Edwards & Anor and Department of Planning and Infrastructure & Ors - [2007] WASAT 101

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: JETTIES ACT 1926 (WA)
PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: EDWARDS & ANOR and DEPARTMENT OF PLANNING AND INFRASTRUCTURE & ORS [2007] WASAT 101

MEMBER: JUSTICE M L BARKER (PRESIDENT)

DELIVERED : 4 MAY 2007

FILE NO/S: DR 90 of 2007

BETWEEN: BRUCE EDWARDS
ELIZABETH EDWARDS
Applicants
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
First Respondent
CITY OF MANDURAH
Second Respondent
OWNERS OF STRATA PLAN 43417 SAN MARCO QUAYS
Interested Party

Catchwords:

Review proceedings - Jurisdiction to entertain collateral attack - Validity of approvals granted to third party

Legislation:

City of Mandurah Town Planning Scheme No 3
City of Mandurah Town Planning Scheme No 6
Jetties Act 1926 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(2), s29, s 46, s 47, s 48, s 50, s 50(1), s 73, s 90, s 91, s 91(1), s 91(5)

Result:

Jurisdiction to entertain collateral attack found
Joinder of appropriate persons as parties

Category: A

Representation:

Counsel:

Applicants:     Self-Represented
First Respondent           :     Ms C Ide
Second Respondent      :     Mr C Slarke
Interested Party             :     Mr M Ahern

Solicitors:

Applicants:
First Respondent           :     State Solicitor's Office
Second Respondent      :     McLeods
Interested Party             :     Aherns Lawyers

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

Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173
Freegard and Department for Planning and Infrastructure (DR 155 of 2006)
Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512
Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568
Lister v Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304
Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 51; (2005) 39 SR(WA) 1
Ousley v The Queen (1997) 192 CLR 69
Selby v Pennings (1998) 19 WAR 520

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In review proceedings in the Tribunal, the applicants seek review of a decision of the Department for Planning and Infrastructure under the Jetties Act 1926 (WA) to refuse a jetty licence and a decision of the City of Mandurah under the Planning and Development Act 2005 (WA) to refuse planning approval to construct a jetty. The respondents assert that these approvals cannot be granted to the applicants as they conflict with jetty licences and planning approvals previously granted to the Owners of Strata Plan 43417 San Marco Quays.
Before the merits of the decisions under review could be determined by the Tribunal, it became necessary to rule on a preliminary issue; namely, whether the Tribunal has the jurisdiction or power to entertain a collateral attack on the validity of the jetty licences and planning approvals granted to the Strata Council.
The Tribunal found that it could address a collateral issue in the course of determining a review application. The Tribunal noted that such an issue could concern "a matter" within the meaning of s 17(1) of the State Administrative Tribunal Act 2004 (WA). The Tribunal noted however, that no order, decision or declaration in the instant proceedings could actually quash the Strata Council's existing approvals.
The Tribunal foreshadowed the joinder of all relevant parties, including the Strata Council, and noted that the validity of the Strata Council's approvals, along with the merits of the decisions under review, would be the subject of submissions at the final hearing.

Issue

The issue, which is raised as a preliminary issue in these proceedings, is whether the Tribunal has the jurisdiction or power to entertain a collateral attack on the validity of certain jetty licence approvals earlier granted by the Chief Executive Office, Department for Planning and Infrastructure (first respondent) and planning approvals earlier granted by the City of Mandurah (second respondent) to the Owners of Strata Plan 43417 San Marco Quays (Strata Council), in proceedings in which Mr and Mrs Edwards (the applicants) seek review of the decisions of the first respondent and the second respondent to refuse them jetty approvals.

The circumstances in which the issue arises

In the review proceedings, the first respondent and the second respondent respectively assert that a jetty licence and a planning approval cannot be granted to the applicants due to the jetty licences and the planning approvals (the approvals) that have already been granted to the Strata Council in Reserve 46013 (the waterway). They say the Strata Council's approvals pertain to all the possible allotments (save for a jetty licence and planning approval granted in earlier review proceedings in the Tribunal to Ms Robyn Lister) in the waterway. The respondents say there is no space within the waterway for the applicants to be granted a jetty licence or planning approval, and that the applicants could only potentially be granted a jetty licence and planning approval if the Strata Council's approvals were found to be invalid.
The applicants claim that the approvals granted to the Strata Council are invalid, essentially for two reasons:
1)The approvals are inconsistent with the MP Roger Jetty Allocation Plan (the original jetty allocation plan) previously adopted by the Mandurah Marina Community Association pursuant to the now repealed City of Mandurah Town Planning Scheme No 6 (TPS 6) which allocated a jetty to the applicants.
2)The first respondent acted inappropriately in granting the Strata Council a jetty licence whilst related review proceedings in Freegard and Department for Planning and Infrastructure (DR 155 of 2006) was yet to be determined by the Tribunal.
At a directions hearing at an early stage of the review proceedings in Freegard, which proceeding raised similar issues to those raised in these proceedings, I expressed some doubt, when the same issues of invalidity were raised in those proceedings, whether the Tribunal was the appropriate forum in which the question of invalidity should be agitated. The alternative forum, and one with the express jurisdiction to quash an invalid decision by the grant of a writ of Certiorari, was the Supreme Court of Western Australia. As it transpired, on legal advice the applicants in Freegard, together with a number of other parties interested in those proceedings including Mr and Mrs Edwards, commenced proceedings in the Supreme Court. In the event those proceedings were settled between the parties to those proceedings without any resolution by the Court of the invalidity question.
Subsequent to that settlement – and the withdrawal of the Freegard review proceedings in the Tribunal – Mr and Mrs Edwards remained aggrieved and commenced these fresh review proceedings in the Tribunal. The respondents to these proceedings accept that there is no substantive impediment to the maintenance of these review proceedings, notwithstanding the earlier settlement in the Freegard matter. However, the applicants require an extension of time to seek review of the planning refusal of the second respondent.
In dealing with the matter at a directions hearing, the Tribunal framed the preliminary issue. The parties, as well as the Strata Council, were given the opportunity to make submissions on the preliminary issue.

Contentions of parties

The first respondent asserts, as a matter of fact, that the applicants cannot be granted a jetty licence due to the grant of those approvals. It accepts though that in making the "correct and preferable decision" in accordance with s 27(2) of the State Administrative Tribunal Act 2004 (SAT Act), the Tribunal is entitled to consider the "existence" of the approvals and so the validity of the approvals in the course of coming to its decision. Accordingly, the first respondent accepts that it is arguable that the validity of the Strata Council's approvals is a "matter" in the applicants' review proceedings in the Tribunal.
The first respondent says an example of when a collateral attack of this type may not concern "a matter" would be if the applicants simply asserted the approvals ought not to have been granted on a merits basis, then there would be no jurisdictional basis for a merits review of the Strata Council's approvals having regard to s 17(1) of the SAT Act. The first respondent accepts that, although it is unclear, the applicants do not appear to seek a review on the merits of the approvals but are effectively seeking to quash the approvals. The first respondent says an attack of this nature is ordinarily better dealt with by the Supreme Court as there is nothing specific in the SAT Act which gives the Tribunal the power to consider the validity of decisions that are not "reviewable decisions".
The first respondent points out that the applicants ask for a declaration concerning invalidity of the approvals, and notes the power of the Tribunal to make a declaration concerning a matter in a proceeding under s 91(1) of the SAT Act. It acknowledges that, if the Strata Council were made a party to the current proceedings, a declaration would bind all parties, as provided for by s 91(5) of the SAT Act.
The first respondent submits that if the Tribunal accepts the validity of the Strata Council approvals is a "matter in the proceeding", and assuming the Tribunal could make a declaration about the validity of the approvals, a declaration remains a discretionary remedy which, in this case, ought not be available, for three reasons:
1)there is a more appropriate remedy in the Supreme Court;
2)the applicants' delay; and
3)the applicants' argument that the jetty licence is invalid lacks merit.
I will return to these other factors.
The second respondent too draws particular attention to the Tribunal's power to make a declaration under s 91 "concerning any matter in a proceeding" instead of any orders it could make, or in addition to any orders it makes, in the proceeding.
The second respondent says the decisions of the second respondent and the first respondent to grant approvals are not matters which, on the application of the applicants, could be dealt with in the review proceedings, as those decisions do not come within the review jurisdiction of the Tribunal. Pursuant to s 17(1) of the SAT Act, it is only where an enabling Act gives the Tribunal jurisdiction to deal with a matter that expressly or necessarily involves a review of a decision that the matter comes within the Tribunal's review jurisdiction. Neither the Planning and Development Act 2005 (WA), the City of Mandurah Town Planning Scheme No 3 nor the Jetties Act 1926 (WA) provides for a "third party" challenge in review proceedings in the Tribunal of a decision made by the relevant decision‑maker.
The second respondent says it therefore follows that a "third party" challenge, such as the applicants', does not come within the Tribunal's review jurisdiction and therefore cannot be a "matter in a proceeding" for the purposes of s 91(1).
Similarly, the second respondent contends there is no power available in either the first respondent or the second respondent, having determined the applications for the approvals, to revoke those approvals. In saying this the second respondent draws attention to the principle that once granted and acted upon such approvals if validly made cannot be revoked: Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173 at [25] and [38].
The second respondent says it follows that the Tribunal cannot set aside the approvals granted previously to the Strata Council.
The second respondent also contends that the power of the Tribunal under s 73 to make conditional and ancillary orders and directions appropriate for achieving the purpose for which it may exercise the primary power to make an order or give a direction, cannot be availed of in these circumstances. A declaration or order of the type sought by the applicants in respect of the approvals cannot properly be categorised as an ancillary order or direction: see Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 51; (2005) 39 SR(WA) 1 at [13]‑[17].
The applicants and Ms Lister, who was given leave to make submissions on the preliminary issue because she wishes to argue the same or a related point in her separate proceedings, in effect join issue on these points. They say the validity of the approvals is central to their cases for review and the Tribunal must have jurisdiction to determine the issue to do justice in their cases.

Whether the collateral attack may be maintained

The law relating to collateral attacks on administrative decisions in proceedings which are not primarily designed to determine questions relating to the validity of administrative decisions, has a reasonably complex history: see generally Dr R Douglas "Collateral Attacks on Administrative Decisions: Anomolous but Efficient" AIAL Forum No 51 (November 2006) pp 71‑88.
It seems now generally to be accepted that an issue concerning the validity of an administrative decision can be canvassed in a court in which it arises, notwithstanding that the court lacks jurisdiction to entertain a direct attack on the validity of the decision in question: see, for example, Selby v Pennings (1998) 19 WAR 520 (Full Court of Supreme Court of Western Australia) and Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568.
In the recent decision of Jacobs, the question was whether the Workers Compensation Tribunal, set up under the law of South Australia, had the power to determine the validity of its own Rules as a collateral issue. Five members of the Supreme Court of South Australia sat on the Full Court to determine this issue. Two judgments were delivered, by Debelle J and Besanko J. Three other members of the Court agreed with the reasons of Besanko J. However, on the question of determining collateral issues and the general principles to be applied, there appears to me to be a degree of congruence in the two written judgments.
Having regard to Selby v Pennings and Jacobs (and the authorities they discuss), the following points might be made:
•it has long been settled that a collateral challenge may be made to delegated legislation where the act directly affects the party making the challenge;
•collateral challenges can arise in the course of civil proceedings or criminal proceedings;
•an obvious policy reason to allow a collateral challenge is it avoids an unnecessary duplicity of proceedings;
•however a collateral challenge may not be made where a statute expressly forbids it;
•a suggested distinction between a procedural defect and a substantial defect is not a helpful distinction for the purpose of deciding whether or not a collateral attack should be permitted; and
•a distinction between void and voidable acts does not seem to be an appropriate distinction upon which to decline to entertain a collateral attack.
In Jacobs, both judgments referred to the earlier decision of the Full Court of South Australia in Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512. In that case, the appellant claimed that the determination by the Registrar of Motor Vehicles of the load capacity of his vehicle was invalid because he had not been accorded natural justice before that determination was made. Chief Justice Bray at 523‑524 seems to have decided collateral attack was not open because the determination was merely a voidable decision and not a nullity. Justice Wells at 549 appeared to take the view that ordinarily the validity of an administrative act cannot be attacked except by means of a separate proceeding appropriate for the purpose, save where what is claimed to be an administrative act has not even the colour of lawful authority. Justice Mitchell at 525 agreed with both judges.
The five member Court in Jacobs was set up in the event that the issue in Hinton required reconsideration. In the result, all members of the Court found the case in Jacobs to be quite different from that in Hinton. The question whether an administrative decision could be collaterally attacked by reason of a breach of the rules of natural justice was left for another day.
Justice Besanko at [83] stated:
"In my opinion, a collateral attack on the validity of the relevant rules in the sense I have described is permissible. That conclusion follows from the acceptance of two propositions. First, as I have said, the relevant rules are a form of delegated or subordinate legislation. They are the product of a legislative act, not an administrative decision. Secondly, there is clear authority that, at least when the challenge is on the ground of simple or narrow ultra vires, a person prosecuted for the breach of a by-law or regulation may raise as a defence in the criminal court the invalidity of the by-law or regulation … Nor was there any suggestion that such a course was not an appropriate one …" [Citations omitted]
Justice Besanko went on at [91]-[93] to further observe:
"I have considered if the question whether a collateral challenge is permissible in this case may be answered by reference to a general principle that applies in the case of all legislative and administrative acts. However, I do not think the law has reached the stage where such a general principle has been identified. The authorities are still in a state of flux and, to adopt the words of Bray CJ in Hinton Demolitions Pty Ltd v Lower (No 2) (at 520–521), it is 'hardly likely that this Court will be able to construct an enduring causeway through the flood'. Having said that, since 1971 there have been authoritative decisions such as Boddington and Ousley, which provide the answer to whether a collateral challenge is permitted in particular areas.
It is very difficult to answer Professor H W R Wade's criticism in the administrative law context of the use of the suggested distinction between acts or decisions which are void and those which are voidable as merely conclusory … Furthermore, there are difficulties with the suggested distinction between substantive invalidity and procedural invalidity … A suggested distinction between patent and latent invalidity has also been criticised …
I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature …" [Citations omitted]
Justice Besanko then at [93] set out a number of factors that might be considered in this context if a court were to have a discretion to entertain a collateral attack:
1)Are the grounds of challenge likely to involve the adducing of substantial evidence?
2)If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3)In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4)Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5)Is the issue raised by the collateral challenge clearly answered by authority?
6)Are there other cases pending which raise the same issue?
7)(Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?

Justice Besanko at [96] further noted that the formulation of a general principle (if there is to be one) as to when the validity of government action, whether it be legislative or administrative in character, may be challenged collaterally must be reserved for the High Court.
Generally speaking, I agree with the observations made by Besanko J with which the majority of the Full Court of the Supreme Court of South Australia agree. I would only add that, for me, the distinction between an administrative decision and a legislative act does not ring true. Why one should draw such a distinction for the purpose of deciding whether or not to allow a collateral attack is not immediately obvious if the validity of the administrative decision is relevant to the question of doing justice in a given case. Indeed, in his article earlier referred to, Dr Douglas (at 77) identifies a number of instances in which administrative decisions were subjected to collateral attack including the decision of the High Court of Australia in Ousley v The Queen (1997) 192 CLR 69.
I do not consider that there is any reason why a tribunal such as the State Administrative Tribunal should not be able to deal with collateral issues in the course of determining a review application. As explained further below, s 50 of the SAT Act seems predicated on the possibility that such issues will arise from time to time and gives the Tribunal the power to deal with the issue and transfer the matter to a more appropriate forum if that is appropriate.
The particular difficulty I have with the entertaining of a collateral attack on an administrative decision in the particular circumstances of the case before me now, is that the administrative decision concerned is one not granted for the benefit of the applicants but to third parties with whom, in a real sense, they are in contest for scarce jetty licences. Nonetheless, I do not consider, at least in theory, that a collateral attack on the administrative decision in question is out of the question.
For reasons that reflect a number of the questions posed by Besanko J in Jacobs, I initially expressed doubt in the Freegard proceedings about the appropriateness of the Tribunal entertaining such a collateral attack and suggested that thought should be given by the applicants to the commencement of proceedings in the Supreme Court. For example, it is clear on all of the authorities that in entertaining a collateral attack and upholding the grounds of the attack, the court or tribunal which otherwise lacks a judicial review jurisdiction is not thereby authorised to quash the administrative or legislative act impugned. All that happens, for the purposes of the proceedings in question, is that a view is taken as to the validity of the impugned act for the purposes of determining the primary issue at hand in the instant proceedings.
In a case such as the present, if the collateral attack were entertained by the Tribunal and were upheld, it would simply result in the Tribunal taking a particular view about the facts favourably, on that point, to the position of the applicants. It would not be a decision, however, that actually quashed or revoked the approvals already granted to the Strata Council. It would simply be a decision made on the basis that the approvals were not valid and so did not exist.
While the Tribunal, has the powers of a substitute decision‑maker in review proceedings under the SAT Act, that does not mean it is authorised to revoke other approvals not the subject of the review. It can only deal with the particular decision affecting the applicants. It would add little to its decision to purport to "declare" those other approvals invalid. Even if it did, the declaratory order would fall short of the grant of a writ of Certiorari quashing the approvals. As a result, the approvals would continue to exist for purposes other than the instant proceedings.
Under s 29 of the SAT Act he Tribunal only has the power to affirm, vary or substitute a decision under review. It does not have the power to say or do anything in respect of the approvals already granted to the Strata Council. They are not "reviewable decisions" at the instance of the applicants in these proceedings. There are, in that sense, no "third party" review rights provided for by the SAT Act.
What one would then have would be a position where, if the applicants were ultimately successful on their collateral challenge and their main application for a jetty licence, the relevant approvals granted by the Tribunal to the applicants would operate alongside the existing approvals of the Strata Council. This would obviously raise the question as to how these various approvals could be harmonised in practice.
One would assume that, if the correct procedure were undertaken, and the Strata Council were made a party to the current proceedings in which the collateral challenge to their approvals is raised, and they were aggrieved by a decision of the Tribunal concerning the legal status of their approvals, they could appeal to the Supreme Court against the Tribunal's ruling. The appeal would, in effect, provide for judicial review of the Tribunal's decision on the validity of the Strata Council's approvals.
An interesting question arises whether, when a collateral attack is made on a ground that, on the face of it, is relevant to the otherwise properly grounded proceeding before the Tribunal, the Tribunal has any discretion not to entertain the collateral attack. In judicial review proceedings in the Supreme Court for a declaration or a writ of Certiorari, the Court would have discretion, in appropriate circumstances, not to grant relief, even if the grounds for relief were made out. The Tribunal, however, is a body that, in this case, exercises statutory merits review functions, and can only do what the SAT Act permits it to do. Nothing in the SAT Act suggests that the Tribunal has a free standing discretion to withhold a remedy in review proceedings.
Under the SAT Act, the Tribunal has the power to dismiss a proceeding on withdrawal or for want of prosecution under s 46. It can also dismiss or strike out unjustified proceedings that are frivolous or for an improper purpose or otherwise an abuse of process, under s 47. It can deal with the conduct of proceedings causing disadvantage to a party under s 48. However, none of these provisions are relevant in relation to a collateral attack of the type proposed here by the applicants.
Section 50 of the SAT Act, however, is relevant to the present circumstances. Section 50(1) provides that the Tribunal may, at any time, make an order striking out all or any part of a proceeding if it considers that the matter or any aspect of it would be more appropriately dealt with by another tribunal, a court or any other person. Only a judicial member can exercise this power. If it exercises the power, the Tribunal can refer the matter to the more appropriate forum. As I explained earlier, at an early stage of the Freegard proceedings I doubted the appropriateness of the Tribunal entertaining a collateral attack of the type here envisaged and suggested that the matter might best be determined in the Supreme Court. The applicants in those proceedings then acted on that suggestion, as explained earlier. Given the history of those proceedings, in all the circumstances, it would not seem appropriate at this juncture for the Tribunal now to decide to transfer the collateral issue to the Supreme Court.
In those circumstances it seems that the Tribunal's "discretion" not to grant a remedy is lacking. My view is that if a collateral attack is made in the course of primary proceedings in the Tribunal, in which the Tribunal undoubtedly has jurisdiction, the Tribunal cannot decline to determine the issue arising in the collateral attack. However, it may, under s 50, cause a matter to be determined in a more appropriate forum. In those circumstances, the factors listed by Besanko J in Jacobs would ordinarily be of assistance in deciding whether or not to exercise the s 50 powers.
In all, then, I consider the Tribunal has jurisdiction in exercising the review jurisdiction created by the applicants' proceeding to determine the collateral question the applicants have raised concerning the validity of the approvals granted to the Strata Council. The question of the validity of the approvals given to the Strata Council directly impacts on the entitlement of the applicants, as a matter of fact, to succeed on their current application.

Other factors

In these circumstances, in relation to that part of the applicants' review application that concerns the jetty licence refused by the first respondent, where there are no procedural impediments such as non‑compliance with time limits that affect the entitlement of the applicants to have their review application heard, I do not think that the issues of more appropriate remedy, delay or lack of merit in the primary argument are presently relevant.
The first respondent raises these "discretionary" considerations on the basis that the remedy which the applicants are seeking in respect of the approvals given to the Strata Council, is a declaration under s 90 of the SAT Act and that, even though this is a statutory remedy under the SAT Act, the usual principles that govern the grant of a declaratory order in the Supreme Court, including the question whether there has been any unexplained delay or that the merits of the case are lacking or that an alternative remedy is available, should be considered. As I have intimated, I do not think that it is necessary for a collateral attack to be couched in terms of an application for a declaration under s 90 of the SAT Act. It is simply an issue going to a relevant matter in the review proceedings – the existence of a valid approval granted to the Strata Council. There is no need for the Tribunal to make any declaration about that matter if the collateral challenge is successful. It is simply an evidentiary point that requires a legal ruling along the way.
In relation to that part of the review proceedings that seek to review the refusal of the second respondent to grant a planning approval to the applicants concerned, there are some limitations on the entitlement of the applicants to proceed to have their application dealt with. The application for review of that decision is out of time and the Tribunal must extend the time for making that application before it can proceed. In that context, the second respondent, and the Strata Council – which made submissions on this point - also emphasise the questions of delay and lack of merit. The Strata Council also says that, in the earlier Supreme Court proceedings in Freegard, the applicant parties, including the Edwards, subscribed to a settlement to withdraw their then existing applications in the Tribunal, and therefore the Edwards' should not now be allowed to proceed with their new review application as it would constitute an abuse of process.
I am not persuaded that these various considerations should lead to a refusal of the application to extend the time to review the decision of the second respondent in relation to the planning approval. To do so would, in all the circumstances, be administratively unjust. The reality is that a number of parties who are not entitled to jetty licences through the Strata Council, have been extremely agitated about the decisions made by the first respondent and second respondent over a period of time denying them the opportunity to have licences. In the proceedings in the Tribunal in Lister v Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304, Ms Lister, an applicant in much the same position as the Edwards, was successful in review proceedings in obtaining the grant of a jetty licence. In Freegard, the parties had hoped for a similar outcome. Mr and Mrs Edwards, the current applicants, initially became involved as parties to those proceedings. In my view, although matters have been drawn out, the current applicants are entitled to have the Tribunal make a determination on the merits in the current review proceedings. This includes dealing with the issue raised as a collateral attack.

Joinder of relevant parties

However, before determining the issues of validity so raised, natural justice requires that the Strata Council, which up until this point has only been heard in relation to these matters as an interested party, be joined formally as a party in the review proceedings. That will ensure, apart from anything else, that it will have the full status of a party in the proceedings including the right to appeal any decision of the Tribunal on any point.
A number of other parties with interests similar to those of the current applicants have also indicated to the Tribunal that they wish to be heard on the same issues as those motivating the Edwards. It would be advisable that all parties who have current applications with interests similar to those of the Edwards be joined in these proceedings, so that there will now be one decision that finally resolves these matters.
I note also that Ms Lister has a separate proceeding against the first respondent that is currently listed for final hearing. Ms Lister was given leave to make submissions in relation to the jurisdictional point in this case. She may also be joined as a party on the collateral attack point, but otherwise her current matter need not be resolved with those of the applicants and other interested parties, as she has already succeeded in her original review application. Her continuing proceedings concern a different issue.

Order

In these circumstances the Tribunal would find and order, as follows:
1.The Tribunal has the jurisdiction or power to entertain the collateral attack on the validity of the approvals granted to the Strata Council, which the applicants have raised in these review proceedings.
2.The Strata Council be joined as a party to these review proceedings.
3.The proceedings be listed for a final hearing at which all matters in issue shall be determined, including the collateral attack on the validity of the approvals granted to the Strata Council, as well as the merits of the decisions of the first respondent and second respondent currently the subject of these review proceedings.
4.All other parties who have commenced review proceedings against the first respondent and the second respondent similar to those of the Edwards be joined as applicants to these proceedings so that all relevant proceedings are determined in the one review proceeding.
At the further directions hearing currently listed for 8 May 2007 the formal orders will be made together with such further directions as may be appropriate to list the matter for a final hearing.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT