Houghton Pty Ltd v Resource Development and Planning Commission

[2005] TASSC 58

[2005] TASSC 58

CITATION:Houghton Pty Ltd v Resource Development and Planning Commission [2005] TASSC 58

PARTIES:  HOUGHTON PTY LTD
  v
  RESOURCE DEVELOPMENT AND PLANNING         COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M41/2005
DELIVERED ON:  24 June 2005
DELIVERED AT:  Launceston
HEARING DATE:  24 June 2005
JUDGMENT OF:  Evans J

[Edited version of reasons delivered orally]

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Premature application to restrain decision-maker from proceeding.

Judicial Review Act 2000 (Tas).
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to.
Aust Dig Administrative Law [1002]

REPRESENTATION:

Counsel:
           Applicant:  S B McElwaine
           Respondent:  P Sherriff
Solicitors:
           Applicant:  S B McElwaine
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2005] TASSC 58
Number of paragraphs:  10

Serial No 58/2005
File No M41/2005

HOUGHTON PTY LTD v RESOURCE PLANNING AND DEVELOPMENT COMMISSION

REASONS FOR JUDGMENT  EVANS J
(DELIVERED ORALLY)  24 June 2005

1. The applicant has filed an originating application seeking a review pursuant to the Judicial Review Act 2000 of conduct the Resource Planning and Development Commission has engaged in, is engaging in or proposes to engage in. The conduct sought to be reviewed is the Commission's asserted refusal to adjourn a hearing to be conducted on 27 June 2005 and the Commission's asserted intent to proceed with that hearing. The applicant applies for an interim restraining order to prevent the hearing on 27 June from occurring.

1. On or about 29 April 2004 the applicant made application to the Latrobe Council pursuant to the Land Use Planning and Approvals Act 1993, s33, for the rezoning of a portion of its land known as Hawley House at Hawley Beach from rural A to closed residential. The applicant also applied pursuant to s43A for a permit for the subdivision of the land so rezoned into three lots.

1. On 14 February 2005 the Council passed resolutions which in substance approved the rezoning as requested, granted a permit in respect of the subdivision as sought, and determined the conditions which ought to be contained in the permit.  As required by the provisions of the Land Use Planning and Approvals Act the rezoning application and Council's decision to grant a permit were each then publicly advertised.  The matter was next dealt with by the Council at its meeting on 11 April 2005 when it received and noted representations made in relation to the draft amendment of its planning scheme necessitated by the proposed rezoning.  The Council resolved to report to the Commission that it did not hold any view in relation to the merits of any of the representations and further that it did not consider that the draft amendment ought to be modified in any way to take into account any of the representations. 

1. It is apparent from the recommendations made to the Council for the purposes of its meeting on 11 April 2005 that the report to the Commission that it resolved to make was made pursuant to ss39(2) and 43F(6).  Consistent with s40(2), the Commission having received that report, apparently gave notice to all interested parties of an appointment for the hearing in relation to the representations.  I say "apparently" as I do not have before me a copy of any correspondence with reference to the appointment.  The date of the appointment is next Monday, 27 June. 

1. By letters dated 16 and 20 June the solicitor for the applicant has written to the Commission seeking an adjournment of the hearing, firstly, as he considers it will be quite impossible to properly deal with a number of issues in the time available before the hearing, and secondly, as he contends, that the Council's report to the Commission that it does not hold any view in relation to the merits of any representations does not satisfy the requirements of ss39(2)(b) and 43F(6)(b) that it state its opinion as to the merits of each representation. 

1. The manager of the Commission has responded to the applicant's solicitor explaining that he should address his concerns to the Commission at the hearing on 27 June 2005.  In her letter of 20 June 2005 she said:

"Your correspondence in relation to this matter appears to imply that the hearing scheduled for 27^th June can be adjourned administratively.  That is not correct.  The matter has been delegated to Mr C Pryor to hear and determine.  Therefore any considerations that need to be made regarding the Commission's jurisdiction or the future conduct of the matter are for determination by Mr Pryor."

1. What she said in that letter is quite correct.  It is for the Commission to determine these issues after hearing from all interested parties.  It would be quite wrong for a member of the Commission's staff to arbitrarily cancel the appointment at the request of one party.  One can readily imagine how legitimately incensed the applicant would be if a member of the Commission's staff cancelled the appointment simply because a representor asserted that the Commission lacked jurisdiction.  Whilst there may be good reason for the Commission not to proceed with Monday's hearing, that is a matter for the Commission to determine. 

1. The proceedings before this Court are premature and in my respectful view significantly so.  The Commission has not yet decided whether to grant the requested adjournment.  If it does not grant the adjournment, then dependent upon what is involved in that decision, it may not constitute a reviewable decision under the Judicial Review Act, although it is possible that such a decision might demonstrate conduct that is reviewable.  As to this see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and in particular the decision of Mason CJ from 337 – 343, which decision was agreed with by Brennan and Deane JJ. I note that at 337 Mason CJ observed that the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not itself constitute a reviewable decision.

1. What I have said is sufficient to dispose of this application.  I should, however, add that even if the proceedings before the Commission had progressed to the point that there was a reviewable decision, or conduct that it was appropriate to review, it is only in exceptional circumstances that this Court should exercise its discretion to review a decision or conduct prior to the conclusion of the substantive proceedings in question.  In my view the delays and misconceived outcomes that result from the fragmentation and interruption of proceedings by appeals during the course of the proceedings, should be avoided except where the outcome and benefit is very clear.  As to this see the comments of Mason CJ in Bond at 338 – 339.

1. The application to restrain the Commission from proceeding with the hearing on 27 June is dismissed.