of which was that the respondent was to speak to her tenants regarding removal of the material. If removal occurred by 25 July 2011 the hearing of the application would be vacated. Verbal advice was received by the Tribunal that the material had been removed, though it transpired that this was not complete or to the satisfaction of Mr Janeba. At a hearing on 11 August 2011 he told the Tribunal that the materials had been removed from the carport and the courtyard of unit 5 but were now being stored in the tenant's car and inside their unit. In these circumstances he maintained his application.
8 Following the hearing on 11 August 2011 the presiding member of the Tribunal, Mr D Aitken, dismissed Mr Janeba's application. In his reasons for decision he said that the critical issue was the interpretation of cl 8. In this regard he said:
As a result of my decision that the ejusdem generis rule does apply to the interpretation of the wording in by-law (8), therefore, the general words 'or other inflammable material', which follow those specific words, are to be construed as being limited to things of a like kind to those specific substances.
Having decided that I need to interpret the words by reference to that rule of construction; I need to decide whether the materials in this case, which are the bundles of paper material which are shown in photograph 1A, are of a like kind of inflammable chemicals, liquids and gasses or not. What I have decided there is that the materials in this case are not within that same category and, therefore, do not constitute other inflammable material for the purpose of by-law (8). I have got no doubt that, if sufficient flame or heat was applied to these materials, they would burn at some stage, but they are of a different nature to an inflammable chemical, liquid or gas,
(Page 5)
- they would burn at some stage, but they are of a different nature to an inflammable chemical, liquid or gas, which is clearly a far more volatile substance.
Therefore, I have to interpret by-law (8) as only applying to materials that are in that category of inflammable materials. Having decided that the materials in this case are not within the meaning of the words 'other inflammable material' for the purposes of clause (8), that leads me to the conclusion that the application fails and, accordingly, the order that I make is that the application is dismissed (ts 6 - 7).
The present appeal
9 Mr Janeba now seeks leave to appeal from the SAT decision. In essence his grounds are that the member was wrong in his interpretation of cl 8. In particular, Mr Janeba says that the member was wrong to use the ejusdem generis rule to conclude that the phrase 'or other inflammable material' should be limited to material of a like kind to 'inflammable chemical, liquid or gas'.
10 Mr Janeba submits that s 17 of the Interpretation Act 1984 (WA) is inconsistent with this interpretation. He also says that the interpretation of the member failed to give effect to the evident purpose of the clause which he says is to protect other tenants from the risk of fire that would arise from the storage of inflammable material.
11 Mr Janeba's submission is that the words 'other inflammable material' should be read literally and without being in any way limited by the words that precede them. He points to definitions of the word 'inflammable' including that in the Macquarie Dictionary, which is relevantly 'Capable of being set on fire, combustible'.
12 Any exercise of interpretation must be focused on the task of making sense of the words used. This includes not only defining the words but looking at the context in which they are used and the purpose of the particular provision.
13 The ejusdem generis rule is not, of course, a rule at all. It is simply a tool that may or may not be of assistance in particular circumstances. It merely recognises that a drafter may not wish to spell out at length all the kinds of things to which a provision applies. Rather the drafter may give some specific examples and assume that the words of more general character that follow will be read down as only relating to the same category or class of things.
(Page 6)
14 The cases where the rule has been applied are too numerous to mention. However, there will be cases where the specific items do not comprise a recognisable class or where the intention of the drafter was that the general words would not be read down. In every case the proper starting point is the language used.
15 Insofar as s 17 of the Interpretation Act was relied on it does not take the matter far. It merely provides that the word 'or' shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added. This simply means that no assumption of similarity arises from the use of the word 'or' but it leaves open the question of what words used in a particular context might mean. That does not, as Mr Janeba suggests, necessarily exclude the application of the ejusdem generis rule.
16 In my view, the clear purpose of cl 8 is to limit the risk of harm to the property and safety of tenants in a strata development that would arise from the storage of items that are readily combustible. The reference to 'inflammable chemical, liquid or gas' is plainly to items that by their nature can be dangerous because of their volatility. The words 'other inflammable material' have to be read in this light.
17 If the phrase 'inflammable material' was read in the broad way that the appellant suggested then a great many items could be potentially covered. This would include not merely paper but plastic, wood and cloth. Whilst capable of burning these are not items that are as readily combustible as, for example, are natural gas, petrol or oil. If the only test to be applied was whether an item was capable of being set on fire the clause would produce absurd results. Furthermore it would extend well beyond any reasonable risk of fire to the building.
18 I note also that cl 8 contains exceptions. One of these is in respect of 'other material' in the fuel tank of a car. It would be expected that the drafter would use words consistently in the same provision. Clearly 'other material' in respect of this exception contemplates something which is readily combustible like a chemical, liquid or gas.
19 For these reasons I am unable to accept that the member's conclusion was wrong. However, even if it was arguable that inflammable material extended to stacks of newspapers there were other reasons why Mr Janeba's application could not succeed. Firstly, by the time the matter came on for hearing in the Tribunal on 11 August 2011 the tenant had
(Page 7)
- removed the newspapers. It was suggested that they had been simply moved out of sight but the evidence in this regard was very limited.
20 Secondly, at the hearing of this appeal Mr Janeba conceded that even if the phrase 'inflammable material' was read broadly the prohibition could not apply to paper in however small a quantity. He accepted that it had to be in an amount that could pose some real risk of fire. Whilst there had been some evidence of multiple stacks of newspapers in the courtyard and carport in the past there was no reliable information as to any quantities stored at unit 5 as at the date of the hearing.
21 Thirdly, in the course of the appeal hearing Mr Janeba said that the tenants concerned had now moved out. He said that he believed the new tenants were also doing the same newspaper distribution work but this was disputed by the respondent. In these circumstances the material before the State Administrative Tribunal at the hearing on 11 August 2011 could no longer possibly justify orders of the type that were originally sought.
Conclusion
22 An appeal of this type can only be brought on a question of law and with the leave of the court: s 105 State Administrative Tribunal Act 2004 (WA).
23 In Paridis v Settlement Agents Board [2007] WASCA 97; (2007) 33 WAR 361, Buss JA said:
The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if in all the circumstances it is in the interests of justice that there be a grant of leave.
In Secretary, Department of Premier and Cabinet v Hulls [1993] 3 VR 331, Phillips JA with whom Tadgell and Batt JJA agreed enunciated guidelines for determining whether a grant of leave to appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The provisions of section 148 are not materially different from the provisions of section 105(1) and (2) of the West Australian Act. His Honour said, at 337 [16]:
When leave is sought to appeal under section 148 it will necessary for the applicant to identify a question of law which is relevant to the granting of relief sought on appeal. The importance of the question, either generally or to the would be appellant in the particular case will be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent - that there is sufficient doubt about it to justify
- the grant of leave. Moreover it may have to be shown that to allow the error to go uncorrected would impose substantial injustice although where the order below is final that injustice would often be more readily discernible.
- Compare in the context of the principles to be applied in determining whether a leave to appeal should be granted from an interlocutory judgment or order, the observations in Wilson v Metaxas [1979] WAR 285 at 294 and Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.
In my opinion, the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account in considering whether to grant leave under s 105(1) of the State Administrative Tribunal Act. It must be emphasised, however, that 'those guidelines are not rigid or exhaustive and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice' [16] - [18].
24 In the present case I am not satisfied that there is a real or significant argument to be put on the question of whether the interpretation of cl 8 by Member Aitkin was correct. In my view, there is not sufficient doubt about the conclusion reached in the SAT decision to justify a grant of leave. Furthermore, even if there was an error, because the circumstances have now changed in the ways that I have described, there would be no substantial injustice if the decision were to go uncorrected.
25 For those reasons leave to appeal is refused and the appeal is dismissed.
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