KEARNS and CITY OF MANDURAH

[2006] WASAT 73

KEARNS and CITY OF MANDURAH [2006] WASAT 73

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 73
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:463/2005	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	27/03/06
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
PDF Version

Parties:	JOY KEARNS CITY OF MANDURAH
Catchwords:	Local government ­ Horse-drawn carriage rides by owner operator on public streets ­ Jurisdiction ­ Whether trading in public places licence required ­ Selling of services which person provides
Legislation:	City of Mandurah Consolidated Local Laws, Pt XII s 12.1.1., s 12.2.1, s 12.3 Local Government Act 1995 (WA), s 9.7 State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 47(2), s 60(2)
Case References:	Nil Nil
Orders	Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceedings are dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : KEARNS and CITY OF MANDURAH [2006] WASAT 73 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 MARCH 2006 FILE NO/S : DR 463 of 2005 BETWEEN : JOY KEARNS

Applicant

AND

CITY OF MANDURAH
Respondent

Catchwords:

Local government ­ Horse-drawn carriage rides by owner operator on public streets ­ Jurisdiction ­ Whether trading in public places licence required ­ Selling of services which person provides

Legislation:

City of Mandurah Consolidated Local Laws, Pt XII s 12.1.1., s 12.2.1, s 12.3

Local Government Act 1995 (WA), s 9.7
State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 47(2), s 60(2)

(Page 2)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr DF Nicholson

Solicitors:

Applicant : N/A
Respondent : McLeods

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

Nil

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Ms Joy Kearns applied to the City of Mandurah for a trader's licence to conduct a horse­drawn carriage rides business on public streets. She argued before the Tribunal, however, that a traders' licence was not in fact required.

2 The Tribunal determined that Ms Kearns' business was exempt from the obligation to obtain a trader's licence as it involved the selling by Ms Kearns of a service which she provided as the owner/operator of the business.

3 The Tribunal, therefore, did not have jurisdiction to entertain the proceedings. The proceedings were dismissed.

Introduction

4 The following preliminary issue has been identified in review proceedings which are pending before the Tribunal:

Is the proposed horse­drawn carriage rides business exempt from any requirement to obtain a licence under or comply with any requirements of Part XII of the City of Mandurah Consolidated Local Laws (Part XII)?

5 The substantive proceedings involve an application brought by Ms Joy Kearns pursuant to s 9.7 of the LocalGovernment Act 1995 (WA) for review of the decision of the City of Mandurah (City) to grant conditional approval to part and to refuse part of Ms Kearns' application for a trader's licence under Part XII. Ms Kearns' application for a trader's licence describes the "services to be traded" as "horse­drawn carriage rides". The application states that Ms Kearns intends to operate two routes through the commercial/tourist precinct of Mandurah. Both routes involve pick up and drop off of passengers in public car parks near the foreshore and use of public streets. The application also states that Ms Kearns will not have any assistants in providing the "services to be traded".

6 Ms Kearns operated a tourist­orientated horse­drawn carriage rides business in regional centres in New South Wales for approximately eight years before moving to Western Australia three years' ago. In February 2004 the City advised Ms Kearns that operating this business in the City's local government area requires a trader's licence under Part XII.

(Page 4)

Ms Kearns subsequently lodged an application in accordance with Part XII to conduct a horse­drawn carriage rides business. The application was approved for a three­month trial period on certain roads.

7 On 28 February 2005 Ms Kearns lodged another application for a trader's licence under Part XII to conduct her horse­drawn carriage rides business. Although this application had not apparently been considered by the City, Ms Kearns filed an application with the Tribunal purporting to seek review of a decision by the City in relation to her trader's licence application.

8 The City raised two preliminary issues in the proceedings as to whether Ms Kearns had made a "valid application" for a licence and whether the City had made a decision which gives rise to a right to seek review by the Tribunal. The City contended that Ms Kearns had not made a "valid application" and that it had not made any relevant decision which would found jurisdiction in the Tribunal. It sought an order that the proceedings are misconceived and lacking in substance and, accordingly, should be dismissed.

9 Ms Kearns also raised a preliminary issue which is the issue now before the Tribunal. She contends that, although she made an application for a trader's licence under Part XII, she does not, in fact, require such a licence in order to conduct her business.

10 The three preliminary issues were listed for hearing together. However, Ms Kearns subsequently lodged a further application for a trader's licence under Part XII. The details set out at [5] above are elements of this application. This application was the subject of the City's decision referred to at [5].

11 The Tribunal subsequently granted leave to Ms Kearns to amend the application to the Tribunal so that it seeks review of the City's decision in relation to Mrs Kearns' most recent application for a trader's licence. This obviated the need to address the two preliminary issues raised by the City.

12 The preliminary issue identified at [4] above was then listed for determination on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Is a licence required under Part XII?

13 Part XII is entitled "Trading in Public Places". Section 12.2.1 states that:

(Page 5)

"Unless exempted under section 12.3, a person shall not carry on trading unless that person is ­

(a) the holder of a valid trader's licence; or

(b) a person specified in the valid trader's licence."

14 It is common ground that Ms Kearns does not have an exemption under s 12.3.

15 Section 12.1.1 sets out definitions which apply in Part XII unless the context requires otherwise. The definition of the term "trading" states, in part, as follows:

"trading" includes ­

(a) the selling or hiring of, the offering for sale or hire of, or the soliciting of orders for, goods or services in a public place; …

but does not include ­

…
(f) the selling or the offering for sale or hire by a person of goods of her or his own manufacture or services which he or she provides; …"

16 The term "public place" is defined to include "any thoroughfare or place which the public are allowed to use" and "local government property". The term "local government property" is defined to mean "anything except a thoroughfare … which belongs to the local government".

17 Ms Kearns submits that the words of exclusion in par (f) of the definition of "trading" "accurately describe [her] horse­drawn carriage rides business". She submits that "the 'services' referred to … consist of the provision of a scenic tour and/or a unique life experience, using the requisite tools of trade (a horse­drawn carriage) owned and operated by the provider of the service".

18 The City submits that "the intended scope of [par] (f) would not extend to a service of the nature proposed by [Ms Kearns], which does not constitute a 'personal service' but rather is a service the provision of which is merely facilitated by [Ms Kearns]".

(Page 6)

19 The Tribunal considers that Ms Kearns' horse­drawn carriage rides business falls within par (a) of the definition of "trading" because it involves "the selling … of … services in a public place". The public car parks which Ms Kearns proposes to use for pick up and drop off of passengers are "local government property" and the public streets which she proposes to travel along in her carriage are "thoroughfares".

20 However, the Tribunal also considers that Ms Kearns' business falls within the express exclusion from the definition of "trading" in par (f) because it involves "the selling … by a person of … services which … she provides". As Ms Kearns submits, she is an owner/operator providing the service of a scenic tour of Mandurah using her horse and carriage. The definition does not use the words "personal service" and it is not helpful to consider whether the service which Ms Kearns proposes to provide satisfies those words.

21 Finally, the Tribunal rejects the City's submission that Ms Kearns would "merely facilitate" the proposed service and not provide it herself. One might well ask rhetorically: "Who else would be providing the service of a scenic horse­drawn tour of Mandurah?" The only other candidate is the horse. The proper characterisation of the horse­drawn carriage rides service is not that Ms Kearns would "merely facilitate" it but rather that she would provide it using her horse and carriage.

Conclusion

22 Ms Kearns' proposed horse­drawn carriage rides business is exempt from the requirement to obtain a trader's licence under Part XII. There is no other requirement in Part XII which is applicable to Ms Kearns' proposed service.

23 It follows that the City's advice to Ms Kearns that she requires a trader's licence was incorrect and that each of her applications for a licence and the City's purported decision in relation to the most recent application are each a legal nullity.

24 As the application to the City and the City's purported decision in relation to it are each a legal nullity, there is no statutory basis to found the present proceedings before the Tribunal. The proceedings are "misconceived" within the meaning of s 47(1)(a) of the SAT Act and should be dismissed.

(Page 7)

Order

25 The Tribunal makes the following order:

Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceedings are dismissed.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER