Hockey and Anor and Owners Of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64

In Hockey and Anor and Owners Of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64 the applicants applied for an order appointing an administrator to a strata scheme which contains 13 lots. The owners of Lot 1, (which was used as a caravan park and was substantially greater than the remaining lots) declined to participate in the proceedings and challenged the constitutional standing of the Tribunal. All other owners who have responded to the application supported the proposed appointment. The Challenge to the constitutional standing of the Tribunal included that its members are not officers of the Commonwealth of Australia and that the Tribunal is a company and “simply cannot and does not exist”, that it does not “sit under Chapter III of the Commonwealth Constitution” and that “Federal Law overrides (State/s and Statute/s) proclaimed laws”. The court responded:

“Mr Murphy’s and Ms Sherwood’s constitutional attack on the standing of the Tribunal is entirely without merit and is based on a misunderstanding of the constitutional relationship between Commonwealth and State Parliaments.  That relationship is succinctly explained by Wheeler JA in Glew v Shire of Greenough [2006] WASCA 260 at [5], and following. What Mr Murphy and Ms Sherwood do not appear to appreciate is that while the Commonwealth Constitution provides that a State Law will be invalid if inconsistent with a Commonwealth Law, the Commonwealth Constitution was superimposed on and assumed the existence of, pre-existing State constitutions. In relation to Western Australia, s 2 of the Constitution Act 1889 (WA) empowers the State to make laws for the peace, order and good government of Western Australia.

In Hedley v Spivey [2012] WASCA 116 the Court of Appeal refused leave to appeal on grounds which included that the State Government of Western Australia is a company and that the State Courts did not sit under and comply with Chapter III of the Constitution of Australia. The Court of Appeal concluded that the applicant had been properly refused leave to appeal by the Court below on the basis that the proposed grounds of appeal were vexatious and had no basis in law.  The establishment of the Tribunal pursuant to the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (SAT Conferral of Jurisdiction Act) falls within the extensive grant of power of the State government to make laws for the peace, order and good government of Western Australia. The Tribunal is clearly not a court with any Federal jurisdiction and it does not purport to be in applying the powers granted to it under the SAT Conferral of Jurisdiction Act or any subsequent legislation conferring jurisdiction to the Tribunal. Arguments of the type raised by Mr Murphy and Ms Sherwood have been rejected time and again: see Glew v White [2012] WASCA 138 and the authorities referred to at [13]. The challenge to the jurisdiction of the Tribunal is rejected.”

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