O'NEILL and ALLMARK
[2006] WASAT 139
•31 MAY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: O'NEILL and ALLMARK [2006] WASAT 139
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 25 MAY 2006
DELIVERED : 31 MAY 2006
FILE NO/S: CC 103 of 2006
BETWEEN: SHEA O'NEILL
Applicant
AND
SALLY ALLMARK
Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Application to set aside interim order - Whether reasonable apprehension of bias
Legislation:
Strata Titles Act 1985 (WA), s 82, s 82(2)
Result:
Application to revoke interim order and dismiss proceedings refused
Interim order revoked and varied order made
Category: B
Representation:
Counsel:
Applicant: Mr C O'Neill (As Agent)
Respondent: Mr M Allmark (As Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
O'Neill and Allmark [2006] WASAT 118
Re JRL; Ex parte CJL (1986) 161 CLR 342
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The respondent applied to set aside an interim order made by the Tribunal in favour of the applicant on 12 May 2006. The respondent also sought other orders that the proceedings be dismissed as an abuse of process, that the applicant install a new sewer line, for the discovery of a particular document and for damages to be assessed.
The respondent filed lengthy written submissions in support of the application. In those submissions and during the course of oral submissions at the hearing of the application, the respondent's agent alleged that the presiding member was biased. Although there was some oblique reference to a relationship existing between the applicant and the presiding member, as there was no such relationship, and no basis advanced to support the reference, the Tribunal concluded that the reference to the applicant being the presiding member's "mate" was a form of expression used merely to indicate alleged preferential treatment of the applicant. Otherwise, the alleged bias was based on the respondent's criticism of the process by which the interim order had been originally granted and the reasons given for that decision.
The Tribunal concluded that there was no reasonable basis for any apprehension of bias and the presiding member declined to disqualify himself.
Notwithstanding directions granting leave for the respondent to file expert evidence addressing relevant issues, the respondent had not done so. None of the submissions made persuaded the Tribunal that the reasons previously given for granting the interim order were wrong. Only one new consideration was raised relating to an offer put by the applicant by the respondent in relation to a proposed relocation of the sewer line. It appeared that the offer had been amended, such that it was not open for acceptance pending resolution of the proceedings and that, in any event, the applicant had indicated the need for further information to be provided in relation to it. Notwithstanding this uncertainty, the respondent maintained the proposal and was, in effect, arguing that it was so obviously reasonable, that the Tribunal should determine that the continuation of the proceedings was an abuse of process, and consequently, the proceedings and the interim order should be set aside. In the absence of expert evidence, the Tribunal considered that it was inappropriate to act upon the respondent's agent's assertion of how the proposed relocation of the sewer would be effected and its impact on the applicant's property. The Tribunal therefore concluded that the interim order should be maintained for the same reasons as previously given.
While the respondent would have been entitled to an order for the discovery of a particular document, the need for any order fell away as it was provided to the respondent's agent at the hearing. In view of the conclusions reached in relation to the need for the maintenance of the interim order, it followed that the respondent was not entitled to any of the other orders sought.
At the request of the applicant, the interim order was nevertheless revoked and a further interim order issued in a slightly varied form.
Application to revoke interim order
A history and the nature of the proceedings before the Tribunal is set out in earlier reasons for decision dated 12 May 2006 and the background set out therein is therefore not repeated: see O'Neill and Allmark [2006] WASAT 118.
It suffices to say that on 18 April 2006, the applicant successfully applied for an interim order in terms which restrained the respondent from continuing with any building works of whatsoever nature upon Lot 1 of strata plan 39171.
On 3 May 2006, an application by the respondent to revoke the interim order was heard. Although the interim order was revoked, a varied form of order was issued, which restrained the respondent from carrying out building works within a defined area. The reasons for decision dated 12 May 2006 referred to above relate to that application. On the same date on which the further interim order was made, namely 12 May 2006, the Tribunal had also issued directions in the substantive application granting the respondent leave to file and serve further affidavit evidence of an expert nature on which the applicant wished to rely addressing:
(a)the risk of damage to the sewer line in question in the event that the respondent's proposed dwelling be constructed in accordance with the currently approved building licence and plans; and
(b)the respondent's proposal for a relocation of the sewer line, including the method by which the relocation could be achieved and any likely disturbance to the applicant's lot.
It was further directed that any affidavit evidence may be relied upon in the main application, or in any further applications relating to the interim order.
By letter dated 17 May 2006 and received the following day, the respondent, pursuant to leave granted by the order made on 12 May 2006, applied for a further hearing date to set aside the interim order.
The respondent's further application to set aside the interim order was set down for hearing on 25 May 2006. No further affidavit evidence has been filed pursuant to the above directions, but the respondent filed extensive written submissions to which several letters and emails were annexed. The respondent's written submissions set out the orders which the respondent sought, in these terms:
"1. TO REVOKE ALL ORDERS MADE ON 28 APRIL 06 AND ALL ORDERS TO THAT DATE.
2. TO DISMISS THE APPLICATION FOR ABUSE OF PROCESS.
3.TO ORDER THE INSTALLATION OF A NEW SEWER LINE AT THE APPLICANT'S EXPENSE.
4. DISCOVER THE EMAIL OF THE APPLICANT TO PJ WRIGHT.
5. DAMAGES TO BE ASSESSED BY PROFESSIONAL LOSS ADJUSTORS."
The hearing and submissions
The respondent's written submissions occupied 16 pages of close type occupying 116 paragraphs, many of which comprised a number of subparagraphs. For example, par 14 comprises 21 subparagraphs and par 70 comprises 11 subparagraphs. Paragraphs 1 3 and 115 116, inclusive, address an offer made by the respondent to the applicant to resolve the matter in accordance with a paragraph numbered 31(b) in the reasons for decision dated 12 May 2006, in which the Tribunal explained its intention to issue directions in the substantive application providing the respondent an opportunity to address, in detail, the proposal for relocation of the sewer line including satisfactory evidence as to how the work should be undertaken, with specific reference to any impact to the applicant's property. Paragraphs 4 114 are largely directed to criticisms of the reasons for decision and which assert, based on what are said to be erroneous conclusions, that I acted for an ulterior motive and was biased. The thrust of the argument is that the decision to grant an interim order was so wrong in so many respects that the respondent considers that the Tribunal, constituted by myself, must be biased in favour of the applicant. There is some suggestion that bias is also apprehended on the basis of a relationship of some form with the applicant. At par 82 of the respondent's submission, it is said that the order made on 12 May 2006 amending the interim order was made "to appease his mate the applicant".
The respondent relies upon the totality of the criticisms made of the reasons for decision to submit that the proceedings as a whole should be dismissed as an abuse of process.
As the Tribunal understood the respondent's submissions, the order sought, requiring the applicant to bear the cost of the installation of a new sewer line, was based on a primary argument that the proceedings should be dismissed. Nevertheless, Mr Allmark stated frequently during the course of his submissions that the respondent was offering to pay the cost of a new sewer line. This was understood to be an alternative position to the primary argument.
When pressed for details about how the relocation was to be achieved, Mr Allmark repeated what was stated in his letter, dated 23 May 2006, to the effect that a sewer line would be installed as recommended and suggested by the Plumbers' Board and that it involved a new sewer line being laid under the applicant's existing garage floor to an inspection opening, and that it would proceed at right angles to connect to the Minister's sewer. Mr Allmark insisted that this complied with the intent of the Tribunal's directions relating to the provision of details about the proposal for relocation of the sewer line including satisfactory evidence as to how the work would be undertaken, with specific reference to the impact on the applicant's property. Mr Allmark repeatedly contended that the Tribunal should act on his assertion that the relocation could be carried out in this way and that it would involve little impact on the applicant's property. When asked by the Tribunal whether there was any expert evidence to support his assertion, he objected to any suggestion that further expert evidence should be provided by him. Only at the conclusion of the hearing, when discussing what steps should be taken in order to bring the substantive proceedings to a finality, did he, hesitantly, commit to providing evidence. However, immediately thereafter, he stated that he wished to consider the respondent's position.
The applicant also sought an order for discovery of an email sent by Mr C O'Neill to his expert witness. This issue effectively fell away by Mr O'Neill providing Mr Allmark and the Tribunal with a copy of the particular email.
No submissions were addressed to the order sought that damages be assessed by professional loss adjustors.
The applicant's agent made very limited oral submissions at the hearing. Mr O'Neill submitted that the respondent had misconstrued the effect of the development approval as authorising the respondent to build over the sewer line, when, to the contrary, it expressly provided that the approval was not an authority to ignore restraints on development and that it was the respondent's responsibility to investigate any such restraints. Mr O'Neill flagged that, even if there was evidence eventually provided to show that the sewer could be relocated in a manner consistent with the respondent's proposal, and that if it reflected that some damage was likely to occur to the applicant's property, or that some disruption would be experienced, it should not be assumed that that disruption would be less than the disruption which might be caused to the respondent in having to submit revised plans to the relevant authorities, reflecting a movement of the dwelling outside any area which might impact on the sewer line.
Mr O'Neill then addressed the form of the order which had been made on 12 May 2006. The order reflected par 1 and par 2 of a minute of proposed orders handed up by Mr O'Neill during the hearing. Paragraph 1 directed that the respondent refrain from building or allowing building over or immediately adjacent to the property sewer servicing survey strata Lot 2 on survey strata plan 39171. Order 2 defined the term "immediately adjacent" by reference to engineering details contained in building plans submitted by the respondent or by reference to cl 3.8.2 of AS/NZS 3500.2.2. The minute of the proposed orders included a third paragraph that read:
"3. Until either:
(a)the property sewer serving strata Lot 2 on survey strata plan 39171 is relocated clear of the proposed new building in accordance with the specifications referred to in paragraph 2 above; or
(b)plans are duly approved by the responsible authorities for development which is set back from the property sewer serving survey strata Lot 2 on survey strata plan 39171 in accordance with the specifications referred to in paragraph 2 of the proposed order."
The order made by the Tribunal, for the reasons expressed in the reasons for decision of the same date, was that subject to s 82 of the Strata Titles Act 1985 (WA), the respondent was to refrain from building or allowing building in terms identical to par 1 and par 2 of the proposed order.
Mr O'Neill submitted that unless par 3 of the minute was incorporated, the applicant was concerned that the respondent would commence building operations. He understood that the order reflected what was intended by the Tribunal and submitted that the current order should be revoked and the previous order reinstated.
Issues for determination
The following issues arise for determination from the written and oral submissions made on behalf of the parties:
1.Do the reasons for decision, or any relationship between the applicant and Tribunal member, demonstrate actual or apprehended bias?
2.In all the circumstances, is the applicant entitled to the benefit of an interim order?
3.If the answer to 2 above is no, is the respondent entitled to orders sought as set out in the respondent's submissions?
4.If the answer to 2 above is yes, should the current interim order in any event be revoked and a varied form of order issued?
Bias
A reading of the respondent's submissions reflect the emotional strain caused by these proceedings. The language used is provocative. As I do not know the applicant, and there is nothing to suggest in the submissions that the respondent has any information to support a belief to the contrary, I can only conclude that the reference to the applicant being my "mate" was an expression used to reflect some preference for the applicant and should not be taken literally to suggest the existence of any relationship.
The real complaint permeating the respondent's submissions is simply that the reasons for decision are so patently wrong that bias is apprehended.
The authorities establish clearly that a Judge or Tribunal member should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey v New South Wales Bar Association (1983) 151 CLR 288. It is not sufficient that the reasonable bystander "has a vague sense of unease or disquiet". Rather, something more is required: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. Further, as stated by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
I am satisfied from a reading of the respondent's submissions and debate with the respondent's agent, Mr Allmark, during the course of two hearings relating to the interim order, that the criticisms are founded upon a misunderstanding of the process of the Tribunal, the procedures which have been followed and applicable principles of law. The respondent, through Mr Allmark, has been prevailed upon by the Tribunal to obtain legal advice, but to no avail.
I do not consider that any reasonable apprehension of bias arises from the reasons for decision or any other circumstances and, accordingly, I am not prepared to disqualify myself from determining the matter.
Should the interim order stand?
There is nothing contained in the respondent's written or oral submissions which changes the views of the Tribunal as expressed in the reasons for decision dated 12 May 2006 in relation to the matters then considered and the orders made on that day. An error in describing the sewer as running along the eastern boundary instead of the southern boundary does not affect the substance of the decision.
The only new matter raised relates to the proposal for the relocation of the sewer line. The manner in which this was dealt with by the respondent in correspondence is confusing. In the letter of 16 May 2006, the respondent's agent made clear that the respondent would pay the applicant's "share in respect of the offer from the Water Corporation and make good, should there be any interference with the garage floor". At that stage, it appears that the respondent's understanding of whatever had been proposed by the Plumbers' Board might or might not involve interference with the garage floor. Before any answer had been given to that offer, the respondent, by letter dated 22 May 2006, invited the applicant to revisit a suggestion by the applicant in relation to some alteration to the dwelling concerning the setback of the upper storey of the eastern parapet wall and eaves overhang. The applicant was asked to advise whether he was still prepared to offer financial, design and application support in getting a new application to the City of Stirling. The letter then went on to say "if in principle we can have agreement in respect of your assistance and support, the offer made to Shea (the applicant - parenthesis added) on the 16 May 06 would become redundant. Obviously no agreement can be entertained pending the application in SAT. In this regard please advise of your intention and what orders you would seek". The offer was therefore no longer available to be accepted if in principle there was an agreement in respect of assistance and support.
Mr C O'Neill responded by email dated 23 May 2006 indicating that his son, the respondent, was happy to entertain the proposal for relocation of the sewer but required to know more precisely what was proposed.
Mr O'Neill then went on to discuss the proposed separation of the two dwellings and confirmed that he would still be prepared to assist with the necessary approval of amended plans.
Having indicated the preparedness to assist, this appears to result in the offer no longer being capable of acceptance until these proceedings are finalised. However, on the same day, Mr Allmark replied by letter providing further detail on the proposal and, on this occasion, stating quite clearly that what was involved:
"is indeed very simple and possibly involve [sic] cutting a small section in the concrete slab (of the garage parenthesis added) for connection.
This is the first step required to green titling the properties. I reiterate the offer made is in no way connected to this issue. The offer was made simply in reference to the document Reason [sic] for Decision of the Tribunal paragraph [sic] 31(b) and 33.
As Shea is agreeable, then logically there is no further requirement for the orders to remain in effect. All that has to be done is to instruct the chosen plumber to commence the installation."
It appears, therefore, that the respondent considered that his offer had been accepted.
On 24 May 2006, Mr C O'Neill responded by email referring to Mr Allmark's letter dated 23 May 2006:
"in which you have suggested Shea is agreeable to the relocation of the sewer under his garage, and that we know what has been proposed. This is not the case.
What I said in my previous email (below) was that Shea is happy to 'entertain' a proposal to relocate the sewer, but wants to know more precisely what you propose. Shea does not accept that he has responsibility to solve what is clearly your problem, but is happy to cooperate with you to see if a mutually agreeable solution can be found.
... I am not convinced that it would be practicable to run the sewer line under Shea's garage, as this would involve a change of direction under the garage/storeroom floor, which I don't think would be acceptable."
The above email from Mr C O'Neill was marked "without prejudice" but it was referred to without any objection in the proceeding.
It is apparent that there is no agreement between the parties concerning a possible relocation of the sewer line. On analysis, therefore what the respondent seeks from the Tribunal is that the Tribunal should analyse the proposal put, and which the respondent still adheres to notwithstanding the above uncertainty, find that it is unreasonable for the applicant not to accept it, and therefore conclude that the interim order should be revoked and that the proceedings are an abuse of process and should be dismissed.
Notwithstanding the clear guidance provided to the parties in the previous reasons for decision, the respondent has chosen not to put any expert evidence before the Tribunal on which a proper assessment can be made of the proposal. The respondent has made plain that he expects the Tribunal to act on his assertion of the manner in which the relocation could be effected. It would be inappropriate to do so.
lt is apparent that Mr Allmark has misconceived many aspects of the process of the Tribunal and has not understood attempts by the Tribunal to explain procedures to him. As already stated, the Tribunal has repeatedly suggested that Mr Allmark obtain legal advice, but he has resisted doing so, indicating that he thinks it is unnecessary.
Subject to the considerations set out further below, the Tribunal considers that the interim order should be maintained for the reasons previously given on 12 May 2006 and for the above reasons.
Other orders sought by respondent
It follows from the above conclusions that there is no basis on which to find on the information before the Tribunal that the proceedings are an abuse of process and to make orders relating to the installation of a new sewer line. Further, the issue of assessment of any damages would only arise in the event that it could be subsequently established that the applicant was not entitled to the interim order. Any such assessment must be undertaken by the Tribunal, not independent assessors.
The Tribunal would have been disposed to make an order for the production of the email instructions provided by the applicant to his expert witness, but there is no longer any need for such an order, because Mr C O'Neill provided a copy of the email to Mr Allmark at the hearing.
I turn to the form of order made on 12 May 2006 and the submissions made by Mr C O'Neill in relation to it.
Should the interim order be varied?
As the reasons for decision of 12 May 2006 reflect, the Tribunal amended the order into its current form to accommodate the submissions made on behalf of the applicant that by doing so, any risk of paying compensation would be reduced. Notwithstanding that the Tribunal acceded to the request to cut back the ambit of the order as suggested, the Tribunal observed that it was unlikely to make any practical difference because it was doubtful that the respondent would be able to carry out any significant building works having regard to the terms of the amended form of interim order then sought.
The applicant has now clarified its position, and that is that he prefers not to have par 1 and par 2 of the proposed minute if par 3 is not made at the same time. The Tribunal did not then, and still does not consider, that par 3 is appropriate because it presupposes the ultimate outcome of the proceedings. Mr Allmark, in his reply to the applicant's submissions, offered no reason why the original order should not be reinstated apart, that is, from his overall submission that the order should never have been made. In the circumstances, the Tribunal will revoke the existing order and reinstate the order made on 28 April 2006.
Further considerations
At the conclusion of his reply, in response to questioning from the Tribunal, Mr Allmark eventually committed to indicate, although with obvious reluctance, that the applicant would file expert evidence addressing the issues raised in par 31 of the reasons for decision dated 12 May 2006. He stated that he was unable to provide expert evidence within the time-frame then ordered, that is, by 29 May 2006. Immediately thereafter, he stated that he wished to give consideration to the respondent's position. In the circumstances, I will cause directions to issue in relation to the substantive application before the Tribunal setting aside the directions made on 12 May 2006.
If the respondent does not indicate in writing her intention with regard to expert evidence within the next 14 days, the Tribunal will reassess the matter and issue directions as to how the matter is to proceed to a final determination of the substantive proceedings. If necessary, the Tribunal will require a further directions hearing to be held for that purpose.
The varied form of interim order will place a restriction on the respondent's right to apply to set it aside, on the basis that no such application will be entertained until both parties have had an opportunity to provide further evidence, including expert evidence. This is necessary to accommodate the point made by Mr C O'Neill that any consideration of a different form of remedy, such as relocation of the sewer line, should be weighed against a proper understanding of what it would entail for the respondent to amend its building plans so as to ensure that there was no building over, and an adequate setback from, the existing sewer line.
There is one final matter which needs to be addressed. The summary of the Tribunal's decision on 12 May 2006 reflects that the Tribunal considered that, in the event of a future failure of the drain, it was accepted that the inconvenience to the applicant was not one which could be measured and compensated for in damages. That was a necessary criterion for the Tribunal to address, in accordance with the authority referred to at page 6 of the decision. Having there identified the necessary criteria, the Tribunal proceeded to examine each criterion under an appropriate heading. For some inexplicable reason, it appears that part of the decision dealing with whether or not damages was an adequate remedy was omitted from the final printed version. The summary was prepared from the completed version of the decision, and there is no doubt that it was therefore originally included. It was a short paragraph to the following effect:
"Adequacy of damages
In the event that at some stage in the future the drain should fail causing a blockage, the inconvenience to the applicant is obvious. The Tribunal accepts that such an inconvenience cannot be adequately compensated for in damages."
The Tribunal records the above conclusion as part of these reasons for decision.
Orders
For the above reasons, the Tribunal orders as follows:
1.The respondent's application to revoke the interim order and for other relief is refused.
2.The interim order made on 12 May 2006 is revoked and order 3 below is substituted.
3.Subject to s 82 of the Strata Titles Act 1985 (WA), and otherwise until further order by the Tribunal, the respondent is to refrain, with immediate effect, from continuing with any building works of whatsoever nature, upon Lot 1 of survey strata plan 39171.
4.In the event that the respondent should wish to make any further application to set aside the interim order made in Order 3 above, the respondent has leave to do so conditional upon the respondent giving written notice of her intention to do so to the Tribunal and applicant, accompanied by the affidavit/s of an appropriate expert witness or witnesses deposing to whether there is any risk of damage to the sewer line in question in the event that the construction of the respondent's proposed dwelling proceeds in accordance with the current approved building plans, and also deposing in detail to the proposal for relocation of the sewer line, and addressing how the works would be undertaken, with specific reference to any impact to the applicant's property.
5.In the event that the respondent gives notice of an intention to set aside the interim order in compliance with Order 4 above, the Tribunal will issue appropriate directions affording the applicant an opportunity to file further affidavit evidence in reply and the matter will thereafter be set down for hearing.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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