Graham v Western Australian Planning Commission - [2014] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GRAHAM -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASCA 234

CORAM: MARTIN CJ
BUSS JA
BEECH J

HEARD: 4 APRIL 2014

DELIVERED : 17 DECEMBER 2014

FILE NO/S: CACV 90 of 2013

BETWEEN: NEIL ROBERT GRAHAM
VALMAI EVELYN GRAHAM
First Appellants
MANDURAH ENTERPRISES PTY LTD
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J A CHANEY (PRESIDENT)
Citation  :WESTERN AUSTRALIAN PLANNING COMMISSION and GRAHAM & ORS [2013] WASAT 112
File No  :DR 190 of 2012

Catchwords:

Real property - Compulsory acquisition of land - Whether taking order valid

Real property - Compulsory acquisition of land - Offer of compensation by acquiring authority not in respect of land validly taken - Whether State Administrative Tribunal has jurisdiction under s 222 of Land Administration Act 1997 (WA)

Appeal - General principles - Interference with discretionary judgment - Judgment based on inaccurate assumption as to the facts

Practice and procedure - Application in the State Administrative Tribunal to strike out proceedings - Supreme Court allegedly a more appropriate forum - Proper construction of s 50 of the State Administrative Tribunal Act 2004 (WA) - Interaction between s 50 of the State Administrative Tribunal Act and those provisions of the Land Administration Act which confer jurisdiction on the State Administrative Tribunal and courts

Legislation:

Interpretation Act 1984 (WA), s 18
Land Administration Act 1997 (WA), s 177, s 179, s 202, s 207, s 211, s 214, s 215, s 217, s 218, s 219, s 220, s 221, s 222, s 223, s 224
State Administrative Tribunal Act 2004 (WA), s 5, s 16(2), s 50

Result:

Leave to appeal granted
Appeal allowed
Decision of the Tribunal set aside
Matter remitted to the Tribunal for reconsideration of the application to strike out the part of the proceedings which is within the jurisdiction of the Tribunal

Category: A

Representation:

Counsel:

First Appellants            :     Mr R I Viner QC & Ms L E Rowley
Second Appellant          :     Mr R I Viner QC & Ms L E Rowley
Respondent:     Ms F B Seaward

Solicitors:

First Appellants            :     Norton Rose Fulbright Australia
Second Appellant          :     Norton Rose Fulbright Australia
Respondent:     State Solicitor for Western Australia

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

Attorney‑General (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469
Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424
Barker v The Queen (1983) 153 CLR 338
Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475
Graham v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2008] WASCA 107
Western Australian Planning Commission and Graham [2013] WASAT 112
Table of Contents

MARTIN CJ's reasons............................................................................................................. 6

Summary
The taking of the land
The claims for compensation
The offers of compensation
The challenge to the taking order
Further negotiations relating to compensation
The proceedings in the Tribunal
The reasons of the Tribunal
The scheme of the Act
The grounds of appeal
The validity of the taking order
Does the Tribunal lack jurisdiction because no offers of compensation were made for the land compulsorily taken?
'Offer of compensation' - meaning
Has WAPC made offers of compensation in respect of the land compulsorily taken?
Is the rejection of an offer of compensation a fact upon which the Tribunal's jurisdiction depends?
Leave to appeal
The exercise of the discretion under s 50 of the SAT Act
Does the Supreme Court have jurisdiction to entertain a claim for compensation in relation to Lot 49?

Conclusion
BUSS JA's reasons.................................................................................................................. 27
The reasons of Martin CJ
The relevant provisions of the SAT Act
The relevant provisions of the LA Act

The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
The interaction between s 50 of the SAT Act and those provisions of the LA Act which confer jurisdiction on the Tribunal and courts

Conclusion
BEECH J's reasons................................................................................................................. 40

MARTIN CJ:

Summary

On 23 May 2012, the respondent, the Western Australian Planning Commission (WAPC) lodged an application with the State Administrative Tribunal (the Tribunal) seeking a determination of the quantum of compensation payable to the appellants, Neil Robert Graham, Valmai Evelyn Graham and Mandurah Enterprises Pty Ltd (the landowners) as a result of the compulsory taking of four lots of land previously owned by the landowners. The history of the taking of those lots is convoluted and defies brief summary. It is set out in detail below.
The landowners decided that they wanted the quantum of compensation payable to them to be determined by the Supreme Court rather than the Tribunal. They applied to the Tribunal for an order striking out the proceedings commenced by WAPC on the basis that the subject matter of those proceedings would be more appropriately dealt with by the Supreme Court or on the basis that the Tribunal had no jurisdiction. The Tribunal dismissed that application.
The landowners seek leave to appeal from that decision of the Tribunal. They assert that the Tribunal should have held that it lacked jurisdiction to determine the proceedings commenced by WAPC for two reasons - first, there was no valid taking order in respect of the land the subject of those proceedings and second, WAPC had made no 'offer of compensation' in respect of the land acquired, and the making of such an 'offer' is a fact upon which the jurisdiction of the Tribunal depends. If, contrary to the landowners' primary contentions, the Tribunal had jurisdiction, the landowners challenge the Tribunal's decision to refuse to strike out the proceedings and assert that the quantum of the compensation payable is more appropriately determined by the Supreme Court, for a number of reasons.
For the reasons which follow, the landowners' contention that the Tribunal lacked jurisdiction because there was no valid taking order in respect of the land the subject of the proceedings in the Tribunal must be rejected. However, the landowners' contention that there was no 'offer' of compensation from WAPC in respect of three out of the four lots taken, and that the making of such an offer was a condition of the Tribunal's jurisdiction to determine the quantum of compensation payable in respect of those lots, should be upheld and the landowners' appeal allowed to that extent. Further, because the Tribunal exercised its discretion with respect to the striking out of the proceedings on the erroneous assumption that it had jurisdiction to determine the quantum of compensation payable in respect of all four lots, that aspect of the Tribunal's decision must also be set aside, and the matter remitted to the Tribunal for further consideration in respect of the proceedings relating to the one lot which falls within the Tribunal's jurisdiction.

The taking of the land

On 5 August 2003, WAPC issued a taking order pursuant to s 177(2) of the Land Administration Act 1997 (WA) (the Act) declaring that the land described in the Schedule to the taking order had been compulsorily taken for the purpose of constructing a railway. The Schedule to the taking order included, among other land, land described as Lots 7, 8, 30 and 49 on various Plans and Diagrams registered at the Office of Titles which it is unnecessary to detail. All lots are in the Mandurah region. At the time of the taking order, lots 8 and 30 were owned by Mr and Mrs Graham, and Lots 7 and 49 were owned by Mandurah Enterprises Pty Ltd, which is a company associated with Mr and Mrs Graham.
On 8 August 2003, the taking order was registered and WAPC became the registered proprietor of the land previously owned by the landowners.

The claims for compensation

The landowners lodged claims for compensation in respect of the different lots taken at different times in the latter part of 2003, and the first half of 2004.

The offers of compensation

WAPC made offers of compensation and of advance payment in respect of Lot 49 on 4 February 2004, in respect of Lot 7 on 7 July 2004, and in respect of Lots 8 and 30 on 14 July 2004. Those offers were for substantially smaller sums than the amounts claimed by the landowners. It will be necessary to return to the terms of those offers in due course.
The landowners rejected all offers made by WAPC, although they accepted the offers of advance payment made in respect of each lot taken.

The challenge to the taking order

The landowners then commenced proceedings in the Supreme Court of Western Australia seeking a declaration that the taking orders were invalid. Those proceedings were dismissed at first instance.[1] The landowners appealed. The Court of Appeal allowed their appeal in part, insofar as it related to the taking of a certain portion of Lot 30, but otherwise dismissed the appeal.[2]
[1] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43.
[2] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211.
Following that decision, Lot 30 was subdivided into two lots. One of the lots comprised the land which, according to the decision of the Court of Appeal, was invalidly taken. That land was transferred to the landowners as Lot 32. The other lot comprised that part of Lot 30 which, according to the decision of the Court of Appeal, was validly taken. WAPC remained the registered proprietor of that lot. For convenience I will refer to that lot as New Lot 30.
The landowners appealed with special leave to the High Court of Australia. It will be necessary to return to consider the precise terms of the reasons for decision given by that court.[3] For present purposes it is sufficient to record the outcome of the appeal. The High Court agreed with the Court of Appeal that the taking order was valid in respect of Lot 49 and in respect of New Lot 30, but invalid in respect of that part of the old Lot 30 which had become Lot 32. However, the High Court allowed the landowners' appeal in part because it concluded that the taking order was invalid in relation to certain portions of Lots 7 and 8 because those portions of those lots were not acquired for the purpose of the relevant public work, or for purposes incidental to the undertaking, construction or provision of the relevant public work. Those portions of Lots 7 and 8 had been zoned for urban use. However, they were taken by WAPC to avoid the cost of building a level crossing to provide access to those portions of the lots which would otherwise be landlocked after the railway was built.
[3] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409.
Following the decision of the High Court, a similar process was followed to that which followed the decision of the Court of Appeal. Lots 7 and 8 were each subdivided into two lots. One of each of the subdivided lots comprised the portion of the lot which was invalidly taken. Those lots became Lots 607 and 608 and were ultimately transferred to the landowners in July 2012. The other subdivided lots comprised the portion of each lot validly taken. WAPC remained the registered proprietor of those lots. For convenience I will refer to those lots as New Lots 7 and 8.

Further negotiations relating to compensation

Following the decision of the High Court, the parties engaged in further correspondence with respect to the quantum of compensation payable in respect of the land taken, and other associated issues, including road access to the portions of Lots 30, 7 and 8 which had been or were to be transferred back to the landowners (Lots 32, 607 and 608 respectively). On 30 December 2010, prior to the transfer of Lots 607 and 608 to the landowners, solicitors acting on behalf of WAPC wrote to solicitors acting on behalf of the landowners proposing a compromise of the various matters in issue between the parties. The compromise proposed included various amounts by way of compensation for the land taken and which also included proposals for the resolution of other matters that were in dispute between the parties. As WAPC concedes that this letter did not constitute an 'offer of compensation' within the meaning of the Act,[4] it is unnecessary to refer to the terms of this letter in any detail. The landowners did not provide any substantive response to the offer of compromise.[5]
[4] Appeal transcript p.3.
[5] Affidavit of Michele Louise Payne, green appeal book p.170.
On 13 October 2011, solicitors acting on behalf of WAPC wrote to solicitors acting on behalf of the landowners noting that there had been no substantive response to the settlement proposal contained in the letter of 30 December 2010, and giving 30 days notice of WAPC's intention to commence proceedings in the Tribunal to obtain a determination of the quantum of compensation payable to the landowners. The solicitors for the landowners responded to that letter proposing that the commencement of any proceedings in the Tribunal should be deferred until the end of March 2012, for various reasons.
On 4 May 2012, solicitors representing WAPC wrote to the solicitors representing the landowners advising that if the landowners were not in a position to respond to the settlement proposal contained in the letter of 30 December 2010, proceedings would be commenced in the Tribunal within seven days. On 11 May 2012, the solicitors for WAPC wrote again to the solicitors for the landowners, enclosing a copy of the proposed application to the Tribunal and inquiring as to whether the solicitors had instructions to accept service on behalf of their clients. By letter dated 16 May 2012, the solicitors for the landowners replied to the solicitors for WAPC advising, inter alia, that the landowners preferred to have the quantum of compensation payable to them determined by the Supreme Court rather than the Tribunal.

The proceedings in the Tribunal

As I have noted, WAPC commenced proceedings in the Tribunal seeking a determination of the compensation payable in respect of the taking of Lot 49 and New Lots 7, 8 and 30 on 23 May 2012. After various directions hearings, on 5 February 2013, the landowners applied for orders pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) striking out the proceedings commenced by WAPC and referring the claim for compensation to the Supreme Court in the event that the landowners did not commence proceedings in that court within 28 days of the Tribunal's order striking out the proceedings. The landowners applied in the alternative for orders striking out the proceedings on the basis that the Tribunal lacked jurisdiction to determine the amount of compensation payable. The landowners' application was dismissed in its entirety.[6]
[6] Western Australian Planning Commission and Graham [2013] WASAT 112.

The reasons of the Tribunal

The Tribunal rejected the landowners' contention that it lacked jurisdiction. Having recited the sequence of events relating to the taking of the land and the subsequent legal challenges to the taking order, the President of the Tribunal observed:
Although the formulation of the original claim and the original rejected offer will obviously require modification to account for the consequences of the subsequent court rulings, the preconditions which must be satisfied to entitle the applicant to commence proceedings under s 222 of the LA Act have been met.[7]
[7] Western Australian Planning Commission and Graham [2013] WASAT 112 [28].
It is not clear from the materials before this court whether the arguments with respect to the Tribunal's jurisdiction that have been advanced in this court were formulated in the same way before the Tribunal. Had they been formulated in that way, it seems highly likely that the reasons given by the President would have responded more specifically to those contentions. However, because the issues now raised go to the question of the Tribunal's jurisdiction and are not affected by any evidence that was, or was not, led before the Tribunal, there is no reason why those arguments should not now be resolved, even if they were not specifically raised before the Tribunal. In this context I note that WAPC takes no objection on the grounds that the issues now raised were not raised before the Tribunal.
The balance of the reasons given by the President of the Tribunal are primarily concerned with various factors relevant to the exercise of the discretion to stay proceedings commenced in the Tribunal pursuant to s 50 of the SAT Act. Because, for the reasons which follow, that discretion was exercised on the basis of a false conclusion with respect to the ambit of the Tribunal's jurisdiction, and which was material to the exercise of the discretion, it is unnecessary to address the various discretionary factors analysed by the Tribunal because the exercise of discretion must be set aside in any event.[8]
[8] House v The King [1936] HCA 40; (1936) 55 CLR 499.

The scheme of the Act

Part 10 of the Act provides a scheme for the compensation of those with interests in land compulsorily acquired pursuant to the Act. Section 202(1) of the Act provides:
202.Owners of interests in land taken, entitlement of
(1)Every person having any interest in land which is taken under Part 9 is entitled, subject to this Part, to compensation for the interest from the acquiring authority.
Section 207 provides that claims for compensation in respect of land compulsorily acquired must be made within six months of the registration of the relevant taking order. Section 211 specifies the information which must be included within a claim for compensation, and that it must be accompanied by all documents necessary to establish the claimant's title to the interest taken. Section 214 of the Act empowers the acquiring authority to require the provision of further particulars of a claim for compensation. Section 215 provides that if the acquiring authority disputes a claimant's title to the interest in land, or to some part of the interest, notice of that dispute must be served within 60 days after the service of the claim or, if further particulars were demanded, within 60 days after those particulars were furnished. The section provides that if no notice disputing the title of the claimant is served in accordance with its terms, the acquiring authority is deemed to have admitted the claimant's title.
If there is no dispute with respect to the claimant's title to the interest in the land compulsorily taken, the acquiring authority must, within 90 days after service of the claim, or if further particulars were required, within 90 days after those particulars were furnished, cause the claim to be examined and a report made as to the value of the interest taken and must, as soon as possible after such a report has been received by the acquiring authority, serve an offer of compensation upon the claimant. Section 217 provides:
217.Offer of compensation if title not in dispute, when to be made
(1)If a claim is made under this Part and the acquiring authority does not dispute the claimant's title to the interest in land, or disputes it only in part, the authority must, within 90 days after the service of the claim or, if further particulars were required, within 90 days after the particulars were furnished, cause the claim to be examined, and a report made as to the value of the interest as to which no dispute exists and as to the damage sustained by the claimant by reason of the taking.
(2)If a judgment of the Supreme Court under section 216 confirms, in whole or in part, a claimant's title to an interest in land under dispute, the authority must, within 90 days after the judgment of the Court, cause the claim to be examined, and a report made as to the value of the interest in land in relation to which the claimant's title was confirmed and as to the damage sustained by the claimant by reason of the taking.
(3)As soon as possible after a report under subsection (1) or (2) is received by the acquiring authority, it must serve on the claimant in an approved form an offer of compensation with respect to the interest in the land or the part of the interest in question.
(4)The offer must include a statement of the effect of section 219.
(5)An offer under this section is an admission by the authority of the claimant's title to the interest in land in respect of which it is made.

Section 218 provides that the acquiring authority may amend its offer at any time before a claim for compensation is settled in full, provided proceedings for determination of the amount of compensation have not been commenced. It provides:
218. Claim and offer, amending
At any time before a claim for compensation is settled in full, if proceedings for determination of the amount of compensation have not been commenced in any court or before the State Administrative Tribunal, the claimant may with notice to the acquiring authority amend the claim only as to the amount claimed and the authority may with notice to the claimant amend the offer of compensation.
Section 219 provides that unless a claimant serves notice upon the acquiring authority rejecting an offer or amended offer of compensation within 60 days of service of the offer or amended offer, it is deemed to have been accepted. It provides:
219. Rejection of offer, time limit for; effect of not rejecting offer
(1)A claimant who wishes to reject an offer or amended offer of compensation must serve on the acquiring authority, within 60 days after service of the offer or amended offer, a notice in an approved form rejecting the offer.
(2)If notice of rejection is not given within that time, the offer or amended offer, as the case may be, is deemed to have been accepted.
Section 220 provides the mechanisms by which the amount of compensation to be paid may be determined if the claimant rejects an offer or amended offer of compensation. It provides:
220. Rejected offer, how compensation determined in case of
If a notice rejecting an offer or amended offer of compensation is served on an acquiring authority, the compensation payable to the claimant may be determined by any one of the following methods -
(a)by agreement between the acquiring authority and the claimant;
(b)by an action for compensation by the claimant against the acquiring authority in accordance with this Part;
(c)by reference of the claim to the State Administrative Tribunal in accordance with this Part.
Section 221 provides a mechanism for the determination of the compensation to be paid if the acquiring authority fails to serve an offer of compensation within 120 days of the service of the claim or any amended claim or the provision of further particulars of the claim. It provides:
221. If offer not made within time limit, claimant may commence proceedings
(1)If an acquiring authority fails to serve on a claimant an offer of compensation within 120 days after the relevant day, the claimant may either -
(a)institute an action for compensation against the acquiring authority; or
(b)refer the claim for the compensation to the State Administrative Tribunal.
(2)For the purposes of this section, the relevant day is -
(a)if no notice disputing the claim was served - the latest of -
(i)the day of service of the claim; or
(ii)the day of service of any amendment to the claim; or
(iii)the day of compliance with any requirement for further particulars;
or
(b)if the title of claimant was disputed and the Supreme Court upheld the claimant's title in whole or in part under section 216 - the day of the judgment.
Section 222 provides that after giving 30 days notice of its intention the acquiring authority may apply to the Tribunal for a direction as to the compensation payable if a claimant rejects an offer or amended offer of compensation and does not, within six months after service of notice rejecting the offer or amended offer, institute an action for compensation or refer the claim to the Tribunal. It provides:
222.Claimant failing to commence proceedings after rejecting offer
(1)If a claimant -
(a)rejects an offer or amended offer in accordance with section 219; and
(b)does not, within 6 months after service of the notice of rejection, institute an action for compensation against the acquiring authority or refer the claim for compensation to the State Administrative Tribunal,
the acquiring authority may, after giving 30 days notice to the claimant, apply to the State Administrative Tribunal for a direction.
(2)The State Administrative Tribunal may direct either that the offer is to be accepted by the claimant or that the claim is to be heard and determined by the State Administrative Tribunal.
(3)An application must be accompanied by the rejected offer and the claim for compensation.
[(4) deleted]
(5)If the State Administrative Tribunal determines that the claim is to be heard by it and the claimant fails to make a valid appointment of an assessor, the President of the State Administrative Tribunal may, in specifying who is to constitute the Tribunal, choose any consenting person as if the person had been appointed as an assessor by the claimant.
(6)If the claimant, after due notice, fails to attend the hearing, the Principal Registrar of the Supreme Court, or some person nominated by him or her, is to represent the claimant, and may act on the claimant’s behalf in all matters relating to the claim or the hearing.
(7)Any moneys payable as compensation are to be paid into the Supreme Court, and are to remain there subject to section 249.
Section 223 regulates proceedings by claimants for compensation. It provides:
223. Court action for compensation, commencing and procedure on
(1)A claimant may not commence or maintain an action for compensation except as provided in section 220 or 221.
(2)A claimant may not commence proceedings unless he or she has given the acquiring authority 30 days notice.
(3)If a person is entitled to bring an action for compensation under this Part, the action may be commenced and maintained in a court of competent jurisdiction and is to be heard and determined in the same manner as ordinary actions, with ordinary rights of appeal in regard to the amount of compensation awarded or to any question of law or fact or of mixed law and fact, except that no question is to be determined by a jury.
(4)If an action for compensation has been instituted in respect of the taking of an interest in any portion of land, the court may, on the application of the defendant, by order direct any other person claiming compensation in respect of the taking of any interest in that portion of land, or who appears to have had, at the date of the taking, an interest in that portion of land, to join as a plaintiff in the action within a time specified in the order.
(5)If a person so ordered fails to join as a plaintiff in the action within the time specified in the order, he or she is absolutely debarred thereafter from instituting an action for compensation against the defendant or from referring to the State Administrative Tribunal any claim for compensation in respect of that portion of land.
(6)If, because of the joinder of a new plaintiff or for any other reason, the total compensation claimed in an action for compensation exceeds the jurisdiction of the court concerned -
(a)that court is to refrain from proceeding further with the action; and
(b)the action may, on application by any party to a court of competent jurisdiction, be removed to that court and is to proceed in that court as if it had been instituted in that court.
(7)If the title of the claimant to an interest or part of an interest is being disputed, the proceedings under this section, unless the claimant admits the objection to his or her title, are to be adjourned pending the judgment of the Supreme Court on that issue under section 216.
(8)On the trial of the action, the court is to -
(a)determine the amount of compensation payable by the defendant to the plaintiff in respect of the taking of the interest in land, having regard solely to the provisions of this Part and in particular to the matters prescribed in Division 5 and section 256; and
(b)if 2 or more persons are entitled to share the compensation - determine the amount payable to each person and the manner in which it is to be paid.
(9)The costs of the action are at the discretion of the court.
So, in general (and somewhat imprecise) terms the scheme of Part 10 of the Act is as follows:
1.Every person having an interest in land which is compulsorily taken is entitled to compensation from the acquiring authority.
2.Claims for compensation for land taken must be made within six months of the registration of the relevant taking order.
3.Claims for compensation must contain certain specified information and must be served upon the acquiring authority.
4.Within 90 days of receiving a claim for compensation the acquiring authority must cause a report to be prepared with respect to the value of the interest taken, and then as soon as possible thereafter, make an offer of compensation.
5.If the acquiring authority does not make an offer of compensation within 120 days of the service of the claim for compensation, the claimant may commence legal proceedings for compensation or refer the claim for compensation to the Tribunal.
6.If a claimant receiving an offer of compensation from an acquiring authority does not serve notice rejecting that offer within 60 days of its receipt, the offer is deemed to have been accepted.
7.If an offer of compensation is rejected by the claimant, the amount of compensation may be determined either by:
(a)agreement; or
(b)an action for compensation commenced by the claimant in a court of competent jurisdiction; or
(c) by reference of the claim to the Tribunal by the claimant.
8.If a claimant rejects an offer of compensation and does not within six months commence proceedings claiming compensation in a court or refer the claim to the Tribunal, after giving 30 days notice to the claimant the acquiring authority may apply to the Tribunal for a direction as to the amount of compensation payable.

The grounds of appeal

There are a number of grounds of appeal. It is unnecessary to set them out. As developed in argument, they raise three issues which require resolution:
1.Did the Tribunal lack jurisdiction because the taking order had not been amended or reissued so as to exclude the land invalidly taken?
2.Did the Tribunal lack jurisdiction because WAPC had made no 'offer' of compensation in respect of the land taken?
3.Did the exercise of the Tribunal's discretion miscarry?

The validity of the taking order

The landowners contend that the taking order issued by WAPC on 5 August 2003 is invalid, because it has not been amended to exclude those parts of Lots 7, 8 and 30 which were not validly taken (and which are now Lots 607, 608 and 32 respectively). The argument relies heavily upon the following passage from the reasons of the plurality in the High Court:[9]
To the extent that the taking order so expressed includes the portions of lots 7 and 8 (and 30) zoned under the PRS which are invalidly taken, the total cancellation of the relevant certificates of title referred to in the taking order is erroneous. This would appear to give rise to a claim in personam, a personal equity in each of the appellants of the kind referred to in Frazer v Walker, to rectify the Register. The necessary mechanical steps would likely include a subdivision so as to isolate the zoned portions of the lots from the portions reserved under the PRS. The taking order and the relevant entries in the Register would require consequential amendment to achieve a transfer of ownership, to the appellants, of the portions zoned under the PRS. Some such course has already been followed in respect of lot 30, which is now back in the ownership of the second appellants.[10] (footnotes omitted)
[9] French CJ, Gummow, Crennan and Bell JJ.
[10] Graham v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 ('Reasons') [43].
The landowners argue that the reference to the taking order requiring consequential amendment connotes that it is invalid unless and until amended.
This argument misconstrues the relevant portion of the reasons. The reference to the amendment of the taking order is made in the context of the likely mechanical steps which would need to be taken to restore the landowners to registered proprietorship of the portions of Lots 7, 8 and 30 not validly taken. This part of the reasons of the plurality is not concerned with the validity of the taking order in relation to what I have described as New Lots 7, 8 and 30. It is clear from other portions of the reasons of the plurality that they held that the taking order was valid with respect to that land and had the effect of transferring title to the acquiring authority to the land validly taken on 8 August 2003.
The plurality summarised their reasons in these terms:
These reasons seek to show that the taking order is valid with respect to the reserved portions of lots 7, 8 and 30, and the whole of lot 49, but invalid in respect of the zoned portions of lots 7, 8 and 30, and accordingly, the appeal succeeds in part.[11]
[11] Reasons [9].
Further, the passage upon which the landowners rely comes immediately after the following passage in the reasons:
The findings that the taking order, insofar as it concerns the reserved portions of the lots, is valid, and that it is invalid insofar as it concerns the portions of lots 7 and 8 (and 30) zoned under the PRS, have the consequence that the taking order cannot operate under s 179(b) of the Land Act to extinguish the whole of the appellants' interests in their land. The extinguishment effect of s 179(b) can only apply to so much of the land as is validly included in the taking order as having been taken. The taking order recites relevantly that Certificates of Title Volume 1936 Folio 292 (lot 7), Volume 1936 Folio 291 (lot 8) and Volume 1838 Folio 943 (lot 30) 'are to be totally cancelled and new Certificates of Title are to be issued for the lands taken'.[12]
[12] Reasons [42].
Section 179 of the Act relevantly provides:
179.Registration of taking order, effect of
On the registration of a taking order in relation to land -
(a) the order has effect according to its terms; and
(b) if the order provides that the land is taken - every registered and unregistered interest in the land not preserved under section 178(2)(a) is extinguished, and each person who formerly held such an interest has that holding converted into a claim for compensation under Part 10…
It is therefore clear that in the passage immediately above the plurality held that s 179(b) of the Act had operated to extinguish the landowners' interest in the portions of land validly taken - that is, New Lots 7, 8 and 30.
The tenor and effect of the plurality's decision is put beyond doubt by their conclusions which were expressed in the following terms:
The taking order of 5 August 2003 is valid in respect of the reserved portions of lots 7, 8 and 30 and the whole of lot 49. It is invalid in respect of the zoned portions of lots 7, 8 and 30. This result constitutes substantial but partial success for the appellants as the WAPC's submissions have succeeded in respect of the reserved portions of lots 7, 8 and 30 and the whole of lot 49…[13]
[13] Reasons [49].
Further, it is significant that Hayne J disagreed with the plurality because of his view that the taking order could not be read down in its operation so as to apply only to the portions of the lots which the acquiring authority was authorised to take. It is clear from the reasons of the court as a whole that the plurality thought otherwise and held that the taking order was valid in respect of the land which I have described as New Lots 7, 8 and 30, and Lot 49. It follows that the landowners' submission to the contrary is contrary to the majority decision of the High Court and must be rejected.

Does the Tribunal lack jurisdiction because no offers of compensation were made for the land compulsorily taken?

The jurisdiction of the Tribunal which WAPC sought to invoke is that conferred by s 222 of the Act. By the express terms of that section, the jurisdiction arises when:
(a)a claimant for compensation rejects an offer of compensation; and
(b)does not, within six months after service of the notice of rejection, either institute an action for compensation or refer the claim to the Tribunal.
The landowners contend that these two requirements are facts upon which the jurisdiction of the Tribunal depends. They contend that neither jurisdictional fact exists because there was no offer of compensation in respect of the land compulsorily taken, within the proper meaning given to that expression in Part 10 of the Act, and therefore no rejection by the landowners of an offer of compensation within the meaning properly given to that expression in Part 10 of the Act. It is conceded, however, that these contentions only apply to New Lots 7, 8 and 30, and do not apply to Lot 49.[14] That is because the argument relies upon the fact that the offers of compensation made by WAPC in 2004 were made in respect of the land the subject of the taking order and therefore included, in the case of Lots 7, 8 and 30, an offer of compensation for land not validly taken. However, as all of Lot 49 was validly taken, in respect of that lot there is no discrepancy between the terms of the offer of compensation and the land actually taken.
[14] Appeal transcript p.9.

'Offer of compensation' - meaning

Neither the word 'offer' nor the expression 'offer of compensation' are expressly defined by the Act. Accordingly, their meaning is to be derived by the application of ordinary principles of statutory construction. Weight is to be given to the natural and ordinary meaning of the words used by the legislature, viewed in a way that is consistent with the language and purpose of all of the provisions of the statute and by reference to the language of the statute viewed as a whole.[15] Further, any construction that would promote the purpose or object, expressly stated or otherwise, underlying the written law should be preferred to a construction that would not.[16]
[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
[16] Interpretation Act 1984 (WA), s 18.
Where the words used by the legislature have a legal meaning as well as an ordinary meaning, the legal meaning should be taken into account.[17] Further, where a technical legal word is used in a statute, it is to be presumed that the legislature intends the word to have its ordinary common law meaning unless a contrary intention clearly appears from the context in which the word is used.[18]
[17] Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2008] WASCA 107 [14] (Steytler P, Buss JA agreeing); Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475, 483 ‑ 484 (Priestly JA, agreeing with McHugh JA, Kirby P dissenting).
[18] Barker v The Queen (1983) 153 CLR 338, 341 (Mason J), 356 (Brennan and Deane JJ), where the High Court applied the common law meaning of the word 'trespasser' where the word was not defined in a statute; Attorney‑General (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469, 531 (O'Connor J).
The word 'offer', which is central to the scheme embodied in Part 10 of the Act, and which is expressly used in, relevantly, s 217, s 219, s 221 and s 222 of the Act, has a well‑known legal meaning. The making of an offer is the first step in the process of formation of a binding contract. However, in order to be effective, as a matter of law, the offer must be made with the intention of creating legal relations in the event of acceptance, and must be made in terms which are capable of giving rise to a binding contract upon acceptance.[19]
[19] See, for example, Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457.

There is every reason why the word 'offer', used in the expression 'offer of compensation', should be given this well‑known meaning in Part 10 of the Act. Section 219 of the Act provides an unequivocal indication of legislative intention to that effect. It provides, in effect, that if notice of rejection of an offer of compensation is not given within 60 days after service of the offer, the offer is deemed to have been accepted. So, the legislature has used the language of the law of contract, in a context in which it is clear that the legislature intended that acceptance would give rise to enforceable rights and obligations. It follows that in order to come within the terms of Part 10 of the Act, an offer of compensation must be made by an acquiring authority in terms capable of giving rise to enforceable obligations in the event of acceptance.
Turning to the expression 'offer of compensation', the meaning properly given to that expression must reflect the entitlement to compensation conferred upon every person having an interest in land compulsorily taken under the Act. Viewed in that context, an 'offer of compensation' must be an offer which, if accepted, gives rise to enforceable rights and obligations which satisfy the right to compensation conferred by the Act, and the corresponding obligation of the acquiring authority to pay compensation. It follows that the absolute minimum content of an 'offer of compensation' must at least include an offer to pay a sum of money in satisfaction of the claimant's right to claim compensation for loss of the interest in land compulsorily taken.

Has WAPC made offers of compensation in respect of the land compulsorily taken?

As I have noted, WAPC properly concedes that the compromise proposal contained in its letter of 30 December 2010 is not an offer of compensation within the meaning of Part 10 of the Act in respect of any of the land compulsorily taken. It follows that the only offers which are capable of constituting offers of compensation within Part 10 of the Act are those made by WAPC in 2004. Those offers responded to the claims made by the landowners for compensation. Those claims related to all the land the subject of the taking order - that is, the lots specified in the order. The offers are expressed the same way, and clearly and unequivocally relate to all of the land the subject of the taking order. Put another way, both the claims for compensation and the offers of compensation relate to the land purportedly taken by the taking order, rather than the land effectively taken by that order. In the case of Lot 49 there is no difference between the land purportedly taken, and the land effectively taken, but in the case of Lots 7, 8 and 30, it has now been determined that, unbeknown to the parties at the time, only part of each of those lots was effectively taken.
It follows that, in the case of the offers of compensation made in respect of Lots 7, 8 and 30, the offer did not specify an amount of compensation for the interest extinguished by the operation of s 179 of the Act. Those interests are the landowners' interest in the land which is now the subject of New Lots 7, 8 and 30. However, the offers were expressly made to compensate the landowners for their loss of their interest in Lots 7, 8 and 30, which includes the land which I describe as New Lots 7, 8 and 30, but also includes Lots 32, 607 and 608, which were not effectively taken, and which the landowners retain.
The offers made by WAPC in 2004 in respect of Lots 7, 8 and 30 were not 'offers of compensation' within the meaning of Part 10 of the Act because they did not offer an amount of money to compensate the landowners for their interests in the land which was compulsorily taken. The sums offered were in respect of different interests - namely, the landowners' interests in the land compulsorily taken, together with the landowners' interests in other land which was not effectively taken.
As the offers made by WAPC in 2004 were not 'offers of compensation' within the meaning of that expression of Part 10 of the Act, except in the case of the offer relating to Lot 49, it cannot be said that the landowners rejected an offer of compensation in accordance with s 219, or that they failed to institute proceedings for compensation or to refer the claim for compensation to the Tribunal within six months after rejection of that offer. It follows that in the case of New Lots 7, 8 and 30, the events to which reference is made in s 222(1) had not occurred before WAPC commenced proceedings in the Tribunal, and so far as appears on the information before this court, have still not occurred.

Is the rejection of an offer of compensation a fact upon which the Tribunal's jurisdiction depends?

The final question which must be addressed with respect to this part of the case is whether the rejection of an offer of compensation within the meaning of Part 10 of the Act is a condition upon which the jurisdiction of the Tribunal depends. That question is also to be resolved as a question of statutory construction, according to the principles I have already described. This aspect of the case is quite straightforward however. The natural and ordinary meaning of the language used in s 222 conditions the Tribunal's jurisdiction upon the existence of the facts specified in subsection (1). Any doubt in that regard is dispelled by subsection (2) which empowers the Tribunal to direct that the offer of compensation is to be accepted by the claimant. The conferral of that power upon the Tribunal presupposes that there is in existence an offer of compensation within the meaning of Part 10 of the Act which is capable of acceptance by the claimant. In the case of New Lots 7, 8 and 30 there is no such offer, because the offers of compensation made by WAPC in 2004 do not relate to those lots, but to larger areas of land which include the portions of those lots retained by the landowners.
This reading of s 222 is reinforced by consideration of its statutory context within Div 3 of Pt 10 of the Act, including ss 217 ‑ 221, to which I have already referred.
For these reasons it should be concluded that there has never been an offer of compensation in accordance with Part 10 of the Act in respect of the land compulsorily taken, which comprises New Lots 7, 8 and 30, with the result that the Tribunal has no jurisdiction to determine the compensation payable in respect of those lots pursuant to s 222 of the Act. However, there has been a valid offer of compensation in respect of Lot 49, and the Tribunal therefore has jurisdiction to determine the compensation payable for the compulsory taking of that lot.

Leave to appeal

The principles governing the grant of leave to appeal from decisions of the Tribunal are well established.[20] As it has been concluded that the Tribunal lacks jurisdiction to determine the amount of compensation payable in respect of three of the four parcels of land resumed, substantial injustice would occur if the Tribunal's erroneous conclusion was not corrected, and leave to appeal should be granted.
[20] See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97.

The exercise of the discretion under s 50 of the SAT Act

As the Tribunal lacks jurisdiction to determine the question of the compensation payable in respect of the compulsory taking of New Lots 7, 8 and 30, there is only a live issue with respect to the exercise of the discretion under s 50 of the SAT Act in relation to the compensation payable for the taking of Lot 49.
Section 50 of the SAT Act provides:
50.More appropriate forum
(1)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.
(2)The Tribunal’s power to make an order under subsection (1) is exercisable only by a judicial member.
(3)If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.
(4)The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative.
The section confers a discretion to be exercised by reference to the particular circumstances of the case before the Tribunal. The principles upon which an appellate court will interfere with a discretionary judgment are well known and often cited by reference to the well‑known passage from House v The King:[21]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[21] House v The King (1936) 55 CLR 499, 505 per Dixon, Evatt and McTiernan JJ.
In this case the President of the Tribunal weighed a number of discretionary considerations for the purpose of determining whether it was more appropriate for the quantum of compensation payable to be determined in the Tribunal or in the Supreme Court. His analysis of those factors was undertaken upon his assumption that the Tribunal had jurisdiction to determine the compensation payable in respect of all four lots taken. For the reasons given, that assumption was not accurate and, in fact, the Tribunal only has jurisdiction to determine the compensation payable for the taking of Lot 49. It follows that the facts relevant to the exercise of the discretion are materially different to those assumed by the Tribunal and the exercise of the discretion must be set aside, and the matter remitted to the Tribunal for further consideration. Relevant to those considerations will be the capacity and intention of the landowners to commence proceedings in the Supreme Court claiming compensation for their interests in the land which was compulsorily taken, including three parcels of land in respect of which the Tribunal has no jurisdiction.

Does the Supreme Court have jurisdiction to entertain a claim for compensation in relation to Lot 49?

On behalf of WAPC it is contended that the matter should not be remitted to the Tribunal to re‑exercise the discretion to strike out the proceedings before the Tribunal insofar as they relate to the compensation payable in respect of Lot 49 because there is no court which has jurisdiction to determine a claim for compensation and therefore the matter cannot be more appropriately dealt with by a court. WAPC asserts that once the jurisdiction of the Tribunal has been invoked pursuant to s 222 of the Act, the claimant loses irrevocably and forever the capacity to commence proceedings claiming compensation in a court pursuant to either s 220 or s 221 of the Act.
The same proposition was put to the Tribunal and rejected.[22] The Tribunal concluded that if the power to strike out the proceedings conferred by s 50 of the SAT Act was exercised, there would be nothing to prevent a claimant for compensation commencing proceedings in a court of competent jurisdiction pursuant to either s 220 or s 221 of the Act, and that, in an appropriate case, an order striking out the proceedings before the Tribunal could be made conditional upon such an action being commenced within a specified time. In my view, this conclusion was correct.
[22] Western Australian Planning Commission and Graham [2013] WASAT 112 [23].
There are no express provisions in the Act which would have the effect for which WAPC contends. Rather, the proposition is advanced on the basis that it is implicit in the scheme of Part 10 which creates alternative mechanisms for the determination of compensation.
It might readily be accepted (and the Tribunal did accept) that it is implicit in the scheme of Part 10 of the Act that the alternative mechanisms for the determination of compensation cannot be exercised simultaneously. However, it is quite different to assert, as WAPC asserts, that the invocation of any one mechanism of the determination of compensation deprives the parties of the capacity to invoke any other mechanism thereafter, even if the mechanism first invoked is renounced or terminated. An implication of the latter kind cannot be drawn merely from the existence of alternative mechanisms for the determination of compensation. There would have to be something in the language of the Act to compel the conclusion that the jurisdiction of a court of competent jurisdiction is lost forever if proceedings are commenced in the Tribunal. There is nothing in the language of Part 10 which would suggest such a conclusion. Further, it may be taken that when the legislature amended Part 10 of the Act so as to confer jurisdiction upon the Tribunal, it would have been aware of the power conferred upon the Tribunal by s 50 of the SAT Act. That power is entirely consistent with a view of Part 10 to the effect that the commencement of proceedings in the Tribunal with respect to compensation does not, of itself, deprive a court of the jurisdiction to entertain a claim for compensation forever after. So, in respect of Lot 49, if the Tribunal were to strike out the proceedings before it, the landowners could commence an action in a court of competent jurisdiction claiming compensation for the taking of that lot. It follows that s 50 of the SAT Act still applies to the proceedings before the Tribunal, and it will be for the Tribunal to determine whether, and if so on what terms, the powers conferred by that section should be exercised.

Conclusion

For these reasons the appeal should be allowed and the decision of the Tribunal set aside. The matter should be remitted to the Tribunal for reconsideration of the application to strike out that part of the proceedings which is within the jurisdiction of the Tribunal, namely, the application for the determination of the compensation payable in respect of Lot 49.
BUSS JA: The first appellants (Mr and Mrs Graham) and the second appellant (Mandurah Enterprises) have applied for leave to appeal to this court from a decision of the State Administrative Tribunal (the Tribunal) constituted by Chaney J.
On 23 May 2012, the respondent, the Western Australian Planning Commission (WAPC), commenced proceedings in the Tribunal against Mr and Mrs Graham and Mandurah Enterprises (collectively the Land Owners) pursuant to s 222 of the Land Administration Act 1997 (WA) (the LA Act). In the application WAPC sought a determination by the Tribunal as to the amount of compensation payable by WAPC to the Land Owners in respect of the compulsory acquisition of certain land.
On 5 February 2013, the Land Owners brought an application in the Tribunal, pursuant to s 50 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), to strike out WAPC's proceedings and to refer the Land Owners' claim for compensation to the Supreme Court.
On 12 July 2013, the primary judge ordered that the Land Owners' application be dismissed. His Honour published written reasons for decision. See Western Australian Planning Commission and Graham [2013] WASAT 112.
The Land Owners' application for leave to appeal to this court relates to his Honour's decision to dismiss their application.

The reasons of Martin CJ

I have read the reasons of Martin CJ with whom Beech J has expressed his agreement.
The relevant facts and circumstances, the reasons of the Tribunal, the grounds of appeal and the submissions of the parties are set out in his Honour's reasons. I will not repeat them except to the extent necessary to explain my reasons.
I agree with Martin CJ, for the reasons he gives, that:

(a)leave to appeal from the Tribunal's decision should be granted;
(b)the taking order issued by WAPC on 5 August 2003 was valid in respect of the land in New Lots 7, 8 and 30 and Lot 49;
(c)the proposal for compromise contained in WAPC's letter dated 30 December 2010 was not an offer of compensation, within pt 10 of the LA Act, in respect of any of the land compulsorily acquired from any of the Land Owners;
(d)the offers made by WAPC in 2004 in respect of Lots 7, 8 and 30 were not offers of compensation, within pt 10 of the LA Act;
(e)the offer made by WAPC in 2004 in respect of Lot 49, which was owned by Mandurah Enterprises, was an offer of compensation, within pt 10 of the LA Act;
(f)WAPC has never made an offer of compensation, in accordance with pt 10 of the LA Act, in respect of any of the land in New Lots 7, 8 and 30 and, consequently, the Tribunal has no jurisdiction under s 222 of the LA Act to determine the amount of compensation payable in respect of those lots; and
(g)the offer made by WAPC in 2004 in respect of Lot 49 was a valid offer of compensation, in accordance with pt 10 of the LA Act, and consequently the Tribunal has jurisdiction under s 222 of the LA Act to determine the amount of compensation payable in respect of that lot.

I dissent on one issue, namely whether the matter should be remitted to the Tribunal for the purpose of the Tribunal re‑exercising the discretion under s 50 of the SAT Act to strike out WAPC's proceedings in the Tribunal and to refer Mandurah Enterprises' claim for compensation to the Supreme Court, to the extent the proceedings and the claim relate to Lot 49.
In my opinion, the matter should not be remitted to the Tribunal.
The reasons for my dissenting opinion are as follows.

The relevant provisions of the SAT Act

Section 7 of the SAT Act establishes the Tribunal.
By s 8, the Tribunal has the jurisdiction described in pt 3.
Part 3 is headed 'Jurisdiction of the Tribunal' and comprises s 13 ‑ s 31.
Section 13 specifies the sources of the Tribunal's jurisdiction. It provides, relevantly:
(1)A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
(2)In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter.
The term 'enabling Act' is defined in s 3(1) to mean 'another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act'.
By s 14, a matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction.
Section 15(1) provides that if the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction.
By s 16(1), the Tribunal, in exercising its original jurisdiction, is to deal with a matter in accordance with the SAT Act and the enabling Act. Section 16(2) states that the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's original jurisdiction.
Section 17(1) provides that if the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. As the long title to the SAT Act states, and as revealed by the scheme of that Act, the decisions which the Tribunal has jurisdiction to review are, in general, certain administrative decisions. Section 27 describes the nature of review proceedings:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

By s 5, if there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails.
Part 4 is headed 'Tribunal's procedures' and comprises s 32 ‑ s 104.
Section 50 provides:
(1)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.
(2)The Tribunal’s power to make an order under subsection (1) is exercisable only by a judicial member.
(3)If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.
(4)The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative.

The relevant provisions of the LA Act

Part 10 of the LA Act is headed 'Compensation' and comprises s 202 ‑ s 258.
By s 202(1), every person having an interest in land which is taken under pt 9 is entitled, subject to pt 10, to compensation for the interest from the acquiring authority.
Section 207(1) provides, relevantly, that unless a direction for the hearing of a claim is made by the Tribunal under s 210, a person is not entitled to make a claim for compensation under pt 10 more than six months after the registration of the relevant taking order, for a claim under s 202.
A claim for compensation under pt 10 must be in an approved form, stating the matters specified in s 211(1), and must be served on the acquiring authority and accompanied by the documents specified in s 211(2).
Section 217(1) provides, relevantly, that if a claim is made under pt 10 and the acquiring authority does not dispute the claimant's title to the interest in land, the authority must, within 90 days after the service of the claim or, if further particulars of the claim were required pursuant to s 214, within 90 days after the particulars were furnished, cause the claim to be examined, and a report made as to the value of the interest and as to the damage sustained by the claimant by reason of the taking.
By s 217(3), relevantly, as soon as possible after a report under s 217(1) is received by the acquiring authority, it must serve on the claimant in an approved form an offer of compensation with respect to the interest in the land in question.
Section 218 states that at any time before a claim for compensation is settled in full, if proceedings for determination of the amount of compensation have not been commenced in any court or before the Tribunal, the claimant may, with notice to the acquiring authority, amend the claim only as to the amount claimed and the authority may, with notice to the claimant, amend the offer of compensation.
By s 219(1), a claimant who wishes to reject an offer or amended offer of compensation must serve on the acquiring authority, within 60 days after service of the offer or amended offer, a notice in an approved form rejecting the offer. By s 219(2), if notice of rejection is not given within that time, the offer or amended offer, as the case may be, is deemed to have been accepted.
Section 220 is concerned with the manner in which compensation is to be determined if a notice rejecting an offer or amended offer of compensation is served on an acquiring authority. Section 220 reads:
If a notice rejecting an offer or amended offer of compensation is served on an acquiring authority, the compensation payable to the claimant may be determined by any one of the following methods ‑
(a)by agreement between the acquiring authority and the claimant;
(b)by an action for compensation by the claimant against the acquiring authority in accordance with this Part;
(c)by reference of the claim to the State Administrative Tribunal in accordance with this Part. (emphasis added)
Section 221(1) provides:
If an acquiring authority fails to serve on a claimant an offer of compensation within 120 days after the relevant day, the claimant may either ‑
(a)institute an action for compensation against the acquiring authority; or
(b)refer the claim for the compensation to the State Administrative Tribunal.
By s 221(2), for the purposes of s 221, the 'relevant day' is, relevantly, the latest of the day of service of the claim, or the day of service of any amendment to the claim, or the day of compliance with any requirement for further particulars.
Section 222 makes provision for the circumstance that a claimant fails to commence proceedings after rejecting an offer or amended offer. Section 222 reads, relevantly:
(1)If a claimant ‑
(a)rejects an offer or amended offer in accordance with section 219; and
(b)does not, within 6 months after service of the notice of rejection, institute an action for compensation against the acquiring authority or refer the claim for compensation to the State Administrative Tribunal,
the acquiring authority may, after giving 30 days notice to the claimant, apply to the State Administrative Tribunal for a direction.
(2)The State Administrative Tribunal may direct either that the offer is to be accepted by the claimant or that the claim is to be heard and determined by the State Administrative Tribunal.
(3)An application must be accompanied by the rejected offer and the claim for compensation.
[(4)deleted]
(5)If the State Administrative Tribunal determines that the claim is to be heard by it and the claimant fails to make a valid appointment of an assessor, the President of the State Administrative Tribunal may, in specifying who is to constitute the Tribunal, choose any consenting person as if the person had been appointed as an assessor by the claimant.
Section 223 is concerned with the commencement of, and the procedure to be followed in, an action for compensation by the claimant against the acquiring authority in a court. Section 223 reads, relevantly:
(1)A claimant may not commence or maintain an action for compensation except as provided in section 220 or 221.
(2)A claimant may not commence proceedings unless he or she has given the acquiring authority 30 days notice.
(3)If a person is entitled to bring an action for compensation under this Part, the action may be commenced and maintained in a court of competent jurisdiction and is to be heard and determined in the same manner as ordinary actions, with ordinary rights of appeal in regard to the amount of compensation awarded or to any question of law or fact or of mixed law and fact, except that no question is to be determined by a jury. (emphasis added)
Section 224 makes provision with respect to the procedure to be followed upon a claimant referring his or her claim to the Tribunal under s 220 or s 221. Section 224 reads, relevantly:
(1)A claimant who rejects an offer and wishes to refer his or her claim to the State Administrative Tribunal under section 220 must, with or after the service of the notice rejecting the offer, serve on the acquiring authority notice in an approved form of the appointment of an assessor together with copies of the assessor’s consent and declaration.
(2)A claimant who wishes to refer his or her claim to the State Administrative Tribunal under section 221 must serve on the acquiring authority notice in an approved form of the appointment of an assessor together with copies of the assessor’s consent and declaration.
Division 4 of pt 10 comprises s 226 ‑ s 231 and makes provision with respect to the constitution of the Tribunal when the Tribunal is dealing with a claim for compensation under pt 10. For example, s 227 empowers the President of the Tribunal in effect to direct that persons appointed as assessors by the claimant and the acquiring authority, pursuant to s 224, are to be persons by whom the Tribunal is to be constituted, for the purposes of pt 10, even though the persons do not hold office as members of the Tribunal.
Division 5 of pt 10 comprises s 241 ‑ s 244 and prescribes the manner in which compensation is to be assessed. Section 241(1) provides that, in determining the amount of compensation (if any) to be offered, paid or awarded for an interest in land taken under pt 9, regard is to be had solely to the matters referred to in s 241.

The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (the Conferral of Jurisdiction Act) commenced on 1 January 2005.
The relevant provisions of the SAT Act (in particular, s 50) also commenced on 1 January 2005.
Prior to the enactment and commencement of the Conferral of Jurisdiction Act, a person having an interest in land which was taken under pt 9 of the LA Act who had served on the acquiring authority a notice rejecting an offer or amended offer of compensation was entitled, subject to pt 10, to have the amount of compensation determined:
(a)by an action for compensation by the claimant against the acquiring authority in a court of competent jurisdiction in accordance with pt 10; or
(b)by reference of the claim to the Compensation Court in accordance with pt 10.
The Compensation Court was established under div 4 of pt 10 of the LA Act.
Upon the commencement of the relevant provisions of the SAT Act and the Conferral of Jurisdiction Act, the Tribunal assumed jurisdiction over matters that previously were referred to the Compensation Court under the LA Act. The Conferral of Jurisdiction Act made numerous amendments to pt 10. The amendments principally involved replacing references to the Compensation Court with references to the Tribunal.

The interaction between s 50 of the SAT Act and those provisions of the LA Act which confer jurisdiction on the Tribunal and courts

The LA Act contains a detailed and exhaustive scheme for the adjudication of disputes between a claimant and an acquiring authority concerning the compensation to be paid or awarded to the claimant for an interest in land taken under pt 9 of the LA Act.
The scheme includes:
(a)the granting to the claimant of a right to elect whether the dispute should be determined by an action for compensation in a court of competent jurisdiction or by reference of the claim to the Tribunal; and
(b)if the claimant fails to make an election within a stipulated period, the granting to the acquiring authority of a right to apply to the Tribunal for a direction either that the acquiring authority's offer or amended offer is to be accepted by the claimant or that the claimant's claim is to be heard and determined by the Tribunal.
That is, the LA Act makes specific provision for the selection of the forum in which a compensation claim is to be dealt with.
By s 220 read with s 223 of the LA Act, a claimant who has served a notice on an acquiring authority rejecting an offer or amended offer of compensation may institute an action for compensation against the acquiring authority in a court of competent jurisdiction.
Alternatively, by s 220 read with s 224 of the LA Act, a claimant who has served a notice on an acquiring authority rejecting an offer or amended offer of compensation may refer the claim to the Tribunal.
By s 221(1), read with s 223 and s 224 of the LA Act, if an acquiring authority fails to serve on a claimant an offer of compensation within 120 days after the 'relevant day', as defined in s 221(2), the claimant may either:
(a)institute an action for compensation against the acquiring authority in a court of competent jurisdiction; or
(b)refer the claim for compensation to the Tribunal.
By s 223(1) of the LA Act, a claimant may not commence or maintain an action for compensation in a court of competent jurisdiction except as provided in s 220 or s 221.
By s 222(1) of the LA Act, if a claimant:
(a)rejects an offer or amended offer in accordance with s 219; and
(b)does not, within six months after service of the notice of rejection, institute an action for compensation against the acquiring authority in a court of competent jurisdiction or refer the claim for compensation to the Tribunal,
the acquiring authority has the right, after giving 30 days notice to the claimant, to apply to the Tribunal 'for a direction'.
The acquiring authority does not have a right, either under s 222(1) or any other provision of pt 10, to apply to a court of competent jurisdiction 'for a direction' or otherwise to institute an action in a court for the determination of the compensation to be paid or awarded to the claimant.
If the acquiring authority exercises its right under s 222(1) to apply to the Tribunal 'for a direction', the Tribunal is empowered to direct either that the acquiring authority's offer or amended offer is to be accepted by the claimant or that the claimant's claim is to be heard and determined by the Tribunal.
If the acquiring authority exercises its right under s 222(1) to apply to the Tribunal 'for a direction', the Tribunal is not empowered to direct that the claimant's claim is to be heard and determined by a court of competent jurisdiction.
So:
(a)If the claimant elects, within the stipulated period and otherwise in accordance with pt 10, to institute an action for compensation in a court of competent jurisdiction, the court (and not the Tribunal) has jurisdiction in respect of the claim.
(b)Conversely, if the claimant elects, within the stipulated period and otherwise in accordance with pt 10, to refer the claim to the Tribunal, the Tribunal (and not a court of competent jurisdiction) has jurisdiction in respect of the claim.
(c)If the claimant fails to institute an action for compensation in a court of competent jurisdiction or to refer the claim for compensation to the Tribunal, within the stipulated period and otherwise in accordance with pt 10, and the acquiring authority exercises its right under s 222(1) to apply to the Tribunal 'for a direction', the Tribunal (and not a court of competent jurisdiction) has jurisdiction in respect of the claim.
Neither the Supreme Court nor any other court has jurisdiction in respect of a claim for compensation under pt 10 unless the claimant has invoked s 220 or s 221(1), read with s 223 of the LA Act, within the stipulated period and otherwise in accordance with pt 10.
The LA Act is an 'enabling Act' (as defined in s 3(1) of the SAT Act) in that, relevantly, s 220, s 221, s 222 and s 224 of the LA Act, when invoked by the claimant or the acquiring authority (as the case may be) in relation to the Tribunal, confer jurisdiction on the Tribunal under pt 10 of the LA Act in respect of the claim for compensation.
The proceedings commenced by WAPC against the Land Owners in the Tribunal on 23 May 2012 were proceedings in the Tribunal's original jurisdiction. Those proceedings were not within the Tribunal's review jurisdiction, as described in s 17(1) of the SAT Act.
When a claimant invokes s 220 or s 221(1), read with s 224 of the LA Act, in relation to the Tribunal, the Tribunal, in determining the amount of compensation, does not, expressly or necessarily, review a decision by the acquiring authority. Rather, the Tribunal assesses and decides upon the amount of compensation properly to be paid or awarded to the claimant for the interest in land that has been taken.
When an acquiring authority invokes s 222(1) of the LA Act, the Tribunal, in deciding upon the direction to be given, will necessarily evaluate whether the offer or amended offer properly compensates the claimant for the interest in land that has been taken. However, the Tribunal, in performing that task and deciding upon the direction to be given, is not, expressly or necessarily, involved in a review of a decision of the acquiring authority. Rather, the Tribunal's focus is upon the determination of the amount of compensation properly to be paid or awarded to the claimant.
In the present case:
(a)In 2004 WAPC made a valid offer of compensation, in accordance with pt 10 of the LA Act, in respect of Lot 49.
(b)Mandurah Enterprises rejected WAPC's offer in respect of Lot 49 in accordance with s 219 of the LA Act.
(c)Mandurah Enterprises did not, within six months after service of the notice of rejection of the offer in respect of Lot 49, institute an action for compensation against WAPC in a court of competent jurisdiction, in accordance with s 220 read with s 223 of the LA Act, or refer the claim for compensation to the Tribunal, in accordance with s 220 read with s 224 of the LA Act.
In these circumstances, s 222(1) of the LA Act conferred on WAPC, as the acquiring authority, the right, after giving 30 days notice to Mandurah Enterprises, to apply to the Tribunal for a direction in respect of Lot 49.
WAPC validly exercised its right under s 222(1) of the LA Act in respect of Lot 49 by giving 30 days notice to Mandurah Enterprises and then, on 23 May 2012, commencing the proceedings in question in the Tribunal.
The Tribunal therefore has jurisdiction under pt 10 of the LA Act in respect of Lot 49.
By s 222(2) of the LA Act, the Tribunal's jurisdiction in respect of Lot 49 involves the Tribunal directing either that WAPC's offer in respect of Lot 49 is to be accepted by Mandurah Enterprises or that Mandurah Enterprises' claim in respect of Lot 49 is to be heard and determined by the Tribunal.
Neither the Supreme Court nor any other court has jurisdiction under pt 10 in respect of Lot 49 because:
(a)Mandurah Enterprises rejected WAPC's offer and it did not institute an action for compensation in a court of competent jurisdiction within six months after service of the notice of rejection; and
(b)WAPC has made a valid application for a direction from the Tribunal in accordance with s 222(1).
Mandurah Enterprises did not invoke the jurisdiction of the Supreme Court by instituting an action for compensation against WAPC 'in accordance with [pt 10]', as specified in s 220(b), and s 223(1) prohibits Mandurah Enterprises from commencing or maintaining an action for compensation in any court of competent jurisdiction, except as provided in s 220 or s 221.
As WAPC has validly exercised its right under s 222(1), only the Tribunal has jurisdiction under pt 10 in respect of Lot 49.
Section 50(1) of the SAT Act empowers the Tribunal to 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'. Section 50(3) provides that if the Tribunal makes an order under s 50(1), 'it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so'.
In my opinion:
(a)s 50(1) and s 50(3) are predicated on the assumption that; and
(b)the Tribunal's powers under those provisions are conditional upon,
the other tribunal, the court or the other person referred to in s 50(1) and s 50(3) having jurisdiction to hear and determine the matter, or the relevant aspect of the matter, which is the subject of the pending proceeding before the Tribunal and which the Tribunal is giving consideration to striking out.
The existence of jurisdiction in the other tribunal, the court or the other person in question is necessarily implicit in the statutory text of s 50(1) and s 50(3). Further, the apparent purpose or object of those provisions, namely that there is a more appropriate forum in which the relevant matter, or the relevant part of the matter, should be adjudicated upon, would fail or be defeated if the other tribunal, the court or the other person does not have jurisdiction to hear and determine the relevant matter, or the relevant part of the matter.
Section 50 does not confer on another tribunal, a court or any other person jurisdiction to hear and determine a matter that is pending before the Tribunal in its original jurisdiction or review jurisdiction.

The general power in s 50 does not, in my opinion, empower the Tribunal to override the comprehensive scheme for the adjudication of disputes between a claimant and an acquiring authority that is embodied in pt 10 of the LA Act.
In the present case, s 50 does not empower the Tribunal:
(a)to override WAPC's valid exercise of the right granted to it under s 222(1) of the LA Act in relation to Lot 49; and
(b)to confer on the Supreme Court a jurisdiction which that court does not have under pt 10 of the LA Act in relation to Lot 49 because Mandurah Enterprises did not elect to invoke the court's jurisdiction in relation to Lot 49 by instituting an action for compensation against WAPC in accordance with pt 10.

It is not open to the Tribunal, in the present case, to decide, for the purposes of s 50(1), that the matter 'would be more appropriately dealt with by … a court'. This is because a condition precedent for enlivening the Tribunal's discretion under s 50(1) to strike out WAPC's proceedings (namely, the existence of jurisdiction in a court of competent jurisdiction) is not satisfied.
If an acquiring authority has invoked s 222(1) of the LA Act, it is not open to the claimant:
(a)to confer on a court jurisdiction which the court does not have under pt 10 of the LA Act; or
(b)to enliven the Tribunal's discretion under s 50(1) of the SAT Act,
by giving an undertaking to the Tribunal to commence an action for compensation in the court upon the Tribunal making an order under s 50(1).
No provision of the LA Act or the SAT Act authorises such a course of action. Indeed, such a course of action is inconsistent with the legislative scheme embodied in pt 10 of the LA Act.
There is no relevant inconsistency between the SAT Act and the LA Act. However, even if there is a relevant inconsistency between s 50 of the SAT Act and pt 10 the LA Act in relation to the jurisdiction of a tribunal, a court or any other person to hear and determine a matter (which, in my opinion, there is not), the LA Act prevails. See s 5 and s 16(2) of the SAT Act.

Conclusion

The matter should not be remitted to the Tribunal for reconsideration of the Land Owners' application, pursuant to s 50 of the SAT Act, to strike out that part of WAPC's proceedings which relates to Lot 49 and to refer the claim for compensation in respect of Lot 49 to the Supreme Court.
Otherwise, the orders proposed by Martin CJ in his reasons (Beech J agreeing) should be made.
BEECH J: I agree with Martin CJ.
I propose to say something more in relation to the issue on which the Chief Justice and Buss JA have expressed differing opinions.

I respectfully agree with a great deal of what Buss JA has said about the scheme of pt 10 of the Land Administration Act 1997 (the LA Act). Part 10 makes specific and exhaustive provision as to how compensation may be determined; see s 220. Absent agreement, the only two methods for determination are by an action for compensation by the claimant in accordance with pt 10, or by reference of the claim to the Tribunal in accordance with pt 10. Part 10 of the LA Act:
(a)makes specific provision for the selection of the forum for the determination of compensation;
(b)prescribes the time at which and circumstances in which the claimant can elect the forum for determination of the claim;
(c)prescribes specific and limited circumstances in which the acquiring authority can apply to the Tribunal; and
(d)elucidates the character of the proceedings instituted by the acquiring authority in the Tribunal.
The power of the Tribunal under s 50 of the State Administrative Tribunal Act 2004 (the SAT Act) is not a power to invest the transferee court or Tribunal with a jurisdiction it does not otherwise have. In my view, the power in s 50 can only be exercised if there is another court or other Tribunal that would, if the power under s 50 is exercised, have jurisdiction to hear and determine the matter, or the relevant aspect of it, that is the subject of the pending proceedings before the Tribunal.
I accept that after the acquiring authority makes an application to the Tribunal, the Supreme Court does not have jurisdiction to determine those proceedings as a whole, with the singular character given to those proceedings under pt 10 of the LA Act. However, the power in s 50 of the SAT Act can be exercised by reference to 'any aspect of' the matter before the Tribunal. One aspect, indeed the main aspect, of the proceedings before the Tribunal is the determination of the compensation payable to the claimant. This court has jurisdiction to determine that question if the claimant institutes an action for compensation.
In my view, it would be open to the Tribunal to exercise its power under s 50 of the SAT Act in circumstances where the claimant had undertaken to commence an action for compensation in this court upon the making of an order under s 50. In those circumstances when the claimant commences the action in accordance with his undertaking there would be another court, namely this court, with jurisdiction to hear and determine the relevant aspect of the matter before the Tribunal, namely the determination of the compensation payable.
Further, I am not persuaded that the legislative scheme reveals an intention that an election by the acquiring authority or, for that matter, by the claimant is determinative of the forum for the determination of compensation, to the exclusion of the discretion under s 50 of the SAT Act. Of course, the fact of such an election having been made, in the context of the statutory scheme of pt 10, is relevant to how the discretion under s 50 should be exercised. But it does not exclude the exercise of that discretion.
For these reasons, and for the reasons given by the Chief Justice, I agree that the matter should be remitted to the Tribunal for the purpose identified in the Chief Justice's reasons.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GRAHAM -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASCA 234 (S)

CORAM: MARTIN CJ
BUSS JA
BEECH J

HEARD: ON THE PAPERS

DELIVERED : 9 FEBRUARY 2015

FILE NO/S: CACV 90 of 2013

BETWEEN: NEIL ROBERT GRAHAM
VALMAI EVELYN GRAHAM
First Appellants
MANDURAH ENTERPRISES PTY LTD
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J A CHANEY (PRESIDENT)
Citation  :WESTERN AUSTRALIAN PLANNING COMMISSION and GRAHAM & ORS [2013] WASAT 112
File No  :DR 190 of 2012

Catchwords:

Costs - Successful appeal from decision of State Administrative Tribunal - Costs of proceedings before the Tribunal - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1), s 105

Result:

Respondent pay appellants' costs of the appeal, to be taxed if not agreed
No order as to costs of the State Administrative Tribunal proceedings

Category: B

Representation:

Counsel:

First Appellants            :     No appearance
Second Appellant          :     No appearance
Respondent:     No appearance

Solicitors:

First Appellants            :     Norton Rose Fulbright Australia
Second Appellant          :     Norton Rose Fulbright Australia
Respondent:     State Solicitor for Western Australia

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

Graham v Western Australian Planning Commission [2014] WASCA 234

REASONS OF THE COURT: For reasons published earlier,[23] this court unanimously granted leave to appeal from the decision of the State Administrative Tribunal (the Tribunal) dismissing the appellants' application to strike out compensation proceedings which had been commenced in the Tribunal by the respondent, set aside the Tribunal's decision and struck out the proceedings in the Tribunal relating to compensation for the taking of parts of Lots 7, 8 and 30, and by a majority, remitted the matter to the Tribunal for further consideration of the application to strike out the proceedings in the Tribunal dealing with the compensation payable for the taking of Lot 49. The parties agree that the respondent should be ordered to pay the appellants' costs of the appeal, to be taxed if not agreed. However, they disagree as to whether the court should make any order with respect to the costs of the proceedings before the Tribunal and, if so, as to what those orders should be. Directions were made for the exchange of written submissions on those issues and to the effect that they be determined on the papers. These are our reasons for concluding that no order should be made by this court with respect to the costs of the proceedings before the Tribunal.
[23] Graham v Western Australian Planning Commission [2014] WASCA 234 (Reasons).

The appeal

The long and convoluted history of the respondent's taking of the appellants' land, and our reasons for concluding that the Tribunal lacked jurisdiction to determine the compensation payable for the taking of what we described as New Lots 7, 8 and 30 are contained in our earlier reasons and need not be restated. A majority of the court ordered that the application to strike out the proceedings with respect to the determination of compensation for the taking of Lot 49 be remitted to the Tribunal for further consideration.

The parties' positions with respect to the costs of the proceedings in the Tribunal

The appellants submit that this court should exercise its powers to make any orders which could have been made by the Tribunal[24] to order that the respondent pay the appellants' costs of the proceedings in the Tribunal in relation to the application to strike out the proceedings relating to the determination of the compensation payable for the taking of New Lots 7, 8 and 30, and that their costs should be taxed by reference to the scale applicable to the proceedings in the Supreme Court, rather than the scale applicable to proceedings in the Tribunal. They accept that although the Tribunal is a jurisdiction in which costs are not ordered as a matter of course or general practice, this is a case in which costs should be ordered because they were ultimately successful in establishing that the Tribunal lacked jurisdiction to determine the compensation payable in respect of the taking of New Lots 7, 8 and 30, essentially for the reasons which they advanced to the Tribunal, and further rely upon what is said to be the respondent's rejection of an offer to resolve the application before the Tribunal on the basis that proceedings be commenced in the Supreme Court by consent. They further submit that the complexity of the issues raised in the proceedings before the Tribunal justifies an order for taxation of those costs by reference to the scale applicable to Supreme Court proceedings, rather than the scale applicable to proceedings in the Tribunal.
[24] State Administrative Tribunal Act 2004 (WA), s 105.
The respondent asserts that it is premature to make any order with respect to the costs of the proceedings before the Tribunal, given that the application to strike out the proceedings with respect to Lot 49 remains to be determined, and that it is preferable for the Tribunal to itself exercise any jurisdiction to make orders with respect to the costs of the proceedings after that application has been determined, by reference to the entirety of the proceedings before the Tribunal. The respondent further submits that, contrary to the appellants' submission, the propositions upon which the appellants were ultimately successful on appeal were not put to the Tribunal, and that there is no reason why the scale of costs applicable to proceedings in the Tribunal should not be applied. The respondent further submits that if this court is to exercise the power to make orders with respect to the costs of the proceedings in the Tribunal, the appropriate order is that there be no order with respect to those costs.

Disposition

In our view there are four reasons why this court should not exercise its power to make orders with respect to the costs of the proceedings before the Tribunal.
First, the proceedings before the Tribunal have not been completed. Although the legal issues relating to the jurisdiction of the Tribunal with respect to the taking of Lot 49 are distinct from the legal issues relating to the Tribunal's jurisdiction with respect to the taking of the other lots, for reasons which we have set out, the applications to strike out the proceedings relating to all four lots were heard simultaneously and are plainly related. The ultimate disposition of the application to strike out the proceedings with respect to the taking of Lot 49 may have an impact upon the appropriate orders made with respect to the costs of the application to strike out the proceedings relating to the taking of New Lots 7, 8 and 30. For that reason alone it is preferable to leave the question of the costs of the proceedings before the Tribunal to be determined by the Tribunal after all related proceedings before the Tribunal have been resolved.
Second, the Tribunal is not a jurisdiction in which costs are ordered as a matter of course.[25] The principles applicable to any departure from that general practice, and the application of those principles to the circumstances of any proceedings before the Tribunal are matters best determined by the Tribunal, having regard to its policies and practices, rather than by this court.
[25] State Administrative Tribunal Act, s 87(1).
Third, there is a contentious issue as to the extent to which the propositions which ultimately found favour in this court were advanced in the course of the proceedings before the Tribunal. That also is a matter best determined by the Tribunal rather than this court.
Fourth, there is a contentious issue between the parties as to the scale properly applied to any assessment of costs payable to the appellants in respect of the proceedings before the Tribunal. That again is a matter best determined by the Tribunal by reference to its policies and practices, rather than by this court.
For these reasons there will be an order that the respondent pay the appellants' costs of the appeal, to be taxed if not agreed. The question of the costs of the proceedings before the Tribunal will be remitted to the Tribunal for its consideration and determination.