Maguire v Owners of Roslyn Strata Plan 35960
[2014] WASC 28
•6 FEBRUARY 2014
MAGUIRE -v- OWNERS OF ROSLYN STRATA PLAN 35960 [2014] WASC 28
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 28 | |
| Case No: | GDA:7/2013 | 25 NOVEMBER 2013 AND ON WRITTEN SUBMISSIONS OF 18 AND 30 DECEMBER 2013 | |
| Coram: | KENNETH MARTIN J | 6/02/14 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY JOHN MAGUIRE OWNERS OF ROSLYN STRATA PLAN 35960 |
Catchwords: | Appeal from State Administrative Tribunal Inspection of records or documents Copies requested Strata company Leave to appeal |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105 Strata Titles Act 1995 (WA), s 43, s 90 |
Case References: | Clough v Owners of Bengara Flats – Strata Plan 5500 [2005] WASAT 286 Clough v The Owner of Bengara Flats – Strata Plan 5500 [2010] WASAT 15 House v The King (1936) 55 CLR 499 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Thomas v Owners of Reflections Waterfront Apartments Strata Plan 58085 [2012] WASAT 215 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
and
In the matter of case number CC 1335/12 in the State Administrative Tribunal of Western Australia at Perth
- Appellant
AND
OWNERS OF ROSLYN STRATA PLAN 35960
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR M SPILLANE (SENIOR MEMBER)
File No : CC 1335 of 2012
Catchwords:
Appeal from State Administrative Tribunal - Inspection of records or documents - Copies requested - Strata company - Leave to appeal
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105
Strata Titles Act 1995 (WA), s 43, s 90
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M Robson
Respondent : Mr M A Atkinson
Solicitors:
Appellant : Wilson & Atkinson
Respondent : Atkinson Legal
Case(s) referred to in judgment(s):
Clough v Owners of Bengara Flats – Strata Plan 5500 [2005] WASAT 286
Clough v The Owner of Bengara Flats – Strata Plan 5500 [2010] WASAT 15
House v The King (1936) 55 CLR 499
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Thomas v Owners of Reflections Waterfront Apartments Strata Plan 58085 [2012] WASAT 215
- KENNETH MARTIN J:
Introduction
1 The appellant seeks leave to appeal a decision of the State Administrative Tribunal (SAT). Section 105(1) of the State Administrative Tribunal Act 2004 (WA) ('SAT Act') stipulates that an appeal from a decision of SAT only lies if there is a grant of leave to appeal by a court. Furthermore, s 105(2) says an appeal can only be brought on a question of law.
2 This application is made to a single judge in accord with s 105(3)(b) of the SAT Act. Pursuant to orders made on 12 September 2013 it was directed that the application for leave be considered at the same time as the substantive hearing.
3 Mr Maguire's application seeking leave to appeal concerns the decision of Senior Member Spillane, delivered 13 May 2013. The decision dismissed Mr Maguire's application seeking relief pursuant to s 90 of the Strata Titles Act 1985 (WA) ('Strata Titles Act').
4 Mr Maguire's (ultimately failed) application to SAT was pursued because Mr Maguire considered the respondent strata company had 'wrongfully' failed to make available for his inspection all its records or documents - in asserted contravention of s 43(1) of the Strata Titles Act. I note Mr Maguire is an owner of two strata lots for which the respondent is the relevant strata company.
5 In pursuing the inspection application to SAT, it is apparent Mr Maguire was invoking s 43(1)(b) of the Strata Titles Act. This provides:
(1) Upon application made in writing to a strata company by a proprietor … of a lot … and on payment of the prescribed fee (if any) the strata company shall do such one or more of the following things as are required of it in the application -
…
(b) make available for inspection by the applicant or his agent and for the exercise of the rights conferred by subsection (5) -
…
at such time and place as may be agreed upon by the applicant or his agent and the strata company and, failing agreement, at the parcel at a time and on a date fixed by the strata company under subsection (2);
…
Penalty: $400.
(1a) On application made in writing to a strata company by a proprietor … of a lot, … the strata company may provide to the applicant copies of -
(a) any document referred to in subsection (1)(b);
…
and, except for one copy of minutes of general meetings of the strata company provided to each proprietor … of that lot, may require the applicant to pay the prescribed fee for any copy so provided.
(2) Where an applicant and a strata company fail to reach agreement in accordance with subsection (1)(b) within 3 days after the receipt of the application by the strata company, the strata company shall forthwith send by post to the applicant a notice fixing a time, specified in the notice, between 9 am and 8 pm on a date so specified, being a date not later than 10 days after the receipt of the application by the strata company, for the making of the inspection referred to in subsection (1)(b).
…
(5) A person entitled to inspect a document made available under subsection (1)(b) may take extracts from, or make a copy of, the document but may not, without the consent of the strata company, remove the document from the custody of the strata company for the purpose of inspecting the document, taking extracts therefrom, or making a copy of it.
7 Unlike s 43(1)(b) which deals with inspection of documents, it may be seen that s 43(1a) deals with the provision of copies of documents; s 43(2) deals with resolution of disputes about the inspection of documents and s 43(5) deals with the inspecting party being permitted to take an extract or a copy of an inspected document whilst the documents remain in the custody of the strata company.
Overview of underlying background facts
8 Briefly speaking, in 2007 Mr Maguire became the proprietor of two strata lots (lots 2 and 4) in the Roslyn Plan 35960 strata development in respect of which the respondent strata company was appointed. The strata lot development is a relatively small one, comprising only six strata lots in total.
9 Mr Maguire does not appear to have been a lot proprietor from the inception of the strata development.
10 Since December 2010 Mr Maguire has been seeking the inspection of and copies of all documents from the strata company by an assertion of rights under s 43(1)(b). To this end there has been a vast amount of correspondence passing back and forth between Mr Maguire and the strata company, then subsequently between Mr Maguire's legal representatives and legal representatives for the strata company.
11 Mr Maguire, by his solicitors, has now undertaken three different inspections of the respondent strata company's books and records. These inspections occurred on 8 June, 29 October and 6 December 2012 (see the appellant's chronology which is Schedule 3 to these reasons).
12 Correlative to these inspections were requests that the respondent be provided (at cost) with photocopies of all inspected documents.
13 There is a key distinction between the right afforded to a proprietor to inspect documents and records of a strata company by s 43(1)(b), in contrast to the distinct, but allied, right to apply by writing to the strata company for that body to provide copies of s 43(1)(b) documents as inspected. I refer in that latter respect to s 43(1a), which I have earlier set out.
14 By s 43(2) any scenario of disagreement concerning a request to inspect documents (by s 43(1)(b)) is to be resolved on the basis of the strata company nominating the time and place 'for the making of the inspection referred to in subsection (1)(b)'.
15 Section 43(5) distinctly deals both with an entitled person's right to inspect a strata company document and then, a somewhat different right in a person inspecting the documents make a copy, or take an extract from such a document themselves, but to do so whilst the inspected document remains in the custody of the strata company.
16 Here Mr Maguire, through his legal representatives, requested the respondent strata company to make and provide him with copies of all its documents. His resulting grievance, shortly stated, appears to be that he has not been allowed to inspect or has not been given a copy of every document of the respondent strata company.
17 After the inspections it is accepted that Mr Maguire's solicitors were provided by the respondent with over 4,000 pages of photocopied documents. However, Mr Maguire was not satisfied. Arguments over a further 800 pages of documents, allegedly not received, then emerged.
18 In a written outline of submissions to SAT of 20 December 2012 Mr Maguire summarised his position:
1. The Applicant is not satisfied that the Respondent has complied with its obligation to allow inspection of documents pursuant to section 43(1)(b) of the Strata Titles Act 1985 ('Strata Titles Act') because the Respondent has failed, refused or neglected to make available for inspection by the Applicant each of the classes of documents which are within the scope of s 43(1)(b) of the Strata Titles Act.
2. The Respondent has therefore unlawfully prevented the Applicant from exercising his statutory rights as a proprietor under the Strata Titles Act to inspect the documents (s 43(1)) and make copies of the documents (s 43(5)).
3. The Applicant seeks orders permitting him to exercise his statutory rights and an order that a proper officer of the Respondent swear/affirm an affidavit deposing to compliance with its obligations under s 43(1)(b) of the Strata Titles Act.
19 That is the starting context from which to assess Mr Maguire's application of 21 August 2012 made to SAT, pursuant to s 90 of the Strata Titles Act.
20 It is convenient at this point to set out the terms of s 90. It provides:
Where, pursuant to an application for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates, or the administrator for that scheme, or the chairman, secretary or treasurer of that strata company has wrongfully -
(a) withheld from the applicant information to which he is entitled under this Act; or
(b) failed to make available for inspection by the applicant or his agent a record or document that under this Act he is entitled to inspect,
the State Administrative Tribunal may order that strata company, administrator, chairman, secretary or treasurer to supply or make available the information or to make so available the record or document, as the case may require, to the applicant.
21 Five essential matters should now be observed:
(a) Within s 90 of the Strata Titles Act the word 'wrongfully' conditions both subpars (a) and (b), as regards the strata company having 'withheld' information from inspection and having 'failed' to make a record or document available for inspection.
(b) The power of SAT to make orders under s 90 is discretionary (by the word 'may' in the proviso), as Mr Maguire accepts.
(c) At no time has Mr Maguire upon application to SAT, or even in seeking leave to appeal to this court, identified any underlying reason for his ongoing sustained pursuit of the documents he seeks. Mr Maguire has simply and consistently asserted that he is entitled to exercise his inspection and other rights to receive all documents in his capacity as proprietor of two strata lots and is under no further obligation to provide any reason to anyone for his exercise of those rights.
(d) Likewise, at no stage has Mr Maguire attempted to specify any particular document(s) or class of document(s) which he requests the inspection of, or a copy. Rather, his unwavering stance is to bluntly assert he is entitled to inspect and to copy all the classes of documents, as enumerated by s 43(1)(b) (some 11 categories in all) and that he is not satisfied that all such documentary materials have either been made available for inspection or been copied and provided.
(e) The relief Mr Maguire sought from SAT by s 90 of the Strata Titles Act evolved in a period after his SAT application was first filed and prior to the commencement of the hearing before the Senior Member. Mr Spillane recorded at the commencement of his (transcribed) reasons of 13 May 2013 that by amendment, the orders then sought by Mr Maguire on that application to SAT, were:
1. Within 14 days of the date of the order:
(a) the first respondent shall provide the applicant with a copy of all orders and documents of the strata company of the type described in s 43(1)(b)(i) and s 43(1)(b)(x) of the Strata Titles Act relating to the period from 21 July 1999 to the present;
(b) the applicant shall pay to the first respondent a copying fee of 12 cents;
(c) the first respondent, by secretary or other proper officer, shall swear an affidavit to be filed at the tribunal and served on the applicant.
2. In the event that the affidavit referred to in 1(c) above discloses that there are additional records or documents which the applicant requested copied but were not copied, the first respondent shall provide the applicant with copies of those records within 28 days.
22 For convenience I will append as Schedule 1 the nine grounds of appeal which found Mr Maguire's application to this court seeking leave to challenge that dismissal decision.
23 On 13 May 2013 Senior Member Spillane dismissed Mr Maguire's application seeking orders pursuant to s 90 of the Strata Titles Act. I also append to these reasons as Schedule 2 the transcript of those reasons (pages 2 to 17).
24 Finally, I append as Schedule 3, Mr Maguire's chronology of facts, which was uncontroversial before me.
Key aspects of the refusal reasons
25 From the senior member's reasons, I briefly mention some extracts, first at page 3, then at page 17.
26 First, at page 3 the senior member said:
It became clear, through the evidence of Mr Marzec and the submissions of the applicant's counsel, that when Mr Marzec stated at paragraph 43 that, 'I became aware that the documents which had [been] provided to the applicant on 27 December do not contain the following groups or classes of documents,' that he was making an inference that those documents, in his opinion, should have been available. The issue is dealt with in Mr Marzec's evidence later, but it is these inferences that the applicant relies largely on to make out their claim.
27 The concluding paragraphs of the senior member's reasons at page 17 were expressed in these terms:
As stated in the cases referred to earlier, the tribunal has a discretion under section 90 whether to make an order, even where it is satisfied that the strata company or its officers have wrongfully withheld or failed to make available information or documents.
In the present case the tribunal, on the evidence before it, is not prepared to make the inferences urged on it by the applicant, nor is it satisfied that the strata company or its officers have wrongfully withheld from the applicant information or wrongfully failed to make available for inspection a record or document, and it is not prepared to exercise its discretion to make the orders requested by the applicant, and the application will therefore be dismissed.
28 The cases the senior member referred to were three earlier SAT decisions of Senior Member Raymond in Clough v Owners of Bengara Flats - Strata Plan 5500 [2005] WASAT 286, Clough v The Owner of Bengara Flats - Strata Plan 5500 [2010] WASAT 15, and Thomas v Owners of Reflections Waterfront Apartments Strata Plan 58085 [2012] WASAT 215.
29 Beginning at transcript page 16 of his reasons, Mr Spillane had enunciated five major heads of reasoning for why Mr Maguire's application failed. It is apparent those findings address issues of fact and law. They address the need to engage s 90 by showing that the strata company 'wrongfully' having 'failed' to make records or documents available for inspection.
30 It is further apparent the senior member also invoked the residual discretion of SAT (by the word 'may') in dismissing the s 90 application.
31 Insofar as the grounds of challenge advanced in this court now seek to undermine the decision of the senior member as an exercise of discretion under s 90, Mr Maguire needs to show an error of principle. This is established in a long line of authorities, and classically articulated in House v The King (1936) 55 CLR 499, 504 - 505 (per Dixon, Evatt and MacTiernan JJ) who said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If a judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
32 Showing an error of principle in the exercise of discretion, closely aligns to Mr Maguire's requirement before this court to demonstrate error upon a question of law, pursuant to s 105(2) of the SAT Act.
33 Hence, as regards the rejection of Mr Maguire's s 90 Strata Titles Act application by Mr Spillane, it is necessary to demonstrate to this Court that the senior member erred in law through means including: acting upon some wrong principle, or relying on some extraneous or irrelevant matter or on mistaken facts, or failing to take into account some material consideration.
Proposed grounds (Schedule 1)
34 I turn to address the nine proposed grounds of appeal. I do so noting that the application before me was argued on the basis Mr Maguire's grounds 1(a), 2, 3 and 8 challenged the senior member's exercise of discretion under s 90. There was no argument that s 90 did not confer a discretion upon SAT, as regards obtaining relief under that provision.
35 Next, grounds 1(b), 4, 5, 6 and 7 were argued as a batch. They were argued, effectively, as discrete challenges against the dismissal decision. As I understood it, these grounds seek to assert errors in the senior member's consideration of the evidence put before him. The grounds assert errors by reference to an underlying affidavit sworn by one of the appellant's solicitors, Mr James Marzec, tendered before SAT and then the evidence arising out of Mr Marzec's cross-examination at SAT upon his affidavit. This material also grounded the core submission to me that the senior member's conclusion that there had been no wrongful failure by the respondent strata company to make available for inspection a record or document under the Strata Titles Act, was perverse.
36 The last of Mr Maguire's proposed grounds (ground 9) invokes s 77(2) of the SAT Act. It seems to contend there was a denial of procedural fairness by a failure to make findings upon material questions of fact, and consequently a failure to provide adequate reasons.
Leave to appeal: Principles
37 Before exploring the grounds in respect of which leave is sought at greater length, it is necessary to mention some legal principles from the leading decision, Paridis v Settlement Agents Supervisory Board[2007] WASCA 97; (2007) 33 WAR 361.
38 In Paridis Buss JA, with whom Wheeler and Pullin JJA agreed, commented, very relevantly to the present proposed grounds, on what is not a question of law, for the purposes of s 105(1) of the SAT Act:
[53] If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
…
[54] A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law.
…
[55] A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146].
[56] A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 437 - 438.
[57] A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account … There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other.
Misconception of principle in proposed grounds of challenge
39 There is a lack of proportion in the nine proposed grounds of appeal, in the context of what is basically a small scale neighbourhood dispute over access to strata documents - which has apparently dragged on unabated since December 2010. At that time Mr Maguire (by his chronology in schedule 3 to these reasons) says he informally sought to obtain copies of documents from the strata manager. Mr Maguire acquired lot 2 in March 2007 and lot 4 in August 2007.
40 First, I must repeat the distinction under the Strata Titles Act that is made between a right of a proprietor to inspect books and records of a strata company (s 43(1)(b)), as against the different right of a proprietor to request that a strata company provide copies of inspected documents (s 43(1a)). The grounds of appeal, on my assessment, repeatedly fail to engage with this distinction. Failure to provide copies is a different grievance to an asserted failure to allow inspection.
41 Second, under s 43(5) a proprietor may personally make a copy or an extract of a document whilst inspecting. Here, the right to invoke self-assistance as to copying does not appear to have been utilised, or even appreciated on behalf of Mr Maguire.
42 Third, in the present case there have, uncontroversially on the facts, already been three different inspections of the respondent strata company's books and records as held by the strata manager and carried out by legal representatives acting on Mr Maguire's behalf. These inspections occurred on 8 June 2012, 29 October 2012 and 6 December 2012. Beyond three inspections the appellant has then been provided by the respondent with over 4,000 pages of copied documents, in response to Mr Maguire's requests (by his solicitors) for copies of all inspected documents. These requests for copies presumably issued invoking s 43(1a): see s 43(1a)(a) of the Strata Titles Act. This goes in the end to the discretion to grant relief by SAT, under the Strata Titles Act s 90.
43 Argument upon this application illustrated the key distinction in the Strata Titles Act between the right to inspect (which has clearly been exercised on three occasions) and the distinct right to request copies of documents from the respondent. This distinction has been conflated and confused. Fundamentally, this is not a case where the strata corporation has refused requests for inspection of documents or records, under s 43(1)(b) of the Strata Titles Act.
44 There is also a fundamental error in the nature of wholly generic relief sought by Mr Maguire from SAT and, indeed, from this court. No particular document or class of documents was identified either to be inspected or copied. Instead, only a rather disengaged, omnibus request is articulated, requesting 'all documents', the request being based upon an analysis of over 4,000 pages of copied materials as received by Mr Maguire's solicitors (and then analysed by Mr Marzec) which, it was argued, raised a likely existence of extra documents (such as attachments to emails, or the like). By Mr Marzec's laboured analysis of 4,000 pages of paper supplied, an inference articulated (on Mr Maguire's behalf) is that the strata company must likely hold even further documents, which have not yet been produced so far for inspection.
45 However, at no point in materials put before SAT, or indeed before this court, can I identify any submission that there has been a specific document, or class of document, produced and inspected, but then not provided by way of paper copy in response to the request of Mr Maguire for copies of all documents and made s 43(1a). Instead what is witnessed is just an omnibus approach of demanding copies of everything falling within a category of document or record under s 43(1)(b) and its 11 different sub-categories. An unfocused, dragnet effort to manipulate s 43(1a), is exposed by the first minute of orders sought from this court under the appellant's minute of 22 November 2013 and relied upon at commencement of argument. That minute sought orders under its par 4 in terms:
4. (a) Within 14 days of the date of the order, the Respondent shall provide the Appellant with:
(i) a copy of all its records and documents of the type described in section 43(1)(b)(i) to 43(1)(b)(x) of the Strata Titles Act 1985 (WA) (inclusive) relating to the period from 21 July 1999 to the present which have not already been provided to the Appellant; and
(ii) a statement that all of its records and documents that are in its custody or under the control have been provided to the Appellant;
- (b) Within 28 days of the date of the order, the Appellant may request from the Respondent any specific records and documents or classes of records and documents which the Appellant believes are in existence, briefly stating the basis for the belief;
(c) Within 42 days of the date of the order, the Respondent provide copies to the Appellant of such further records and documents as are requested, and file a statement that each record or document that has been requested has either been provided or in the event that no copy is provided a statement that such record or document does not exist or other explanation of the steps taken by the Respondent to locate the record or document and the reason why the record or document has not been provided;
47 Conceptual deficiencies in the orders sought were such that at the hearing I allowed counsel for Mr Maguire the opportunity to provide (within 14 days) a further minute of orders. He did so on 2 December 2013.
48 But the subsequent effort removing orders 4(b) and 4(c) remains unsatisfactory, in my view. The problem lies in the global, unfocussed and non-specific nature of the relief sought as to 'all' documents. Given three inspections already, that is simply not good enough. Specific documents required for inspection, or of which copies are requested ought by now have been better and more precisely identified. The fact they have not been speaks volumes as to the demerits of this application in concept.
49 I turn back to the three broad areas of Mr Maguire's nine proposed grounds. My negative assessment in respect of each follows.
Grounds
Grounds 1(b), 4, 5, 6, and 7
50 By my assessment, these grounds seek to argue questions of fact directed at the state of the evidence, limited as it was, before SAT. This was in a context of Mr Maguire's application to SAT seeking the exercise of a power under s 90 of the Strata Titles Act in his favour, on a basis of an asserted wrongful non-compliance by the respondent strata company with s 43(1)(b). However, s 43(1)(b) deals with the right to inspection of the 11 classes of documents identified. The limited affidavit evidence before SAT from Mr Marzec simply analysed the paper copies (4,000 pages) provided. Nothing is said about the importance or utility of any potentially missing further document.
51 Mr Marzec's evaluation focused on what might be missing rather than on the worth of what had been received. The analysis looks to be conducted to manufacture a platform for ongoing requests for more documents. Arguments raised at SAT about whether 600-800 extra pages of copied materials should have been provided or not, were not distilled to a point of showing that a particular document inspected, or type of document, had not been copied. Unfocussed global arguments over the volume of copied pages supplied or not supplied, simply do not appropriately engage with the protective statutory purpose underlying s 43(1)(b) and the power given to SAT under s 90 of the Strata Titles Act to remedy wrongful conduct.
52 In circumstances where, on the unchallenged facts, there have already been three inspections of the strata company's books and records by Mr Maguire's solicitors, the SAT finding that there had been no 'wrongful' failure (under s 90(b)) to make available a record or document for inspection, was open to the senior member. That is particularly so in circumstances where Mr Maguire did not identify a specific document, or type of document, that was not made available. Instead Mr Maguire, even after three inspections, chose only to run before SAT his omnibus arguments ultimately pressing for orders that 'all documents' be provided. In the circumstances, such orders were of no utility. This approach, after three inspections of documents, was always misguided. It was doomed to be rejected.
53 Challenges under ground 4 in terms of the asserted failure to reach reasonable inferences of fact about missing documents in the face of uncontradicted evidence do not raise, correctly analysed, arguments of law. They only raise issues of fact. Likewise for grounds 6 and 7.
54 The view of the senior member that Mr Maguire's case for relief was based essentially upon inference, as based upon the analysis carried out by Mr Marzec, was correct.
55 The senior member also declined to reach a conclusion that there had been 'wrongful' conduct for the purposes of s 90(b), or a wrongful failure to make available for inspection a record or document. That was also his finding in relation to an absence of wrongful conduct on the part of the strata company. These conclusions were open and correct on my independent analysis of the evidence before SAT. Hence these grounds all fail. Moreover, they are not grounds that can be assessed as properly raising errors of law, as is required in an appeal to this court.
Grounds 1(a), 2, 3 and 8: SAT's discretion under s 90
56 On analysis, it is clear grounds 1(a), 2, 3 and 8 do not disclose any errors of law referable to the senior member's exercise of his discretion under s 90, in dismissing Mr Maguire's application.
57 Contrary to ground 3, the senior member did give adequate reasons, in my view, for not exercising that discretion. That is so particularly in circumstances where Mr Maguire did not identify a specific document or documents which he could contend was 'missing'. Rather, Mr Maguire chose to argue the matter before SAT in an all-inclusive manner asserting a failure to provide for inspection 'everything' he was asserting he was entitled to inspect, then to have copies made for him.
58 It was not irrelevant for the senior member to note, as he did, that no reason had been provided by Mr Maguire as to why he was pressing for documents, or indeed, in pressing for 'all' documents on the omnibus basis Mr Maguire had not received copies of everything he thought he should have received by way of copies. There is, of course, a fundamental distinction between the s 43(1)(b) inspection right and the different right to request paper copies of what was inspected under s 43(1a).
59 Nor was the senior member's reference to a penalty of $400 under s 43(1) a diverting consideration sufficient to derail this analysis. This passing reference by the senior member to that provision as part of the Strata Titles Act, on my analysis of the transcript, looks wholly benign, particularly bearing in mind Mr Spillane's concluding analysis, seen between pages 16 and 17 of the transcript (reference to $400 is seen at the top of transcript page 4).
60 As to the exercise of discretion under s 90, I detect no error of principle by the senior member in the analysis conducted in what was, in overall context, something of a small-scale neighbourhood dispute involving a strata company where Mr Maguire owns two of the six strata lots.
61 The ongoing pursuit of 'all' documents by Mr Maguire in the wake of three permitted inspections made with the assistance of solicitors and no accompanying explanation as to why or what documents were important to him, manifests as a paradigm illustration of the making a mountain out of a molehill.
62 The senior member was called upon to exercise the s 90 discretion in a context of rights afforded under s 43(1)(b) of the Strata Titles Act to inspect documents, then under s 43(1a) to request copies, all of which should be exercised within reasonable bounds and monitored by SAT to guard against the serious potential of misuse, oppression and pettiness. If a requesting person is perceived by SAT to be acting unreasonably, oppressively or obsessively by invoking such a provision, then it more than falls within the purview of SAT, by the discretion under s 90, to inhibit untoward conduct.
63 On my analysis, that is exactly what the senior member did here, and given what was put before him, very properly so.
Ground 9
64 The premise of this ground concerning an absence of findings on material questions of fact is, on my analysis, meritless. The adequacy of the transcribed reasons (Schedule 1) is self-evident and manifest. This ground ought not to have been pursued. The fact that it was shows a lack of perspective by Mr Maguire and those advising him in an unthinking, dogged prosecution of the present application.
Conclusion
65 In the end, Mr Maguire's nine proposed grounds of appeal do not advance a proper basis to challenge the dismissal of his application by the senior member of SAT. I mention that leave was given to the parties to file further written submissions following the hearing on 25 November. Further written submissions were made by the respondent on 18 December 2013 and by the appellant on 2 January 2014 in reply. On 10 January 2014, the solicitors for the respondent wrote to the Court, by email copied to the solicitors for the appellant, arguing that the appellant's further written submissions of 2 January 2014, were not purely responsive and to that extent ought to be disregarded. The solicitors for the appellants weighed in on this point with a letter to the Court on 13 January 2014. I have considered the parties' submissions and correspondence but it is not necessary to resolve this rather insignificant point. Even taking the appellant's further submissions in their entirety into account, responsive or not, I would not be even slightly moved from my firm conclusion that all proposed grounds of appeal have no reasonable prospect of success and ought therefore to be dismissed.
66 No basis for leave to appeal in respect of an error of law has been demonstrated. I dismiss this application accordingly.
Schedule 1 - Nine grounds of appeal
Schedule 2 - Transcript of reasons of Senior Member Spillane
Schedule 3 - Chronology
Schedule 1
- (Proposed)
Grounds of appeal
- 1. The decision-maker erred in law in the construction of section 90 of the Strata Titles Act 1985 when he construed:
(a) the discretion to be exercised; and
(b) the legal meaning of 'wrongfully'.
2. Further and alternately to ground 1(a), the decision-maker wrongly applied the discretion when he took into account the following irrelevant considerations:
(a) the period which the appellant had been in possession of copies of the respondent's documents;
(b) the date when the appellant reviewed the copies of the respondent's document;
(c) the penalties applicable to the respondent for a failure to comply with section 43 of the Strata Titles Act 1985; and
(d) the time period for which the request for the respondent's documents was made.
3. Further and alternately to ground 1(a), the decision-maker wrongly applied the discretion because no reasons were given relating to the conduct of the appellant which would indicate that there was any legal or equitable basis for exercising the discretion against the appellant.
4. The decision-maker erred in law in failing to make reasonable inferences of fact when he found that some of the missing documents did not exist when they had been referred to by other documents in uncontradicted evidence.
5. The decision-maker erred in law in making findings contrary to uncontradicted evidence when he:
(a) found that the appellant had failed to make a request for specific documents; and
(b) found there was no evidence to contradict that a simple counting error had been made by the respondent.
6. The decision-maker erred in law in failing to make reasonable inferences of fact when he found that there was no evidence that any documents were missing in circumstances where there was uncontradicted evidence that some classes of documents within the scope of section 43(1) of the Strata Titles Act 1985 had not been provided to the appellant and that such documents would ordinarily be in existence and retained by the respondent.
7. The decision-maker erred in law in failing to draw a reasonable adverse inference from the unexplained failure of the respondent to tender:
(a) any evidence that all of the respondent's documents had been provided, alternately already provided to the appellant; and
(b) any evidence as to the non-existence of any classes of documents within the scope of section 43(1) of the Strata Titles Act 1985.
8. The decision-maker erred in law when he relied upon irrelevant material when he considered:
(a) the period which the appellant had been in possession of copies of the respondent's documents;
(b) the date when the appellant reviewed the copies of the respondent's documents;
(c) the penalties applicable to the respondent for a failure to comply with section 43 of the Strata Titles Act 1985; and
(d) the time period for which the request for the respondent's documents was made.
Schedule 2
Transcript of Senior Members Reasons (pages 2 – 17) 13 May 2013
Schedule 3 Chronology
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