HE [2026] WASAT 49

[2026] WASAT 49 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : HE [2026] WASAT 49 MEMBER : PRESIDENT GLANCY HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 7 MAY 2026 FILE NO/S : SAT Act 2 of 2026 BETWEEN : MINGCUI HE Applicant Catchwords: Practice and procedure - Application for leave to commence subsequent proceeding pursuant to s 49 of the State Administrative Tribunal Act 2004 (WA) - Where previous proceedings dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) - Leave required where subsequent proceeding is of the same kind in relation to the same matter as previously dismissed proceedings - Turns on own facts Legislation: Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 16D State Administrative Tribunal Act 2004 (WA), s 47, s 49, s 60(2), s 88 Result: Leave is refused -- 1 of 8 -- [2026] WASAT 49 Page 2 Category: B Representation: Counsel: Applicant : N/A Solicitors: Applicant : N/A Case(s) referred to in decision(s): Saje [2026] WASAT 27 Spiro [2022] WASAT 29; (2022) 105 SR (WA) 124 -- 2 of 8 -- [2026] WASAT 49 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 Mrs He seeks leave, pursuant to s 49 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to commence a proceeding which has previously been dismissed by the Tribunal under s 47 of the SAT Act on the basis that it was misconceived and lacking in substance. 2 Matter CC 642 of 2025 was commenced on 16 September 2025. It was commenced after I granted leave on 16 September 2025, under s 49 of the SAT Act, for Mrs He to bring the proceeding following the dismissal by Senior Member Le Miere of matter CC 305 of 2025.1 Matter CC 305 of 2025 raised the same issues as were the subject of matter CC 642 of 2025. If leave is granted this would be Mrs He's third attempt to succeed in her action against the respondent. 3 The dispute is a matter arising under s 16D of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). Mrs He is the lessee of a commercial property under a lease with the respondent lessor (Respondent). She sought compensation for loss and damage which she says was occasioned by misleading and deceptive conduct of the Respondent. The details of the dispute are traversed in the transcript of the reasons for decision delivered orally by Member Barton on 18 December 2025. Outcome 4 For reasons which follow I will not grant the leave required to bring the proceeding. Determination on the documents 5 Mrs He filed an 11-page document in support of her application (Submission). That document is headed 'Application for Leave under SAT Act s 49 (supporting submissions: Procedural Fairness Framework, Chronology and Interests of Justice)'. It annexed a 47- page Book of Documents filed by Mrs He in matter CC 642 of 2025 on 3 January 2026 and dated 26 December 2025. 6 In light of the history of this matter, I have determined the application on the documents pursuant to s 60(2) of the SAT Act. 1 The application for leave under s 49 was matter SAT Act 1 of 2025. -- 3 of 8 -- [2026] WASAT 49 Page 4 Consideration 7 There is a public interest in finality of litigation. Relitigating matters already determined is typically an abuse of process. Generally speaking, the limited resources of the Tribunal, which are ultimately the community's resources, ought not be expended on relitigating a matter where a party has already had an opportunity to run their case. It would be unfair to a successful party to forever be at risk of having to become involved in further proceedings about the same matter. It would also bring the judicial system into disrepute. Exceptions to that general position include the exercise of any statutory right of appeal. Additionally, that there may be cases where it is appropriate to depart from that general principle is recognised in s 49 of the SAT Act. 8 In the recent decision of Saje [2026] WASAT 272 Deputy President Jackson DCJ adopted observations made by President Pritchard JA (as she then was) in Spiro [2022] WASAT 29; (2022) 105 SR (WA) 124,3 as to matters to which the Tribunal will have regard in determining an application under s 49 of the SAT Act. I too respectfully adopt those observations. 9 In summary, in considering whether to grant leave, the Tribunal will need to consider: (a) the extent to which the proceeding now sought to be commenced is of the same kind as that previously dismissed or struck out; (b) the basis upon which the earlier proceeding was struck out; and (c) whether it is in the interests of justice to grant leave. 10 Whether the interests of justice favour the grant of leave will depend on considerations including: (a) the extent of prejudice to the respondent occasioned by the grant of leave; (b) why the proceeding was struck out or dismissed; (c) why the applicant wants to commence proceedings of the same kind; 2 Saje [2026] WASAT 27 at [9] - [10]. 3 Spiro [2022] WASAT 29; (2022) 105 SR (WA) 124 at [19] - [24]. -- 4 of 8 -- [2026] WASAT 49 Page 5 (d) whether the applicant was given an opportunity to be heard in the course of the previous proceedings; and (e) whether there is practical utility to the grant of leave. 11 Mrs He's Submission acknowledges that she wishes to lodge a fresh application concerning 'the same underlying dispute'. She says that she wants to do so because the dispute should be determined on a 'procedurally fair footing and by reference to contemporaneous documentary record, rather than in a posture distorted by hearing-day ambush and the denial of minimal practical assistance'. 12 Mrs He's Submission then sets out the many ways in which she says she was denied procedural fairness in the hearing of matter CC 642 of 2025. They include allegations that she was taken by surprise by aspects of the way that the Respondent ran its case at the hearing, that the Tribunal did not allow her to be represented by her son, and that she was not assisted to navigate the numerous documents which had been filed by the Respondent and which were referred to in the course of the hearing. The alleged denials of procedural fairness are identified under the headings: 1. 'Re-ordered Questions of Law/Errors of Law'; 2. 'Scope-shift distortion: agreed Step Sequence, s 47, and Issue U1'; 3. 'Participation safeguards: representative role, s 41 equality of arms'; 4. 'Reasons/dealing with key procedural requests'; 5. 'Fact finding reasoning errors: credibility shortcut vs record': 'Illogical/legally unreasonable reasoning - global adverse credibility from communication errors'; 7. 'Safer alternative procedure ignored'; 8. 'Integrity of fact finding: advocate-witness contamination'; and 9. 'Costs consequences tainted by unfair posture': 'costs discretion vitiated by procedural unfairness/failure to consider causation and fairness'. -- 5 of 8 -- [2026] WASAT 49 Page 6 13 One need look no further than those headings to appreciate that the Tribunal dealt comprehensively with the issues raised in the proceeding and embarked on a consideration of the merits of the dispute before dismissing the application as misconceived and lacking in substance. Additionally, a review of the transcript of the reasons for decision given orally on 18 December 2025 reveals that the Tribunal dealt comprehensively with the issues raised in the proceeding and embarked on a consideration of the merits of the dispute before ultimately dismissing the application as misconceived and lacking in substance. 14 The issues which Mrs He seeks to raise to support her application for leave are matters that she may have been entitled to raise in an appeal from the decision. Indeed, Mrs He did commence an appeal from the Tribunal's decision in the Supreme Court. That appeal was discontinued by Mrs He on 23 February 2026. She subsequently wrote to me as President of the Tribunal on 20 March 2026 informing me that she did not withdraw willingly and wished to have her concerns addressed and her dispute properly determined by the Tribunal. 15 Although this application is an ex parte application and so there is no evidence or submissions as to prejudice which might be occasioned for the Respondent if leave is granted, it is beyond doubt that the Respondent would be prejudiced by a grant of leave under s 49 of the SAT Act. While Mrs He's proposed orders seek to limit that prejudice by proposing that the Tribunal determine the application on the documents and without making any credibility findings and without the filing of any additional submissions, it seems inherently unlikely that the dispute could ever be determined without the need to hear evidence and make findings of credibility. In my view, Mrs He's proposal for the conduct of a fresh hearing is unlikely to be appropriate or acceptable to the Respondent. Given the Respondent has had legal representation in relation to this dispute previously, it is reasonable to assume it would do so again. Further, uncertainty is a form of prejudice in and of itself. 16 In my view, given the issues raised in the proposed action have been previously determined by the Tribunal, that Mrs He's concerns are ones which could be and were the subject of an appeal (albeit one which was discontinued) and that the proposed Respondent would likely suffer some prejudice as a result of a grant of leave, and having regard to the need for there to be finality of litigation other than in appropriate cases, I conclude that it would not be appropriate to grant leave to bring the proceeding afresh in the Tribunal. -- 6 of 8 -- [2026] WASAT 49 Page 7 17 Accordingly, leave to commence a further proceeding of the same kind in relation to the same subject matter as that previously raised and dismissed in matters CC 305 of 2025 and subsequently in CC 642 of 2025 is refused and the application is dismissed. Application that the Respondent pay the Tribunal's costs for certain matters in CC 642 of 2025 18 In her application for leave under s 49 of the SAT Act Mrs He also seeks an order under s 88 of the SAT Act 'that the Respondent pay the Tribunal's costs thrown' away as a consequence of what she described as three 'ambush episodes' being: a. 'a late filing on 24 June 2025'; b. 'a late filing, expansion despite non-acceptance for filing on 29 November 2025'; and c. 'a last minute agenda reshaping and Late U1 issue injection on 19 November 2025'. 19 Proceeding CC 642 of 2025 was dismissed on 18 December 2025. 20 Costs were resolved on 9 April 2026 following submissions in respect of costs being made by the parties in that matter. 21 I have no jurisdiction to make costs orders in relation to that concluded proceeding. Orders The Tribunal orders: 1. Leave to commence a further proceeding of the same kind in relation to the same subject matter as that previously raised and dismissed in matters CC 305 of 2025 and CC 642 of 2025 is refused and the application for leave is dismissed. -- 7 of 8 -- [2026] WASAT 49 Page 8 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. JD Associate to the Hon Justice Glancy 7 MAY 2026 -- 8 of 8 --