State Administrative Tribunal Rules 2004 01-d0-02 Xml

Western Australia

State Administrative Tribunal Act 2004

State Administrative Tribunal Rules 2004

Part 1 — Preliminary

1.Citation

These are the State Administrative Tribunal Rules 2004 1.

2.Commencement

These rules come into operation on 1 January 2005.

3.Terms used in these rules

In these rules, unless the contrary intention appears —

address for service in the proceedings means —

(a)an address given in an application or a notice of representation, as changed from time to time in accordance with these rules;

(b)in the case of a public sector body, if a number or address is recorded for it in the register under rule 34(5), that number or address;

approved form means a form approved under rule 47(1);

business day means a day other than —

(a)a Saturday or Sunday; or

(b)a day that is a public holiday in the place to which the document is sent or delivered or at which it is given;

Corporations Act means the Corporations Act 2001 of the Commonwealth;

direction means a direction given under the Act section 34;

document means anything in writing;

guardian ad litem means a guardian ad litem appointed under the Legal Representation of Infants Act 1977 section 5(1);

notice of representation means a notice of representation filed under rule 34(6) or (8);

notifiable person has the meaning given to that term in the Act section 45(2);

ordinary service means service effected under rule 33;

personal service means service effected under rule 31 or 56(3), (4) or (5);

practice note means a practice note issued under the Act section 33;

pre‑paid post means service effected under rule 32;

public sector body means —

(a)a chief employee, chief executive officer, executive officer, or public sector body as defined in the Public Sector Management Act 1994 section 3(1);

(b)a local government;

(c)a Minister of the Crown; or

(d)a vocational regulatory body;

referring person means a person referred to in the exception to the definition of “applicant” in the Act section 3(1);

the Act means the State Administrative Tribunal Act 2004.

[Rule 3 amended in Gazette 13 Apr 2007 p. 1682; 9 Jul 2010 p. 3241.]

Part 2 — General

Division 1 — Applications

4.Filing applications

(1)An application may be filed with the executive officer by —

(a)presenting it at an office of the Tribunal when the office is open for business; or

(b)sending it to the executive officer by pre‑paid post; or

(c)if the application is of a type approved under rule 7A(1), filing it electronically under rule 7A.

(2)With the prior approval of the executive officer, an application may be filed with the executive officer by sending it to him or her by facsimile transmission in accordance with rule 5.

(3)With the prior approval of the executive officer, an application may be filed with the executive officer by sending it to him or her by email in accordance with rule 6.

(4)An application filed with the executive officer under subrule (1)(a) or (b) must be filed in triplicate.

(5)An applicant or referring person may change the particulars given to the Tribunal in an application or subsequent notice by filing a notice with the executive officer showing the new particulars.

(6)An applicant or referring person who files a notice under subrule (5) must, on the date of filing, give a copy of the notice to a notifiable person.

(7)A change of particulars under this rule is not effective as between the person who is required to give notice of the change and another person until the notice is filed with the executive officer and given to that other person.

(8)An application must be accompanied by a copy of any documents required to accompany the application under the Act, the enabling Act, these rules, a practice note or the approved application form.

(9)Despite subrule (8), a document or a copy of a document referred to in that subrule must be filed —

(a)in such manner as is specified in a practice note, if any; or

(b)whether or not such a practice note has been issued, in accordance with any direction.

`[Rule 4 amended in Gazette 9 Jul 2010 p. 3241.]

5.Filing by facsimile transmission

(1)The executive officer is to approve one facsimile number for each office of the Tribunal for the purpose of receiving applications.

(2)An application sent to the executive officer by facsimile transmission must —

(a)be sent to an approved facsimile number; and

(b)be accompanied by a cover sheet stating —

(i)the filer’s name, postal address, telephone number, facsimile number and email address;

(ii)the total number of pages (including the cover sheet) being transmitted; and

(iii)the date and time the document was sent.

(3)A person who sends an application to the executive officer by facsimile transmission must —

(a)keep the original of the application and the transmission report evidencing successful transmission; and

(b)produce the original of the application and the transmission report as ordered by the Tribunal.

(4)If the Tribunal orders that the original of the application be produced, the first page of the original must be endorsed by the applicant or referring person with —

(a)a statement that it is the original of the application sent by facsimile transmission; and

(b)the date that the original was sent by facsimile transmission.

6.Filing by e mail

(1)The executive officer is to approve a format in which applications may be sent to him or her by email.

(2)The executive officer is to approve at least one email address for the purpose of receiving applications by email.

(3)An application sent to the executive officer by email must —

(a)be sent to an email address approved by the executive officer;

(b)to the extent practicable, be in a form that complies with an approved form;

(c)be capable of being printed with the content and in the format in which it was created;

(d)be accompanied by a cover sheet stating —

(i)the filer’s name, postal address, telephone number, facsimile number and email address;

(ii)the total number of pages (including the cover sheet) being transmitted; and

(iii)the date and time the document was sent.

(4)A person who sends an application to the executive officer by email must —

(a)keep a paper copy of the application; and

(b)produce the paper copy of the application as ordered by the Tribunal.

(5)If the Tribunal orders that the paper copy of the application be produced, the first page of the application must be endorsed by the applicant or the referring person with —

(a)a statement that the paper copy is a true copy of the application sent by email; and

(b)the date that the application was sent by email.

7A.Filing some applications using the Tribunal’s website

(1)The executive officer may approve a particular type of application that can be made electronically by means of the Tribunal’s website (an approved application).

(2)An approved application may be filed electronically only by the following —

(a)the applicant;

(b)the referring person;

(c)a person authorised under section 39 of the Act to represent the applicant or referring person.

(3)A person who files an approved application electronically must —

(a)keep a paper copy of the application; and

(b)produce the paper copy of the application as ordered by the Tribunal.

(4)For the purposes of section 42(3) of the Act, an application filed electronically is accepted by the executive officer when he or she affixes the Tribunal’s seal to a print out of the application.

(5)If the Tribunal orders that a paper copy of an application filed electronically be produced, the first page of the application must be endorsed by the applicant or referring person with —

(a)a statement that the paper copy is a true copy of the application filed electronically; and

(b)the date that the application was filed electronically.

[Rule 7A inserted in Gazette 9 Jul 2010 p. 3241-2.]

7.Acceptance of written applications

(1)For the purposes of the Act section 42(3), an application in writing is accepted by the executive officer when he or she affixes the Tribunal’s seal to it.

(2)A written application must not be accepted, without the leave of the Tribunal, a judicial member or the executive officer, if it appears to the executive officer that the application —

(a)is not substantially complete;

(b)does not substantially comply with these rules; or

(c)is not properly signed or executed.

(3)If an application sent or made in accordance with rule 4(1)(b), (2) or (3) is not accepted, the executive officer is to notify the sender of the application —

(a)by telephone on the telephone number stated on the application or cover sheet;

(b)in writing to the postal address or facsimile number stated on the application or cover sheet; or

(c)by email sent to the email address stated on the application or cover sheet.

8.Oral applications

(1)In this rule —

oral application means an application that under an enabling Act may be made —

(a)orally; or

(b)partly in writing and partly orally.

(2)If an oral application is made, the executive officer is to complete a written application form to the extent that the application is not in writing.

(3)For the purposes of the Act section 42(3), an oral application is accepted by the executive officer when he or she affixes the Tribunal’s seal to the written application completed by him or her.

(4)An oral application must not be accepted, without the leave of the Tribunal, a judicial member or the executive officer, if it appears to the executive officer that the application —

(a)is not substantially complete; or

(b)does not substantially comply with these rules.

9.Time limit for applications: review jurisdiction

Subject to these rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of —

(a)the day on which the decision‑maker gives a notice under the Act section 20(1);

(b)the day on which the decision‑maker makes the decision under the Act section 20(5); or

(c)if, under the Act section 3(3)(a), the Act applies as if a person had made a decision, the day on which any provision of the enabling Act as to when the decision is taken to have been made has effect.

10.Extension of time limit

(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.

(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.

11.Time specified for the purposes of section 22(2) of the Act

For the purposes of the Act section 22(2) the time specified is 7 days after the day on which the application is accepted by the executive officer.

12.Provision of documents and materials by decision maker: section 24 of the Act

(1)In this rule —

material means a statement, document and other material referred to in the Act section 24.

(2)The decision‑maker must provide the material to the Tribunal in accordance with, and within the period specified in, any order made by the Tribunal.

(3)The Tribunal may order a decision‑maker to provide a copy of the material to any other party or to a person who has been granted leave by the Tribunal to make submissions in the proceedings.

(4)The Tribunal may order a decision‑maker to provide it with additional copies of the material.

[Rule 12 amended in Gazette 14 Oct 2005 p. 4569.]

13.Protected matter

(1)If a party considers that any document comprises or contains protected matter and would, in accordance with an order of the Tribunal, be required to be included in that party’s bundle of documents to be filed with the Tribunal and given to another party, the party must file with the Tribunal and give to the other party, within the period specified in the order for the filing of and giving the party’s bundle of documents, a list of documents which —

(a)indicates which document or documents comprise or contain protected matter; and

(b)sufficiently identifies any document that comprises or contains protected matter without disclosing the protected matter; and

(c)indicates that any protected matter has been included within Part B of the party’s bundle of documents.

(2)If subrule (1) applies, a party’s bundle of documents must be divided into 2 parts, Part A and Part B.

(2a)If a document contains protected matter and non‑protected matter, the protected matter must be excised from the document before it is included in Part A.

(2b)Subject to subrule (2a), Part A must —

(a)include all documents in the party’s bundle excluding protected matter; and

(b)be filed with the Tribunal and given to the other party within the period specified in the order for the filing of and giving the party’s bundle of documents.

(2c)Part B must —

(a)include all documents in the party’s bundle which the party considers comprise or contain protected matter; and

(b)be clearly marked as containing protected matter and must be placed into a sealed envelope clearly marked as containing protected matter; and

(c)be filed with the Tribunal within the period specified in the order for the filing of the party’s bundle of documents but must not be given to any other party.

(3)Any application under section 159 or section 160 of the Act must be made to the President in writing within 14 days of the receipt of the list of documents which identifies the document the subject of the application.

[Rule 13 inserted in Gazette 14 Oct 2005 p. 4569‑70; amended in Gazette 13 Apr 2006 p. 1557; 13 Apr 2007 p. 1683.]

Division 2 — Proceedings and hearings

14.Filing of other applications

Rules 4 (other than subrules (4), (5), (6) and (7)), 5 and 6 apply to the filing of —

(a)an application under these rules other than an application as defined in the Act section 3(1) (interim application); and

(b)an election or request under these rules,

as if a reference in those rules to an application were a reference to an interim application, election or request.

[Rule 14 amended in Gazette 14 Oct 2005 p. 4570.]

15.Amendment of grounds or reasons for application

(1)A person who has made an application to the Tribunal may apply in an approved form to the Tribunal to amend the grounds or reasons specified in the application.

(2)The Tribunal may, at any time before making a final decision, grant the application referred to in subrule (1).

[Rule 15 amended in Gazette 14 Oct 2005 p. 4570.]

16.Notice of compulsory conference

The executive officer is to give notice of a compulsory conference in writing and in accordance with any other requirements of these rules.

17.Notice of mediation

The executive officer is to give notice of a mediation in writing and in accordance with any other requirements of these rules.

18.Notice of hearing

The executive officer is to give notice of the time and place for a hearing in a proceeding to the applicant and any notifiable person involved in the proceeding either —

(a)by endorsing the time and place on the copy of the application form to be given to the person; or

(b)by a written notice given to the person.

19.Authentication of decision: section 74 of the Act

For the purposes of the Act section 74, a decision of the Tribunal is authenticated by —

(a)being signed by a member of the Tribunal or the executive officer and having the seal of the Tribunal affixed to it; or

(b)if the decision is entered into a computerised data storage or retrieval system, by a member of the Tribunal or the executive officer entering confirmation of the decision into that system.

20.Time limit for the purposes of section 84(3) of the Act

The time limit specified for the purposes of the Act section 84(3) is —

(a)in the case of a decision other than a final decision, within 2 days of the day on which the decision was made; or

(b)within 7 days of the later of the days referred to in the Act section 105(5)(a) or (b),

whichever is the later.

21.Limit on applications: section 84(4) of the Act

For the purposes of the Act section 84(4), the number of applications is 2.

22.Relief from procedural requirements: section 92(1) of the Act

The Tribunal may exercise any of the powers referred to in the Act section 92(1) in connection with any proceeding.

23.Minor matters procedure: section 93 of the Act

(1)An election made under the Act section 93(2) before an initial directions hearing in a minor proceeding must be made in an approved election form.

(2)The election form must be filed by the applicant with the executive officer.

(3)The applicant must give a copy of the election form to a notifiable person as soon as possible after it is filed with executive officer and, in any event, before the initial directions hearing is held.

(4)If an election is made under the Act section 93(2) at an initial directions hearing, the Tribunal is to record the election made.

24.Request for and return of summons to witness and production of documents and other material by third parties

(1)A request for the issue of a summons under the Act section 66(1) must be made in an approved form.

(2)Where a party wishes the Tribunal to exercise its initiative to require the production of any document or other material under the Act section 66(1)(b), the party must state briefly on the approved form the reasons why it considers that the Tribunal should do so.

(3)A summons will usually be made returnable by the Tribunal at a final hearing. Where a party wishes to have any document or other material produced by a third party prior to a final hearing, the party should make an application under the Act section 35(1).

(4)Any application to set aside a summons or to discharge an order made under the Act section 35(1) in whole or in part or to limit access to any document or other material produced in answer to a summons or in compliance with an order may be made at the hearing at which the summons is returnable or at which the order requires production or at another time prior to the date on which the production of the document or material is required by the summons or order.

(5)A person who is required by a summons or an order made under the Act section 35(1) to produce any document or other material may, unless the person intends to apply to set aside the summons or to discharge the order or to limit access to any document or material, produce the document or material to the executive officer before the date specified in the summons or order and is not then required to attend the hearing on the date specified in the summons or the order, unless the Tribunal orders otherwise or unless the person is also required by the summons to give evidence.

(6)Where a document or material is produced to the executive officer in accordance with subrule (5), each party may inspect and photocopy the document or material within the Tribunal’s office for the purpose of the proceedings unless the Tribunal orders otherwise.

[Rule 24 inserted in Gazette 13 Apr 2006 p. 1557‑8.]

25.Service of summons

(1)A summons in an approved form must be served —

(a)by the party who requested its issue, unless the Tribunal orders otherwise; or

(b)if it is issued at the initiative of the Tribunal, as ordered by the Tribunal.

(2)A summons must be served on the person to whom it is addressed by personal service.

(3)The party who requested the issue of a summons to produce a document or thing must serve a copy of the summons on each other party as soon as practicable after the summons has been served on the person to whom it is addressed.

(4)When a summons to a witness is served, a sufficient sum must be provided as conduct money.

Division 3 — Service

26.Giving copy of application

(1)Subject to these rules or a decision of the Tribunal, a copy of an application must be given under the Act section 45(1) or (2)(a) immediately after it is filed but in any event not more than 7 days after the day on which the application is accepted by the executive officer.

(2)Subject to a decision of the Tribunal, a referring person is to give a copy of an application to the applicant within one day of the day on which the application is accepted by the executive officer.

(3)If an application is made under the Tribunal’s original jurisdiction, subject to these rules or a decision of the Tribunal, a copy of the application must be given to a person other than a public sector body by personal service.

(4)If an application is made under the Tribunal’s original jurisdiction, subject to these rules or a decision of the Tribunal, a copy of the application must be given to a public sector body —

(a)by ordinary service; or

(b)by pre‑paid post.

(5)If an application is made under the Tribunal’s review jurisdiction, subject to these rules or a decision of the Tribunal, a copy of the application must be given —

(a)by ordinary service; or

(b)by pre‑paid post.

27.Exemption: section 45(2)(c) of the Act

A person is exempt under the Act section 45(2)(c) from the requirement to give a copy of the application to a notifiable person if the notifiable person is the decision‑maker and is a referring person in respect of the decision the subject of the application.

28.Giving other documents

Subject to a practice note or direction, if a document, other than an application or a summons, is required to or may be given to a person, the document must be given —

(a)by ordinary service;

(b)by pre‑paid post;

(c)in the case of a company, as defined in the Corporations Act section 9, in a way permitted in the Corporations Act section 109X;

(d)in the case of an incorporated association, as defined in the Associations Incorporation Act 1987 section 3(1), in accordance with section 41 of that Act; or

(e)in the case of an unincorporated association, by delivering it personally to the president, secretary or other similar officer of the association.

29.Giving documents by the Tribunal or executive officer

If a document, other than an application or summons, is required to or may be given to a person by the Tribunal or the executive officer, the document, unless the rules otherwise provide or the Tribunal otherwise orders, is sufficiently given if it is given by ordinary service or pre‑paid post.

30.Giving application to decision‑maker

If a copy of an application must be given to a decision‑maker, it may be given —

(a)if the decision‑maker is not a public sector body, to the chief executive officer of the Department administered by the Minister to whom the administration of the enabling Act under which the decision concerned is given; or

(b)if these rules or an enabling Act prescribes the holder of a particular office as a person to whom the copy may be given, the holder of that office.

31.Personal service: how effected

(1)If a document is required to or may be given by personal service, it is given to —

(a)a natural person, by leaving a copy of the document with him or her;

(b)a corporation, by leaving a copy of the document —

(i)at the registered office of the corporation; or

(ii)if there is no registered office, at the principal place of business or the principal office of the corporation,

with some person apparently an officer of or in the service of the corporation and apparently a person who has reached 16 years of age;

(c)an unincorporated association, by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently a person who has reached 16 years of age,

or as the Tribunal or a judicial member or non‑judicial member may order.

(2)If a person refuses to accept a document, it may be given to him or her by putting the document down in his or her presence and telling him or her the nature of it.

(3)It is not necessary in order to effect personal service that the original document be shown.

(4)Despite subrule (1)(a), personal service on a natural person who is not of full legal capacity is effected by leaving a copy of the document with —

(a)the person’s litigation guardian appointed under the Act section 40(2) or guardian ad litem;

(b)if the person does not have a litigation guardian or guardian ad litem, an administrator of the person’s estate appointed under the Guardianship and Administration Act 1990 or the person’s guardian appointed under a law of a State or Territory;

(c)if the person does not have a litigation guardian, a guardian ad litem, an administrator or a guardian, an adult person who apparently has the care of the person, including the person in charge of a hospital, nursing home or other care facility at which the person is a patient or resident.

(5)A document given by personal service is to be taken to have been given to a person at the time the document is left with a person or at a place in accordance with this rule.

32.Pre‑paid post: how effected

(1)If a document is required to or may be given by pre‑paid post, it is given by sending a copy of the document by pre‑paid post addressed to the person to be served at —

(a)the address for service in the proceedings of that person;

(b)the address of that person’s legal practitioner, litigation guardian, guardian ad litem or agent; or

(c)if, at the time when the copy is to be posted, the person has no address for service in the proceedings, the person’s usual or last known place of business or residence.

(2)A document given by pre‑paid post is to be taken to have been given to a person 2 business days after the day on which the document was posted.

33.Ordinary service: how effected

(1)For the purposes of subrule (2), the proper address of a person is —

(a)the address for service in the proceedings of that person;

(b)the address of that person’s legal practitioner, litigation guardian, guardian ad litem or agent; or

(c)if, at the time when the copy is to be left or posted under that subrule, the person has no address for service in the proceedings, the person’s usual or last known place of business or residence.

(2)If a document is required to or may be given by ordinary service, it is given —

(a)by leaving a copy of the document at the proper address of the person to be served between the hours of 9 a.m. and 5 p.m. on a business day;

(b)by giving a copy of the document in accordance with the Interpretation Act 1984 section 76(d);

(c)if the person to be given the document has specified or authorised a number for service by facsimile transmission under rule 4 or 13(4), by sending the document to the specified or authorised facsimile number;

(d)if the person to be given the document has specified or authorised an address for service by email under rule 4 or 13(4), by sending the document to the specified or authorised address; or

(e)if the person to be given the document is a public sector body, by sending the document to the body’s address for service in the proceedings.

(3)A document must not be given under subrule (2)(c), (d) or (e) if the document (including any attached document) is more than 20 pages.

(4)Despite subrule (3), a document (including any attached document) of more than 20 pages may be given under subrule (2)(c), (d) or (e) if the person to be given the document has agreed to receive a document containing an agreed number of pages more than 20 pages.

(5)If a document is given under subrule (2)(c), (d) or (e), the first page of the document (the cover sheet) must contain the following information —

(a)the giver’s name, postal address, telephone number, facsimile number and email address;

(b)the total number of pages (including the cover sheet) being transmitted;

(c)the date and time the document was sent;

(d)that the document is being sent in relation to an application to the Tribunal.

(6)The time of giving any document is, where the document or copy of the document —

(a)is sent by post under subrule (2)(b), 2 business days after the day on which the document was posted; or

(b)is sent by facsimile transmission or email under subrule (2)(c), (d) or (e), at the time the facsimile or email is received.

(7)If a facsimile or an email is received after 4.00 p.m. on any day, it is to be taken to have been received on the next business day.

34.Address for service

(1)The address of a place for service in the proceedings must be an address within this State at which documents may, during ordinary business hours —

(a)be left for the person whose address for service it is; and

(b)to which documents may be posted to that person.

(2)If a person is represented by a legal practitioner, the address for service in the proceedings must be the address of that legal practitioner or of the legal practitioner’s agent located within this State.

(3)If a person is represented by an agent, the address for service in the proceedings must be the address of that agent located within this State.

(4)A public sector body may by written notice —

(a)give the executive officer a facsimile number or an address for service by email; or

(b)change or withdraw that number or address for service.

(5)The executive officer is to keep in a register an accurate record of a facsimile number or an email address of a public sector body.

(6)If a party to a proceeding is represented by a legal practitioner or an agent and the name and address of the legal practitioner or agent is not provided in the application, the legal practitioner or agent must within 7 days of receiving instructions to represent the party —

(a)file with the executive officer a notice of representation in an approved form duly completed; and

(b)give a copy of the notice to each other party to the proceeding or, if a party is represented by a legal practitioner or agent, that legal practitioner or agent.

(7)If —

(a)a party to a proceeding is represented by a legal practitioner or an agent; and

(b)the name and address of the legal practitioner or agent is not provided in the application; and

(c)the legal practitioner or agent has not complied with subrule (6),

the legal practitioner or agent may not appear in or file any document with the Tribunal or executive officer in relation to the proceeding.

(8)If a legal practitioner or agent ceases to represent a party in proceedings, the legal practitioner or agent must within 7 days of ceasing to represent the party —

(a)file with the executive officer a notice of representation in an approved form duly completed stating —

(i)the legal practitioner or agent has ceased to represent the party; and

(ii)the party’s address for service in the proceedings;

and

(b)give a copy of the notice to each other party in the proceeding or, if a party is represented by a legal practitioner or agent, that legal practitioner or agent.

[Rule 34 amended in Gazette 13 Apr 2007 p. 1684.]

35.Acceptance by legal practitioner or agent

(1)This rule applies to —

(a)an application; or

(b)any document required or permitted to be given in any proceeding,

that is required to be given by personal service.

(2)If a legal practitioner or an agent representing a person in accordance with the Act, an enabling Act or these rules (the representative) makes on a copy of a document to which this rule applies a note that he or she accepts the document on behalf of a person, the document is to be taken, unless the representative is shown not to have had authority to represent the person, to have been duly given to that person on the date on which the representative makes the note or on such earlier date as may be proved.

36.Substituted service

(1)If for any reason it is impractical to give a document in the manner set out in the rules, the Tribunal may, on an application in an approved form by the person required to give that document, order that, instead of using such a manner, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be given the document.

(2)If the Tribunal makes an order under subrule (1), the Tribunal may order that the document is to be taken to have been given on the happening of any specified event, or on the expiry of any specified time.

37.Informal service: confirmation

If for any reason it is impractical to give a document in the manner set out in the rules, but steps have been taken to bring the document to the notice of the person to be given the document, the Tribunal may order that the document is to be taken to have been given to that person on a date specified in the order.

38.Proof of service

For the purposes of the proof that a document has been given to a person, evidence of a statement by a person of his or her identity, that he or she holds some office or has a representative capacity is evidence of his or her identity, that he or she holds that office or has that representative capacity, as the case may be.

Division 4 — Litigation guardian

39.Litigation guardian: section 40(2) of the Act

(1)A person may be appointed a litigation guardian for an adult person under the Act section 40(2) if the person —

(a)is an adult;

(b)has no interest in the proceedings that is adverse to the interest of the person needing the litigation guardian;

(c)can fairly and competently conduct the proceedings for the person needing the litigation guardian; and

(d)has consented to act as the litigation guardian.

(2)A person may apply for the appointment, replacement or removal of a person as a litigation guardian of a party or potential party.

(3)A person appointed as a litigation guardian of a party or potential party must give written notice of the appointment to an applicant or a notifiable person.

(4)A person appointed as a litigation guardian of a party or potential party —

(a)is bound by these rules;

(b)must do anything required by these rules to be done by the party or potential party; and

(c)may, for the benefit of the party or potential party, do anything permitted by these rules to be done by the party or potential party.

(5)Subject to the Act Part 4 Division 5, the Tribunal may order the costs of a litigation guardian to be paid —

(a)by a party; or

(b)from the income or property of the person for whom the litigation guardian is appointed.

Division 5 — Settlements

40.Settlement offers

(1)An offer to settle a proceeding that is before the Tribunal may be made —

(a)with prejudice, meaning that any party may refer to the offer, or to any terms of the offer, at any time during the proceeding; or

(b)without prejudice, meaning that the Tribunal is not able to be told of the making of the offer until after it has made its decision in respect of the matters in dispute in the proceeding (other than in relation to the making of orders in respect of costs).

(2)If an offer does not specify whether it is made with or without prejudice, it is to be treated as if it had been made without prejudice.

(3)A party may make more than one offer.

(4)If an offer provides for the payment of money, the offer must specify the amount of money to be paid and when and how that money is to be paid.

41.Acceptance of settlement offers

(1)An offer may be open for acceptance for any period. However, an offer must be open for acceptance until the commencement of the hearing or until the expiry of a specified period after the offer is made, whichever is the shorter period.

(2)The minimum period that can be specified is 14 days.

(3)An offer cannot be withdrawn while it is open for acceptance without the permission of the Tribunal.

(4)In deciding whether to give permission, the Tribunal may examine the offer, even if it was made without prejudice.

(5)If the offer was made without prejudice, a member of the Tribunal who examines it for the purposes of subrule (4) must take no further part in the proceeding after determining whether or not to give permission.

(6)A party can only accept an offer by giving the party who made it a signed notice of acceptance.

(7)A party may accept an offer even though the party has made a counter‑offer.

[Rule 41 amended in Gazette 13 Apr 2006 p. 1558.]

Division 6 — Costs

42.Order for costs if settlement offer is rejected

(1)This rule applies if —

(a)a party to a proceeding (other than a proceeding in the Tribunal’s review jurisdiction) gives another party to the proceeding an offer in writing to settle the proceeding;

(b)the other party does not accept the offer within the time the offer is open;

(c)the offer complies with rules 40 and 41; and

(d)in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.

(2)If this rule applies, the Tribunal is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal’s order.

(3)In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal —

(a)must take into account any costs it would have ordered on the date the offer was made; and

(b)must disregard any costs it ordered in respect of any period after the date the offer was received.

43.Amount of costs

(1)If the Tribunal makes an order under the Act Part 4 Division 5 for the payment of costs and does not fix the amount of costs, that amount is to be assessed or settled by the executive officer or a member of the Tribunal nominated by the President (the nominated member).

(2)An assessment of costs by the executive officer or a nominated member is to be taken to be an assessment of costs by the Tribunal.

(3)If —

(a)a party fails to attend an assessment of costs having been given reasonable notice of the assessment by the executive officer or a nominated member;

(b)the assessment is adjourned as a result; and

(c)another party incurs additional costs because of the adjournment,

the executive officer or a nominated member may order that the party who failed to attend pay an amount fixed by the executive officer or nominated member in respect of the additional costs of the other party.

(4)An order under subrule (3) may be enforced under the Act section 85 as if it were a monetary order.

Division 7 — Miscellaneous

44.Sending or giving documents by email

(1)If a document may be sent or given to a person (the recipient) under these rules by email, the document must be sent or given by email only if the sender or giver is satisfied that the recipient has a computer with software capable of receiving the document and producing it in legible form.

(2)If —

(a)the recipient may be sent or given a document by email under these rules;

(b)a document is sent or given to the recipient by email in accordance with these rules; and

(c)the recipient’s computer does not receive the document or is not able to produce it in legible form,

the document is to be taken to have not been sent or given to the recipient.

45.Determination of practice and procedure by the Tribunal

A determination of the practice or procedure of the Tribunal under the Act section 32(5) may be made by the Tribunal on its own initiative or on the application of any person in an approved form.

46.Dispensing with compliance with requirement of a rule

The Tribunal, on an application in an approved form by any party or a referring person, or on its own initiative, may dispense with compliance with a requirement of a rule, either before or after the time for compliance with the requirement arises.

47.Forms

(1)A form to be used under the Act must be one approved by the President.

(2)An approved form must be completed in accordance with these rules and any instructions on or attached to the form.

(3)A form may be accepted by the executive officer or dealt with by the Tribunal if it is substantially in the approved form and, subject to rule 7(2), has been substantially completed.

(4)The executive officer is to make the approved forms available to persons requiring them.

Part 3 — Special rules

48.Animal Welfare Act 2002

For the purposes of the Act section 75(1)(c), the following persons are prescribed —

(a)the Minister of the Crown to whom the administration of the Animal Welfare Act 2002 is committed;

(b)the Director General as defined in the Animal Welfare Act 2002 section 5(1); and

(c)if the original decision‑maker was an inspector, as defined in the Animal Welfare Act 2002 section 5(1), that inspector.

49.Credit (Administration) Act 1984

(1)In this rule —

cognate Acts and Commissioner have the meanings given to those terms in the Credit (Administration) Act 1984 section 4.

(2)In any proceedings before the State Administrative Tribunal under the cognate Acts a person is authorised under the Act section 39(1)(f) to be represented by the Commissioner or by a counsel, solicitor or agent for the Commissioner.

50.Employment Agents Act 1976

Under the Act section 39(1)(f), a party to a review of a decision by the Tribunal under the Employment Agents Act 1976 section 22(4) is authorised to be represented by an agent.

51.Equal Opportunity Act 1984

(1)An application for an interim order under the Equal Opportunity Act 1984 section 126 must be made on an application to commence proceedings before the Tribunal under that Act.

(2)In cases of urgency an application for an interim order may be made ex parte.

(3)If an application is made ex parte, a member of the Tribunal may order that the hearing of the application be delayed until any other interested party is informed of the application and given a copy of any documents which have been filed in relation to the application.

(4)If an order is made ex parte, a member of the Tribunal may order the executive officer to give, in any manner which the member considers appropriate, a copy of the order to any person affected by the terms of the order and any other person.

(5)Rule 34(6) and (7) do not apply if the Commissioner for Equal Opportunity, or a counsel or representative of the Commissioner, is the legal practitioner or agent representing the complainant in proceedings relating to a complaint referred to the Tribunal under the Equal Opportunity Act 1984 section 93(1).

[Rule 51 amended in Gazette 28 Mar 2008 p. 918; 29 Aug 2008 p. 4043.]

52.Firearms Act 1973

(1)This rule applies to an application for review of a decision under the Firearms Act 1973 section 22(2).

(2)Under the Act section 39(1)(f), a party to a review of a decision by the Tribunal is authorised to be represented by an agent.

(3)If a licence was —

(a)refused; or

(b)issued with a restriction, limitation or condition the subject of the application for review,

by a member of the Police Force, a copy of the application for review must also be given to that member.

(4)Under the Act section 39(1)(f), the Commissioner of Police is authorised to be represented by a member of the Police Force of Western Australia or an officer of the Department as defined in the Firearms Act 1973 section 4.

[Rule 52 amended in Gazette 14 Oct 2005 p. 4570.]

53.Fish Resources Management Act 1994

Subject to any order the Tribunal may make for costs under the Act Part 4 Division 5, if an application for review under the Fish Resources Management Act 1994 Part 14 is successful one half of the fee referred to in the State Administrative Tribunal Regulations 2004 Schedule 12 item 1 is to be refunded to the applicant.

54.Guardianship and Administration Act 1990

(1)This rule applies to proceedings under the Guardianship and Administration Act 1990.

(2)Rules 26 and 47 do not apply to an application made to the Tribunal under the Guardianship and Administration Act 1990 section 40.

(3)Despite Part 2 Division 3, if a document is required to be given to a person referred to in the Guardianship and Administration Act 1990 section 115(1) under the Act it must be given personally to that person in the manner specified in section 115 of that Act.

55.Medical Act 1894

Under the Act section 39(1)(f), a person who makes an application for review under the Medical Act 1894 section 13(8) is authorised to be represented by a person other than a legal practitioner.

56.Mental Health Act 1996

(1)In this rule —

authorised hospital, community treatment order, Council of Official Visitors, involuntary patient and supervising psychiatrist have the meanings given to those terms in the Mental Health Act 1996 section 3.

(2)If a document is required to be given to the Council of Official Visitors under the Act, the Mental Health Act 1996 or these rules, it may be given to the Council by giving the document to the executive officer of the Council.

(3)Despite rule 31, if a document is required to or may be given to an involuntary patient who is not the subject of a community treatment order, personal service is effected by leaving a copy of the document with the person in charge of the authorised hospital in which the person is detained.

(4)Despite rule 31, if a document is required to or may be given to an involuntary patient who is the subject of a community treatment order personal service is effected —

(a)by leaving a copy of the document with him or her; or

(b)if the involuntary patient cannot be found, by leaving a copy of the document with his or her supervising psychiatrist.

(5)Despite rule 31, if a document is required to or may be given to an involuntary patient who is absent on leave of absence and cannot be found, personal service is effected by leaving a copy of the document with the person in charge of the authorised hospital in which the person is required to be detained.

(6)A copy of a document that must be given to an involuntary patient under the Act, an enabling Act or these rules must also be given to —

(a)the patient’s litigation guardian appointed under the Act section 40(2) (if any);

(b)the patient’s guardian ad litem (if any);

(c)if an administrator of his or her estate has been appointed under the Guardianship and Administration Act 1990, the administrator; and

(d)if the patient has a guardian appointed under a law of a State or Territory, that guardian.

57.Pawnbrokers and Second‑hand Dealers Act 1994

(1)Under the Act section 39(1)(f), a licensing officer who makes an allegation to the Tribunal under the Pawnbrokers and Second‑hand Dealers Act 1994 section 27(2) that it should take action against a specified licensee under section 27 of that Act is authorised to be represented by a member of the Police Force of Western Australia or an officer of the Department as defined in section 3(1) of that Act.

(2)Under the Act section 39(1)(f), a licensing officer whose decision is subject to review under the Pawnbrokers and Second‑hand Dealers Act 1994 section 30(1) is authorised to be represented by a member of the Police Force of Western Australia or an officer of the Department as defined in section 3(1) of that Act.

[Rule 57 inserted in Gazette 14 Oct 2005 p. 4570; amended in Gazette 13 Apr 2007 p. 1684.]

58. Public Order in Streets Act 1984

(1)This rule applies to an application for review under the Public Order in Streets Act 1984 section 8(1).

(2)Under the Act section 45(2)(c), the applicant is exempt from the requirement to give a copy of the application to the notifiable person.

(3)The executive officer in determining the date for hearing the application must ensure that it takes place as soon as is practicable, but in any event on a date before the date of the proposed public meeting or procession.

(4)In addition to the persons referred to in rule 18, the executive officer is to give notice of the time and place for a hearing in a proceeding to the Commissioner of Police, or the authorised officer to whom the application for the permit was made, as the case may require.

[(5)deleted]

(6)Under the Act section 39(1)(f), the Commissioner of Police, or the authorised officer to whom the application for the permit was made, as the case may require, is authorised to be represented by a member of the Police Force of Western Australia.

[Rule 58 amended in Gazette 14 Oct 2005 p. 4570; 13 Apr 2007 p. 1685.]

59.Retirement Villages Act 1992

(1)In this rule —

agent means any person who is not a legally qualified person;

Commissioner has the meaning given to that term in the RV Act section 3(1);

legally qualified person means —

(a)a legal practitioner;

(b)an articled clerk as defined in the Legal Profession (Admission) Rules 2009 rule 14; or

(c)any person who holds or has held legal qualifications under the laws of this State or any other place;

the RV Act means the Retirement Villages Act 1992.

(2)A party to a proceeding before the Tribunal under the RV Act may be represented by an agent if —

(a)the party is unable to appear personally or conduct the proceedings properly himself or herself; and

(b)no other party will be unfairly disadvantaged by the fact that the agent is allowed so to act.

(3)Under the Act section 39(4), a party to a proceeding before the Tribunal under the RV Act is not entitled to be represented by a legal practitioner unless —

(a)all the parties agree and any party who is not so represented will not be unfairly disadvantaged;

(b)one of the parties is a legally qualified person;

(c)one of the parties is a body corporate and any other party elects to be so represented;

(d)one of the parties is unable to appear personally or conduct the proceedings properly himself or herself; or

(e)the proceedings are instituted or defended, or the conduct thereof has been assumed, by the Commissioner.

(4)Subrule (3) does not apply to a minor proceeding as defined in the Act section 93(1).

[Rule 59 amended in Gazette 9 Jul 2010 p. 3242.]

60.Rights in Water and Irrigation Act 1914

(1)Under the Act section 39(1)(f), a person who makes an application for review under the Rights in Water and Irrigation Act 1914 Part III Division 3B is authorised to be represented by an agent.

(2)For the purposes of the Act section 75(1)(c), the Minister to whom the administration of the Rights in Water and Irrigation Act 1914 is committed is prescribed.

(3)Subject to any order the Tribunal may make for costs under the Act Part 4 Division 5, if an application for review under the Rights in Water and Irrigation Act 1914 Part III Division 3B is withdrawn before a hearing is held, the executive officer may refund to the applicant one half of the fee referred to in the State Administrative Tribunal Regulations 2004 Schedule 15 paid by the applicant.

61.Security and Related Activities (Control) Act 1996

(1)Subrules (2), (3) and (4) apply to —

(a)an allegation by the Commissioner to the Tribunal that there is proper cause for disciplinary action under the Security and Related Activities (Control) Act 1996 section 67(1);

(b)a reference by the Commissioner to the Tribunal under section 67(3b) of that Act; and

(c)an application for review under section 72 of that Act.

(2)In this rule —

Commissioner has the meaning given to that term in the Security and Related Activities (Control) Act 1996 section 3;

Department has the meaning given to that term in the Security and Related Activities (Control) Act 1996 section 3.

(3)Under the Act section 39(1)(f), the Commissioner or a licensing officer whose decision is subject to review is authorised to be represented by a member of the Police Force of Western Australia or an officer of the Department.

(4)On the determination of a review the executive officer is to give the Commissioner a copy of any relevant decision and, if a licence has been revoked, any licence and identity card that has been delivered to the Tribunal.

(5)Despite rule 26(3), a copy of the application under the Security and Related Activities (Control) Act 1996 section 67(1) or (3b)(a) may be given to the licensee by pre‑paid post or ordinary service.

[Rule 61 amended in Gazette 14 Oct 2005 p. 4570; 29 Aug 2008 p. 4043-4.]

62.Strata Titles Act 1985

If a strata company is given a copy of an application under the Act section 45, the strata company must give a copy of the application to the persons referred to in the Strata Titles Act 1985 section 79(2)(a), (b) or (c).

63.Planning and Development Act 2005

(1)This rule applies to a review by the Tribunal under the Planning and Development Act 2005 Part 14.

(2)Under the Act section 39(1)(f) a party is authorised to be represented by an agent.

(3)As soon as practicable after the Minister makes a referral under the Planning and Development Act 2005 section 211(2), the Tribunal is to notify the person who made the representation and the relevant local government that the representation has been referred to the Tribunal.

(4)Rule 34(6) and (7) do not apply if the State Solicitor is the legal practitioner representing the Western Australian Planning Commission in proceedings under the Planning and Development Act 2005 Part 14.

[Rule 63 inserted in Gazette 13 Apr 2006 p. 1558; amended in Gazette 29 Aug 2008 p. 4044.]

64.Taxation Administration Act 2003

Rule 34(6) and (7) do not apply if the State Solicitor is the legal practitioner representing the Commissioner of State Revenue in proceedings under the Taxation Administration Act 2003.

[Rule 64 inserted in Gazette 29 Aug 2008 p. 4044.]

Notes

1This is a compilation of the State Administrative Tribunal Rules 2004 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Citation	Gazettal	Commencement
State Administrative Tribunal Rules 2004	30 Dec 2004 p. 6849‑89	1 Jan 2005 (see r. 2)
State Administrative Tribunal Rules (Amendment No. 1) 2005	14 Oct 2005 p. 4568‑70	17 Oct 2005 (see r. 2)
State Administrative Tribunal Rules (Amendment No. 1) 2006	13 Apr 2006 p. 1556‑8	13 Apr 2006 2
State Administrative Tribunal Amendment Rules 2007	13 Apr 2007 p. 1682‑5	13 Apr 2007
Reprint 1: The State Administrative Tribunal Rules 2004 as at 13 Jul 2007 (includes amendments listed above)
State Administrative Tribunal Amendment Rules 2008	28 Mar 2008 p. 918-19	r. 1 and 2: 28 Mar 2008 (see r. 2(a)); Rules other than r. 1 and 2: 29 Mar 2008 (see r. 2(b))
State Administrative Tribunal Amendment Rules (No. 2) 2008	29 Aug 2008 p. 4043-4	r. 1 and 2: 29 Aug 2008 (see r. 2(a)); Rules other than r. 1 and 2: 30 Aug 2008 (see r. 2(b))
State Administrative Tribunal Amendment Rules 2010	9 Jul 2010 p. 3240-2	r. 1 and 2: 9 Jul 2010 (see r. 2(a)); Rules other than r. 1 and 2: 10 Jul 2010 (see r. 2(b))

2The commencement date of 9 Apr 2006 that was specified in r. 2 was before the date of gazettal.