Szulc v Commissioner of Soil and Land Conservation

[2019] WASCA 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   SZULC -v- COMMISSIONER OF SOIL AND LAND CONSERVATION [2019] WASCA 41

CORAM:   MURPHY JA

BEECH JA

HEARD:   22 FEBRUARY 2019

DELIVERED          :   22 FEBRUARY 2019

PUBLISHED           :   28 FEBRUARY 2019

FILE NO/S:   CACV 106 of 2018

BETWEEN:   SCOTT ANDREW SZULC

Appellant

AND

COMMISSIONER OF SOIL AND LAND CONSERVATION

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   PARRY DCJ

File Number             :   DR 143 of 2014

Catchwords:

Practice and procedure - Appeal from State Administrative Tribunal - Where appellant sought to set aside soil conservation notice issued in 1994 - Where appellant not an owner or occupier of land at the time soil conservation notice issued - Whether Tribunal had power to grant remedy sought - Application for leave to appeal - Where appeal commenced four years out of time - Whether appeal has any reasonable prospects of success - Turns on own facts

Legislation:

Soil and Land  Conservation Act 1945 (WA), s 34, s 38
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Appeal dismissed
Application for leave to appeal dismissed
Application to extend time within which to appeal dismissed
Application to set aside soil conservation notice dismissed
Application to determine date of service of soil conservation notice dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr I A Repper

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office of Western Australia

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

Cardno BSD and Shire of Busselton [2007] WASAT 267

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Simonsen v Legge [2010] WASCA 238

REASONS OF THE COURT:

Introduction

1. This appeal was from a decision of the Deputy President of the State Administrative Tribunal (Parry DCJ),[1] made on 30 May 2014, to dismiss the appellant's application, filed 5 May 2014, for an extension of time to seek review of the Commissioner's decision in 1994 to issue the Notice under the Soil and Land Conservation Act 1945 (WA) (Act).

   [1] In DR 143 of 2014.

2. This matter came to hearing on 22 February 2019 by way of an amended registrar's notice to attend dated 14 February 2019 to consider the appellant's applications in the appeal:

   1.For leave to appeal pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA).

   2.For an extension of time within which to commence the appeal.

   3.To set aside a soil conservation notice dated 30 September 1994 (Notice). 

   4.To determine that the date of service of the Notice was on 8 October 2013. 

3. At the conclusion of the hearing, we made the following orders:

   1.The appellant's application to extend time within which to commence the appeal is refused. 

   2.The appellant's application for leave to appeal is refused.

   3.The appellant's application filed 5 February 2019 (to set aside the Notice and to determine the date of service of the Notice) is dismissed. 

   4.The appeal is dismissed. 

4. These are our reasons for making the orders referred to in [3] above.

The legislation

1. The relevant provisions of the Act for present purposes are set out below.[2]

   [2] References are to the Act as at 30 September 1994, unless otherwise indicated.  Save as indicated to the contrary, provisions of the Act today remain materially the same as they were in 30 September 1994.

2. Section 31 provided, relevantly, that a 'soil conservation notice' means a notice served in accordance with s 32(1) of the Act.

3. Section 32 of the Act provided:

   Service of notices

   (1)Whenever the Commissioner is of the opinion that as a result of -

   (a)any agricultural or pastoral practices or methods, which have been or are likely to be adopted;

   (b)clearing or intended clearing;

   (c)failure on the part of any person to take adequate precautions to prevent or control soil erosion, salinity or flooding; or

   (d)the destruction, cutting down or injuring of any tree, shrub, grass or any other plant,

   on any land, land degradation is occurring or is liable or likely to become liable to occur on that land or elsewhere the Commissioner may -

   (e)by notice in writing served on each owner, and each occupier, of that land direct that any or all of the things mentioned in subsection (2) of this section be done on or in relation to that land;

   …

   (2)A soil conservation notice may -

   (a)direct each or any one or more of the persons bound by the soil conservation notice to do all or any of the following things -

   (i)adopt or refrain from adopting any agricultural or pastoral methods specified in the notice;

   (ii)refrain from clearing any land specified in the notice;

   (iii)refrain from destroying, cutting down or injuring any tree, shrub, grass or other plant on any land specified in the notice;

   (iv)take such action as is specified in the notice for preventing the erosion, drift or movement of sand, soil, dust or water on or from any land specified in the notice;

   (v)any other matter incidental to the foregoing;

   and

   (b)specify a period within which or for the duration of which such things shall be done.

   (3)A soil conservation notice -

   (a)while it subsists, binds each owner and each occupier, on whom it is served; and

   (b)while a memorial of the soil conservation notice remains registered under section 34A, binds each successive owner, and each successive occupier, of the land to which the soil conservation notice relates.  (emphasis added)

4. Section 34 of the Act provided:

   Appeal to Minister against service of notice

   (1)An owner or occupier of land who objects to a soil conservation notice served upon him may, within 30 days of service of the notice, appeal against the notice to the Minister by causing written grounds of his objection to be served on the Minister.

   (2)Where an appeal is made under subsection (1) of this section the Minister, after referring the appeal to a committee pursuant to section 39A of this Act and receiving the advice of the committee thereon, shall consider the appeal and notify the applicant of his decision confirming, varying or quashing the soil conservation notice.

   (3)The decision of the Minister is final.

   (4)Where a person is required by a soil conservation notice to refrain from doing anything upon land, the lodging of an appeal by that person under subsection (1) of this section shall not suspend the obligation of that person to comply with that requirement pending the determination of the appeal; but in every other case the lodging of an appeal under subsection (1) of this section shall suspend the obligation of the applicant to comply with the requirements of the notice to which the appeal relates.  (emphasis added)

5. Section 34A provided that the Commissioner may, in effect, deliver a memorial of the notice under s 32 for registration on the title of the land to which the notice relates.

6. Section 34B provided that while the memorial remained registered, each owner and occupier of land must give written notice to a potential successor in ownership or occupation of the binding nature of the notice.

7. Section 38 of the Act provided:

   Discharge of notices

   (1)A notice discharging a soil conservation notice may be served by the Commissioner under this section if the soil conservation notice has been fully complied with or is no longer necessary, or any other just cause exists for discharging it.

   (2)An owner or occupier of land who is bound by a soil conservation notice may from time to time apply in writing to the Commissioner to have the notice discharged pursuant to subsection (1) of this section.  (emphasis added)

8. Section 39 provided that an owner or occupier of land aggrieved by the refusal of the Commissioner to discharge a notice pursuant to s 38 may appeal against the refusal to the Minister.

9. Section 3 of the State Administrative Tribunal Act defines 'enabling Act' as 'another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act'.

10. Upon the commencement of the State Administrative Tribunal (Tribunal) on 1 January 2005, the right of appeal to the Minister under s 34 and s 39 of the Act was removed, and replaced with a right to seek review by the Tribunal.[3] From 1 January 2005, the Act was, therefore, an 'enabling Act'. Rule 10 of the State Administrative Tribunal Rules 2004 (WA) is titled 'extension of time limit'. It provides that the Tribunal, 'on application by any applicant … may extend any time fixed under … an enabling Act … for the commencement of a proceeding', even if the time fixed expired before an application for an extension was made.

    [3] State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), pt 2 div 119, and the State Administrative Tribunal Act.

11. There are also transitional provisions contained in s 167 of the State Administrative Tribunal Act and reg 28 of the State Administrative Tribunal Regulations 2004 (WA). Section 167 of the State Administrative Act deals with the transfer of jurisdiction to the Tribunal in certain circumstances.  Regulation 28(3) of the State Administrative Tribunal Regulations provides, in effect, that (1) if immediately before the commencement day (relevantly, 1 January 2005) the enabling Act under which jurisdiction is conferred on the Tribunal fixed a time for commencing proceedings, that time continues to apply in relation to any application that could have been made before that day; (2) nothing in the State Administrative Tribunal Act or the enabling Act, has the effect of extending or abridging that time; and (3) the time may be extended in accordance with any provision made by, or under, an enabling Act that applied to that application immediately before the commencement day as if that provision had not been amended or repealed. 

12. A party to a proceeding before the Tribunal may appeal from a decision of the Tribunal, but only (relevantly for present purposes) with leave: s 105(1) of the State Administrative Tribunal Act.  An appeal can only be brought on a question of law:  s 105(2).

Background

1. The Notice is dated 30 September 1994.  It directed the appellant's parents (M & B Szulc), as owners, to refrain from carrying out further development on 551 ha of certain land (Land) until they had lodged a satisfactory land management plan.[4]

   [4] Annexure 6 of the affidavit of Glen Alexander Wheaton dated 21 January 2019, page 16.

2. On or about 30 September 1994, the Notice was sent by registered post to M & B Szulc at the address of the Land.[5]  As at 1994, the certificate of title of the Land showed that M & B Szulc were both of that address.[6]

   [5] Annexure 2 of the affidavit of Glen Alexander Wheaton dated 21 January 2019, page 6.

   [6] Annexure 1 of the affidavit of Glen Alexander Wheaton dated 21 January 2019, page 4.

3. On 14 November 1994, the Notice was registered as a memorial on the certificate of title of the Land.[7]

   [7] Annexure 5 of the affidavit of Glen Alexander Wheaton dated 21 January 2019, page 13.

4. In 1994, the Notice was neither directed to, nor served, on the appellant. 

5. Over 19 years later, on 8 October 2013, the appellant purchased his mother's 50% share in the Land.  In 2017, the appellant acquired his father's 50% share in the Land. 

6. Nearly 20 years from the issue of the Notice, on 5 May 2014, the appellant brought an application in the Tribunal to review the Commissioner's decision to issue the Notice in 1994, and sought an extension of time for that purpose. 

7. On 30 May 2014, the matter came on for directions before Parry DCJ.  At the directions hearing, the appellant contended that his mother had not actually been served with the Notice in 1994, because it was not, in his submission, posted to her last known address.  The appellant said that his mother's last known address was contained on a caveat lodged by his mother in 1990 on the certificate of title of the Land.[8]  The appellant contended, moreover, that he was 'informally served' with the Notice when he acquired his mother's 50% share of the Land on 8 October 2013.[9]

   [8] ts 11 - 12, 30/05/14 in DR 143 of 2014.

   [9] ts 10, 30/05/14 in DR 143 of 2014.

8. Parry DCJ said, in effect, that:

   1.The Notice was served in 1994, but not on the appellant because he was not an owner in 1994.[10]

   2.A purchaser of land who becomes bound by a notice may apply under s 38 for a discharge of the notice.[11]

   [10] ts 11, 30/05/14 in DR 143 of 2014.

   [11] ts 11, 30/05/14 in DR 143 of 2014.

9. On 30 May 2014, Parry DCJ dismissed the appellant's application for an extension of time on the grounds that:[12]

   1.The Tribunal did not have power to grant the application. The Notice was issued in 1994. The Tribunal commenced operation in 2005. Rule 10 of the State Administrative Tribunal Rules empowered the Tribunal to extend a time limit imposed by, among other things, an 'enabling Act'.  The Act was not an 'enabling Act'.  The Tribunal could not extend a time that commenced and expired prior to the Tribunal commencing operation.[13]

   2.Even if, hypothetically, the Tribunal had power to extend time to appeal the issue of the Notice, an extension of 20 years was so incredible in the context of a 30 day time frame to appeal as to be almost implausible that it would ever be exercised.[14]

   [12] ts 19, 30/05/14 in DR 143 of 2014.

   [13] ts 3 - 5, 13, 30/05/14 in DR 143 of 2014.

   [14] ts 13, 30/05/14 in DR 143 of 2014.

10. Nearly four years after Parry DCJ's orders, on 13 April 2018, the appellant wrote to the Commissioner advising that he wished to apply under s 34 and s 38(1) of the Act to discharge the Notice.[15]

    [15] Annexure 6 of the affidavit of Glen Alexander Wheaton dated 21 January 2019, page 16.

11. On 18 May 2018, the Notice was discharged by the Commissioner under s 38 of the Act. The Notice is accordingly no longer of any effect.

12. On 20 June 2018, the appellant commenced further proceedings[16] in the Tribunal, purportedly pursuant to s 34 of the Act.  Those proceedings were dismissed as an abuse of process on 20 September 2018 because Parry DCJ had already dealt with the 'exact same' issue in DR 143 of 2014.[17] 

    [16] In DR 145 of 2018.

    [17] ts 6 - 7, 20/09/18 in DR 145 of 2018.

The appeal and the applications in this court

The appeal

1. The application for leave to appeal against Parry DCJ's decision of 30 May 2014 had to be commenced by 27 June 2014.[18]

   [18] Section 105(5)(a) of the State Administrative Tribunal Act.

2. On 6 November 2018, the appellant filed his notice of appeal in this court against Parry DCJ's decision of 30 May 2014. 

3. In the appeal, the appellant sought, in effect:

   1.leave to extend time to appeal the issue of the Notice; and

   2.for the matter to be remitted to the Tribunal for reconsideration.[19]

   [19] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, par 16.

4. The appellant submitted, in effect, that the Notice was 'first informally served … finally meeting the requirements of the Act, when the appellant was both aware of the [Notice] and an owner.  This first occurred on 8 October 2013, the date of the purchase of the 50% share from [his mother]'.[20] In effect, the appellant contended that:

   1.His application before Parry DCJ for an extension of time was only made six months out of time, rather than 20 years. 

   2.Parry DCJ was wrong to find that any right to appeal the Notice had expired 20 years earlier; and

   3.Parry DCJ had jurisdiction to consider an application to extend the time to appeal the Notice.

   [20] Appellant's submissions in support of grounds of appeal filed 12 December 2018, page 5(g).

5. The application for an extension of time to appeal, and leave to appeal, was supported by an affidavit sworn by the appellant on 31 October 2018.[21]

   [21] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018.

6. The appellant's 10 'grounds of appeal' reduce, in effect, to the principal proposition that Parry DCJ should have found that the date of service of the Notice was the date that triggered the running of time to appeal the issue of the Notice.   The appellant submitted that his mother became aware of the Notice in April 2018.

Leave to appeal

1. The appellant wishes to farm the Land.[22]  In support of his application for leave to appeal, the appellant submitted that a number of Supreme Court judgments, and certain subsequent vegetation conservation notices, had been issued on the basis of the Notice.  The appellant submitted that, despite the discharge of the Notice on 18 May 2018, these other matters prevent 'the lawful utilisation of approximately … 25% of the [Land] and exposes [the appellant] and the former owner [his parents] to potential prosecution should enforcement action be undertaken'.[23]

Extension of time to appeal

[22] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, pars 10, 17.

[23] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 3 October 2018, pars 10 - 13.

1. The appellant submitted that the delay in bringing the appeal was attributable to the following factors:

   1.He was unaware that he was required to request reasons for the Tribunal's decision, and only purchased the transcript of the hearing before Parry DCJ in May 2018.[24]

   2.He had been engaged with an ongoing contract dispute with his father relating to the appellant's purchase of his father's 50% share in the Land, which was his primary focus until November 2017.[25]

   3.He had relied on legal advice which had recommending prioritising the resolution of the ownership of the Land.[26]

   4.His lawyers went into receivership in December 2014.[27]

The application to set aside the Notice

[24] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, par 27.

[25] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, pars 28 - 29, 32 - 33.

[26] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, par 30.

[27] Affidavit of Scott Szulc in support of application for leave to appeal and extension of time dated 31 October 2018, par 31.

1. On 5 February 2019, the appellant filed an application for orders that this court:

   1.set aside service of the Notice;

   2.determine that the date of service of the Notice was on 8 October 2013.

2. On 5 February 2019, the appellant filed an affidavit in support of the application, which repeated, in effect, his submissions that his mother was not served with the Notice in 1994 because it was not, in his submission, posted to her last known address.

3. The appellant relied upon s 75(1) of the Interpretation Act 1984 (WA), which provides that service shall be deemed to be effected by posting the document to the last known address of the person to be served.  The appellant said that M & B Szulc had separated in about 1984 and divorced in early 1994.[28]  The appellant submitted that the Commissioner was aware, or should have been aware, that the address of the Land was not the last known address of his mother, because his mother had lodged caveat E507247 on the title in 1990 stating her current address.[29] 

   [28] Affidavit of Scott Szulc in support of application in appeal to set aside service dated 5 February 2019, pars 13, 21.

   [29] Affidavit of Scott Szulc in support of application in appeal to set aside service dated 5 February 2019, pars 16, 20; appellant's submissions in support of grounds of appeal filed 12 December 2018, par 5(b).

Disposition

1. The principles relevant to the question of leave to commence an appeal out of time were summarised in Simonsen v Legge.[30]  In our view, there was no proper basis for extending time to commence the appeal, given (1) the lengthy delay (four years); (2) the absence (in our view) of any proper explanation for the delay; and (3) that the appeal has no reasonable prospects of success.

   [30] Simonsen v Legge [2010] WASCA 238 [8].

2. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[31]  Ordinarily, it will be relevant to consider whether there is sufficient doubt about a question of law to justify the grant of leave, and whether, if the alleged error were to go uncorrected, it would impose substantial injustice.[32] In this case, the appellant has already obtained the fullest amount of relief to which he is entitled as a landowner under s 38 of the Act. No point would be served in granting leave to appeal. Vague assertions of the kind referred to in [35] above provide no basis for the grant of leave.

   [31] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16].

   [32] Paridis [17] - [18].

3. Nor did the appeal have any reasonable prospects of success.  That is so for essentially two reasons.  The first is that the appellant had no standing to seek review of the decision in 1994 to issue the Notice under s 34 of the Act.  The second is that the Tribunal had no power to extend time for review of the decision in 1994 to issue the Notice. 

4. In relation to the first point, the appellant is not a person entitled to seek review of the decision in 1994 to issue the Notice pursuant to s 34 of the Act.  In 1994, the right to seek review under s 34 is conferred on an owner or occupier served with the Notice.  Even if it were assumed that there were no effective service on his mother in 1994 (the caveat relied on by the appellant was not in evidence before this court), the appellant was not served, nor required to be served, with the Notice under the Act.  The Act imposes a requirement of service upon those who are owners or occupiers at the time a notice is issued.[33] It imposes no requirement of service on subsequent owners, who are dealt with by way of memorial of notice registered under s 34A. The appellant became bound, as a successive owner, by the memorial of the Notice under s 32(3)(b) of the Act. In that respect, he was entitled to apply under s 38(2) to discharge the Notice (a right of which he successfully took advantage). But he did not have a right to appeal to the Minister (as at 1994) nor a right to seek review in the Tribunal (as at 2014) under s 34 for the issue of the Notice.

   [33] Section 32(1)(e) of the Act.

5. As to the second matter referred to in [42] above, in 1994, s 34(1) of the Act provided that an owner or occupier who objects to a Notice served upon him may within 30 days of service appeal to the Minister. There was no provision of the Act permitting the Minister to extend time. The Act did not confer jurisdiction on the Tribunal prior to the commencement of the Tribunal (on 1 January 2005), and after the expiry of the s 34 appeal period under the Act, there was no jurisdiction to confer on the Tribunal. Accordingly, the Act was not, relevantly, an 'enabling Act' within the meaning of s 3 of the State Administrative Tribunal Act.[34] The Tribunal's power to extend time pursuant to r 10 of the State Administrative Tribunal Rules was not enlivened.  Accordingly, the Tribunal had no power to extend time for the commencement of the proceedings in the Tribunal in this case.

   [34] See also Cardno BSD and Shire of Busselton [2007] WASAT 267 [24] - [25].

6. Nor do the transitional provisions in s 167 of the State Administrative Tribunal Act and reg 28 of the State Administrative Tribunal Regulations assist the appellant. Section 167(4)(a) applies, in effect, only to matters 'the hearing, consideration or determination of which has been sought or initiated' by the transfer day (1 January 2005). The remaining provisions of s 167(4) and s 167(7) apply only to matters partly or fully heard by, or determined by, the former adjudicator (in this case, the Minister) on the transfer day (1 January 2005). They plainly had no application.

7. Also, relevantly for present purposes, the effect of reg 28(3) of the State Administrative Tribunal Regulations is that any previously applicable time limits and extension powers apply. In this case, even if the Act were, hypothetically, an enabling Act, and even if, hypothetically, the appellant had a right to apply for review under s 34 of the Act (which he does not) the applicable time limit was, relevantly, 30 days with no power to extend time.

Conclusion

1. For these reasons, we made the orders referred to in [3] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CL
Associate to the Honourable Justice Murphy

28 FEBRUARY 2019