Byrne and Shire Of Broome - [2006] WASAT 376

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: BYRNE and SHIRE OF BROOME [2006] WASAT 376

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 DECEMBER 2006

FILE NO/S: DR 379 of 2006

BETWEEN: JOHN BYRNE
Applicant
AND
SHIRE OF BROOME
Respondent

Catchwords:

Local government - Preliminary issue - Jurisdiction - Whether SAT has jurisdiction to review a decision of a local government made in awarding a tender for the provision of goods or services - Whether a decision not to award a tender for goods or services to a person involves a decision not to grant the person an authorisation under Local Government Act 1995(WA) Pt 3, a local law or a regulation that is to operate as if it were a local law - Meaning of "authorisation" - Meaning of "grant" - Application dismissed as misconceived

Legislation:

Local Government (Functions and General) Regulations 1996 (WA), Pt 4
Local Government Act 1995 (WA), s 3.25, s 3.57, s 9.1, s 9.1(1), s 9.1(2), s 9.1(3), s 9.2, s 9.7, s 9.7(2)
State Administrative Tribunal Act 2004 (WA), s 13(1), s 17(1), s 47(1)(a), s 60(2)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr PL Wittkuhn with Mr DF Nicholson

Solicitors:

Applicant: Self-represented
Respondent: McLeods

Case(s) referred to in decision(s):

Bird & Anor and Shire of Broome & Anor [2006] WASAT 338
Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16
Metal Manufacturers Pty Ltd v Lewis (1998) 13 NSWLR 315
Transport Accident Commission v Moore [2004] VSCA 60

Case(s) also cited:

Arnold v Wood (1996) 135 FLR 343
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Hutchins v Collins (1996) 136 ALR 153
Meudell v Mayor of Bendigo (1900) 26 VLR 158
Re Stevenson Finance Corporation Pty Ltd [1994] 1 Qd R 448
Schokker v Federal Commission of Taxation (1998) 162 ALR 275
Secretary, DSS v Rurak (1990) 99 ALR 17
Webster v McIntosh (1980) 32 ALR 603

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An unsuccessful tenderer for a contract to produce a telephone directory for a local government purported to seek review of the local government's decision to award the tender to another person. The local government raised a preliminary issue as to whether the Tribunal had jurisdiction to entertain the proceedings.
The Tribunal determined that it does not have jurisdiction to review a decision of a local government made in awarding a tender for the provision of goods or services. This is because such a decision is not as to whether the local government will grant a person an authorisation under a relevant law.
The application for review was dismissed as misconceived.

Preliminary issue

On 26 October 2006, Mr John Byrne purported to make an application to the Tribunal pursuant to s 9.7(2) of the Local Government Act 1995 (WA) (LG Act) for review of the decision of the Shire of Broome (Shire) made on 18 September 2006 to award a tender to produce the 2007 Shire of Broome Telephone Directory to a tenderer known as Market Creations and not to Mr Byrne. The Shire produced the 2003 and 2004 telephone directories itself. The Shire then decided to contract out the production of the 2005 telephone directory and called for public tenders for its production. The tender for the 2005 telephone directory was awarded to Mr Byrne trading as Broome Telecentre. The Shire did not call for tenders for the 2006 telephone directory, but appears to have entered into a further contract with Mr Byrne for production of the telephone directory for that year.
At the initial directions hearing in the proceedings on 17 November 2006, the Shire raised a preliminary issue as to whether the Tribunal has jurisdiction to entertain the application for review. The Tribunal made orders requiring the Shire to formulate the preliminary issue and the parties to file statements of facts, documents and submissions in relation to the preliminary issue. The Tribunal also made an order that the preliminary issue is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The preliminary issue can be conveniently reformulated as follows:
Does the Tribunal have jurisdiction to review a decision of a local government made in awarding a tender for the provision of goods or services?

Does the Tribunal have jurisdiction?

The Tribunal does not have jurisdiction to review all decisions made by local government authorities or other public authorities in Western Australia. Under s 13(1) and s 17(1) of the SAT Act, the Tribunal only has jurisdiction to review a decision where an enabling Act gives the Tribunal jurisdiction to deal with the matter.
Mr Byrne contends that the Tribunal has jurisdiction to entertain these proceedings under s 9.7(2) of the LG Act. That subsection provides as follows:
"If [an affected] person lodged an objection [with a local government] and has been given notice in writing of how it has been decided to dispose of the objection, the person may apply to the State Administrative Tribunal for a review of the decision on the objection."
Section 9.2 of the LG Act provides that in Pt 9 Div 1, which includes s 9.7, unless the contrary intention appears, "'decision' means a decision or notice that, in accordance with section 9.1, causes this Division to apply". Section 9.1 is in the following terms:
"(1)This Division applies when a local government makes a decision under this Act as to whether it will –
(a)grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2)This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3)This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division."
The Shire has not given Mr Byrne a notice under s 3.25 of the LG Act and consequently s 9.1(2) is inapplicable. Furthermore, there is relevantly no local law, or regulation that is to operate as if it were a local law, which states that the decision in question is one to which Pt 9 Div 1 of the LG Act applies, with the consequence that s 9.1(3) is inapplicable. In particular, Pt 4 of the Local Government (Functions and General) Regulations 1996 (WA) (LG (F&G) Regulations), which regulates tendering for the provision of goods or services to local government, does not operate as if it were a local law and does not state that a decision under it is one to which Pt 9 Div 1 of the LG Act applies.
The Tribunal considers that, for each of three reasons advanced by the Shire, s 9.1(1) of the LG Act is also inapplicable in relation to the decision in question.
First, a decision not to award a tender for goods or services to a person does not involve a decision not to grant the person an "authorisation". The term "authorisation" is defined in s 9.2 of the LG Act to mean, unless the contrary intention appears, "a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition". The word "authorising" means giving authority or legal power to or empowering a person to do something or giving authority for or formally sanctioning an act or proceeding: The Macquarie Dictionary (Macquarie, 4th ed (Sydney) 2005), page 91. Similarly, in Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16, Jordan CJ observed at 18 that "the word 'authorise', according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess"; see also Metal Manufacturers Pty Ltd v Lewis (1998) 13 NSWLR 315 at 318 and Transport Accident Commission v Moore [2004] VSCA 60 at [13].
As the Shire correctly submits:
"The process of authorisation is therefore a unilateral process, whereby a person or entity possessing a lawful, statutory authority authorises, approves or otherwise confers a right to do something on a person who did not otherwise possess such authority …
The process of tendering is a contractual process that is essentially consensual and bi-lateral in nature, in contrast to a process of authorisation whereby a licence, permit or approval is granted in a unilateral exercise of statutory or other lawful authority."
It is apparent from s 3.57 of the LG Act, which requires a local government to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services, and the terms of Pt 4 of the LG (F&G) Regulations, that a tender, which effectively forms an offer for acceptance for the purpose of creating a contract for the supply of goods or services to a local government, is not an application for a licence, permit, approval or other means of giving authority or legal power to or empowering a person to do something or giving authority for or formally sanctioning an act or proceeding. The process of inviting and accepting a tender for the purpose of creating a contract for the supply of goods or services is fundamentally different in character to the process of authorisation.
Second, the decision in question was not as to whether the Shire will "grant" Mr Byrne an authorisation. The verb "grant" relevantly means "to bestow or confer, especially by a formal act": The Macquarie Dictionary, page 619. As the Shire correctly submits:
"The decision did not involve the grant or conferral of a lawful authority. Rather it comprised the acceptance of a tendered offer, which acceptance gave rise to binding obligations on both the [Shire] and the successful tenderer. If the decision did not involve a 'grant' of authorisation, then the requirements of s 9.1(1)(a) are not made out."
Third, the decision in question was not as to whether the Shire will grant Mr Byrne an authorisation "under Part 3 or under any local law or regulation that is to operate as if it were a local law". The only section of Pt 3 under which it could possibly be said that the decision was made is s 3.57, which, as noted earlier, requires a local government to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services. However, the Shire's decision not to accept Mr Byrne's tender was not made "under" this section. Rather, the decision was made under a separate power, which is assumed to exist by the wording of the section, to enter into contracts for the supply of goods or services. Furthermore, the decision was not made under any local law or regulation that is to operate as if it were a local law.
Moreover, there does not appear to be any statutory purpose which would warrant a different interpretation of s 9.1 to that to which the Tribunal has come. Indeed, as the Shire contends, an interpretation under which decisions not to award tenders for the provision of goods or services to a local government would be amenable to review under s 9.7 of the LG Act "would be liable to frustrate the efficient administration of local government in Western Australia".
Finally, Mr Byrne relies on the recent decision of the President in Bird & Anor and Shire of Broome & Anor [2006] WASAT 338. In that case, the Tribunal set aside a decision of the Shire to approve three applications for trading licences for the conduct of camel tours on Cable Beach. The application for review was made under s 9.7 of the LG Act. However, as the President observed at [2], "the Tribunal found that while the Shire had called for 'tenders' it had in substance invited applications for trading licences under the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003, and assessed them as such". The decision in question in Bird & Anor and Shire of Broome & Anor was, therefore, a decision made by the Shire under the LG Act as to whether it will grant a person an authorisation, namely a trading licence, under a local law. The decision in question in this case cannot be characterised in this way.

Conclusion

The answer to the preliminary question is "no" – the Tribunal does not have jurisdiction to review a decision of a local government made in awarding a tender for the provision of goods or services. The decision which Mr Byrne seeks to have reviewed by the Tribunal is not a decision that, in accordance with s 9.1 of the LG Act, causes Pt 9 Div 1 of the LG Act to apply. Consequently, Mr Byrne does not have a right to seek review of the decision on the objection under s 9.7(2) of the LG Act.
It follows that the application for review must be dismissed under s 47(1)(a) of the SAT Act as misconceived.

Order

The Tribunal makes the following order:
The application for review is dismissed.

I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER