Sidhu v Member De Villiers and Member Aitken - [2024] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SIDHU -v- MEMBER DE VILLIERS AND MEMBER AITKEN [2024] WASC 43
CORAM:   QUINLAN CJ
HEARD:   26 FEBRUARY 2024
DELIVERED          :   26 FEBRUARY 2024
PUBLISHED           :   26 FEBRUARY 2024
FILE NO:   GDA 1 of 2024
BETWEEN:   SURINDER SIDHU
Appellant
AND
MEMBER DE VILLIERS AND MEMBER AITKEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MEMBER DE VILLIERS
File Number            :   CC 649 of 2021

Catchwords:

Appeal - Appeal against State Administrative Tribunal - Appeal not commenced by party to the proceeding in Tribunal - Appeal not commenced in accordance with law - Appeal dismissed

Legislation:

Rules of the Supreme Court 1971 (WA), O 4, O 65
State Administrative Tribunal Act 2004 (WA), s 105

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	No Appearance

Cases referred to in decision:

Nil

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited to correct grammar and infelicities of language.)

This appeal was commenced by an Appeal Notice dated 5 January 2024.
The appellant, Surinder Sidhu, seeks to appeal from '[a]ll orders made and the closing of the matter' in proceedings in the State Administrative Tribunal (Tribunal) between the Owners of Strata Plan 69486 (Strata Company) and Danmar Homes Pty Ltd, being proceedings CC 649 of 2021 (Tribunal proceedings). The respondents identified in the Appeal Notice are members of the Tribunal.
The Tribunal proceedings were commenced by a referral by the Building Commissioner's authorised delegate under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). As I have said the parties to the Tribunal proceeding were the Strata Company and Danmar Holdings Pty Ltd.
The Tribunal proceedings were concluded on 19 December 2023, when Member de Villiers made an order in the following terms:
The application is dismissed by consent since the works that had to be done to remedy the complaints the subject of the proceedings have been completed.
Mr Sidhu was not a named party to the Tribunal proceedings. The initiating document filed in the Tribunal indicates that Mr Sidhu was an owner of a lot in the strata plan and was, at that time, authorised by the Strata Company in relation to the dispute with Danmar Homes Pty Ltd.
In the course of the Tribunal proceedings issues arose as to which persons were properly members of the council of owners of the Strata Company and which persons were properly authorised to conduct, or make decisions in relation to, those proceedings.
The ultimate outcome of those disputes was, it would appear, an acceptance by the Tribunal that Mr Sidhu was not authorised, or at least was no longer authorised, to conduct or resolve the Tribunal proceedings.
In that regard, on 8 December 2023, Senior Member Aitken determined an application filed with the Tribunal 'on behalf of Mr Sidhu … by Ms L Godwin'. Senior Member Aitken made orders that that application be dismissed including that:
The Tribunal refuses leave for Mr Sidhu (or Ms Godwin) to intervene in this proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA).
Similarly, the Senior Member made orders on 13 December 2023 in relation to an application made 'on behalf of Mr Sidhu by … Ms Godwin' seeking orders that were, in effect, orders dealing with the internal management dispute within the Strata Company. On that occasion the application was dismissed for reasons including that:
The Tribunal does not have jurisdiction in this proceeding, which is a proceeding under the Building Services (Complaint Resolution and Administration) Act 2011 (WA), to make orders pursuant to the Strata Title Act 1985 (WA).
It is apparent that the appeal before me is an appeal which seeks again to agitate the question of the authority of the various persons involved in the Strata Company to act for and provide instructions for the conduct of the Tribunal proceedings.
While Mr Sidhu is identified as the appellant in the Appeal Notice, the Appeal Notice was not filed by Mr Sidhu. It was filed by Ms Lauraine Godwin who is described on the document as 'Attorney for Surinder Singh Sidhu'. Ms Godwin is not a solicitor.
By email dated 2 February 2024, my chambers advised Mr Sidhu and Ms Godwin that the appeal had not been commenced in accordance with O 65 r 10 of the Rules of the Supreme Court and that it appeared that Mr Sidhu was seeking to appeal a decision in respect of which he was not a party. For that reason, the appeal was listed before me today to address those issues.
This morning Ms Godwin appeared for Mr Sidhu. As Ms Godwin is not a solicitor, and so as to ensure that Mr Sidhu had notice of, and an opportunity to respond to, the issues raised by me, the Court arranged for Mr Sidhu to be contacted by telephone and to attend the hearing by telephone (as is permitted by O 65 r 3(1) of the Rules of the Supreme Court). Mr Sidhu attended the balance of the hearing by telephone. I enquired of Mr Sidhu whether he was content for Ms Godwin to speak on his behalf and Mr Sidhu stated that he was. Ms Godwin was therefore permitted to make submissions to me. On each occasion that she did, however, I confirmed with Mr Sidhu whether he wished to add anything to the submissions made by Ms Godwin.
Ms Godwin provided me with a number of documents in the course of the hearing. The first document was described as 'a declaration of an outcome of the council meeting held on 23 January 2024', namely, to have the Strata Company represented in this Court by the Secretary of the Council of Owners (who Ms Godwin said was now Mr Sidhu) and that Ms Godwin continue to act on Mr Sidhu's behalf and to represent the Strata Company in matters in this Court. The second document was a similar declaration of an 'outcome of the council meeting held on 23 January 2024', namely a vote to continue the appeal against the decisions made by Members De Villiers and Aitken and a vote 'to add as a party to the appeal' the Strata Company. I take the latter reference to be a vote to apply to add the Strata Company as a party to the appeal.
In addition, Ms Godwin provided a set of written submissions, including a chronology and a summary of the complaints made in relation to the authority of various persons to act for the Strata Company. Those are not matters in relation to which I need to make any finding.
That is because the appeal itself has not been commenced by the Strata Company but by Mr Sidhu. Nor has the appeal been brought against any party to the Tribunal proceedings.
Section 105 of the State Administrative Tribunal Act 2004 provides for appeals to this Court from decisions of the Tribunal. Relevantly s 105(1) and (8) provide:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
…
(8)A party instituting an appeal is to notify the executive officer but the Tribunal is not a party to the appeal and nor is any Tribunal member.
The appeal commenced by Mr Sidhu does not comply with either s 105(1) or s 105(8).
First, Mr Sidhu was not a party to the Tribunal proceedings. The named applicant in the Tribunal was the Strata Company itself. There is, of course, a difference between the identity of the named party and a person who may be authorised to act on behalf of that party. In that regard, it would certainly appear that Mr Sidhu was authorised by the Strata Company in relation to the proceedings, at least at the commencement of the proceedings in 2021. The correspondence from the Department referring the matter to the Tribunal identified the complainant as the Strata Company 'C/- Mr Surinder Sidhu'. Nevertheless, the fact that Mr Sidhu may have had, at various times, some authority to make decisions in relation to, or otherwise conduct, the Tribunal proceedings for the Strata Company did not make him a party to the Tribunal proceedings themselves. The party was, and remained, the Strata Company itself.
Likewise, the proper respondent to an appeal from a decision of the Tribunal in the proceedings, if an appeal had been commenced by the Strata Company, would be Danmar Homes Pty Ltd. It would not be two of the Tribunal members who made decisions in the course of the Tribunal proceedings (as s 105(8) provides, Tribunal members are not parties to an appeal).
This is no mere technicality. In particular, the appeal having been commenced by Mr Sidhu on 5 January 2024, it would not be appropriate to add the Strata Company as a party to the appeal (accepting there to be power to add an appellant). That is because, as O 4 r 3 of the Supreme Court Rules provides:
Except as expressly provided by or under any Act a body corporate may not begin or carry on any proceedings other than by a solicitor.
This requirement is not affected by the Court's power, in limited circumstances, to permit an individual who is not a legal practitioner to act as a spokesperson for a company in proceedings involving a company.
If an appeal were to be validly commenced in relation to the Tribunal proceedings it would need to be commenced by one of the named parties. Those parties being bodies corporate, any such appeal must be commenced by solicitors on behalf of the relevant appellant.
I make no finding in relation to the merits or otherwise of the complaints sought to be agitated by Ms Godwin and Mr Sidhu in the documents provided to me today. It is sufficient that I conclude that the appeal has not been commenced in accordance with the law and for that reason the appeal must be dismissed.
The appeal is dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Hon Chief Justice Quinlan
26 FEBRUARY 2024