Coles Bay Marina Association v Hawkins and Mitchell

[1999] TASSC 71

[1999] TASSC 71

CITATION:         Coles Bay Marina Association v Hawkins and Mitchell [1999] TASSC 71

PARTIES:  COLES BAY MARINA ASSOCIATION

(ACN 084 507 317)

v
  HAWKINS, Janet

MITCHELL, Cynthia

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 28/1999
DELIVERED ON:  15 June 1999
DELIVERED AT:  Hobart
HEARING DATES:  11 June 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

[Edited reasons for judgment delivered orally]

REPRESENTATION:

Counsel:
           Applicant:  S P Estcourt QC
           Respondents:  P G Wood
Solicitors:
           Applicant:  Page Seager
           Respondents:  Piggott Wood & Baker

Judgment Number:  [1999] TASSC 71
Number of Paragraphs:  18

Serial No 71/1999
File No LCA 28/1999

COLES BAY MARINA ASSOCIATION (ACN 084 507 317) v
JANET HAWKINS and CYNTHIA MITCHELL

REASONS FOR JUDGMENT  WRIGHT J

(DELIVERED ORALLY)  15 June 1999

1. On 29 March 1999, Coles Bay Marina Pty Ltd ("the Company") lodged a notice of appeal against a decision by the Resource Management and Planning Appeal Tribunal ("the Tribunal") which reversed a decision of the Glamorgan/Spring Bay Council ("the Council") to permit the development of a jetty at Coles Bay into a marina to accommodate up to 25 boats.

1. The original application for development had been made in the name of the Coles Bay Marina Association to the Council on 31 August 1998.  The material in the application was declared to be true by John George Miedecke, who signed the application as "applicant".

1. On 26 October 1998, R J Hill, company secretary of Coles Bay Marina Pty Ltd, wrote to the Council Manager regarding the application and advising (inter alia) as follows:

"Please note that following legal and accounting advice, we have reconstituted the organisation and rather than an association, a proprietary company has been formed.  This is Coles Bay Marina Pty Ltd ACN 084 507 317, a company limited by shares with each boat and berth owner being a shareholder in the Company."

1. The development application was opposed by several residents when the matter went before Council for consideration.  Council however approved the application on 10 November 1998 and planning permit DA 98073 issued, bearing the title "Development Application No DA 98073.  Coles Bay Marina Association off Jetty Road, Coles Bay Marina".  Objectors "J Hawkins and C Mitchell" then appealed against the Council's decision to the Tribunal on 30 November 1998.  The appeal was heard by the Tribunal and was upheld on 4 March 1999 when the Tribunal published its reasons.  The Tribunal set aside the Council's permit and replaced it with a refusal.

1. On 29 March 1999, Coles Bay Marina Pty Ltd appealed to the Supreme Court pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s25. That appeal has been scheduled for hearing during the present sittings of the Court.

1. On 27 May 1999 solicitors for the two objectors, Hawkins and Mitchell, who are respondents to the appeal, wrote to the appellant's solicitors in the following terms:

"We note that the Appellant is Coles Bay Marina Pty Ltd.  This company was not the applicant for the permit originally granted by the Glamorgan Spring Bay Council.  The company was not apparently a party to the proceedings before the Tribunal.  How is the company competent to bring this appeal to the Supreme Court?

We note further that the application for the permit to develop the marina was made by and granted to the 'Coles Bay Marina Association' which is or was not an incorporated association.  Do you contend that it was a person by whom such application could have been made under the Land Use and Planning Act?

Unless there are satisfactory answers to both questions they are matters we wish to raise with the Court as preliminary matters at the hearing of the Appeal.  Of immediate concern is the standing of the Appellant to bring the Appeal and our initial application would be that the appeal be struck out for want of standing on the part of the Appellant."

1. The appellant's solicitors responded to this letter by bringing the present originating application for an order that, pursuant to the Act, s25(3), the time for instituting an appeal by Coles Bay Marina Association against the decision of the Tribunal dated 4 March 1999 be extended.

1. From the affidavits filed and uncontested statements by counsel, it is plain that at the time the original development application was made, the Company Coles Bay Marina Pty Ltd, was not yet in existence.  This was submitted to be a fundamental difficulty in respect of the existing appeal by the Company, but I do not believe this necessarily follows.  We are not here talking about a company seeking to pursue a course of action which could not have existed at the time the application was lodged with the Council.  We are only speaking of an applicant who had no vested legal right to pursue, except perhaps the right to have the Council determine the development application on its merits.  There is no reason in law or logic why a new applicant could not be substituted for the original applicant before the Council made its decision.

1. Many of the problems which I discussed in Sunny Hills Tennis Centre v Shaw Contracting Pty Ltd A13/1995, do not therefore arise in the present circumstances.  What happened here was that due to lack of precision in Mr Hill's letter, the application was not amended so as to name the Company as the substituted applicant and, as a consequence, the permit was issued in the name of the Association.  In the circumstances, I regard this as a mere irregularity which the Court has power to correct, firstly, by recognising the error and then (in a case in which the exercise of discretion for that purpose is appropriate) by amending the name of the appellant or, by acknowledging, in a case such as the present, that the correct appellant has already been named in the existing appeal.  Although we are not dealing here with a matter to which the Rules of the Supreme Court, O18, r2 apply, I have no doubt that the Court has inherent jurisdiction to override the consequences of an obvious mistake and to allow a determination of the real matter in dispute.

1. Counsel for the respondents argued that the Council permit issued to the Coles Bay Marina Association did not constitute the Association as a "person" for relevant statutory purposes.  He referred (inter alia) to Statutory Interpretation in Australia, Pearce & Geddes, 4th edn, par6.33.

1. The Acts Interpretation Act 1931, s41(1), provides that "In any Act the expression 'person' and 'party' respectively shall include any body of persons, corporate or unincorporate". The Coles Bay Marina Association has not been registered as a firm under the Business Names Act 1962 or as an unincorporated association under the Associations Incorporation Act 1964. Nonetheless, had the Association sued or been sued in an action, no question of the legitimacy of its status could have arisen if the provisions of the Rules of the Supreme Court, O54, r11 et seq had been complied with.

1. Counsel for the respondents argued that the Association cannot be regarded as a person with status to maintain the present appeal, as O54 does not apply and the Acts Interpretation Act, s41, does not apply if a contrary intent is found to be manifest in the relevant legislation. For one thing, he said, the Association was not capable of owning land and several provision in the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeals Act, contemplate that the person who applies for development will own the subject land.  I do not accept this argument.  The application to the Council in this case made it quite plain that neither the Association, nor Mr Miedecke, owned the land and that it was in fact owned by the Crown.  There was an endorsement on the application by the relevant Crown officer who indicated that he was aware of the application and consented to it.  There is nothing inconsistent with the legislation in an intending developer neither owning nor having a formal interest in the subject property, in my opinion.

1. To accept Mr Wood's argument could have the effect of setting the whole process of application to the Council and appeal to the Tribunal, which has already taken place, at nought.  If this were to occur, the Company could then lodge a fresh application.  Such an application would presumably be granted by the Council, as it has already considered the merits of the proposal, and has made a decision favourable to the developers, and the Company would thus have a chance to argue the whole matter afresh before the Tribunal, assuming, of course, that the objectors renew their appeal to the Tribunal.  From the Company standpoint, the present appeal to this Court would be unnecessary.  Such an appeal would only become necessary if the Tribunal again overturned the Council decision and cancelled the permit.  Of course the grounds of any such appeal may be materially different from those presently before the Court.  The advantages to the respondents of my refusing the present application are, however, not particularly apparent to me.  If the whole matter has to go back into the melting pot, a great deal of expense will have been incurred on both sides, perhaps unnecessarily.

1. Although this was not argued by counsel, the view I have come to is that the Council should have viewed Mr Hill's letter on behalf of the Company of 26 October 1998 as an effective application on behalf of both the Company and the Association for the Company to be substituted for the Association as applicant for the development permit, and, in the absence of good reason to the contrary, this course should have been taken by the Council.  There could have been no valid objection to this process.  Nothing turned on the name of the applicant, the permit was sought and granted in respect of proposed development.  It was not personal to the applicant in any real sense.  In my view, the inference is that the Council's failure to name the Company in the permit, rather than the Association, was simply an administrative error and should be treated accordingly.  True, it is, that Mr Hill's letter of 26 October 1998 did not formally request the Council to substitute the Company for the Association, but it was plainly to be implied from the terms and tenor of the letter.

1. In my opinion, no injustice is done to anyone if the permit application and all subsequent proceedings in respect thereof are regarded as, and taken for all relevant purposes to be, proceedings by Coles Bay Marina Pty Ltd, rather than the Coles Bay Marina Association and, for that reason, the appeal presently listed for hearing by the Court can, and therefore should, proceed on that basis.  However, if I am wrong as to this, I think the Acts Interpretation Act provisions allow the Association to be treated as a person and a party for all relevant purposes connected with this litigation and the current application by the Association should, accordingly, be granted.  Finally, if I am wrong as to both these conclusions, I am of opinion that Mr Miedecke can, and should be, treated as the applicant and agent of the members of the Association for all such purposes and in that respect, I refer to what was said by Starke J in Warren v Living Water Home Healing Committee [1981] VR 551.

1. The merits of the present application are plainly in favour of making the order sought.  The existing appeal to the Court should not be abandoned, however.  I am of the opinion that both matters should proceed and be heard together.  Mr Miedecke's name should be added to that of the Association as a co-appellant in the new appeal, if any, which is lodged pursuant to the leave which I propose to grant on the present application.

1. If the appeal is successful and the precise status or identity of the appealing party becomes relevant for the purposes of the Court's formal order, or in respect of the costs of the appeal or these preliminary proceedings, or otherwise, I will entertain further submissions on the matter at that time.  All I have decided at the moment is that there was a valid application to the Council, that there was a valid permit granted in respect thereof, and that there was a valid appeal to the Tribunal by the present respondents and further, that the Tribunal's determination is validly before the Court already or, alternatively, will be upon a fresh notice being lodged pursuant to the leave that I have just granted.  If the appeal is unsuccessful, there may be no necessity to make a final determination of these issues, but that remains to be seen.  For these reasons, all questions of costs will be reserved.

1. The order of the Court is that the Coles Bay Marina Association and/or John George Miedecke have leave to appeal against the decision of the Resource Management and Planning Appeal Tribunal dated 9 March, within three days of today's date.