VAN OIJEN and SHIRE OF CUBALLING - [2024] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   VAN OIJEN and SHIRE OF CUBALLING [2024] WASAT 109
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   9 AUGUST 2024
DELIVERED          :   9 AUGUST 2024
PUBLISHED           :   20 SEPTEMBER 2024
FILE NO/S:   DR 58 of 2024
BETWEEN:   WILHELMUS TOBIAS VAN OIJEN
Applicant

AND

SHIRE OF CUBALLING
Respondent

Catchwords:

Abuse of process - Decision of the local government - Powers of Tribunal under s 47 State Administrative Tribunal Act 2004 (WA) - Finality of litigation

Legislation:

Local Government Act 1995 (WA), s 6.76, s 6.77, s 6.82
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(c), s 47(2), s 105
Valuation of Land Act 1978 (WA), s 33

Result:

Application struck out as an abuse of process

Category: B

Representation:

Counsel:

Applicant	:	By Video
Respondent	:	Mr S Scott

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Van Der Feltz v City of Vincent [2017] WASAT 153
Van Oijen and Shire of Cuballing [2024] WASAT 24

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations, for the purposes of correcting grammatical errors or infelicity of expression and to add relevant authorities and footnotes.)

Introduction

On 1 November 2023, Mr van Oijen applied to the Tribunal under s 6.77 of the Local Government Act 1995 (WA) (LG Act). That proceeding was given the identifying number DR 163 of 2023.
Section 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 may apply to the Tribunal for review of that decision.
Section 6.76 of the LG Act provides a right to object to the rate record of a local government on one of three grounds:
(1)if there is an error in the rate record with respect to the identity of the owner or occupier of any land;
(2)if there is an error in the rate record on the basis that the land or part of the land is not rateable land; and
(3)if the local government imposes a differential general rate, that the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted.
DR 163 of 2023 was determined by Senior Member Willey on 28 March 2024.[1] He characterised the applicant's complaint as that the rate for the rural category of land is set too high. On that basis, he said that the complaint was not one which falls within one of the three categories of complaint subject of s 6.76 of the LG Act.
[1] Van Oijen and Shire of Cuballing [2024] WASAT 24 [14].
Therefore, he held any decision made by the Shire about the complaint was not one 'on an objection' under s 6.76.
As a result, Senior Member Willey dismissed the application because, in effect, he found that the Tribunal lacked jurisdiction to determine the issue. In doing so, he noted that Mr van Oijen may have had a right of review under s 33 of the Valuation of Land Act 1978 (WA), but he has not pursued that course.[2] Senior Member Willey also noted that s 6.82 of the LG Act provides for a right of review 'where there is a question of general interest as to whether a rate or service charge was imposed in accordance with the LG Act'.[3]
[2] Ibid [15].
[3] Ibid [16].
Having considered that issue, Senior Member Willey was satisfied that 'the rates that have been adopted by the Shire comply with the requirements of the LG Act'.[4]
[4] Ibid [18].
On 20 April 2024, Mr van Oijen again applied to the Tribunal under s 6.77 of the LG Act, which is less than a month after Senior Member Willey dismissed his application. The basis for that application is, on its face, that Senior Member Willey's decision is wrong. Three grounds are given:
(1)Senior Member Willey erred in fact;
(2)Senior Member Willey erred in law; and
(3)Mr van Oijen obtained 'new facts of law' that he had no opportunity to put before the Senior Member.
Before the Tribunal this morning, Mr van Oijen has explained ground 3 was limited to the Interpretation Act 1984 (WA) (Interpretation Act). He says that although he was aware of the provisions of the Interpretation Act, he did not have the opportunity to put argument about their effect to Senior Member Willey at the hearing.
On 7 June 2024, Senior Member Willey made orders allowing the Shire to make an application to strike out the matter as an abuse of process. The Shire in due course did so by filing a single page on 2 July 2024.
The applicant, Mr van Oijen, provided a response on 17 July 2024 for which orders had previously been made.
Given his role in deciding DR 163 of 2023, Senior Member Willey considered it appropriate that he not determine the strike out application, and I have therefore been asked to do so.
For the following reasons, I agree that the present application by Mr van Oijen is an abuse of process.

Statutory regime

Section 47(1)(c) and s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides the Tribunal with the power to dismiss or strike out a proceeding 'if the Tribunal believes that a proceeding is otherwise an abuse of process'.
Speaking generally, the Tribunal should proceed cautiously before exercising its powers under s 47 of the SAT Act. That is because to determine a proceeding other than on its merits is an exceptional step to take. Accordingly, a party, such as the Shire in this case, bears a heavy burden to persuade the Tribunal to exercise its powers to strike out for an abuse of process.
The power to strike out for an abuse of process under s 47 of the SAT Act has been held to apply to circumstances where a party seeks to relitigate a matter previously determined.[5]
[5] Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [54] - [56].
In Van Der Feltz v City of Vincent [2017] WASAT 153 (Van Der Feltz), Parry DP dismissed an application for review of a decision to refuse to grant the applicant development approval. In doing so, he observed as follows:[6]
The Tribunal is conscious of those objectives [being those enunciated in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)] in all its determinations including in considering an application for the strikeout or dismissal of a proceeding on the basis that it is an abuse of process. The Tribunal is also conscious in determining the application for the striking out or dismissal of proceedings on the basis that they are an abuse of process, that given the relative informality of SAT's procedures, any application to dismiss or strike out a proceeding on the basis that it is an abuse of process should be approached with a great deal of caution, particularly where proceedings are brought by unrepresented parties, as is the case both in the first review proceeding and in this review proceeding.
[6] Van der Feltz [21].
Nonetheless, his Honour held at [23] that:
In my view, to allow the current proceeding to continue would bring the administration of administrative justice into disrepute. This is because it would undermine the important public interest that there should be finality in litigation and also because it would be inconsistent with:
the current emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public as a whole[.]
In my view, the same result must flow in this case for the following reasons. First, in my view, s 6.77 of the LG Act provides a person with a single right of review of a decision made upon an objection. That is, it allows a person dissatisfied with such a decision to apply for 'a review of the decision'. Senior Member Willey performed that review, which is now complete. In my view, and I find, the section gives no right to a person to apply for a second review of the same decision.
During the hearing Mr van Oijen said that he chose s 6.77 of the LG Act as the section under which to bring the review because that was the section offered to him by the Tribunal's website, effectively by the eCourts Portal. That limited choice reflects the fact that the right to apply for review by the Tribunal under the LG Act is a very limited one. As I have said, s 6.77 provides a limited scope for review. So does s 6.82. The reality is that in this case the application has been brought under s 6.77 and in doing so the applicant, Mr van Oijen, referred to the decision of the Shire rejecting his objection on 22 September 2023. That brings me to the second reason.
The application of 20 April 2024 by which the current proceedings were commenced is out of time. Section 6.77 provides that a review must be brought within 42 days of the decision on review. As I have just said, the decision of which Mr van Oijen seeks review was made on 22 September 2023, very considerably more than the 42 days prior to 20 April 2024, being the date of the application. I note that the section does allow an extension of time, but no such application has been made and I would have refused such application had it been made.
My third reason is that, in my view, there is no power under either the LG Act or the SAT Act for me, or indeed anyone else, to review Senior Member Willey's decision, whether for an error of law, fact or otherwise. Section 105 of the SAT Act provides a person in Mr van Oijen's position – that is, an applicant for review who disagrees with the decision made on review – with the ability to seek an appeal in the Supreme Court.
That course has not been pursued by Mr van Oijen. In the hearing today he advised that he lacked the funds to do so, and I have got no reason to doubt that that is the case. Nonetheless, in my view, that is the proper course to be pursued by someone in his position.
The fourth reason is that even if I am wrong in relation to the first reason, and that s 6.77 could be read so as to allow a person to seek a second review of the same decision on objection, and that this application could be characterised as such, I would still be of the view that the present application is an abuse of process.
That is because, as is evident in the passage quoted previously from Van Der Feltz, finality of litigation represents an important principle to which the Tribunal must have regard. Mr van Oijen has been given an opportunity to put his case to the Tribunal. He has done so. His case has been dismissed by Senior Member Willey. That must be the end of it unless he wishes to pursue his rights of appeal. In some cases, particularly in proceedings concerning repeat applications for an approval, such as under the planning regime, there may be some scope to allow a subsequent application if the applicant can show that there has been a material change of circumstances such that a different result should follow, but that is not the case here.
As the Shire submits, the facts have not changed and neither has the law. That is, Mr van Oijen's complaint remains about the rates notice and the rates record that was in place at the time of Senior Member Willey's decision. That has not changed and neither has the law. Mr van Oijen claims that Senior Member Willey erred in law and in fact, but that is a different point. He does not say that the facts or the law has changed, and in any event, I find they have not.
Mr van Oijen also claims, as I have noted, that since the decision he has obtained 'new facts of law', which he failed to put before the Senior Member. He says that he had no opportunity to put them. That, with respect, is not quite right. Had he realised that, in his view, the relevant provisions of the Interpretation Act may be relevant, he could have put them to Senior Member Willey. He did not. That does not constitute a material change of circumstances. In my view, and I find, these proceedings (DR 58 of 2024) are an attempt to relitigate the same matter as was determined previously in DR 163 of 2023, either by way of an attempt to backdoor an appeal, thereby circumventing s 105 of the SAT Act, or by way of a repeat application. In my view, there is no power to do that.
But in any event, the attempt is an abuse of process because the matter has previously been determined and for the reasons previously given, that ought to be the end of it. In my view, the application is an abuse of process, and the proper course is to strike it out.
I will say one more thing. The documents on which Mr van Oijen relies in this proceeding use language in describing Senior Member Willey and his decision which is, unfortunately, both inappropriate and increasingly common. Senior Member Willey has done no more than his job. There is no need to agree with the result, but there is also no need to be rude about it, let alone accuse him of criminal conduct. I would encourage all who come to the Tribunal to use decent and respectful language, even where they hold strong opinions which differ from others'.
The order made will be to strike out the application under s 47 of the SAT Act as an abuse of process.

Orders

The Tribunal orders:
1.Pursuant to s 47(1)(c) and s 47(2) of the State Administrative Tribunal Act 2004 (WA), the application is struck out as an abuse of process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
20 SEPTEMBER 2024