Practice and procedure - Leave to commence proceedings of a kind previously struck out - Previous proceedings struck out for failure to file documents on time - Explanation of ill health causing delay - Applicant given no opportunity to be heard on application to strike out - Leave granted

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)

State Administrative Tribunal Act 2004 (WA), s 48(2), s 49

1 The applicant seeks leave to make an application under s 49 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to commence an application. The need for leave arises because an application covering the same subject matter (being matter CC 1940 of 2008) was struck out pursuant to s 48(2) of the SAT Act by Member Carey on 7 April 2009.

2 In support of his application for leave, Mr Antony provided a medical report dated 8 April 2009 from his general practitioner. The report details that the applicant had suffered a worsening medical condition for which the medical practitioner was treating him. The applicant attributes that condition to his failure to comply with an order for the lodgement of certain documents which led to the Tribunal, acting under s 48(2) of the SAT Act, to strike out the application.

3 Matter no CC 1940 of 2008 concerned a claim for relief under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). It was not the first application brought to the Tribunal by Mr Antony. Earlier proceedings (CC 842 of 2008) had been commenced in relation to the same tenancy, but had been dismissed by Member B de Villiers in early July 2008, apparently on the basis of a want of jurisdiction. The same jurisdictional point was raised by the respondent in CC 1940 of 2008. As a result, the Tribunal gave directions designed to enable determination of the question of jurisdiction as a preliminary issue.

4 On 19 March 2009, the applicant was ordered to file and serve any witness statements and written submissions, in addition to those relied upon in CC 842 of 2008, by 2 April 2009. The respondent was required to file any responsive witness statements and written submissions by 16 April 2009. The preliminary issue was then to be determined entirely on the documents.

5 On 6 April 2009, the respondent's agent wrote to the Tribunal pointing out that the applicant had failed to file and serve his further submissions by 2 April 2009. On that basis, the respondent requested that the matter be struck out and no further action taken.

6 Apparently without further recourse to the plaintiff, Member Carey made an order the following day dismissing the application pursuant to s 48(2) of the SAT Act.

7 Section 48(1) and s 48(2) of the SAT Act provide:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(b) failing to comply with this Act or the enabling Act;

(c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b);

(d) attempting to deceive another party or the Tribunal;

(f) failing to attend any hearing in the proceeding.

(2) If this section applies, the Tribunal may -

(a) if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding.

8 In my view, the order under s 48(2) should not have been made in the circumstances in which it was in this case. The first reason why that is so is because the Member made no attempt to ascertain whether there might be a reasonable excuse for the failure to comply with the order. The absence of a reasonable excuse is a prerequisite to the enlivening of the jurisdiction arising under s 48(2) of the SAT Act where there is a failure to comply with a direction. Had the applicant been given the opportunity to be heard on the request to strike out the matter, he would no doubt have proffered the excuse of his medical condition, which in my view, could reasonably have led to some further opportunity to provide documents being given.

9 Secondly, the direction made by the Member on 19 March 2009 did not necessarily oblige the applicant to file documents. It was a permissive order enabling him to file and serve 'any witness statements and written submissions' in addition to others already relied upon in the earlier proceedings. The failure to comply with the order obviously left the applicant in a position where there would be no apparent basis for the Tribunal to reach a decision different from that reached in the earlier proceedings. If that were the consequence, then the appropriate course would have been for the Member to deliver reasons, which would no doubt have been quite brief, determining the matter on the papers as contemplated in the order.

10 Thirdly, s 48 of the SAT Act applies where a party to a proceeding is conducting the proceedings in a way that unnecessarily disadvantages another party. No particular disadvantage was asserted by the respondent's agent in its letter of 6 April 2009. It might be thought that a party to proceedings would be presumed to suffer some disadvantage when another party to the proceedings fails to comply with procedural orders. That may not always be the case. In this case, the failure by the applicant to file any additional evidence or submissions in fact worked to the advantage of the respondent in relation to the issue to be determined. There is nothing in the order made by the Member, nor on the file, to indicate what he considered to be the 'unnecessary disadvantage' suffered by the respondent.

11 The Member concerned was obviously influenced by the history of the proceedings between these parties, and the fact that the issue for determination had previously been decided against the applicant. It might well have been thought, therefore, that the applicant was pursuing unsustainable proceedings in the Tribunal resulting in inconvenience to the respondent. That was, however, the question to be determined as a preliminary issue, and in my view, it ought to have been determined in the way contemplated by the directions, and not by the peremptory use of s 48(2) of the SAT Act without giving the applicant any opportunity to be heard on the strike-out application.

12 In those circumstances, it is appropriate that leave be given to the applicant to commence proceedings. Undoubtedly, that will require a determination on the same preliminary issue. As I understand the application, however, the applicant has now provided all the materials upon which he wishes to rely on the preliminary issue. It should be relatively easy to reprogram the matter when it comes on for directions so that it can be determined with minimal inconvenience or cost to any party.

13 I have not sought to determine the merits of the issue as to jurisdiction, other than to form a preliminary view that it cannot be said that the applicant's argument as to jurisdiction is obviously untenable. That is a matter to be determined by the Tribunal in light of all evidence and submissions relied upon by the parties.

(1) The applicant has leave to commence proceedings in the form of the application lodged in the matter CC 539 of 2009.

(2) The matter is listed for directions at 10.45 am on 4 June 2009.

I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________