City of Canning v Avon Capital Estates (Australia) Ltd
[2009] WASCA 120
•13 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF CANNING -v- AVON CAPITAL ESTATES (AUSTRALIA) LTD [2009] WASCA 120
CORAM: MARTIN CJ
WHEELER JA
BUSS JA
HEARD: 17 APRIL 2009
DELIVERED : 13 JULY 2009
FILE NO/S: CACV 67 of 2008
BETWEEN: CITY OF CANNING
Appellant
AND
AVON CAPITAL ESTATES (AUSTRALIA) LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation :CITY OF CANNING and AVON CAPITAL ESTATES (AUSTRALIA) LTD [2008] WASAT 46
File No :DR 419 of 2007
Catchwords:
Town planning - Land reserved for a public purpose - Injurious affection - Application for leave to appeal three months out of time - Delay caused by deliberate decision not to appeal - Extension of time refused
Legislation:
Interpretation Act 1984 (WA), s 36
Planning and Development Act 2005 (WA), s 173, s 174, s 176, s 177 , s 178
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Application for extension of time within which to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr K M Pettit SC & Mr P L Wittkuhn
Respondent: Mr J D Elliott SC & Mr P G McGowan
Solicitors:
Appellant: McLeods
Respondent: DLA Phillips Fox
Case(s) referred to in judgment(s):
City of Canning and Avon Capital Estates (Australia) Ltd [2008] WASAT 46
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Willoughby v Clayton Utz [2007] WASCA 5
MARTIN CJ: I agree with the reasons of Acting President Wheeler.
WHEELER JA: This is an application to extend time and for leave to appeal a decision of the State Administrative Tribunal (SAT) determining that certain land owned by the respondent was injuriously affected by reason of its being reserved for a public purpose under the City of Canning Town Planning Scheme No 40 (TPS 40). The Tribunal determined that s 174 of the Planning and Development Act 2005 (WA) (the Act) led to the conclusion that the land in question was injuriously affected. The background to the litigation was as follows.
Background
The respondent owns a number of lots in Canning Vale. It apparently purchased that land in 1986. At the time of purchase, the appellant asserts, part of the land had been reserved for public purposes under the City of Canning Town Planning Scheme No 16 (TPS 16). That scheme was revoked and replaced by the TPS 40 in February 1994. Under that scheme, the same part of the land was also reserved for public purposes. The reason for the reservation is that the Water Corporation's trunk main, known as the "Serpentine Trunk Main" passes through the land.
The respondent lodged an application for development approval for each of the 19 lots in question. Approval was granted by the appellant, subject to conditions. The respondent alleged that it considered these conditions unacceptable, and therefore lodged a claim for compensation for injurious affection pursuant to s 177 and s 178 of the Act. The appellant rejected that claim and applied to SAT pursuant to s 176(1) of the Act for a determination that the land was not injuriously affected.
Issues before SAT
The appellant's grounds of application, relevantly, asserted:
8Although the City's solicitors have asked Avon's solicitors to specify which conditions their client allegedly finds 'unacceptable', they have declined to do so, other than to note that condition (v) of each of the Development Approvals is among those considered 'unacceptable'.
…
12Condition (v) was a standard condition imposed irrespective of any matter connected with the reservation of the land. Condition (v) provided as follows:
'Prior to the issue of a Building Licence, a Geotechnical Report prepared by a mutually agreed consultant is required to verify the following:
(1)Identify the substrata and its classification.
(2)Recommend remedial measures as may be required to have the site reclassified as Class A or Class S in accordance with AS2870.1‑1989.
(3)Determine the water table level for the site.
(4)Recommend measures for the disposal of storm water either onsite or via a comprehensive drainage network.
(5)Supervise the remedial work and certify the works have been undertaken in accordance with the recommendations of the Geotechnical Report, and the foundation material is capable of an allowable bearing pressure of 100 kPa. Note: A list of approved Geotechnical Engineers may be obtained from the City's Engineering Services.'
13In any event, condition (v) was clarified to Avon in correspondence subsequent to the planning consents, in such a way that condition (v) can only be seen as unobjectionable on any objective view.
14With regard to any other conditions of approval, Avon has refused to specify which are said to have given rise to injurious affection or how, and the City sees no basis for any argument that any other conditions gave rise to injurious affection, or crystallised any injurious affection claim otherwise arising from the reservation of the subject lots.
15The land in question was first reserved for 'public purposes' under the previous Town Planning Scheme No.16. A Claim for Compensation could have been lodged within 6 months of gazettal of that Scheme. It is considered that, if the subject land was ever injuriously affected (which is in any event denied), it could only have been injuriously affected at the time of gazettal of TPS 16. No Claim for Compensation was made within 6 months of that gazettal, and therefore it is considered that any right to claim compensation has expired. There was no new injurious affection brought about by the gazettal of TPS 40, which merely continued the reservation.
16Moreover, the Serpentine Trunk Main itself pre‑dated the imposition of any public purposes reserve. The imposition of the reservation did not injuriously affect the land over and above any injurious affection (and the City says there was none anyway) brought about by the mere physical installation of the Serpentine Trunk Main.
17There is no reason known to the City why the City's development approvals cannot now be acted upon (subject of course to the formality of obtaining a building licence).
18In light of 11, 12, 13 and 16 above, and in addition to all of the above, the City is not satisfied that the applications were lodged in good faith with the intention of proceeding with such developments if approved.
As appears from the submissions and from the reasons for decision of the Tribunal (City of Canning and Avon Capital Estates (Australia) Ltd [2008] WASAT 46) at [10], the principal submission of the appellant appeared to be the following:
The applicant argued that, on its proper construction, and having regard to the provisions of earlier legislation which were replaced by the PD Act, the Tribunal's power under s 176 was a power to determine whether land was 'actually' or 'compensably' injuriously affected. It argued that s 174 of the PD Act simply identified categories of circumstances in which land may be considered to be injuriously affected, but did not declare that any land reserved for a public purpose is necessarily injuriously affected.
Section 174(1), relevantly, provides:
174.When land is injuriously affected
(1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if ‑
(a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose;
(b)the scheme permits development on that land for no purpose other than a public purpose; or
(c)the scheme prohibits wholly or partially ‑
(i)the continuance of any non‑conforming use of that land; or
(ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non‑conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.
Section 176 of the Act provides:
176. How questions determined
(1)A claimant or responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected.
(2)Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this Division is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 1985, unless the parties agree on some other method of determination.
SAT's decision
The Tribunal's view was that the plain meaning of s 174 was that land was to be considered - in effect deemed - injuriously affected by reason of the making or amendment of the town planning scheme if the conditions set out in subs (a) and either (b) or (c) of subs (1) were satisfied. It was not necessary to find, in addition, any diminution in values. The Tribunal also said at [27] ‑ [32]:
Given that a determination as to whether land is reserved under a planning scheme for a public purpose is a matter easily resolved by reference to public documents, the question arises as to why s 176(1) provides for a determination, by this Tribunal, of a question as to whether land is injuriously affected. The answer lies in the other provisions of s 174. The question of whether or not a scheme permits development on land for no purpose other than a public purpose, or prohibits wholly or partially the continuance of the non-confirming use of land, are potentially matters involving the proper construction of town planning schemes. They are matters which fall squarely within the expertise of the Tribunal. In the explanatory memorandum for the Planning and Development Bill 2005 (WA), mention was made (in relation to s 174 which also confers jurisdiction on the Tribunal) that the provision 'will ensure that planning matters are dealt with in a forum which is qualified and experienced in planning matters.' Section 176(1) therefore serves a purpose of conferring on the Tribunal the task of determining what are essentially planning issues that may be contentious and which arise under section 174(1)(b) and (c) in particular.
It is clear that the question of the amount of compensation to be paid for injurious affection is left to an arbitrator under the Commercial Arbitration Act 1985 (WA). The arbitrator is charged by s 177 of the PD Act with determining whether certain preconditions to an entitlement to compensation are met. These preconditions include a requirement for the arbitrator to be satisfied, where the land has been sold, that it was sold in good faith, and that the vendor took reasonable steps to obtain a fair and reasonable price. Where there has been the imposition of unacceptable conditions, the arbitrator must be satisfied that the application for approval was made in good faith. By s 179(1) the arbitrator is required to assess the value of the land unaffected by the reservation and compare it to the land affected. It might be that the land value after reservation is the same as the value before reservation. In that case the amount of compensation would be zero.
Those provisions make it clear that matters of valuation, and the assessment of the amount of the 'actual or compensable injurious affection', are matters to be determined by an arbitrator.
All of the arguments which the applicant seeks to agitate before the Tribunal are arguments which are open to it before an arbitrator. They are matters going to whether there has been any diminution in the value of the land by reason of the reservation. Because the PD Act directs that an arbitrator is to determine the amount of compensation, it would appear inconsistent with the objects of the PD Act for the Tribunal to embark upon valuation questions for the purpose of determining whether the land is 'actually or compensably' injuriously affected.
There is one aspect of the City's argument that involves a different question as to the proper construction of s 174(1)(a) of the PD Act. That is the (at least implicit) contention that, because the land was previously reserved for a public purpose under the previous City of Canning Town Planning Scheme No 16, it was not injuriously affected by 'the making … of' TPS 40. In other words, it might be argued that, on its proper constitution, s 174(1)(a) applies only to land not reserved before the relevant scheme comes into operation. Because of the focus, in submissions, on the notion of 'actual or compensable injurious affection' the import of the words 'by reason of the [making] of … a planning scheme' were not specifically addressed in the course of argument. It may be that the City does not advance that contention, but if it does, then I would reject it.
I do so because of s 177(1) of the PD Act. That section deters any claim for compensation until either the land is sold or an unacceptable conditional development approval, or a refusal of development, is issued by the responsible authority. It may well be that, between the initial reservation and the happening of one of those events, the applicable town planning scheme is revoked and a new scheme introduced in its place. If the reservation continues unchanged under the new scheme, there is nothing to suggest that the inchoate right to compensation is extinguished by the revocation of the old scheme. To conclude otherwise would defeat the object and purpose of the compensation provisions of the PD Act. It follows that the fact that land was originally reserved for a public purpose under an earlier scheme does not prevent the application of s 174(1)(a) to that land if it is continues to be reserved for a public purpose under a later scheme.
Length of delay and reason for delay
Section 105 of the State Administrative Tribunal Act2004 (WA) provides that an application for leave to appeal has to be made in accordance with the Rules of the Supreme Court1971 (WA) and within a period of 28 days after the day on which the Tribunal's decision is given. That section also confers on the court the power to extend time. The date of the decision was 28 February 2008. It is accepted that the last day for filing of the application for leave to appeal would therefore have been 27 March 2008. The application was, in fact, filed on 30 June 2008, three months out of time. That is a considerable delay. The reasons for the delay are explained in an affidavit in support of the application for extension of time.
The affidavit in support of the application for extension of time is sworn by a legal practitioner, a partner within the law firm acting for the appellant. He deposes that, upon reading the reasons of the Tribunal, he concluded that an appeal would not be likely to succeed. In addition, his time was occupied with tasks relating to the arbitration in which the amount of compensation was to be determined. On 30 or 31 May 2008 (that is, two months after the expiry of the time within which to appeal), a brief was delivered to senior counsel in relation to the proposed arbitration. Senior counsel then underwent surgery shortly thereafter, and was prevented by that, and other matters, from giving the matter his full attention until some time shortly after 11 June 2008. On 18 June 2008, senior counsel advised the deponent solicitor that senior counsel had begun to have concerns about the effect of the Tribunal's reasons on the course of the arbitration. As a result of conferral between the deponent and senior counsel, advice was given to the appellant that an appeal would be desirable and the council of the City of Canning resolved to authorise an application for leave to appeal at its meeting on 24 June 2008.
Should time be extended?
As I noted in Willoughby v Clayton Utz [2007] WASCA 5 at [8], an application which is four months out of time, the delay being explained upon the basis that different advice has caused the appellants to change their minds about whether they wish to appeal is "not a promising basis" upon which to seek an extension of time. In that case, I would have refused an extension of time on that basis alone. That is because, as I noted in that case, if a party's fresh advice or change of mind were good reason to extend time, there would be little point in having time limits at all. There may be some particular disadvantage (such perhaps as an appellant being unrepresented and unaware of the right to appeal), or some other special or unusual circumstances (such as an advising solicitor simply overlooking some important fact or question of law) which might justify an extension of time even if the basis of the application was simply that the party had received fresh or different advice.
However, in the absence of additional factors of that kind, I remain of the view that it is not possible to regard a desire to act upon fresh advice as a justification for any significant extension of time.
I would add, to what I said in Willoughby v Clayton Utz, the observation that it is well understood that, in many areas of life, significant delay may have significant consequences; students who miss examinations may be deemed to have failed them; aeroplanes leave without passengers who fail to check in (however important their journey); patients who do not attend promptly to medical investigations may regret the delay. It does not seem to me to be unjust, as a general rule, that consequences, which may be severe, will sometimes flow from a litigant's failure to comply with time limits. That is particularly so where, as here, the failure to comply is as a result of a deliberate choice.
In Willoughby v Clayton Utz, Steytler P at [1] and Pullin JA at [42] considered that, even in that case, it was necessary to take into account the prospect of the applicant succeeding in the appeal. Other relevant factors, as Pullin JA noted, are, of course, the length of delay and the extent of any prejudice suffered by the respondent: see Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [5] ‑ [9].
Although the observations in Jackamarra v Krakouer draw attention to a number of important factors which a court should consider, it is important to note that that case is not, in my view, authority for the proposition that, wherever an appellant demonstrates an arguable case, or even a strongly arguable case, then, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted. That case was one which concerned, not an application to appeal made out of time, but an application to extend the time for taking of a step in an appeal which had been regularly instituted. At least Brennan CJ and McHugh J considered that distinction to be important, and considered that a more liberal approach to extensions might be taken in the latter case (at [4]).
Further, Brennan CJ and McHugh J pointed out in Jackamarra v Krakouer that it was not appropriate in an application of the kind there in question, to give too much attention to the question of the detail of the merits of the proposed appeal. As I understand their Honours' reasons at [3] ‑ [7], time for appealing will not be extended unless the proposed appeal has some prospects of success. The converse of that proposition is not that time must be extended if an appeal has prospects of success; rather the fact that an appeal has some prospects of success is a factor which is to be taken into account, together with all other relevant factors. It may therefore, in an appropriate case, be a factor which is outweighed by other factors. No doubt, the prospects of success of an appeal may be interrelated with other relevant factors; for example, I have already noted that where the reason advanced for the delay is an obvious oversight by a party's solicitor, that oversight may be concerned with a strongly arguable ground of appeal.
The other member of the majority in Jackamarra v Krakouer was Kirby J. His Honour set out the applicable principles in some detail at [66], points 1 through to 8 inclusive. His Honour's reasons for concluding that the Full Court of this court had erred in that particular case are set out at [67] ‑ [73] inclusive. Unlike the present case, important considerations in that case were that the appellant was a young Aboriginal child living in a remote place without direct access to legal advice and suffering mental disabilities, and therefore plainly unable to safeguard her own interests. The default was clearly that of her legal representatives alone, she not being in any position to evaluate their advice or apply pressure to them in order to safeguard her interests. Further, unlike the present case, there was no element of deliberateness in the delay. Further, again unlike this case, it was plain that the solicitors had intended to appeal from the outset, and some of the period of delay in that case was occupied with steps directed (effectually or otherwise) towards the furtherance of the appeal.
The question of prejudice to the respondent does not seem a factor of particular weight in the present case. It appears that, having assumed that the matter will proceed to arbitration, the respondent has taken some steps towards appointing an arbitrator, and there may be an issue of costs wasted in preparation for the arbitration, but these are not advanced by the respondent as matters of significance.
So far as the merits of the proposed appeal are concerned, there seem to be three issues agitated by the appellant. The first is the question which I earlier identified as the principal one. It is the issue of whether on a proper construction of s 174(1), the words "if, and only if" mean, in effect, that land is deemed to be injuriously affected when the following conditions are satisfied, without more, and is not otherwise deemed to have been injuriously affected; or if, as the appellant contends, those words mean that where land is "injuriously affected" in the accepted meaning of those words (that is, where land has been diminished in value), then such land may be considered to be injuriously affected only if the following conditions are also satisfied. As to that issue, it is sufficient for present purposes to say that it seems to me that the Tribunal's view was one which was properly open to it.
The appellant sought to demonstrate, by reference to the legislative history, extrinsic materials, and the alleged unfair operation of the provision in a variety of hypothetical situations if understood as the Tribunal understood it, that a meaning which does not appear to me to be the plain meaning of the words, was intended. The respondent, in turn, contended, in effect, that the statutory scheme must be recognised as containing a variety of anomalies, but that nothing pointed to by the appellant was of sufficient significance to overcome what appeared to be the plain meaning of the words used in the section. I am inclined to agree.
There seem to have been two other issues which the appellant wished to agitate. One was that to which the Tribunal directed attention at [31] and [32] of the reasons quoted above. That is, the contention that because the land was previously reserved for a public purpose under the pre‑existing City of Canning TPS 16, it was not injuriously affected by the "making" of TPS 40. The appellant contends that if that issue is not resolved by this court, it will have been improperly deprived of the benefit of a pre‑existing limitation provision which was applicable to TPS 16. The respondent, by reference to the way in which the case was argued before the Tribunal, asserts that the Tribunal was correct in understanding that that was not a contention squarely before it. As a result of that, the Tribunal's observations would, as the respondent appears to concede, be obiter. In any event, the respondent asserts that there was before the Tribunal no evidence establishing that the land was, in fact, the subject of a reservation pursuant to TPS 16 and that fact is not accepted by it for the purpose of this appeal. It appears, too, that the respondent accepts that, to the extent that the issues raised by [31] and [32] of the Tribunal's reasons may have an effect upon the quantum of compensation, if any, properly payable to the respondent, then that is an issue which the appellant will be free to agitate in the arbitration.
Finally, the appellant contends that the Tribunal should have determined that land is not injuriously affected for the purposes of the Act unless the person seeking compensation for injurious affection was the person who was the owner of the land at the date it was reserved. In relation to this matter, the respondent contends that there was no argument addressed to the Tribunal and the Tribunal did not determine that issue. As appeals from the Tribunal to this court are, with an exception not presently relevant, limited to appeals on a question of law (s 105, State Administrative Tribunal Act 2004 (WA)), it can hardly be contended that the Tribunal's failure to determine issues which were not presented to it, on the basis of facts that were not established before it, constitutes an error of law such as to invoke the limited appellate jurisdiction of this court. Further, it is asserted that if that issue were raised, then the respondent would wish to contend that it was the equitable owner of the land prior to the alleged reservation under TPS 16.
So far as the second and third of the contentions which the appellant seeks to raise are concerned, it appears to me that there were no facts before the Tribunal upon which arguments of that kind could have been based. It therefore seems unlikely that the Tribunal was purporting to determine either of them, let alone to determine them adversely to the appellant. The respondent appears to accept that, before the arbitrator, it will be open to the appellant to seek to prove facts relevant to those two contentions, and to make them out in order to demonstrate that there should be no, or reduced, compensation payable.
So far as the second and third issues raised by the appellant are concerned, their hypothetical nature, at this stage, would be reasons for refusing leave to appeal, even if the application were within time. So as far as the first contention is concerned, I have already indicated that, while I accept that the appeal may be arguable, it does not appear to me to be so strongly arguable that the appellant should be granted an extension of time despite its deliberate decision, acting on legal advice, not to appeal, and despite the fact that the decision to seek leave to appeal was made after a significant delay of three months.
I would therefore refuse an extension of time within which to appeal.
BUSS JA: The relevant reasons of the State Administrative Tribunal (constituted by Judge J Chaney), the material statutory provisions and most of the relevant facts are set out in the reasons of Wheeler JA, with whom the Chief Justice concurs. I agree with her Honour that the
appellant's application for an extension of time to apply for leave to appeal should be dismissed. My reasons are as follows.
The appellant's failure to apply for leave to appeal within time
Section 105(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides, relevantly, that an application for leave to appeal must be made within 28 days after the Tribunal's decision is given. In the present case, any application for leave to appeal should have been made by 27 March 2008. The appellant's notice of appeal was not filed until 30 June 2008. Section 105(7) provides that the court to which the appeal lies may extend a time limit fixed by s 105, and the extension may be given even though the time limit has passed.
On 5 August 2008, Pullin JA ordered that the application for an extension of time, the application for leave to appeal and the appeal be heard together by this Court.
The legal principles governing an application to extend time to appeal
In general, there are four principal factors to be considered in determining whether to grant an application for an extension of time to appeal. First, the length of the delay. Secondly, the reasons for the delay. Thirdly, whether there is an arguable case. Fourthly, the extent of any prejudice to the respondent. No doubt, in a particular case, there may be additional factors. See Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J), citing the English Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, 946.
In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms 'as the justice of the case may require'. His Honour said:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 ‑ 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 ‑ 264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935.
'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion (459).'
In Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, Brennan CJ and McHugh J noted that where an application is made to extend time to appeal, the respondent to the application has a vested right to retain the judgment, the subject of the appeal, and that to grant the application is to put at risk that vested right [4]. Their Honours also referred, with apparent approval, to Palata Investments, 946, which had been followed by Kennedy J in Esther Investments [6] ‑ [7].
In Jackamarra, Kirby J noted that in a particular case there might be other factors of relevance apart from the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the application. After referring to these four principal factors, Kirby J said:
But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious (Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Birkett v James [1978] AC 297 at 318); or merely the result of a bona fide mistake or blunder (Esther Investments (1989) 2 WAR 196 at 204); and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled (Sophron v Nominal Defendant (1957) 96 CLR 469 at 474; Hall v Nominal Defendant (1966) 117 CLR 423 at 435; Mehta [1975] 1 WLR 1087 at 1091, 1092; [1975] 2 All ER 1084 at 1088, 1089). It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant [66].
The legal principles governing an application for leave to appeal under s 105(1) of the SAT Act
Section 105(1) of the SAT Act provides that a party to a proceeding may appeal from the decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
The power to grant leave is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing).
The proposed amended ground of appeal and the proposed question of law
In the present case, the appellant's proposed amended ground of appeal reads:
The learned primary Judge erred in law in holding that, by reason of section 174(1) Planning and Development Act 2005 (the PD Act), the Respondent's land is injuriously affected for the purposes of Part 11 of the PD Act merely because the land is reserved under a planning scheme for public purposes,
whereas his Honour should have decided that
by reasons of both section 174(1) and 173(1) PD Act, the Respondent's land is not injuriously affected for the purposes of Part 11 of the PD Act unless:
(a)at the date of application for compensation, the person's land is reserved under a planning scheme for a public purpose;
(b)the person's land was reduced in value by the making or amendment of a 'planning scheme' (as defined); and
(c)the person was the owner of the land at the date it was reserved,
and his Honour should have dismissed the Respondent's application to summarily dismiss the Appellant's Application.
By s 105(2) of the SAT Act, an appeal from a decision of the Tribunal can only be brought 'on a question of law'. Generally, see Paridis [53].
During oral submissions, counsel for the appellant identified the question of law in respect of which the appellant sought an extension of time for leave to appeal as this: is land injuriously affected for the purposes of Part 11 of the Planning and Development Act 2005 (WA) if, without more, the land is or was reserved for a public purpose under a town planning scheme either before or after the commencement of the Act?
The affidavit material before the court
The appellant's application for an extension of time was supported by an affidavit sworn 30 June 2008 by its solicitor, Peter Lance Wittkuhn. The respondent's opposition to the application was supported by an affidavit sworn 2 September 2008 by its solicitor, Phillip Bruce Dobson.
The merits of the application to extend time
I am satisfied that the appellant has at least a reasonably arguable case in relation to the proper construction of s 174(1) of the Planning and Development Act and the question of law sought to be raised. I would not, however, grant the appellant an extension of time. There are several significant features of the present case which, in combination, militate decisively against allowing the application.
First, the length of the appellant's delay is substantial. It did not file its appeal notice until four months after the Tribunal delivered its decision and a little more than three months after the time limit fixed by s 105 of the SAT Act.
Secondly, the failure to file the appeal notice within time was not caused by inadvertence, a dilatory client or solicitor, a lack of access to legal advice or limited resources which precluded the prompt delivery of a brief to senior counsel to advise. Rather, the appellant, a local government authority, made a considered and deliberate decision, within the 28‑day period fixed by s 105(5), not to apply for leave to appeal. The appellant's decision in this respect was made on the advice of Mr Wittkuhn, a partner in the firm of solicitors acting for the appellant. Mr Wittkuhn's affidavit reveals that he was admitted as a legal practitioner in 1994. Since his admission, he has worked on numerous matters concerning compensation for injurious affection and the taking of land. He estimates that in the past four years or so, about 25% ‑ 30% of his full‑time practice has involved this kind of work. Before that period, a significant proportion of his work involved the law of compensation for injurious affection and the taking of land. Mr Wittkuhn had the general conduct of the appellant's case before the Tribunal. His partner, Mr Denis McLeod, appeared as counsel. Mr Wittkuhn deposes in his affidavit that on receiving a copy of the reasons for decision of the Tribunal, he examined and analysed the Tribunal's reasoning and formed the view that an appeal was unlikely to succeed. It was only the belated receipt of different advice from senior counsel, who was briefed on 30 or 31 May 2008 in relation to the arbitration (and not for the purpose of advising on the correctness of the Tribunal's decision), that prompted the appellant to apply for an extension of time to appeal.
Thirdly, the appellant, by its solicitors, represented to the respondent, by its solicitors, on at least five separate occasions during March, April and May 2008, in effect, that the appellant would not be seeking to challenge the correctness of the Tribunal's decision. See pars 9, 12, 16, 18 and 19 of Mr Dobson's affidavit. Further, in March, April and May 2008, both the appellant and the respondent proceeded on the basis that an arbitration would be conducted for the purpose of determining the amount of any compensation payable to the respondent for injurious affection. By 11 April 2008, the parties had agreed that Dr C Carr should be approached and requested to act as the arbitrator. By about 18 April 2008, Dr Carr had agreed to be the arbitrator. As I have mentioned, on 30 or 31 May 2008 the appellant delivered a brief to senior counsel in relation to the arbitration. In my opinion, the appellant's representations and the conduct of the parties in arranging for the arbitration were consistent only with the acceptance by the appellant of the respondent's vested right to retain the benefit of the Tribunal's decision in its favour.
Fourthly, senior counsel for the respondent accepted that at least most of the points which the appellant seeks to agitate before this court, may be raised in the proceedings before the arbitrator. In particular, senior counsel said:
Judge Chaney was at pains to point out, and we accepted, that everything that the city wishes to put to try to agitate this matter before this court can be put in the arbitration. We are not for a moment suggesting they are shut out in suggesting that the existence of an alleged reservation under TPS16 can't be raised in the arbitration to say in fact no compensation ought to be paid. We don't accept it was registered under TPS16, but the argument can be had.
We also don't preclude the city from saying that at the time the reservation was first made, Avon was not the owner. Again that can be something that could be raised in determining whether or not compensation ought to be paid.
We submit that it is very material that there is no real prejudice that the City of Canning can point to. In a sense it is not being shut out at all in raising the very issues it wishes to raise before this court and could have raised below but didn't in the arbitration (appeal ts 52).
Fifthly, and more generally, the Tribunal is an administrative tribunal, not a court. See Mustac v Medical Board of Western Australia [2007] WASCA 128 [48] (Martin CJ, Wheeler & Buss JJA agreeing). The Tribunal's decision and its reasoning (including, in particular, in relation to s 173 and s 174 of the Planning and Development Act) are binding only on the parties to the proceedings. If it is necessary, as a matter of general public importance, for this court to determine the proper construction of s 173 and s 174 (and other provisions in pt 11 of the Planning and Development Act), that can readily and appropriately be done in another case, either on appeal to this court or on a referral by the President of the Tribunal to the Supreme Court under s 59(10)(b) of the SAT Act.
Conclusion
I would dismiss the application for an extension of time to apply for leave to appeal.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF CANNING -v- AVON CAPITAL ESTATES (AUSTRALIA) LTD [2009] WASCA 120 (S)
CORAM: MARTIN CJ
WHEELER JA
BUSS JA
HEARD: 17 APRIL 2009
DELIVERED : 13 JULY 2009
SUPPLEMENTARY
DECISION :20 OCTOBER 2009
FILE NO/S: CACV 67 of 2008
BETWEEN: CITY OF CANNING
Appellant
AND
AVON CAPITAL ESTATES (AUSTRALIA) LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation :CITY OF CANNING and AVON CAPITAL ESTATES (AUSTRALIA) LTD [2008] WASAT 46
File No :DR 419 of 2007
Catchwords:
Indemnity costs - Turns on own facts
Legislation:
Nil
Result:
Application for indemnity costs dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K M Pettit SC & Mr P L Wittkuhn
Respondent: Mr J D Elliott SC & Mr P G McGowan
Solicitors:
Appellant: McLeods
Respondent: DLA Phillips Fox
Case(s) referred to in judgment(s):
Nil
MARTIN CJ: I agree with Wheeler JA.
WHEELER JA:
The application
Pursuant to leave granted at the time at which judgment was delivered in this matter, the respondent has made an application for indemnity costs in relation to the appeal, and has filed written submissions and some affidavit material in support of that application. The application is made on two bases. In my view, neither of the reasons advanced justifies an award of indemnity costs in the present case.
Case "hopeless"
The first basis upon which the respondent seeks indemnity costs is that it is submitted that this is a case where a party, properly advised, should have known that it had no chance of success. It was submitted that the law was "clear and compelling" that the appellant's case for an extension of time was so weak that upon proper consideration the appellant should not have persisted with it.
The first thing to note about this submission is that it is not submitted that the substantive point which the appellant wished to agitate in the appeal was hopeless. While there may be cases in which it would be appropriate to do so, it seems to me that the court should generally be slow to make an award of indemnity costs against a party which seeks to agitate an arguable issue of law, merely on the basis that the party should have known that, as a matter of discretion, the court would not extend time or grant the party some other indulgence necessary in order to allow the issue to be agitated.
The second thing which is notable about the respondent's submissions concerning the discretion issue is that the respondent supports the submission that the appellant's case for an extension was "hopeless" based only upon references to the court's reasons for decision refusing the extension of time. It is not appropriate to use hindsight reasoning of this kind to demonstrate that a case was "hopeless". The mere fact that the court has rejected an argument does not demonstrate that the argument lacked any merit. That is particularly so, it seems to me, when the argument is one concerning a discretionary decision which will generally require the balancing of a number of factors.
Finally, the appellant in its written submissions in relation to the indemnity costs application mentioned six factors which might have supported a view that the court should have excused the appellant's delay and granted the extension sought. I do not think it is necessary to set those matters out. It is sufficient for present purposes to note that none of them seems to me to be frivolous. I am not prepared therefore to conclude that, upon proper consideration, the appellant should not have persisted with its application.
Two "extraneous" issues
In the alternative, the respondent submits that it is entitled to indemnity costs in respect of time spent out of court, in preparing for the appeal, in relation to two "extraneous" issues. It is submitted that the extraneous issues which the appellant sought to agitate in the appeal were the question of whether the land in question here had been the subject of an earlier reservation under Town Planning Scheme No 16 (TPS 16), and the question of the date at which the respondent first became the owner of the land. They are the issues which I dealt with at [22] ‑ [25] of my reasons for decision and which were the subject of the concession referred to at [44] of the reasons of Buss JA.
As I understand the argument of the appellant, it was that because the proceedings before the tribunal were in substance to be regarded as "demurrer" proceedings, the tribunal should have assumed, for the purpose of those proceedings, that the appellant would be able to make out the factual contentions that the land had been reserved by TPS 16 and that the appellant was not the owner of the land at the date of the reservation. To the extent that the appellant's submissions in the appeal appeared to deal with those factual issues, it was submitted that they did so only for the purpose of demonstrating that the appeal was not moot in relation to those matters. The correspondence between the parties, which has been placed before us by way of attachments to the affidavit of Guy Shenton French, sworn 6 May 2009, does not clearly indicate, in my opinion, whether the respondent's position should always have been understood as that these contentions of fact were not matters with which the Court of Appeal could deal, or whether it was the position of the respondent that the appellant's contentions of fact were inaccurate. Certainly by the time the matter came before us, it appears to me that it was reasonably clear that the appellant was not suggesting that either of the factual issues required determination by the Court of Appeal; rather, it was seeking to indicate that there were factual issues which, if assumed in its favour, would lead to the conclusion that the land in question was not
"injuriously affected" by the making of Town Planning Scheme No 40 (TPS 40). It may be that that matter was not always as clear as it should have been, and it may be that the respondent spent some time dealing with those factual assertions which, so far as the appeal was concerned, it was not strictly necessary to spend. However, they were relatively confined factual issues, and it does not seem to me that the time spent on them would have been significant in any event.
Further, as is clear from the concession referred to in [44] of the reasons for decision of Buss JA, it appears likely that these factual matters will, in any event, be the subject of submission and argument before the arbitrator. In the context of the dispute between the parties as a whole, it may well be that the costs will not have been costs thrown away in any event.
I would therefore not make an award of indemnity costs in favour of the respondent for either of the reasons which the respondent has advanced.
BUSS JA: I agree with Wheeler JA.
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