Tey v City of Gosnells [No 2]

[2010] WASC 315

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TEY -v- CITY OF GOSNELLS [No 2] [2010] WASC 315

CORAM:   JENKINS J

HEARD:   25 OCTOBER 2010

DELIVERED          :   25 OCTOBER 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 - Decision of the State Administrative Tribunal to affirm decision of executive officer to reject application - Provisional decision that appeal is incompetent - Provisional decision confirmed

Legislation:

Local Government Act 1995 (WA), s 6.77
Rules of the Supreme Court 1971 (WA), O 65 r 7(3)
State Administrative Tribunal Act 2004 (WA), s 44(3), s 44(5), pt 5

Result:

Provisional decision confirmed
Application for leave to appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Tey v City of Gosnells [2010] WASC 216

1. JENKINS J:  (These reasons were delivered orally and have been edited from transcript).  On 19 January 2010, the appellant, Mrs Tey, filed an appeal notice in this court.  The appeal was, or is against the decision of a member of the State Administrative Tribunal (SAT) made on 22 December 2009.  The decision of the member was to affirm the decision of the executive officer of SAT dated 15 September 2009, and to dismiss the appellant's application for a review of that decision.

2. The decision of the executive officer was to reject the appellant's application lodged under s 6.77 of the Local Government Act 1995 (WA).  The appellant, in turn, had earlier lodged what she thought were objections to the rate record in respect of particular property owned by her.  Further background to the matter was set out by me in a provisional decision which I gave on 17 August 2010:  Tey v City of Gosnells [2010] WASC 216.

3. In the reasons for the provisional decision in respect of the appeal I said that the appeal notice filed by the appellant on 19 January 2010 was incompetent. That was because there is no right of appeal from the decision of the member of SAT, pursuant to s 44(5) of the State Administrative Tribunal Act 2004 (WA) (the Act). That subsection says that an appeal cannot be made from a decision of SAT on a matter referred to it under s 44(3) of the Act. In this case, the matter had been referred to the member of SAT pursuant to s 44(3).

4. After I made my provisional decision on 17 August 2010, the appellant filed an application for a hearing of the matter that gave rise to the provisional decision as she was entitled to do by virtue of the Rules of the Supreme Court 1971 (WA) O 65 r 7(3). The application for a review was listed for hearing today.

5. In the course of the administrative procedures leading up to the hearing, the respondent advised the court that it did not wish to be heard at the hearing.

6. Also, Mrs Tey requested in writing that the hearing of my provisional decision be adjourned.  She was advised by letter from my associate that today's date would not be vacated.  This morning, Mrs Tey has again sought an adjournment of today's hearing.

7. The reasons for Mrs Tey applying for an adjournment are threefold.  First she says there is no transcript from proceedings in SAT on 20 November 2009.

8. On 20 November 2009, a directions hearing was held before the member of SAT.  He ordered that the respondent file and serve a bundle of documents relating to the review which was currently before him.  I have a copy of that order, although I do not have a copy of the transcript.  Mrs Tey has not been able to convince me this morning that there was anything that occurred on 20 November 2009 which was relevant to either the decision made by the member of SAT, or to my provisional decision.

9. The application for review was subsequently heard by the member of SAT on 15 December 2009.  He reserved his decision and delivered it on 22 December 2009.  I have the transcript of both of those occasions.

10. I am not satisfied that there is likely to be any benefit in adjourning this hearing for the purpose of obtaining the transcript of 20 November 2009.

11. The second reason given by Mrs Tey for adjourning the hearing today is that on 22 October 2010, she wrote to Justice Chaney, the President of SAT, asking him to inquire into and, in effect, overturn the decision of the member of SAT. 

12. That letter was dated 22 October 2010, some 10 months after the decision of the member was made.  No reason has been put forward by Mrs Tey for the delay in writing that letter to Justice Chaney.  That itself would justify me in not relying upon the letter as a reason for adjourning today's hearing.

13. In addition to that, I have read the letter to Justice Chaney.  I am not convinced that there is anything in that letter which would justify me in adjourning today's hearing.  Mrs Tey submits to me that if Justice Chaney was to overturn the member's decision, then this appeal would be unnecessary and she could withdraw it and not have a decision against her in the appeal.

14. I very much doubt that Justice Chaney has any power to overturn the member's decision, but if he decided that there was some merit in Mrs Tey's letter and he decided to do so, then it does not seem to me that my decision on this appeal, which is based not on the merits of Mrs Tey's appeal, but on the lack of jurisdiction to hear the appeal, would affect Justice Chaney's decision.

15. Thirdly, Mrs Tey asks for an adjournment because she currently has enforcement proceedings against her in respect to these rates, in the Magistrates Court.  The respondent has brought an application for summary judgment against her.  Apparently, that application has been adjourned pending the outcome of this appeal.  I do not think that it is proper for me to delay a decision in respect of this appeal simply so a decision in respect of that application can be delayed further.

16. For these reasons, I refuse Mrs Tey's application for an adjournment.  Mrs Tey makes the point that she is not asking for a long adjournment and that it would not do any harm to adjourn the matter for a short time until she gets a response from Justice Chaney.  On the other hand, a matter should not be adjourned unless there is some reason for a further delay; that is, a meritorious reason for a further delay in its determination.

17. For the reasons I have given, I am not satisfied that there is any merit in any of the matters that Mrs Tey has put up as justifications for an adjournment of this hearing today.

18. As to the substance of the hearing of the matter that gave rise to the provisional decision itself, Mrs Tey does not appear to disagree with the substance of my provisional decision; that is, she appears to acknowledge that s 44(5) operates so that an appeal cannot be brought under pt 5 of the Act from a decision of the tribunal on a matter referred to it under s 44(3).

19. She does not appear to dispute that the matter dealt with by the member of SAT was a matter referred to SAT under s 44(3). After having an opportunity to reconsider the matter, I do not see any error in my provisional decision and I would confirm it for the reasons stated in my reasons of 17 August 2010.

20. What Mrs Tey does say is that there were defects in the rate notice she received, which means that there was substance in the matters she wished to object about in respect of the rate notice.

21. Whether or not that is the case, as I have tried to orally explain to Mrs Tey, it does not alter the fact that this appeal is incompetent. I have not made this decision based on whether or not there is merit in her objection. She may be able to challenge the rate notice by other means; I do not know, but the simple fact is that Parliament has said that she cannot appeal from a decision of a member of SAT on a matter which was referred to the member under s 44(3). That is the way SAT came to make its decision in respect to this matter and consequently, I cannot hear this appeal.

22. For these reasons, I confirm my provisional decision to refuse leave to appeal the decision of SAT made on 22 December 2009.