Argyle v State Administrative Tribunal
[2022] WASC 317
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ARGYLE -v- STATE ADMINISTRATIVE TRIBUNAL [2022] WASC 317
CORAM: SMITH J
HEARD: 6 SEPTEMBER 2022
DELIVERED : 14 SEPTEMBER 2022
FILE NO/S: CIV 1787 of 2022
BETWEEN: FIONA ELIZABETH MARIE ARGYLE
Applicant
AND
STATE ADMINISTRATIVE TRIBUNAL
Respondent
ANNABELLE CINDY PURSER
First Other Party
STEPHEN PURSER
Second Other Party
Catchwords:
Administrative law - Judicial review - Review jurisdiction of the State Administrative Tribunal under pt 14 of div 1 of the Planning and Development Act 2005 (WA) - Leave granted by the Tribunal for applicant to file a submission outlining the concerns with the development the subject of the proceeding before the Tribunal pursuant to s 242 of the Planning and Development Act - Nature and function of review proceedings in planning matters - Procedure to be applied by the Tribunal inquisitorial and adversarial compared to administrative procedure applied by original decision-maker - Rights of a submission maker compared to the rights of parties including any intervenor to adduce evidence considered - Leave granted pursuant to s 242 to make a submission to the Tribunal does not extend to the provision of expert evidence annexed to a submission
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA)
Town Planning and Development Act 1928 (WA) (repealed)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | P McQueen |
| Respondent | : | No appearance |
| First Other Party | : | No appearance |
| Second Other Party | : | No appearance |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | In Person |
| First Other Party | : | Moharich & More |
| Second Other Party | : | Moharich & More |
Case(s) referred to in decision(s):
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373
Doepgen v Mugarinya Community Association Inc [2014] WASCA 67
Herald & Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174
Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213
Hossain v Minister for Immigration and Boarder Protection [2018] HCA 34; (2018) 92 ALJR 780
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LS v Mental Health Review Board [2013] WASCA 128
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Papamihail v Legal Profession Complaints Committee [No 3] [2022] WASC 236
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Polizzi v Commissioner of Police [No 2] [2017] WASC 166
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purser and City of Nedlands [2022] WASAT 51
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54
WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93
Table of Contents
1.0 The application for judicial review and the result
2.0 Background and the decision by the Tribunal the subject of the application for judicial review
3.0 Judicial review
4.0 The grounds for judicial review and the result
5.0 The nature and function of review proceedings
6.0 Who is entitled to be heard in an application for review under pt 14 of div 1 of the Planning and Development Act?
6.1 The persons who can be heard in a review proceeding under pt 14 of div 1 of the Planning and Development Act
6.2 The rights conferred on a person granted leave to intervene in a proceeding by the Tribunal
6.3 The rights of a party to a review proceeding under pt 14 of div 1 of the Planning and Development Act to adduce evidence
7.0. Disposition of the grounds of review
7.1 The applicant's submissions
7.2 The rights conferred on a person granted leave to make submissions to the Tribunal pursuant to s 242 of the Planning and Development Act
7.1.1 The decision of the Tribunal in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands
7.1.2 Disposition of ground 1
7.1.3 Disposition of ground 2
7.1.4 Disposition of ground 3
SMITH J:
1.0 The application for judicial review and the result
The applicant applies for judicial review, of a decision of the State Administrative Tribunal constituted by Member Lavery made on 1 July 2022 in proceeding DR 262 of 2021 to disregard and exclude from consideration pars 19 to 22 and Annexure A of a submission made by the applicant (pursuant to s 242 of the Planning and Development Act2005 (WA) and order 2 of the Tribunal made in Purser and City of Nedlands[1] dated 1 June 2022, which granted the applicant leave to file a submission outlining its concerns with the development the subject of the proceeding).
[1] Purser and City of Nedlands [2022] WASAT 51.
The applicant also applies for a writ of certiorari to quash the decision, alternatively, a writ of mandamus to compel the Tribunal to consider the entire submission, alternatively a writ of prohibition preventing the Tribunal from making a determination in the proceeding (final decision) without having due regard to the entire submission.
The parties to the proceeding in the Tribunal in DR 262 of 2021 either filed notices to abide or informed the court that they did not intend to appear and be heard on the application for judicial review.
For the reasons that follow, I am of the opinion that the application should be dismissed, and no order as to costs should be made.
2.0 Background and the decision by the Tribunal the subject of the application for judicial review
On 1 June 2022, the applicant made an application to the State Administrative Tribunal in DR 262 of 2021, Purser and City of Nedlands, for leave to intervene in an application made by Annabelle and Stephen Purser for review of a decision made by the City refusing development approval for a single house to be located on Lot 99 (No 37C) Kinninmont Avenue, Nedlands (37C Kinninmont Avenue).
The applicant is the owner of Lot 275 (No 39) Kinninmont Avenue, Nedlands, which adjoins the southern boundary of 37C Kinninmont Avenue (39 Kinninmont Avenue). 39 Kinninmont Avenue is the subject of an application for subdivision approval before the Western Australian Planning Commission.
On 1 June 2022, a senior member of the Tribunal, Dr S Willey, dismissed the application to intervene but ordered that the applicant may file a submission seven days prior to the final hearing, outlining the concerns with the development the subject of the proceeding.[2]
[2] Purser and City of Nedlands [2022] WASAT 51.
Section 242 of the Planning and Development Act provides:
Persons who are not parties, submissions from
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
On 27 June 2022, the applicant filed and served on the parties to the proceeding in DR 262 of 2021 a submission which referred to in pars 19 to 22, and annexed as Annexure A, an expert report of an urban design consultant, Malcolm Alexander Mackay, dated 24 June 2022.
On 1 July 2022, after hearing evidence on 30 June 2022 in the substantive hearing in DR 262 of 2021, the Tribunal constituted by Member Lavery, called upon the applicant to make a submission as to whether the inclusion of pars 19 to 22 of the submission and the expert report were properly before the Tribunal as submissions authorised by the order of the Tribunal made on 1 June 2022, and s 242 of the Planning and Development Act.
Counsel for the applicant made a submission that the applicant was entitled to have the submission, including the expert report, considered by the Tribunal because:
(a)both order 2 of the Order made on 1 June 2022 and s 242 of the Planning and Development Act do not place a limitation on the nature or form of the applicant's submission; an expert report is, therefore, not precluded from forming part of the submission;
(b)the expert report formed part of the s 242 submission as relevant and appropriate material;
(c)if the Tribunal were not to consider the submission, such conduct would constitute an error of law under cl 67(2)(y) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). The Tribunal stands in the position of the original decision‑maker, who would receive as part of any submission from the public, supporting expert reports which would be accepted and fully considered by the original decision‑maker;
(d)as the Tribunal is not bound by the rules of evidence, there is no legal or procedural prohibition disallowing the consideration of the whole submission. Rather, cl 67(2)(y) of the Planning and Development (Local Planning Schemes) Regulations obliges its consideration; and
(e)the Tribunal's consideration of the submission would not deny the parties (Mr and Mrs Purser and the City) procedural fairness. The parties could have chosen to call the author of the expert report attached to the submission as a witness, but the parties' forensic choices do not form part of the primary question of whether the submission is relevant and should be received.
Counsel for the City broadly agreed with the applicant's submission that the expert report should be considered part of the submission as it informs the submission and, therefore, should be received by the Tribunal. The City agreed the expert report could be tested through the hearing process but submitted:
(a)it was not a witness statement and should not be treated as evidence; and
(b)it was for the Tribunal to determine what weight should be given to the expert report and the submission.
Mr and Mrs Purser's representative objected to the expert report being accepted by the Tribunal as part of the submission and submitted:
(a)the expert report was, in form and substance, a witness statement;
(b)the expert report substantially contained opinion, much of which was unsubstantiated;
(c)the inclusion of the expert report in the submission is an attempt to intervene in the proceedings which is contrary to the decision made by Dr Willey on 1 June 2022 (refusing leave to intervene); and
(d)the Tribunal would be able to make a fully informed judgment as to the issues between the parties, particularly with respect to compatibility, and the amenity impacts posed by the proposed development on the proposed future lot without consideration of the expert report. In particular, two expert witnesses had already given evidence before the Tribunal who had taken up some of the concerns of the applicant.
In reply, counsel for the applicant made a submission that it is open to the Tribunal to admit the expert report into evidence if the Tribunal wishes is to do so because by s 32(2) the Tribunal is not bound by the rules of evidence and is authorised by s 32(3) of the State Administrative Tribunal Act 2004 (WA) to admit into evidence the contents of any document despite non‑compliance with any requirements specified in the rules in relation to that document or service.
After hearing submissions on this point, the Tribunal in effect struck out pars 19 to 22 of the submission and Annexure A. The reasons for this decision were as follows:
(a)the inclusion of (and reference to) the expert evidence in the submission was contrary to the orders made by the Tribunal on 1 June 2022. The leave given by the Tribunal to make a submission in accordance with s 242 was specific to the person, Ms Argyle, and no leave was granted for an expert submission;
(b)in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands, Barker J observed in respect of the comparable provision in s 62 of the Town Planning and Development Act1928 (WA) (now repealed) that (the status of being heard by way of a submission) does not give the interested person the right to give evidence, call witnesses, examine or cross‑examine witnesses or appeal against the Tribunal's decision;[3]
(c)the engagement of an expert to produce a report that supports a s 242 submission is, in essence, a submitter attempting to call an expert witness to which the rights of a submission maker under s 242 do not extend; and
(d)the issue of greatest concern to the submitter has been fully agitated by the City in the proceedings and, as such, the exclusion of the expert report will not hinder the Tribunal from reaching the correct and preferable decision.
[3] Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 [67].
The Tribunal went on to hear the remaining evidence and closing submissions by the parties and then reserved its decision.
The court took steps to hear this application for judicial review expeditiously on the basis that it had been informed that the Tribunal had not delivered its decision in DR 262 of 2021, and was awaiting the outcome of this application for judicial review.
3.0 Judicial review
Judicial review is a review of whether an administrative decision‑maker, such as the Tribunal, has exceeded its statutory powers or has failed to exercise its powers and functions according to its statute.
Jurisdictional error refers to a failure to comply with one or more statutory pre‑conditions or conditions to an extent which results in a decision which has been made in fact, lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it.[4]
[4] Hossain v Minister for Immigration and Boarder Protection [2018] HCA 34; (2018) 92 ALJR 780 [24] (Kiefel CJ, Gageler & Keane JJ).
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.[5] That is, the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do.[6]
[5] Hossain v Minister for Immigrationand Boarder Protection [2018] HCA 34; (2018) 92 ALJR 780 [24] (Kiefel CJ, Gageler & Keane JJ).
[6] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 141 (Keane J).
In Kirk v Industrial Relations Commission of New South Wales, the plurality observed that it is not possible to mark the metes and bounds of jurisdictional error.[7] Their Honours did, however, refer at [71] to the categories outlined by Professor Mark Aronson in his paper 'Jurisdictional Error without the Tears'. In summary, those categories are:[8]
(a)a mistaken assertion or denial of the very existence of jurisdiction;
(b)a misapprehension or disregard of the nature or limits of the decision‑maker's functions or powers;
(c)acting wholly or partly outside the general area of the decision‑maker's jurisdiction, by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance (for example, a civil court trying a criminal charge);
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant Act makes the validity of the decision‑makers acts contingent on the actual or objective existence of those things, rather than on the decision‑maker's subjective opinion;
(e)disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute pre‑conditions to the validity of the decision‑maker's act or decision;
(f)misconstruing the decision‑maker's Act in such a way as to misconceive the nature of the function being performed or the extent of the decision‑maker's powers;
(g)acting in bad faith; and
(h)breaching (the hearing or bias rules of) natural justice.
[7] Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[8] Aronson M, 'Jurisdictional Error without the Tears' in Groves & Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, 335 ‑ 336.
4.0 The grounds for judicial review and the result
In ground 1, the applicant claims that the Tribunal erred in law by making the decision outside the limits of the functions and powers conferred on the Tribunal in circumstances where:
(a)section 242 of the Planning and Development Act does not contain a limitation on the nature and content of a submission;
(b)order 2 of the Order made on 1 June 2022 granted the applicant leave to file a submission outlining its concerns with the development; and
(c)leave to make a submission did not exclude submissions on the impact of the development on adjoining land or the provision of an expert report or opinion to support that submission.
In ground 2, the applicant claims in the alternative, the Tribunal erred in law by making the decision outside the limits of the functions and powers conferred on the Tribunal by disregarding and excluding from consideration pars 19 ‑ 22 and Schedule A of the submission in circumstances where the entire submission was a matter which the Tribunal must have regard to, pursuant to the Planning and Development (Local Planning Schemes) Regulations, in particular the requirements of cl 67(2)(y).
In ground 3, the applicant claims in the alternative that the Tribunal denied the applicant procedural fairness by making the decision in circumstances where Annexure A (being an expert report prepared by an architect and urban design consultant) was a fundamental component of the submission and by excluding it, the opportunity for the applicant to be heard on the issue that is the subject of order 2 of the Order made on 1 June 2022, was denied.
5.0 The nature and function of review proceedings
The review jurisdiction of the Tribunal is not judicial review and the purpose of review by the Tribunal is not to search for legal error.
Its powers and functions are to conduct a merits review and it is required to decide a matter afresh, and is not confined to the material considered by the original decision-maker.
This purpose, and the power to decide a matter afresh, is found in s 27 of the State Administrative Tribunal Act which provides as follows:
27. Nature of review proceedings
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The Tribunal's powers in its review jurisdiction are found not only in the State Administrative Tribunal Act, but also in the applicable enabling legislation, which in this matter is pt 14 of div 1 of the Planning and Development Act. Section 29 of the State Administrative Tribunal Act provides:
29. Tribunal’s powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may —
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decision-maker’s decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker’s decision —
(a)is to be regarded as, and given effect as, a decision of the decision-maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decision-maker has power to do anything necessary to implement the Tribunal’s decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision-maker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal’s decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
The power conferred upon the Tribunal by s 27 and s 29 of the State Administrative Tribunal Act is to revisit or amend the original decision of the decision-maker. This was made clear by Murphy JA in LS v Mental Health Review Board when his Honour comprehensively reviewed the Tribunal's review jurisdiction as follows:[9]
Section 27(1) of the SAT Act refers to a hearing 'de novo'. A hearing de novo 'involves the exercise of the original jurisdiction and the "informant or complainant starts again and has to make out his case and call his witnesses"': Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 124; Builders Licensing Board v Sperway Constructions (Syd) Pty Limited [1976] HCA 62; (1976) 135 CLR 616, 620. It means that a matter is heard afresh and a decision is given on the material presented at the hearing. The body undertaking the review is required to exercise its powers whether or not there was an error by the original decision‑maker: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] - [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [22] - [23]. By the nature of the review, the Tribunal is commonly said to be placed 'in the shoes of' the original decision-maker: Minister for Immigration and Ethnic Affairs v Pochi [1986] FCA 85; (1980) 44 FLR 41, 46; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [40]. It is also commonly referred to as a 'merits review': Shire of Augusta‑Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [72].
The reference to 'correct and preferable' in s 27(2) recognises that in some cases, particularly where an exercise of discretion is involved, more than one decision may correctly be made, and the role of the Tribunal in such a case is to make the decision that is preferable: Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [29]; Shi v Migration Agents Registration Authority [140].
By s 27(2), the correct and preferable decision is to be made by the Tribunal 'at the time of the decision upon the review'. This has been interpreted as referring to the time of the Tribunal's decision: Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266 [24] (Chaney J). The appellant did not contend otherwise in this appeal, and no reason was advanced to doubt the correctness of that conclusion. I should add that in my view s 29(5)(b) of the SAT Act does not compel a different conclusion. In Shi v Migration Agents Registration Authority, the legislation under consideration, the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) contained a provision, s 43(6), which was similar to s 29(5)(b) of the SAT Act. The AAT Act did not contain a provision in terms of s 27(2) of the SAT Act. Nevertheless, the court held that the relevant tribunal was required to give attention to the state of affairs existing at the date of its decision, and was not confined to the circumstances existing at the date of the decision under review.
Section 29(2) of the SAT Act allows for the possibility that the powers of the Tribunal in the exercise of its jurisdiction may be broader than those of the original decision-maker. Whether they are or not depends upon there being some other source of power either in the SAT Act or in the enabling Act: Middlecoat v Commissioner of Police [2012] WASC 309 [32]. Subject to that matter, the task of the Tribunal is, by its nature, to 'do over again' what the original decision-maker did: cf Shi v Migration Agents Registration Authority [100].
[9] LS v Mental Health Review Board [2013] WASCA 128 [91] ‑ [94].
The procedure to be followed in review proceedings is consistent with an element of informality that applies to many statutory administrative tribunals, and is provided for in s 32 of the State Administrative Tribunal Act as follows:
32. Practice and procedure, generally
(1)The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal -
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)Without limiting subsection (2), the Tribunal may admit into evidence the contents of any document despite non‑compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(4)The Tribunal may inform itself on any matter as it sees fit.
(5)To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines.
(6)The Tribunal is to take measures that are reasonably practicable -
(a)to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and
(b)to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding; and
(c)to ensure that the parties have the opportunity in the proceeding -
(i)to call or give evidence; and
(ii)to examine, cross‑examine or re‑examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
(7)The Tribunal –
(a)is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding; and
(b)may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and
(c)may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and
…
However, the procedure to be applied by the Tribunal in a review proceeding under pt 14 of div 1 of the Planning and Development Act is different to the procedure applied by the original decision-maker. This is because although the Tribunal is not bound by the formal rules of evidence, in its review jurisdiction it is required to conduct an inquisitorial hearing by adversarial procedures whereby the parties are to be provided with the opportunity to call and adduce evidence and examine and test the evidence of witnesses by cross-examination.
This point was made clear by Corboy J in Polizzi v Commissioner of Police [No 2] when his Honour made the following relevant observations in respect of s 32 of the State Administrative Tribunal Act:[10]
[P]rovisions such as s 32(2) of the SAT Act (which are common for statutory tribunals - see, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) are intended to be facilitative, not restrictive. Their purpose is to free tribunals, at least to some degree, from the constraints that are otherwise applicable to courts of law and which are regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J).
The object of the Tribunal's review jurisdiction is to produce the correct and preferable decision at the time that the decision under review was made: s 27(2) of the SAT Act. The review is to be by way of a hearing de novo; it is not confined to matters that were before the decision‑maker and may involve a consideration of new material. Accordingly, the Tribunal must follow procedures that are best suited to the statutory purpose of review and it may consider material that would not be admissible in a court of law according to the rules of evidence.
As Hill J observed in Casey v Repatriation Commission (1995) 60 FCR 510 provisions such as s 32(2) of the SAT Act and s 33(1) of the AAT Act mean what they say:
The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance (514).
However, it should be borne in mind that the rules of evidence 'represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth': R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 (Evett J), cited with approval by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [17]. The rules of evidence provide the conventional means by which the relevance and reliability of evidence is assessed; that is, the means by which a body of proof that has logical probative force is produced. The rules of evidence are part of the machinery by which a court ordinarily ensures that the parties receive a fair hearing in a system of justice that is essentially adversarial. Although proceedings in the Tribunal are inquisitorial in nature, the process by which the Tribunal conducts a review hearing has many of the features of a contested hearing in an adversarial setting. That is reflected in some parts of s 32 of the SAT Act. However, that does not mean 'that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule': Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492 (Brennan J).
[10] Polizzi v Commissioner of Police [No 2] [2017] WASC 166 [77] ‑ [80].
In addition, the element of informality is reflected in s 39 of the State Administrative Tribunal Act which authorises a person to appear in person or may be represented by another person. However, particular categories of persons, such as a body corporate, cannot be represented by a person other than a legal practitioner.
Where a Tribunal is by operation of legislation, not bound by the rules of evidence, what follows from that is that the rules of evidence do not apply at the stage of reception of evidence. However, the process to be applied when evaluating evidence when making a decision is a different matter. The Tribunal is required to act on material that is logically probative.
In Pochi and Minister for Immigration and Ethnic Affairs,[11] Brennan J set out the principles upon which tribunals should assess the material before it when they are not bound by the rules of evidence. His Honour explained:[12]
The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: 'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".' That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 said: 'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.'
Lord Denning MR in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 said much the same: 'Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law' and he repeated that observation in Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz, Administrative Law, Boston, 1976 paras 115 et seq), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment, supra, required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding: see Schwartz, op cit, para 118. But in Richardson v Perales 402 US 389 at 407 the Consolidated Edison case, supra, was construed in this way: 'The contrast the Chief Justice was drawing … was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force". This was not a blanket rejection by the court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.'
The majority judgments in Bott's case, supra, show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at 249, 250: 'The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.'
[11] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482.
[12] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492 ‑ 493.
The duty cast on the Tribunal to make findings as to the existence or non‑existence of facts based upon logically probative material, is to be distinguished from the rights of the categories of persons who can be heard in a review application, and whether each category of persons does or does not have the right to produce relevant probative material by way of evidence.
6.0 Who is entitled to be heard in an application for review under pt 14 of div 1 of the Planning and Development Act?
6.1 The persons who can be heard in a review proceeding under pt 14 of div 1 of the Planning and Development Act
It is only an 'affected person' who can apply to the Tribunal for a review of a grant of development approval on conditions, a refusal of an application for development approval, or a refusal to amend or cancel a development approval.[13]
[13] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, pt 9, cl 76(2).
An affected person is the applicant for development approval or the owner of land in respect of which an application for development approval is made.[14]
[14] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, pt 9, cl 76(1).
By operation of s 237 of the Planning and Development Act and s 36(1) and (4) of the State Administrative Tribunal Act, an applicant for review (or the owner of the land in respect of which the applications are made) and the decision-maker are each a party to a proceeding before the Tribunal.
The Tribunal has power under s 38 of the State Administrative Tribunal Act to join a person to a proceeding if the Tribunal considers that:
(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or
(b) the person's interests are affected by the proceeding; or
(c) any other reason it is desirable that the person be joined as a party.
However, in an application for review under pt 14 of div 1 of the Planning and Development Act, s 38 of the State Administrative Tribunal Act does not apply.[15]
[15] Planning and Development Act 2005 (WA), s 243.
Instead, the Tribunal is empowered under s 242 to receive or hear submissions from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
Thus, a person who did not apply to the original decision-maker for development approval, or is not a landowner or the decision-maker to proceeding, can only seek to be heard in a review proceeding heard by the Tribunal under pt 14 of div 1 of the Planning and Development Act if granted leave to appear as an intervenor. Alternatively, that person can make an application for leave to make submissions pursuant to s 242 of the Planning and Development Act.
6.2 The rights conferred on a person granted leave to intervene in a proceeding by the Tribunal
Section 37(3) of the State Administrative Tribunal Act empowers the Tribunal to give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
In Re The State Administrative Tribunal; Ex parte McCourt, their Honours made the following observations about the proper construction of the grant of a right to intervene under s 37(3) of the State Administrative Tribunal Act when considered with s 62 and s 63[16] of the Town Planning and Development Act:[17]
In our respectful opinion, there is nothing in the subject matter, scope and purpose of the SAT Act to suggest that the principal basis upon which private persons should be permitted to intervene is to advance some public interest or to argue for a particular view of the law: see, in this last respect, Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331 per Dixon J; R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177 at 182; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 399 ‑ 400 per Hutley JA; Levy v Victoria (1997) 189 CLR 579 at 601 ‑ 602; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at [9] per Gleeson CJ and [135] per Kirby J.
Nor is there anything in the notion of intervention, as opposed to joinder as a party, which suggests that the concept is designed with public, rather than private, interests in mind. While the position under each statute must, of course, depend upon the terms of that statute, rights of intervention, exceptional cases aside, are ordinarily accorded only to persons who 'wish to maintain some particular right, power or immunity in which they are concerned': Australian Railways Union at 331 per Dixon J (speaking in the context of intervention in matters arising under the Commonwealth Constitution); Levy at 601 ‑ 602 per Brennan CJ (speaking in a similar context); Bradley at 399 per Hutley JA (who provides an informative history of the concept of intervention); and see also s 62 of the TPD Act. Consequently, the presence in the Act of s 37(1) and s 37(2) is more readily explicable by reference to an intention to expand the category of those who might intervene rather than by an intention to restrict the basis upon which a person acting in a private capacity might intervene.
In our respectful opinion, the importance of the distinction between s 37 and s 38 rests in another aspect of the concept of intervention, as that concept has traditionally been understood, being that, in the absence of any statutory intention to the contrary, an intervener, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided: Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213 at 216 per King CJ (who also provides a useful history of the concept of intervention) and at 221 per Debelle J; News Ltd at [9] per Gleeson CJ and [135] per Kirby J. In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the Administrative Tribunal to the matters at issue between the applicant and the decision‑maker, as it has done through s 62 and s 63 of the TPD Act.
Consequently, in an ordinary case (where, unlike the present case, there is no statutory exclusion of the power to join parties), a decision whether to join a person as a party or as an intervener would depend very largely upon the nature of that person's interest and upon the nature and effect of the proceedings concerned. The decision will also be influenced by the objectives of the SAT Act, including those of minimising costs and avoiding delay.
It is also important to mention the further distinction that, unlike the case of joinder of a party under s 38, s 37 provides that leave to intervene may be given 'on conditions, if any, that the Tribunal thinks fit'.
[16] The terms of s 62 and s 63 of the Town Planning and Development Act 1928 (WA) (repealed) were contained in pt V of the Town Planning and Development Act which provided for applications for review to be dealt with by the Tribunal and were identical to s 242 and s 243 of the Planning and Development Act.
[17] Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [41] (Steytler P, Wheeler and McLure JJA) [39] ‑ [43].
Consequently, if a person is granted leave to be heard as an intervenor, pursuant to s 36(1) of the State Administrative Tribunal Act, the effect of the grant of leave is the intervenor becomes a party to the proceeding.
6.3 The rights of a party to a review proceeding under pt 14 of div 1 of the Planning and Development Act to adduce evidence
As a party to a review proceeding under pt 14 of div 1 of the Planning and Development Act, pursuant to s 32(2)(c), an intervenor has the opportunity to call or give evidence, to examine, cross-examine or re‑examine witnesses, and to be heard or otherwise have their submissions considered.[18]
[18] See Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 [259] ‑ [260] (Quinlan CJ).
However, an intervenor, unlike a party, would ordinarily be allowed only to support or oppose a position contended for by either the landowner (or applicant) or the original decision-maker (the local government) and will not be permitted to expand the issues to be decided.[19]
[19] Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [41] (Steytler P, Wheeler & McLure JJA); applying Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213, 216 (King CJ) and News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563 [9] (Gleeson CJ) and [135] (Kirby J).
7.0. Disposition of the grounds of review
7.1 The applicant's submissions
In ground 1, the applicant, in effect, argues that the decision made by Member Lavery on 1 July 2022 was contrary to order 2 of the Order made by Dr Willey on 1 June 2022, and that order 2 did not exclude or prevent the incorporation of an expert report as part of the submission.
In support of this contention it is, in effect, argued that when the reasons given by Dr Willey for making order 2 are considered, it is clear that the order provided leave for a submission that would contain expert planning evidence.
It is argued that once the Tribunal had made order 2 on 1 June 2022, the only constraint on the permissible content of the submission was that 'the submission was to outline the concerns with the development the subject of the proceeding'.
It is then said to follow that, in the absence of any power conferred on Member Lavery to vary the order made by Dr Willey, it was not open to Member Lavery to delete the relevant paragraphs of the submission and the annexure containing the expert report.
In ground 3, it is argued that the Tribunal denied the applicant the right to be heard in the proceeding on the terms that had previously been granted on 1 July 2022, thereby denying the applicant procedural fairness.
In respect of ground 2, the applicant points out that where a public submission is received by the original decision-maker on a development application, there is no statutory limitation on the content of such a submission, and any such public submission received needs to be given due regard in the assessment and determination of the development application.[20] Further, there is no prohibition on a member of the public attaching for consideration by the original decision‑maker an expert report. Similarly, it is argued that a submission made pursuant to s 242 does not prohibit the inclusion of expert opinion or anything else constituting 'evidence' in a submission.
[20] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, cl 67(2)(y).
In support of the applicant's submissions in respect of ground 1, the applicant makes the following submission.
The applicant contends that s 242 of the Planning and Development Act does not impose any limitation on the permissible subject matter of the submission, and that the meaning of the word 'submission' is to be construed as no different to submissions in respect of a development application that a local government (and original decision-maker) may receive during a consultation period.[21]
[21] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, cl 64 and cl 67(2)(y).
The applicant concedes that as a non-party she is prohibited from calling or giving evidence in a proceeding. However, the applicant contends that the annexure of, and reference to, an expert opinion in a written submission, does not constitute calling or giving evidence within the meaning of s 32(6)(c) of the State Administrative Tribunal Act.
In this respect, when the decision of Barker J in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands refers to a person making submissions under s 242 of the Planning and Development Act not having a right to give evidence, it is argued that his Honour was referring to the person not being able to give evidence in addition to the content outlined in their submission.
In providing the submission, including the expert report, the applicant concedes she presented the Tribunal with content that included expert opinion, but argues that:
(a)the applicant was not purporting to call an expert witness in the proceeding;
(b)if the Tribunal had received the submission in full (including the expert report), then doing so would not have in any way amounted to the applicant becoming a de-facto party to the proceeding;
(c)if the submission was received in full by the Tribunal, then the parties' expert witnesses would have had the opportunity to comment upon the submission and counsel for the parties would have had the opportunity to make their own submissions in relation to the submission; and
(d)the applicant would then not have had any further right of reply in respect of those expert witness comments and counsel submissions.
In addition, the applicant points out that she would not have been permitted to call the author of the expert report as a witness at the final hearing in the proceeding or ask questions of the parties' expert witnesses.
It is said to follow that the task of the Tribunal would be to consider the submission, in light of any expert witness comments and submissions made by the parties, before making its own determination as to the weight to be given to the submission in determining the development application the subject of the proceeding in DR 262 of 2021.
7.2 The rights conferred on a person granted leave to make submissions to the Tribunal pursuant to s 242 of the Planning and Development Act
7.1.1 The decision of the Tribunal in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands
In Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands,[22] the landowner had applied to the Tribunal for a review of the condition of development imposed by the City of Nedlands on a conditional development approval for a mixed use development on land historically known as the Steve's Hotel site. Mr Muller and Mrs Woodhouse, who resided in the locality and were opposed to the proposed redevelopment of the site and the manner proposed, made an application to intervene in the proceedings which was refused by a senior member of the Tribunal. The Tribunal, however, made an order which permitted them to renew their application for intervention depending on the outcome of a mediation.
[22] Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54.
Following mediation and further dealings between the landowner and the City, the Council resolved to adopt a modified proposal for development and to seek a determination of the Tribunal approving the modified form of redevelopment. Mr Muller and Mrs Woodhouse then renewed their application to the Tribunal for leave to intervene.
Mr Muller and Mrs Woodhouse wished to intervene in order to give evidence themselves and present evidence from a traffic engineer to the effect that the development would generate a need for a greater number of car parking spaces than calculated by the City.
The Tribunal, constituted by the President, Barker J, refused the renewed application to intervene and ordered that the Tribunal would receive written submissions from Mr Muller and Mrs Woodhouse in relation to the determination of the proceedings proposed by the parties, and the Tribunal may also, in its discretion, hear from them orally at the hearing.
In his Honour's reasons for refusing the application to intervene, his Honour observed that a person who is an intervener has the full range of rights that a party to a proceeding has, including the right to fully participate in the proceedings, to call evidence, to examine and cross‑examine witnesses in an adversarial context, and exercise the parties rights to appeal to the Supreme Court in respect of any decision made.[23]
[23] Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 [57].
His Honour went on to find that intervention should ordinarily only be allowed where a person can demonstrate a capacity to represent a broader public interest or recognise authority for doing so, that would not otherwise be represented in the proceedings, and there is a need for that interest to be represented in the proceedings. In this respect, his Honour's finding on this point was subsequently disapproved of by the Court of Appeal in Re The State Administrative Tribunal; Ex parte McCourt who found in an application for judicial review that a person seeking leave to intervene need not be concerned to represent a public interest.[24]
[24] Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 (Steytler P, Wheeler & McLure JJA)
After refusing leave to intervene in the proceedings, Barker J then went on to find that if Mr Muller and Mrs Woodhouse wished to avail themselves of the right to make submissions in relation to the proposed determination to be considered by the Tribunal, then he would be prepared to receive their written submissions pursuant to s 62 of the Town Planning and Development Act,[25] having earlier found in his reasons that:[26]
In properly interpreting and understanding the powers of the Tribunal under the State Administrative Tribunal Act to permit intervention in proceedings under s 37(3), I think it follows that regard must be paid to the clear Parliamentary intention that ordinarily persons in the position of the proposed intervenors cannot expect to be joined as 'parties' to a review proceeding under the Town Planning and Development Act. However, they may be heard in these types of proceedings by way of 'submissions' in relation to the application if the Tribunal decides they have a sufficient interest. The status however of a submission‑maker does not give the interested person the right to give evidence, call witnesses, examine or cross‑examine witnesses, or appeal against the Tribunal's decision.
[25] Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 [75].
[26] Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 [67].
Barker J was clearly correct in finding that a person who is granted leave to make submissions has no right to give evidence, call witnesses, examine or cross‑examine witnesses or appeal against a Tribunal's decision. The applicant does not cavil with his Honour's observation on this point but claims that a person granted leave to make a submission to the Tribunal within the meaning of s 242 of the Planning and Development Act, in a review proceeding under pt 14 of div 1 of the Planning and Development Act, does not prohibit a submission‑maker to make a submission that contains a component of evidence.
7.1.2 Disposition of ground 1
I do not agree that order 2 of the Order made on 1 June 2022 by the Tribunal was to the effect that leave was granted for the applicant to provide a submission to the Tribunal that would contain expert planning evidence. To the contrary, other than the requirement that the applicant's submission was to outline the concerns the applicant had with the development the subject of the proceeding, order 2 did not specify or confine the content of this submission. In any event, the Tribunal could only make an order within power.
For the reasons that follow, the Tribunal has no power to make an order authorising a submission maker who is granted leave under s 242 of the Planning and Development Act to provide a submission in a review proceeding that contains or annexes expert evidence.
Further, I do not agree that the reasons given by Dr Willey contemplated that expert evidence would be provided to the Tribunal pursuant to the grant of leave to make a submission. Dr Willey made it clear in his reasons when considering the applicant's application to intervene, that the applicant should not be allowed to adduce evidence from an independent architect and urban design consultant because that evidence would likely be adduced by the City and would not assist the Tribunal but instead result in duplication of evidence and the parties incurring additional and unnecessary costs.[27]
[27] Purser and City of Nedlands [2022] WASAT 51 [21] - [24] and [46] - [47].
It is in this context that Dr Willey's observation in [56] of his reasons must be understood. In [54] ‑ [56] Dr Willey said:
The relevant considerations, for the purposes of s 242 of the PD Act, include:
a)the nature and strength of the interest of the proposed submitter;
b)the contribution which the [proposed submitter] is likely to be able to make to a proper resolution of the issues before the [Tribunal];
c)whether the interest which the [proposed submitter] represents and the material to be advanced by that person will be adequately dealt with by the parties already before the [Tribunal];
d)the impact upon the proceedings;
e)the interests of the parties before [the Tribunal] as of right and the public interest in the prompt and efficient despatch of proceedings; and
f)any other factors particular to the case.
In this instance, I find that the Proposed Intervenor's interest in the proceeding, as an adjoining landowner, is relatively strong and that written submissions would not impact on the conduct of the proceeding.
While the submission would canvas and overlap with the planning evidence that will no doubt be adduced by the parties, the position of the Proposed Intervenor as a neighbour would, in my view, inform that evidence and therefore assist the Tribunal in reaching the correct and preferable decision.
Although counsel for the applicant made a submission that when Dr Willey stated that the submission would canvas and overlap with the planning evidence that would be adduced by the parties, Dr Willey's observation could only be interpreted as authorising a submission that contained planning evidence, I do not agree.
What appears to be contemplated by this passage is that the applicant would be entitled to make a submission about principles of proper planning and the planning evidence to be adduced by the parties. Even if I am wrong about what was contemplated by Dr Willey in this passage, Dr Willey did not make an order authorising the applicant to file a submission that annexed as part of the submission, expert evidence in the form of a report written by an independent planning expert.
Even if an order had been made authorising the applicant to provide as part of her submission an expert report, the effect of the order would have been ultra vires. The power to grant leave to a person to make submissions is not a broad power similar to the power of the Tribunal to grant leave to intervene pursuant to s 37(3) of the State Administrative Tribunal Act, which empowers the Tribunal to grant leave to intervene on conditions, if any, that the Tribunal thinks fit.
The scope of the discretionary power conferred on the Tribunal by the word, 'may' in s 242 of the Planning and Development Act, to receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal forms the requisite opinion that the person has a sufficient interest in the matter, is, like any discretionary power conferred by statute, is to be exercised fairly and reasonably having regard to the subject matter, scope and purpose of the legislation.[28]
[28] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 [40]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 [40]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22], [65], [134]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24], recently applied in Papamihail v Legal Profession Complaints Committee [No 3] [2022] WASC 236 [105] (Allanson J).
It is a well-established principle of statutory construction that a legislative instrument as a whole forms part of the statutory context.[29] It is also well-established that where one Act is to be read with the provisions of another Act, each of the provisions of the two Acts must be construed as if they were included in one Act.[30]
[29] Project Blue Skyv Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71].
[30] See the discussion by the learned authors, DC Pearce and RS Geddes Statutory Interpretation in Australia 9th ed par 7.31.
The Acts in this matter are the review provisions of the Planning and Development Act, and the powers and functions of the Tribunal to hear a review application pursuant to the provisions of the State Administrative Tribunal Act. These provisions must be read together and construed as a whole.
As the applicant properly points out, the expert report attached as Annexure A to the submission is evidence. The form of the expert report is in an admissible form that properly could be tendered into evidence by a party not only before the Tribunal, but also in proceedings before a court as independent expert opinion evidence in the area of specialised knowledge of urban planning.[31]
[31] In the expert report, the author Mr Mackay, an urban design consultant who holds qualifications in Architecture and Urban Design and Urban Planning states that he has read the Tribunal's pamphlet titled, 'A guide for experts giving evidence in the State Administrative Tribunal', and is bound by an obligation to assist the Tribunal impartially with matters relevant to his expertise; Affidavit of Fiona Elizabeth Margaret Argyle affirmed on 2 September 2022, Annexure FA-7, pars 3.1 and 3.2.
It is not the case, however, as submitted by counsel for the applicant the hearing before Member Lavery on 1 July 2022, that it would have been open for the Tribunal to receive the expert report into evidence pursuant to s 32(3) of the State Administrative Tribunal Act.
Section 32(3) cannot be construed to allow the Tribunal to receive into evidence a document that is expert opinion evidence when it is only parties who can call or give evidence pursuant to s 32(3). The right of a party to call or give evidence must necessarily extend to the provision of documentary evidence for consideration by the Tribunal in the proceedings.
Although the Tribunal is said to stand in the shoes of the decision‑maker, it can, pursuant to s 27, consider new material, whether or not that material existed at the time the original decision was made by the decision-maker. In respect of an application under a planning scheme, to produce the correct and preferable decision at the time of the decision upon the review, it is not the case that the Tribunal is to apply the same practice and procedure in producing the correct and preferable decision as the decision-maker.
This is because when a decision-maker considers an application for development approval, the deemed provisions of the local planning scheme pursuant to sch 2 of the Planning and Development (Local Planning Schemes) Regulations prescribe a procedure that is not adversarial. Clauses 62 and 63 of sch 2 specify the form of an application and the material that must accompany an application for development approval. Pursuant to cl 64 of sch 2, on receipt of a complying application the local government must advertise particular applications, give notice of the proposed development to particular owners and occupiers of property, and erect signs.
The procedure for the original decision-maker (a local government authority) to deal with applications for development approval is not inquisitorial nor adversarial; it is administrative.
Clause 65A of sch 2 empowers the local government to request additional information or material, and cl 66 empowers the local government to consult with other authorities if it forms the opinion that development approval may affect other statutory, public or planning authorities.
Clause 67(1) prescribes that applications for particular nonconforming uses cannot be approved, and s 67(2) sets out the metes and bounds of the matters that a local government is to give due regard to, to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application.
Clause 75 provides the time the deciding applications for development approval may be made within and requires a local government to give to the applicant written notice of its decision to grant or refuse to grant development approval.
The Tribunal applies a different procedure to the administrative procedure applied by a local government. As set out in 5.0 and 6.1 to 6.3 of these reasons, the Tribunal in a review proceeding under pt 14 of div 1 of the Planning and Development Act conducts an inquisitorial hearing by the application of adversarial procedures, by the parties calling and adducing evidence and examining and testing the evidence by witnesses by cross‑examination.
It is only a party to a review proceeding under pt 14 of div 1 of the Planning and Development Act who has the right to adduce evidence. A person who is granted leave to make submissions to the Tribunal pursuant to s 242 has no right to adduce evidence.
For these reasons, ground 1 of the grounds of review cannot succeed.
7.1.3 Disposition of ground 2
Clause 67 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations provides for the matters that must be specifically considered by a local government authority when considering whether to grant development approval.
Clause 67(2)(y) provides that in considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to 'any submissions received on the application' to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application.
The reference to 'any submissions received on the application' in cl 67(2)(y) is clearly a reference to any submissions received by the original decision-maker (the local government) prior to making a decision whether or not to approve a development, and if approval is granted what conditions should attach to that grant.
The construction of the words 'any submissions received on the application' do not inform the meaning of submissions received or heard by the Tribunal pursuant to a grant of leave to make submissions, pursuant to s 242 of the Planning and Development Act.
For this reason, ground 2 of the grounds of judicial review cannot succeed.
7.1.4 Disposition of ground 3
What is required to accord procedural fairness will depend on the particular circumstances of the case.[32] The authorities have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision' of which review is sought.[33]
[32] Doepgen v Mugarinya Community Association Inc [2014] WASCA 67 [11].
[33] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J); WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 [45] (RD Nicholson J); Herald & Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174 [32] (Maxwell P, Eames & Nettle JJA agreeing); Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422 [12] (Dixon J).
In Mijatovic v Legal Practitioners Complaints Committee, Martin CJ said:[34]
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 - 504 …
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
[34] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [3] ‑ [4].
As set out in 7.1.2 of these reasons, order 2 of the Order made on 1 June 2022 did not, and could not, authorise the receipt of submissions which contained expert evidence.
In light of this finding, the issue raised in ground 3 of the grounds of judicial review cannot arise as the right of a submitter who is granted leave to make submissions to the Tribunal, pursuant to s 242 of the Planning and Development Act, does not extend to the provision of evidence.
For these reasons, it cannot be found that the applicant was denied procedural fairness.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
14 SEPTEMBER 2022
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