Tey v City of Gosnells

[2010] WASC 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   TEY -v- CITY OF GOSNELLS [2010] WASC 216

CORAM:   JENKINS J

HEARD:   ON THE PAPERS

DELIVERED          :   17 AUGUST 2010

FILE NO/S:   GDA 1 of 2010

BETWEEN:   KOK YONG TEY

Appellant

AND

CITY OF GOSNELLS
Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MR M SPILLANE (MEMBER)

File No  :SAT ACT 3 of 2009

Catchwords:

Appeal - Application for leave to appeal from decision of State Administrative Tribunal to affirm decision of executive officer to reject application - Application for leave to appeal incompetent

Legislation:

Local Government Act 1995 (WA), s 6.76, s 6.77
State Administrative Tribunal Act 2004 (WA), s 44(1), s 44(3), s 44(5), pt 5

Result:

Application for leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance (on the papers)

Respondent:     No appearance (on the papers)

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Nil

1. JENKINS J:  On 8 September 2009 the appellant applied to the State Administrative Tribunal (the Tribunal) for a review of what she said was the decision of the respondent to disallow what she said was her objection to the rate record of the respondent in respect of land owned by her.

2. On 15 September 2009 Alistair Borg, the executive officer of the Tribunal, wrote to the appellant and advised her that her application had been rejected because there did not appear to have been a decision by the respondent on the objection she had raised.

3. It is unnecessary for the present purposes to go into the reasons for that decision.  It is sufficient to say that the form of application to the Tribunal completed by the appellant required her to insert details about the 'reviewable decision'.  In the space where she was to insert those details she had stated 'no reply to date from CEO of City of Gosnells'.  The Local Government Act 1995 (WA) s 6.77 provides that a person who is dissatisfied with the decision of a local government on an objection by that person under s 6.76 (which is the section which deals with objections to the rate record) may apply to the Tribunal for a review of the decision.  It seems that, given the information provided by the appellant in her application form, Mr Borg did not consider that the respondent had made a decision.

4. Mr Borg's letter advised the appellant that under the State Administrative Tribunal Act 2004 (WA) s 44(3) she had the right to request a review of the decision to reject her application.

5. By letter dated 15 October 2009 the appellant sought a review of the decision to reject her application.

6. The State Administrative Tribunal Act s 44(1) provides that the executive officer may reject an application to the State Administrative Tribunal on grounds including that it does not comply with the State Administrative Tribunal Act or the enabling Act. Section 44(3) states:

   (3)If, under subsection (1) or (2), the executive officer rejects an application or accepts an application on conditions -

   (a)the applicant may request the executive officer to refer to the Tribunal for a review of the decision to reject the application or accept the application on conditions or a review of any condition imposed; and

   (b)the executive officer is to refer the decision or condition to the Tribunal for a review if requested under paragraph (a) to do so.

7. A review hearing was heard before a member of the Tribunal on 15 December 2009.  The member reserved his decision to 22 December 2009.  On that date he delivered his oral reasons for affirming the decision of the executive officer to reject the appellant's application.  He dismissed her application for a review of that decision.  Essentially, the member's reasons were that letters written by the appellant to the respondent in respect of the relevant rate record were not objections which complied with the Local Government Act s 6.76 in that they did not refer to s 6.76 or to any of the limited grounds of objection specified in that section.  Thus, the respondent's letter in reply dated 20 August 2009 was not a decision which satisfied the Local Government Act s 6.77.  These factors meant that there had been no decision of the respondent on an objection by the appellant, which could be the subject of an application to the Tribunal for a review, pursuant to the Local Government Act, s 6.77.

8. On 19 January 2010 the appellant filed an appeal notice in this court purporting to appeal from the member's decision made on 22 December 2009.

9. The State Administrative Tribunal Act, s 44(5) states:

   (5)An appeal cannot be made under Part 5 from a decision of the Tribunal on a matter referred to it under subsection (3) or (4).

10. The State Administrative Tribunal Act pt 5 provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding if the court to which the appeal lies gives leave to appeal. There is no other statutory provision which creates a right of appeal from the member's decision. From the terms of s 44(5) it is apparent that this appeal is incompetent. There being no right of appeal from the decision of the member, my provisional decision is that the appellant's application for leave to appeal to this court is refused and the appeal is dismissed.