Argyle v State Administrative Tribunal

Case [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Town Planning and Development Act 1928 (WA) (repealed)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

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AGLC
Argyle v State Administrative Tribunal [2022] WASC 317
Case
[2022] WASC 317
Decision Date

CaseChat Overview and Summary

Argyle brought an appeal against a decision of the State Administrative Tribunal. The dispute concerns the validity of a decision made by the Tribunal regarding the planning and development of land. The matter was heard in the Supreme Court of the relevant state. The central issue before the court was whether the Tribunal had erred in law by making a decision outside the limits of its functions and powers. Specifically, the applicant argued that the Tribunal had made a decision based on a submission about the impact of the development on adjoining land, which was not within the scope of the powers conferred on the Tribunal.

The court examined whether the Tribunal had made a decision outside the limits of the functions and powers conferred on it by the relevant legislation. The applicant contended that the Tribunal's decision was invalid because it was based on a submission that was not within the scope of its powers under section 242 of the Planning and Development Act. The court considered whether the Tribunal had misconstrued its Act, acted on a mistaken assumption about jurisdictional facts, or disregarded relevant considerations as required by the Act.

In determining the appeal, the court found that the Tribunal had indeed made a decision outside the limits of its powers. The court concluded that the Tribunal had misconstrued the nature and scope of its functions under the Act by considering a submission on the impact of the development on adjoining land. This submission was not within the scope of the powers conferred on the Tribunal by the Act. The court further held that the Tribunal's decision was invalid due to this jurisdictional error. The appeal was allowed, and the decision of the Tribunal was quashed.

The final order of the court was that the decision of the State Administrative Tribunal was quashed, and the matter was remitted back to the Tribunal for reconsideration in accordance with the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.