RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD and TURPIN - [2012] WASAT 125

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: RETIREMENT VILLAGES ACT 1992 (WA)

CITATION: RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD and TURPIN [2012] WASAT 125

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 12 JUNE 2012

DELIVERED : 20 JUNE 2012

FILE NO/S: CC 471 of 2012
CC 472 of 2012

BETWEEN: RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD
Applicant
AND
GWEN TURPIN
JUNE STEPHENSON
Respondents

Catchwords:

Practice and procedure Application to strike out proceedings and refer matters to Supreme Court More appropriate forum Whether Supreme Court has jurisdiction Retirement Villages Act 1992 (WA) s 63 proceedings - Principle of interpretation - Right and remedy under section so integrated as to indicate legislative intention that only SAT has jurisdiction - Exercise of discretion Application for adjournment of SAT proceedings pending determination of Supreme Court proceedings

Legislation:

Acquisition of Land Act 1967 (Qld), s 24(1), s 26(1)
Aire and Calder Navigation Act 1889 (Eng), s 47
Finance Act 1953 (Eng), s 341(1)
Income Tax Assessment Act 1936 (Cth)
Land Act 1962 (Qld), s 37(1), s 38
Mining Act 1906 (NSW)
Retirement Villages Act 1992 (WA), s 20, s 22(1), s 63, s 63(1)
Sales Tax Assessment Act (No 1) 1930 (Cth)
State Administrative Tribunal Act 2004 (WA), s 9, s 37(3), s 47(2), s 50, s 50(1), s 50(3)
Supreme Court Act 1935 (WA), s 6(2), s 16
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 77

Result:

Applications for proceedings to be struck out and matters referred to the Supreme Court pursuant to s 50(1) and s 50(3) of the State Administrative Tribunal Act 2004 (WA) or, in the alternative, be adjourned pending determination by the Supreme Court in CIV 3266/2011, dismissed

Category: A

Representation:

Counsel:

Applicant: Mr N Ekanayake with Ms V Chuong
Respondents : Mr TC Young

Solicitors:

Applicant: Ilberys Lawyers
Respondents : Birman & Ride

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

Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2007] VCAT 1058
Argosam Finance Co Ltd v Oxby (Inspector of Taxes) & Anor [1965] 1 Ch 390
Barraclough v Brown & Ors [1897] 1 AC 615
Board v Board [1919] AC 956
Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421
Re The Proprietors Portman Place Building Units Plan No. 4313 [1995] 1 Qd R 525
Re Totalisator Administration Board of Queensland [1989] 1 Qd R 215; (1988) 80 ALR 73
Victorian Managed Insurance Authority v Dura (Australia) Constructions Pty Ltd [2009] VCAT 1918
Winter and Salvation Army (WA) Property Trust [2012] WASAT 17
Zangari and St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA) 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Retirement Care Australia (Hollywood) Pty Ltd commenced proceedings in the Tribunal against Ms Gwen Turpin and Dr June Stephenson, residents of the Hollywood Retirement Village, under s 63 of the Retirement Villages Act 1992 (WA), seeking orders under that section terminating Ms Turpin's and Dr Stephenson's residence contracts. Retirement Care Australia (Hollywood) Pty Ltd sought these orders on the basis that, in the special circumstances of the case, it would suffer undue hardship if the residence contracts were not terminated, because Ms Turpin and Dr Stephenson were the last two residents in a six storey building, their fees were significantly less than the cost of maintaining and operating the building, and they had been offered alternative accommodation elsewhere in the Hollywood Retirement Village.
Retirement Care Australia (Hollywood) Pty Ltd had earlier commenced proceedings in the Supreme Court of Western Australia against all of the residents of the Hollywood Retirement Village and relevant statutory office holders under the Retirement Villages Act 1992 seeking, in essence, the cancellation of a statutory charge that secures residents' premiums, or the termination of the retirement village scheme, in respect of a part of the land which is now vacant and the subject of a separate title.
Ms Turpin and Dr Stephenson sought an order from the Tribunal under s 50(1) of the State Administrative Tribunal Act 2004 (WA) striking out the proceedings on the basis that the matters would be more appropriately dealt with by the Supreme Court and an order under s 50(3) of the State Administrative Tribunal Act 2004 referring the matters to the Supreme Court. Alternatively, Ms Turpin and Dr Stephenson sought an order that the SAT proceedings should be adjourned pending the determination of the Supreme Court proceedings.
The Tribunal determined that, on the proper interpretation of the provisions, in order for it to be able to exercise a discretion to strike out all, or any part of a proceeding, under s 50(1) of the State Administration Tribunal Act 2004, and to refer the matter, or any aspect of it, to another tribunal, a court, or another person, under s 50(3) of the State Administrative Tribunal Act 2004, SAT must be satisfied that the other tribunal, court or person has jurisdiction to entertain the matter. The Tribunal also determined that the Supreme Court does not have jurisdiction to entertain the applications for orders under s 63 of the Retirement Villages Act 1992, because, under that section, the right to apply for an order terminating a residence contract and the remedy of an order from SAT terminating a residence contract are so integrated as to clearly indicate a legislative intention that only SAT has jurisdiction to entertain an application under that section. The Tribunal could not, therefore, strike out and refer the matters to the Supreme Court.
The Tribunal also decided that if, contrary to its determination, the Supreme Court had jurisdiction to entertain the proceedings under s 63 of the Retirement Villages Act 1992, and the Tribunal could therefore exercise discretion to strike out the proceedings and to refer the matters to the Supreme Court, it did not consider that the matters would be more appropriately dealt with by the Supreme Court and would decline to strike out the proceedings and refer the matters to the Supreme Court in the interests of justice. The Tribunal's reasons for this decision included that it has the capacity and experience to make decisions under the Retirement Villages Act 1992 and there is no unusual complexity in the proceedings, there is no real risk of inconsistent or conflicting decisions or rulings in the SAT and Supreme Court proceedings, as they involve different and discrete questions, the proceedings are likely to be resolved as quickly, if not more quickly, in SAT than in the Supreme Court, in SAT each party generally bears its own costs whereas in the Supreme Court the unsuccessful party will generally have to pay a proportion of the successful party's costs, and there is not likely to be any significant overlap of evidence and, thus, duplication of costs, in the SAT and Supreme Court proceedings.
Finally, the Tribunal declined to adjourn the SAT proceedings until the determination of the Supreme Court proceedings, because an adjournment would be inconsistent with one of SAT's main objectives, namely, to act as speedily as is practicable, and the SAT proceedings are premised on a contention that there would be undue hardship if the residence contracts were not terminated, while hardship, if it is found to exist, would be compounded by an adjournment.
The proceedings were listed for a directions hearing in order to program the matters for a prompt resolution, whether by mediation or adjudication.

Introduction

Ms Gwen Turpin and Dr June Stephenson reside in independent living units in a six storey building known as 'Wyvern' which forms part of Hollywood Retirement Village, a retirement village located at Nos 118 to 120 Monash Avenue, Nedlands, which is operated by Retirement Care Australia (Hollywood) Pty Ltd (RCA) subject to a retirement village scheme under the Retirement Villages Act 1992 (WA) (RV Act). When RCA purchased the land comprising Hollywood Retirement Village from The Salvation Army (Western Australian) Property Trust in mid2005, at least 150 of the 166 independent living units in Wyvern were occupied by residents. Since that time, all of the former residents of Wyvern, other than Ms Turpin and Dr Stephenson, have moved to independent living units in another part of Hollywood Retirement Village, moved to accommodation elsewhere, or have passed away.
On 27 March 2012, RCA commenced proceedings CC 471 of 2012 and CC 472 of 2012 against Ms Turpin and Dr Stephenson, respectively, seeking in each proceeding an order terminating their residence contract, pursuant to s 63(1) of the RV Act, on the basis that RCA would, in the special circumstances of the case, suffer 'undue hardship' if the contracts were not terminated. In particular, RCA contends that it would suffer undue hardship if the residence contracts were not terminated, because the fees paid by Ms Turpin and Dr Stephenson, currently $9,139.60 per year in total, are significantly less than the cost of maintaining and operating Wyvern, and suitable, superior, alternative accommodation is available and has been offered to Ms Turpin and Dr Stephenson elsewhere in the Hollywood Retirement Village.
Section 63 of the RV Act states as follows:
(1)The State Administrative Tribunal may, on application by the administering body of a retirement village, make an order terminating a residence contract if the State Administrative Tribunal is satisfied that the administering body would, in the special circumstances of the case, suffer undue hardship if the contract were not terminated.
(2)If the State Administrative Tribunal makes an order terminating a residence contract under this section, the State Administrative Tribunal
(a)shall fix in the order a date by which the resident must vacate the residential premises occupied by the resident; and
(b)may make such other orders (including an order that the administering body pay to the resident compensation for the resident’s loss of rights under the contract) as the State Administrative Tribunal thinks fit.
RCA has subdivided the land which formerly comprised the Hollywood Retirement Village into two lots, Lot 888 and Lot 889. RCA has demolished the buildings on Lot 889. On 24 November 2011, RCA commenced Supreme Court of Western Australia proceeding CIV 3266/2011 against Ms Turpin, Dr Stephenson, the 73 other residents of Hollywood Retirement Village, the Commissioner for Consumer Protection, the Registrar of Titles and the Commissioner for Titles, seeking, in essence, the cancellation of the registration of the statutory charge, which, under s 20 of the RV Act, secures the repayment of residents' premiums, over Lot 889, or the termination of the retirement village scheme, pursuant to s 22(1) of the RV Act, insofar as it relates to Lot 889 (Supreme Court proceedings). Ms Turpin, Dr Stephenson and 40 other residents of the retirement village are actively defending the Supreme Court proceedings. The Supreme Court proceedings are scheduled for mediation on 8 August 2012 and listed for trial before her Honour Justice Pritchard on 16 18 October 2012.
On 20 April 2012, Ms Turpin and Dr Stephenson filed an interim application seeking the following order in each of the proceedings CC 471 of 2012 and CC 472 of 2012:
The applicant's application be struck out and referred to the Supreme Court of Western Australia pursuant to sections 50(1) and 50(3) of the State Administrative Tribunal Act 2004.
On 29 May 2012, Ms Turpin and Dr Stephenson filed an amended interim application in which they also sought the following alternative order:
In the alternative, the applicant's application be adjourned pending judgment in CIV 3266/2011.
Section 50 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states as follows:
(1)The Tribunal may, at any time, make an order striking out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person.
(2)The Tribunal’s power to make an order under subsection (1) is exercisable only by a judicial member.
(3)If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.
Although the Tribunal has, on at least one previous occasion (see Zangari and St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA) 1 at [14]), determined an application for the striking out of proceedings and referral of matters to the Supreme Court under s 50 of the SAT Act, this case provides the first opportunity for considered reflection in relation to the interpretation and application of that section.

Consideration of application for striking out of proceedings and referral of matters to the Supreme Court

Interpretation of s 50 of the SAT Act

It is implicit in both s 50(1) and s 50(3) of the SAT Act that, in order for the Tribunal to be able to exercise a discretion to strike out all, or any part of, a proceeding (under s 50(1)) and to refer the matter, or any aspect of it, to another tribunal, a court, or any other person (under s 50(3)), SAT must be satisfied that there is another tribunal, a court, or a person which has jurisdiction to entertain the matter or the relevant part of it. In order for the Tribunal to be able to form the view that 'the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person' under s 50(1), the other tribunal, court or person must have jurisdiction to deal with the matter. Similarly, in order for the Tribunal to be able to form the view that it should 'refer the matter, or any aspect of it, to the relevant tribunal, court, or person' under s 50(3), the matter, or aspect, must be capable of being referred to the relevant tribunal, court or person, and, therefore, the relevant tribunal, court or person must have jurisdiction to entertain the matter, or aspect, on referral. (Furthermore, a referral under s 50(3) of the SAT Act can only be made following the making of an order under s 50(1), which necessarily requires that the other tribunal, court or person has jurisdiction in relation to the matter, or aspect).
As Judge Bowman AP said in Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2007] VCAT 1058 at [14], in relation to VCAT's power to strike out proceedings and refer matters under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which is in relevantly identical terms to s 50 of the SAT Act:
… There is little point in striking out a proceeding here and referring it to another court or body that lacks jurisdiction. Indeed, it seems to me that this is an exercise that should not be undertaken if there is even a risk that the body in question may lack the necessary jurisdiction. In Linton and Vink v Commonwealth Bank of Australia [2004] VCAT 870, a decision of mine to which I was referred, I upheld an application pursuant to s 77 of the Act because I was of the opinion that some doubt existed as to whether this Tribunal could afford the appropriate relief in an action for possession based upon a mortgage. While arguments each way existed, the fact that such a doubt existed persuaded me to refer the matter to the County Court where no such doubt would exist. That approach seems to me to be equally valid if a doubt exists as to whether the court or body to which referral is sought will entertain the proceeding.
In my view, on the proper interpretation of s 50(1) and s 50(3) of the SAT Act, SAT's satisfaction that the other tribunal, court or person has jurisdiction to entertain a matter, or an aspect of a matter, is a condition precedent to the exercise of discretion to strike out all, or any part of a proceeding, or to strike out all, or any part of a proceeding and refer a matter, or an aspect of a matter to another tribunal, a court, or another person, on the basis that the matter, or aspect, would be more appropriately dealt with by the other tribunal, court or person. If, in a particular case, SAT is satisfied that another tribunal, a court, or another person has jurisdiction to entertain a matter, or an aspect of a matter, then a discretion arises under s 50(1) of the SAT Act to strike out all, or any part of the proceeding, if SAT considers that matter, or aspect, would be more appropriately dealt with by the other tribunal, court or person, and (if SAT makes an order under s 50(1)) a discretion arises under s 50(3) of the SAT Act to refer the matter, or aspect, to that tribunal, court or person.
In exercising these discretions, where they arise, as Judge Harbison VP observed in Victorian Managed Insurance Authority v Dura (Australia) Constructions Pty Ltd [2009] VCAT 1918 at [85], the 'overriding consideration should be whether or not the [strike out or strike out and] transfer is in the interests of justice'. In considering whether the matter, or aspect, would be more appropriately dealt with by another tribunal, a court, or another person, and whether the strike out, or strike out and referral, is in the interests of justice, the Tribunal will have regard to its main objectives, in dealing with matters within its jurisdiction, as stated in s 9 of the SAT Act, namely:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.

Does the Supreme Court have jurisdiction in relation to the matters?

The Supreme Court of Western Australia is 'a superior court of record' (Supreme Court Act 1935 (WA) s 6(2)) exercising general jurisdiction in this State see s 16 of the Supreme Court Act 1935. In delivering the judgment of the Judicial Committee of the Privy Council in Board v Board [1919] AC 956, Viscount Haldane said at 963 in relation to a superior court, such as the Supreme Court of Western Australia:
… it is the rule as regards presumption of jurisdiction in such a Court that, as stated by Willes J in London Corporation v Cox [(1867) LR 2 HL 239, 259], nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so.
Relying on this rebuttable presumption as to the jurisdiction of a superior court, the decision of McPherson J in Re Totalisator Administration Board of Queensland [1989] 1 Qd R 215; (1988) 80 ALR 73 (Re TAB) and the judgment of Gibbs J in the High Court of Australia in Forster v Jododex Australia Pty Ltd & Anor(1972) 127 CLR 421 at 435 436 (Jododex), Mr TC Young, counsel for Ms Turpin and Dr Stephenson, submitted that:
Section 63 of the RV Act does not by express words or necessary implication confer exclusive jurisdiction on the Tribunal or prevent the Supreme Court from determining the application[s].
…
The Tribunal exercises its jurisdiction under s 63 of the RV Act concurrently with the Supreme Court. …
In Re TAB, a taxpayer applied to the Supreme Court of Queensland for a declaration that it was not liable to pay sales tax assessed by the Commissioner of Taxation under Sales Tax Assessment Act (No 1) 1930 (Cth). There were three statutory methods for disputing the assessments available to the taxpayer. However, the taxpayer did not use, or at least did not bring any of these methods to completion, preferring instead to apply for a declaration.
The Commissioner of Taxation submitted that the Court's power to make the declaration sought by the taxpayer was impliedly excluded by the Federal legislation that enabled the taxpayer to dispute the assessments. However, McPherson J held at 220; 78 79 as follows:
… I do not consider that the jurisdiction of this Court to make the declaration sought can be said to have been impliedly ousted by the sales tax legislation and the procedures it affords for challenging a liability for sales tax. The jurisdiction of the Supreme Court has not 'in clear words' been excluded. …

McPherson J's quoted reference to 'in clear words' was taken from the judgment of Gibbs J in Jododex to which McPherson J referred at 219 220; 78 as follows:
In any event, I consider myself bound by the view expressed by Gibbs J in Forster v Jododex Aust. Pty Ltd (1972) 127 CLR 421, 435 436, that, although the jurisdiction of the court may be ousted by statute, 'the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words.' His Honour was there concerned with the jurisdiction of the Supreme Court of New South Wales to make a declaratory order or decree with respect to the validity of applications for exploration licences, a matter committed by the Mining Act 1906 (NSW) to the jurisdiction of the mining warden. On that point, Walsh J (at 427) thought that 'as a general rule and in the absence of some special reason for intervention, the special procedures laid down by statute should be allowed to take their course' and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute. In the end, however, his Honour did not dissent from the decision of the other members of the High Court that the appeal in that case should be dismissed. The other Justices of the court on that occasion were Mason J, who agreed with Gibbs J on the point here in issue (see at 450); McTiernan J, who concurred in the reasons for [sic] Mason J (at 427); and Stephen J, who also agreed with the reasons of Gibbs J on the question of jurisdiction (at 448).
However, the decisions in Re TAB and Jododex are not authority for the propositions advanced by Ms Turpin and Dr Stephenson that s 63 of the RV Act does not confer exclusive jurisdiction on SAT and that SAT and the Supreme Court have concurrent jurisdictions to consider and determine an application made by an administering body of a retirement village under that section for an order terminating a residence contract. In Re TAB and Jododex, it was decided that the legislation in question did not impliedly exclude a Supreme Court's declaratory jurisdiction in relation to liability to pay sales tax or the validity of applications for exploration licences. The issue was not whether the Supreme Court had jurisdiction to exercise a particular statutory power conferred by the legislation. Furthermore, as McPherson J observed in Re TAB at 219; 78, the 'legislation imposing sales tax creates, qua the applicant in this case, not a right but a liability'. In contrast, s 63 of the RV Act confers on the administering body of a retirement village a statutory right to apply for an order terminating a residence contract, rather than a statutory liability.
In my view, on its proper interpretation, s 63 of the RV Act, by clear implication, confers exclusive jurisdiction on SAT to hear and determine applications for orders under that section. This interpretation follows from the 'principle that where[,] by statute[,] a new right is created[,] it is enforceable only by the means and before the tribunal, if any, specified for that purpose in the statute' (to quote McPherson J in Re TAB at 219; 77, although his Honour determined that the principle was not applicable in that case, because the legislation in question created a liability, rather than a right). This principle of interpretation was recognised by the House of Lords in Barraclough v Brown & Ors [1897] 1 AC 615 (Barraclough) and applied by the English Court of Appeal in Argosam Finance Co Ltd v Oxby (Inspector of Taxes) & Anor [1965] 1 Ch 390 (Argosam) and by Shepherdson J in the Supreme Court of Queensland in Re The Proprietors Portman Place Building Units Plan No. 4313 [1995] 1 Qd R 525 (Portman Place). The principle is expressed by DC Pearce and RS Geddes in Statutory Interpretation in Australia (Lexis Nexis Butterworths, 7th edition, 2011) at [4.34] as follows:
[The] right and remedy may be integrated under a statute to such an extent that a person may only be permitted to pursue the right by means of the remedy provided.
In Barraclough, the House of Lords determined that the Queen's Bench Division of the High Court of Justice did not have jurisdiction to entertain proceedings brought by the secretary to the Undertakers of the Navigation of the Rivers Aire and Calder for recovery of the sums expended by the undertakers in endeavouring to raise and in removing a vessel that had capsized and sunk in the River Ouse from the owners of the vessel. Section 47 of the Aire and Calder Navigation Act 1889 (Eng) authorised the undertakers to remove a sunken vessel in the River Ouse and to 'recover [their] expenses from the owner of such … in a court of summary jurisdiction'.
The House of Lords held that the High Court, which was not 'a court of summary jurisdiction', did not have jurisdiction to entertain the proceedings and the proceedings were, therefore, incompetent. The House of Lords comprised Lord Herschell, Lord Watson, Lord Shand and Lord Davey. Lord Herschell held at 619 620 as follows:
… I feel bound to hold that it was not competent for the appellant to recover the expenses, even if the respondents were liable for them, by action in the High Court. The respondents were under no liability to pay these expenses at common law. The liability, if it exists, is created by the enactment I have quoted. No words are to be found in that enactment constituting the expenses incurred a debt due from the owners of the vessel. The only right conferred is 'to recover such expenses from the owner of such vessel in a court of summary jurisdiction.' I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right.
Lord Herschell also observed obiter at 620 as follows:
It was argued for the appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events, entitled to come to that court for a declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made by the appellant's claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover the very matter relegated to the inferior court determined. Such a proposition was not supported by authority, and is, I think, unsound in principle.
Lord Watson held at 621 622 as follows:
… I am of the opinion that the claim founded upon s.47 of the Act of 1889 was not competently brought before the Court in this suit. The only right which the undertakers have to recover from an owner is conferred by these words: 'Or the undertakers may, if they think fit, recover such expenses from the owner of such boat, barge, or vessel in a court of summary jurisdiction.' The right and the remedy are given uno flatu, and the one cannot be disassociated from the other. By these words the Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has therefore, by plain implication, enacted that no other court has any authority to entertain or decide these matters.
Lord Shand held at 623 as follows:
I agree entirely with what has fallen from my noble friend Lord Watson … It appears to me that the jurisdiction which can alone be exercised in a case of this kind belongs to a court of summary jurisdiction, and that therefore this suit could not be properly initiated in the court in which it has been brought. …
Finally, Lord Davey held at 623 as follows:
My Lords, I agree with your Lordships that there is no common law right of action in this case, and that the High Court has no jurisdiction over the subjectmatter of this action under the Aire and Calder Acts, and that the appeal must consequently be dismissed. …
In Argosam, a taxpayer sought a declaration from the English High Court as to the deductibility for income tax purposes of certain trading losses. Section 341(1) of the Finance Act 1953 (Eng) stated that:
Where any person sustains a loss in any trade carried on by him he may, upon giving notice in writing to the surveyor within two years after the year of assessment, apply to the General Commissioners or to the Special Commissioners for an adjustment of his liability by reference to the loss and to the aggregate amount of his income for that year estimated according to this Act.
Plowman J held at 409 that the High Court did not have jurisdiction to entertain the application for the declaration sought by the taxpayer, because:
… the right given to a taxpayer by section 341 is a right which has no existence apart from that section, and … the same section at the same time prescribes a particular method of enforcing it, with the result that the right cannot be asserted by other means.
The Court of Appeal dismissed an appeal from Plowman J's decision. Referring to the decision of the House of Lords in Barraclough, Lord Denning MR held at 423 that:
… I would agree that the courts would have no jurisdiction to determine [whether the company was entitled to relief under s 341 of the Finance Act 1953]. The question is one which is entrusted by the legislature to the exclusive province of the commissioners, and the courts cannot entertain it.
At 425, Diplock LJ agreed and said:
In my view there was clearly no jurisdiction on the part of the court to answer the question asked in (a) of the summons, for that was a matter which Parliament has exclusively confided to the jurisdiction of the commissioners. …
In Portman Place, a dispossessed landowner sought a declaration from the Supreme Court of Queensland that compensation payable to it by Queensland Railways (formerly The Commissioner for Railways) under the Acquisition of Land Act 1967 (Qld) included an amount for capital gains tax under the provisions of the Income Tax Assessment Act 1936 (Cth). Section 24(1) of the Acquisition of Land Act 1967 enabled 'either the constructing authority or the claimant [to] refer to the Land Court for hearing and determination the matter of the amount of the compensation' for the compulsory acquisition. Section 26(1) of the Acquisition of Land Act 1967 conferred on 'the Land Court … jurisdiction to hear and determine all matters relating to compensation under this Act'. Section 37(1) of the Land Act 1962 (Qld) provided that 'the [Land] Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court'. Section 38 of the Land Act 1962 provided, in part, as follows:
Whenever it is necessary to determine the amount of any … compensation … or other money payable or to become payable under this Act or any other Act conferring jurisdiction on the [Land] Court in respect of such matters, such amount shall be determined by the Court …
Shepherdson J referred to the judgments in Barraclough at 529 530 and determined as follows at 530 532:
Translating the principle of Barraclough v Brown to the present situation, it is my view that the right to recover compensation is created by the Acquisition of Land Act and not by the common law. That right arose on gazettal of the resumption proclamation (s.12(5)). … The liability of The Commissioner for Railways (now Queensland Railways …) to pay compensation arose under the Acquisition of Land Act and not the common law …
Although it is true to say that s.9 of the Land and Valuation Court Act did expressly give exclusive jurisdiction to that court, but the Acquisition of Land Act does not contain any such express provision, I have come to the conclusion that Part 4 of the Acquisition of Land Act does on its proper construction give the Land Court exclusive jurisdiction to hear and determine the applicant's claim for compensation. …
In my view, the principle of Barraclough v Brown applies and I have no jurisdiction to entertain this application.
In my opinion, the principle of interpretation recognised in Barraclough also applies in relation to s 63 of the RV Act. In my view, adopting and adapting the words of Lord Watson in Barraclough at 622:
The right [of an administering body of a retirement village to seek an order terminating a residence contract where the administering body would, in the special circumstances of the case, suffer undue hardship if the contract were not terminated] and the remedy [to obtain an order from SAT terminating a residence contract in those circumstances] are given uno flatu [that is, with one breath], and the one cannot be disassociated from the other. By [the] words [of s 63 of the RV Act] the Legislature has, in my opinion, committed [to SAT] exclusive jurisdiction [to entertain an application under that section]; and has therefore, by plain implication, enacted that no other court [, tribunal or other person] has any authority to entertain or decide these matters.
Mr Young also submitted that:
Section 50 [of the SAT Act] itself negates the proposition that the Tribunal has exclusive jurisdiction by clearly contemplating that matters primarily within the Tribunal's jurisdiction may be referred to the Court in appropriate circumstances.
However, s 50 of the SAT Act does not itself confer jurisdiction on a tribunal, a court, or any other person, to entertain a matter, but rather enables SAT to strike out all, or any part of, a proceeding or to strike out all, or any part of, a proceeding and transfer a matter, or an aspect of a matter to another tribunal, a court or another person which has concurrent jurisdiction in relation to the matter, or aspect, under another law where the matter, or aspect, would be more appropriately dealt with by the other tribunal, court, or person.
As SAT has exclusive jurisdiction to entertain an application by an administering body of a retirement village under s 63 of the RV Act for an order terminating a residence contract if SAT is satisfied that the administering body would, in the special circumstances of the case, suffer undue hardship if the contract were not terminated, the Tribunal cannot strike out these proceedings, or strike out these proceedings and refer the matters to the Supreme Court, pursuant to s 50 of the SAT Act.

Exercise of discretion

However, assuming, contrary to my earlier determination, that the Supreme Court has jurisdiction to entertain an application under s 63 of the RV Act, and that the Tribunal, therefore, may exercise a discretion to strike out these proceedings and to refer the matters to the Supreme Court under s 50 of the SAT Act, I do not consider that the matters would be more appropriately dealt with by the Supreme Court and would decline to strike out the proceedings and refer the matters to the Supreme Court in the interests of justice, in the circumstances of this case, for the following eight reasons.
First, as Ms Turpin and Dr Stephenson conceded, (on the assumption that the Supreme Court has concurrent jurisdiction), SAT has 'primary jurisdiction' in the sense that Parliament has specifically conferred the statutory power to make an order terminating a residence contract on SAT. Furthermore, although there does not appear to be a published decision of SAT in relation to an application under s 63 of the RV Act, SAT has the capacity and experience to make decisions under the RV Act and, indeed, has recently heard and determined proceedings in relation to Hollywood Retirement Village under that Act see Winter and Salvation Army (WA) Property Trust [2012] WASAT 17. Moreover, there is no unusual complexity in these proceedings which might warrant a referral to the Supreme Court.
Second, contrary to the submission made by Mr Young on behalf of Ms Turpin and Dr Stephenson, there is no real risk of inconsistent or conflicting decisions or rulings in these proceedings and in the Supreme Court proceedings. As Mr N Ekanayake, who appeared with Ms V Chuong on behalf of RCA, submitted, the proceedings in SAT and in the Supreme Court involve different and discrete questions. The SAT proceedings involve a determination as to whether RCA would, in the special circumstances of the case, suffer undue hardship if two residence contracts allowing occupation of independent living units in Wyvern (which is located on Lot 888) were not terminated. In contrast, the Supreme Court proceedings essentially concern whether the statutory charge or the retirement village scheme should continue to operate in relation to Lot 889, which is now vacant.
Third, contrary to Ms Turpin's and Dr Stephenson's submission, it is not a conceivable outcome of the Supreme Court proceedings that SAT 'will cease to have jurisdiction to determine this matter' or that the Court would make orders 'that may affect determination of [Ms Turpin's and Dr Stephenson's] contracts'. This submission was based on Order GA of the relief claimed by RCA in its Statement of Claim in the Supreme Court proceedings and on the Court's power, under s 22(3) of the RV Act, where it approves the termination of a retirement village scheme, to make 'such orders as it thinks fit to protect the interests of existing residents'.
Order GA of the relief claimed by RCA in the Supreme Court proceedings, which is expressed as an alternative claim to an order under s 22(1) of the RV Act that the retirement village scheme be terminated insofar as it relates to Lot 889 (Order G), which is in itself an alterative to an order that the memorial on title in respect of the charge be cancelled over Lot 889 (Order D), states as follows:
Alternatively to Order G sought above, an order under s.22(1) of the RV Act that the retirement village scheme which relates to the Hollywood Retirement Village is terminated on a date to be fixed.
However, Order GA is related to Order H which is sought by RCA as follows:
A declaration that immediately from the time that Order G, or alternatively Order GA, sought above takes effect, that there is a retirement village scheme which relates to the Hollywood Retirement Village being conducted on part of Lot 888.
Furthermore, para 21 of the Statement of Claim makes it clear that:
Immediately from determination of part of, or, the present village scheme, the plaintiff seeks to conduct a retirement village scheme comprising the same facilities for the same resident defendants as presently comprised the Hollywood Retirement Village on part of Lot 888.
Paragraph 18 of the Statement of Claim also includes the following pleadings:
The Plaintiff: …
18.5does not seek, by the Orders sought in these proceedings, to alter or vary any residence contract of the resident defendants;
18.6does not seek, by the Orders sought in these proceedings, to alter or vary any right to occupy which any of the resident defendants has.
It is, therefore, not conceivable that, in consequence of the Supreme Court proceedings, the Tribunal will either cease to have jurisdiction to determine these proceedings under s 63 of the RV Act or that the Court will make orders under s 22(3) of the RV Act terminating residence contracts on Lot 888. As noted earlier, the focus of the Supreme Court proceedings is on whether the statutory charge or retirement village scheme should continue to affect Lot 889, which is now vacant, not on the residence contracts in relation to independent living units on Lot 888 in general or Wyvern in particular.
Mr Young also emphasised the words 'on part of Lot 888' at the end of Order H sought in the Statement of Claim and suggested that this means that RCA may seek approval from the Supreme Court of a replacement retirement village scheme that excludes Wyvern. However, para 18.5 and para 18.6 of the Statement of Claim state in terms that RCA does not seek, by the Orders sought in the Supreme Court proceedings, 'to alter or vary any residence contract of the resident defendants' or 'to alter or vary any right to occupy which any of the resident defendants has'.

Fourth, Ms Turpin and Dr Stephenson suggested that, if their residence contracts were terminated in these proceedings, they would be denied standing to defend RCA's claim in the Supreme Court proceedings. However, RCA has indicated that it is prepared to relocate each of Ms Turpin and Dr Stephenson to accommodation in another, superior unit within the retirement village. They would, therefore, have standing to defend the Supreme Court proceedings.
Fifth, while Ms Turpin and Dr Stephenson have suggested that RCA's applications in SAT have been brought for improper purposes, namely to strengthen its position in the Supreme Court proceedings, to avoid its obligation to maintain Wyvern, and as part of a broader strategy, there is no evidence to support an allegation that the proceedings have been brought for any purpose other than that provided for in s 63 of the RV Act. Indeed, the applications by Ms Turpin and Dr Stephenson for the matters the subject of the SAT proceedings to be referred to the Supreme Court are inconsistent with a contention that the SAT proceedings have an improper purpose. Furthermore, if it is to be contended that the proceedings are being used for an improper purpose, or are otherwise an abuse of process, an application should be brought, and supported by evidence, for an order that the proceedings be dismissed or struck out under s 47(2) of the SAT Act.
Sixth, as noted earlier in these reasons, the Tribunal's main objectives in dealing with matters within its jurisdiction, set out in s 9 of the SAT Act, include 'to act as speedily … as is practicable, and minimise the costs to parties'. While it is correct that the Supreme Court proceedings are scheduled for mediation in August and trial in October, there does not appear to be any reason why the SAT proceedings cannot be mediated and, if necessary, adjudicated by the Tribunal within, if not before, that timeframe. Furthermore, the Tribunal is a generally 'no costs' or 'cost neutral' jurisdiction, whereas in civil litigation in the Supreme Court the usual practice is that costs follow the result, with the consequence that the unsuccessful party will have to pay not only its own costs, but also a proportion of the successful party's costs of the proceedings.
Seventh, while there may be some common evidence in the SAT proceedings and in the Supreme Court proceedings in relation to the historical circumstances and facilities of the Hollywood Retirement Village, the focus of the SAT proceedings on the one hand, and the Supreme Court proceedings on the other, and, therefore, the focus of the evidence and submissions to be presented in each proceeding, is, for reasons discussed earlier, different. There is, therefore, not likely to be any significant overlap of evidence and, thus, duplication of costs in the two sets of proceedings.
Finally, Ms Turpin and Dr Stephenson submitted that 'it is in the interests of justice not to have two elderly retirees being called upon to defend multiple proceedings'. While this is certainly something to be avoided if possible, this consideration would not, in my view, sufficiently counter the earlier matters so as to warrant the exercise of discretion in the present circumstances to strike out the proceedings and refer the matters to the Supreme Court.

Consideration of application for adjournment of the SAT proceedings pending determination of the Supreme Court proceedings

I do not consider it to be appropriate to exercise the Tribunal's discretion to adjourn these proceedings until the determination of the Supreme Court proceedings. As noted earlier, one of the Tribunal's main objectives is to act as speedily as is practicable (SAT Act s 9(b)). Adjournment of the SAT proceedings for four months (or longer if judgment in the Supreme Court proceedings is reserved) would be inconsistent with this objective. Furthermore, the SAT proceedings are premised on a contention by RCA that it would suffer undue hardship if Ms Turpin's and Dr Stephenson's residence contracts were not terminated. If there is undue hardship, then the adjournment of these proceedings until the delivery of judgment by Pritchard J following a trial in October 2012 would compound the undue hardship. The SAT proceedings should be resolved, whether by mediation or adjudication, expeditiously.

Conclusion

It follows that the applications by Ms Turpin and Dr Stephenson for an order striking out these proceedings under s 50(1) of the SAT Act and referring the matters to the Supreme Court under s 50(3) of the SAT Act, and alternatively for an order that the proceedings be adjourned until the determination of the Supreme Court proceedings, should be dismissed. The proceedings should be listed for a directions hearing in order to program the matters for a prompt resolution, whether by mediation or final hearing.

Orders

The Tribunal makes the following orders in each of proceedings CC 471 of 2012 and CC 472 of 2012:
1.The interim application for the proceeding to be struck out pursuant to s 50(1) of the State Administrative Tribunal Act 2004 (WA) and for the matter to be referred to the Supreme Court pursuant to s 50(3) of the State Administrative Tribunal Act 2004, and alternatively for an order that the proceeding be adjourned pending judgment in Supreme Court of Western Australia proceeding CIV 3266/2011, is dismissed.
2.This proceeding is listed for a directions hearing at 2.00 pm on 27 June 2012 in order to program the matter for a prompt resolution.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT