Graham Clive Palmer & Anor v City of Gosnells

[2015] HCASL 72

GRAHAM CLIVE PALMER & ANOR

v

CITY OF GOSNELLS

[2015] HCASL 72
P23/2014

1. The applicants were convicted of offences under the Planning and Development Act 2005 (WA) ("the PD Act") in the Magistrates Court of Western Australia (Magistrate Calder). Evidence was given in the prosecution case by an officer of the respondent Council ("the officer") of attendances on the applicants' property in his capacity as a planning compliance officer to determine whether there were breaches of the relevant Town Planning Scheme ("TPS6").

2. The applicants applied to the Supreme Court of Western Australia (Edelman J) for leave to appeal against their convictions on grounds which included the assertion that Magistrate Calder "did not properly consider the 'acquisition of the property or the trespass of [sic] the property by the Respondents'"[1].  The submissions made by counsel for the applicants in support of this ground were directed to the contention that Magistrate Calder "ignored" and "rejected without consideration" authorities relating to the applicants' property rights[2].  Edelman J concluded that the ground had no reasonable prospects of succeeding[3]. His Honour observed that cl 12.1.2 of TPS6, enacted under ss 69 and 256(1) of the PD Act, provides that an employee of the local government authorised by the local government may enter land for the purpose of ascertaining whether the provisions of the Scheme are being observed[4]. Section 256(1)(b) confers power on the Minister to make Regulations prescribing provisions dealing with any matter set out in Sched 7 of the PD Act. Clause 11(2) of Sched 7 refers to "[p]owers of entry and inspection". His Honour refused leave to appeal on each of the proposed grounds.

   [1]Palmer v City of Gosnells [2013] WASC 446 at [76].

   [2]Palmer v City of Gosnells [2013] WASC 446 at [86].

   [3]Palmer v City of Gosnells [2013] WASC 446 at [87].

   [4]Palmer v City of Gosnells [2013] WASC 446 at [84].

3. The applicants appealed to the Court of Appeal of the Supreme Court of Western Australia (McLure P, Buss and Mazza JJA) against the refusal of leave.  None of the grounds relied upon in the Court of Appeal challenged Edelman J 's conclusion that the ground complaining of Magistrate Calder's asserted failure to properly consider "the trespass of [sic] the property" had no reasonable prospect of succeeding.  The appeal was dismissed.

4. The applicants apply for special leave to appeal against the Court of Appeal's decision.  They require a short enlargement of time in which to file the application[5].  They have filed a very brief affidavit providing an unsatisfactory explanation for the delay.  In addition, for the reasons to be given, there is no utility in making an order dispensing with compliance with the Rules in this respect. 

   [5]High Court Rules 2004 (Cth), r 41.02.1.

5. The applicants contend that the Supreme Court erred in finding that cl 12.1.2 of TPS6 was valid and supported the officer's lawful entry onto their property without a warrant.  The summary of argument develops this ground along lines that do not appear to have been raised before Edelman J.  The scope of the power conferred under cl 12.1.2 does not give rise to the widely framed special leave question.  Nothing in the material filed in support of the application warrants the grant of special leave to consider an issue which was not raised below. 

6. The applicants submit that in the event their application is refused, each party should bear its own costs.  They contend that the litigation has raised "a matter of general importance to the administration of public law" relying on Oshlack v Richmond River Council[6].  The respondent opposes the costs order sought by the applicants.  Correctly, the respondent submits that the reliance on Oshlack is misconceived.  The respondent notes that provision is made for costs orders against defendants in summary prosecutions in Western Australia[7].  It is appropriate that the respondent have its costs of responding to the application. 

   [6](1998) 193 CLR 72 at 88-89 per Gaudron and Gummow JJ; [1998] HCA 11.

   [7]Criminal Procedure Act 2004 (WA), s 67(1), (2); Criminal Appeals Act 2004 (WA), s 14(1)(h).

7. The application is dismissed with costs. 

8. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
6 May 2014 S.J. Gageler