Goldrange Pty Ltd v Western Australian Planning Commission - [2018] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GOLDRANGE PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASC 350
CORAM:   QUINLAN CJ
HEARD:   31 OCTOBER 2018; 1 NOVEMBER 2018
DELIVERED          :   1 NOVEMBER 2018
PUBLISHED           :   14 NOVEMBER 2018
FILE NO/S:   CIV 2133 of 2016
BETWEEN:   GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

FILE NO/S: CIV 2635 of 2016
BETWEEN: GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
THE HONOURABLE DONNA FARAGHER MLC, MINISTER FOR PLANNING
Respondent

FILE NO/S: CIV 2164 of 2018
BETWEEN: GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
THE HONOURABLE RITA SAFFIOTI MLA, MINISTER FOR TRANSPORT, PLANNING, LANDS
Respondent

Catchwords:

Practice and procedure - Applications for judicial review - Recommendation of Commission in relation to scheme amendment - Decision of Minister to specify modifications to amendment - Whether applications have no reasonable prospect of succeeding under O 56 r 5(2)(j)

Statutory interpretation - Section 87 of the Planning and Development Act 2005 - Whether recommendation is a statutory precondition to exercise of Minister's power - Whether Minister can require further modifications to amendment once resubmitted - Whether Minister must provide a hearing in relation to modifications

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA
Environmental Protection Act 1986 (WA)
Federal Court of Australia Act 1976 (Cth), s 31A
Interpretation Act 1984 (WA), s 48
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 33A
Mining Act 1978 (WA), s 59
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 5(2)(j)
Town Planning Regulations 1967 (WA), reg 20

Result:

Applications refused

Category: B

Representation:

CIV 2133 of 2016

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

CIV 2635 of 2016

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

CIV 2164 of 2018

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

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

Cabell v Markham (1945) 148 F (2d) 737

Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Harvey v The Minister Administering the Water Management Act 2000 [2008] 160 LGERA 50
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Minister for the Environment; Ex parte Elwood [2007] WASCA…

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: [2018] WASC 350
Decision Date: 14 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Goldrange Pty Ltd v Western Australian Planning Commission, the primary dispute revolved around the statutory procedures and the extent of the Western Australian Planning Commission's recommendation regarding a scheme amendment under the Planning and Development Act 2005. The applicant, Goldrange Pty Ltd, sought judicial review of decisions made by the Western Australian Planning Commission and the Minister for Planning concerning modifications to a planning scheme amendment. The crux of the legal issues in the case centred on whether the Commission's recommendation was a statutory precondition for the Minister's power to specify modifications to the amendment, and if the Minister had the authority to require further modifications to an amendment once it had been resubmitted. Additionally, the court had to determine whether the Minister was obligated to provide a hearing in relation to the modifications.

The court, after conducting a detailed statutory interpretation, concluded that the Minister's power to specify modifications to a planning scheme amendment was not contingent upon the Commission's recommendation. This conclusion was based on a thorough analysis of the statutory language and context, guided by the principles of statutory construction. The court found that the statutory text must be considered in its context and that the purpose of the legislation was integral to this process. In reaching its decision, the court referenced several High Court decisions, notably Hossain v Minister for Immigration and Border Protection and Project Blue Sky Inc v Australian Broadcasting Authority, to underscore the importance of statutory context and purpose in judicial review. Consequently, the court held that the Minister could require further modifications to the amendment once it had been resubmitted and that there was no requirement for the Minister to provide a hearing in relation to these modifications.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In that regard, I refer to the recent decision of the High Court in Hossain v Minister for Immigration and Border Protection[12] and, in particular, the reasons of Kiefel CJ, Gageler and Keane JJ at [24] to [27]. Their Honours concluded that:[13]Just as the identification of the preconditions and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so does discernment of the extent of noncompliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside of the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.[12] Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780.[13] Hossain v Minister for Immigration and Border Protection [27]. A similar statement was made by Edelman J:[14]In Attorney-General (NSW) v Quin, Brennan J said that in Australia the development and expansion of judicial review had 'been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power'. The broad test for determining whether an implied legislative condition is jurisdictional was set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority. Their Honours said it was necessary to 'ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'.[14] Hossain v Minister for Immigration and Border Protection [66]. In relation to that exercise of statutory construction, I refer to the principles of statutory construction identified by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky:[15]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Footnotes omitted)[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]. Similar statements of principle appear in the High Court's decision in Thiess v Collector of Customs.[16] In that case, French CJ and Hayne, Kiefel, Gageler and Keane JJ, at [22], reiterated that:[17]'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.' So must the task of statutory construction end. The statutory text must be considered in its context.Significantly, their Honours went on to say:[18]Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that 'the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation' is in that respect a particular statutory reflection of a general systemic principle. Their Honours then quoted the American authority, Cabell v Markham:[19][I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.[16] Thiess v Collector of Customs (2014) 250 CLR 664.[17] Thiess v Collector of Customs [22].[18] Thiess v Collector of Customs [23].[19] Cabell v Markham (1945) 148 F (2d) 737, 739.