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[2018] WASAT 15
State Administrative Tribunal (WA)
2018-02-27
Justice J
Original judgment source is linked above.
This matter concerned an application made to the Tribunal under s 90 of the _Strata Titles Act 1985 (_WA) (ST Act) seeking orders which would allow the applicant to inspect any and all strata company records of the respondent in accordance with s 43 of the ST Act.
Section 90 of the ST Act gives the Tribunal a discretion whether to make an order. This was contrary to the applicant's contention that she had an absolute right to production of all the documents.
The applicant stated her reasons for wishing to inspect this large volume of documents in very broad terms which made it difficult for the Tribunal to find a basis for the proper exercise of its discretion.
At the hearing on 6 November 2017, the respondent agreed to provide a USB with all of the documentation that the respondent had in its possession subject to an undertaking - in effect, giving the applicant all that she sought subject to agreed exclusions relating to legal professional privilege and some other communications.
Despite not having inspected the contents of the USB, the applicant stated that about 20 gigabytes of data was missing. The respondent expressed its willingness to provide any missing documents identified. This appeared to be unacceptable to the applicant.
The applicant stated that she was associated with an action group. She stated that it was not fair or reasonable for an owner of a unit not to share documentation with other strata owners in the strata complex.
The Tribunal was satisfied that a condition of the exercise of its discretion to order production of the documents be that the applicant provide confirmation to the respondent's lawyers, that she would not use the information to contact individual owners (that the appropriate form of communication is to communicate with the strata council); that she would not publish or disseminate the material to third parties; that she would ensure the material was kept secure; and that the documents be provided in electronic form.
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Maguire v Owners of Roslyn Strata Plan 35960 [2014] WASC 28
1 On 1 May 2017, Ms Jennifer Engwirda made an application to the Tribunal under s 90 of the _Strata Titles Act 1985 (_WA) (ST Act) seeking the following orders:
2 The Tribunal notes that this particular strata development is large, consisting of 526 units. The volume of documentation is correspondingly enormous. The solicitors for the respondent stated that the amount of data needed to be provided consisted of about six gigabytes or at least the equivalent of 120,000 pages. It is obviously a major logistical exercise to organise the documents and to provide them for inspection.
3 Following a directions hearing on 16 June 2017, the application was withdrawn in respect of orders 2, 3 and 4.
4 At a directions hearing on 18 July 2017, the Tribunal made an interim order that the respondent make available for inspection by Ms Engwirda or her agent, a list of records and documents identified in s 43(1)(b) of the ST Act. Those orders were as follows:
(c) the notices and orders referred to in the records kept under s. 35(1)(e) of the Act;
(d) the plans, specifications, drawings, certificates, diagrams and other documents delivered under s. 49(3) of the Act;
(e) the minutes of general meetings of the respondent and meetings of the council;
(f) the record of unanimous resolutions, resolutions without dissent and special resolutions passed by the proprietors;
(h) a copy of the statement of accounts of the respondent last prepared by the respondent in accordance with s. 35(1)(g) of the Act;
(i) every current policy of insurance effected by the respondent and the receipt for the premium last paid in respect of each such policy;
(k) any other record or document in the custody or under the control of the respondent save for:
(i) those records or documents of the respondent that are subject to legal professional privilege;
(ii) all written communications (including email communications) between:
relating to matters personal to any proprietor or occupier of a lot within the Scheme;
(iii) all written communications (including email communications) between one or more proprietors or occupiers of lots within the Scheme, relating to matters personal to any proprietor or occupier of a lot within the Scheme.
[3]. The inspection by the applicant is to take place at the offices of Colliers International (WA) Pty Ltd at Level 26, 197 St Georges Terrace, Perth on a date or dates that is at least 28 days after the date of this order, between the hours of 9:00 am and 5:00 pm, Monday to Friday inclusive, upon prior appointment being made.
[4]. The matter is listed for a further directions hearing at 9.15am on 12 September 2017.
5 This gave Ms Engwirda the opportunity to start inspecting documents pending the resolution of the matters in (k) above.
Where, pursuant to an application for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates, or the administrator for that scheme, or the chairman, secretary or treasurer of that strata company has wrongfully
(a) withheld from the applicant information to which he is entitled under this Act; or
(b) failed to make available for inspection by the applicant or his agent a record or document that under this Act he is entitled to inspect,
the State Administrative Tribunal may order that strata company, administrator, chairman, secretary or treasurer to supply or make available the information or to make so available the record or document, as the case may require, to the applicant.
7 Section 43 of the ST Act deals with the supply of information and certificates by a strata company and provides:
(1) Upon application made in writing to a strata company by a proprietor or mortgagee of a lot, or by a person authorised in writing by such a proprietor or mortgagee, and on payment of the prescribed fee (if any), the strata company shall do such one or more of the following things as are required of it in the application
(b) make available for inspection by the applicant or his agent and for the exercise of the rights conferred by subsection (5)
(i) a copy of the schedule of unit entitlement as recorded on the strata/survey strata plan; and
(ii) the notices and orders referred to in and the records kept under section 35(1)(e); and
(iii) the plans, specifications, drawings, certificates, diagrams and other documents delivered under section 49(3); and
(iv) the minutes of general meetings of the strata company and meetings of the council; and
(v) the record of unanimous resolutions, resolutions without dissent and special resolutions passed by the proprietors; and
(vi) the books of account of the strata company; and
(vii) a copy of the statement of accounts of the strata company last prepared by the strata company in accordance with section 35(1)(g); and
(viii) every current policy of insurance effected by the strata company and the receipt for the premium last paid in respect of each such policy; and
(ix) any other record or document in the custody or under the control of the strata company; and
at such time and place as may be agreed upon by the applicant or his agent and the strata company and, failing agreement, at the parcel at a time and on a date fixed by the strata company under subsection (2);
(c) certify, as at the date of the certificate, in respect of the lot in respect of which the application is made
(i) the amount of any regular periodic contributions determined by the strata company under section 36 and the periods in respect of which those contributions are payable; and
(ii) whether there is any amount of any contribution determined under section 36 due and payable and, if so, the amount due and payable and, in the case of a contribution levied under section 36(2), the date on which any such contribution was levied; and
(iii) whether there is any amount due and payable by a proprietor under a by law referred to in section 42(8); and
(iv) whether there is any amount recoverable from the proprietor, mortgagee in possession or occupier of that lot under section 38(4) or (5) and, if so, the amount recoverable; and
(v) any amount and rate of interest payable under section 36(4) in respect of any unpaid contribution referred to in that section; and
(vi) whether any penalty imposed on a proprietor under section 103I is due but unpaid, and if so the amount unpaid; and
(vii) where the lot has a submeter for measuring the amount of gas, electricity or water supplied, whether there is any amount due but unpaid for gas, electricity or water, and if so the amount unpaid;
(i) details of insurance policies maintained by the strata company, including the name of the insurer, the policy number, the type and amount of cover, and the expiry date; and
(ii) whether any transfer, lease or other disposition has been entered into or exclusive use by law made in favour of any person in respect of the common property but not registered by the Registrar of Titles, and if so the name of the person and the nature and effect of the transaction or by law.
(1a) On application made in writing to a strata company by a proprietor or mortgagee of a lot, or by a person authorised in writing by such a proprietor or mortgagee, the strata company may provide to the applicant copies of
(a) any document referred to in subsection (1)(b); or
(b) the roll maintained by the strata company under section 35A,
and, except for one copy of minutes of general meetings of the strata company provided to each proprietor or mortgagee of that lot, may require the applicant to pay the prescribed fee for any copy so provided.
(2) Where an applicant and a strata company fail to reach agreement in accordance with subsection (1)(b) within 3 days after the receipt of the application by the strata company, the strata company shall forthwith send by post to the applicant a notice fixing a time, specified in the notice, between 9 a.m. and 8 p.m. on a date so specified, being a date not later than 10 days after the receipt of the application by the strata company, for the making of the inspection referred to in subsection (1)(b).
(3) Information referred to in subsection (1)(a), and a certificate referred to in subsection (1)(c), shall be provided by the strata company not later than 14 days after receiving the application for the information or certificate, as the case may be.
Penalty: $400.
(4) In favour of a person taking for valuable consideration an estate or interest in any lot, a certificate given under subsection (1)(c) by the strata company in respect of that lot is conclusive evidence, as at the date of the certificate, of the matters stated in the certificate.
(5) A person entitled to inspect a document made available under subsection (1)(b) may take extracts from, or make a copy of, the document but may not, without the consent of the strata company, remove the document from the custody of the strata company for the purpose of inspecting the document, taking extracts therefrom, or making a copy of it.
(6) A strata company shall comply with any reasonable request for the name and address of each person who is the chairman, secretary or treasurer of the strata company or a member of the council of the strata company.
8 The discretion as to what documents should be released was dealt with in the decision of Justice Kenneth Martin in Maguire v Owners of Roslyn Strata Plan 35960 [2014] WASC 28 (Maguire) and particularly at [21], [27], [28] and [62]. His Honour stated at [21] as follows:
(a) Within s 90 of the Strata Titles Act the word 'wrongfully' conditions both subpars (a) and (b), as regards the strata company having 'withheld' information from inspection and having 'failed' to make a record or document available for inspection.
(b) The power of SAT to make orders under s 90 is discretionary (by the word 'may' in the proviso), as Mr Maguire accepts.
(c) At no time has Mr Maguire upon application to SAT, or even in seeking leave to appeal to this court, identified any underlying reason for his ongoing sustained pursuit of the documents he seeks. Mr Maguire has simply and consistently asserted that he is entitled to exercise his inspection and other rights to receive all documents in his capacity as proprietor of two strata lots and is under no further obligation to provide any reason to anyone for his exercise of those rights.
(d) Likewise, at no stage has Mr Maguire attempted to specify any particular document(s) or class of document(s) which he requests the inspection of, or a copy. Rather, his unwavering stance is to bluntly assert he is entitled to inspect and to copy all the classes of documents, as enumerated by s 43(1)(b) (some 11 categories in all) and that he is not satisfied that all such documentary materials have either been made available for inspection or been copied and provided.
(e) The relief Mr Maguire sought from SAT by s 90 of the Strata Titles Act evolved in a period after his SAT application was first filed and prior to the commencement of the hearing before the Senior Member. Mr Spillane recorded at the commencement of his (transcribed) reasons of 13 May 2013 that by amendment, the orders then sought by Mr Maguire on that application to SAT, were:
(a) the first respondent shall provide the applicant with a copy of all orders and documents of the strata company of the type described in s 43(1)(b)(i) and s 43(1)(b)(x) of the Strata Titles Act relating to the period from 21 July 1999 to the present;
(b) the applicant shall pay to the first respondent a copying fee of 12 cents;
(c) the first respondent, by secretary or other proper officer, shall swear an affidavit to be filed at the tribunal and served on the applicant.
The concluding paragraphs of the senior member's reasons at page 17 were expressed in these terms:
As stated in the cases referred to earlier, the tribunal has a discretion under section 90 whether to make an order, even where it is satisfied that the strata company or its officers have wrongfully withheld or failed to make available information or documents.
In the present case the tribunal, on the evidence before it, is not prepared to make the inferences urged on it by the applicant, nor is it satisfied that the strata company or its officers have wrongfully withheld from the applicant information or wrongfully failed to make available for inspection a record or document, and it is not prepared to exercise its discretion to make the orders requested by the applicant, and the application will therefore be dismissed.
The cases the senior member referred to were three earlier SAT decisions of Senior Member Raymond in Clough v Owners of Bengara Flats - Strata Plan 5500 [2005] WASAT 286, Clough v The Owner of Bengara Flats - Strata Plan 5500 [2010] WASAT 15, and Thomas v Owners of Reflections Waterfront Apartments Strata Plan 58085 [2012] WASAT 215.
11 Importantly at [62], His Honour concluded that:
The senior member was called upon to exercise the s 90 discretion in a context of rights afforded under s 43(1)(b) of the Strata Titles Act to inspect documents, then under s 43(1a) to request copies, all of which should be exercised within reasonable bounds and monitored by SAT to guard against the serious potential of misuse, oppression and pettiness. If a requesting person is perceived by SAT to be acting unreasonably, oppressively or obsessively by invoking such a provision, then it more than falls within the purview of SAT, by the discretion under s 90, to inhibit untoward conduct.
12 The decision of Justice Martin in Maguire makes it plain that the Tribunal's power is discretionary, contrary to Ms Engwirda's contention that she has an absolute right to production of all the documents.
13 The two categories which the respondent refused to provide include those subject to legal professional privilege and those for which there might be a privacy issue.
14 Legal professional privilege is a substantive rule of law and not merely a procedural rule of law. This means that if legal professional privilege applies, then in general terms, that legal professional privilege cannot be overruled by courts or tribunals.
15 The documents about which there might be privacy issues were for example, complaints of one proprietor about another proprietor. Ms Engwirda conceded in the course of the hearing before Senior Member Aitken, that she did not wish to have access to matters regarding disputes between different proprietors within the strata unit development.
16 Ms Engwirda argued that she was entitled to an order for any of the documents referred to in s 43(1)(b) of the ST Act, in effect, arguing that the Tribunal did not have a discretion despite the use of the word 'may' in the ST Act.
17 Section 90 of the ST Act gives the Tribunal a discretion whether to make an order. The power under s 90 is quite distinct from s 43(1)(b) of the ST Act, which creates an offence. It is evident that Ms Engwirda did not accept that the power under s 90 of the ST Act is discretionary.
18 The hearing of 6 November 2017 was originally listed for a final hearing. At the hearing Ms Engwirda stated that she understood it was a directions hearing. The Tribunal agreed to proceed on the basis that it was a directions hearing (T:2; 06.11.17). Later, Ms Engwirda requested that the application be dealt with on her papers. Ms Engwirda stated that she did not want to come back anymore in effect, requesting that the hearing be treated as a final hearing (T:11; 06.11.17). No purpose was served by making a determination on the documents when the Tribunal was in a position to make a decision immediately.
19 In her submissions, written and otherwise, Ms Engwirda stated her reasons for wishing to inspect a very large volume of documents in very broad terms which made it difficult for the Tribunal to find a basis for the proper exercise of its discretion.
20 Ms Engwirda had not helped her cause by copying numerous voluminous emails sent to the respondent's lawyers to the Tribunal.
21 Ultimately, at the hearing on 6 November 2017, the respondent, through counsel, said that it was prepared to provide a USB with what was, on its instructions, all of the documentation that the Council of Owners has in its possession, other than that for which legal professional privilege was claimed.
22 Mr Robinson stated to the Tribunal that the USB which he proposed to produce to Ms Engwirda, subject to an undertaking, contained all the documents (T:5; 06.11.17).
23 The Tribunal notes that the respondent has always been willing to provide documentation for Ms Engwirda save for that for which legal professional privilege and privacy were claimed. Ultimately, the privacy issue was resolved between the parties by the respondent conceding it. The issue of legal professional privilege was also resolved (T:4; 06.11.17). It was therefore unnecessary to deal with the submissions filed on these points.
24 Ms Engwirda's approach to this matter indicated her continuing failure to understand the difference between a statutory obligation to provide documentation for inspection and the discretion which this Tribunal has to order such production (T:7; 06.11.17). The Tribunal has made it clear that it is not a proper use of its power to order inspection to allow a fishing expedition.
25 A corollary of this is that Ms Engwirda believes that the Tribunal can order the production of documents without providing any proper basis for establishing their existence.
26 Plainly, Ms Engwirda had the impression that the respondent and its lawyers were trying to delay and had accordingly been very frustrated, a frustration that was evident at the hearing on 6 November 2017 (T:4; 06.11.17).
27 The Tribunal does not accept that the respondent and its lawyers were trying to delay. In particular, the Tribunal notes the efforts of Mr Robinson to resolve issues between Ms Engwirda and the respondent.
28 It appears that Ms Engwirda's real complaint has been an alleged persistent failure by the respondent to provide all documentation.
29 The following exchange took place in the hearing:
HIS HONOUR: And Mr Robinson, that on your instructions is all the documentation apart from the legal professional privilege.
ROBINSON, MR: That is correct, your Honour. I received a further tranche of materials from Colliers who's the gatekeeper of this material for the owners corp on 31 October and my associate behind me spent this weekend reviewing those materials.
HIS HONOUR: Right.
ROBINSON, MR: There's about - there's a lot.
HIS HONOUR: Well - - -
ENGWIRDA, MS: There's about 20 gigabytes of data missing.
HIS HONOUR: Well - - -
ENGWIRDA, MS: Two-thirds of the data is not apparently being held by the strata company.
HIS HONOUR: What, have you got personal knowledge of that?
ENGWIRDA, MS: Yes.
HIS HONOUR: How?
ENGWIRDA, MS: Because a former employee of Colliers while still an employee provided that information to the action group which I was associated with for some time. I have spoken with the general manager of ESM, the former strata manager. He has given me information which I have passed on to William and Colliers saying that there was a 13 gigabyte Outlook file of correspondence, dates that things were given to them and they're just in flat denial that they have them because it protects their interests.
ROBINSON, MR: One of the things that I suggested to the applicant once we've made the decision to provide the materials was that we would give her what documents that I've been given and then she could go away and review them. That might take some time. And then if she identifies material that isn't included within that significant tranche of materials, she can come back to me and I can then go and request further material. The - I've got an email here on the 31st from Colliers which confirms that they've provided all documents on file for the strata.
HIS HONOUR: Right.
ROBINSON, MR: So to me that's sort of a statutory declaration. That's all that I've got to go on on that.
ENGWIRDA, MS: Your Honour, it would have been a simple matter for either the respondent's lawyer or Colliers to have contacted ESM and said, 'We have been told that you've not given us everything or that you did give us and we can't find it. Please assist us,' but there's a deliberate attempt to not do so. In relation to the undertaking which I was asked to do which is different to what this wording is, I believe that it was a complete attempt to gag me[.]
(T:56; 06.11.17)
30 Ms Engwirda provided insufficient evidence for the Tribunal to form a view that there was further documentation.
31 When documents are produced pursuant to a court or tribunal order, there is an implied obligation not to use them other than for the purpose for which they are provided (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96]).
32 A letter containing a proposed undertaking was provided to Ms Engwirda by the respondent's lawyers on 23 October 2017 (T:9; 06.11.17).
33 Ms Engwirda is associated with an action group. She stated that she did not believe that it was 'fair or reasonable for an owner [of a unit] to be bound to not ever talk about or show strata records to another strata owner (T:7 and 10; 06.11.17).
34 An original application to join other strata owners was dismissed and no review was sought. If other strata owners wish to inspect the documents then they can make an application to the Tribunal and it is likely that an order permitting inspection would be made.
35 In circumstances where Ms Engwirda proposed to share that documentation with other parties, the Tribunal considered that in the absence of the undertaking she should be denied access to the documents.
36 The Tribunal is satisfied that it is a condition of the exercise of the discretion that Ms Engwirda should provide confirmation to the respondent's lawyers, that she will not use the information to contact individual owners (that the appropriate form of communication is to communicate with the strata council); that she will not publish or disseminate the material to third parties; that she will ensure the material is kept secure; and that the documents will be provided in electronic form.
37 If Ms Engwirda is not prepared to give that undertaking, then the Tribunal will not order the production of that documentation.
38 If Ms Engwirda is dissatisfied with the Strata Council to the extent that she is of the belief that an administrator should be appointed, then she can make the appropriate application.
39 If, in fact, Ms Engwirda, upon giving the confirmation or undertaking and receiving the documents, believes that the order has not been complied with, then the appropriate way to approach that will be to bring an application to enforce the orders.
(a) not use the information/documentation to contact individual Owners.
(b) not publish or disseminate the documentation to third parties; and
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2008) 235 CLR 125