ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 50

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 50

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 24 JANUARY 2011

DELIVERED : 28 MARCH 2011

FILE NO/S: DR 392 of 2009
DR 438 of 2009

BETWEEN: ERUJIN PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure Abuse of process Relitigation Planning application Subdivision Consent orders in previous SAT proceeding modified conditions of subdivision approval for three lot subdivision of rural land Conditions imposed by consent orders required fencing, revegetation and protection of creekline traversing the land and fencing of specified areas of remnant bushland Applicant subsequently lodged two fresh subdivision applications of the land Respondent approved subdivision applications subject to essentially same conditions as were imposed by consent orders in previous proceeding Applicant commenced proceedings for review of conditions Tribunal dismissed applications as abuse of process Applicant appealed to Supreme Court Leave to appeal granted in relation to three grounds and appeal allowed in relation to one ground Matter remitted by Supreme Court to Tribunal as originally constituted for reconsideration Whether proceedings are each an abuse of process Public interest that there should be finality in litigation Efficiency and economy in the conduct of litigation

Legislation:

Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 47, s 47(2), s 56, s 76, s 105(1)

Result:

Proceedings dismissed as an abuse of process

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan
Respondent: Ms CA Ide

Solicitors:

Applicant: Lewis Blyth & Hooper
Respondent: State Solicitor's Office

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

Edwards v The Hills Shire Council [2009] NSWLEC 187
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Johnson v Gore Wood & Co [2002] 2 AC 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Erujin Pty Ltd applied to the Tribunal for review and deletion of two conditions of subdivision approval which were imposed by the Western Australian Planning Commission in relation to two alternative subdivision applications in respect of a rural property. The conditions required the fencing, revegetation and protection of a creekline traversing the property and the fencing of specified areas of remnant bushland. The conditions were essentially identical to conditions which were imposed by the Tribunal by the making of consent orders in a previous proceeding between the same parties in relation to the subdivision of the same land.
The Western Australian Planning Commission moved for the dismissal of the current proceedings as an abuse of process on the basis that they sought to relitigate a matter which has been decided by the making of consent orders in the previous proceeding. The Tribunal determined that the current proceedings each involve an abuse of its process. The Tribunal reasoned that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute in three respects:
•'it would undermine the important public interest that there should be finality in litigation';
•'it would potentially give rise to inconsistent decisions by the Tribunal' in relation to the same conditions of planning approval at a time when both approvals remain operative; and
•'it would be inconsistent with … efficiency and economy in the conduct of litigation'.
Erujin Pty Ltd sought leave to appeal from the decision of the Tribunal to the Supreme Court on three grounds. The Supreme Court granted leave to appeal in relation to each ground, allowed the appeal in relation to one ground and dismissed the appeal in relation to the other two grounds. In particular, the Supreme Court held that the second basis on which the Tribunal found that the proceedings would bring the administration of administrative justice into disrepute, namely, that 'it would potentially give rise to inconsistent decisions by the Tribunal in relation to the same conditions of planning approval at a time when both approvals remain operative', involved a legal error, as the consent orders did not determine the basis for the imposition of the conditions. The Supreme Court remitted the matter for reconsideration by the Tribunal as originally constituted.
The Tribunal reconsidered the matter with the benefit of further submissions by the parties. The Tribunal determined that the two other bases on account of which it had found in the earlier decision that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute, namely, 'the important public interest that there should be finality in litigation' and 'efficiency and economy in the conduct of litigation', each warrant a finding that each proceeding involves an abuse of process. The Tribunal made a final decision in the previous proceeding in terms of the consent orders and the circumstances have not changed in any material way. Important procedural aspects of the administration of justice in terms of finality of litigation and efficiency in the conduct of litigation the latter consideration being of heightened significance in the work of the Tribunal each warrant a finding of abuse. The Tribunal therefore dismissed the proceedings.

Introduction

The Western Australian Planning Commission (Commission) applied to the Tribunal for orders under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that each of two planning review proceedings commenced by Erujin Pty Ltd (Erujin) should be dismissed as an abuse of process. The Commission contended that the proceedings involve an abuse of the Tribunal's process because they seek to relitigate a matter decided by the making of consent orders in a previous Tribunal proceeding between Erujin and the Commission. In the previous proceeding, the Tribunal imposed two conditions on the subdivision of a rural property to the east of Albany. The conditions required the fencing, revegetation and protection of a creekline and the fencing of specified areas of remnant bushland on the property. In the current proceedings, Erujin seeks decisions by the Tribunal to 'revoke and delete' essentially the same conditions imposed by the Commission on the granting of approval to two fresh subdivision applications of the same land.
The Tribunal (as presently constituted) heard the Commission's applications that the current proceedings should be dismissed as an abuse of process on 11 February 2010. For reasons delivered on 25 February 2010, the Tribunal ordered that the proceedings were dismissed as an abuse of process pursuant to s 47 of the SAT Act: Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 (earlier reasons). The Tribunal said the following at [52] of the earlier reasons:
In my opinion, to allow the current proceedings to continue would bring the administration of administrative justice into disrepute in three respects. First, it would undermine the important public interest that there should be finality in litigation. Secondly, it would potentially give rise to inconsistent decisions by the Tribunal in relation to the same conditions of planning approval at a time when both approvals remain operative. Thirdly, it would be inconsistent with 'the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole' (to quote Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 referred to by French CJ in [AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175] … This latter consideration is arguably of even greater significance in relation to the commencement and conduct of proceedings in the Tribunal than in civil courts, because the Parliament has specifically legislated that SAT's main objectives in dealing with matters within its jurisdiction include 'to act as speedily … as is practicable, and minimise the costs to the parties': s 9(b) of the SAT Act.
On 24 March 2010, Erujin applied for leave to appeal, pursuant to s 105(1) of the SAT Act, from the decision of the Tribunal to the Supreme Court, on the following three grounds:
(a)The Tribunal erred in law in determining that for the purpose of an application under section 47 [of the SAT Act] a consent order involved or was equivalent to determining an application on the merits.
(b)The Tribunal erred in law in concluding that a reason to grant the application was that it could give rise to inconsistent decisions when a consent order was not a decision on the merits.
(c)The Tribunal erred in law in concluding that section 56(2) of the SAT Act required the Tribunal to consider whether the conditions should be imposed.
The application for leave to appeal and arguments in respect of the substantive appeal were heard concurrently by Justice Allanson in the Supreme Court on 13 September 2010. On 12 November 2010, his Honour delivered a judgment in which he granted leave to appeal because:
The questions raised by Erujin are important, and there are real arguments to be put in support of the grounds. Its application has been dismissed, so it would suffer substantial prejudice if the tribunal erred. (Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 (appeal reasons) at [10])
Allanson J dismissed the first and third grounds of appeal. His Honour held that the interpretation of and approach to s 47 and s 56 of the SAT Act in the earlier reasons was correct. In particular, his Honour endorsed the Tribunal's decision in relation to the nature and effect of consent orders, the Tribunal's role in the making of consent orders in review (specifically, planning review) proceedings, and the capacity of consent orders made by the Tribunal to found an abuse of process.
His Honour allowed the appeal in relation to the second ground, because the second basis on account of which the Tribunal found that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute at [52] of the earlier reasons, namely, that it 'would potentially give rise to inconsistent decisions by the Tribunal in relation to the same conditions of planning approval at a time when both approvals remain operative', involved legal error. In particular, his Honour held that the Tribunal's reasoning that set out a basis for finding a relevant inconsistency 'impermissibly extends what was decided by the consent orders': appeal reasons at [64]. His Honour's reasoning in relation to each of the three grounds of appeal is extracted below.
At [67] of the appeal reasons, Allanson J said that, while the finding that there was the potential to give rise to inconsistent decisions was 'only one of the reasons given for finding an abuse of process' and was 'part of a more general finding that the 2009 applications bring the administration of justice into disrepute', nevertheless, the finding was 'a central part of the reasoning of the tribunal in finding an abuse of process'. His Honour, therefore, remitted the matter for reconsideration by the Tribunal as originally constituted.

Background for the purpose of reconsideration of this matter

I incorporate the following paragraphs of the earlier reasons by way of background:

Description of the land the subject of the proceeding

10.Erujin is the registered proprietor of Lot 50 on Deposited Plan No 37908, which is known as Lot 50, Nanarup Road, Kalgan (land). The land has an area of 237 hectares and is zoned Rural under the City of Albany Town Planning Scheme No 3.
11.A permanent watercourse, which drains into the Kalgan River, runs through the southern portion of the land. The Kalgan River, in turn, flows into Oyster Harbour. Oyster Harbour and its tributaries are part of the Albany Waterways Management Area, a declared waterway under the Waterways Conservation Act 1976 (WA).
12.The land has been used for grazing and consists primarily of cleared farmland. However, there are scattered areas of remnant vegetation on higher ground throughout the land. In addition, the banks of the watercourse are vegetated with a strand of mature trees that line the creek for its entire course through the land. The creek is not currently fenced and there is little understorey vegetation remaining.

Subdivision 1 and the earlier proceeding

13.On 8 January 2008, Erujin lodged an application with the Commission under s 135 of the Planning and Development Act 2005 (WA) (PD Act) for approval of the subdivision of the land to create three lots labelled A, B and C, each with an area of approximately 79 hectares (subdivision 1). The proposed boundary lines separating the three lots run northsouth through the land and traverse areas of remnant bushland and the creekline. The subdivision application stated that the proposed use of the lots would be rural.
…
17.On 22 April 2008, the Commission granted subdivision approval to the subdivision 1 application subject to 11 conditions, including the following:
2.Development and implementation of a foreshore revegation plan, in consultation with the Department of Water. (Department of Water)
3.Those areas identified in red on the attached map are to be fenced with stockproof and rabbitproof fencing. (Department of Environment and Conservation)
…

19.On 9 June 2008, Erujin commenced proceeding DR 220 of 2008 (previous proceeding) in the Tribunal. The previous proceeding involved an application for review under s 251(2) of the PD Act of the Commission's decision to impose eight of the 11 conditions on the approval of the subdivision 1 application, including condition 2 and condition 3. Section 251(2) of the PD Act states as follows:
'An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of conditions affixed to the granting of approval referred to in subsection (1).'
20.Section 251(1) of the PD Act includes reference to approval of a subdivision application under s 135 of the Act.
21.In its application for review in the previous proceeding, Erujin sought the Tribunal to make the decision that seven of the conditions which were the subject of the review, including condition 2 and condition 3, 'be removed from the approval to subdivide' and that the eighth condition which was the subject of the review be amended in a manner specified in the application.
22.The final hearing in the previous proceeding commenced in Albany on 16 December 2008. The Tribunal conducted a view of the land, and some witnesses were called to give evidence and were crossexamined.
23.Following the commencement of the hearing, the parties' representatives engaged in discussions and negotiated an agreed position by which the proceeding could be resolved. Consent orders reflecting the agreed position were presented to the Tribunal which then issued final orders in accordance with the consent orders on 17 December 2008. The Tribunal's orders were expressed as follows:
'On the application heard before Senior Member David Parry and Senior Sessional Member Brian Hunt on 16 and 17 December 2008, it is ordered that:
By Consent:
1.The application for review is allowed in part.
2.The decision of the respondent made on 23 April 2008 to grant conditional approval to subdivision application No. 136690 is varied as follows:
(a)Conditions 1, 4, 5, 6 and 11 are deleted.
(b)Condition 2 is deleted and replaced with the following condition:
"2.Development and implementation of a basic foreshore revegetation plan, in consultation with the Department of Water, which plan is to:
(a)require fencing of the creek line including existing and proposed vegetation in accordance with the plan attached and marked 'A' on the southern portion of the property. The fencing is to be ringlock 1 barb fence;
(b)require installation of watering and crossing points, utilising existing points where possible. These points will need protecting with a hard surface such as gravel unless gravel is already in place, such crossing points not to be greater then 10 metres in width; and
(c)require revegetation with appropriate local endemic species and weed management in denuded areas surrounding the creek line contained within the area that is fenced in accordance with the plan attached and marked 'A'.

The plan marked 'A' does not constitute a basic foreshore revegetation plan. (Department of Water)."

(c)Condition 3 is deleted and replaced with the following:
'Those areas identified in black on the plan marked "A" are to be fenced with stockproof fencing. (Department of Environment and Conservation).'

(d)Condition 9 is deleted and replaced with the following:
[not reproduced]

(e)Condition 10 is deleted and replaced with the following:
[not reproduced]

(f)For the purposes of s 145 of the Planning and Development Act 2005 (WA) the commencement of the prescribed period is 17 December 2008.'

…
25.The effect of order 2(f) made by the Tribunal on 17 December 2008 was that Erujin has until 17 December 2011 in which to submit a diagram or plan of survey of subdivision 1 to the Commission and request the Commission to approve the diagram or plan of survey of the subdivision: see s 145 of the PD Act.

Subdivision 2 and subdivision 3 and the current proceedings

26.On 27 February 2009, that is, within about 10 weeks of the Tribunal's final orders in the previous proceeding, Erujin's consultant surveyor completed and despatched to the Commission two fresh subdivision applications of the land for approval under s 135 of the PD Act. These subdivision applications were received by the Commission on 6 March 2009. The first of the subdivision applications (subdivision 2) proposed the subdivision of the land into three lots labelled A, B and C. These three lots have substantially the same configuration and areas as the three lots in subdivision 1. There are some minor differences in the location of the internal boundaries and in the length and width of an accessway, with consequently minor differences in the areas of the three lots. The second subdivision application (subdivision 3) proposed the subdivision of the land into two lots labelled A and B. Lot A of subdivision 3 is located in the western part of the land, has a battleaxe shape with a 100 metre wide frontage to Nanarup Road to the south and an area of 107.38 hectares. Lot B of subdivision 3 has an irregular shape and occupies the remainder of the Nanarup Road frontage of the land, a strip adjoining the eastern boundary and a strip adjoining the northern boundary of the land. Lot B surrounds Lot A on its southern, eastern and northern sides and has an area of 129.67 hectares.
27.While the configuration and areas of Lots A and B of subdivision 3 differ from the configuration and areas of Lots A, B and C of subdivision 1 and subdivision 2, all three subdivisions have in common that each lot traverses the creek and includes areas of remnant bushland identified as requiring stockproof fencing on the plan referred to in condition 3 as modified by the Tribunal's order in the previous proceeding. Furthermore, like the boundary between Lot A and Lot B in subdivision 1 and subdivision 2, the boundary between Lot A and Lot B in subdivision 3 traverses an area of bushland that is required to be fenced by condition 3 imposed by the Tribunal in the previous proceeding, although, in subdivision 3, this area is traversed eastwest, whereas in subdivision 1 and subdivision 2, the area is traversed northsouth.

28.On 2 June 2009, the Commission granted subdivision approval under s 135 of the PD Act for subdivision 2 subject to four conditions, and for subdivision 3 subject to two conditions. Condition 1 and condition 2 of the subdivision approval for subdivision 2 and the two conditions of subdivision approval for subdivision 3 are identical to condition 2 and condition 3 as imposed by the Tribunal in its orders made on 17 December 2008 in the previous proceeding for subdivision 1, with one variation. The variation is that condition 2 of the subdivision approval for subdivision 2 and subdivision 3 contains the following additional sentence:
'Where the abovementioned areas overlap boundaries between proposed [Lot A and Lot B, Lot B and Lot C in subdivision 2/Lot A and Lot B in subdivision 3], those sections of common boundary should be demarcated, only if necessary and with minimal disturbance of native vegetation only.'
29.This variation is minor and does not alter the substance of the condition as imposed by the Tribunal in the previous proceeding.
30.Erujin applied to the Commission, under s 151 of the PD Act, for reconsideration of condition 1 and condition 2 imposed in relation to each of subdivision 2 and subdivision 3. However, on 13 September 2009, the Commission confirmed each condition.
31.On 12 October 2009 and on 12 November 2009, Erujin commenced proceedings DR 392 of 2009 and DR 438 of 2009, respectively. Each of these proceedings involves an application for review under s 251(3) of the PD Act of condition 1 and condition 2 affixed by the Commission on the granting of approval to subdivision 2 and subdivision 3. Section 251(3) of the PD Act enables an applicant who made a request under s 151 of the PD Act to the Commission for reconsideration in relation to a condition to apply to the Tribunal for review of the decision of the Commission in relation to the reconsideration. In each application for review, Erujin sought a decision by the Tribunal to 'revoke and delete conditions 1 and 2' imposed and confirmed by the Commission on approval of subdivision 2 and subdivision 3. At the first directions hearing in the proceedings, the Commission foreshadowed its application for orders that the proceedings should be dismissed as an abuse of process.

Decision on appeal

In relation to the first appeal ground, Allanson J found that the Tribunal had not determined that a consent order involved or was equivalent to determining an application on its merits and was correct in determining that a consent order made by the Tribunal could found an abuse of process. His Honour held, at [53] [57] of the appeal reasons, as follows:
There is no reason in principle why a consent order should not support a finding of abuse of process. A consent judgment by a court of record will support a plea of res judicata: Chamberlain v Deputy Commissioner of Taxation[1988] HCA 21; (1988) 164 CLR 502, 508. A consent judgment may also found an issue estoppel. The fact that the judgment was obtained by consent is no bar to a claim that an issue estoppel arises out of the judgment so long as one can ascertain what are the issues which have necessarily been determined and disposed of by the judgment: In re South American and Mexican Company; Ex parte Bank of England[1895] 1 Ch 37, 50; Isaacs v The Ocean Accident and Guarantee Corporation Ltd & Winslett[1958] SR (NSW) 69, 75; Makhoul v Barnes(1995) 60 FCR 572 at 582.
The concept of abuse of process offers wider protection against attempted re-litigation than either res judicata or issue estoppel. Even where there is no strict estoppel, an attempt to re-litigate a matter that has been disposed of by earlier proceedings may be an abuse of process: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Coffey v Secretary, Department of Social Security[1999] FCA 375; (1999) 86 FCR 434 [25]; Spalla v St George Motor Finance Ltd (No 6)[2004] FCA 1699 [58] [70]. So long as the issue of law or fact which has been determined in the earlier judgment can be identified, the court and the parties may be protected against an abuse of process by way of attempted re-litigation of the issue already judicially determined.
SAT is not a court but an administrative tribunal, even when constituted by a judicial member: Mustac v Medical Board of Western Australia[2007] WASCA 28 48]; Hartwig v Builders' Registration Board of Western Australia[2009] WASCA 138 [26]. Care must be exercised in the application, even by analogy, of authorities relating to courts.
SAT has, however, been given an express power to dismiss for abuse of process. Further, it has jurisdiction to finally decide the questions raised on a review. While an appeal lies to the Supreme Court, it is by leave and confined to an appeal on a question of law. An estoppel may arise from the decision of a tribunal given power to finally determine the questions raised before it: The Administration of the Territory of Papua and New Guinea v Daera Guba[1973] HCA 59; (1973) 130 CLR 353, 453. In my opinion, the principles relating to abuse of process in a court of record, including abuse of process by re-litigation of a matter that has been finally determined, are properly applied to SAT.
The parties reached a settlement, and the tribunal made the orders necessary to give it effect. The fact that they were made by consent does not alter their character as final orders of the tribunal. The StateAdministrative Tribunal Act does not differentiate between an order made by consent and one made after a full hearing on the merits. Each is a final decision of the tribunal that disposes of the matters raised in the application.
In relation to the second appeal ground, his Honour determined, as noted earlier, that the second basis for the finding at [52] of the earlier reasons that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute involved an error of law because the Tribunal’s reasoning in support of this basis 'impermissibly extends what was decided by the consent orders': appeal reasons at [64]. At [14] of the earlier reasons, the Tribunal said the following:
The Commission referred the subdivision 1 application to agencies, including the Department of Water (DoW) and the Department of Environment and Conservation (DEC). Erujin disputed the relevance of the referrals and of the terms of the responses from the DoW and the DEC to the Commission's applications for dismissal of these proceedings as an abuse of process. However, Erujin did not dispute the fact of the referrals or the terms of the responses. I consider that the referrals to and advice of the DoW and the DEC is relevant to the applications for dismissal of the proceedings as an abuse of process, because the advice of these referral agencies clearly formed the basis for the imposition by the Commission of two conditions of subdivision approval which were the subject of the review in the previous Tribunal proceeding and were imposed by the Tribunal in a modified form by the making of consent orders in that proceeding. As will be seen below, the substance of the conditions imposed by the Commission was retained in the conditions imposed by the Tribunal.
The Tribunal set out an extract from the advice of the Department of Water to the Commission at [15] of the earlier reasons and the comments and recommendations of the Department of Environment and Conservation to the Commission at [16] of the earlier reasons.
Allanson J addressed the second appeal ground at [61] [66] of the appeal reasons as follows:
The issue of potentially inconsistent decisions requires the court to consider what was determined by the earlier consent orders.
'[The] judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.'
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532 (Dixon J).
At a general level, the tribunal said that the consent orders had determined that the conditions imposed on approval for subdivision 1 were within power and were 'reasonable and appropriate.' This was paraphrased as conditions the tribunal 'could and should' impose on subdivision 1. This general finding would not, however, support a claim that a decision to allow a subdivision of the same land without those conditions was inconsistent with the consent orders.
More specifically, the tribunal made the following important findings in [46] and [47]:
'As noted earlier, the decision sought by Erujin in each of the current proceedings is for the Tribunal to "revoke and delete" the two conditions in dispute. The issues that Erujin therefore necessarily seeks to raise in the proceedings are whether the conditions can and should be imposed on the subdivision of the land. However, as a matter of substance, these issues have already been decided by the Tribunal in the previous proceeding. Unless there has been a significant change in circumstances between subdivision 1 and subdivision 2 or subdivision 3, Erujin's attempt to reagitate these issues constitutes a collateral attack on the prior decision of the Tribunal.
There has, however, been no relevantly significant change in circumstances between subdivision 1 and either subdivision 2 or subdivision 3. Subdivision 1 and subdivision 2 are essentially the same in their form. Subdivision 3 is different to subdivision 1 in relation to the number and configuration of the proposed allotments. However, having regard to the basis for the imposition of condition 2 and condition 3 on the subdivision 1 approval as expressed in the advice of the DoW and the DEC, the changes between subdivision 3 and subdivision 1 do not bear significantly on the reasons why the same conditions as are now sought to be challenged were imposed by the Tribunal on subdivision 1. Subdivision 1 and subdivision 3 both involve an increase in the number of lots on the land and therefore an intensification of the use of the land including the use of the creek for crossing and for livestock. Both subdivisions also include at least one new lot boundary traversing bushland that is required by condition 3 of the subdivision 1 approval to be fenced. The basis for the imposition of the conditions in the advice of the DoW and the DEC in relation to subdivision 1 therefore remains apposite in relation to subdivision 3.' (emphasis added)
This reasoning sets out a basis for finding a relevant inconsistency but, in my opinion, impermissibly extends what was decided by the consent orders.
There will be the potential for inconsistent decisions if the consent orders made by the tribunal in December 2008 determined not only that conditions 2 and 3 are reasonable and appropriate to subdivision 1, but also that such conditions are reasonable and appropriate, or should be imposed, on 'the subdivision of the land.' But the consent orders do not determine 'the basis for the imposition of the conditions'; that is, they do not determine why those conditions were imposed or the circumstances in which such conditions should be imposed. None of those matters was legally necessary to the conclusion that the tribunal could and should make orders imposing those conditions to give effect to the settlement agreed by the parties. And because the consent orders do not determine the basis for the imposition of the conditions, they cannot decide as a matter of substance whether those conditions should be imposed on a subsequent application in relation to the same land, or to a subdivision where there has been 'no relevantly significant change in circumstances.'
Put another way, for Erujin to claim that the conditions should not be imposed on subdivision 2 or subdivision 3 is not necessarily to assert that the earlier decision of the tribunal is wrong.
The third appeal ground concerned s 56 of the SAT Act which states as follows:
(1) If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement.
(2) The Tribunal cannot make an order under subsection (1) unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
His Honour held at [37] of the appeal reasons that:
The tribunal is not bound to make the orders. Where an Act confers a power on a public officer or body by facultative words, as in s 56(1), it is a question of construction whether a discretion is conferred, and, if so, the nature of the considerations that the person in whom the power is confided may be entitled or required to take into account in the exercise of the discretion. This requires consideration of the particular provisions, the context, and the general scope and objects of the enactment conferring the power: see Ward v Williams[1955] HCA 4; (1955) 92 CLR 496, 505, 506; Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 [32]. See also Interpretation Act 1984 (WA) s 56.
Having set out the provisions of the SAT Act which govern the review jurisdiction of the Tribunal, at [27] [30] of the appeal reasons, and relevant provisions of the enabling Act (the Planning and Development Act 2005 (WA)) concerning the assessment and determination of subdivision applications by the Commission (and the Tribunal on review) and the conduct of planning review proceedings before the Tribunal, at [39] [41] of the appeal reasons, his Honour held, at [42] [47] of the appeal reasons, as follows:
When exercising its review jurisdiction, SAT has functions and discretions corresponding to those of the Commission in making the reviewable decision.
The tribunal held that s 56(1) conferred a power to be exercised at discretion. It reached that conclusion from the words used in s 56(1), and from the nature of the function conferred on the tribunal in determining an application to review a planning decision. The tribunal said, at [45]:
'[R]eview proceedings involve the application of public law and the exercise of a statutory discretion to produce the correct and preferable decision. Specifically, in a planning review proceeding, the Tribunal is required to exercise a statutory planning discretion. It is not absolved from this significant public responsibility merely because the parties have settled their dispute on agreed terms.'
Having regard to the legislative context, and in particular s 138, s 153 and s 241 of the Planning and DevelopmentAct, I agree with the conclusion of the tribunal regarding its discretion in making orders under s 56.
Section 56(2) requires SAT to be satisfied that it would have the power to make a decision in the terms of the agreed settlement. In this matter, the conditions are attached to an approval to subdivide. The tribunal referred to the test of validity stated by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57], following Newbury District Council v Secretary of State for the Environment[1981] AC 578:
'[A] condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development [or subdivision] permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.'
The tribunal was required by s 56(2) to be satisfied of its power to make a decision imposing those conditions. The criteria stated by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd apply the principles relating to manifest error of jurisdiction: see R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 615. Conditions that did not meet those criteria would not be within the power of the Commission, or within the power of SAT.
In my opinion, the tribunal correctly construed s 56(2).
His Honour addressed the third appeal ground at [68] [72] of the appeal reasons as follows:
In ground 3, the applicant contends that SAT erred in concluding that s 56(2) required the tribunal to consider whether the conditions should be imposed.
The tribunal said at [41]:
'Section 56(2) of the SAT Act required the Tribunal to be satisfied that it had the power to make a decision in terms of the consent orders proposed by the parties. Relevantly, the Tribunal had to be satisfied that the conditions could be validly imposed.'
Later, at [59], it said:
'Furthermore, as discussed earlier in these reasons, in deciding to make the consent orders proposed by the parties in the previous proceeding, the Tribunal was required to be satisfied that the conditions could be validly imposed (s 56(2) of the SAT Act) and should appropriately be imposed in the exercise of planning discretion (s 56(1) of the SAT Act).'
To the extent the tribunal said s 56 required it to consider whether the conditions should be imposed, it was under the discretion conferred by s 56(1). In my opinion, for the reasons set out above, s 56(1) does confer that discretion.
Ground 3 is not made out.

Reconsideration of whether the proceedings are an abuse of process

The reconsideration of the matter by the Tribunal proceeded on two bases agreed by the parties.
First, the effect of Justice Allanson's decision and the appeal reasons leave it open to the Tribunal to find that the proceedings are an abuse of process.
Second, the Tribunal's task on reconsideration is to determine whether, if the second basis on account of which the Tribunal found at [52] of the earlier reasons that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute were removed (as it has been found to involve legal error), the other two bases given at [52] of the earlier reasons would nevertheless warrant a finding of abuse of process and dismissal of the proceedings for that reason. As noted earlier, the two other bases for the Tribunal's finding were that the maintenance of the proceedings 'would undermine the important public interest that there should be finality in litigation' and 'would be inconsistent with "the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole"'.
Mr PG McGowan of counsel submitted on behalf of Erujin that, while the appeal reasons did not expressly state that the error of law which infected the second basis for the Tribunal's finding at [52] of the earlier reasons also infected either of the other two bases, nevertheless, his Honour's decision that the Tribunal's 'approach was an error of law … removes an essential step in the reasons to otherwise grant the application'. Further, Mr McGowan contended that 'the development of the position identified by his Honour at [65] would lead to the result that the application [by the Commission for the proceedings to be dismissed as an abuse of process] should have been and now should be dismissed'. Mr McGowan relied, in particular, on Allanson J's reasoning, at [65] of the appeal reasons, that:
[T]he consent orders do not determine 'the basis for the imposition of the conditions'; that is, they do not determine why those conditions were imposed or the circumstances in which such conditions should be imposed. None of those matters was legally necessary to the conclusion that the tribunal could and should make orders imposing those conditions to give effect to the settlement agreed by the parties. And because the consent orders do not determine the basis for the imposition of the conditions, they cannot decide as a matter of substance whether those conditions should be imposed on a subsequent application in relation to the same land, or to a subdivision where there has been 'no relevantly significant change in circumstances'.

However, his Honour did not determine that his reasoning at [65] of the appeal reasons in effect also precluded either of the other two bases for the Tribunal's finding that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute. Indeed, his Honour observed, at [67] of the appeal reasons, that the second basis for the Tribunal's decision was 'only one of the reasons given for finding an abuse of process' and that 'it was part of a more general finding that the 2009 applications bring the administration of justice into disrepute'.
Furthermore, it is not a necessary implication from his Honour's reasoning that the error of law that infected the second basis for the finding also infected either of the other two bases. The error of law was to impermissibly extend what was actually decided by the consent orders to include the basis or reasons for the imposition of the conditions. However, the other two bases for the Tribunal's finding of abuse are procedural, rather than substantive, in nature, and operate irrespective of the basis or reasons for the imposition of the conditions in the earlier proceeding.
Irrespective of the basis for the imposition of the conditions by the consent orders, the conditions were imposed by a final decision of the Tribunal in the previous proceeding. In these proceedings, Erujin seeks a final decision of the Tribunal 'revoking and deleting' conditions that are essentially the same as the conditions the Tribunal imposed in the previous proceeding, although there is no material change in circumstances between subdivision 1, which was the subject of the previous proceeding, and either subdivision 2 or subdivision 3, which are the subject of the current proceedings. Subdivision 1 and subdivision 2 are essentially the same in their form. Subdivision 3 is different to subdivision 1 in relation to the number and configuration of the proposed allotments. However, subdivision 1 and subdivision 3 are in respect of the same land, the proposed allotments under both subdivisions are generally commonly oriented northsouth, and the proposed allotments under both subdivisions contain the same natural features that are the subject of the conditions imposed by the Tribunal in respect of subdivision 1 and which Erujin seeks the Tribunal to delete in relation to subdivision 3. Moreover, the common boundaries of proposed lots in each of subdivision 1 and subdivision 3 cross the creek and each subdivision involves at least one new lot boundary traversing bushland that is required by condition 3 of the subdivision 1 approval and condition 2 of the subdivision 3 approval to be fenced.
Whatever its reasons, the Tribunal made a final decision in the previous proceeding in terms of the consent orders. The circumstances have not changed in any material way. In my view, therefore, the current proceedings bring the administration of administrative justice into disrepute because they offend the public interest 'that there should be finality in litigation and that a party should not be twice vexed in the same matter': Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 per Lord Bingham of Cornhill. As Ms CA Ide, counsel for the Commission, submitted, 'the principle of finality of litigation requires that the resolution effected by [the] consent orders ought to be maintained'. In my view, the first basis for the finding at [52] of the earlier reasons warrants the dismissal of the current proceedings as an abuse of process under s 47 of the SAT Act.
Furthermore, as Lord Bingham of Cornhill said in the same passage, the public interest that there should be finality in litigation 'is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole'. As was observed at [52] of the earlier reasons:
This … consideration is arguably of even greater significance in relation to the commencement and conduct of proceedings in the Tribunal than in civil courts, because the Parliament has specifically legislated that SAT's main objectives in dealing with matters within its jurisdiction include 'to act as speedily … as is practicable, and minimise the cost to the parties': s 9(b) of the SAT Act.
As Ms Ide submitted:
Relitigation of the imposition of conditions applicable to subdivision of land where there has been no significant change of circumstances has implications for the appropriate management of Tribunal processes in an efficient and economical manner, noting in particular the Tribunal's obligations under section 9(b) of the [SAT Act].
In particular, as counsel for the Commission submitted, if the current proceedings were allowed to continue:
[o]ther parties will become sceptical of the efficacy of consent orders, and reluctant to rely upon them. Many more matters will therefore be pursued till final determination so as to achieve an outcome which cannot be evaded through the initiation of new proceedings.
The Tribunal relies upon an extremely high rate of settlement of disputes by facilitative dispute resolution. For example, the Tribunal's Annual Report 2008 2009 states at page 13 that 75% of the matters initiated in the [Development and Resources] stream are resolved by directions hearings, mediations and compulsory conferences. Many of these mediations and conferences will conclude with consent orders.
If the mechanism of a consent order becomes seen as an insufficiently binding outcome as to protect a party's position then they will be abandoned.
In relation to the importance of facilitative dispute resolution in the work of the Tribunal, see also page 13 of the Tribunal's Annual Report 2009 2010 and DR Parry's 'The use of facilitative dispute resolution in the State Administrative Tribunal of Western Australia Central rather than alternative dispute resolution' (2010) 27 EPLJ 113. As stated in the introduction to this article at page 114:
The [SAT Act] does not require the tribunal to give preference to non-adjudicative over adjudicative methods of dispute resolution. However, from the outset, the tribunal has regarded an emphasis on non-adjudicative dispute resolution as an important means by which to achieve its main objectives. Indeed, the approach and practice of the tribunal to the resolution of many types of disputes, including planning cases, is that nonadjudicative processes are not alternative methods of dispute resolution, but rather are central to the tribunal's function.
The tribunal has adopted the term "facilitative dispute resolution" (FDR) to refer to a suite of non-adjudicative dispute resolution processes that it employs. Approximately 75% of planning review applications are fully resolved by FDR. In addition, FDR processes are used to reduce the scope of dispute in many of the remaining 25% of cases that require tribunal adjudication.
The resolution of the previous proceeding by the making of the consent orders reflected the strong emphasis in the Tribunal's approach to dispute resolution, consistently with its objectives set out in s 9 of the SAT Act, to achieve nonadjudicative outcomes, if at all possible. Among other significant benefits that flow from the Tribunal's approach (see DR Parry, op. cit., pages 126 130) are increasing the speed and reducing the cost of proceedings. Although, in this case, the consent orders were only presented to the Tribunal on the second day of the final hearing, the resolution of the earlier proceeding by the making of the consent orders still increased the speed and minimised the cost to the parties and to the State of the proceeding, as contemplated by the Tribunal's statutory objectives. Had the earlier proceeding continued to an adjudication and had the Tribunal reserved its decision, under s 76 of the SAT Act the Tribunal would have had a period of 90 days after the day on which it reserved its decision (or an extended period approved by the President) in which to give its decision and the reasons for the decision. In terms of cost, had the matter not been resolved by the making of the consent orders, the parties would have to incur the additional cost of completing the final hearing and, if the decision were reserved, the State would have borne the cost of two members, including a sessional member, writing reasons.
Conversely, to allow Erujin to contest the conditions that were imposed by the Tribunal in the consent orders where there is no material change in circumstances would be manifestly inconsistent with the Tribunal's statutory objectives to act as speedily as is practicable and to minimise the cost to the parties. Not only would this set at nought the benefits of a nonadjudicative outcome in the earlier proceeding, but it would require the Tribunal and the parties to expend further resources in the adjudication of the current proceedings.
More broadly, as counsel for the Commission submitted, if these proceedings were allowed to continue in the circumstances of this case, '[o]ther parties will become sceptical of the efficacy of consent orders … [and] [m]any more matters will therefore be pursued till final determination …'. This reasonably foreseeable prospect would dramatically reduce the speed and increase the cost to parties and the State of dispute resolution in the Tribunal.
As Ms Ide also submitted, a further consequence of allowing the current proceedings to continue:
… will be the temptation for parties who discover a flaw in their case (for example, a dearth of evidence on an unexpected point which emerges as vital during the course of testimony) during the course of a hearing to seek for the matter to be resolved by consent orders, rather than continued to final determination.
Following the entering of consent orders the party who identified the problem in their case then has the opportunity of marshalling further evidence and simply initiating fresh proceedings.
Justice Biscoe expressed a similar concern when dismissing a planning review proceeding as an abuse of process in the New South Wales Land and Environment Court in Edwards v The Hills Shire Council [2009] NSWLEC 187 at [12]:
… The evidence could have been called in the earlier proceeding. It is unnecessary to explore the full ramifications of the applicant's oral submission except to note that it appears to raise the unattractive spectre of multiple successive proceedings in which evidence is adduced that could have been called in earlier proceedings.
The 'unattractive spectre of multiple successive proceedings', while a reasonably foreseeable consequence of allowing the current proceedings to continue, would undermine the Tribunal's objectives and, more broadly, the emphasis on efficiency and economy in the conduct of litigation.
In my opinion, therefore, the third basis for the finding at [52] of the earlier reasons, that to allow the current proceedings to continue would bring the administration of administrative justice into disrepute, also warrants the dismissal of the proceedings as an abuse of process.

Conclusion

The administration of justice encompasses both procedural and substantive aspects. Allanson J determined that, while a consent order can found an abuse of process, it was an error of law to extend what was actually decided by the consent orders in the earlier proceeding to include the basis or reasons for the imposition of the conditions. However, irrespective of the basis or reasons for making the consent orders, the Tribunal made a final decision in the earlier proceeding in terms of the consent orders and the circumstances have not changed in any material way.
Having reconsidered the matter, the Tribunal has determined that important procedural aspects of the administration of justice in terms of finality of litigation and efficiency and economy in the conduct of litigation the latter aspect being of heightened significance in the work of the Tribunal each warrant a finding that the current proceedings involve an abuse of the Tribunal's process by relitigation of a decided matter. As the Tribunal has made a final decision in terms of the consent orders and the circumstances have not changed in any material way, it would bring the administration of administrative justice into disrepute to allow the current proceedings to continue. Each proceeding should therefore be dismissed as an abuse of process under s 47 of the SAT Act.

Orders

The Tribunal makes the following orders:

DR 392 of 2009

Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as an abuse of process.

DR 438 of 2009

Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as an abuse of process.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER