Dilatte v MacTiernan

Case [2002] WASCA 100

DILATTE & ANOR -v- MacTIERNAN [2002] WASCA 100



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASCA 100
THE FULL COURT (WA)
Case No:CIV:2029/20013 DECEMBER 2001
Coram:MALCOLM CJ
WALLWORK J
WHITE AUJ		1/05/02
39Judgment Part:1 of 1
Result: Order nisi for certiorari made absolute
A
PDF Version
Parties:GABRIELLE LAURA DILATTE
ANTHONY DILATTE
ALANNAH MacTIERNAN

Catchwords:
Administrative law
Town planning
Prerogative writs and orders
Certiorari and mandamus
Refusal by Minister of Planning
Minister taking into account submissions on behalf of objectors without giving the applicants the opportunity to be heard on such submissions
Decision of the Minister inconsistent with decision of previous Minister on previous appeal
Decision arbitrary and unreasonable
Denial of procedural fairness

Legislation:
Rules of the Supreme Court 1971 (WA) O 56 r 13
Town of East Fremantle Planning Scheme No 2, cl 3.1.1(a), cl 5.3.1(b)
Town Planning and Development Act 1928 (WA) s 8A, s 36, s 37, s 39, s 40(3)

Case References:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Bellinz Pty Ltd v Federal Commissioner of Taxation (1998) 155 ALR 220
Consolidated Realties Pty Ltd v Baulkham Shire Council (1964) 10 LGRA 120
Council of the City of Parramatta v Pestell (1972) 128 CLR 305
Craig v South Australia (1995) 184 CLR 163
Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation (1990) 96 ALR 153
Fawcett Properties Ltd v Buckingham County Council [1961] AC 636
GA & LH Properties Pty Ltd v Bankstown Municipal Council (1967) 13 LGRA 344
Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240
Idonz Pty Ltd v National Developments Commission (1985) 58 LGRA 99
Irwin & Johnson (Australia) Pty Ltd v Sydney City Council (1965) 10 LGRA 68
Kioa v West (1985) 159 CLR 550
Lawrence D Pickering & Ors v Deputy Commissioner of Taxation [1997] 890 FCA; 5 September 1997
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Northcott Pike & Associates Pty Ltd v Berri District Council (1984) 55 LGRA 119
Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997
Perron and the Northern Territory Planning Authority v Central Land Council (1985) 6 FCR 226
Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] 41 FCR 117
Progress Properties Ltd v Woollahra Municipal Council (1969) 18 LGRA 166
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
R v Treblico; Ex parte FS Faulkner & Son Ltd (1936) 36 CLR 20
R v West Coast Council (1995) 87 LGRA 383
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rimington v City of West Torrens (1985) 55 LGRA 71
Romanello and…

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AGLC
Dilatte v MacTiernan [2002] WASCA 100
Case
[2002] WASCA 100
Decision Date

CaseChat Overview and Summary

In the matter of Dilatte v MacTiernan, the applicants sought to challenge the decision of the Minister of Planning to refuse their application for a development permit. The dispute arose in the Federal Court of Australia, where the applicants contended that the Minister's decision was unlawful due to procedural unfairness and inconsistency with a prior decision. The applicants argued that the Minister had considered submissions on behalf of objectors without providing them an opportunity to be heard, thereby denying them procedural fairness. Additionally, they submitted that the Minister's decision was inconsistent with a previous decision made by a different Minister on a similar matter, and that this inconsistency rendered the decision arbitrary and unreasonable.

The court was tasked with determining whether the Minister's decision was tainted by procedural unfairness and whether the alleged inconsistency with a previous decision rendered it arbitrary and unreasonable. The applicants needed to establish that the Minister had breached the principles of natural justice by failing to provide them with an opportunity to respond to the submissions on behalf of objectors. Furthermore, the court had to consider whether the Minister's decision was so inconsistent with the previous decision as to be unreasonable.

The court found that the Minister's decision was indeed flawed. It held that the Minister had failed to afford the applicants procedural fairness by considering the submissions of objectors without allowing the applicants to respond. The court also determined that the Minister's decision was inconsistent with the previous decision, which had been upheld by a higher court. This inconsistency, combined with the failure to provide procedural fairness, rendered the Minister's decision arbitrary and unreasonable. Consequently, the court issued an order nisi for certiorari, which was subsequently made absolute.

Orders

Orders of the court

Order nisi for certiorari made absolute

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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