AUSTRALIAN FLYING CORPS & ROYAL AUSTRALIAN AIR FORCE ASSOCIATION (WA DIVISION) INC

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : AUSTRALIAN FLYING CORPS & ROYAL AUSTRALIAN AIR FORCE ASSOCIATION (WA DIVISION) INC and CITY OF MANDURAH [2013] WASAT 89

Administrative law - Application for leave to appeal against decision of State Administrative Tribunal - State Administrative Tribunal Act 2004 (WA), s 105 - No relevant question of law

State Administrative Tribunal Act 2004 (WA), s 105

1 JUDGMENT OF THE COURT: The appellant applied, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the Act), for leave to appeal against a decision of the State Administrative Tribunal.

2 On 17 March 2014, we dismissed the application on the appellant's concession that the question of law which it sought to have determined on the appeal required a finding of fact that had not been made by the Tribunal and was not agreed. We concluded that the application should be dismissed for the following reasons.

3 The respondent owns and operates a residential aged care facility named 'Erskine Grove', located in Oakleigh Drive, Erskine (the land). The appellant is the local authority for that area and issued rates notices to the respondent in respect of the land for the rating years 2008/2009, 2009/2010, and 2010/2011 respectively. The respondent contended that the land was exempt from rates because it was used 'exclusively for charitable purposes' within the meaning of s 6.26(2)(g) of the Local Government Act 1995 (WA). The respondent objected to each of the rates notices pursuant to s 6.76(1)(a)(ii) of the Local Government Act. The appellant dismissed each of the objections on the ground that the land was not used 'exclusively for charitable purposes'.

4 On 6 March 2012, the respondent applied to the Tribunal to have the appellant's decision to dismiss each of the objections set aside and for the Tribunal to substitute a decision that in each of the rating years the land was exempt from rates in accordance with s 6.26(2)(g).

5 Subsequently, the parties prepared a statement of facts and formulated a number of preliminary issues for determination by the Tribunal. Those issues were expressed as follows:

Could it be concluded that the applicant's land known as Erskine Grove was used exclusively for charitable purposes within the meaning of s 6.26 of the Local Government Act 1995 (WA) by providing relief of the aged if:

(i) the total amount paid by residents of Erskine Grove to the applicant for services provided by the applicant at Erskine Grove was equal to or greater than the total cost to the applicant of providing those services (including a reasonable allocation of the cost of capital assets used by the applicant to provide the services)?

(ii) for most residents of Erskine Grove, the amount paid by the individual resident to the applicant in respect of the services provided by the applicant at Erskine Grove was equal to or greater than the total cost to the resident if the resident had obtained the services in the marketplace?

(iii) the total amount paid by residents of Erskine Grove to the applicant for services provided by the applicant at Erskine Grove was equal to or greater than to (sic) total cost to the applicant of providing those services (including a reasonable allocation of the cost of capital assets used by the applicant to provide the services) but the difference was no more than a reasonable return for the activity of providing the services?

(iv) the total amount paid by residents of Erskine Grove to the applicant for services provided by the applicant at Erskine Grove was equal to or greater than the total cost to the applicant of providing those services (including a reasonable allocation of the cost of capital assets used by the applicant to provide the services) but the residents enjoy other intangible benefits and advantages as a result of residency at Erskine Grove that account for the difference?

(v) for most residents of Erskine Grove, the amount paid by the individual resident to the applicant in respect of the services provided by the applicant at Erskine Grove was equal to or greater than the total cost to a resident if the resident had obtained the services in the marketplace but the resident enjoys other intangible benefits and advantages as a result of residency at Erskine Grove that account for the difference?

(vi) in each case described above, any surplus was dealt with as provided in the applicant's Constitution and in the leases in favour of the various residents?

6 The Tribunal noted at [5], that the preliminary issues were summarised by the respondent in its written submissions to the Tribunal as being 'whether or not fees and charges that are payable by residents of Erskine Grove to [the respondent] are such as to preclude the use of the [land] being for a charitable purpose.'

7 It appears that the appellant put the question slightly differently. It told the Tribunal ([32]) that the preliminary issues all concerned different degrees of the same question, namely, 'if the Land is used to provide accommodation and other services for the aged and most residents pay the costs associated with the provision of those services to them, is the Land used exclusively for charitable purposes such that it is not rateable land?'

8 The Tribunal considered that because of what it described as the 'confined nature of the Preliminary Issues' it was unnecessary for it to make 'an overall judgment' on whether the land was being used exclusively for the purpose of the relief of aged persons. Instead, the Tribunal focussed on 'whether the effect of the adopted financial model precludes a finding that the Land is used exclusively for a charitable purpose' [33].

Even if the residents of Erskine Grove are required to pay to [the respondent] the costs associated with the provision of accommodation and other services for the relief of the aged, and even if, on a consistent basis, the amount paid produces a surplus of income over expense, that will not preclude a conclusion that the Land was used exclusively for a charitable purpose. That statement, however, is subject to the following provisos:

1. any such surplus should not be for the private profit of the provider; and
2. the costs of the accommodation and services should not be so great as to exclude the element of public benefit.

It follows that the Preliminary Issues are all answered in the affirmative [57].

10 The Tribunal made orders accordingly. The appellant sought leave to appeal to this court.

11 An appeal against a decision of the Tribunal lies only with leave (s 105(1) of the Act), on a question of law (s 105(2)).

12 As is regrettably so often the case, the question of law which the appellant sought to have determined by this court was not clearly identified in the papers before the court. On the hearing of the application for leave to appeal, senior counsel for the appellant was asked to identify the relevant question of law. We were told the question was whether, based on the agreed statement of facts and on the basis that the same services could be obtained from other providers (either not-for-profit organisations or commercial operations), the determination in [57] of the Tribunal's reasons was correct (ts 23).

13 The difficulty, however, is that whether the same services could be obtained from other providers was neither agreed by the parties before the Tribunal nor determined by the Tribunal. As it emerged, it was also not agreed for the purposes of the application to this court. Senior counsel for the appellant said that the proposition that the same services could be obtained from other providers was essential to the appellant's case and would be asserted as a fact when the proceedings continue in the Tribunal. In the absence of such a finding, there was no appropriate question of law for determination and the application for leave to appeal should be dismissed. The application for leave to appeal was accordingly dismissed.

14 The determination of the application for leave to appeal renders it unnecessary to express any view with respect to the effect of the Tribunal's purported 'determination' of the so-called 'preliminary issues', or as to whether this was relevantly a 'decision' of a kind which could enliven an appeal under s 105 of the Act, or as to the desirability of the procedural course adopted by the Tribunal.