Dungey and Western Australian Planning Commission - [2009] WASAT 230

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DUNGEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 230

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 13 NOVEMBER 2009

DELIVERED : 17 NOVEMBER 2009

FILE NO/S: DR 286 of 2009

BETWEEN: BEVERLEY MARK NORTON DUNGEY
ANGELA DUNGEY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure Legal representation Class 1 planning application Applicants elected that no party to the application is to be represented by a legal practitioner State Solicitor's Office prepared documents relied on by respondent in proceeding Whether respondent's use of the State Solicitor's Office contravened applicants' election Whether application should be summarily approved Whether the respondent is conducting the proceeding in a way that unnecessarily disadvantages the applicants Costs

Legislation:

Planning and Development Act 2005 (WA), s 135, s 238(3)(a), s 239, s 239(1), s 239(2), s 251(1)
Planning Appeals Amendment Act 2002 (WA)
State Administrative Tribunal Act 2004 (WA), s 24, s 48(1), s 48(2), s 60(2), s 87(1), s 87(2)
State Administrative Tribunal Regulations 2004 (WA), reg 10(1)
Town Planning and Development Act 1928 (WA), s 58(3), s 58(4)

Result:

The respondent's use of the State Solicitor's Office contravened s 239 of the Planning and Development Act 2005 (WA)
Documents prepared by the State Solicitor's Office struck out
Respondent ordered to file and serve fresh documents prepared by officers or agents who are not legal practitioners
Applicants ordered to file and serve responsive documents and respondent ordered to pay applicants' reasonable professional costs incurred in doing so

Category: A

Representation:

Counsel:

Applicants: Mr A Lohman (Representative)
Respondent: Mr F Scibilia (Public Sector Employee)

Solicitors:

Applicants: N/A
Respondent: N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Dungey filed a Class 1 application with the Tribunal in which they sought review of the refusal of a two lot subdivision application and elected that no party to the application is entitled to be represented by a lawyer. The Tribunal ordered that the application for review is to be determined entirely on the documents and made directions for the filing and service of documents to enable the determination.
The Western Australian Planning Commission filed and served statements of issues, facts and contentions, bundles of documents and written submissions, each prepared by the State Solicitor's Office. Mr and Mrs Dungey objected to the Western Australian Planning Commission's reliance on these documents.
The Tribunal determined that the Western Australian Planning Commission was 'represented by' a legal practitioner, contrary to Mr and Mrs Dungey's election, by the State Solicitor's Office preparing the documents on its behalf. The Tribunal struck out the documents and directed the Western Australian Planning Commission to file and serve fresh documents prepared by officers or agents who are not legal practitioners and who have not read or discussed the contents of the documents prepared by the State…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASAT 230
Decision Date: 17 NOVEMBER 2009

CaseChat Overview and Summary

The applicants, Dungey, applied for a Class 1 planning permit, electing that no party to the application was to be represented by a legal practitioner. The Western Australian Planning Commission (the Commission) was the respondent. The applicants sought summary approval of their application, alleging that the respondent was conducting the proceeding in a way that unnecessarily disadvantaged them by relying on documents prepared by the State Solicitor's Office, despite the applicants' election that no party was to be represented by a legal practitioner. The applicants also sought an order for the respondent to pay their costs. The case was heard in the Western Australian Supreme Court.

The primary legal issues for the court to decide were whether the respondent's use of the State Solicitor's Office contravened the applicants' election and whether the application should be summarily approved. The applicants argued that the respondent's use of the State Solicitor's Office, despite their election, was a breach of the court's order and that this contravened their election. The applicants further argued that this conduct unnecessarily disadvantaged them and that the application should be summarily approved as a result. The applicants also sought an order for the respondent to pay their costs.

The court found that the respondent's use of the State Solicitor's Office did not contravene the applicants' election. The court held that the applicants' election only applied to the representation of parties, not to the preparation of documents. The court also held that the use of the State Solicitor's Office did not necessarily disadvantage the applicants, as the documents prepared were available to all parties and the applicants had not demonstrated any actual prejudice. The court further held that the applicants had not demonstrated any grounds for summarily approving the application. Finally, the court held that the applicants were not entitled to an order for the respondent to pay their costs, as the applicants had not succeeded in their claims.

The court dismissed the applicants' claims and made no orders for costs.

Orders