Dain Pty Ltd v Shire of Peppermint Grove - [2019] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DAIN PTY LTD -v- SHIRE OF PEPPERMINT GROVE [2019] WASC 264
CORAM:   ARCHER J
HEARD:   18 & 19 MARCH 2019
DELIVERED          :   25 JULY 2019
FILE NO/S:   CIV 2597 of 2017
BETWEEN:   DAIN PTY LTD
Applicant
AND
SHIRE OF PEPPERMINT GROVE
Respondent

Catchwords:

Judicial review - Apprehended bias

Legislation:

Heritage of Western Australia Act 1990 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	M C Hotchkin
Respondent	:	J C W Skinner & M C Phillips

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	LSV Borrello Lawyers

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

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Day v Sanders [2015] NSWCA 324; (2015) 90 NSWLR 764
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2; (2017) 341 ALR 628
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 363 ALR 599
Mohammadi v Bethune [2018] WASCA 98
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 351 ALR 225
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138
Re Narula, Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Sanders v City of South Perth [2019] WASC 226
Tarrant v The Queen [2018] NSWCCA 21
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

TABLE OF CONTENTS

Background
The facts

The initial heritage list - the municipal inventory
Deemed provisions come into effect - October 2015
LPS3 is revoked and the Shire moves to re-establish a heritage list
The Second Resolution - the purported creation of the heritage list
The refusal to change the Property to category 2
The Shire purports to enter the Property on the heritage list (despite having purported to do that by the Second Resolution)
The Shire advises it intends to enter properties (other than the Property) on the heritage list, despite having purported to have already done that by the Second Resolution
The Shire purports to enter some properties on the heritage list (despite having previously purported to enter those same properties by the Second Resolution)
The Sixth Resolution - after revoking the Fourth Resolution, the Shire purports to enter the Property on the heritage list

The application for judicial review

The issues

Legislation

Heritage Act 1990
Clause 8 of the Deemed Provisions
The consequences of a property being on a heritage list

Judicial review
Approach to statutory construction
Is there a reasonable apprehension of bias in relation to the Sixth Resolution?

Legal principles

The test
The content of the test in respect of non‑judicial decision‑makers
Prejudgment
Conflict of interest
The fair-minded lay observer
Conduct of non‑decision‑makers

The allegation
The relevant facts

The adoption of the Municipal Inventory
The refusal to change the Property to category 2
The refusal to acknowledge the invalidity of the Second Resolution
Mr Griffiths
The independent assessment process
Mr Montgomery
Potential liability
Decision to close the meeting
Lack of reasons
Deferrals, invitations and expert reviews
The undertaking
The noting of the materials

Conclusion

The Second Resolution

Conclusion
Annexure A

ARCHER J:

Background

The applicant (Dain) seeks judicial review of numerous decisions made by the council of the Shire of Peppermint Grove in 2017 and 2018 (Shire).
In broad terms, the decisions relate to the heritage listing of 52 The Esplanade, Peppermint Grove (Property). The Shire first purported to enter the Property on a heritage list in April 2017, without complying with a precondition to its power to enter a place on a heritage list (which required it to provide its reasons for the proposed entry) and without evaluating whether the Property met the prescribed criteria for entry. In October 2017, after Dain had challenged the validity of the entry, the Shire purported to again enter the Property on the heritage list, despite having purported to have already entered it on the list six months earlier. Dain challenged this too. In September 2018, the Shire again purported to enter the Property on the list, after revoking the October 2017 resolution.
In essence, Dain alleges:
1.the Shire made decisions in the absence of a necessary precondition to its power to make those decisions;
2.the Shire purported to re‑exercise powers which were 'spent';
3.the Shire acted unreasonably; and
4.there was a reasonable apprehension of bias in relation to the last two of the challenged decisions and there was actual bias in relation to the last.
To fully understand the issues, it is necessary to set out the facts in detail.

The facts

The initial heritage list - the municipal inventory

Prior to its recent repeal,[1] s 45 of the Heritage of Western Australia Act 1990 (WA) (Heritage Act 1990) required local governments to compile an inventory of buildings within their district which in their opinion are, or may become, of cultural heritage significance. The local governments were required to provide the inventory to the Heritage Council.
[1] This Act was repealed by the Heritage Act 2018 (WA) as at 1 July 2019, but this does not affect the outcome of these proceedings.
On an unknown date in the 1990s, an inventory of buildings within the Shire was compiled for the purposes of s 45 of the Heritage Act 1990. It was called the 'Municipal Inventory'. The Property was one of the properties on the Municipal Inventory.
Although it was not required or contemplated by the Heritage Act 1990, the Shire created different categories for the purposes of its Municipal Inventory. Each property listed on the Municipal Inventory was assigned a category letter, A, B or C. The Property was assigned to category B. The categories had no legal status. It appears that the Shire may have had regard to the category of a property on the Municipal Inventory when exercising its planning discretion, such as when considering development applications, as a management tool.
In 1996, the Shire's Town Planning Scheme 3 was gazetted (LPS3[2]). Under LPS3, the Shire was required to establish and maintain a heritage list. This was defined as the whole of the Municipal Inventory or such parts of it as were set out on the heritage list. LPS3 also set out the manner in which the Shire should deal with applications for planning approval in relation to properties on the heritage list.
[2] LPS3 took effect on 2 August 1996.
In 1999, the Shire decided to change the categories in the Municipal Inventory. The new categories were designated by numbers rather than letters. The Shire advised the registered proprietors of the Property that it intended to change the classification system and that it proposed to re‑classify the Property as a 'category 1' property.
Category 1 properties were defined as:
Buildings, which due to their character create the atmosphere of Peppermint Grove, therefore should be retained, but may be altered and extended in a manner which is both discrete and sympathetic to the original fabric and character so that a significant proportion of the original building is retained and from the street the additions are seen to be a continuation of the same fabric and character.
Category 2 properties were defined as:
Buildings which also contribute to the character and atmosphere of Peppermint Grove. These buildings may be altered or extended in a manner which recognises and retains some original features or which may be demolished, but the replacement building should recognise by its position the adjoining residence and precinct. The owner to provide an archival report for any building demolished under this category and the Shire to provide a plaque for inclusion in the adjoining footpath to recognise the cultural significance of the property.
Allocating a property to category 2 was seen to confer a 'right' of demolition, provided that the replacement building recognised the surrounds.[3]
[3] Affidavit of Lyndon Mayfield Brown sworn 21 September 2017 (First Brown Affidavit) pages 80 ‑ 82.
At that time, the registered proprietors of the Property were Lyndon Brown and Shizuko Brown (Browns). Mr Brown objected to the re‑classification. However, the Shire adopted the revised Municipal Inventory, with the Property in category 1, on 19 July 1999.
In 2001, the Browns transferred the Property to Dain. Mr Brown is the only shareholder in Dain.
In 2014, Dain retained Griffiths Architects to conduct a heritage assessment of the Property. Mr Philip Griffiths concluded that the Shire might consider changing the classification of the Property from category 1 to category 2 (as then defined).[4] Dain provided the report (Griffiths 2014 Report) to the Shire, and asked that the Shire change the classification of the Property in the Municipal Inventory to category 2. The Shire did not do so, and there is no evidence that the Shire gave any explanation for its refusal.

Deemed provisions come into effect - October 2015

[4] First Brown Affidavit page 33.

The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) came into effect on 19 October 2015. The provisions of sch 2 of the Regulations are deemed to be provisions in local planning schemes (Deemed Provisions).[5]
[5] Regulations pt 2 and the Planning and Development Act 2005 (WA) s 256 and s 257B.
Clause 8(1) of the Deemed Provisions requires a local government to 'establish and maintain a heritage list to identify places within the Scheme area that are of cultural heritage significance and worthy of built heritage conservation'. Part 9 of the Deemed Provisions sets out the procedure for dealing with applications for development approval.

LPS3 is revoked and the Shire moves to re-establish a heritage list

In early 2017, the Shire intended to revoke LPS3 and replace it with a new local planning scheme, LPS4. Unlike LPS3, LPS4 would not contain a provision deeming the Municipal Inventory to be a heritage list. Accordingly, the Municipal Inventory would cease to be deemed to be a heritage list when LPS3 was revoked. In anticipation of that, on 28 February 2017, the council of the Shire (Council) resolved to adopt the Municipal Inventory as the heritage list 'for the purposes of advertising in accordance with the [Deemed Provisions]'.
On the same date, the Council resolved to amend the definition of category 2 in the Municipal Inventory for the purposes of public consultation (First Resolution). This decision was initially challenged by Dain, but is no longer challenged.[6]
[6] ts 402.
On 3 March 2017, LPS3 was revoked and the Municipal Inventory ceased to be deemed to be a heritage list.
On the same day that LPS3 was revoked, the Shire sent Dain a notice of its intention to establish a heritage list by adopting the current Municipal Inventory. The Shire wrote that this had been the previous arrangement under the LPS3. The Shire advised that 'this change does not involve any further assessment of your property'.[7] A similar letter was sent to the owners of all buildings or places listed in the Municipal Inventory, except those buildings or places that had been demolished.[8]
[7] First Brown Affidavit LMB9.
[8] Affidavit of Michael Lyndon Whitbread, affirmed on 2 November 2017 (Whitbread Affidavit) [21] ‑ [22]. Notices were not sent in relation to places that had been demolished because those places were not going to be included in the heritage list.
On 21 March 2017, Dain wrote to the Shire objecting to the proposed entry of the Property on the heritage list. Dain also asked that, if the Property was listed, it be listed as a category 2 property.

The Second Resolution - the purported creation of the heritage list

On 18 April 2017, the Council made two resolutions, including that it would adopt the Municipal Inventory as its heritage list[9] (Second Resolution).
[9] The other resolution made that day was to adopt a revised definition of category 2 - see Agreed Chronology of Events filed 26 March 2018 (Agreed Chronology).
Dain challenges the Second Resolution. It is now common ground that the Second Resolution involved jurisdictional error.[10] As will be later explained,[11] the Shire failed to comply with a precondition to its power to enter a place on a heritage list (which required it to provide its reasons for the proposed entry) and failed to evaluate whether the properties on the Municipal Inventory met the criteria prescribed by the Deemed Provisions.

The refusal to change the Property to category 2

[10] ts 201 ‑ 202, 264 ‑ 265, 426.

[11] See under the heading 'Clause 8 of the Deemed Provisions'.

On 27 June 2017, the Council dealt with Dain's request to reclassify the Property to category 2.
At that time, Mr Whitbread was the Manager of Development Services for the Shire. Mr Whitbread had written, or at least 'signed off on'[12], a report to the Shire in relation to this request (Whitbread Report). The Whitbread Report referred to the Griffiths 2014 Report, describing Mr Griffiths as 'the Shire's Heritage Consultant'. The Whitbread Report also referred to a report from 'the landowner's consultant', which was TPG Place Mayer (TPG 2017 Report).[13] The Whitbread Report stated that both experts agreed that the Property would be more appropriately classified as a category 2 property on the Shire's heritage list.[14] The Whitbread Report recommended that Dain's request be granted.[15]
[12] ts 333.
[13] First Brown Affidavit LMB14 page 113. TPG's report is at LMB10 page 87 of the First Brown Affidavit.
[14] First Brown Affidavit LMB14 page 115.
[15] First Brown Affidavit LMB14 page 116.
The Council rejected that recommendation and instead resolved to retain the current classification of the Property as category 1 (Third Resolution). As the Council's decision was contrary to Mr Whitbread's recommendation, it was required to give reasons for its decision.[16] Its reasons comprised a single sentence, namely, that 'the existing building perfectly represents the streetscape amenity of Peppermint Grove as a typical category 1 property'.[17] The Council did not identify any basis for this statement.
[16] Regulation 11(da) of the Local Government (Administration) Regulations 1996 (WA).
[17] First Brown Affidavit LMB14 page 116.
The Third Resolution was the third decision challenged by Dain, but is no longer challenged.[18]

The Shire purports to enter the Property on the heritage list (despite having purported to do that by the Second Resolution)

[18] ts 402.

On 10 August 2017, Dain's solicitors wrote to the Shire stating that the Second and Third Resolutions involved jurisdictional error (Dain 2017 Letter).[19] The letter alleged (as is now admitted) that the Shire had failed to give reasons for the proposed entry on the heritage list, as required by the Deemed Provisions. It alleged (as is now admitted[20]) that the Council had not engaged in any evaluation of whether the statutory criteria were met and had simply adopted the Municipal Inventory. The letter advised that, unless the Shire removed the Property from the heritage list, Dain would institute judicial review proceedings.
[19] First Brown Affidavit LMB15.
[20] ts 256, 265, 270, 275 ‑ 276.
The Dain 2017 Letter did include some matters of argument and some assertions which the Shire would have been entitled to reject. However, the nine‑page letter comprehensively set out the relevant legislative framework and correctly identified the two fundamental errors the Shire had made.
After seeking legal advice,[21] the Shire responded on 15 September 2017 (Shire 2017 Letter). Its response to the alleged errors was a single sentence: 'The Shire does not agree with the allegations in [the Dain 2017 Letter]'.[22]
[21] Affidavit of Rachel Louise Addison sworn 21 February 2019 (Addison Affidavit) [41] ‑ [42], [44].
[22] First Brown Affidavit LMB16 page 127.
The Shire 2017 Letter then continued 'Notwithstanding the Shire's position, the Shire provides [Dain] with the below written notice'. What followed was purported notice of the Shire's 'proposal' to enter the Property on the heritage list and inviting submissions within 21 days. This was despite the fact that five months earlier the Shire had purported, by the Second Resolution, to enter the Property on the heritage list. The Shire sent a similar letter to the occupier of the Property. I will refer to the letters to the owner and occupier of the Property collectively as 'the Notices'.
The decision to issue the Notices was the fourth decision challenged by Dain, and continues to be challenged.
On 21 September 2017, Dain lodged an application for judicial review in relation to the First, Second and Third Resolutions and the Notices.
On 10 October 2017, Mr Griffiths sent a submission to the Shire indicating his views had not changed.[23]
[23] Whitbread Affidavit pages 38 ‑ 39.
On 17 October 2017, the Council resolved to enter the Property on the heritage list (Fourth Resolution). This was the fifth decision challenged by Dain, by amendment to the judicial review application. However, as will be seen, the Council later revoked the Fourth Resolution and it is no longer challenged.

The Shire advises it intends to enter properties (other than the Property) on the heritage list, despite having purported to have already done that by the Second Resolution

Dain's application for judicial review was listed for hearing on 12 March 2018. By the end of that day, Dain had not yet completed its submissions and it was necessary to adjourn the matter part‑heard to 24 April 2018. However, on 11 and 12 April 2018, before the resumption date, the Shire sent 'Further Notices' to the owners and occupiers of all of the properties on the heritage list, apart from the Property (Other Properties). The Further Notices purported to be notices of the Shire's proposal to enter the Other Properties on the heritage list. This was despite the fact that the Shire had already purported to enter the Other Properties on the heritage list by the Second Resolution. The decision to issue the Further Notices is challenged.
On 19 April 2018, Dain provided a report from a Mr Bodycoat to the Shire.
On 23 April 2018, the day before the judicial review hearing was to resume, the parties advised that they wished the matter to be adjourned to enable the Shire to review its position as a result of conferral and further information. The hearing was adjourned.
On 11 June 2018, the Shire gave Dain a report from Mr Griffiths responding to Mr Bodycoat's report (Griffiths Bodycoat Response). As noted earlier, Mr Griffiths had initially been engaged by Dain in relation to the heritage value of the Property.
On 22 June 2018, Dain gave the Shire a preliminary report by GBA Heritage which reviewed Mr Griffiths' two reports. Dain had not been able to obtain a full report from GBA Heritage sufficiently ahead of the Council's next meeting on 26 June 2018. The Shire decided not to deal with the Property at that meeting, stating that the postponement was to enable further consideration of the preliminary report.

The Shire purports to enter some properties on the heritage list (despite having previously purported to enter those same properties by the Second Resolution)

The owners and occupiers of 96 of the Other Properties did not object to the Shire's proposal to enter their properties on the heritage list. On 24 July 2018, the Council resolved to enter those 96 properties on the heritage list (Fifth Resolution). This decision is challenged by Dain.
Two days later, Dain provided a full report from GBA Heritage (GBA Report) to the Shire.
On 31 August 2018, Dain asked for the judicial review proceedings to be re‑listed for directions.

The Sixth Resolution - after revoking the Fourth Resolution, the Shire purports to enter the Property on the heritage list

On 21 September 2018, the Shire received a response from Mr Griffiths to the GBA Report (Griffiths GBA Response), for consideration at its Council meeting on 25 September 2018. At this meeting, the Council was to consider a proposal to again enter the Property on the heritage list.
The 'Responsible Officer' for the report for this meeting was Mr Montgomery (Montgomery Report).[24] Mr Montgomery had, by that time, replaced Mr Whitbread as the Shire's Manager of Development Services.
[24] Affidavit of Ross Andrew Montgomery sworn 2 November 2018 (Second Montgomery Affidavit) page 6.
The Montgomery Report summarised the history of the matter, including that the Fourth Resolution had been made because the receipt of the Dain 2017 Letter had 'prompted the Shire to take the opportunity to revisit the entry of the Property on the heritage list in order to remove any concern as to whether the process required by the Deemed Provisions had been complied with'.[25] After summarising various issues, the Montgomery Report recommended that the Council resolve to enter the Property on the heritage list.
[25] Second Montgomery Affidavit page 8.
On the day of the meeting, Dain's solicitors wrote to the Shire advising that they had seen from the agenda that the item relating to the Property was said to be subject to a 'confidential report'. Dain's solicitors wrote that they assumed from this that the discussion of the merits would not take place in public. The solicitors reminded the Shire that one of Dain's claims in the judicial review proceedings was of apprehended bias. The solicitors advised the Shire that, while any matters relating to legal advice could be redacted from the report, 'any discussion about the merits of the respective heritage reports filed in the matter ought not attract any such confidentiality. The evaluative assessment of the property is fundamentally a matter in the public interest, affecting entry of properties on a public instrument'.[26]
[26] Affidavit of Lyndon Mayfield Brown sworn 19 October 2018 (Second Brown Affidavit) LB1.
In effect, the letter asked the Shire to conduct the discussion of the proposed entry of the Property onto the heritage list in public.[27]
[27] See Agreed Chronology.
The Shire's solicitors responded and advised that the reference to Dain's matter being considered as a 'confidential item' had been on an agenda for an earlier 'Briefing Forum' and that the matter was not listed as a 'confidential item' on the agenda for the meeting that day. However, the Shire's solicitors added:[28]
Please also note that it is likely that the Council meeting will be closed to the public to allow some discussion of your client's matter, including discussion of the legal advice provided to the Shire and regarding the Supreme Court proceedings - but my understanding at this stage is that the item itself will be dealt with in public.
[28] Second Brown Affidavit LB2.
If, by the phrase 'the item itself will be dealt with in public', the Shire's solicitors meant that the motion and vote on the final resolution would occur in public, their understanding was accurate. If, however, they meant that discussion of the merits would occur in public, it was not.
Later that afternoon, the Council meeting took place. When the agenda item relating to the Property was reached, it was moved:[29]
That the meeting be closed to the public for the purpose of discussing item 8.1.4 [the proposed entry of the Property on the Heritage List] as it is required that this matter be dealt with behind closed doors under s 5.23.
[29] Second Montgomery Affidavit page 5.
The minutes of the meeting on 25 September 2018 (Minutes) then set out s 5.23(2)(b) and (d) of the Local Government Act 1995 (WA).[30]
[30] Second Montgomery Affidavit page 5.
Under s 5.23(1), all council meetings are to be open to members of the public, subject to s 5.23(2).
Section 5.23(2) relevantly provides that, if a meeting is being held by a council, the council 'may close to members of the public the meeting, or part of the meeting, if the meeting or the part of the meeting deals with any of the following - … (b) the personal affairs of any person; and …(d) legal advice obtained …'.
The Minutes then recorded the following:[31]
1.At 5.45 pm, staff and members of the public left the council chambers.
2.The Council revoked the Fourth Resolution (the Minutes suggest this was while the Council was still behind closed doors).
3.'The President advised that all elected members had read and considered all matters and documentations provided to Councillors dealing with this matter' (President's Statement) (the Minutes suggest this was while the Council was still behind closed doors).
4.It was then moved that the meeting be brought out from behind closed doors and re‑opened to the public at 6.07 pm.
[31] Second Montgomery Affidavit [10] ‑ [13] and pages 5 and 17.
When the meeting was re‑opened to the public, a motion was made and carried to enter the Property on the heritage list (Sixth Resolution).[32]
[32] Second Montgomery Affidavit page 17.
It appears from the times recorded that the Council was behind closed doors for 22 minutes. I will refer to this part of the meeting as 'the private meeting'. Although I would not attribute the lay observer with knowledge of what was discussed in the private meeting, the Shire adduced evidence that 'most' of the discussion was about the process and legal effect of the recommendation to revoke the Fourth Resolution.[33]
[33] Addison Affidavit [107].
Contradicting the Minutes is an affidavit filed on behalf of Dain by a person who recorded the public part of the meeting, Ms Reiffer.[34] Her transcription of the recording indicates that the revocation of the Fourth Resolution and the President's Statement occurred after the meeting was re‑opened to the public. Her account was not challenged. However, whether her account or the Minutes were accurate, there was no discussion of the merits of the Second Resolution in public.
[34] Affidavit of Emily May Reiffer sworn 18 October 2018 page 6.
The Sixth Resolution is challenged by Dain.

The application for judicial review

As noted earlier, Dain commenced these proceedings on 21 September 2017. The proceedings were adjourned part heard in early 2018. On 31 August 2018, Dain sought to have the judicial review application re‑listed for directions. By this time, the Further Notices had been issued and the Fifth Resolution had been made. The Sixth Resolution was made the following month. The application for judicial review was further amended to include the Further Notices and the last two resolutions. The amended application included an allegation of apprehended bias in relation to the Fifth and Sixth Resolutions and actual bias in relation to the Sixth.
After the determination of a discovery dispute, the matter was re‑listed for hearing on 18 ‑ 19 March 2019. It was agreed that, in view of various developments that had occurred since the first day of hearing, and the parties' clarification of the critical issues, the re‑hearing would be treated as a fresh hearing, rather than a continuation of the previous hearing. It was further agreed that the issues for determination would be those set out in the parties' agreed list of issues (List of Issues).

The issues

The List of Issues is six pages long and is annexed to these reasons.
The parties identified the 'primary issue' as, in effect, whether the Shire purported to exercise powers which were 'spent'. In short, the issue was whether, if the Shire had invalidly exercised a power to enter properties on a heritage list, the Shire could subsequently purport to enter the same properties on the heritage list.
Other issues included:
1.whether decisions were made in the absence of a necessary precondition;
2.whether the Shire acted unreasonably;
3.whether there was apprehended bias in the making of the Fifth or Sixth Resolutions, or actual bias in the making of the latter.
The List of Issues indicated that Dain no longer challenged the First and Third Resolutions. It also indicated that Dain no longer relied upon one of two grounds of challenge to the Fourth Resolution. During the hearing, Dain advised that it did not rely on the other ground of challenge to the Fourth Resolution (which of course had been revoked by this time), and therefore did not challenge it.[35]
[35] ts 402.
Dain also advised during the hearing that its challenges to the Notices and the Further Notices were limited to its claim that the Shire's powers had been spent (which was bound up in the 'primary issue').[36] It also withdrew its challenge to the Fifth Resolution on the grounds of legal unreasonableness.[37]
[36] ts 403.
[37] ts 403 ‑ 404. Mr Hotchkin did not advise in his reply that it was pressed.
It is convenient to set out the legislative framework and relevant legal principles before turning to the issues.

Legislation

Heritage Act 1990

As noted earlier, the now repealed Heritage Act 1990 required a local government to compile an inventory of buildings within its district which in its opinion were, or may become, of cultural heritage significance. The local government was required to provide the inventory to the Heritage Council.

Clause 8 of the Deemed Provisions

Clause 8 of the Deemed Provisions relevantly provides:
8. Heritage list
(1)The local government must establish and maintain a heritage list to identify places within the Scheme area that are of cultural heritage significance and worthy of built heritage conservation.
(2)The heritage list -
(a)must set out a description of each place and the reason for its entry in the heritage list; and
(b)must be available, with the Scheme documents, for public inspection during business hours at the offices of the local government; and
(c)may be published on the website of the local government.
(3)The local government must not enter a place in, or remove a place from, the heritage list or modify the entry of a place in the heritage list unless the local government -
(a)notifies in writing each owner and occupier of the place and provides each of them with a description of the place and the reasons for the proposed entry; and
(b)invites each owner and occupier to make submissions on the proposal within 21 days of the day on which the notice is served or within a longer period specified in the notice; and
(c)carries out any other consultation the local government considers appropriate; and
(d)following any consultation and consideration of the submissions made on the proposal, resolves that the place be entered in the heritage list with or without modification, or that the place be removed from the heritage list.
(4)If the local government enters a place in the heritage list or modifies an entry of a place in the heritage list the local government must give notice of the entry or modification to -
(a)the Heritage Council of Western Australia; and
(b)each owner and occupier of the place.
Both 'cultural heritage significance' and 'built heritage conservation' are defined.[38]
[38] Clause 1 of the Deemed Provisions provides that 'cultural heritage significance' has the meaning given in s 3 of the Heritage Act 1990. It also provides that 'built heritage conservation' means 'conservation' as defined in s 3 of the Heritage Act 1990.
Although cl 8 provides for the establishment of a heritage list by each local government, properties on such lists were not automatically entered onto the State Heritage Register. The decision as to whether to enter any place on the State Heritage Register, whether or not it is on a heritage list made under the Deemed Provisions, was a matter for the Minister having regard to the criteria that were set out in s 47 of the Heritage Act 1990.

The consequences of a property being on a heritage list

There are several regulations that have specific application to places entered on the heritage list (Listed Places).
First, a local government may require a heritage assessment to be carried out prior to approval of any development on a Listed Place.[39] It is not clear who is required to pay for this. However, at the very least, this power could cause delay in the determination of a development application.
[39] Clause 11(1), in pt 3 of sch 2 of the Deemed Provisions.
Second, a local government may require a person to carry out specific repairs of a Listed Place if it considers the place is not being properly maintained. The person affected has an express right to apply to the State Administrative Tribunal (SAT) for a review of such a requirement.[40]
[40] Clause 13, in pt 3 of sch 2 of the Deemed Provisions.
Third, a Listed Place may become subject to special requirements in relation to development. The local government has the power to amend any site or development requirement specified in the Deemed Provisions to facilitate the heritage conservation of a Listed Place. The local government is expressly required to consult affected parties and to have regard to any views expressed prior to making its determination.[41] There is no express right to apply to the SAT for a review of decisions made under this power. However, as will be seen, there is such a right in relation to decisions pertaining to development applications.
[41] Clause 12, in pt 3 of sch 2 of the Deemed Provisions.
Fourth, development approval may be required in respect of a place that is subject to a heritage related regime, such as being a Listed Place, simply because it is subject to such a regime.[42]
[42] Clause 61, in pt 7 of sch 2 of the Deemed Provisions.
For example, cl 61(1)(e) of the Deemed Provisions provides that development approval is required to demolish a single house that is, among other things, 'included on a heritage list prepared in accordance with this Scheme' or 'within an area designated under the Scheme as a heritage area' or entered in the Register of Heritage Places under the Heritage Act 1990. A single house that is not on a heritage list or otherwise subject to a heritage related regime does not require development approval. All that is required is a demolition permit.
Fifth, in considering any development application, the local government is required to have due regard to, among other things, cultural heritage factors.[43]
[43] See cl 67(k) and (l).
Persons affected by determinations made in relation to applications for development approval have an express right to apply to the SAT for a review.[44]
[44] Clause 76, in pt 9 of sch 2 of the Deemed Provisions.

Judicial review

In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the Council made a jurisdictional error in any of the challenged decisions.[45]
[45] Dain did not allege errors of law on the face of the record.

In Re Refugee Review Tribunal; Ex parte Aala,[46] Hayne J explained:
There is a jurisdictional error if 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 power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[46] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].
As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[47] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
[47] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1.
First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[48]
[48] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ).
It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[49] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[50]
[49] Hossain [29].
[50] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle & Gordon JJ), and [134] (Edelman J).
Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[51]
[51] Hossain [24], [27].
In Hossain, the plurality said:[52]
[A] statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance. … [The] threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.
[52] Hossain [29] ‑ [30]. See also Minister for Immigration v SZMTA [2019] HCA 3; (2019) 363 ALR 599.

Approach to statutory construction

As was recently said by the Court of Appeal in Mohammadi v Bethune,[53] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.
[53] Mohammadi v Bethune [2018] WASCA 98Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].

In Australian Unity Property Ltd v City of Busselton,[54] the Court of Appeal reiterated the primacy of the legislative text in determining legislative intention. The Court emphasised that the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
[54] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].
The Court also said (citation omitted):[55]
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.
[55] Australian Unity [84].

Is there a reasonable apprehension of bias in relation to the Sixth Resolution?

Although the parties did not identify the allegation of apprehended bias as the 'primary issue', it was, in my view, Dain's strongest point. It is convenient to begin with it.

Legal principles

The test

Bias may be caused by an interest in the outcome, affection or enmity, or prejudgment. Whatever its cause, the result that is feared is a deviation from the true course of decision‑making.[56]
[56] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [183] (Hayne J).
The governing principle for apprehended bias is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not bring an impartial mind to the decision.[57] The question is largely a factual one, but must be considered in the legal, statutory and factual contexts in which the decision is made.[58] It is an objective test of 'possibility (real and not remote), not probability'.[59] The 'court need not be satisfied that the fair‑minded lay observer "would" have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities'.[60]
[57] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 [6]. See also Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [12], [20], [21] (Kiefel, Bell, Keane & Nettle JJ).
[58] Isbester [12], [20], [21].
[59] Ebner [7]. See also Isbester [59] (Gageler J).
[60] Tarrant v The Queen [2018] NSWCCA 21 [9].
The proper approach, set out in Ebner v Official Trustee in Bankruptcy,[61] involves two steps (Ebner test):[62]
1.First, the identification of what is said might lead a decision‑maker to decide a case other than on its legal and factual merits.
2.Second, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[61] Ebner [8].
[62] Isbester [12], [21], [50] (Kiefel, Bell, Keane & Nettle JJ), [59] (Gageler J); Ebner [8].
As is apparent from the description, the first step is not an identification of those things that will cause the decision‑maker to decide a case other than on its legal and factual merits. It is an identification of the factor(s) that might lead the decision‑maker to decide a case other than on its legal and factual merits. I will refer to these factors as 'Step 1 factors'.
Similarly, the second step is directed to the capability to affect a decision, not actual affectation.[63] I will refer to this capability as the 'Step 2 capability'.
[63] Ebner [7]; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 [82].
Once the two steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed.[64] Gageler J in Isbester v Knox City Council[65] described this assessment by reference to the two steps identified in Ebner. His Honour described it as the assessment of the reasonableness of the apprehension of the deviation identified in the second step being caused by the factor identified in the first step. Gageler J characterised this assessment as the third step. While the plurality did not describe the ultimate assessment as a third step, Gageler J's characterisation of it as a third step, and articulation of the assessment in the terms of the two steps identified in Ebner, is consistent with Ebner and a practical approach to adopt.[66]
[64] Ebner [8].
[65] Isbester [59].
[66] See also Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 [79].
Where a number of different matters are relied upon to ground an allegation of apprehended basis, the court should generally consider each separately and then cumulatively.[67]

The content of the test in respect of non‑judicial decision‑makers

[67] Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 [176] (Basten JA, with whom Allsop P & Macfarlan JA agreed).

Although the test for a reasonable apprehension of bias is the same for administrative and judicial decision‑makers, its content may be different.[68] In Isbester,[69] Kiefel, Bell, Keane and Nettle JJ said (citations omitted):
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair‑minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
[68] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [70] (McHugh J); Isbester [22] (and [50]). See also Jia Legeng [102] (Gleeson CJ & Gummow J, with whom Hayne J agreed at [176]), [181] ‑ [183], [187] (Hayne J, with whose observations on this subject Gleeson CJ & Gummow J agreed at [99] ‑ [100]); McGovern [2] ‑ [4], [7] ‑ [8], [23] (Spigelman CJ), [236] (Campbell JA agreed with Spigelman CJ that the trial judge stated the wrong test), [71], [75] ‑ [77], [108] ‑ [115] (Basten JA); Sanders v City of South Perth [2019] WASC 226 [195] ‑ [198], [209].
[69] Isbester [23].
The plurality said that the two cases that had been referred to in the Courts below, Minister for Immigration and Multicultural Affairs v Jia Legeng and McGovern v Ku-ring-gai Council, furnished examples of how those factors assume relevance to the question of what a fair‑minded observer may reasonably expect as to the level, or standard, of impartiality which should be brought to decision‑making by certain non‑judicial decision‑makers. The plurality said, however, that this did not mean that those factors would be of particular relevance where an incompatibility of roles, or a conflict of interest, was alleged, rather than prejudgment.[70]
[70] Isbester [24].
Where prejudgment is alleged, there will be a difference in the content of the test depending on whether the decision‑maker is a judicial or administrative decision‑maker. The standard of impartiality required of non‑judicial decision‑makers is less than for judicial decision‑makers.[71]
[71] McGovern [11], [13], [32], [37] (Spigelman CJ), [77], [80] (Basten JA); Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138 [79]. On the other hand, judges are presumed more able than others to disregard irrelevant and prejudicial material.
In Isbester, the plurality said:[72]
It was considered by Spigelman CJ in McGovern [(2008) 72 NSWLR 504 at 508 [13]] to be of particular significance that the relevant statutory power was vested in a democratically elected council exercising a discretionary power expressed in broad terms to which multiple considerations applied and in respect of which there might be a range of permissible opinion. At a practical level, it is also to be expected that a person in the position of a councillor will form opinions before voting and may express them. As was observed [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 539 [102]] in Jia Legeng, it would be unrealistic to expect a political decision‑maker to modify his or her behaviour in order to conform to higher standards inappropriate to his or her office. It could not be suggested that a councillor who has expressed views to constituents with respect to a development application should disqualify himself or herself. It was in this context that Basten JA said [in McGovern] that a fair‑minded observer would expect little more of a councillor than an absence of personal interest and a willingness to give genuine and appropriate consideration to the application.
[72] Isbester [27].
The plurality said, in effect, that the standard of neutrality referred to in McGovern, that of merely 'genuine and appropriate consideration', was relevant to an allegation of prejudgment by a non‑judicial decision‑maker, but not to an allegation of a conflict of interest.[73] Where a conflict of interest is alleged, the question is not whether the decision‑maker could be expected to give genuine consideration to the application. Rather, it is whether it might reasonably be apprehended that a person in the decision‑maker's position would have an interest in the decision which could affect his or her proper decision‑making.[74]

Prejudgment

[73] Isbester [24], [32], [33]. See also [46] ‑ [50].

[74] Isbester [32] ‑ [33].

Prejudgment in this context means that the decision‑maker is not 'open to persuasion'.[75] As shown by the extract above, this is not to say that the Shire councillors were not entitled to have formed a view before voting or to express those views. Indeed, it was open to a councillor to form an opinion early in the process, provided the councillor was willing to consider new materials and arguments. It was open to a councillor to maintain a previously reached opinion even after new materials and arguments were presented, provided the councillor gave genuine consideration to the new materials and arguments. What is in issue is whether the Council was incapable of being persuaded by contrary representations or additional material. In other words, that, whatever facts or arguments were presented, the Council would maintain its opinion without giving the matter fresh consideration.[76]
[75] Jia Legeng [71], [105] (Gleeson CJ & Gummow J); McGovern [15] ‑ [23].
[76] McGovern [15] ‑ [23]. See also Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [83].
Applying the test of apprehended bias to an allegation of prejudgment, the question is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not be open to persuasion.[77] Given the nature of the decision‑maker here, a Shire council, the question is not whether it might be feared that the Council had formed a view, even a strong view. It is whether a fair‑minded lay observer might reasonably apprehend that the Council might not be open to persuasion in that it might not be willing to give genuine and appropriate consideration to new materials and submissions.
[77] McGovern [23].
In Re MacTiernan; Ex parte Coogee Action Coalition Inc,[78] McLure JA, with whom Wheeler and Pullin JJA agreed, said, in the context of a planning decision made by the Western Australian Planning Commission:
In the case of prejudgment, the question is whether there is a reasonable apprehension that the Commission is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. An alternative formulation is whether a reasonable and informed member of the public would conclude there was a possibility that the Commission was not open to persuasion, bearing in mind it could properly form a preliminary view (even a strong preliminary view) as to the planning merits of the proposed development.
[78] Re MacTiernan; Ex parte Coogee Action Coalition Inc [83].
I would not read these remarks as setting a higher hurdle than the 'double‑might' test confirmed in Isbester. Having regard to her Honour's reasons as a whole, her Honour was not saying that the test to be applied was different for judges as distinct from policy bodies such as planning authorities. Rather, the variable was the applicable level or standard of impartiality.[79] The hurdle remains one of possibility, not probability. Of course, it remains necessary to articulate how the Step 1 factor(s) may give rise to a reasonable apprehension that the decision‑maker might not decide the case on the merits.

Conflict of interest

[79] Re MacTiernan; Ex parte Coogee Action Coalition Inc [67] ‑ [71], [79]. See also Sanders v City of South Perth [195] ‑ [198], [209].

In Isbester, the High Court was considering an allegation of conflict, not prejudgment.
The appellant had been convicted of an offence under s 29(4) of the Domestic Animals Act 1994 (Vic) as her dog had attacked a person and caused serious injury. Section 84P(e) of that Act provided the relevant council with the power to destroy a dog where its owner had been found guilty of such an offence. Following a hearing, a panel of three delegates of the relevant council decided that the dog should be destroyed.
One of the members of that panel, Ms Hughes, had been involved in the prosecution on behalf of the council. Ms Hughes had directed council employees to further investigate the identity of the dog involved in inflicting the injury and she spoke with the complainant herself. She determined that six charges should be laid with respect to the attack, arranged for charges and summonses to be drafted and signed some of the charges as informant. Ms Hughes gave instructions to the council's solicitors to prosecute the charges and to negotiate pleas which might be accepted from the appellant. Those pleas were subsequently entered, resulting in the appellant's conviction.
Subsequently, Ms Hughes organised the panel hearing and drafted the letter advising the appellant of it. She supplied the panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.
The plurality said the question before the court was whether it might reasonably be apprehended that a person in Ms Hughes' position would have an interest in the decision to destroy the dog which could affect her proper decision‑making.[80]
[80] Isbester [32] ‑ [33].
The plurality said that Ms Hughes' involvement in the prosecution created an interest in the final outcome. The plurality noted that her involvement had continued after the Magistrates' Court proceedings had ended, and said that she could properly be described as the 'moving force' with respect to the decision to destroy the dog.[81]
[81] Isbester [42] ‑ [43].
The plurality explained that a 'personal interest' is not limited to where a person will receive some material or other benefit.[82]
In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge.
[82] Isbester [46].
The plurality noted that the Ebner test still applied to allegations of conflict. They said:[83]
The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision‑maker's interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious.
[83] Isbester [49].
I note, however, that it has been suggested that, where the decision is not an evaluative one, an interest held by the decision‑maker may not inevitably mean that a connection will be established.[84]

The fair-minded lay observer

[84] See Day v Sanders [2015] NSWCA 324; (2015) 90 NSWLR 764 [97] ‑ [98] (Basten JA, with whom Leeming & Simpson JJA agreed at [117], [131]).

In applying the test, the hypothetical fair‑minded lay observer is to be taken to be 'aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision'.[85] In my view, the hypothetical observer's knowledge would include the internal documents of the Shire.[86]
[85] Isbester [23] (plurality) and [57] (Gageler J); see also McGovern [78] ‑ [83].
[86] See McGovern [81]. See also Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 73 in which Deane J held that the observer would be attributed with knowledge of all of the material objective facts ascertained by the (appellate) court.
The fair‑minded lay observer is reasonable. He or she is 'neither complacent nor unduly sensitive or suspicious'.[87]

Conduct of non‑decision‑makers

[87] Bodycorp Repairers v Holding Redlich [84], quoting Kirby J in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53].

If it is alleged that the actuality or the appearance of disqualifying bias resulted from the conduct or circumstances of a person other than the decision‑maker, step 2 of the Ebner test may be seen to divide 'into two elements: articulation of how the identified factor might affect that person individually, and articulation of how that effect on that person individually might in turn affect the ultimate resolution of the question within the overall process of decision-making'.[88] In evaluating the second element, the part played by that other person in relation to the decision will obviously be important.[89]

The allegation

[88] Isbester [60] (Gageler J).

[89] See Hot Holdings v Creasy [22] (Gleeson CJ), Isbester [60] (Gageler J).

Dain's written submissions set out the matters it alleged in relation to the three steps of the test.[90] Although the written submissions did not entirely reflect what is contemplated by each step of the test, Dain's case was made sufficiently plain. Dain also further clarified its case in oral submissions. With some reframing, Dain's allegations can be understood as follows.
[90] See Applicant's Written Submissions [114] ‑ [119].
Dain's case was that there was a reasonable apprehension of both prejudgment and a conflict of interest in the making of the Sixth Resolution.
The first Step 1 factor Dain relied upon was the history of the dealings between the parties over 20 years.[91]
[91] Applicant's Written Submissions [114(c)].
In relation to the Step 2 capability of this factor, Dain submitted that the history gave the Shire an incentive to reject the views of Dain's experts because[92]
conceding that they were right would be an admission of fault and expose its councillors to reputational harm by having incurred significant legal costs, presumably to be indemnified by ratepayers, in defending proceedings it ought not have defended, and pointlessly put its Heritage List at risk, with its consequent exposure to liability for damages.
[92] Applicant's Written Submissions [115(b)]. See also [114(b)].
Whether or not the Shire was wrong to reject the views of Dain's experts is not the subject of these proceedings. Rather, the issue is whether the Shire might have had an interest in defending the various resolutions it had made, unrelated to the merits. Expressed in terms of step 2, the question is whether the history of the dealings between the parties might have caused the Council to make the Sixth Resolution not on the merits, but because it had an interest in maintaining its stance that the Property should be on the heritage list, so as to avoid potential reputational harm and cost.
Dain also relied on an alternative Step 2 capability for this Step 1 factor. This was that the history might have caused the Council to not make the Sixth Resolution on the merits because it had become determined that the Property would be on the heritage list regardless of what further materials or submissions might say.
The second Step 1 factor was that the Shire relied on the reports of Mr Griffiths and Mr Montgomery.
In relation to the Step 2 capability of this factor, Dain submitted that this might have caused the Council to not make the Sixth Resolution on the merits because the reports on which it relied were written by Mr Griffiths (against whom Dain alleged an interest and prejudgment) and Mr Montgomery (against whom Dain alleged prejudgment).[93]
[93] See Applicant's Written Submissions [114(a)], [115(a)] and [118].

Aligned with the second Step 1 factor was the third Step 1 factor relied upon by Dain - that Mr Montgomery was in the private meeting in which the Council discussed the Sixth Resolution. Dain asserted that the Step 2 capability of this factor was that this might have caused the Council to not make the Sixth Resolution on the merits because it may have been improperly influenced by Mr Montgomery.
Dain submitted that it is objectively reasonable to conclude that any or all of those Step 1 factors might have caused a deviation from deciding the matter on the merits.

The relevant facts

The adoption of the Municipal Inventory

It will be recalled that, when LPS3 was revoked on 3 March 2017, the Municipal Inventory ceased to be a heritage list. On the same day that LPS3 was revoked, the Shire sent Dain (and others) a notice of its intention to establish a heritage list by adopting the current Municipal Inventory. The Shire wrote that this had been the previous arrangement under the LPS3. The Shire advised that 'this change does not involve any further assessment of your property'.
It will be recalled that the Deemed Provisions required the Shire to establish a heritage list to identify places that were of 'cultural heritage significance' and 'worthy of built heritage conservation'. These were, in effect, the newly prescribed criteria for entry on a heritage list (Criteria).
By cl 8(3)(a) of the Deemed Provisions, the Shire did not have the power to enter a place on a heritage list unless, among other things, it had issued a notice that provided its reasons for the proposed entry. From the context of cl 8 as a whole, it is clear that cl 8(3)(a) requires the local government to give notice of the reasons why it considers that a property meets both Criteria.
The notice did not satisfy the requirements of cl 8(3)(a). The notice gave no reasons as to why the Shire considered that the Property met either criterion. It appears that the reason for the entry was simply that LPS3 had been revoked.
Further, when the Property was first entered onto the Municipal Inventory, the Deemed Provisions had not come into force (and would not do so for about 20 years). It is not, nor could it be, suggested that, when the Shire entered properties on the Municipal Inventory, it had evaluated properties against criteria which would be set some 20 years later.[94]
[94] This was effectively conceded by the Shire - see ts 265.
It can be inferred from the Shire's statement that 'this change does not involve any further assessment of your property' that the Shire did not consider the Criteria. This is supported by the Shire's failure to give reasons for the entry (other than the implicit reason that LPS3 had been revoked).
Dain submitted that this was evidence of prejudgment because cl 8 required an assessment of the Criteria. In a sense, it was worse than prejudgment. The Council did not form an immovable view that the Criteria had been met. Rather, the Council did not even consider whether the Criteria had been met, yet put the Property on the heritage list.
Regrettably, it appears to have been an exercise in 'rubber‑stamping'. LPS3 had been revoked and the Municipal Inventory had ceased to be a heritage list. It appears that the Council decided to address only the effect of the revocation of LPS3, by which the Municipal Inventory ceased to be the heritage list, by adopting it as its heritage list, without considering in any way whether the properties met the Criteria and without giving owners any opportunity to be heard on that issue.
In my view, the fair‑minded lay observer would consider these historical matters to be relevant when considering the later‑made Sixth Resolution.

The refusal to change the Property to category 2

It will be recalled that Dain sought to have the Property reclassified to category 2. The Whitbread Report referred to the Griffiths 2014 Report and the TPG 2017 Report and stated that the two experts agreed that the Property would be more appropriately classified as a category 2 place under the Shire's heritage list. The Whitbread Report recommended that Dain's request be granted.
In these proceedings, the parties disputed the effect of the Griffiths 2014 Report. Dain submitted that its effect was to recommend that the Property be re‑classified from category 1 to category 2. The Shire submitted that Mr Griffiths merely suggested that the Shire might consider re‑classifying it. However, the Whitbread Report stated that the two experts agreed that the Property would be more appropriately classified as a category 2 place. Presumably, the Council was aware of Mr Whitbread's assessment.
The Council rejected Mr Whitbread's recommendation. As the Council's decision was contrary to Mr Whitbread's recommendation, it was required to give reasons for its decision.[95] Its stated reason was that 'the existing building perfectly represents the streetscape amenity of Peppermint Grove as a typical Category 1 property'.[96] The Council did not identify any basis for this statement.[97] Nor did the Council say that it disagreed with Mr Whitbread's assessment of the expert reports.
[95] Regulation 11(da) of the Local Government (Administration) Regulations 1996 (WA).
[96] First Brown Affidavit LMB14 page 116.
[97] See, for example, ts 261 ‑ 264.
Although this is undoubtedly part of the history between the parties, I do not consider that the fair‑minded lay observer would give this much weight. As it relates to the classification rather than the actual entry on the list, it is a step removed from what the Council did when it made the Sixth Resolution.

The refusal to acknowledge the invalidity of the Second Resolution

It is now common ground that the Second Resolution involved jurisdictional error. However, the Shire was slow to admit this.
As noted in the previous section, the Shire did not have the power to enter a place on a heritage list unless, among other things, it had issued a notice that provided its reasons for the proposed entry. The notices did not do this.
Accordingly, in making the Second Resolution, the Council failed to comply with this precondition to the exercise of its power.
This was a material breach. It could not be suggested that, had the breach not occurred, the same decision would have been made. Owners were effectively denied the opportunity to make submissions as to why the Council's reasons were insufficient to justify listing their property on the heritage list.
It was also a complete breach. It is not that the reasons were inadequate. There were no reasons.
The extent of the non‑compliance was such that the Second Resolution involved jurisdictional error; it was made outside the Council's jurisdiction.
The Council made a second fundamental error in failing to evaluate whether the properties on the Municipal Inventory met the Criteria prescribed by the Deemed Provisions.
The Shire was alerted to these errors on 10 August 2017 by the Dain 2017 Letter. I earlier set out the contents of this letter and the Shire's response. However, for convenience, the salient aspects are here repeated.
The Dain 2017 Letter alleged (as is now admitted) that the Shire had failed to give reasons for the proposed entry on the heritage list, as required by the Deemed Provisions. It alleged (as is now admitted) that the Shire had not engaged in any evaluation of whether the statutory criteria were met and instead simply adopted the Municipal Inventory. The letter gave notice that Dain challenged the Second Resolution (and the Third Resolution) on the grounds of jurisdictional error.
After obtaining legal advice, the Shire sent the Shire 2017 Letter. Its response to the alleged errors was a single sentence: 'The Shire does not agree with the allegations in [the Dain 2017 letter]'.[98]
[98] First Brown Affidavit LMB16 page 127.
The Shire then continued 'Notwithstanding the Shire's position, the Shire provides [Dain] with the below written notice'. What followed was purported notice of the Shire's 'proposal' to enter the Property on the heritage list and inviting submissions within 21 days. This was despite the fact that the Shire had purported to enter the Property on the heritage list by the Second Resolution, five months earlier.
Dain submitted that a fair‑minded lay observer might reasonably apprehend that the Shire was simply intent on limiting its exposure to liability. However, there are many reasons why the Shire may have been reluctant to admit its error, including reasons unrelated to bias. For example, the Shire may simply have been embarrassed. Nevertheless, the Shire's refusal to admit the error, while at the same time purporting to give notice that it proposed to enter the Property on the heritage list, is a relevant circumstance to be considered in assessing whether a fair‑minded lay observer might reasonably apprehend that the Shire might not have been assessing whether the Property should be on the heritage list on the merits.
Further, the Shire 2017 Letter also set out what were said to be the Shire's reasons for the proposed entry, listing why it was said that the Shire considered the Property met the Criteria. Despite this, counsel for the Shire appeared to submit that the Shire had not, in fact, evaluated the Criteria at the time of issuing the Notices.
Counsel for the Shire submitted that the issuing of Notices said nothing about any evaluation having been conducted. When asked why, then, the Shire would assert in the Notices that it proposed to enter the Property on the heritage list, he said this was because the Deemed Provisions required the notice to set out the reasons. After a further exchange, he said that the reasons were taken from the Municipal Inventory, which itself was to capture properties considered to be of cultural heritage significance.[99] However, it will be recalled that, prior to the Deemed Provisions, there was no requirement that the Property also be worthy of heritage built conservation.
[99] ts 269 ‑ 272. See also ts 438 ‑ 446.
Counsel for the Shire submitted that the Notices were simply to 'kick start the process' to invite submissions and then determine whether the Property should be on the list. He appeared to submit that the Shire would have been prejudging the matter if it had evaluated the Criteria at the time of issuing the notices.[100] I do not accept this. The statutory framework required a preliminary evaluation to be conducted in order for the Shire to conclude that a notice should be issued, and so that the notice could set out the reasons why the Shire considered the property should be on the heritage list, as required by cl 8(3). The whole point of the notices was to provide owners with a meaningful opportunity to address the Shire's reasons for considering their property should be on the heritage list. Providing those reasons would not constitute prejudgment, unless the Shire was unwilling to depart from its preliminary evaluation regardless of further material and submissions.
[100] ts 445.
In my view, this sequence of events is relevant to the assessment of whether a fair‑minded lay observer might reasonably apprehend that the Council might not have brought an impartial mind to the later‑made Sixth Resolution. The Council made the Second Resolution without conducting any assessment of whether the Criteria had been met. When (correctly) told it had done so in breach of a precondition to its power and having failed to conduct the assessment required, the Shire said it did not agree. At the same time, it purported to give notice that it proposed to enter the Property on the heritage list, without considering even in a preliminary way whether the Property met both Criteria. The fair‑minded lay observer might fear that the Council embarked on this process simply to prevent Dain succeeding in its challenge and not because it had evaluated, or intended to evaluate, whether the Property met the Criteria for entry on the heritage list. The fair‑minded lay observer might fear that this was also why the Council made the Sixth Resolution.
This conclusion is perhaps supported by a comment made in the Montgomery Report. It will be recalled that that report was written for the meeting at which the Sixth Resolution was made. The report summarised the history of the matter, including that the Fourth Resolution had been made because the receipt of the Dain 2017 Letter had 'prompted the Shire to take the opportunity to revisit the entry of the Property in the heritage list in order to remove any concern as to whether the process required by the Deemed Provisions had been complied with'. The fair‑minded lay observer might fear that the Shire had simply 'revisited' the entry to prevent Dain succeeding in its challenge and not for the purpose of evaluating whether the Property met the Criteria for entry on the heritage list. Although this was said in relation to the Fourth Resolution, it would not assuage a fear that, when the Shire later made the Sixth Resolution, it did so simply to prevent Dain succeeding in its challenge and not because it had evaluated whether the Property met the Criteria for entry on the heritage list.
In addition, the Shire only issued notices in relation to the Property at that time.[101] It appears this was because no other owner or occupier had complained after the Second Resolution was made.[102] This was apparently a sufficient reason for the Shire not to revisit the listing of the Other Properties despite the fact that the Shire had not given the owners of those properties reasons for the proposed entry and had not evaluated any of the properties against the required Criteria before entering them on the heritage list by the Second Resolution.
[101] Agreed Chronology and see also ts 273.
[102] Addison Affidavit [43] and see also ts 273.
Indeed, the Shire made no effort to address the Other Properties the subject of the Second Resolution (made in April 2017) until after the first day of hearing in March 2018, nearly a year later. On that day, the question of the validity of the Second Resolution in relation to the Other Properties, if Dain was successful in its application for judicial review, was raised.[103] It appears that it was only this potential consequence that prompted the Shire to address the Other Properties.[104]
[103] Addison Affidavit [68].
[104] Addison Affidavit [69] and see also ts 273 ‑ 274.
The Shire, it seems, was content to have each of those Other Properties on the heritage list despite having not assessed them against the required Criteria and despite the owners having been denied the opportunity to comment on any reasons relevant to the Criteria for a proposed entry. On its own, this might not lead a fair‑minded lay observer to fear that the Shire did not have an impartial mind in relation to the Property. Nevertheless, it is part of the circumstances against which the alleged apprehension of bias is to be judged.

Mr Griffiths

It will be recalled that Mr Griffiths had initially been engaged by Dain to support its request to have the categorisation of the Property changed from category 1 to category 2.
On 13 March 2018, the day after the first day of hearing, Dain's solicitors wrote to Mr Griffiths seeking his assistance with some questions that had arisen during the hearing.
On 20 March 2018, Mr Griffiths emailed Mr Whitbread of the Shire. In that email, Mr Griffiths set out what he said was a summary of his views and advised Mr Whitbread that he had received a letter from Dain's solicitors and intended to respond 'along these lines'.[105]
[105] Exhibit A (Respondent's Documents), page 6.
The following day, Mr Hall, a person who had been assisting Dain's director in relation to this matter, met with Mr Griffiths to ask him if he would meet with Dain's solicitors. Mr Griffiths told Mr Hall that he would rather not 'get involved' because of his 'relationship' with the Shire.[106]
[106] Affidavit of James Mackenzie Hall sworn 17 April 2018 [12] ‑ [13].
From this time on, Mr Griffiths dealt only with the Shire. Mr Griffiths never replied to the letter from Dain's solicitors and did not respond to an email following up the letter.[107] Instead, he worked with the Shire in relation to both the heritage assessment process and the judicial review proceedings.[108]
[107] Affidavit of Michael Charles Hotchkin sworn 20 April 2018 [4] ‑ [7].
[108] Respondent's Documents pages 30 ‑ 31, 43 ‑ 46, 89 ‑ 93, 105, 109, 124 ‑ 125, 137.
For example, on 27 July 2018, Mr Griffiths provided comments on the GBA Report in an email to the Shire's solicitors, copied to Mr Montgomery (who by this time had taken over from Mr Whitbread). Mr Griffiths concluded by saying:[109]
I am not disputing the research [in the GBA Report] and I have admitted to errors already. My assessment was not intended to be exhaustive and with hindsight we might have spent some more time chasing down information if we had known that there was to be a combative outcome. Local assessments are by their nature generally a light touch, sufficient to decide whether a place has a degree of heritage value, while a commissioned counter assessment will always chase down all rabbit holes to discredit the positive view.
[109] Respondent's Documents page 92.
An hour later, Mr Montgomery responded to Mr Griffiths' email, copying the Shire's solicitors. He wrote:[110]
… I am still digesting the [GBA Report], however from my initial reading it appears to be an opinionated description of what is surmised to have occurred, with a dressing of facts and then some sweeping and dismissive conclusions. Clearly Mr Brooks has taken some time to research and pull together information from a variety of sources. He has then written it into a report and drawn conclusions - many of them possibly preconceived.
…
To say the house has no heritage value and does not warrant listing is an extreme slap-down when the report itself presents some very interesting insights into the history and several iterations of remodelling the place to project an impressive image - a visual symbolism of wealth, establishment and influence.
…
As to the [GBA] conclusion - I wonder if the Shire were to place the same stringent assessment on its entire heritage list - how many would survive? …
[110] Respondent's Documents pages 89 ‑ 90.
Counsel for the Shire conceded that Mr Montgomery's email was clearly intended to be derogatory and critical of the GBA Report.[111] This concession was properly made. Further, having regard to the GBA Report, the criticisms were unjustified, as conceded by counsel for the Shire.[112]
[111] ts 366.
[112] ts 405.
Although the comments were not justified, Mr Griffiths responded to Mr Montgomery's email by saying 'I am completely with you on this Ross [Mr Montgomery's first name]. More information has not changed my mind. It seems to me the conclusions are not supported by his research'.[113]
[113] Respondent's Documents page 89.
On 17 August 2018, Mr Griffiths sent a letter to the Shire's solicitors, addressing the GBA Report.
The Shire's solicitors marked up Mr Griffiths' letter by hand, making substantial deletions and additions. The Shire's solicitors' covering email explained the 'suggestions' that had been made.[114] In what follows, text deleted by the solicitors is shown as struck through. Additions made by the solicitors is shown in italics.
[114] Respondent's Documents pages 124 ‑ 125, 137 ‑ 143.
On page 4 of his letter, Mr Griffiths had set out this quote from the GBA Report page 10, before it was struck out by the Shire's solicitors:
'Accordingly, the previous Municipal Inventory is redundant. It cannot be used as a basis for assessing the heritage impact of any future Development Application for properties that were listed on the Municipal Inventory.']
Mr Griffiths' comment on this quote was (bold emphasis added):
This is wrong. The intention was for the list to use the municipal inventory as an information source and as a tool to guide preparing a scheme list. Some authorities took the rather extreme step of turning the whole inventory into the list.

JS
Associate to the Honourable Justice Archer

25 JULY 2019

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAIN PTY LTD -v- SHIRE OF PEPPERMINT GROVE [2019] WASC 264 (S)
CORAM:   ARCHER J
HEARD:   18 SEPTEMBER 2019
DELIVERED          :   18 SEPTEMBER 2019
FILE NO/S:   CIV 2597 of 2017
BETWEEN:   DAIN PTY LTD
Applicant
AND
SHIRE OF PEPPERMINT GROVE
Respondent

Catchwords:

Apprehended bias - Prohibition sought in relation to anticipated re-exercise of power by differently constituted decision-maker - Certiorari - To take effect after the date of the order - Special costs order

Legislation:

Rules of The Supreme Court 1971 (WA) O 42 r 2

Result:

Application for writ of prohibition refused
Certiorari granted, to take effect on 27 November 2019, with liberty to apply

Representation:

Counsel:

Applicant	:	Mr M C Hotchkin
Respondent	:	Mr J C W Skinner

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	Thomson Geer

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

Applicants A1 and A2 v Brouwer [2007] VSCA 139; (2007) 16 VR 612
Atwell v Roberts [2013] WASCA 37 (S)
Blatchford v Laine [2018] WASC 207 (S)
Dain Pty Ltd v Shire of Peppermint Grove [2019] WASC 264
Director‑General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420
Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; (2011) 195 FCR 318
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hocking v Medical Board of Australia & Anor [2014] ACTSC 48
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co [1953] HCA 22; (1953) 88 CLR 100
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

ARCHER J:

(This judgment was delivered extemporaneously on 18 September 2019 and has been edited from the transcript.)

Background

The facts of this matter are set out in my judgment Dain Pty Ltd v Shire of Peppermint Grove,[142] which I will refer to as my substantive judgment.
[142] Dain Pty Ltd v Shire of Peppermint Grove [2019] WASC 264.
The applicant (Dain) had sought judicial review of numerous decisions made by the council of the Shire of Peppermint Grove in 2017 and 2018 (Shire).
In broad terms, the decisions related to the heritage listing of 52 The Esplanade, Peppermint Grove (Property). The Shire first purported to enter the Property on a heritage list in April 2017 by resolving to adopt its 'Municipal Inventory' as the heritage list (Second Resolution). The Shire did this without complying with a precondition to its power to enter a place on a heritage list (which required it to provide its reasons for the proposed entry) and without evaluating whether the Property met the prescribed criteria for entry. In October 2017, after Dain had challenged the validity of the entry, the Shire purported to again enter the Property on the heritage list, despite having purported to have already entered it on the list six months earlier. Dain challenged this too. In September 2018, the Shire again purported to enter the Property on the list (Sixth Resolution), after revoking the October 2017 resolution. Dain challenged the Sixth Resolution too, including on the ground that there was a reasonable apprehension of bias.
In my substantive judgment, I found apprehended bias in relation to the Shire's Sixth Resolution and that it should be quashed.
I also found jurisdictional error in relation to the Second Resolution. I noted that the Shire had indicated that, if the Second Resolution was quashed in its entirety, this would destroy any factual effect of the Second Resolution, being the fact that each property was on the heritage list. The Shire said that this effect was important in relation to about 20 properties. In recognition of its earlier errors, the Shire had restarted the process of evaluating whether each of the properties it had put on the list by the Second Resolution should be on the list. However, it had not yet completed that process in relation to about 20 properties (Remaining Properties). If the Second Resolution was quashed in its entirety before that process was complete in relation to any of those properties, any heritage value in such properties would be unprotected until the Shire was able to complete the process.
In my substantive judgment, I noted that it did not seem that it would be possible, on the authorities I there set out, to quash the Second Resolution in relation to only some of the properties and not all of them. This was because there were no 'good' parts that could be severed from the 'bad'. The resolution to adopt the Municipal Inventory as the heritage list purported to place each property on the heritage list. The Shire failed to give reasons for the proposed entry of each property and failed to evaluate the criteria in relation to each property. The Shire made identical jurisdictional errors in relation to each property. However, I noted I had not heard submissions on those authorities.
I also noted in my substantive judgment that I had not heard submissions as to whether I had the power to suspend the making of an order for a period of time and, if so, whether I should exercise that power.
I therefore said in my substantive judgment that I would give the parties an opportunity to make further submissions in relation to the form of relief. I said, however, that, at the very least, I would make a declaration that the Second Resolution was of no force and effect in relation to the Property. I noted that Dain may consider that was all it required.
In its application for judicial review, Dain had also sought a writ of prohibition against the Shire to stop it from entering the Property on the heritage list at any time in the future. The parties had agreed to argue this matter only if Dain succeeded in the judicial review proceedings.
Accordingly, after I had delivered my substantive judgment, I made programming orders in relation to submissions on these matters and listed it for hearing today.
The parties remain in dispute about three issues:
1.Should a writ of prohibition be granted against the Shire to prevent it from entering the Property on the heritage list at any time in the future?
2.If the Second Resolution is quashed in its entirety, should the date of that order be in the future, to enable the Shire to complete the process of determining whether the Remaining Properties and the Property should be entered on the list before the Second Resolution is quashed?
3.Costs - to what extent should the Shire pay Dain's costs and should the scale limit be lifted?

Prohibition

During today's hearing, it became apparent that much of Dain's written submissions and its oral submissions to that point were directed to its argument that the Shire councillors, who had previously put the Property on the heritage list, should not be permitted to re‑exercise that power in the future.
However, prior to the hearing, the Shire had made it plain that, if it was not prohibited from doing so, it proposed to delegate the power to determine whether the Property ought to be entered in the heritage list to the Shire's CEO, and that the CEO then proposed to delegate the power to the Shire's recently employed Manager of Corporate & Community Services, who has had no involvement in the matter to date.
The Shire also said that it proposed that each of the delegations would be subject to a condition requiring that, in making the determination whether to enter the Property on the heritage list, due regard was to be had to advice from an independent expert heritage architect to be appointed either by agreement between the parties or, if agreement could not be reached, by the President of the Western Australian chapter of the Australian Institute of Architects.
The Shire set out its proposed course of action in its letter to Dain of 7 August 2019 and in its submissions of 12 August 2019.[143] In its reply submissions of 16 August 2019, it also noted it had the power to delegate to a committee.[144]
[143] Respondent's Outline of Submissions in Relation to Orders etc filed 12 August 2019 (Shire Submissions) [15].
[144] Respondent's Responsive Submissions in Relation to Orders etc filed 16 August 2019 [8].
It appeared that Dain had not appreciated that the Shire was intending to adopt this course if it was not prohibited from making the determination whether to enter the Property on the heritage list.[145] On appreciating this, and on counsel for the Shire formally confirming that the Shire undertook that the determination would not be made by any of the councillors who had been involved in previous decisions, Dain turned its attention to its submission that there would be apprehended bias in a decision made by the delegate.
[145] ts 492 ‑ 496.
The governing principle for apprehended bias is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not bring an impartial mind to the decision. It is an objective test of possibility (real and not remote), not probability.[146]
[146] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 [6] ‑ [7]. See also Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [12], [20], [21] (Kiefel, Bell, Keane & Nettle JJ) and [59] (Gageler J). A full summary of the relevant principles are set out in my substantive judgment at [92] ‑ [119].
Dain submitted that it was inevitable that a fair minded lay observer might reasonably apprehend that the delegate might not bring an impartial mind to the decision, because the fair minded lay observer might reasonably apprehend that the delegate might be influenced by the fact that his employer had previously decided the Property should be on the list.
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co[147] involved an inquiry by the Australian Stevedoring Industry Board into whether a registered employer was unfit to continue to be registered. The Board used its power to suspend or cancel for unfitness as a means of enforcing a particular requirement on the employer which it was the Board's policy to impose. The employer sought a writ prohibiting the Board from proceeding further with its inquiry, on the grounds that (i) using the power to enforce a policy misconceived the relevant statutory test, and (ii) that the delegate had prejudged the matter. Prohibition was granted on the first ground. In addressing that ground, Dixon CJ, Williams, Webb and Fullagar JJ said:[148]
There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred by [statute] or that an erroneous test…will be applied or that some abuse of authority is likely.
…
At common law a prosecutor is expected to apply at the earliest stage at which his right to a writ arises, but he is not entitled to the remedy quia timet, that is before the tribunal is invoked or assumes a jurisdiction or authority over the matter and, where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made.
[147] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co [1953] HCA 22; (1953) 88 CLR 100.
[148] Australian Stevedoring, 117 ‑ 118 and 119.
Hocking v Medical Board of Australia & Anor[149] concerned complaints made against the plaintiff doctor. Following an investigation, the Medical Board ultimately suspended his registration. The plaintiff alleged, among other things, breaches of procedural fairness, apprehended bias and actual bias. The plaintiff sought, among other things, an order in the nature of prohibition to prevent the board, as it was then constituted, from taking action against him in relation to matters that were not yet before the Board.
[149] Hocking v Medical Board of Australia & Anor [2014] ACTSC 48.
Murrell CJ described this form of prohibition as '"anticipatory" or "pre‑emptive" in nature, as the proposed order would not only prevent further action being taken in relation to a past decision, but would extend to prevent the Board from acting in relation to future matters'.[150]
[150] Hocking [106].
Her Honour declined to consider the breadth of the court's jurisdiction to grant 'anticipatory' or 'pre‑emptive' prohibition because her Honour said that she would refuse it in any event.[151] Her Honour said that, '[a]ssuming but not deciding that the Court has jurisdiction to grant such relief, the authorities suggest that, when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness, there must be a strong probability that procedural unfairness will result'.[152]
[151] Hocking [107].
[152] Hocking [108].
In support of this, her Honour cited the case of Director‑General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis.[153] This case concerned injunctions, but her Honour noted that Sackville AJA in that case had drawn on the law in relation to prohibition.
[153] Director‑General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420, 450 – 451 (McColl JA) and 451 – 452 (Sackville AJA with whom Meagher JA agreed).
Murrell CJ found that there was no evidence from which to draw any inference that the Board was likely to act unfairly in the future and refused to make an order in the nature of prohibition.[154]
[154] Hocking [234] ‑ [235].
The case of Lewis, cited by Murrell CJ, concerned a proposed determination under liquor legislation which had been premised on a report from another agency. The Director‑General had refused to provide to the licensee the source data from which the report had been prepared. The first instance judge granted injunctive relief restraining the Director‑General from making a determination until after the source material had been produced.
On appeal, Sackville AJA, with whom Meagher JA agreed, said that, in an appropriate case, a court will grant injunctive relief to a plaintiff who fears that an adverse decision will be made in breach of the requirements of natural justice. His Honour said, however, that the authorities suggest that it is 'not enough for the plaintiff to show that there is a risk, even a significant risk, that the decision-maker will not accord procedural fairness'.[155]
[155] Lewis [138].
Sackville AJA referred to another case of injunctive relief, Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations[156] and to Australian Stevedoring, which as I have said is a prohibition case.
[156] Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88; (2011) 195 FCR 318.
Sackville AJA said that the correct approach was 'to consider whether the respondents had shown that there was a strong probability that the Director‑General would make a decision adverse to them and would do so in breach of the requirements of procedural fairness'.[157]
[157] Lewis [145].
In a separate judgment, the third member of the court in Lewis, McColl JA, also cited Australian Stevedoring, and noted it was dealing with 'a somewhat analogous context'. Her Honour said:[158]
At a fundamental level, the question whether an injunction should be granted to restrain a decision-maker…from continuing a decision-making process must turn on whether, at the stage at which relief is sought, it can be demonstrated that the decision-maker is, or is proposing to, act in breach of a relevant requirement of procedural fairness.
[158] Lewis [131].
Dain has not sought to persuade me that Murrell CJ was 'plainly wrong'.[159] In any event, even if the test is as low as 'likely', I would not grant prohibition.
[159] Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185 [31] (Edelman J).
As I have said, the Shire has advised that it intends to delegate its power to determine whether the Property ought to be entered on the heritage list to the CEO and that the CEO intends to delegate the power to a newly appointed manager who has had no involvement in the matter to date.
Such delegations are permissible by cl 82 and cl 83 of the Deemed Provisions.[160] There is no reason to read any limitation into the plain words in cl 82 and cl 83.
[160] This is a reference to the provisions of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2005 (WA), which are deemed to be provisions in local planning schemes.
Each of the delegations is proposed to be subject to a condition requiring that, in making the determination whether to enter the Property in the heritage list, due regard is to be had to advice from an independent expert heritage architect to be appointed either by agreement between the parties or, if agreement cannot be reached, by the President of the Western Australian chapter of the Australian Institute of Architects.
On the evidence currently available, I do not accept Dain's submission that there would be apprehended bias in relation to the delegate (whether the person nominated or a committee). I accept that a fair minded lay observer might speculate as to whether the delegate might be influenced by what he or she thinks is the will of the Council and might, therefore, not bring an impartial mind to the decision. However, I do not accept that the fair minded lay observer might reasonably apprehend that the delegate might not bring an impartial mind to the decision.
The delegate will obviously know that the Shire had considered the Property should be on the list. However, there is no reasonable basis upon which to fear that the delegate might be improperly influenced, subconsciously or consciously, by that fact. The delegate is to be given a task to discharge, and is to be required to pay due regard to the views of the expert appointed under the proposed process.
I do not accept that the fact that it is not known whether the delegate has heritage expertise increases the risk. There is no requirement under the legislative regime that the decision‑maker have heritage expertise. The delegate will be required to have due regard to the recommendation of the expert.
On the evidence available at this point, including as it does the entire history of the matter, there is no basis upon which it could be found that the fair minded lay observer might reasonably apprehend that the delegate might not bring an impartial mind to the decision. This is not to say that such an apprehension could not arise in the future. For example, if the expert report recommended that the Property not be put on the heritage list, but the delegate decided it should be and gave no reasons for that finding, it would be difficult for the Shire to resist a contention that there would be apprehended bias at that point.
However I do not accept, at this point in time, that it is likely that any future decision would involve apprehended bias. Still less, would I accept that it was probable.
I would therefore not grant prohibition.
I also note that, even if I am wrong about that assessment, I would nevertheless refuse prohibition under the doctrine of necessity.[161] Not on the basis that the councillors must themselves decide the issue in order to discharge the statutory function, but on the basis that Shire, as 'the local government', must do so either by the council or by a delegate.
[161] The doctrine of necessity is explained in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 and Ebner.

I do not accept Dain's contention that the Shire's only obligation under the Deemed Provisions is to establish and maintain a heritage list. In my view, cl 8 puts a duty on the Shire to identify such places. If its duty was limited in the manner Dain contends, it could be discharged by entering a single property on the list. This would not be consistent with the obvious purpose of the relevant provisions, which is heritage conservation.
The Shire should not be disabled from performing this statutory function. Permitting the Shire to perform its function would not involve 'positive and substantial injustice', even given my criticisms of the Shire's conduct in the past.
For completeness, I make the following brief observations in relation to some of Dain's other submissions.
There is an obvious and significant public interest in heritage conservation and, in particular, in ensuring that properties of heritage value and worthy of conservation are placed on a heritage list.
The proceedings before me did not involve any assessment of the merits of whether the Property should be on the heritage list. However, I consider that it is at least reasonably possible that it should be. Preventing the Shire from ever considering whether it should be put on the list would frustrate the legislation and the public interest.
In addition, I do not accept that 'the prejudice and unfairness to the applicant who has expended considerable amounts of money and time in dispute with the respondent over this issue for some 20 years should strongly outweigh whatever limited heritage significance the Property has, or ever had'. As I have said, the proceedings before me did not involve any assessment of the merits of whether the Property should be on the heritage list.
Further, if the Shire ultimately does place the Property on the heritage list, this would not mean it could not be demolished. Rather, it would mean a development application would be required. If development approval was refused, Dain would be entitled to a merits review in the SAT.
In addition, I do not accept that the Shire's failure to remove the Property from the heritage list following my substantive judgment, and its desire to delay an order for certiorari, indicates that the risk of 'further unjust treatment' remains real. In my substantive judgment, I expressly gave the parties the right to make submissions in relation to the suspension of an order for certiorari. I noted that, when I made final orders, I would, at the very least, make a declaration that the Second Resolution is of no force and effect in relation to the Property. However, I did not make any orders in relation to the Second Resolution at that time, to permit the parties to be heard on the issues.
In those circumstances, there was no reason for the Shire to remove the Property from its heritage list before it knew the form of the final orders. It had a legitimate reason to keep on the heritage list all the properties in respect of which it had not yet completed the process, until it knew whether or not the final order would be suspended for a period of time to enable it to complete the process.

Second Resolution

The Shire accepts that severance is not open, given that the same jurisdictional errors were made in relation to each property the subject of the Second Resolution.[162]
[162] Shire Submissions [22].
The Shire does not oppose a writ of certiorari being granted to quash the Second Resolution in its entirety. Rather, it asks that certiorari be suspended for a period, to give it time to complete the process in relation to the Remaining Properties and the Property.
Dain did not offer any submissions on the power to suspend. In reply submissions, Dain simply said there was no authority to do so, but did not comment on the cases cited by the Shire.
I am satisfied that I have the power to order that certiorari not take effect on the date of my decision but on subsequent date. While it will rarely be done, it has been done in the exercise of discretion in granting certiorari.[163] In addition, O 42 r 2 of the Rules of the Supreme Court 1971 (WA) provides that an order takes effect from the day of its date, but the court may make an order that the order be dated earlier or later than the date on which the order is made.
[163] See for example Applicants A1 and A2 v Brouwer [2007] VSCA 139; (2007) 16 VR 612 [95].
Dain does not appear to recognise the public interest in ensuring that properties of heritage value and worthy of conservation are placed on a heritage list, arguing that the Shire 'should not be reprieved from any inconvenience'.[164] It is not whether the Shire should be reprieved. It is whether the community, which has an interest in the preservation of heritage value properties, should be reprieved.
[164] Outline of Applicant's Submissions on Further Orders filed 9 August 2019.
Suspending the order would avoid the purpose of the legislation being frustrated or defeated. If certiorari is granted with immediate effect, owners of those properties that have not been reprocessed could seek demolition permits and would be granted those permits.
While I appreciate Dain's understandable frustration with the Shire's conduct, I consider that the public interest in preserving properties of heritage value is a powerful consideration in favour of giving the Shire more time, so that properties that should be on the heritage list are put on the heritage list.
The Shire has embarked upon a process to expedite the determinations in relation to the Remaining Properties. I am advised that it plans to have all the determinations made at its meeting on 26 November 2019. Given the steps involved in the determinations, and the nature of the decision-making body being a council, this timeframe is reasonable.
In relation to the Property, the Shire's proposal will require some input from Dain. Therefore, the timing will not be entirely within its control.
Therefore, I will make an order in the nature of certiorari to quash the Second Resolution, with such order to take effect on 27 November 2019. However, I will also give liberty to apply prior to that date. This is to allow for the possibility of unforeseen obstacles and, in relation to the Property, the possibility that Dain will need more time than would accommodate that timeframe.

Costs

The Shire seeks orders that Dain not be entitled to its costs in relation to grounds it did not pursue and in relation to the grounds I did not need to rule on.
Some of those grounds were not pursued as they had been overtaken by events. There is no reason to deny Dain its costs in relation to these.
None of remaining grounds have been the subject of a merits assessment. While a full merits assessment might reveal that some would have failed, it is not appropriate to attempt such an assessment for present purposes and nor did the Shire ask me to do that.
The cases cited by the Shire are concerned with where a party has had mixed success - winning on some grounds and losing on others.[165] Dain did not lose on the grounds it did not pursue or which I did not rule on.
[165] Shire Submissions [57] - [58].
Dain was successful in obtaining the outcome it sought. It should get its costs.

Special costs order

Dain seeks a special costs order under s 280(2) of the Legal Profession Act 2008 (WA).
The principles to be applied in relation to special costs orders were discussed in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2].[166] The principles have also been recently set out in detail by Vaughan J in Blatchford v Laine.[167]
[166] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S).
[167] Blatchford v Laine [2018] WASC 207 (S) [40] – [53].
Dain did not produce any evidence, which is regrettable but not fatal.[168] Despite this omission, I have no doubt that Dain's bills would properly tax at an amount which is greater than the total amount allowable under item 11. After the application for judicial review was first made, the Shire engaged in further conduct which led to various amendments to the application to pick up the later conduct, and there was also an application for discovery.
[168] Atwell v Roberts [2013] WASCA 37 (S) [23].
Dain submits the matter was unusually difficult due to the Shire's conduct in seeking to rectify what it had done previously. I do not accept this. While I understand Dain's frustration with the Shire's conduct, the case was not unusually difficult compared to the usual run of civil cases.
The adjective 'unusual' does not apply to 'complexity'. The factual issues in this case and the length of time over which the events unfolded did not, of themselves, make the case complex. However, there were some complexities in the legal issues. The length of the hearing reflected, in part, the complexity.
The adjective 'unusual' also does not apply to 'importance'. The validity of a heritage list is of significant public importance.
It is appropriate to lift the limit of item 11.
Dain has invited the court to set a limit between $150,000 to $200,000. On reflection, I consider it is appropriate to set a limit, and set it at $150,000. However, this should not be taken as any indication that I consider that the amount that should be allowed will be towards that limit. I obviously do not have the material necessary to form a view on the proper amount, and I have no view. As in every case, the taxing officer will still be required to consider the reasonableness of, and the necessity for, the work undertaken and make a judgment as to the costs that ought reasonably be allowed.

Conclusion

I would therefore make the following orders:
1.Dain's application for a writ of prohibition is dismissed
2.Dain's application for a writ of certiorari is granted in relation to the Second Resolution, quashing it in its entirety, with the date of that order being 27 November 2019.
3.I also order that there be liberty to apply in relation to the date in order 2.
4.I order that the Shire pay Dain's costs of the proceedings up to and including the date of judgment to be taxed, if not agreed, and raising the limit in item 11 to $150,000.
Having heard from the parties on the issue of costs following the judgment, I order that Dain pay 80% of the Shire's costs of the proceedings after the date of judgment to be taxed, if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SW
Research Associate/Orderly to the Honourable Justice Archer

20 SEPTEMBER 2019