The Owners of Hubbard House Strata Plan 9814 v McKirdy
[2024] WASC 490
•20 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE OWNERS OF HUBBARD HOUSE STRATA PLAN 9814 -v- MCKIRDY [2024] WASC 490
CORAM: MCGRATH J
HEARD: 2 NOVEMBER 2022
DELIVERED : 20 DECEMBER 2024
FILE NO/S: SJA 1046 of 2022
BETWEEN: THE OWNERS OF HUBBARD HOUSE STRATA PLAN 9814
Appellant
AND
JUSTIN MCKIRDY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M HARRIES
File Number : PE 36399/2021
Catchwords:
Criminal law - Appeal from Magistrates Court - Appeal against a decision to convict - Offence of owner permitting vehicle to park in the Perth Parking Management Area without a licence contrary to s 7 of the Perth Parking Management Act1999 (WA) - Proper construction of s 7 of the Perth Parking Management Act - Whether the appellant the owner under s 7 of the Perth Parking Management Act - Whether the Magistrate erred in construing the word 'permit' in s 7 of the Perth Management Act - Whether the appellant is a strata company within the meaning of s 4 of the Perth Parking Management Act and s 3(1) of the Strata Titles Act1985 (WA)
Legislation:
Perth Management Act 1999 (WA), s 4, s 7
Strata Titles Act1985 (WA), s 3, s 5, s 14
Result:
Leave to appeal not granted on grounds 1, 2 and 3
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr D H Solomon |
| Respondent | : | Mr M I Olds |
Solicitors:
| Appellant | : | Solomon Brothers |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revue [2009] HCA 41; (2009) 239 CLR 27
Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279
Broad v Parish (1941) 64 CLR 588
Carr v Western Australia [2007] HCA 47; (2019) 232 CLR 138
City of Adelaide v Australian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481
Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98
Herman v Simon (1990) 4 ACSR 81
In re Duomatic Ltd [1969] 2 Ch 365
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sztal v The Minister for Immigration and Border Protection [2018] HCA 34; (2017) 262 CLR 362
Tonstate Group Ltd v Wojakovski [2019] EWHC 3363
Tsang v Francis [2021] WASCA 131
MCGRATH J:
The appellant was convicted of one charge, after trial in the Magistrates Court, that whilst being the owner of the property on Strata Plan 9814 at 6 ‑ 10 Douro Place, West Perth in the Perth Parking Management Area (PPM Area), it permitted a vehicle to be parked on the land or in or on the building contrary to s 7 of the Perth Parking Management Act 1999 (WA) (PPM Act).[1] The learned Magistrate imposed a $3,500 fine. The appellant appeals that conviction.
[1] Prosecution Notice charge PE 36399/2021.
The prosecution arises from a protracted dispute between the Department of Transport and the appellant, who owns the property which is commonly referred to as Hubbard House. The Department of Transport contends that the appellant permitted vehicles to be parked on the Hubbard House property without a licence authorising the parking of the vehicles. The appellant disputes that it has any obligation to obtain a licence in respect to the vehicles parked on the Hubbard House property and therefore, it has not held a licence for the parking of vehicles since 2014.
Prior to 2014, the appellant did hold a licence and did so by making the necessary payment to the relevant authority. The appellant unilaterally made the decision to cease holding the permit. The Department of Transport contends that the appellant, by so doing, has acted contrary to the PPM Act.
This appeal raises the question of whether the relevant provisions of the PPM Act and, therefore, the licensing regime operating under that Act, apply to the appellant in respect to the Hubbard House property. The learned Magistrate found that the licensing regime does apply to the appellant. The appellant contends that the learned Magistrate erred in so doing and now appeals on a myriad of grounds, that I must determine.
For the following reasons, I have determined that the relevant provisions of the PPM Act and the licensing regime operating under that Act do apply to the appellant in respect to the Hubbard House property and therefore, the learned Magistrate did not err in convicting the appellant. Accordingly, the appeal against conviction is dismissed.
In these reasons, I will deal with the following:
1.The prosecution case at trial and legislative framework.
2.The Magistrates Court proceedings.
3.The grounds of appeal.
4.An assessment of the grounds of appeal.
The prosecution case at trial & legislative framework
To understand the prosecution case and issues in dispute it is necessary that the legislative framework be outlined. I will return to consider the legislation when considering the appellant's grounds of appeal. The prosecution case at trial concerned whether the appellant contravened s 7 of the PPM Act, which provides:
7.Restricted parking in Perth parking management area
The owner of land or a building in the Perth parking management area must not permit a vehicle to be parked on the land or in or on the building unless -
(a)the land or building is used solely for private residential purposes; or
(b)the owner has a parking bay licence that permits the vehicle to be parked there; or
(c)the vehicle is a prescribed vehicle or is parked in prescribed circumstances.
Penalty: $5 000.
Section 5 of the PPM Act provides:
For the purposes of this Act, the Perth Parking Policy is the policy of that name developed by the CEO in cooperation with the City of Perth, and published in the Gazette with the approval of the Minister, after consultation with -
(a)the Minister to whom the administration of the Planning and Development Act 2005 is for the time being committed by the Governor; and
(b)the Minister to whom the administration of the Environmental Protection Act 1986 is for the time being committed by the Governor.
Section 6 of the PPM Act provides 'an area within the Perth metropolitan area is to be prescribed as the Perth parking management area for the purposes of this Act'.
Section 4 of the PPM Act defines an owner, in relation to land or a building to mean:
(a)if the land or building is part or all of the common property or a lot in a strata titles scheme within the meaning of the Strata Titles Act 1985 section 3(1) - the strata company for that scheme, within the meaning of that Act; or
(b)if the land or building is under the control of an authority of the government of the Commonwealth, a State or a Territory, or of a local government - the authority; or
(c)in any other case - the person who owns the land or building;
Section 4 of the PPM Act provides that 'strata scheme' has the meaning given in the Strata Titles Act 1985 (WA) (ST Act).
Section 3(1) of the ST Act provides that a 'strata titles scheme' means a strata scheme or a survey strata scheme.
Section 3(1) of the ST Act provides that 'strata company' means 'a body corporate established under section 14 on registration of a strata scheme'.
Section 14 of the ST Act provides:
14.Strata company
(1)On registration of a strata titles scheme, a strata company is established for the strata titles scheme.
(2)The name of the strata company is 'The Owners of [the name of the scheme] (survey-strata scheme/strata scheme [according to the type of strata titles scheme] [the reference number allocated to the scheme by the Registrar of Titles])'.
(3)The name of the strata titles scheme is the name stated in the scheme notice.
(4)The address for service of the strata company is the address for service stated in the scheme notice.
(5)A strata company -
(a)is a body corporate; and
(b)has perpetual succession; and
(c)is capable of suing and being sued in its own name; and
(d)has, subject to this Act, all the powers of a natural person that are capable of being exercised by a body corporate.
(6)The governing body of a strata company is the council of the strata company.
(7)A strata company may have a common seal, but it does not have to do so.
(8)A strata company is comprised of the owners for the time being of the lots in the strata titles scheme (who are the members of the strata company).
Clause 2 of sch 5 to the ST Act provides:
2.Continuance of strata titles schemes
(1)The coming into operation of the amending Act does not affect the continued existence of the following -
(a)a strata scheme or survey‑strata scheme;
(b)a lot or common property in a strata scheme or survey‑strata scheme;
(c)an estate or interest in a lot or common property in a strata scheme or survey-strata scheme;
(d)a strata company, its council or its officers.
(2)Each strata scheme for which a strata plan, and each survey‑strata scheme for which a survey‑strata plan, is registered immediately before commencement day is taken to be registered as a strata titles scheme.
(3)The strata plan or survey‑strata plan, the by‑laws of the strata company, and the schedule of unit entitlement for a strata scheme or survey-strata scheme, as registered immediately before commencement day, continue to be registered as scheme documents and can be amended as scheme documents.
I now turn to the elements of the offence charged that the respondent had to prove beyond a reasonable doubt and identify which elements, if any, were not in dispute at the trial.
The offence contrary to s 7 of the PPM Act comprises three elements. First, the identity of an accused as the 'owner' of land or a building. Second, the land or building must be within the PPM Area. Third, the accused 'permitted' a vehicle to be parked on the land or on or in the building. If the three elements are proven beyond a reasonable doubt the accused is guilty unless one of the three exceptions in s 7(a) ‑ (c) inclusive apply. The prosecution is required to positively disprove the exceptions if they have relevantly arisen based on the evidence at trial. The exceptions did not arise to be considered at trial.
The appellant admitted the second element, namely that the relevant land was within the PPM Act. At trial there were three issues, namely the proper construction of the PPM Act, whether the appellant had permitted parking within the meaning of s 7 of the PPM Act and whether the appellant was an owner within the meaning of s 7 of the PPM Act.
The appellant's contention at trial, in short, was that it was not the owner within the meaning of s 7 of the PPM Act. Further, the appellant contends that it did not permit parking of vehicles to occur on the relevant land within the meaning of s 7 of the PPM Act. The prosecution opened on the basis that it was common ground between the parties that the appellant had not given formal permission to the tenants to park the vehicle. Rather, the prosecution's case was that the appellant permitted vehicles to be parked on the common property because it had knowledge of the parking occurring, whether actual or constructive, and it had the authority or power to prevent the parking from occurring.[2]
[2] ts 9 (08/03/2022).
The Magistrates Court proceedings
On 8 March 2022, the trial was held in the Perth Magistrates Court. At the commencement of the trial the appellant made an admission pursuant to s 32 of the Evidence Act1906 (WA) that the property situated at 6 ‑ 10 Douro Place, West Perth is within the PPM Area, as defined in the PPM Area.[3]
[3] ts 16 (08/03/2022).
The prosecution called two witnesses, namely Mr Paul Allison, parking compliance officer employed by the City of Perth,[4] and Mr Tuan Ngo, grant administrator at Perth Parking.[5] The appellant called one witness, namely Ms Kym‑Marie Godfrey, chairperson, secretary and treasurer of the body corporate of the Owners of Hubbard House Strata Plan 9814.[6]
[4] ts 16 - 29 (08/03/2022).
[5] ts 30 - 70 (08/03/2022).
[6] ts 71 - 101 (08/03/2022).
At the commencement of the trial the prosecution tendered a bundle of relevant documents tabulated 1 to 100.[7]
[7] Exhibit 1, Bundle of tabulated documents.
I have read the transcript of each witness and have closely assessed the respective witnesses' testimony and the exhibits tendered at trial. I will outline a succinct summary of the testimony of the three witnesses. It is not necessary to provide a verbatim outline of each witnesses' testimony and therefore, I do not propose to do so.
Prosecution witnesses
Mr Allison, a parking compliance officer at the City of Perth, stated that he holds an appointment as a Perth parking inspector under s 20(1) of the PPM Act and that he inspects properties within the PPM Area to ensure compliance. Mr Allison identified the location of Hubbard House, being a property situated at 6 - 10 Douro Place, West Perth.[8] Mr Allison stated that Hubbard House was within the PPM Area.[9]
[8] ts 19 (08/03/2022); Exhibit 3, Marked‑up version of the Perth Parking Management Area map (tab 2 of exhibit 1); Exhibit 4, Google map showing location of Hubbard House situated at 6 - 10 Douro Place, West Perth.
[9] ts 21 (08/03/2022); Exhibit 3, Marked‑up version of the Perth Parking Management Area map.
Mr Allison described Hubbard House as a two‑storey office building built on columns with car bays below the building. Mr Allison produced a floorplan of the Hubbard House car park.[10] Upon conducting an inspection of Hubbard House, Mr Allison identified that there were 17 carpark bays, with 15 bays under the building, and a further four to six bays at the rear of the property, but stated that there is 'definitely capacity for more'.[11]
[10] Exhibit 5, Floorplan of Hubbard House car park.
[11] ts 23 - 25 (08/03/2022); Exhibit 5, Floorplan of Hubbard House car park.
Mr Allison gave evidence that he attended at Hubbard House to conduct inspections to determine the number of vehicles parked at the premises on the following dates:
1.On 13 October 2020, Mr Allison attended Hubbard House and identified 11 vehicles parked in the car park bays.[12]
[12] ts 25 (08/03/2022).
2.On 3 November 2020, Mr Allison attended Hubbard House and identified six vehicles parked in the car park bays.
3.On 17 November 2020, Mr Allison attended Hubbard House and identified eight vehicles parked in the car park bays.
4.On 7 January 2021, Mr Allison attended Hubbard House and identified four vehicles parked in the car park bays.[13]
5.On 20 January 2021, Mr Allison attended Hubbard House and identified three vehicles parked in the car park bays.
6.On 17 February 2021, Mr Allison attended Hubbard House and identified five vehicles parked in the car park bays.
7.On 3 March 2021, Mr Allison attended Hubbard House and identified two vehicles parked in the car park bays.
8.On 19 March 2021, Mr Allison attended Hubbard House and identified five vehicles parked in the car park bays.
9.On 31 March 2021, Mr Allison attended Hubbard House and identified four vehicles parked in the car park bays.
10.On 8 April 2021, Mr Allison attended Hubbard House and identified three vehicles parked in the car park bays.[14]
11.On 15 April 2021, Mr Allison attended Hubbard House and identified four vehicles parked in the car park bays.[15]
12.On 11 May 2021, Mr Allison attended Hubbard House and identified seven vehicles parked in the car park bays.[16]
[13] ts 26 (08/03/2022).
[14] ts 27 (08/03/2022).
[15] ts 27 - 28 (08/03/2022).
[16] ts 28 (08/03/2022).
In cross‑examination, Mr Allison confirmed that he only conducted the inspections and that he did not exercise any other powers conferred by s 21 of the PPM Act to obtain information or documents from any person. Mr Allison stated that he did not make the decision to commence the prosecution, rather that decision is made by another officer.[17]
[17] ts 29 (08/03/2022).
Mr Ngo, grant administrator at Perth Parking, undertakes the administering of the PPM Act, including directing the compliance team.[18] Mr Ngo stated that the Perth Parking Policy is a land use document that controls parking within the PPM Area. Mr Ngo stated that non‑residential parking bays, comprising tenant parking and non‑residential public parking bays, are licensed with persons paying a fee.[19] Mr Ngo stated that residents with commercial buildings who solely use the parking bay for residential purposes are exempt from the fees.
[18] ts 30 (08/03/2022).
[19] ts 32 (08/03/2022).
Mr Ngo stated that State Revenue is responsible for the licensing of the parking bays. The City of Perth identified property owners through Landgate who receive a licence application for the parking bays. The completed form is assessed by Mr Ngo and the details are sent to State Revenue, who then issue an assessment requiring payment.[20]
[20] ts 34 (08/03/2022).
The cross‑examination of Mr Ngo substantially comprised questions concerning the operation of the Perth Parking Management scheme and Mr Ngo's understanding and interpretation of that scheme.
Appellant's witness at trial
The appellant called one witness, Ms Godfrey, chair and secretary of the strata company known as the Owners of Hubbard House Strata Plan.[21] Ms Godfrey, who has acted in that capacity since 2014, has been the occupier of unit 11 at Hubbard House since 2007.
[21] ts 71 (08/03/2022).
Ms Godfrey stated that the arrangement for parking at Hubbard House was that the owners 'sorted out amongst the group' of owners how parking was allocated on a first-come basis. Ms Godfrey stated that the strata company has never taken any action concerning the allocation or management of the parking bays.[22] Further, there is no external strata manager involved with the parking arrangements. The parking arrangements are made informally by individuals, who are either members of the council of the strata company or not members, to allocate the parking bays.[23] Ms Godfrey accepted that she parks her vehicle at Hubbard House in accordance with the informal arrangement.[24]
[22] ts 74 (08/03/2022).
[23] ts 75 (08/03/2022).
[24] ts 83 (08/03/2022).
In cross‑examination, Ms Godfrey stated that when she became an occupier of Hubbard House in 2007, parking fees were paid on an annual basis. The parking fees were paid annually until the 2014/2015 financial year. By correspondence from Ms Godfrey to the Department dated 15 June 2014, Ms Godfrey stated that the strata company was not going to renew the licence. Ms Godfrey informed the Department that the previous applications for a licence were 'a result of [a] mistaken understanding of the legal obligations of the strata company by its former council members'.[25]
[25] ts 85 (08/03/2022); Exhibit 1, Bundle of tabulated documents, tab 9.
Ms Godfrey stated that the strata company received legal advice regarding the licence. In email exchanges with the Department of Transport, Ms Godfrey confirmed the opinion that the strata company was not in breach of the PPM Act.[26]
[26] ts 86 (08/03/2022); Exhibit 1, Bundle of tabulated documents, tab 17: PA3‑F.
Ms Godfrey confirmed that since 2014, the parking arrangements at Hubbard House have not changed and that the strata company continued to receive an assessment notice annually.[27] During her testimony, Ms Godfrey acknowledged that the strata company was required to comply with the by‑laws and was examined concerning those by‑laws. Further, Ms Godfrey confirmed that the strata company has other legal obligations, such as purchasing insurance in respect to common property.[28]
[27] ts 88 (08/03/2022).
[28] ts 97 (08/03/2022).
Ms Godfrey accepted in cross‑examination that her vehicle was identified as parked in the common property on six of the 15 inspections conducted by Mr Allison.[29]
[29] ts 82 - 83 (08/03/2022); Exhibit 1, Bundle of tabulated documents, tab 13: Inspection Report 13 October 2020; tab 36: Inspection Report 12 November 2020; tab 37: Inspection Report 17 November 2020; tab 46: Inspection Report 8 April 2021; tab 47: Inspection Report 15 April 2021; tab 48: Inspection Report 11 May 2021.
Ms Godfrey identified the licence assessments for the financial years 2015 to 2021 inclusive and confirmed that the assessments have not been paid. Ms Godfrey did not dispute that the outstanding assessments total $170,735.90.[30] Ms Godfrey accepted the proposition in cross‑examination that as a result of the non‑payment of the licence fees, the strata company, and in turn the owners of the property, have 'achieved an enormous benefit'.[31]
[30] ts 98 - 100 (08/03/2022); Exhibit 1, Bundle of tabulated documents, tabs 21 ‑ 28.
[31] ts 100 (08/03/2022).
Magistrate's reasons for decision
I will outline succinctly the learned Magistrate's reasoning in convicting the appellant. The learned Magistrate's reasoning will be outlined in detail when considering the three grounds of appeal.
The learned Magistrate correctly observed that a number of matters were not in contention at trial.[32] Given the admission that Hubbard House was within the PPM Area, her Honour found the second element proven. Further, the learned Magistrate found that there was no dispute that vehicles were parked on the common property at Hubbard House during the relevant period and that parking occurred without a licence under the PPM Act. The learned Magistrate expressly found that the owners of Hubbard House held a licence under the PPM Act from 1999 to 2014, at which time the strata company advised the Department of Finance that it was not applying to renew its parking licence beyond 30 June 2014.[33]
[32] ts 7 (17/05/2022).
[33] ts 7 (17/05/2022).
The learned Magistrate held that on its proper construction, the PPM Act created a regulatory licensing scheme for vehicles parked in non‑residential parking bays within the PPM Area. It did so by prohibiting the unfettered parking of vehicles and only allowing vehicles to park subject to the exceptions in s 7 of the PPM Act and the policy enacted by s 5 of the PPM Act. The learned Magistrate accepted the prosecution construction of the PPM Act that the Act imposed a responsibility on the owner to manage parking on its land or building through the acquisition of a licence for non‑residential bays.[34]
[34] ts 8 - 9 (17/05/2022).
The learned Magistrate stated that to find that the appellant was an owner, the prosecution must prove that the land in question was part of the common property of a strata titles scheme within the meaning of the ST Act and second, that the appellant is a strata company within the meaning of s 4(a) of the PPM Act and s 3(1) of the ST Act. The issue at trial was whether the appellant was an owner. The appellant denied that it was the owner and that the prosecution had failed to prove that element. Her Honour was satisfied that the appellant was an owner within the meaning of s 4(a) of the PPM Act and s 3(1) of the ST Act.
The learned Magistrate was satisfied that the appellant, as the owner, permitted parking of vehicles. Her Honour construed the word permit in accordance with its plain meaning, finding that the appellant had knowledge that vehicles were parking on the common property at Hubbard House without a licence and, having a duty of control and management over the common property, failed to take reasonable steps to prevent that occurring. The appellant denied that it had so permitted the parking.
The learned Magistrate made a number of findings. First, Hubbard House is within the PPM area and that there are 16 parking bays. Second, that the appellant applied for a Perth parking licence and upon payment of the received fee, was issued with that licence during the period 1999 to 2014. Third, that on 15 June 2014 the appellant notified the Department of Transport that it was not applying to renew its parking licence beyond 30 June 2014 for legal reasons. Fourth, between the 2014/2025 financial years and the 2020 financial year the appellant has not paid $170,735.90 in licence fees. Fifth, the appellant has not paid the subsequent infringement notices.[35] Sixth, the reports of the series of inspections undertaken by Mr Allison were accurate.[36]
[35] ts 10 (17/05/2022); Exhibit 1, Bundle of tabulated documents, tabs 21 - 33.
[36] ts 11 (17/05/2022).
Her Honour made a number of factual findings regarding the testimony of the witnesses. Her Honour's findings in that respect are not the subject of the grounds of appeal. Rather, the reasoning of the learned Magistrate in respect to the proper construction of the PPM Act is impugned. I will, though, make the following observations concerning the findings of the learned Magistrate regarding the witnesses.
In respect to Ms Godfrey, the learned Magistrate found her evidence to be 'credible in some respects and strained in others'.[37] The learned Magistrate made the finding that owners of the lots entered into an informal arrangement, namely that they did not have the use of particular parking bays at Hubbard House and could park on a 'first in, best‑dressed basis'.[38] Further, her Honour found that the strata company never gave written approval to an occupier of a lot to park or stand a vehicle on the common property.[39] The arrangement that parking was allocated on an ad hoc basis was referred to as the informal arrangement at trial. I will refer to the parking arrangement at Hubbard House as the 'informal arrangement' in this appeal.
[37] ts 11 (17/05/2022).
[38] ts 21 (17/05/2022).
[39] ts 11 (17/05/2022).
The learned Magistrate stated that Ms Godfrey's testimony regarding the obligations of the strata company to regulate parking on the common property was 'less than satisfactory'. In that regard, her Honour observed that Ms Godfrey gave evidence that the strata company could deal with a vehicle left on the property and install fences to deal with trespassers, but that if an issue arose amongst the lot owners regarding parking, the strata company would not be involved.
The grounds of appeal
Principles applicable to an appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[40]
[40] Criminal Appeals Act 2004 (WA), s 9(1).
The Criminal Appeals Act provides the base upon which an appellant may appeal, relevantly that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.[41]
[41] Criminal Appeals Act, s 8(1)(b).
An appellant must be granted leave of the court to appeal the respective grounds and the court must not grant leave unless satisfied that the ground has a reasonable prospect of succeeding.[42] To have a reasonable prospect of succeeding the ground must have a rational and logical prospect of succeeding, or a real prospect of success.[43] Even if the court might decide a ground of appeal in favour of an appellant, it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[44]
The grounds of appeal
[42] Criminal Appeals Act, s 9(1), (2).
[43] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[44] Criminal Appeals Act, s 14(2); Tsang v Francis [2021] WASCA 131 [163].
The appellant's grounds of appeal may be described as prolix. I make that observation only so that it is understood that from a six‑page notice of appeal I must discern the gravamen of each ground. The appellant relies upon the following grounds:
1.The learned Magistrate erred in law in construing the Perth Parking Management Act 1999 ('PPM Act'):
1.1as imposing a restriction ('Restriction') on all parking of vehicles (as defined s.4 of the PPM Act) ('s.4') on properties within the Perth parking management area (as defined in s.4)('PPMA'); and
1.2.as imposing a duty ('Challenged Duty') on every person coming within the definition of 'owner' in s.4 in relation to any land or building in the PPMA ('owner') to prevent parking of any vehicle on that land or building until a parking bay licence (as defined in s.4) ('licence') permitting that vehicle to be parked has been obtained, unless a licence to permit that vehicle to be parked is not required by reason of s.7(a) or s.7(c) of the PPM Act; and
1.3by not construing the PPM Act as:
1.3.1.not imposing the Restriction or the Challenged Duty; and
1.3.2.imposing a duty, ('Statutory Duty') on every owner to not permit a vehicle to be parked on the land or in or on the building in relation to which the owner comes within the definition of 'owner' in s.4 unless one of the exceptions in s.7(a)‑(c) of the PPM Act applies.
PARTICULARS
A.The Statutory Duty is based on a literal and grammatical construction of s.7 of the PPM Act ('s.7'), construing the word 'owner' in s.7 by inserting into s.7 the applicable person identified by one of the paras of the definition of 'owner' in s.4.
B.The learned Magistrate held that the Restriction and the Challenged Duty were imposed on the proper construction of s.7 in the context of:
(i) ss.5 and 6 of the PPM Act;
(ii)the amended Perth Parking Policy gazetted on 18 November 2014 tendered by the prosecutor ('2014 Policy'); and
(iii) the second reading speech of the Hon. Minister for Local Government on 26 November 1998 in the Legislative Assembly (Hansard pp 4392‑4) ('Second Reading Speech').
C.The learned Magistrate thereby erred in that:
(i)there was nothing in the text of ss.5, 6 and 7 or any other provision in the PPM Act which gave rise to an alternative construction to the Statutory Duty, so that there was no occasion to consider context to resolve an ambiguity in the PPM Act;
(ii)further or alternatively, the 2014 Policy could never be relevant context for construing the PPM Act, which commenced in 1999;
(iii)further or alternatively, although clause 7.5 and Addendum 1 to the 2014 Policy identified that the Perth Parking Policy was gazetted on 16 July 1999 ('1999 Policy'), the prosecutor did not tender or rely on the 1999 Policy and the learned Magistrate did not refer to it;
(iv)further or alternatively, if the 1999 Policy (Hansard 16 July 1999 pages 3235-3243) had been tendered and considered by the learned Magistrate and could constitute context to construe the PPM Act, nothing in the 1999 Policy provides any basis to construe the PPM Act as imposing the Restriction or the Challenged Duty;
(v)further or alternatively, the learned Magistrate erred by not referring to or considering the passage in the Second Reading Speech at Hansard p.4293 (last para) which is consistent with the Statutory Duty and inconsistent with both the Restriction and the Challenged Duty and which identifies how the proposed licence scheme would be implemented:
'Tenant parking operators will be required to license their facilities with Transport and operate in conformity with the Perth parking policy'.
That passage in the Second Reading Speech shows that the prohibition in s.7 was always intended to operate by restricting the granting of permission to park a vehicle being granted by an owner which is a tenant parking operator unless one of the exceptions in paras (a)‑(c) of s.7 applies, so that the intention of the legislature was that a strata company which is an owner under para (a) of the definition of 'owner' in s.4 but is not also a tenant parking operator (as referred to in the Second Reading Speech):
(1)will not infringe s.7 merely because a vehicle is parked on the common property or a lot of the applicable strata titles scheme without a licence issued to the strata company to permit that parking; and
(2)will only infringe s.7 if it actually permits such parking to occur;
(vi)accordingly, there was no context which required, or justified, construing s.7 otherwise than as imposing the Statutory Duty in accordance with its clear and unambiguous language; and
(vii)the learned Magistrate therefore erred in construing the PPM Act based on an assumption of its legislative purpose which had no basis in its text or context.
2.The learned Magistrate erred:
2.1.in holding that, by reason of the existence of the Restriction and the Challenged Duty:
2.1.1.the appellant was subject to a duty of control or interference of the type referred to in the dissenting judgment of Knox CJ in Adelaide Corporation v Australian Performing Right Association Ltd (1928) 40 CLR 481 ('APRA') at 487 to prevent the owners of the lots at Hubbard House implementing the informal arrangement between them (made in their capacity as the proprietors as tenants in common of the common property of Hubbard House ('Common Property') and therefore all entitled to occupy the whole of the Common Property) that any lot owner could park, or permit a tenant or visitor to park, one vehicle on any unoccupied parking space in the Common Property on a 'first come first serve' basis, which arrangement the learned Magistrate found existed ('Informal Arrangement') unless the appellant held licences to permit parking of each vehicle parked pursuant to the Informal Arrangement; and
2.1.2.the Informal Agreement did not bind the Accused by operation of the doctrine of unanimous assent of members of a body corporate ('Doctrine of Unanimous Assent') because, if it did bind the Accused by operation of the Doctrine of Unanimous Assent, the Accused would thereby breach the Challenged Duty; and
2.2.not holding that:
2.2.1.the meaning of 'permit' in s.7 is governed by the judgments of the majority in APRA and later cases consistent with those majority judgments, and therefore requires control in order to permit;
2.2.2.the Accused did not permit parking of any of the vehicles proved by the prosecutor to have been parked on the Common Property between 13 October 2020 - 11 May 2021 ('Relevant Period') because:
2.2.2.1.the Accused did not actively grant permission for any parking during the Relevant Period pursuant to the Informal Arrangement; and
2.2.2.2.the Accused did not haver (sic) power under its by-laws to prevent that parking during the Relevant Period; and
2.2.2.3.further or alternatively, to ground 2.2.2.2, the Accused was not entitled to exercise any power available to it to restrict parking on the Common Property during the Relevant Period under the Informal Arrangement by reason of being bound by, and unable to restrict or interfere with implementation of, the Informal Arrangement by operation of the Doctrine of Unanimous Assent.
3.The learned Magistrate erred in fact and law in holding that the Accused was an owner within the meaning of para (a) of the definition of 'owner' in s.4.
PARTICULARS
A.Because the parking the subject of complaint took place in the Relevant Period, the applicable version of the PPM Act was that in operation during the Relevant Period ('Applicable Version').
B.The amendment to the PPM Act effected by Part 3 Division 13 of the Strata Titles Amendment Act 2018 (which commenced on 1 May 2020) ('STAA 2018') forms part of the Applicable Version.
C.The amendments to the PPM Act effected by Part 14 Division 13 of the Community Titles Act 2018 ('CT Act') (which commenced on 30 June 2021 under proclamation SL 2021/69 in the Government Gazette of 18 June 2021) do not form part of the Applicable Version.
D.Accordingly, throughout the Relevant Period:
(i)the substituted para (a) of the definition of 'owner' in s.4 introduced to the PPM Act by s.159 of the STAA 2018 ('Substituted para (a)') formed part of the Applicable Version; and
(ii)none of the other amendments to s.4 which, from 30 June 2021, were made by s.221 of the CT Act had taken effect.
E.For the appellant to be held to be an owner during the Relevant Period under Substituted para (a), it had to be established that:
(i)there was 'a strata titles scheme within the meaning of the Strata Titles Act 1985 section 3(1)', even though there was no definition of 'strata titles scheme' in s.4 during the Relevant Period ('First Element'); and
(ii)the appellant was 'the strata company for that scheme, within the meaning of that Act' during the Relevant Period ('Second Element').
F.Because Substituted para (a) was included in s.4 by the STAA 2018, the First Element concerns whether there is a strata titles scheme within the meaning of the form of the Strata Titles Act 1985 in force after commencement of the STAA 2018 ('Applicable ST Act'). By reason of clause 6(a) of Schedule 3 construed in accordance with s.228(3) of the Applicable ST Act and clause 2(l)(a) of Schedule 5 of the Applicable ST Act, the strata scheme for Hubbard House is within the First Element because it is a strata scheme within the meaning of the Applicable ST Act.
G.The Second Element requires identification of 'the strata company for that scheme within the meaning of that Act'. Because the term 'strata company' is defined in s.3 of the Applicable ST Act, that definition identifies what is a 'strata company … within the meaning of that Act'. The learned Magistrate erred in law in not applying binding authorities establishing that proposition, namely Producers' Co-Operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523 and, on appeal to the Privy Council, [1947] AC 210.
H.Although the appellant continued to exist after repeal of the Strata Titles Act 1966 ('STA 1966') by operation of clause 4 of the Schedule 3 of the STA 1985 as enacted in 1985, and because that provision continues in effect under s.228(3) of the Applicable ST Act, the appellant was in 1985, and continues, deemed to be constituted under s.32 of the ST Act 1985 as enacted in 1985. Unlike clause 4(b) of Schedule 3 of the Applicable ST Act, nothing in Schedule 5 of the Applicable ST Act ('Schedule 5') (which provides transitional provisions for the STAA 2018) deems a strata company created under the STA 1966 and deemed to be constituted under s.32 of the ST Act 1985 by clause 4(b) of Schedule 3 to be deemed to have been re-constituted on amendment of the STA 1985 by the commencement of the STAA 2018 on 1 May 2020: clause 2(1)(d) of Schedule 5 relevantly provides that the 'coming into operation of the amending Act does not affect the continued existence of ... a strata company'. That provision, read with s.228(3) and Schedule 3 clause 4, clearly shows that a strata company first created under the STA 1966 remains deemed to be constituted as provided in clause 4(b) of Schedule 3, and is not deemed to have been re‑constituted on commencement of the STAA 2018.
I.Accordingly, the learned Magistrate:
(i)erred in fact and law in holding that the Second Element was satisfied with respect to the appellant during the Relevant Period; and
(ii)erred in not holding that the appellant was not, at any time during the Relevant Period, an 'owner'; as defined in Substituted para (a),
for that reason that the appellant was not 'the strata company for that scheme, within the meaning of [the Applicable ST Act]' because the appellant is:
(1)not, and never has been, 'established under section 14 on registration of a strata titles scheme' of the Applicable ST Act or deemed by Schedule 5 of the Applicable ST Act to have been so established; and
(2)therefore not a 'strata company' as defined in s.3(1) of the Applicable ST Act.
The respondent submitted that there are three essential 'errors' alleged in the appellant's grounds, namely:
1.First, that the learned Magistrate erred in her construction of the PPM Act (ground 1).
2.Second, that the learned Magistrate erred in finding that the appellant permitted parking within the meaning of s 7 of the PPM Act (ground 2).
3.Third, that the learned Magistrate erred in finding that the appellant was an 'owner' within the meaning of s 7 of the PPM Act (ground 3).
I accept the respondent's submission that the gravamen of the appeal are the three errors as stated. The three grounds have been particularised comprehensively.
The learned Magistrate's reasoning and findings in respect to the three issues at trial are the subject of the appeal. In effect, the appellant asserts the learned Magistrate erred entirely in respect to her reasoning and findings and therefore, reagitates the contentions made at trial not accepted by the learned Magistrate. I now turn to each of the grounds of appeal.
Assessment of the grounds of appeal
Ground 1 - the proper construction of the PPM Act
By ground 1, the appellant contends that the learned Magistrate erred in her construction of the PPM Act.
The learned Magistrate accepted the construction relied upon by the prosecution at trial in its entirety. I agree with the reasoning of the learned Magistrate.
The learned Magistrate stated that on a plain reading of the PPM Act, the Act creates a licensing scheme for vehicles parked in non‑residential parking bays within the PPM Area. Her Honour determined that the PPM Act restricts the ability to park within the PPM Area. First, by imposing a clear prohibition on unfettered parking within the entire PPM Area. Second, by allowing parking to occur, subject to both the exceptions in s 7 and the Perth Parking Policy enacted by s 5 of the PPM Act. Third, by imposing a responsibility on the 'owner' to manage parking on its land or building by obtaining a licence for non‑residential parking bays.[45]
[45] ts 8 (17/05/2022).
The appellant contends the learned Magistrate erred in law by construing the PPM Act as imposing the restriction on all parking of vehicles on properties within the PPM Area and further, by imposing, in effect, a duty on every person within the definition of owner in s 4 of the PPM Act to prevent parking until a licence permitting the vehicle to be parked has been obtained (unless coming within the exceptions of s 7(a) - (c) of the PPM Act).[46]
[46] Appeal Notice dated 26 May 2022, grounds 1.1, 1.2.
The appellant submits, first, that there was no context which required, or justified, construing s 7 otherwise than in accordance with its clear and unambiguous language. The appellant contends that there was nothing in the text of s 5, s 6 and s 7 nor any other provision in the PPM Act that gave rise to an alternative construction. Accordingly, there was no occasion to consider the context to resolve an ambiguity in the PPM Act.
Second, it is submitted that the learned Magistrate erred in construing the PPM Act based on an assumption of its legislative purpose which has no basis in its text or context.[47] The appellant further contended that the prosecution relied on and tendered the Perth Parking Management Policy 2014 rather than the Perth Parking Management Policy 1999. The appellant contends that the Perth Parking Management Policy 2014 provides no support for the learned Magistrate's preferred construction of s 7 of the PPM Act.
[47] Appeal Notice dated 26 May 2022, ground 1.3C(vii).
Whilst the primary argument of the appellant is that the language of the text was clear and unambiguous, the appellant contends that the learned Magistrate erred by not referring to a further line in the Second Reading Speech which is inconsistent with the construction preferred by the learned Magistrate.
This ground of appeal therefore requires a consideration of the reasoning of the learned Magistrate and in particular, the principles of statutory construction relied upon in determining the meaning to be given to s 7 of the PPM Act.
Her Honour adopted an orthodox and most uncontroversial approach interpreting the statute, applying without error the applicable principles of statutory construction. The learned Magistrate observed that the task of statutory interpretation must begin with the consideration of the text itself and that extrinsic materials cannot be relied on to displace the clear meaning of the text.[48]
[48] ts 7 (17/05/2022).
Her Honour observed that the language which has usually been employed in the text of the legislation is the surest guide to the legislative intention. Further, the meaning of that text may require consideration of its context, which includes the general purpose or policy of the provision, in particular the mischief it is seeking to remedy.[49]
[49] ts 7 (17/05/2022).
Her Honour cited the High Court authority of Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue,[50] and referred to the High Court decision of SZTAL v The Minister for Immigration and Border Protection as stating the contemporary approach to statutory construction.[51] The learned Magistrate cited a paragraph from SZTAL, as follows:[52]
The starting point for the ascertainment of the meaning of the statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage, and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (citations omitted)
[50] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revue [2009] HCA 41; (2009) 239 CLR 27.
[51] SZTAL v The Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL).
[52] SZTAL [14].
The learned Magistrate referred to the prosecution's submissions regarding the proper construction of the PPM Act, stating that she accepted the prosecution's submissions in their entirety.[53] In so doing, the learned Magistrate did not accept the appellant's submissions at trial regarding the proper construction of the PPM Act.
[53] ts 8 (17/05/2022).
Her Honour stated the following in respect to the proper construction of the PPM Act:[54]
In my view, on a plain reading of the Perth Parking Management Act it, relevantly, creates a licensing scheme for vehicles parked in non‑residential parking bays within the Perth Parking Management Area. I accept the prosecution's submission that sections 5, 6, and 7 restrict the ability to park within the Perth Parking Management Area, first, by imposing clear prohibition on unfettered parking within the entire Perth Parking Management Area and, secondly, by allowing parking to occur, subject to both the exceptions in section 7 and the Perth Parking Policy enacted by section 5.
And, thirdly, by imposing a responsibility on the owner of the land or building to manage parking on relevant land or building, relevantly, by obtaining a licence for non‑residential parking bays. I agree with the prosecution's submission that this is supported by part 2, parking bay licences, part 3, offences and infringements, and part 4, administration and general matters of the Perth Parking Management Act.
[54] ts 8 (17/05/2022).
The learned Magistrate referred to the Perth Parking Management Policy 2014 enacted under s 5 of the PPM Act, which provides the purposes of the policy.[55] Her Honour stated as follows:[56]
The policy recognises that vehicular access to and from and within central Perth is a critical element to ensuring its continued economic and social viability. It also continues to recognise the need to preserve and enhance the city's environments.
[55] Exhibit 1, Bundle of tabulated documents, tab 3: Perth Parking Management Policy 2014.
[56] ts 8 (17/05/2022).
The learned Magistrate observed that the policy provides a framework for accessing the likely impact of parking facilities in the broader context of transport and planning objectives for the city, rather than assessing parking licence applications in isolation.[57] The learned Magistrate stated that the revenue raised through licensing of parking spaces within the PPM Area fund and support a balanced transport system within the PPM Area.[58]
[57] ts 8 - 9 (17/05/2022).
[58] ts 9 (17/05/2022).
The learned Magistrate, having determined the proper construction of the provisions by considering the language in the text of the statute and the context and purpose, did so without reference to other extrinsic material. It was not necessary for her Honour to refer to extrinsic material. However, having determined the proper construction her Honour observed that extrinsic material also supports her preferred construction.[59]
[59] ts 9 (17/05/2022).
The learned Magistrate referred to the Second Reading Speech of the PPM Bill in the Legislative Council. Her Honour directly cited a passage from the Second Reading Speech.[60] However, her Honour, whilst referring to the Second Reading Speech, did so without any further comment or application to determining the proper construction of the legislation.
[60] ts 9 (17/05/2022).
The appellant submits that the learned Magistrate erred in her approach to determining the proper construction of the legislative provisions by considering purpose.[61] The appellant relies upon the following passage from Carr v Western Australia:[62]
Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
[61] Appellant's submissions dated 3 August 2022, [12] ‑ [13].
[62] Carr v Western Australia [2007] HCA 47; (2019) 232 CLR 138 [5] ‑ [6] (Gleeson CJ), [52] ‑ [55] (Gummow J).
Further, the appellant submits that the learned Magistrate erred in her approach to statutory construction by erroneously relying on context. The appellant contends that there was nothing in the text of s 5, s 6 and s 7, or any other provision in the PPM Act, which gave rise to an alternative construction to that preferred by the appellant. Therefore, the appellant submits that there was no occasion to consider context to resolve an ambiguity in the PPM Act.[63]
[63] Appeal Notice dated 26 May 2022, ground 1.3C.
The submission is misconceived and misunderstands the approach undertaken by the learned Magistrate to her task of interpreting s 7 of the PPM Act. It appears that the appellant is suggesting that the learned Magistrate should have put context to one side and read the words in s 7 of the PPM Act in isolation. The learned Magistrate, in undertaking the task of ascertaining the meaning of s 7 of the PPM Act, commenced with the text of the statute whilst, at the same time, had regard to its context and purpose. Her Honour correctly had regard to context at the first stage and not later, and did so in an appropriately wide sense. To do otherwise would have been an error.
The appellant contends that in the alternative, the learned Magistrate erred by not referring to or considering the passage in the Second Reading Speech which supports the appellant's preferred construction. The appellant contends that the one line from the Second Reading Speech identifies how the proposed licence scheme would be implemented, which states:[64]
Tenant parking operators will be required to license their facilities with Transport and operate in conformity with the Perth Parking policy.
[64] Appeal Notice dated 26 May 2022, ground 1.3C(v).
The appellant's reliance on a single line in the Second Reading Speech is misplaced and does not advance the construction preferred by the appellant. Given that her Honour did not find s 7 of the PPM to be ambiguous, it was not necessary to consider additional extrinsic material.
Properly understood, the learned Magistrate placed no reliance on extrinsic material in determining the proper construction of the legislative provisions given that she had determined the preferred construction on a plain reading of the text of the statute, noting that the prosecution's submissions were preferred and accepted. Her Honour was no more than turning to the Second Reading Speech to affirm her conclusions based on the plain reading of the text. In that regard, the learned Magistrate did not err. Her approach in so doing was most orthodox. In any event, the Second Reading Speech supports the construction of s 7 preferred by the learned Magistrate.
Further, whilst the appellant submits that the learned Magistrate referred to the 2014 Parking Policy rather than the Perth Parking Policy 1999,[65] it must be understood that the paragraphs from the 2014 Policy relied upon by the learned Magistrate are in almost identical terms, as the 1999 Parking Policy.[66] The learned Magistrate's reasoning is therefore not affected by referring to the most recent parking policy.
[65] ts 8 - 9 (17/05/2022).
[66] Perth Parking Management Regulations 1999, Perth Parking Policy, Western Australian Government Gazette, Friday, 16 July 1999, No 137.
The contention that the learned Magistrate erred in construing the PPM Act based on an assumption of its legislative purpose which had no basis in its text or context is not accepted. It is clear that the learned Magistrate did not do so.
Accordingly, I am not satisfied that ground 1 has been made out. Leave to appeal on ground 1 is not granted.
Ground 2 - whether the appellant 'permitted parking'
By ground 2 the appellant contends that the learned Magistrate erred in holding that the appellant permitted parking of any vehicles on the common property and thereby erroneously found this element proven.
The appellant's contention is that the lot owners, who are the only members of the appellant and who own the common property as tenants in common, pursuant to the informal arrangement, themselves permitted each of the lot owners or a tenant or a visitor of each lot owner to park a vehicle at any time in an unoccupied space in the common property.[67] Therefore, her Honour erred, first in finding that the appellant in fact permitted parking and second by applying the incorrect test of 'permit'.
[67] Appellant's submissions dated 3 August 2022, [27].
The prosecution case at trial was that a thing can be permitted in one of two ways. First, if leave is given for the thing to occur, namely 'direct permission'. Alternatively, a thing can be permitted if two components are met: (a) there is knowledge (actual or constructive) of the thing taking place; and (b) there is authority or power to prevent that thing from occurring. The prosecution relied upon the second means by which a thing may be permitted.
The learned Magistrate stated that in respect to the element as to whether the appellant 'permitted' a vehicle to be parked on the land without a licence, she accepted the prosecution submissions in their entirety.[68] Her Honour did not err in so finding.
[68] ts 19 (17/05/2022).
The learned Magistrate construed the meaning of 'permit' by reference to the meaning given to the word by Hall J in Coffey LPM v The Contaminated Sites Committee [No 2]:[69]
A person permits something if they have knowledge of it and the authority or power to prevent it occurring. The knowledge required may be actual knowledge or knowledge of circumstances such that it could be said that they shut their eyes to the obvious or allowed something to go on not caring whether it occurred or not: Grays Haulage v Arnold [1966] 1 All ER 896, 898.
[69] Coffey LPM Pty Ltd v The Contaminated Sites Committee[No 2] [2013] WASC 98 [95] - [96].
The learned Magistrate observed that the test applied by Hall J in Coffey LPM v The Contaminated Sites Committee is in accord with the test outlined by Knox J in City of Adelaide v Australian Performing Right Association Ltd.[70]
[70] City of Adelaide v Australian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481.
The learned Magistrate construed the word 'permit' in accordance with its plain meaning, stating that it means:[71]
[W]here the party charged knows or has reason to anticipate or suspect that the particular act is likely, is to be or is likely to be done, has the power to prevent it, makes some default in some duty of control or interference arising under the circumstances of the case and, therefore, fails to prevent it.
[71] ts 25 (17/05/2022).
The learned Magistrate stated that the taking of 'reasonable steps' is relevant to the question of whether the appellant defaulted in respect to some duty of control or interference arising under the circumstances of the case.[72]
[72] ts 25 (17/05/2022).
The learned Magistrate made a number of findings in respect to the element, namely whether the appellant 'permitted' the vehicles to be parked.
First, the learned Magistrate found that the appellant had knowledge that vehicles were being parked on the common property at Hubbard House without a licence permitting the respective vehicles being parked at that location.[73] Her Honour correctly stated that it was not in dispute at trial that vehicles were parked on the land during the relevant time by the owners and tenants. Further, it was not in dispute at trial that no licence was acquired during the relevant period by the appellant under the PPM Act. Her Honour referred to the evidence at trial, namely the correspondence between the Department of Transport and the appellant, the inspection reports and the testimony of Ms Godfrey.
[73] ts 26 (17/05/2022).
Second, the learned Magistrate found that the appellant had a duty of control and management over the common property at Hubbard House. This finding was central to her Honour's finding that the appellant had the power to prevent parking and failed to exercise that power.
Her Honour stated that the appellant must comply, and enforce compliance with, the by‑laws in sch 2 (the by‑laws) to the ST Act. Her Honour specifically referred to by‑law 1, stating:[74]
An owner or occupier of land must not park or stand any motor vehicle on the common property except with the written approval of the strata company.
[74] ts 27 (17/05/2022).
Her Honour found the regime was enacted by the ST Act and therefore, the strata company has the duty of control and management over the common property for the benefit of all owners and has a function of enforcing compliance with by‑laws despite the statutory conferral of proprietary rights to common property on the lot owners.[75]
[75] ts 27 (17/05/2022).
The learned Magistrate stated that the appellant is 'legislatively enabled' to regulate parking on the common property.[76] Her Honour stated that the appellant has the power to purchase a licence, and to prevent parking until a licence was obtained by enforcement of by‑law 1 in the exercise of its duty to control and manage the use of common property for the purposes of s 7 of the PPM Act.[77]
[76] ts 27 (17/05/2022).
[77] ts 28 (17/05/2022).
As I have observed, the appellant raises two issues within the terms of the ground of appeal. First, the contention that the learned Magistrate applied the incorrect definition of 'permit' and thereby the incorrect applicable test. Second, the learned Magistrate erred in finding that the appellant permitted parking.
The appellant contends that the appellant did not permit parking because it did not actively grant permission pursuant to the informal arrangement and further,[78] the appellant did not have power under the by‑laws to prevent parking.[79]
[78] Appeal Notice dated 26 May 2022, ground 2.2.2.1.
[79] Appeal Notice dated 26 May 2022, ground 2.2.2.1.
In addition, the appellant submitted that, in any event, it was not entitled to exercise any power available to it to restrict parking under the informal arrangement by operation of the doctrine of unanimous assent.[80]
[80] Appeal Notice dated 26 May 2022, ground 2.2.2.3.
The appellant contends that in order to 'permit', there must be control. The appellant relies upon the majority judgments in City of Adelaide v Australasian Performing Right Association Ltd and Broad v Parish.[81]
[81] Broad v Parish (1941) 64 CLR 588.
The majority in Broad v Parish held that the use of a vehicle by a hirer under a hire purchase agreement was relevantly permitted by the owner.[82] Counsel for the appellant submitted that based on the analysis in Broad v Parish, the proprietors of the common property and their tenants have, pursuant to the informal arrangement, permitted parking on the common property of Hubbard House.[83] Therefore, the appellant did not actively grant permission for any parking to occur.
[82] Broad v Parish, 593.
[83] Appellant's submissions dated 30 March 2022, [12.5].
Underlying the contention of the appellant is that the informal arrangement between the proprietors of the common property and the tenants permitted the parking, and that the appellant is unable to permit or withdraw permission that the proprietors and tenants have enabled by their common agreement. The reasoning of the appellant is erroneous.
The appellant failed to act in accordance with its duty to control and manage the common property by purchasing a licence and thereby permitted vehicles to be parked on the property contrary to the PPM Act. The appellant had knowledge of the parking occurring and had the power or authority to purchase the licence, thereby preventing the contravention occurring. Moreover, as the learned Magistrate found, the appellant has the power and obligation to ensure that vehicles are parked on the common property in accordance with the by‑laws.[84]
Doctrine of unanimous assent
[84] ST Act, s 112.
The appellant contends that the learned Magistrate erred by finding that the informal agreement did not bind the appellant by operation of the doctrine of unanimous assent. The appellant contends that it was unable to exercise any power available to it to restrict parking on the common property by reason of the doctrine of unanimous assent. The appellant was unable to regulate parking on the common property because, even if it could, it is bound by the unanimous assent of the lot owners to comply with their informal arrangement. The informal arrangement is how the parking is regulated at Hubbard House and by the doctrine of unanimous assent, the appellant is, in effect, automatically bound by the consent of the owners. Therefore, the appellant could not have permitted the parking.[85]
[85] Appellant's submissions dated 20 April 2022, [5.9] - [5.10].
The learned Magistrate expressly considered the doctrine of unanimous assent, finding that the doctrine had no application for the reason that the common law limitation on the doctrine of unanimous assent applies in the circumstances.[86] Her Honour stated that the common law limitation was that the appellant's members cannot agree to do something that the body corporate is not lawfully able to do itself.[87] Her Honour referred to a line of UK authority for the proposition that if a body corporate could not lawfully do what was done, then the unanimous assent of all members cannot alter that position.[88] Her Honour referred to Tonstate Group Ltd v Wojakovski in support of that contended principle.[89]
[86] ts 28 (17/05/2022).
[87] ts 28 (17/05/2022).
[88] ts 28 (17/05/2022).
[89] Tonstate Group Ltd v Wojakovski [2019] EWHC 3363 (Tonstate).
The learned Magistrate, having determined that the parking of vehicles at Hubbard House must comply with the PPM Act, reasoned that the appellant's members cannot unilaterally agree to park vehicles other than in accordance with the PPM Act and then by the doctrine impute that agreement to the appellant and thereby be enabled not to comply with the statutory obligation.
The appellant submits that the learned Magistrate erred in so finding.[90]
[90] Appeal Notice dated 26 May 2022, ground 2.2.2.3.
The appellant's contention is that where there is unanimous assent of the members of a body corporate to a matter, that unanimous assent is binding on the body corporate because it is equivalent to the body corporate having decided the matter in accordance with its constitution and other applicable requirements. Therefore, the effect of the doctrine of unanimous assent of members is that the strata company is deemed to have given written approval under by‑law 1 to parking on the common property by the appellant's members and their visitors in accordance with the informal agreement. Therefore, the strata company is taken to have approved, and is bound, by the informal agreement. The appellant in support of the contention relied upon:[91] In re Duomatic Ltd,[92] MYT Engineering Pty Ltd v Mulcon Pty Ltd,[93] and Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd.[94]
[91] Appellant's submissions dated 30 March 2022, [12.7.2].
[92] In re Duomatic Ltd [1969] 2 Ch 365.
[93] MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 [24].
[94] Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279, 315.
Accordingly, it is contended that the learned Magistrate erred in holding that the appellant permitted parking of any vehicles on the common property.
Further, the appellant submits that the authority relied upon by the learned Magistrate, namely Tonstate, establishes that the doctrine of unanimous assent does not apply where the conduct of the members involves a dishonest breach of duty which the corporation itself could not lawfully carry out. The appellant submits that the learned Magistrate erred by omitting the element of dishonesty in holding that if a corporate body could not lawfully do what was done, the unanimous assent of all of its members cannot alter that.[95]
[95] Appellant's submissions dated 3 August 2022, [26.1].
In Tonstate, it was accepted that the principle does not apply where the acts in question are ultra vires for an improper purpose.[96] The court considered whether there is a 'wider limitation, to the effect that the Duomatic principle cannot apply where the breach of duty is dishonest'. The court determined that it was unnecessary to consider the precise limits of an exception to the Duomatic principle based upon dishonesty, for the reason that the court was satisfied 'that it cannot apply to the conduct which the company could not lawfully carry out itself'.[97] Accordingly, the appellant's submission that the authority of Tonstate establishes that the doctrine of unanimous assent does not apply to conduct that involves a dishonest breach is not accepted.
[96] Tonstate [11].
[97] Tonstate [14].
I make one further observation regarding the Duomatic principle and that it is a doctrine primarily concerning the dispensing with the consumptive effect of formalities. The Duomatic principle goes to waiver of formalities as distinct from substantial rights. In MYT Engineering Pty Ltd v Mulcon Pty Ltd, the High Court, in considering the application of the principle to a deed of company arrangement, stated that if all the corporators agree that the instrument should be executed, there is no separate question about whether the company assented to it.[98] The question is about the sufficiency of the manifestation of assent.
[98] MYT Engineering Pty Ltd v Mulcon Pty Ltd [24].
The contention of the appellant, properly understood, is that the strata company may reach an informal arrangement to avoid a parking licence scheme that applies to owners and thereby, rely upon the doctrine to, in effect, bypass a regulatory scheme in order to not make payment of licensing fees that is required by the statute. I do not accept that submission. The appellant is bound by the relevant legislative provisions which require adherence to the legislative regulatory framework and the submission that an ad hoc arrangement by the tenants to, in effect, bypass the requirement that the appellant undertakes its lawful obligation to make payment, is misguided and erroneous. In effect, the appellant is contending that persons can collectively recite themselves from complying with lawful obligations imposed by the Parliament and in this case, provide a shield to the proper application of s 7 of the PPM Act.
The appellant cannot rely upon the doctrine to assert that it is, in effect, bound by the informal arrangement. The appellant can act to prevent parking on the property but instead chooses not to comply with its lawful obligation.
Ground 2 has not been made out. Leave to appeal is not granted on ground 2.
Ground 3 - 'owner' within the meaning of s 4(1) of the PPM Act and s 3(1) of the ST Act
By ground 3 the appellant contends that the learned Magistrate erred in fact and law in holding that the appellant was an owner within the meaning of s 4(a) of the PPM Act. The ground is pleaded over three pages but appears to be able to be distilled into the contention that the learned Magistrate erred in undertaking her task of statutory construction in determining whether the appellant was a strata company.
I will outline the reasoning of the learned Magistrate concerning whether the appellant is the owner of the relevant land. The learned Magistrate relied, without error, on the definition of owner in s 4(a) of the PPM Act and s 3 of the ST Act. In relying upon the definition of owner, the learned Magistrate then applied that definition in accordance with established principles of statutory construction. That is, as a matter of statutory construction, the words of the definition are to be read into the substantive provision, and then the substantive provision is to be construed in its context bearing in mind its purpose and the mischief it was designed for.[99]
[99] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, 253 [103] (McHugh J).
The learned Magistrate correctly recognised that there are relevantly two parts to the definition of 'owner' that the prosecution must prove beyond a reasonable doubt. First, that the land is part of or all of the common property of a strata titles scheme within the meaning of the ST Act. Second, the owner is a 'strata company for that scheme, within the meaning of the ST Act'.
First component - whether the land is part of or all of the common property of a strata titles scheme
The first component requires that the land where parking is occurring is common property and that common property be in a strata titles scheme within the meaning of s 3(1) of the ST Act. The learned Magistrate accepted the prosecution's submissions in respect to this component.[100] Her Honour observed that this issue was not in dispute given the concession by the appellant regarding this issue.[101] Given that the learned Magistrate accepted the prosecution's submissions, I will briefly outline the relevant provisions that were applicable.
[100] ts 12 (17/05/2022).
[101] ts 12 (17/05/2022).
The Strata Plan, which was registered on 10 December 1981, complied with the definition of 'strata plan' in the Strata Titles Act1966 (1966 Act), which was in force at that time. Subsequently, the 1966 Act was repealed and replaced by the ST Act, which commenced on 30 June 1985 (1985 Act). The transitional provisions in sch 3 of the ST Act governed the transition of existing strata plans between the 1966 Act and the ST Act.[102]
[102] ST Act, sch 3.
Pursuant to the transitional provisions in the 1985 Act, the ST Act applied to the Strata Plan as a 'former strata scheme as if it were a strata scheme'. From 30 June 1985, the Strata Plan was treated as a 'strata scheme' for the purpose of the ST Act.
The Strata Titles Amendment Act2018 (2018 Amending Act) commenced on 1 May 2020 and made significant amendments to the ST Act. That Act is the relevant ST Act operative between 13 October 2020 and 11 May 2021, and remains currently in force.
The transitional provisions in sch 5 of the ST Act governed the transition of existing strata plans between the 1985 Act and ST Act. Pursuant to the transitional provisions, each strata scheme for which a strata plan is registered immediately before the commencement day is taken to be registered as a strata titles scheme.[103] Accordingly, on and from the commencement day, 1 May 2020, the Strata Plan is taken to be registered as a strata scheme for the purpose of the ST Act.
[103] ST Act, sch 5, cl 2(2).
Therefore, the common property on the Strata Plan is part of the common property in a strata titles scheme within the meaning of s 3(1) of the ST Act.
Second component - whether the appellant is a strata company within the meaning of s 4(a) of the PPM Act and s 3(1) of the ST Act
The second component concerns whether the appellant is the 'strata company' for that scheme within the meaning of s 4(a) of the PPM Act and s 3(1) of the ST Act. This was an issue in dispute at trial.
The primary finding of the learned Magistrate was that the appellant was a 'strata company' within the meaning of s 3(1) of the ST Act for the reason that the transitional provisions deemed the strata scheme for Strata Plan 9814 to be registered as a strata titles scheme 'within the meaning of the ST Act'.[104] Therefore, upon registration of a strata titles scheme, a strata company is established for the strata titles scheme pursuant to s 14 of the ST Act.[105]
[104] ST Act, sch 5, cl 2(2).
[105] ts 17 - 18 (17/05/2022).
The learned Magistrate, in the alternative, found that the words 'within the meaning of the ST Act' in the definition of owner has more than one meaning. First, strata companies incorporated before 1 May 2020 are given meaning by the transitional provisions in sch 5 of the ST Act. Second, strata companies incorporated after 1 May 2020 have the meaning given by s 3(1) of the ST Act.
The appellant was incorporated before 1 May 2020. Upon commencement of the ST Act on 1 May 2020, a definition of strata company was included in s 3(1) to mean the 'body corporate established under section 14 on registration of a strata titles scheme'. However, cl 2(1)(d) of sch 5 to the ST Act provides for the continued existence of, amongst other things, a strata company by providing that 'the coming into operation of the amending Act does not affect the continued existence of a strata company, its council or its officers'.
The appellant, having been registered prior to 1 May 2020, continued its existence pursuant to sch 5.
In finding that there may be two alternative meanings of the words 'within the meaning of the ST Act', her Honour considered the PPM Act and the ST Act. Her Honour stated that the words 'within the meaning of the ST Act' may be broadly interpreted on a plain reading of those words within the PPM Act for the reason that the PPM Act and the ST Act may be construed as inter‑related so as to produce a sensible, efficient and just operation and because the ST Act preserves the continuity of former strata companies and strata schemes, and the definition of owner in the PPM Act, following amendment, remains broad.[106]
[106] ts 18 - 19 (17/05/2022).
The appellant contends the learned Magistrate erred in both fact and law in finding the appellant was an owner within the meaning of s 4(a) of the PPM Act. The grounds of appeal appear to assert two primary complaints. First, that the learned Magistrate relied upon the incorrect version of the PPM Act and thereby erroneously interpreted the legislation. Second, the appellant is not and has never been 'established under section 14 of a strata titles scheme' of the ST Act, nor deemed by sch 5 of the ST Act to have been so established.[107] Both grounds are particularised in detail in the Notice of Appeal.
[107] Appeal Notice dated 26 May 2022, grounds 3I(i), (ii).
It is accepted by the respondent that the incorrect version of the PPM Act was provided to the learned Magistrate. However, in both the incorrect version and the applicable version, s 7 of the PPM Act were in identical terms. The relevant section subject to amendment was s 4 of the PPM Act.
The appellant correctly states that the amendment to the PPM Act effected by pt 3 div 13 of the 2018 Amending Act forms part of the applicable version of the PPM Act. It is the applicable version given that the allegation in the charge is that the offending conduct occurred between 13 October 2020 and 11 May 2021. The amendment introduced by s 159 of the 2018 Amending Act inserted the amended definition of 'owner', which is being relied upon in this appeal, namely:
(a)If the land or building is part or all of the common property or a lot in a strata titles scheme within the meaning of the Strata Titles Act1985 section 3(1) - the strata company for that scheme, within the meaning of that Act.
The contention of the appellant therefore is whether, in light of the amendment to the definition of s 4, the appellant is, on the proper construction of s 4(a) of the PPM Act as amended, 'the strata company for that scheme, within the meaning of the ST Act'.
The appellant's submission is that given that there was no issue that the common property of Strata Plan 9814 was 'land [that was] part or all of the common property or a lot within the meaning of the ST Act, section 3(1)', the paramount issue was how the appellant, a strata company, deemed constituted under s 32 of the ST Act, was the strata company for that strata titles scheme, within the meaning of that Act.
The appellant contends that it was not established that the appellant was reconstituted or deemed reconstituted under s 14 of the ST Act and, therefore, the learned Magistrate should have held that the appellant was not an 'owner' as defined in s 4 of the PPM Act.
The appellant's contention of reconstitution of the appellant as a strata company is misconceived.
The learned Magistrate held that the appellant was brought within the meaning of s 14 of the ST Act by the transitional provision deeming the strata scheme (strata scheme 9814) to be registered as a 'strata titles scheme'. Thereby, having been deemed to be registered as a 'strata titles scheme', s 14 of the ST Act established the appellant as a strata company for the purposes of the ST Act. The reasoning of the learned Magistrate is without error.
The learned Magistrate correctly held that the ST Act preserves the continuity of former strata companies and strata schemes. Her Honour observed that the PPM Act was amended at the same time as the applicable ST Act and that the definition of 'owner' in the PPM Act remained broad. The learned Magistrate correctly observed that the appellant's submission that a body corporate established under the previous Act was not a strata company within the meaning of the current Act for the purposes of the PPM Act is contrary to the plain meaning and purpose of the legislation. As I have observed her Honour found that her preferred construction of the legislation produces a sensible, efficient and just operation of the PPM Act and the ST Act.[108]
[108] ts 19 (17/05/2022).
The appellant further states in ground 3 that the amendments to the PPM Act effected by pt 14 div 13 of the Community Titles Act2018 (WA) (CT Act), which commenced on 30 June 2021, do not form part of the applicable version of PPM Act. The CT Act amended s 4 by inserting, relevantly, a new definition of common property and expanded the definition of 'owner' in the PPM Act to include the owner of a new form of land tenure introduced by the CT Act, namely the owner of a community title. The learned Magistrate did not find that the appellant was an 'owner' under the PPM Act by reference to it holding a community title. The amendment made by the CT Act is not relevant and has no bearing on any fact in issue at the trial.
The appellant's contentions agitated before the learned Magistrate and not accepted, and now reagitated, are not made out on appeal. Leave to appeal is not granted on ground 3.
Conclusion
Accordingly, leave to appeal is not granted on grounds 1, 2 and 3 and thereby the appeal is taken as dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PB
Associate to the Judge
20 DECEMBER 2024
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