CARDEN -v- VALLELONGA [2019] WASC 289 (13 August 2019)

1. The appeal (which included the application for leave) was filed on 29 March 2019.
2. After the first respondent filed a notice to appear in the appeal, I conducted a directions hearing on 12 June 2019.
3. Prior to the directions hearing, the appellant filed a lengthy document that she described as an evaluation of CC 1493 of 2018. At the hearing on 12 June 2019, the appellant indicated that she wished to have the opportunity to file further submissions in relation to the question of leave and a further hearing before the court in that regard.
4. Accordingly, on 12 June 2019, I made orders that the appellant file and serve, by 5 July 2019, submissions limited to 20 pages as to whether leave to appeal should be granted, identifying the errors of law relied upon. The respondents were given leave to file submissions by 19 July 2019 and the matter was listed for hearing on 29 July 2019 for consideration and determination of the question of leave.
5. On 5 July 2019, the appellant filed the submissions in accordance with my orders, which were 16 pages in length. The respondents elected not to file submissions or to attend today's hearing.
6. Around the time of filing her submissions dated 5 July 2019, the appellant filed a number of documents that she had filed before the Tribunal, including a diarised timeline of events in relation to the issues between the parties and submissions and responsive submissions that had been filed by her.
7. In the result, the appellant has provided to the court, in support of the appeal and application for leave:

(d) a significant number of documents filed with those submissions.

1. The amount of material filed by Ms Carden is well in excess of anything that might be thought to be proportionate to the issues that might arise in an appeal from a decision such as that given by the Tribunal on 22 February 2019. This is not a criticism of Ms Carden. She is an unrepresented litigant and, clearly, the matters that are dealt with in her documentation are very important to her. The volume of material that she has produced, also suggests that these matters have to an extent become somewhat overwhelming.
2. I have referred to the material that has been provided only to observe that such voluminous material makes it difficult for the court dealing with a matter to identify the alleged legal errors upon which the decision of the Tribunal might arguably be challenged. It is, at times, not unlike endeavouring to find a needle in a haystack.
3. Nevertheless, I am satisfied, having considered all of the material provided by Ms Carden, that I am able to determine the leave application by reference to what I understand to be the essential complaints that are sought to be reflected in the grounds of appeal that appear in the appeal notice. In that respect, I have endeavoured in these reasons to distil what I understand to be the essential complaints made by Ms Carden so as to be able to make an assessment as to whether or not leave should be granted.
4. The principles in relation to leave are well settled. They are set out in decisions of the Court of Appeal in this State, most recently in SH v Chief Executive Officer of the Department of Communities:[1]

As this court recognised in Paridis v Settlement Agents Supervisory Board, the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.

While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls. In Hulls, Phillips JA said:

When leave is sought to appeal ... it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal. (footnotes omitted)

1. I accept, as general guidelines, that in determining whether to grant leave a relevant question is whether or not there is a question of law with sufficient doubt about it to justify the grant of leave, and that to allow the error to go uncorrected would be to impose a substantial injustice.
2. Turning, then, to the proceedings before the Tribunal.

1. The application to the Tribunal was made pursuant to s 83 of the Strata Titles Act. It was filed on 20 July 2018.
2. Section 83 of the Strata Titles Act provides that the Tribunal may, on the application of a proprietor or a lot under a scheme:

Make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or by the by-laws in connection with that scheme[.]

1. The by-laws which, subject to a power of amendment, are contained in sch 1 and sch 2 of the Strata Titles Act, relevantly include a duty on a proprietor or a resident of a lot that they:[2]

Not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier.

1. Similarly, there are obligations in sch 1, cl 1(2) in relation to the use and enjoyment of common property. Schedule 1 cl 1(2)(a) provides that a proprietor or resident shall:

[U]se and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or residents, or of their visitors[.]

1. Much of the proceeding before the Tribunal related to these obligations under the Strata Titles Act.
2. Prior to the final hearing of the application (on 10 and 11 January 2019) Tribunal Member Aitken conducted a number of directions hearings. In particular, on 26 October 2018, Member Aitken ordered that the grounds of appeal be amended by substituting the orders set out in the application dated 20 July 2018, with those set out in a document titled 'Proposed Orders Sought', dated 18 October 2018.
3. That document (which was one of the documents provided to me by Ms Carden in the course of the application for leave to appeal) was the document in relation to which the matter proceeded to a final hearing. Without setting out the document in full, it raises a number of matters of complaint in relation to Mr and Mrs Vu and Ms Vallelonga. The proposed orders in that document were grouped into four numbered sets.
4. The first set of proposed orders sought orders that:

(a) Mr and Mrs Vu and Ms Vallelonga cease smoking; and

(b) Ms Vallelonga stop floodlights on unit 18A emanating onto the common property outside the other units.

1. The second set of proposed orders sought orders for:

(a) the replacement of plants and the maintenance of the garden in the common property outside units 18A and 18B;

(b) Mr and Mr Vu to control the weeds in their garden, repair and paint deteriorated window frames, paint the building (including various walls, gutters and window frames) and repay the cost of plants damaged on common property; and

(c) Ms Vallelonga to repair and paint a fence, paint front entry steps, repair reticulation, repay the costs of plants, and maintain her tenants' dogs on leads on the common property.

1. The third set of proposed orders sought involved a degree of repetition. They included the issues of smoking and the patio lighting. They also related to the use of barbecues at the neighbouring properties causing undue offence to other homes, back yards or residents. They finally sought orders to cease undue noise, banging and stomping, the removal of birds and dogs being under the patio area in Ms Vallelonga's property.
2. The fourth set of proposed orders sought buffering matting on outdoor entertainment patio cement flooring areas to buffer noise.
3. It is (collectively) these orders (contained in the document dated 18 October 2018) that proceeded to a final hearing.
4. The hearing took place before Tribunal Member Owen-Conway over two days from 10 to 11 January 2019.
5. Ms Carden, Ms Vallelonga and Mr Vu all attended the hearing. None of them were represented.
6. Each of the parties gave evidence over the course of the two days. Ms Carden gave evidence for the first day, commencing at around 10.51 am until the end of the day at approximately 4.09 pm.[3] Ms Carden continued her evidence the following morning and was then followed by Ms Vallelonga and Mr Vu.
7. The matter was reserved at the conclusion of the hearing on 11 January 2019. The learned Tribunal member delivered her decision on 22 February 2019.
8. The decision of the learned Tribunal member commenced by identifying the relevant context, including a history of other applications and legal proceedings between the parties.
9. The learned Tribunal member noted that, as a result of an agreement by Mr Vu and Ms Vallelonga, the application had been withdrawn against Ms Vallelonga in relation to the noise of a dog kept at unit 18A, and in relation to Mr and Mrs Vu for operating the barbecue at unit 18B.[4]
10. After identifying the relevant legal obligations under sch 1 of the Strata Titles Act, the learned Tribunal member went on to consider the various complaints raised by the orders sought and the evidence of the parties in that regard.
11. In relation to the allegations concerning cigarette smoke, the Tribunal member said:[5]

There is no evidence that the applicant could detect cigarettes being smoked in [unit 18A]. That part of the application is, therefore, dismissed. As to [unit 18B], Mr Vu gave evidence and admits to smoking in the rear of part [unit 18B] which comprises his back yard. Photograph 1, taken by the applicant, depicts that Mr Vu was smoking at a patio table under his rear patio, which appears to be positioned closer to the boundary of lots 1 and 2 than the boundary of lots 2 and 3.

The by-laws do not prohibit smoking and do not specifically concern smoking. There is no evidence of the frequency and regularity with which Mr Vu smokes in his back yard and there is no evidence of the drift of the cigarette smoke towards [unit 18C]'s back yard, that is, part [unit 18C]. Without such evidence, there is no basis for the Tribunal to determine objectively that the passage of cigarette smoke into part [unit 18C] is such that creates a nuisance to the occupier of [unit 18C].

1. In this context, the Tribunal member went on to say:[7]

Simply because an occupant of another lot, or an invitee, is irritated or displeased, or objects to smoking, is not sufficient, in the Tribunal's view, that it be classified as using the lot in such a manner or for such purpose as causes a nuisance. Otherwise, any occupant intolerant of noise, smell, light or any other stimuli would be able to unilaterally dictate what would ordinarily be everyday conduct of occupants in their homes or places of work, which are commonly structured in strata developments. There must be something more.

1. The learned Tribunal member, after concluding that Mr Vu smoking was not using his lot in such a manner to cause, objectively, a nuisance, turned to the question of the lights at unit 18A:[8]

The next order sought is an alleged breach by Ms Vallelonga of sch 1, by-law 1(2)(a), that is, a breach of the obligation to allow a proprietor to use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof, that is common property, by other proprietors, occupants, residents, or their visitors. This concerns Ms Vallelonga's front carport security lights.

1. After discussing the evidence given as to the nature of the light and Ms Vallelonga's evidence in relation to the way in which it could be manipulated, the learned Tribunal member concluded:[9]

The Tribunal finds that the light attached to the underside of the carport of [unit 18A] does not cause any unreasonable interference with the applicant or her invitees' use and enjoyment of the common property.

The direction of the light and the position of the hedge trees is such that the light reaches the very edge of the common property driveway and the verge garden in front of [unit 18C] and does not interfere with the use and enjoyment of that part of the common property at all. There was no evidence of how the light did or could interfere with the applicant's use and enjoyment of the common property or any of her invitees in any way, other than simply she objected to it. There is no evidence that the light's operation is triggered by anyone arriving at [unit 18C], as the sensor faces the grounds of the carport of [unit 18A] and the Tribunal so finds.

The Tribunal concludes that the use of a security light to guide a person to a carport or front door of their home and to discourage intruders in suburban homes is, of itself, not unreasonable.

1. The learned Tribunal member then turned to the question of the barbecues:[10]

There is no evidence before the Tribunal concerning the use of a barbecue on [unit 18A]. This aspect of the complaint against Ms Vallelonga concerning [unit 18A] is dismissed. In any event, because the applicant has reached agreement with Mr Vu that positioning his barbecue on [unit 18B] over away from [unit 18C], closer to [unit 18A], is acceptable to the applicant. It would suggest that barbecuing on [unit 18A], which is further away than that where the applicant agreed Mr Vu's barbecue could be positioned, could have no impact on her at all.

1. The learned Tribunal member then considered the allegation of undue noise disturbing the residents. In relation to allegations of excessive screaming and yelling at one of the properties and a photograph taken on an occasion of there being, allegedly, a police vehicle out the front of the property, the learned Tribunal member said:[11]

There is no evidence why that vehicle is there, where it is, or any evidence of any offences, nor is there any evidence that it is a continuous nuisance and that if there had been any screaming and yelling in line with domestic violence, that it continues to this day.

1. For these reasons, the application for the order sought against Ms Vallelonga for noise emanating from unit 18A was dismissed.
2. In relation to Mr and Mrs Vu's home, the allegations of noise concerned matters such as Mr and Mrs Vu's young children, scraping of chairs on concrete, riding of toys and pet birds. The learned Tribunal member said:[12]

In dealing with the pet first, the Tribunal notes that the applicant asserted in her submission that Mr and Mrs Vu kept five budgerigar birds. The applicant produced photographs and videos of and recordings of the noise made by these alleged pets.

1. Having then discussed the evidence of the videos and audio and evidence before the Tribunal, the learned Tribunal member said:[13]

There must, as stated earlier, be more in the Tribunal's view than a mere objection or the detection of stimuli by another owner. Not every noise is a nuisance. The Tribunal does not observe that the noise of the bird is disturbing or unusually loud, nor is there evidence that it is the only noise that is heard early in the morning. There is no measurement of the noise by the bird, that is, how many decibels or other factors, and it is not known how long the noise goes on for. It is not a particularly disturbing noise.

1. The learned Tribunal member turned next to the allegations relating to Mr and Mrs Vu's children, and the evidence of the applicant and Mr Vu in that regard. She concluded:[14]

The Tribunal does not accept that Mr and Mrs Vu, by allowing their children to play in the backyard, move chairs around on the patio table, use the patio for small scooters or toys, constitutes reasonably a nuisance. What it does constitute is detection of stimuli by the applicant to which she objects. That of itself is not a nuisance. There is no complaint by any other neighbour. There is no complaint by the owner or occupier of [unit 18A] about Mr Vu's children. Therefore, the Tribunal is not satisfied that Mr and Mrs Vu allow their children to use the lot in such a manner or f or such purpose as causes an objective nuisance.

What they are doing is living in their backyard and their home as a family.

1. In relation to patio lighting from unit 18A and unit 18C, learned Tribunal member, having considered and referred to evidence before her, said:[15]

The Tribunal finds that the light that spills over from [unit 18A] to [unit 18C] cannot be said to be anything other than minimal ambient or reflected light.

...

Again, the applicant objects to any light passing from the plane of [unit 18B] into [unit 18C].

The learned Tribunal member went on to say:[16]

The purpose is clearly to be able to view and enjoy the evening outside the building of parts of [units 18A and 18B]. There is no evidence that the lights remain on for any significant length of time, late into the night, regularly, frequently, or well into the early hours of the morning.

...

The evidence is also that Mr and Mrs Vu have not allowed the children out at night, have not used the patio at night, and have not turned on the lights for several months for fear of reprisals from the applicant.

1. The learned Tribunal member later concluded:[17]

The Tribunal does not accept there is an obligation to prevent the ambient and reflected light to be directed away from the entirety of [unit 18C], or that Mr and Mrs Vu must prevent any light leaching into the bedroom window of [unit 18C], or [unit 18C] at all. Such an order would be unreasonable, and, again, interference with Mr and Mrs Vu's own entitlement of enjoying use of their lot, including their backyard.

1. In relation to the allegations concerning the gardens and trees, including the order sought to replace a tree, the learned Tribunal member stated:[18]

There was no evidence before the Tribunal that Mr and/or Mrs Vu had anything to do with the damage to those trees. There was a clear inference, the applicant asserted, that they were the people who had damaged the tree.

There was simply no evidence to that effect - they had anything to do with the demise or damage to the tree. That part of the application is dismissed.

1. The learned Tribunal member then went on to describe more generally the issues concerning maintenance of the garden and garden beds in the common property. She identified the issue in this way:[20]

The issue then arises of maintaining the garden, garden beds, control of leaves, mowing of lawn, painting and repairing of fences on the parcel, the painting and repairing of the reticulation box. The parties agree that they should each have a tacit agreement that they should each maintain a common property garden directly in front of their lot, rather than the strata company being responsible for all of the common property, and them contributing to the cost thereof, as would ordinarily be the case.

1. There was then an extensive discussion of the matters concerning the use of the sprinklers and reticulation. The learned Tribunal member concluded:[21]

The Tribunal considers that the garden area in front of [units 18A and 18B], comprising the common property, is neat and tidy, although the grass and plants in those areas is not flourishing to the same extent as in the front of [unit 18C]. The applicant's area that she cares for are greener and more fulsome, and considerably so. However, whilst there is an agreement to maintain the common property garden bed and lawn, there is no agreement as to what is the level or standard of maintenance to be achieved.

The fact that the applicant has a higher standard and wishes to maintain the garden beds on her part of the common property to a higher standard is a matter entirety for her, and is not to the point in this proceeding. So, for this reason, the Tribunal dismisses that part of the complaint concerning the garden and the plants.

1. Finally, the learned Tribunal member referred to the allegations concerning the state of repair of the buildings, including the question of painting. She concluded:[23]

There is, however, nothing before the Tribunal to establish that [unit 18B] is not in a state of good repair. Nothing is broken. Mr Vu says that the windows do not leak, and there is no suggestion that the roof is breached, or the home inside is not liveable or in poor repair. The Tribunal finds that the building of [unit 18B], insofar as the exterior is concerned, is not in as good a state of repair as the buildings of [unit 18A] [unit 18C] because it hasn't been recently painted. However, there is nothing to persuade the Tribunal that the [unit 18B] building is not in a good state of repair.

In the absence of such expert evaluation evidence, the Tribunal is not persuaded that the [unit 18B] building is not in a state of good repair and that it is in need of repair and maintenance to such an extent that sch 1 by-law 1(1)(b) has been breached by Mr and Mrs Vu.

1. For these reasons briefly stated, the Tribunal member dismissed the application.

1. The appeal notice sets out 11 proposed grounds of appeal:
   1. Proceedings being conducted to cause disadvantage to me by means of:-
      1. The Respondents failed to comply with orders or directions of the Tribunal without reasonable excuse.
      2. The Respondents attempting to deceive me and the Tribunal by giving false & misleading submissions and admissions under oath, and by not sending me all of their written submissions sent to the Tribunal.
   2. The Respondents gave submissions that were not given to me & on my request to the Tribunal, the Tribunal did not pass on the submissions neither prior to, during or after the Final Hearing which put me at a disadvantage
   3. The Tribunal did not give further directions requiring the Respondent, Ms Vallelonga, to produce documents submitted to the Tribunal to me after I notified the Tribunal Ms Vallelonga was not sending me her submissions.
   4. The Tribunal knew I was not receiving submissions by the Respondents causing disadvantage, and failed to determine the proceeding in my favour, or make any orders to strike the Respondents out of the proceedings due to the disadvantage caused.
   5. The Tribunal did not conduct fairness throughout the Final Hearing by allowing the Respondents to elaborate on their evidence/answers but I was not permitted to do so whereby I was shut down, silenced, told to hurry up, and subjective points I was putting across were met with side-tracking onto subjects which were not relevant to the orders sought, putting me at a disadvantage.
   6. The Tribunal in dealing with matters did not achieve resolution to disputes, review decisions fairly or according to the substantial merits of the case, and failed to have the Respondents carryout agreements of:-
      1. Looking after the common property outside of our units.
      2. Putting up screens at the south end of the Respondents patios.
   7. The Tribunal gave privileges to allow the Respondents extending time of the Final Hearing from the end-November 2018 to 10 January 2019 which benefitted the Respondents and disadvantaged me.
   8. The Tribunal in dealing with matters did not act speedily by extending the proceedings from 20 July 2018 to 22 February 2019, and further extending the time by sending the written Reasons of Decision transcript which I received on 20 March 2019 also most one month after the Reasons of Decision Hearing.
   9. The Tribunal did not take measures that were reasonable practicable to ensure I had the opportunity in the proceeding to be heard or otherwise have any of my submissions considered and whereby photographic proof/evidence was not considered.
   10. Reasons the Tribunal gave for the final decision included findings based on dishonesties and wrong-doings by the Respondents by referring to the Respondents false & misleading evidence & material submitted and admitted under oath, and including into evidence submissions that I did not receive which violated orders given at Directions Hearings.
   11. The Tribunal received information from the Respondents knowing it was false and misleading but did n [sic].
2. As I have noted above, leave may only be granted in relation to a question of law.
3. It is a fair description that the proposed grounds, as a whole, fall into two broad categories.
4. Grounds 1 through to 9 concern alleged failures or errors in the manner in which the Tribunal dealt with the matter, and, in essence, whether or not the Tribunal afforded Ms Carden procedural fairness in the manner in which it dealt with her application.
5. In this regard, Ms Carden alleges that the proceedings were conducted in a manner which was to her disadvantage over the respondents. This broad allegation is variously made in the submissions and case evaluations that Ms Carden has produced. In identifying questions of law, Ms Carden recites various procedural provisions in the SAT Act.[24]
6. There can be no doubt that a failure to afford a party procedural fairness (or natural justice) would amount to an error of law or a question of law. The provisions of the SAT Act relied upon by Ms Carden would be capable of giving rise to a question of law if there was a substantial question or arguable question that the Tribunal had denied Ms Carden procedural fairness in the course of the hearing.
7. The second broad category of proposed grounds rely upon s 98 of the SAT Act, which provides:

A person who gives to the Tribunal information knowing it to be false or misleading in a material particular commits an offence.

1. In that respect, Ms Carden submits, for example, by reference to proposed ground 10, that the:

Reasons the Tribunal gave for the final decision included findings based on dishonesties and wrongdoings by the respondents by referring to the respondents' false and misleading evidence and material submitted and admitted under oath, and including into evidence submissions that I did not receive, which violated orders given at directions hearings.

1. The essential allegation in that regard, insofar as it goes beyond an allegation of procedural unfairness, is that by acting upon what Ms Carden says was false or misleading evidence, the Tribunal erred in law such that leave should be granted.
2. While it is not specifically referred to in the grounds of appeal, Ms Carden also relies (in the submissions and evaluations) on the Defamation Act 2005 (WA) (the Defamation Act) as giving rise to questions of law. In particular, Ms Carden refers to various provisions of the Defamation Act to allege that the respondents made defamatory, slanderous and libellous submissions and admissions to the Tribunal. From this, she identifies as legal issues the need to determine the amount of damages for non-economic loss that may be awarded and to determine special damages regarding economic loss.
3. Notwithstanding that they do not directly arise under the proposed grounds of appeal it is sufficient to deal with the references to the Defamation Act to say that those issues can form no part of a properly constituted appeal from the Tribunal in a case such as this.
4. Defamation proceedings are civil proceedings, which are quite separate and distinct from any jurisdiction that the Tribunal may have. The Tribunal has no jurisdiction in relation to defamation, and no proceeding before it could determine such matters.
5. I turn now to the issues raised under the two broad headings that I have identified.

1. Turning, first, to the question of procedural fairness and whether or not the applicant was denied a fair hearing before the Tribunal in such a way as to require leave to be granted in the interests of justice.
2. In relation to this issue, it is appropriate to distinguish between matters which occurred prior to the final hearing and those which occurred at the final hearing on 10 and 11 January 2019.
3. That is because a number of the matters referred to in the grounds of appeal, and in the documents filed by Ms Carden, concerned what she alleged were the respondents providing submissions to the Tribunal that were not provided to her, and which were not passed on to her by the Tribunal.
4. At the hearing of this matter today, I sought to clarify with Ms Carden the particular instances in which she says that that occurred.

1. The first such incident arose from a letter from the Tribunal sent to Ms Vallelonga, and which was copied to Ms Carden.
2. The letter from the Tribunal to Ms Vallelonga was dated 6 November 2018 (the 6 November letter). It said this:

I refer to your letter email dated 22 October 2018 in which you seek advice if you may call Senior Member David Aitken as a witness to a case in the Supreme Court of Western Australia.

A copy of the transcript of the proceedings will contain the evidence of what all parties including the presiding senior member stated during the proceedings. You may consider ordering a copy of the written transcript from the Tribunal which requires the completion of the attached form and the payment of a prescribed fee.

The Tribunal cannot comment on the process or proceedings held at the Supreme Court of Western Australia[.]

1. The 6 November letter was sent in response to a communication from Ms Vallelonga dated 22 October 2018, in which Ms Vallelonga indicated or inquired as to whether she was able to call Senior Member Aitken as a witness in an earlier appeal in this court (as Ms Vallelonga maintained that Ms Carden's account of the events at a directions hearing were incorrect).
2. Ms Vallelonga's 22 October 2018 inquiry did not directly relate to, and did not contain a submission in relation to, matter CC 1493 of 2018. Moreover, its content was sufficiently revealed by the 6 November letter from the Tribunal.
3. Ms Carden complained to the Tribunal by email that she did not have a copy of the correspondence from Ms Vallelonga to the Tribunal. Ms Carden maintains, and I accept, that she did not obtain a copy of the email dated 22 October 2018 itself.
4. The Tribunal responded to Ms Carden to the effect that it was not in a position to determine what correspondence, if any, had not been forwarded to Ms Carden. The Executive Officer confirmed that parties were required to provide the other parties with any material filed with the Tribunal and advised that if Ms Carden had grounds to believe that that was not being complied with, she should raise it with the presiding member at the final hearing.
5. It does appear, in relation to this particular instance, that Ms Vallelonga's email inquiry to the Tribunal dated 22 October 2018 was not copied to Ms Carden. Indeed, there appears to have been other occasions upon which the Tribunal, through its administrative staff, had received correspondence not copied to the other parties; including for example, correspondence from Ms Carden (to the effect that internal reviews were being sought in relation to requests that she had made) that was not copied to Ms Vallelonga.
6. With the advent of email communication, it has regrettably become commonplace for communications between administrative staff of courts and tribunals to be conducted rather more freely and informally than once would have been the case in the past. It is, I note by way of general observation, the case that parties regularly communicate directly with administrative officers of courts and tribunals, raising questions of procedure (and even substantive issues) in a manner that would have been inconceivable in earlier days.
7. This problem is particularly pronounced in relation to persons who represent themselves. This is quite understandable; they not necessarily being aware of protocol in this regard. It is, however, not exclusive to litigants-in-person. Not a few solicitors occasionally engage in such correspondence.
8. While the fact that that occurs is regrettable, in the present case it is clear that the communication which caused Ms Carden's concern and which she identified in support of her appeal, was not one that could in any way have affected the decision or resulted in a denial of procedural fairness leading to a material error in the present case.
9. It was a routine piece of correspondence, to which the Tribunal's administrative staff responded and, quite properly, copied to all parties. It was not material which was before a Tribunal member or involving a Tribunal member. It was certainly not correspondence in the form of submissions before the Tribunal. In particular, it was not a matter that featured in the hearing before Tribunal Member Owen-Conway on 10 and 11 January 2019.
10. I am satisfied that insofar as there may have been correspondence by Ms Vallelonga to which Ms Carden was not copied, it was immaterial in the circumstances.

1. The other matter that was raised by Ms Carden in this context concerned a document provided by Mr Vu to the Tribunal, which is described as a Minute of Undertaking. Ms Carden stated that the document was provided to the Tribunal without being copied to her.
2. The Minute of Undertaking was emailed to the Tribunal at the request of the Tribunal on 7 January 2019. It is a document signed by both Mr Vu and Ms Carden. It appears to relate to a restraining order application in relation to which certain agreements are recorded. The Minute of Undertaking became Exhibit 1 in the proceedings before Member Owen-Conway.
3. I provided Ms Carden with a copy of the Minute of Undertaking that was on the Tribunal file, who confirmed that it was, indeed, the document that she had signed.
4. In the circumstances, I do not consider that the provision of that document to the Tribunal on 7 January 2019, to which Ms Carden was a party, and which was ultimately before the Tribunal as an exhibit, could be regarded as a denial of procedural fairness.

1. Turning, then, to the final hearing before the Tribunal member. Ms Carden alleges that the hearing on 10 and 11 January 2019 was not conducted fairly.
2. An exemplar of this allegation is found in appeal ground 5:

The Tribunal did not conduct fairness throughout the final hearing by allowing the respondents to elaborate on their evidence and answers, but I was not permitted to do so, whereby I was shutdown, silenced, told to hurry up, and subjective points I was putting across were met with side-tracking onto subjects which were not relevant to the orders sought, putting me at a disadvantage.

1. Procedural fairness is ultimately concerned with practical justice.[25] Complaints such as those made by Ms Carden as to the conduct of a hearing, therefore require a practical assessment to be made of the fairness of the hearing, by reference to the material and the course of proceedings before the Tribunal.
2. I have read the transcript of the hearing before the learned Tribunal member on 10 and 11 January 2019.
3. It is apparent that, prior to any of the parties giving evidence, and particularly in relation to Ms Carden, the learned Tribunal member explained, in as clear language as possible, the process that would be followed in the hearing (including as to the giving of evidence before the Tribunal).[26]
4. I am satisfied that proceeding in this way, particularly with three persons who were unrepresented, was appropriate and sensitive to the needs of the parties.
5. Ms Carden, as I noted earlier, then gave her evidence, which lasted for the rest of the first day. At the end of the first day, when the matter was to be adjourned, Ms Carden said that she had forgotten to give some evidence that she had, and asked whether she could do that the next day, and was told that, if she was cut off in cross-examination, that she would have the opportunity to extrapolate or explain again.
6. The following day, on 11 January 2019, Ms Carden did indeed commence giving evidence, and the learned Tribunal member began by saying:[27]

[W]e got to the point, Ms Carden, that you were just going to do a little bit of re-examination, where you felt you had been cut off or you had to give a particular answer, but there was more explanation[.]

1. Ms Carden then gave further evidence, following which evidence was given by Ms Vallelonga and Mr Vu.
2. It can, I readily accept, be difficult, particularly for a person who is not represented, to give evidence before a court or a tribunal. Equally, a party who is also a witness may, having completed their evidence, feel that they have not been able to fully get across that which they wished to. While that may have been Ms Carden's subjective experience, the assessment of the fairness of the Tribunal hearing, requires me to make an objective assessment.
3. Having considered all of the material before the Tribunal, including the reasons for decision given by the Tribunal, I am not satisfied that there is an arguable case that the Tribunal denied Ms Carden procedural fairness or acted to her disadvantage so as to cause a miscarriage of justice. Ms Carden was given a fair opportunity to present her case, and the learned Tribunal Member conducted the proceedings fairly and appropriately.

1. This brings me to the final issue raised by the grounds of appeal: Ms Carden's submission that the other parties gave false and misleading evidence and her reliance on s 98 of the SAT Act as giving rise to a question of law.
2. Ms Carden's submission is essentially that much of what the other parties to the proceedings said and did before the Tribunal was false and misleading. Ms Carden therefore submits that, by acting upon evidence that she maintains was false and misleading, the Tribunal erred in law.
3. The fact that a party to a proceeding perceives that the evidence of another party is false or misleading, however, does not make it so. Indeed, that is the reason why the Tribunal, and only the Tribunal, is entrusted with determining the facts by reference to what it finds to be the proper factual conclusions to be drawn from all of the evidence. When the Tribunal determines the facts in favour of one party, and not in favour of another party, a complaint that the Tribunal ought not to have accepted the evidence of the other party is, generally speaking, a complaint as to an error of fact, not an error of law.
4. Alleging, as Ms Carden does, that the Tribunal's conclusions were based upon evidence that the Tribunal accepted, but which she maintains was false or misleading, is simply to allege, in more emphatic terms, an error of fact on the part of the Tribunal. As I have said, it is for the Tribunal to determine what evidence it regards as true, or upon which it considers it can act, and, conversely, if it be necessary to do so, for the Tribunal to determine which evidence it regards as false.
5. The Tribunal having made those determinations, disagreement (even in emphatic terms) with the Tribunal's conclusions does not, by itself, allege an error of law.
6. I have reviewed the material and the conclusions reached by the Tribunal in that regard, and I have not otherwise been able to identify any error of law that could be said to have been committed by the Tribunal acting upon and reaching the findings of fact that it did.

1. For these reasons, in my view, the decision of the Tribunal is not attended with sufficient doubt that it is in the interests of justice that leave to appeal should be granted.
2. For that reason, the orders of the court should be that:
   1. leave to appeal be refused; and
   2. the appeal be dismissed.
3. In making those orders, I recognise the significance of the factual issues to Ms Carden, and I can only encourage the parties, insofar as they are able, to direct their considerable energies towards the resolution of their differences as best they can. That is, of course, a matter for the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] SH v Chief Executive Officer of the Department of Communities [2019] WASCA 31 [51]-[53].

[2] Strata Titles Act, sch 1 cl 1(2)(b).

[4] Ts 5 (22 February 2019). The learned Tribunal Member's reasons referred to units 18A, 18B and 18C as Lot 1, Lot 2 and Lot 3 respectively. I will continue to use the former nomenclature.

[25] Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145 [112], [114], [115], 118], [119] (Buss P).