SHEZERARD HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2009] WASAT 226
•30 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SHEZERARD HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 226
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 30 OCTOBER 2009
DELIVERED : EDITED REASONS DELIVERED ORALLY ON 30 OCTOBER 2009
FILE NO/S: DR 59 of 2009
BETWEEN: SHEZERARD HOLDINGS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure - Dismissal of proceeding for want of prosecution - Failure to comply with order made following mediation - Failure to provide meaninful explanation
Legislation:
Planning and Development Act 2005 (WA), s 251(2)
State Administrative Tribunal Act 2004 (WA), s 46(3)
Result:
Proceeding dismissed for want of prosecution
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: Ms CA Ide
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Shezerard Holdings Pty Ltd sought review by the Tribunal of two conditions of strata subdivision approval. The Tribunal conducted two mediations and ordered Shezerard Holdings Pty Ltd to provide plans and documents in response to matters outlined in advice from the local government. Shezerard Holdings Pty Ltd failed to comply with the order for two months and indicated that it would not be in a position to comply for another two to three months. It offered several excuses. In effect, it sought to put the proceeding 'on hold' for six months. The Western Australian Planning Commission applied to the Tribunal to dismiss the proceeding for want of prosecution.
The Tribunal gave an oral decision in which it dismissed the proceeding for want of prosecution. The Tribunal found that Shezerard Holdings Pty Ltd had failed to act with reasonable expedition in prosecuting the case. Shezerard Holdings Pty Ltd failed to provide a meaningful explanation for its lack of compliance with the Tribunal's order.
The following is an edited version of the transcript of the Tribunal's reasons.
Introduction
The Western Australian Planning Commission (respondent) seeks an order under s 46(3) of the State Administrative Tribunal Act2004 (WA) (SAT Act) for this proceeding to be dismissed for want of prosecution. Section 46(3) of the SAT Act states as follows:
At any time, the Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it for want of prosecution.
The file reveals that this application was commenced by Shezerard Holdings Pty Ltd (applicant) on 2 February 2009. The application sought review of two conditions of a strata subdivision approval that was granted by the respondent on 18 November 2008. The two conditions disputed by the applicant in the application to the Tribunal were as follows:
1)Written confirmation from the local government that all necessary local government approval(s) have been issued and that the whole of the building has been completed in accordance with those approvals. (Local Government)
2) Stormwater drainage to be installed to the requirements of the Local Government. (Local Government)
Background
At the first directions hearing in the matter on 20 February 2009, I referred the matter for mediation to take place on 31 March 2009. I also made an order inviting officers of the Shire of Northampton (Shire) and the Department for Planning and Infrastructure to attend the mediation by telephone.
The mediation took place on 31 March 2009 before Senior Sessional Member Brian Hunt. At the conclusion of the mediation, the member ordered the respondent to arrange for the Shire officers to provide detailed written information regarding building and planning matters relating to the strata application to the applicant by 15 April 2009. The member also directed the respondent to arrange for liaison between the relevant building and planning officers of the Shire and the applicant to facilitate appropriate meetings. The member then adjourned the matter 'for further mediation (if required)' to commence at 10 am on 21 July 2009 for a duration of two hours.
The Shire appears to have complied with the order made by Senior Sessional Member Hunt to provide detailed written information regarding building and planning matters in the form of a letter dated 15 April 2009. Following the further mediation on 21 July 2009, Senior Sessional Member Hunt made orders in which he required the applicant to provide to the respondent by 31 August 2009 plans and documents in response to the matters outlined on the advice from the Shire dated 15 April 2009. The member required that these plans and documents are to be clear and appropriately dimensioned and are to specifically address all the matters. The respondent was ordered to provide to the applicant by 17 September 2009 its response to the plans and documents to be provided by the applicant by 31 August 2009. The member then listed the matter for further mediation to commence at 10 am on 1 October 2009 for a duration of two hours.
On 22 September 2009, Mr Douglas Kent, who is a director and the agent of the applicant in the proceeding, wrote to the State Solicitor's Office, although not to the Tribunal, as follows:
RE DOCUMENTS THE SURVEYER. I AM HAVING TROUBLE TRY TO GET ONE TO GO TO KALBARRI ALSO THE PLUMBER I HAVE REQUESTED HIS ACCOUNT AND FINAL TICKET
I WISH TO ADVISE DUE TO WORK COMMITMENT THROUGH AUGUST & SEPTEMBER OCTOBER WITH BUS TOURS WITH SENIOR I AM BUSY EVERY DAY
I WISH TO ADJOURN TO NEW YEAR WITH ALL DOCUMENTS FOR A FURTHER MEETING PLEASE I WILL NO BY NEW YEAR MY FREE DAY (reproduced as written).
Under cover of a letter dated 29 September 2009, the State Solicitor's Office provided the Tribunal with a copy of Mr Kent's letter dated 22 September 2009.
In light of Mr Kent's letter, I vacated the mediation which had been scheduled for 1 October 2009 and conducted a directions hearing on 2 October 2009. The applicant did not appear through Mr Kent or any other representative at that directions hearing. I made the following order at the directions hearing:
The proceedings are adjourned to a further directions hearing at 9 am on 30 October 2009 in order for the Tribunal to consider whether to dismiss the proceeding for want of prosecution under section 46 of the State Administrative Tribunal Act 2004 (WA).
A copy of that order, together with the notice of listing of the hearing today, was sent to the applicant at the address notified on the application to the Tribunal. It is clear that the applicant received these documents, because Mr Kent sent a facsimile to the State Solicitor's Office, although addressed to 'The Tribunal', on 23 October 2009. This facsimile was forwarded to the Tribunal by the State Solicitor's Office on 28 October 2009.
Mr Kent's facsimile of 23 October 2009 began as follows:
I AM UNABLE TO ATTEND THIS FRIDAY AS I WILL BE DRIVING FROM KALBARRI TO PERTH AND WILL NOT BE ON PHONE I AM WITH A GROUP OF SENIOR HAVING A WEEK IN KALBARRI
I THOUGHT MEDIATION YOU COMPROMISE AND SETTLE HOWEVER I HAVE NOT FELT THIS I WISH TO HAVE MATTER SINE DIE TO SOME TIME IN LATE JAN EARLY FEB. I WILL CONTACT THE COURT FOR A SUITABLE DATE TO SUIT ALL PARTIES HOWEVER I FIND IT VERY DIFFICULT TO SATISFY COUNCIL RE COST AND GETTING SURVEYORS TO KALBARRI FOR MEASURING CAR PARKING AS IT IS ALL MARKED OUT ON PAVING NUMBERED ALSO FOR SURVEYOR TO MARK DRAINAGE
I UNDERSTAND THE OTHER COUNCILS HAVE INSPECTION ON STRATA MATTERS FOR ROOFING, FIREWALLS, ROOF SHEETING ETC SCREWS ETC I HAVE HAD TO EMPLOY GAS FITTER FROM PERTH TO CHECK ALL PIPING TO HOT WATER SYSTEMS AT GREAT EXPENSE WHICH IS NOT NORMAL (reproduced as written).
Mr Kent then appears to refer to historical inspections of the property in question in this proceeding, apparently over a period of 24 years, before concluding the facsimile as follows:
AS WE HAVE 2 YEARS TO COMPLY WITH TOWN PLANNING FOR STRATA APPROVAL YOU SHOULD ADJOURN THIS MATTER NOT CANCELL IT SO AS WE CAN GET THE PROFESSIONAL DETAILS OVER XMAS NEW YEAR PERIOD THEN CONTACT TRIBUNAL FOR HOPEFULLY A FINAL HEARING (reproduced as written).
At the commencement of the hearing today, the Tribunal sought to telephone Mr Kent on a telephone number that he has apparently previously used to communicate with the Tribunal. However, the telephone call was not answered.
Consideration of application for dismissal of proceeding
This matter has now been before the Tribunal for approximately nine months.
The Tribunal and the respondent have invested considerable resources in an effort to facilitate a resolution of the matter; in particular, the Tribunal has conducted three directions hearings and two mediations. The applicant has failed to comply with the Tribunal's order made on 21 July 2009 for over two months, and indeed, has, in effect, said that it will not be in a position to comply for at least another two to three months.
Furthermore, the applicant appears to have abandoned the mediation process without any explanation, whereas, in his facsimile dated 22 September 2009, Mr Kent requested the mediation process to be adjourned until the New Year. In his most recent correspondence, he said that the matter should be adjourned until the New Year to enable a final hearing of the matter.
While Mr Kent has given several excuses for the applicant's failure to comply with the Tribunal's order made on 21 July 2009 including problems getting a plumber, problems getting surveyors to measure car parking areas, having to employ a gas fitter from Perth to check piping, and being busy with work commitments variously in August, September and October 2009 none of these disparate excuses provide a meaningful explanation for the applicant's failure to provide plans and documents required two months ago.
Furthermore, the orders made on 21 July 2009 followed a mediation at which Mr Kent participated. Any problems in compliance with the order should have been anticipated at that point.
Not only has the applicant failed to comply with a Tribunal order for over two months, and not only does it not intend to comply for at least another two to three months, but it appears that the applicant has done nothing whatsoever to advance its case before the Tribunal since 21 July 2009. In effect, the applicant has sought to put this proceeding 'on hold' for six months.
The history that I have recounted shows plainly that the applicant has failed to act with reasonable expedition in prosecuting this case. Indeed, it shows that the applicant has demonstrated a somewhat cavalier attitude to both the Tribunal and the respondent.
The applicant has failed to provide a meaningful explanation for its lack of compliance with the Tribunal's order. Further, it has failed to provide any meaningful explanation for having apparently unilaterally abandoned the mediation process after the Tribunal and the respondent, as well as the Shire, invested resources in that process over a lengthy period.
It follows that this proceeding should be dismissed for want of prosecution under s 46(3) of the SAT Act.
Orders
I therefore make the following order:
1.Pursuant to s 46(3) of the State Administrative Tribunal Act 2004 (WA), this proceeding is dismissed for want of prosecution.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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