Jackson v Purton

[2011] TASSC 28

[2011] TASSC 28

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Jackson v Purton [2011] TASSC 28

PARTIES:  JACKSON, Athol Charles
  JACKSON, Maureen Faye 
  v
  PURTON, Mark
  PURTON, Judith
  WARATAH-WYNYARD COUNCIL

FILE NO/S:  164/2010 and 732/2010
JUDGMENTS

APPEALED FROM:           MA and JM Purton v A and M Jackson [2010] TASRMPAT 20

M and J Purton v Waratah-Wynyard Council and A and M Jackson [2009] TASRMPAT 33

DELIVERED ON:  10 June 2011
DELIVERED AT:  Launceston
HEARING DATE:  28 September 2010
JUDGMENT OF:  Wood J

CATCHWORDS:

Administrative Law – Appeals from administrative tribunals - Statutory appeals from administrative authorities to courts - Meaning of "decision" of tribunal – Whether determination as to jurisdiction an appealable decision - Whether undesirable to fragment proceedings.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25(1).

Director-General of Social Services v Chaney (1980) 47 FLR 80; State of Tasmania v Latham [1999] TASSC 148; Port of Devonport Corporation Pty Ltd v Abey (2005) 15 Tas R 158, considered.

Aust Dig Administration Law [1147]

Environment and Planning – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Power of tribunal to reconsider its decision involving jurisdictional error – Whether tribunal functus officio -  Whether power to reconsider can be inferred from the statutory scheme.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss16, 23 and 25.

Land Use Planning and Approvals Act 1993 (Tas), ss53 and 61.

Minister for Immigration v Bhardwaj (2002) 209 CLR 597, Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, considered.

Aust Dig Environment and Planning [596]

Environment and Planning – Courts and tribunals with environment jurisdiction - Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Whether enforcement orders valid – Whether orders wider than necessary to address contravention.

Land Use Planning and Approvals Act1993 (Tas), s64.

Waratah-Wynyard Planning Scheme 2000.

State of Tasmania v Latham [1999] TASSC 148, considered.

Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             First and Second Appellants:                    B R McTaggart
             First and Second Respondents:                 K J Stanton
             Third Respondent:   S B McElwaine
Solicitors:
             First and Second Appellants:                    S G Wright
             First and Second Respondents:                 Crisp, Hudson & Mann
             Third Respondent:  Shaun McElwaine & Associates

Judgment Number:  [2011] TASSC 28
Number of paragraphs:  157

Serial No 28/2011
File Nos 164/2010, 732/2010

ATHOL CHARLES JACKSON, MAUREEN FAYE JACKSON v MARK PURTON, JUDITH PURTON and WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT  WOOD J

10 June 2011

1. There are two appeals to this Court from determinations made by the Resource Management Planning Appeal Tribunal ("the Tribunal").  Both appeals are instituted by Mr and Mrs Jackson and concern their land at 301 Pages Road, Moorleah.  On the land Mr and Mrs Jackson have a farm shed and a caravan.  The terms of the planning permit for the shed mean that they cannot use it for residential purposes.  Their neighbours, Mr and Mrs Purton, operate a market garden.  They brought proceedings to the Tribunal asserting that Mr and Mrs Jackson were using their shed as a dwelling and were in breach of their planning permit, and seeking orders restraining that use of the land.  After a hearing the Tribunal made restraining orders and these have been appealed by Mr and Mrs Jackson (appeal 164 of 2010).  Mr and Mrs Jackson want to build a house on their land and obtained a planning permit to do so.  Mr and Mrs Purton brought an appeal to the Tribunal in relation to that permit.  The Tribunal decided in 2009 that the permit was invalid and it lacked jurisdiction.  Later, in August 2010, the Tribunal reversed that decision, holding that the permit was valid.  An appeal to this Court has been brought in relation to that subsequent decision of the Tribunal.  The two appeals from decisions made by the Tribunal raise distinct issues and are quite separate.  They were heard by this Court together for reasons of convenience, because the proceedings involve the same land and the same parties.  For those reasons this decision will deal with both appeals.  I will first consider the appeal regarding the Tribunal's decision with regard to the planning permit for construction of a house (appeal 732 of 2010).

Appeal 732 regarding the planning permit for construction of a house

1. Appeal 732 is from a decision of the Tribunal made on 23 August 2010 that it had jurisdiction to hear an appeal regarding the grant of a planning permit by the Waratah-Wynyard Council ("the Council").  The Tribunal's decision reversed a decision it had made approximately 18 months earlier in February 2009 regarding the same appeal proceedings.  Earlier, the Tribunal had decided that it had no jurisdiction and that the appeal proceedings were a nullity and invalid.  The history of the proceedings is as follows.

1. On 21 November 2008, the Waratah-Wynyard Council granted a planning permit to the appellants, Mr and Mrs Jackson, for the use and construction of a dwelling at their rural property at 301 Pages Road, Moorleah with a setback waiver, and subject to a number of conditions.  Neighbours, Mr and Mrs Purton, appealed to the Tribunal against the grant of the permit.  Their appeal related to the set back waiver.   

1. On 26 February 2009, the Tribunal determined that the planning permit issued to Mr and Mrs Jackson was invalid, that as a consequence the appeal was invalid, and the Tribunal had no jurisdiction to hear and determine the matter. 

1. Mr and Mrs Jackson did not lodge an appeal against the decision of the Tribunal.  Presumably they were content that the appeal proceedings were at an end and no consequential orders had been made setting aside the Council's decision granting the permit.  Instead, relying on the planning permit that had been granted by the Council, the appellants applied to the Council's permit authority for a building permit to build the proposed dwelling.  The building permit was refused on the grounds that the required planning permit did not exist, for the reasons given by the Tribunal. Mr and Mrs Jackson appealed to the Building Appeal Board ("the Board").  The Board rejected the appeal, referring to the Tribunal's decision that the grant of the planning permit was a nullity. 

1. Mr and Mrs Jackson then sought judicial review of the Board's decision.  In Jackson v Building Appeal Board [2010] TASSC 29, it was held by Porter J that on the material before him the planning permit granted by the Council on 21 November 2008, regarding the construction of a dwelling was valid in that it was within the power of the Council to grant the permit. A declaration was made regarding the validity of the planning permit and an order made setting aside the decision of the Building Appeal Board.

1. A very short time later on 27 June 2010, the respondents, Mr and Mrs Purton, wrote to the Tribunal requesting that their appeal proceed.  This was the same appeal that had been the subject of the Tribunal's determination on 26 February 2009, that it had no jurisdiction.  Mr and Mrs Jackson objected to the appeal going ahead and, in writing, identified the bases for the objection.  It was submitted on their behalf that there was no legislative power available to the Tribunal to hear the appeal and that by its earlier decision it had performed its function, it had no further function to perform, and was functus officio.  There followed written submissions in response from counsel for the respondents.

1. On 23 August 2010, the Tribunal delivered its decision, determining it had jurisdiction to hear and determine the appeal and by doing so, reversing its earlier decision.  The reasons of the Tribunal expressed the view that there was a conflict between the Supreme Court decision of Jackson v Building Appeal Board and the earlier Tribunal decision as to jurisdiction, and that as a consequence of the  Supreme Court decision, the Tribunal's determination could not be correct.  The decision of the Tribunal was that it was able to hear and determine the appeal, and that it was not functus officio.  That decision was appealed to this Court.  The Tribunal did not go on and decide the merits of the appeal, but awaits the outcome of the appeal to this Court.  

The decision of the Tribunal

1. The relevant passages of the written decision of the Tribunal delivered in August 2010 are as follows:

"By decision dated 26 February 2009 the Tribunal concluded it was without jurisdiction to further hear and determine Mr and Mrs Purton's appeal concerned with a decision of the Waratah Wynyard Council.  Central to the Tribunal's decision was its conclusion that the permit issued by the Council was invalid.

In a decision dated 15 February 2010 Porter J in Jackson and Anor v Building Appeal Board and Others [2010] TASSC 29 determined that the same permit was valid in the sense that it was at least within the Council's power to have issued it. There is an obvious conflict between the Tribunal's decision as to jurisdiction and His Honour's determination in the case referred to above. It follows as a result of an application of the doctrine of stare decisis that the Tribunal's determination cannot be, and is not, correct.

The question is whether the Tribunal is able to exercise any powers in respect of the appeal.  Mr and Mrs Jackson submit that the Tribunal is functus officio.  This submission is rejected.  The Tribunal is not, and cannot be, functus officio because it has not exercised the jurisdiction it is required to exercise under either the Resource Management and Planning Appeal Tribunal Act 1993 or the Land Use Planning and Approvals Act 1993.  A Tribunal (or for that matter a court) can only be functus officio when it has finally, and conclusively, exercised its power.  Any judicial or quasi judicial decision-making body cannot ever be functus officio  when it has wrongly declined to exercise such power as it possesses in respect of a matter (see for example Minister for Immigration and Multicultural Affairs v Bhardwaj [2002 – 2009] CLR 597).  The situation would be different if the Tribunal had made a final determination on merits and has correctly exercised its jurisdiction.  In such circumstances it has no power to revisit that decision because it is then functus officio (See R v Resource Management and Planning Appeal Tribunal; ex parte North-West Rendering Pty Ltd [2005] TASSC 8). However that is not the situation here."

The issues raised by the appeal

1. There is one ground of appeal namely, that the Tribunal erred in law in determining that it had jurisdiction to continue to hear and determine Mr and Mrs Purton's appeal, having, by decision dated 26 February 2009, determined that it was without jurisdiction to further hear and determine that appeal.  The following issues arise from that appeal ground:

·     Is the August 2010 determination of the Tribunal that it had jurisdiction, as a preliminary determination that did not embark on the merits of the proceedings, a reviewable "decision" that can be the subject of appeal proceedings to this Court?  Is that determination a "decision", grounding an entitlement to appeal under the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s25.

·     If there is a decision that can give rise to an appeal, is it appropriate in the exercise of this Court's discretion to determine the appeal, or ought this Court decline to fragment the proceedings and await the outcome of the Tribunal's decision on the merits of the appeal?

·     If there is before this Court a reviewable decision, did the Tribunal have power to reconsider the issue of jurisdiction once it had made a decision that was not appealed to this Court; was the Tribunal entitled to treat its earlier decision as a nullity and proceed to consider the appeal as if the decision had not been made, or had the Tribunal reached a final determination that was valid, or to be treated as valid, until set aside in appeal proceedings?

·     Does the functus officio doctrine have application to decisions involving jurisdictional error?

·     If the Tribunal had power to reconsider its earlier decision in circumstances where it had made a jurisdictional error, is it apparent that in its first decision in February 2009 the Tribunal had  made a jurisdictional error?  Put another way, in reconsidering its earlier decision the Tribunal presumed that a necessary  consequence of the Supreme Court decision in Jackson v Building Appeal Board was that the original Tribunal decision was incorrect – was that presumption correct?  

Is the determination of the Tribunal in August 2010 a "decision" that can ground an appeal?

1. The jurisdiction of this Court in relation to appeals from proceedings before the Tribunal is conferred by the RMPAT Act, s25(1). Section 25(1) provides:

"25      Appeals to Supreme Court from decisions of Appeal Tribunal

(1)       A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."

1. The determination of the Tribunal in August 2010 dealt with a preliminary question of jurisdiction.  This type of preliminary ruling may be described as an assertion of authority to embark on the hearing of the appeal (Director-General of Social Services v Chaney (1980) 47 FLR 80). The question that arises is whether the determination of the Tribunal that it had jurisdiction is "any decision … in the appeal" for the purpose of s25(1) of the RMPAT Act. It is necessary for me to ascertain the meaning of those words in s25(1), noting the Act does not provide a definition of "decision".

1. General principles of statutory construction guide the task of determining the meaning of the words "any decision … in the appeal".  Their meaning is to be gleaned from the context, ie the section, and also more broadly, the Act: CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408, per Mason J, at 618. Another principle is that the words under consideration appearing in s25(1) should be given a consistent meaning throughout the Act: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, Minister Administering the State Service Act v Leary [2009] TASSC 24 at 19.

1. A particular consideration concerning the word "decision" is that it is a word of "indeterminate meaning" and its meaning depends upon its context:   Director-General of Social Services v Chaney (supra).  At 100,  Deane J stated:

"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, eg, Registrar of Workers' Compensation Commission v FAI Insurances Limited(1977) 1 NSWLR 422 at p448) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, eg, Winter & Anor v Winter(1933) NZLR 289 at p295; Penniel v Driffill(1980) WAR 31 at p32).

…

Whether 'decision' in s44(1) should be given the limited 'natural and primary' meaning (ibid, at p626) to which their Lordships refer, namely, the decision or determination of the overall application for review, must be determined by reference to the context which the sub-section and the Act provide."

1. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

1. It is necessary to focus on the RMPAT Act in order to glean the meaning of the phrase. The terms of s25(1) and, in particular, the words "any" decision in "the appeal" acknowledge and presuppose that there may be more than one decision in relation to any one appeal. This is a clear indication that the section extends to decisions other than the final determination of the appeal.

1. The Act draws a distinction between "decisions" of the Tribunal generally and the "determination of an appeal".  This distinction is evident from a number of provisions in the Act.  The Act contemplates "decisions", plural, occurring in any one appeal (s25(1)), and ss23 and 24 specifically relate to determination of appeals.  Section 23 carries the title "determination of appeal" and stipulates that the Tribunal must make a "decision in writing" either affirming, varying or setting aside the decision appealed against (s23(2)).  Section 24 concerns the giving of written reasons by the Tribunal "for its determination of an appeal".  The scheme and terminology of the Act reveal that "decision" in s25(1) of the Act has a wider meaning than "determination of appeal" appearing elsewhere in the Act and encompasses but is not limited to these final determinations. 

1. Counsel for the respondent, the Waratah-Wynyard Council, Mr McElwaine, submitted that the Tribunal had not made a "decision" within the meaning of s25 of the Act, referring me to cases that had considered the meaning of the term, and which supported a restricted meaning. Mr McElwaine relied upon the cases of Leary (supra) and Chaney.  It was pointed out that the statutory provision under consideration in Chaney was identical to the one in this case.  I was also referred to policy considerations discussed in Port of Devonport Corporation Pty Ltd v Abey (2005) 15 Tas R 158 which tell against a fragmentation of proceedings. Counsel for the appellants relied upon State of Tasmania v Latham [1999] TASSC 148, and Milner v Prima Construction and Development Pty Ltd (1991) 75 LGRA 25, in support of attributing a more expansive meaning to "decision" in the context of the Act, s25(1). I turn to consider these cases which assist in ascertaining the meaning of "decision".

1. In Director-General of Social Services v Chaney the Full Court of the Federal Court considered whether an appeal to the court from a ruling from the Administrative Appeals Tribunal was incompetent.  The ruling made by the AAT was that it had jurisdiction to review the decision.  The governing statutory provision, Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), s44(1), regarding appeals to the Federal Court, referred to an entitlement to appeal "on a question of law, from any decision of the Tribunal in that proceeding". It is noted that the terms of that provision are, for all intents and purposes, the same as the provision in this case. The decision of the majority, Deane and Fisher JJ, was that an appeal lay only from a decision of the AAT which constitutes the effective decision or determination of the application for review. At 103 Deane J noted that ordinarily such a decision will be the final decision. It was observed that, by contrast, the ruling that the AAT had jurisdiction to hear the application for review, simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits, and did not effectively dispose of the proceedings. Deane J noted that the position would have been different if the ruling had gone the other way and the AAT had held that it had no jurisdiction to deal with the matter, because that decision would have effectively disposed of the proceeding before it (at 104).

1. Aspects of the legislation in Chaney distinguish it from the RMPAT Act.  It is worthwhile noting the relevant provisions in the legislation considered in Chaney and the significance that attached to those provisions giving rise to the conclusion by the majority that the word "decision" was used in the narrow sense of the operative or ultimate decision.  Provisions which gave minimal assistance were referred to by Deane J:

·The definition of "decision" in the AAT Act which lists various activities suggesting an ultimate or operative determination; described as a slight indication to that effect.

·The word "any"' in the phrase "any decision of the Tribunal" in the AAT Act, in preference to "the" or "its" used in preceding sections, tends to indicate that the word "decision" is used in a wide sense. On the other hand, the use of "any" could be explained by the fact that the subsection containing that word follows the specification in a preceding provision (s43(1)) of a range of alternative ultimate decisions which may be given by the Tribunal. The indication given by the qualifying word "any" as to the scope of the word "decision" was described as slight.

·The use of the word "decision" elsewhere in the Act did not provide any compelling guidance, as it was used in both the narrow sense of the operative or ultimate decision, and also in the wider sense.

1. In Chaney assistance as to the meaning of "decision" was gained from the substantive content of the provision in the context of the scheme of the Act as a whole (101 per Deane J). Two specific provisions were referred to that do not appear in the RMPAT Act. One of them obliged the AAT to send to the court all relevant documents once an appeal was instituted (s46). Deane J considered that this provision contemplated disruption to the proceedings before the AAT upon institution of an appeal if the appeal could be brought at an intermediate stage. Deane J expressed the view that it seemed unlikely that it was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the AAT by instituting an appeal from any of the various decisions that might be made in the course of a hearing, and which might ultimately prove irrelevant to the final operative decision (at 102).

1. The other provision set out that an appeal to the AAT shall ordinarily be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the AAT is furnished to the person desiring to appeal.  Deane J noted that it would not be anticipated that an intermediate decision, which was reached in the course of the conduct of proceedings, would be reduced to writing. 

1. There are significant differences between the Act considered in Chaney and the RMPAT Act:

· Under the RMPAT Act, an appeal would not trigger an obligation to provide written reasons for intermediate decisions (the obligation is expressly confined to the reasons for the Tribunal's "determination of an appeal", s24(1)).

· Interference with the Tribunal's hearing of the appeal would not be a necessary outcome of appeals to the Supreme Court if they extended to intermediate decisions. Indeed, the RMPAT Act specifically provides that institution of an appeal to the Supreme Court from a decision of the Tribunal does not affect the operation of the decision, or prevent the taking of action to implement the decision, unless the Supreme Court exercises its discretion to stay: s26(1). However, it would be reasonable to proceed on the basis that Parliament would have anticipated that disruption to the process would frequently occur, resulting from stay orders by the Supreme Court or the Tribunal deciding to suspend its hearing of the appeal until after the appeal had been determined.

·     The phrase "any decision" in s25(1) is not referable to an earlier provision in the Act concerned with final decisions.  Unlike the legislation in Chaney the preceding provisions do not suggest that "decisions" is confined to final determinations.

1. There are far fewer indications of a restricted meaning to be given to the word "decision" in the RMPAT Act than in the statute considered in Chaney.  In summary, there are certain significant distinguishing aspects of our Act which means that the conclusion in Chaney cannot be transposed to our Act.

1. In some provisions of the RMPAT Act, the word "decisions" is a reference to final decisions, but the terms of the provision constrain the meaning of the word in that particular context: for example, s23(2), (3) and (4). In such provisions it is abundantly clear that the provision is concerned with a particular type of decision, and that otherwise the word has a broad meaning. It seems that in the RMPAT Act the word "decisions" generally speaking, has a broad meaning, encompassing final determinations and other decisions such as intermediate decisions, and which, by its context, may be confined to a limited category of "decisions".

1. The reasoning in Chaney and other cases emphasises that a careful analysis of the particular statutory context is required. The meaning of the term must be ascertained by a close consideration of the legislation and not the conclusions reached by other courts considering legislation that has an approximate likeness to the RMPAT Act. In the Tasmanian Act the word "any" in the context of the phrase "any decision … in the appeal" (s25(1)) is a compelling indication that the word decisions extends beyond the ultimate determination of the appeal.

Consequences of interpretation

1. If the phrase "any decision … in the appeal" is construed broadly, that enlarges the number of  decisions that would qualify for appeal.  This would have the consequence that a party would be able to lodge an appeal as of right to the Supreme Court in relation to interlocutory decisions which may not bear on the ultimate decision (see discussion in Chaney at 102). It may be argued that the word "decisions" encompasses rulings on procedural questions such as permissible questions to be asked in cross-examination. It seems unlikely Parliament intended that every decision that may be made on such matters could trigger an appeal. Appeals as of right to the Supreme Court would not be warranted on such rulings. Conversely, if appeals to the Supreme Court are restricted to ultimate decisions, then there would be decisions affecting rights in a substantive way that would not be subject to appeal.

1. In considering the meaning of "any decision … in the appeal", it must be borne in mind that it is not just a choice between a narrow meaning confined to ultimate decisions or a broad meaning encompassing  procedural decisions.  An example of a meaning attributed to the word "decision" in other legislation can be found in the judgment of Porter J in Leary.  Porter J gave consideration to the meaning of "decision in respect of an appeal" in s72(2) of the Industrial Relations Act 1984. It must be noted that the legislation is in different terms from the RMPAT Act, and the phrase "in respect of " proved to be material in ascertaining the breadth of that expression. Porter J indicated that it was unnecessary to decide the precise scope of that expression, indicating that each particular case would need to be examined. He suggested that perhaps the phrase related to substantive issues, as distinct from procedural ones (par[24]). Here it may be noted that the RMPAT Act makes specific provision for substantive orders of a kind that fall short of final decisions disposing of the appeal, and that may warrant an appeal before waiting for a final outcome. For example, the Tribunal may direct that a party to the appeal who has had reasonable notice of the appeal is to cease to be a party to the appeal (s21(b)), and amendments to the application (s22(3)).

1. The meaning of "decision" in the RMPAT Act, s25(1) has received judicial consideration. In Latham consideration was given by Cox CJ to various "decisions" of the Tribunal, namely, a finding that there had been a contravention of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), a ruling to adjourn the proceedings to enable the parties to make written submissions as to the appropriate order to be made, and a further "decision" that time should be allowed to enable an application for planning approval to be made and determined, and if no permit was granted, then it would be appropriate for the Tribunal to make an order that the use cease. The hearing was adjourned and subsequently the appeal instituted.

1. Cox CJ regarded it as clear from the wording of s25(1) that it is "not only the final decision or determination of the Tribunal which is subject to appeal" (par[7]). In considering the ambit of s25(1), Cox CJ considered that a parallel exists with the Administrative Appeals Tribunal Act (Vic), s52(1), which provides that a party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in that proceeding. The Chief Justice referred to Milner v Prima Construction & Development Pty Ltd (1991) 75 LGRA 25, which considered this section of the Victorian Act and a "decision" to grant a permit subject to such conditions as might later be determined.  The judgment of Cox CJ set out quotes from the judgment of Fullager J in Milner at 27 and 28, in part as follows:

   "In considering the ambit of s52 of the Administrative Appeals Tribunal Act it must I think be borne in mind that under it an appeal lies as of right to the Supreme Court of the State and, in the circumstances of this particular case under s52(3), to the Supreme Court sitting as the Full Court. That consideration is one of a number which I think should lead the Court to the conclusion that the word 'decision' in s52(1) cannot refer to every decision made by the tribunal in the course of a proceeding before it. For example, it cannot, in my opinion, apply to a statement by the tribunal that it will not allow a particular question to be put in examination in chief or cross-examination, or a decision that it will not allow some particular line of questioning. What I think is in substance referred to is a decision of the tribunal which is given in the course of the proceeding and is effective irrevocably to affect the legal rights of a person."

2. At 28, Fullager J added:

   "Whatever else is within the ambit of the expression 'a decision of the Tribunal in that proceeding' I do not think the expression extends outside the field of effective and irrevocable resolution in the course of a proceeding, of some substantive rights of a party, using the word 'party' in a wide sense."

3. Cox CJ went on to add that the use of the words "any decision of the Appeal Tribunal in the appeal" in the RMPAT Act militates against too narrow a construction. I respectfully agree with that observation and see those words in the RMPAT Act as indicating "decision" has a broad meaning. Cox CJ considered that none of the various decisions made by the Tribunal in that case fell within s25(1) of the Act, as the appellant's rights had not been "irrevocably affected", stating at par[9]:

"There is no certainty that the Tribunal will make any order under s64 requiring the appellant to do, or refrain from doing, anything or penalising it by way of costs or otherwise. If and when an order is made within the meaning of s65, an appeal will lie. But should the permit be granted subject to acceptable conditions, that may well be the end of the matter. It is not a function of this Court to give advisory opinions where there is no longer any real contest between the parties (see Burnie Port Corporation Pty Ltd v Burnie City Council [1999] TASSC 72, per Crawford J at [11])."

1. Counsel for the appellants, Mr McTaggart, submitted that the decision made by the Tribunal meets the test articulated in Milner of effectively and irrevocably resolving some substantive rights of a party.  I consider that in assessing the impact of the decision upon the rights of a party, it may be borne in mind that the nature of the decision is such that it not only asserts authority to deal with an appeal, but it overturns a previous decision that it had no authority.  The appellants' position was irrevocably altered by the August 2010 decision.  Before the decision the status quo was that they were not in jeopardy of an adverse outcome or even the cost and inconvenience associated with an appeal hearing.  Once the decision in August 2010 was delivered, that situation was irrevocably altered.  It might be thought that an assessment of the impact of the subsequent decision upon the rights of the parties in this case is intertwined with the issue of whether the Tribunal was functus officio, and whether the parties were entitled to regard the proceedings as at an end absent an appeal.  It seems to me that that may well be correct.  If it was always open to the Tribunal to treat its earlier decision as a non-existent decision, then the extent to which the later decision alters the parties' positions is less marked than if the parties were entitled to treat the earlier decision as final. 

1. I return to the meaning of "decisions" and relevant considerations.  It may be noted that often policy considerations are invoked by the courts when considering the ambit of appeal provisions and the meaning of "decisions".  In Australian Broadcasting Tribunal v Bond (supra), Mason CJ reached his conclusion, taking into account policy considerations.  Some of those were specific to the legislation under consideration (see 337), some of those were more general matters such as concern about efficiency:

   "To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process."

2. See also discussion about general policy considerations in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, at 310 – 311.

1. As acknowledged by Mason CJ, there are competing policy considerations (541).  In Lamb v Moss (1983) 76 FLR 296 at 318 – 319, these considerations were discussed, and it was noted that there is a public interest in fair play to the individual, as well as efficiency of administration. As noted in that judgment if the language of the provision is clear and unambiguous, the court is not justified in taking a "narrow view of the wide language used by Parliament in the Act because of fears that the floodgates will open" (at 319). It was also noted that concerns about efficiency of administrative decision-making and proliferation of unmeritorious appeals emerge for consideration in the court's wide discretion to grant or refuse relief in a particular case (at 318). At 319 it was noted that:

"It is in the exercise of that discretion that the court will exercise control over the circumstances in which and the stage at which judicial review will be embarked upon."

1. It was also noted that the court has a discretion whether to grant a stay of the operation of a decision upon the institution of an appeal. That is also applicable to the powers of this Court in dealing with appeals under the RMPAT Act, s26. As noted in the judgment in Lamb v Moss, one of the matters that will be taken into account is whether the proceedings have been instituted prematurely.

Conclusion

1. The words of the section are clear and unambiguous.  The natural and ordinary meaning of the words "any decision … in the appeal" extend beyond decisions that are final or that effectively determine the proceedings.  Further, the statutory context and use of this word "decision" elsewhere in the Act, and the contrasting expression "determination of the appeal" support this interpretation.  The word "any" suggests that Parliament deliberately chose to be non-discriminating about the type of decisions that may be the subject of appeal and the reference to "any decision" in "the appeal" must convey that it is envisaged that there may be more than one decision in any one appeal.

1. If the meaning of the phrase "any decision … in the appeal" in s25(1) is confined to decisions which involve an effective and irrevocable resolution of some substantive right of a party as considered by Fullager J in Milner, and referred to by Cox CJ in Latham, then the Tribunal's decision in this case as to jurisdiction qualifies, in the particular circumstances of this case, as such a decision.  The decision had a substantive effect on the rights of the parties in this case for the reasons mentioned.  If s25(1) is wide enough to encompass the resolution of "substantive" rights then the Tribunal's decision falls within that provision.  It is not necessary to determine whether the phrase may capture decisions of a procedural nature or to determine the application of the provision beyond the type of decision under appeal.

The discretion to decline to determine this appeal

1. It was submitted for the respondents that I should decline to hear this appeal because of the undesirability of fragmenting the proceedings before the Tribunal.  It was submitted for the appellants that I should hear the appeal as there are benefits to the parties in resolving the preliminary jurisdictional issue before the Tribunal has determined the merits of the proceedings. The submissions focussed on observations made by the Full Court of Tasmania in Port of Devonport Corporation Pty Ltd v Abey (supra).

1. In Port of Devonport the Full Court considered an appeal arising from a hearing before a Commissioner of the Industrial Commission in respect of an industrial dispute relating to alleged unfair termination.  At the conclusion of the applicant's case it was argued that the Commissioner had no jurisdiction to hear and determine the matter, because an industrial dispute was not raised.  The employer elected for the Commissioner to rule on the submission without presenting any evidence.  The Commissioner rejected the jurisdictional argument.  The employer unsuccessfully sought a review of that ruling pursuant to the Judicial Review Act 2000, and then appealed to the Full Court.

1. Evans J noted that "when the hearing before the Commissioner was interrupted by the application to review that ruling, all that remained to be done before the Commissioner's final decision on the substantive issue before him was for the appellant to be given an opportunity to present such evidence, if any, as it wished before the Commissioner."  His Honour went on to express the view that "this should have been done and the substantive issue should have been determined before remedies of the nature of an appeal were pursued by either party" par[174].  Evans J noted that the Supreme Court has a discretion to dismiss or stay a premature application for relief under the Judicial Review Act.

1. Supporting this conclusion, reference was made to the use of the word "may" in the Judicial Review Act, s27, and case law that the word connotes a discretion in the Administrative Decisions (Judicial Review) Act 1977, Lamb v Moss, at 548 - 550. It was noted that authority was not required to demonstrate that the court has a discretion to summarily dismiss or stay a premature application because of express provisions in the Judicial Review Act (s38(1)(a)(i) and s13). 

1. The judgment of Evans J expressed views about the exercise of discretion in that particular case.  Evans J, made observations, agreed with by Crawford J (as he then was) at 170 about the undesirability of fragmenting the proceedings:

   "In my view the appellant's application to review the Commissioner's ruling was premature and should have been stayed or dismissed.  I say this with some hesitation as it is very easy to overstate an assessment such as this when bolstered by the benefit of hindsight.  It is only in exceptional circumstances that it is appropriate to grant relief under the Judicial Review Act 2000 in respect of a decision given in the course of ongoing proceedings. The delays consequent upon the fragmentation of proceedings are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernable benefit. Observations to this effect have been made in relation to committal proceedings in Lamb v Moss (1983) 49 ALR 533 at 564, Yates v Wilson (1989) 168 CLR 338 at 339 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 - 339. In my view these observations are generally applicable in relation to ongoing proceedings that are open to judicial review."

1. The submissions of counsel presuppose that this Court has a discretion to summarily dismiss or stay a premature appeal. Reference was made to the Court's discretion to make orders on an appeal: s25(6). It transpires that the question whether this Court has the same discretion discussed in Abey does not need to be decided in this appeal.  Absent detailed submissions on this point, I consider the best course is to presume that the discretion exists without deciding that point. 

1. I note that the circumstances of this case are quite different to the circumstances in Abey.  The jurisdictional argument in Abey (assuming it is a jurisdictional argument, noting doubt expressed about that by Crawford J at pars[22] – [23]) was raised at a very late stage of the proceedings.  This in itself was undesirable (Crawford J, par[20]). 

1. In this case the objection to jurisdiction was properly taken as a preliminary point.  It gives rise to a real and substantive issue.  If correctly taken, the hearing to follow would be conducted without  jurisdiction and would involve the parties in the unnecessary expense and inconvenience of a hearing.  In assessing inconvenience and cost, it is relevant that there has already been one hearing of the appeal, and those proceedings had been held by the Tribunal to be a nullity.  That determination was not  appealed.  If a complete hearing of the appeal was now to be conducted by the Tribunal, it would be shrouded in uncertainty about the Tribunal's power to reconsider its own decision and embark upon that hearing.  If, after a full Tribunal hearing this Court were to determine that the Tribunal's determination to reopen the case was an error in jurisdiction, then the parties would understandably feel aggrieved that there had not been a more expeditious pathway to that outcome. 

1. The circumstances of this appeal are exceptional given the history of the proceedings, and they give rise to compelling considerations weighing in favour of a determination of this appeal.  There is a "discernable benefit", as referred to by Evans J in Abey, in deciding this appeal, and I proceed to do so. 

Does the Appeal Tribunal have power to reconsider its earlier decision ?

Does the doctrine of functus officio apply?

1. Issues three and four are inter-related and it is convenient to consider them together. 

1. The Tribunal held in its decision delivered in August 2010 that it was not functus officio and hence, able to reconsider its earlier decision and exercise the jurisdiction it was required to exercise. Central to that approach was the proposition that the doctrine of functus officio could not apply when the Tribunal had wrongly declined to exercise its power, citing Minister for Immigration vBhardwaj (2002) 209 CLR 597 in support.  The Tribunal contrasted the situation of a final determination on the merits when there had been a correct exercise of the Tribunal's jurisdiction.  The Tribunal would have no power to revisit that kind of decision because the doctrine of functus officio would apply. 

1. The respondents made submissions on the appeal to this Court that the Tribunal's approach was correct, and that it had power to reconsider its earlier decision.  Relying on Bhardwaj it was submitted that the "Tribunal having made an error as to its jurisdiction, the Tribunal's decision is to be regarded in law as no decision at all.  In fact, where a jurisdictional error has been made the decision maker not only can but must make a decision.  If the jurisdictional error means that the jurisdiction has not been exercised or performed, then it must be performed." (Written submissions of Mr Stanton). 

1. For the purpose of considering whether the Tribunal had power to reconsider its decision, it will be assumed that the Tribunal's earlier decision was contrary to law as a consequence of the decision of the Supreme Court in Jackson v Building Appeal Board.   There is no argument that if the Tribunal's earlier decision was contrary to law then it involved "jurisdictional error".  A broad notion of jurisdictional error has been adopted by the High Court:

"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it." 

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at par[74], and see also Craig v South Australia (1995) 184 CLR 163 at 177 - 179.

1. The question then is what are the consequences of a decision tainted by jurisdictional error and whether it may be reconsidered?  A consideration of Bhardwaj is central to this question.  The High Court in that case considered a situation that had developed before the Immigration Review Tribunal.  The tribunal reconsidered a hearing for a student visa which had been heard and determined in the absence of the respondent, but, by administrative oversight, his letter requesting an adjournment was not drawn to the attention of the tribunal.  The contention was that the tribunal's power to review was spent after it made the first decision.  It was held by the High Court, Kirby J dissenting, that the tribunal had power to reconsider the matter.   

1. In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 the Full Court of the Federal Court conducted a careful analysis of the judgments in Bhardwaj and concluded that the High Court case is not authority for the universal proposition that jurisdictional error leads to the decision having no consequences whatsoever.  Instead, Bhardwaj supports the proposition that the legal and factual consequences of the decision will depend upon the particular statute (see joint judgment of Gray and Downes JJ at par[40] and Kenny J at par[64]).  See also Porter J in Jackson v Building Appeal Board.

1. I agree with the analysis by the Federal Court of the judgments of Bhardwaj.  It is evident from the High Court judgments that the consequences of a decision affected by error, including jurisdictional error, are determined primarily by consideration of the statute pursuant to which the decision is made:  Gleeson CJ at pars[11] and [12], Gaudron and Gummow JJ at pars[54] – [60], McHugh J at par[63], Hayne J at par[153], Kirby J at par[113] in dissent but not on this point.

1. In this case the Tribunal's reasons do not indicate that the statute was considered to ascertain the legal consequences of the earlier decision and the Tribunal's power to reconsider the appeal.  It is implicit in the approach taken by the Tribunal that the Tribunal considered that jurisdictional error involving the Tribunal not exercising the jurisdiction it is required to exercise under the applicable legislation leads inevitably to a conclusion of nullity and that the doctrine of functus officio could not apply to such an error, regardless of the statute. 

1. It may be thought that support for the Tribunal's approach is to be found in passages of the joint judgment of Gaudron and Gummow JJ in Bhardwaj to the effect that a decision involving jurisdictional error has no legal foundation and is properly to be regarded in law as no decision at all.  These passages are  relied upon by the respondents in their written submissions.  The joint judgment at par[51] stated:

"There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged." 

And further at par[53]:

"As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so." 

1. However, it is necessary to read those passages in context. These passages involve a consideration of the general law. After the passages set out above, Gaudron and Gummow JJ gave consideration to the applicable statute. Having first noted that the statute did not expressly gave any legal effect to decisions of the Tribunal which involve jurisdictional error, Gaudron and Gummow JJ went on to consider whether the relevant statute should be construed as impliedly having that effect (pars[54] – [60]). Thus it can be seen that the position at general law cannot provide the answer to the effect of jurisdictional error made by a statutory tribunal, and it is just the beginning of the enquiry.

1. In any event, as noted by Gray and Downes JJ in Jadwan at par[40], the  joint  judgment of Gaudron and Gummow JJ did not consider in detail the consequences of the proposition that a decision has no legal effect.  The facts of Bhardwaj did not require consideration of various questions such as the factual consequences of an administrative decision if no challenge to its validity is ever made, or it is made in proceedings to which someone bound or otherwise affected by the decision is not a party, or the effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision because of discretionary considerations.  

1. It is incontrovertible that decisions involving jurisdictional error must have some operational effect.  In Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413 Finkelstein J stated:

"There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside." 

1. This passage was quoted with approval by Gleeson CJ in Bhardwaj, at par[12].  As noted by Gleeson CJ the legal consequences of a decision depend upon the governing Act, the facts of what was done, or not done following the communication of the decision, and the kind of legal effect under consideration (par[11]).

1. The operational effect of administrative decisions attendant with jurisdictional error, was acknowledged in other judgments in Bhardwaj.  The joint judgment of Gaudron and Gummow JJ at par[46] noted that an "administrative decision must have sufficient vitality to provide the subject matter" of an "appeal", and "an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made".  The legal consequences of jurisdictional error will "begin and end in the statutory provisions which are the source of the power that it is said has been exercised", per Callinan J at par[154].  See also Hayne J at par[147].

1. As stated by Gray and Downes JJ in Jadwan, at par[42], the High Court case of Bhardwaj merely shows that the "legal and factual consequences of the decision, if any, will depend upon the particular statute".  Having reached this conclusion about the authority of Bhardwaj, the judgment of Gray and Downes JJ referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 - 389. The judgment then noted it was necessary to look at the scheme of the Act to see if the legislative intention can be discerned that the decision was to be treated as having any, and if so, what effect, even though it was not made in accordance with the requirements of the Act.

1. It is necessary here to look at the scheme of the RMPAT Act to see if the legislative intention can be ascertained that the earlier decision of the Tribunal as a decision involving jurisdictional error was to be treated as having any, and if so, what effect.

1. Before considering that question it is necessary to have regard to the fourth issue and the role of the doctrine of functus officio, and whether it has application to decisions involving jurisdictional error. 

1. The doctrine of functus officio is relied upon by the appellants and it was argued before the Tribunal that it could not reconsider its earlier decision because of the application of this doctrine.  The nature of the doctrine is well settled; the contentious issue in this case is whether it applies.  The origin and rationale for the doctrine was considered by Finkelstein J in Leung v Minister for Immigration at 409 - 410. 

"The origin of the principle of functus officio as that expression is currently employed is to be found in the latter part of the last century in England when it was decided that a final decision of a court could not be reopened. The reason given was that the power to reopen a dispute had been transferred to the court of appeal: Re St Nazaire Co (1879) 12 Ch D 88."

1. Finkelstein J noted that the rule applied to a judge, a magistrate or an arbitrator only after the formal judgment of the court had been passed and entered, and was subject to two exceptions, where there had been a slip in drawing it up and there had been an error in expressing the intention of the court.  

1. Finkelstein J stated that a similar rule applies to the exercise of a statutory power or function but for a different reason.  If a statute confers a power or function, once that power has been exercised or the function performed, the purpose for its creation has been fulfilled, with the consequence that the power or function is exhausted.  In R v Resource Management & Planning Appeal Tribunal: Ex parte North West Rendering Pty Ltd [2005] TASSC 8, Evans J noted the following about the doctrine in relation to statutory entities, at par[17]:

"The term 'functus officio' describes a consequence of the performance of a function by an authorised entity having regard to the statutory power or obligation to perform that function. The consequence is that once the statutory function is performed, there is no further function or act for the entity authorised under the statute to carry out: Jayasinghe v Minister for Immigration and Ethnic Affairs[1997] FCA 551; (1997) 145 ALR 532 at 542, R v Moodie; Ex parte Mithen(1977) 17 ALR 219 at 225; Sloane v Minister for Immigration, Local Government and Ethnic Affairs[1992] FCA 414; (1992) 37 FCR 429." 

1. Consideration was given to the functus doctrine by Gleeson CJ in Bhardwaj.  The judgment of Gleeson CJ stated that the resolution of the issue depends upon the nature and extent of the power conferred upon the tribunal by the legislation under which it is acting (par[3], citing Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, per Gummow J). Having identified the legislation as the touchstone in resolving the issue, it was also noted at par[6] that "much may depend upon the nature of the power that is being exercised and of the error that has been made".

1. Gleeson CJ, at par[8], went on to note that finality of decision-making is a powerful consideration having regard to the requirements of good administration and the need for people to know where they stand.  Gleeson CJ noted the facts of the case which showed that there can be circumstances where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The determining question is: "whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen"?  Gleeson CJ stated that that requires examination of two questions "Has the tribunal discharged the functions committed to it by statute?" (see also Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, per Beaumont J at 225) and "what does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers"?

1. It is evident from the judgment of Gleeson CJ in Bhardwaj that the proper approach remains one of focussing on statutory interpretation, regardless of the nature of the error, but that the nature of the error may influence the answer to the enquiry.  The question of whether the doctrine applies is not resolved by whether there has been a failure to discharge a statutory function.  If that were so, there would be no need for the second question posed by Gleeson CJ.

1. The judgment of Gleeson CJ, at par[7], cited with approval a judgment of Sopinka J speaking for the majority in the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 and then commented as follows:

"In Chandler v Alberta Association of Architects Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and 'there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.'" 

1. It is to be noted that Chandler allows for exceptions to the application of the doctrine if "there are indications in the enabling statute".  

1. The other judgments in Bhardwaj did not specifically consider the doctrine of functus officio.   The joint judgment of Gaudron and Gummow JJ referred to the same judgment of Sopinka J in the context of the decision-maker's power to reconsider, and treated it as revealing that the "view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada" (par[52]).  Of course, this is a long way from the view espoused by the respondents that there is a universal proposition that decisions involving jurisdictional error cannot attract the doctrine of functus officio.  There is no support for that view in the judgments of Bhardwaj.  Indeed, the judgment of Gleeson CJ in Bhardwaj is at odds with the submission of the respondents; the judgment acknowledging the sound policy favouring finality of proceedings, and identifying the questions that should be answered in order to ascertain whether the doctrine has application. 

1. Given the clear guidance provided by Gleeson CJ it is not necessary to traverse all of the other authorities supporting the appellants' contention that the doctrine may be invoked. It suffices to note that there are authorities pre-dating Bhardwaj which take a statutory interpretation approach, like that taken by Bhardwaj in ascertaining whether the Tribunal's power is spent: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 211, Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443, Jayasinghe v Minister for Immigration and Ethnic Affairs, (supra) at 541.

1. I refer to one of the cases relied upon by the appellants decided since Bhardwaj.  In Kabourakis v The Medical Practitioners Board [2006] VSCA 301, the appellant was a medical practitioner who had been the subject of proceedings before the Medical Practitioners Board of Victoria in relation to a complaint of unprofessional conduct.   After a finding that the appellant had not engaged in such conduct, and upon it transpiring that the hearing panel had not been provided with a relevant medical report, the investigation was reopened and a further hearing was listed.  There was an argument that the panel was functus officio.  An order for declaratory proceedings was dismissed and appealed to the Full Court.  The issue was whether the panel had come to a final and binding outcome.  The judgment of Nettle JA, with whom Warren CJ and Chernov JA agreed, noted the distinction between jurisdictional error and non-jurisdictional error.  Consideration was given to Bhardwaj and it was noted that unlike Bhardwaj the error before the Victorian Supreme Court was not a jurisdictional error.

1. The judgment of Nettle JA, at [47], provided that "whether an error is jurisdictional or non-jurisdictional, the question of whether a decision may be re-opened to correct an error turns in the end on the meaning of the statute under which the decision is made."  Further, the judgment noted, at [48], that "self-evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made.  As was pointed out in Bhardwaj, Parliament may give an administrative decision whatever force it wishes.  Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen" (pars[47] and [48]).

1. The case of Bhardwaj, and other cases that I have mentioned, do not provide support for the respondents' proposition that the doctrine of functus officio has no application to decisions flawed by jurisdictional error.  The judgment of Gleeson CJ provides guidance on the application of the doctrine to such decisions. The approach is to construe the statute to ascertain whether the power to reconsider exists.  

1. The respondent relied upon a number of cases to establish that the doctrine of functus officio  was confined and had no application to decisions involving jurisdictional error. The authorities relied upon by the respondents of Re McWilliam and Civil Aviation Safety Authority (2005) 89 ALD 391, Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd (2003) FCAFC 18, Kuligowski v Metrobus (2004) 220 CLR 363 are concerned with whether a decision of an administrative tribunal in respect of a "jurisdictional fact" is conclusive or binding such as to give rise to issue estoppel. The case of Craig v South Australia (1995) 184 CLR 163, also referred to, provides helpful guidance as to identification of jurisdictional error, which is, as I have already noted, an uncontentious issue in this case. I make a number of observations about these authorities. They are dealing with a different issue than the present case and do not detract from the authority of Bhardwaj (see Re McWilliam and Civil Aviation Safety Authority at par[33], indicating cases are subject to Bhardwaj).  Further, they are not authority for the proposition advanced by the respondents that the doctrine of functus officio cannot apply to decisions involving jurisdictional error.

1. Another case relied upon by the respondents is Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429. In that case the Full Court of the Federal Court considered that the Administrative Appeals Tribunal could revisit the issue of its jurisdiction after a decision by another member of the tribunal during the same review proceedings. The first decision was that the tribunal had jurisdiction and a later decision was that that the tribunal lacked jurisdiction. It was argued on appeal that the first decision was binding on the tribunal. In a judgment of the court, at [37], it was stated that as the first decision "had been affected by a jurisdictional error, the Tribunal was entitled to treat that decision as having no legal effect and as no decision at all". In support of this proposition reference was made to Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and the judgments in Bhardwaj.  It is at least arguable, that the facts of that case are distinguishable, as the two decisions were made by the AAT during the same ongoing review proceedings, and when the second decision was made those proceedings were being treated by the Tribunal as ongoing.  In any event, Duarte concerns an application of the principles of Bhardwaj and does not detract from the import of Bhardwaj.

1. However, the respondents' key contention is not bereft of supporting authority.  Such support can be found in the judgments of the majority in Leung v Minister for Immigration (supra).  The judgment of Finkelstein J in Leung, with whom Beaumont J agreed, considered the application of the doctrine of functus officio to "valid" and "invalid" decisions.  Finkelstein J considered invalid decisions, meaning decisions which can be impugned for jurisdictional error or for a failure to observe procedural fairness, or one that is brought about by fraud or misrepresentation (at 411), treating them as "void".  Finkelstein J held that the functus officio rule has no application to such decisions.  His reasoning was as follows at 414:

"To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression 'functus officio' has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions." 

1. This was not to deny that the decision had operational effect (see the passage quoted above at 413 of the judgment).

1. It will be seen that as a consequence of the approach taken by Finkelstein J in Leung in decisions involving jurisdictional error, there is no need to look for either an express or an implicit power of reconsideration.  An inevitable consequence of jurisdictional error is that there must be power to reconsider, regardless of the statute and the circumstances.  This coincides with the approach taken by the Tribunal in this case. 

1. The dissenting judgment of Heerey J in Leung agreed that the appeal should be dismissed, but for different reasons, disagreeing with the approach of the majority and instead taking the path of statutory construction, prescient of the approach to be taken by the High Court in Bhardwaj. In rejecting the approach of the majority, Heerey J noted that the supposed general rule of revocation would necessarily "extend indefinitely in time and to factual errors for which persons affected by the decision were in no way responsible. Such persons might have arranged their own affairs on the basis of the decision" (at 402).

1. The approach of Finkelstein J has since been swept aside by Bhardwaj. Judgments in Bhardwaj cast doubt on the assistance provided by classifications such as void and voidable, and focus on a construction of the statute (Gaudron and Gummow JJ at 613, Hayne J at 642 and 646 - 647). The nature of the error and whether it is a jurisdictional error is a significant consideration that weighs against the application of the doctrine of functus officio to any particular decision, but the consequences of such error will depend upon the terms of the governing statute.  The Tribunal's approach is inconsistent with the approach adopted by the members of the High Court of construing the statute to ascertain whether there was power to reconsider.  The reasoning of Gleeson CJ indicates that the question of functus officio is a matter of construing the statute and turns on the questions he identified.  In cases of jurisdictional error, compared with non-jurisdictional error, it may be more readily concluded that the statutory functions have not been performed.  In such a case where that conclusion was reached there would remain the question of what does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or reconsider the matter afresh?

1. I conclude that it is well-settled that the questions of whether a tribunal has power to reconsider an earlier decision, and whether the doctrine of  functus officio applies to that earlier decision are resolved by construing the statute under which the tribunal was acting.    Resort to the statute to ascertain whether the function is indeed complete, and, if not, what was intended as a consequence, seems a natural consequence of the rationale of the doctrine of functus officio.  If a statutory tribunal has only the power that Parliament bestows upon it, scrutiny of the relevant legislation to ascertain the legal consequences of failing to discharge its functions seems inescapably to follow as the correct approach. 

1. Before turning to consider the statute, I note that the application of the doctrine of functus officio is not essential to the success of the appellants' argument. If the statute expressly or by implication reveals that there is no power for the Appeal Tribunal to reconsider its earlier decision then it is not necessary for the appellants to rely on the doctrine.  

1. I turn to the task of construing the statute. 

Construction of the statute

1. The question is whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen (adopting the test articulated by Gleeson CJ in Bhardwaj at [8]). There being no express power for the Tribunal to reconsider its 2009 decision, the question is whether such a power can be inferred from the Act.

1. The commencement point for a consideration of the scheme of the legislation is LUPA. Section 61 confers a right of appeal to the Tribunal against a planning decision. Section 53(3) deals with an appeal against a planning authority's decision to grant a permit, and makes provision for when the permit takes effect:

"53(3) Where an appeal has been instituted against the planning authority's decision to grant a permit, the permit does not take effect until the determination or abandonment of the appeal."

1. The scheme of the RMPAT Act is as follows.

Determination of appeals (s23):

·     The Tribunal is required to make a decision on the appeal in writing and notify each party to the appeal as soon as practicable after making it (s23(2) and (3)).

·     The Tribunal's decision comes into effect at the expiration of ten days after the day on which the decision was made (s23(4)).

·     The Tribunal may correct "a clerical mistake or an error arising from any accidental slip or omission, or an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing or property referred to in its decision" (s23(5)).

·     The Tribunal may amend its decision on an appeal if it is satisfied that the amendment does not change the effect of any condition required by the Tribunal, and will not cause an increase in detriment to any person (s23(6)).

Appeals to the Supreme Court (s25):

·     A party can appeal to the Supreme Court against a decision of the Tribunal on a question of law with 28 days (s25(1) and (2)).

·     The Supreme Court may extend the time for instituting the appeal (s25(3)).

·     An appeal to the Supreme Court does not affect the operation of the Tribunal's decision, unless the Supreme Court makes an order to the contrary (s26(1)and (2)).

1. A permit takes effect at the expiration of 14 days after the date on which it was granted or unless an appeal to the Tribunal is instituted (LUPA Act, s53(1)). In the event of an appeal to the Tribunal, the permit would take effect on the Tribunal's determination of the appeal or upon abandonment of the appeal (LUPA Act, s53(3)), unless the Tribunal varies or sets aside the decision regarding the permit or makes a substituted decision or remits the matter for reconsideration (RMPAT Act, s23(2)), or unless there is an appeal to the Supreme Court from that determination and the Supreme Court stays the Tribunal's order (RMPAT Act, s26). Once the appeal is determined by the Supreme Court then it may affirm a decision of the Tribunal, or set it aside (RMPAT Act, s25(6)). A further provision to keep in mind is LUPA,s53(5) which provides that if the use or development is not substantially commenced, permits expire after two years from the date on which the permit was granted, or if there is an appeal in relation to the grant of the permit, the date of the determination or abandonment of the appeal, or unless the planning authority has granted an extension of time under s53(5)(b).

1. As a consequence of the statutory scheme and the pathway taken in these proceedings involving an appeal to the Tribunal, the permit was suspended until the determination of that appeal. The submissions made by counsel presupposed that as the Tribunal did not make an order setting aside or varying the Council's decision regarding the permit, the permit was not extinguished.  That would seem correct given the legislative scheme and the nature of the Tribunal's decision that the permit was invalid without making consequential orders.  Evidently, the Tribunal did not make any consequential orders because it held that as a consequence of the permit being invalid it had no jurisdiction to do so. As there was no order made by the Tribunal setting aside or varying the decision regarding the permit, and there was no appeal to the Supreme Court, it may be that the permit took effect on the determination of that appeal by the Tribunal in February 2009. In this context it is to be borne in mind that the appeal to the Tribunal was decided in February 2009, and it was not until August 2010 that the Tribunal reconsidered its earlier decision. 

1. In the circumstances of this case, once the Tribunal determined in February 2009 that the permit was invalid, and that the Tribunal had no jurisdiction, there was an end to the Tribunal proceedings.  The Tribunal's determination was couched in unequivocal terms, there was no suggestion in the Tribunal's reasons that the appeal proceedings were other than final and complete.  As a consequence of the Tribunal's pronouncement that the planning permit was invalid, and that the Tribunal did not have jurisdiction to consider the appeal, the Tribunal had no more functions to perform with respect to the appeal proceedings.  In short, the Tribunal proceedings had reached a terminus, unless the decision was appealed to the Supreme Court. 

1. In construing the statute it is clear from the scheme of the RMPAT Act regarding appeals that finalisation of appeals to the Tribunal is meant to bring certainty: permits are in suspension and have effect when Tribunal proceedings have resolved, unless an appeal to the Supreme Court results in a stay order being made. Time limits for the expiry of permits are triggered by the finalisation of appeal proceedings by the Tribunal. It is completely at odds with that scheme that a long time after appeal proceedings to the Tribunal have concluded, and absent an appeal to the Supreme Court, that the parties should be able to breathe new life into those same Tribunal proceedings, which may potentially alter the status of the permit.

1. Another indication of Parliamentary intention regarding the power of the Tribunal to reconsider its decisions, is the provisions in the RMPAT Act giving the Tribunal certain powers in relation to correction and amendment of a decision. Section 23(5) provides, in part:

"(5)     The Appeal Tribunal may correct a clerical mistake or an error arising from any accidental slip or omission or an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in its decision.

(6)       The Appeal Tribunal may amend its decision on an appeal if it is satisfied that the amendment –

(a)does not change the effect of any condition required by the Appeal Tribunal; and

(b)     will not cause an increase in detriment to any person."

1. Obviously the Tribunal's later decision of August 2010 does not qualify as a "correction" under s23(5).  Also, the Tribunal's later decision of August 2010 is not an amendment of its earlier decision.  It is a new decision reversing the earlier decision. 

1. The inclusion of these provisions in the RMPAT Act "is recognition that without them the Tribunal would have no power to correct or amend a decision": R v The Resource Management & Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (supra) at 19. Here the power to amend is relatively wide compared with corrective powers to be found in other legislation. For an example of a more narrow power involving correction of "obvious error" see s94(6), Motor Accidents Compensation Act 1999 (NSW) discussed in Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266, pars[184] – [188]. Speaking generally, the more comprehensive the corrective relief provided by the legislation, the more readily it may be inferred that the legislature intended to cover the field with respect to such powers of correction.

1. The scheme of the RMPAT Act is that appeals to the Tribunal be determined within 90 days (s16(1)(f)), with a time limit for instituting appeals to the Supreme Court and discretion to extend that time limit (s16(6)). It may be noted that the entitlement to appeal on a question of law applied to the February 2009 decision. These appeal provisions reveal that there are effective remedies to cure injustice and that Parliament expressly limited the times in which they are to be activated. The Supreme Court's discretion to extend the time limit ensures that parties are not shut out from redress. Such provisions imply that the Tribunal does not have an overarching power to treat determinations as being "for ever provisional":  Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301, at [76]. To borrow from the words of Gleeson CJ in Bhardwaj at [8], the statutory scheme including the "conferring and limitation of rights of review on appeal may evince an intention inconsistent with a capacity for self-correction". Assuming the Tribunal failed to discharge its functions because of jurisdictional error as to the validity of the permit, the statute provides for relief and, by implication, it was not intended that the Tribunal should revisit the exercise of its powers. The terms of the Tribunal's decision are that the decision was final, bringing an end to the appeal proceedings. The clear remedy is an appeal to the Supreme Court rather than self correction.

1. In considering the scheme of the Act and the intention that may be gleaned as to the Tribunal's power to reconsider, the consequences of such a power are considered (Gleeson CJ in Bhardwaj at [13]).  Often the courts resort to hypothetical scenarios to test whether the consequences are at odds with Parliamentary intention (Kabourakis per Nettle JA at par[65]). Resort to a hypothetical set of facts is not necessary to reveal that here. The Tribunal reconsidered a decision which was final and an effective determination of the appeal rights of the parties before the Tribunal. The decision, couched in unqualified and conclusive terms, was reconsidered some 18 months after it was delivered. That consequence is inconsistent with the scheme of the Act. Objectives of certainty and finality are embedded in the legislative scheme.

1. If the Tribunal had power to treat the decision as legally ineffective and reconsider it at that time, it had power to reconsider at any time, many years after it has purported to make a decision and regardless of what a person affected by the decision has done or failed to do on the basis of the decision (these consequences referred to by Gleeson CJ at [8] and Kirby J, in dissent [102] – [104] in Bhardwaj and Heerey J in Leung at 402). This consequence produces significant uncertainty for the parties. The Tribunal could reconsider the issue of jurisdiction any number of times producing a number of inconsistent decisions (this point was made in Kabourakis per Nettle JA at par[69]). Such consequences are inconsistent with the scheme of the Act.

1. In Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, French J noted that the task of ascertaining whether reconsideration of a statutory decision may itself be a course contemplated or authorised by the statute is "not without difficulty and is attended by policy considerations which are in some degree in conflict". These policy considerations are elaborated upon at 443. It is worthwhile emphasising that policy considerations are relevant in the context of ascertaining Parliament's intention but that the inquiry about the Tribunal's power to reconsider its decision "must begin and end with the Act": words borrowed from Hayne J in Bhardwaj at par[147].

1. I conclude that the statute does not support an inference that the Tribunal had power to reconsider its decision.  The proper construction of the Act reveals that the Tribunal's decision of February 2009 was final and cannot be reconsidered.  In light of this conclusion, it is not necessary to express a concluded view regarding the doctrine of functus officio.  If the doctrine applies to the Tribunal's 2009 decision, it would provide a second reason why the Tribunal could not reconsider it.

Was there jurisdictional error in the February 2009 decision?

1. It was argued for the appellants that it could only be said that the earlier decision of the Tribunal in February 2009 was erroneous as a consequence of the decision of Porter J in Jackson v Building Appeal Board if the material before the Council, and hence the Tribunal, was the same as the material before the Board, considered by Porter J.  The submissions drew attention to the fact that there had been no determination by the Supreme Court that the earlier Tribunal decision involved jurisdictional error.  

1. In Jackson, Porter J considered that the Board had not independently determined the issue of validity of the planning permit and had merely adopted the Tribunal's reasons.  Porter J considered that it was open for the Council to grant a permit, and the Board erred in determining that the Council had no power to grant the permit.  It was submitted that the type of error that Porter J attributed to the Board had been repeated by the Tribunal in its later decision, and the Tribunal had merely adopted the conclusion of Porter J and had not determined the question of jurisdiction for itself.  It was submitted that the Tribunal should have considered what evidence was before the Council to see whether it was open, as a matter of law, for the Council to have granted the permit, and whether the conclusion of Porter J was applicable to that evidence.

1. The submissions for the respondents, made by Mr Stanton, were that the appellants had not demonstrated that the materials before Porter J differed from those materials before the Tribunal, and hence no error had been disclosed.  It appears that there is validity in this submission.  If it transpired that the materials before the Council, and thus the Tribunal, coincided with the materials before Porter J, then the clear implication of the Supreme Court decision is that the Tribunal's earlier assessment of the invalidity of the permit in February 2009 was erroneous. 

1. It is not necessary for me to reach a concluded view about this issue.  Regardless of whether Jackson v Building Appeal Board discloses error by the Tribunal in its decision made in February 2009, there was no power for the Tribunal to reconsider its own decision in light of that decision.  

Conclusion regarding 732 

1. Appeal 732 must succeed as the Tribunal had no power to reconsider its earlier decision.  The August 2010 decision was without jurisdiction, amounted to an error of law, and is to be set aside. 

Appeal 164

1. The facts giving rise to appeal 164 are as follows.  The appellants obtained a planning permit for a farm shed at their property at Moorleah on 15 August 2006.  The planning permit provided that the shed was not "to be used for habitable purposes".  The farm shed was built.  Also on the land is a caravan, vegetable garden, orchard, fowls and ducks.

1. On 17 August 2009, Mr and Mrs Purton applied to the Tribunal pursuant to the LUPA Act, s64, alleging that Mr and Mrs Jackson had breached a condition of their permit and the LUPA Act, s63(2)(a), (b) and (c). This section covers a breach of the relevant planning scheme, in this case the Waratah-Wynyard Planning Scheme 2000 ("the Planning Scheme"). The nature of the contravention alleged in the application was that Mr and Mrs Jackson were illegally occupying the shed, and that occupation was causing a "fettering of agricultural use". Mr and Mrs Purton were not able to discharge a firearm within 250 metres of the shed if it was used as a residence. They had a market garden and wished to use a firearm for vermin control. The application sought an order from the Tribunal restraining Mr and Mrs Jackson from using the shed in contravention of the permit.

1. On 11 February 2010, the Tribunal delivered a written decision on the s64 application and made "orders" restraining Mr and Mrs Jackson. These "orders" are the subject of this appeal, 164/10, and are set out by the Tribunal at the conclusion of the written decision under the heading "Disposition". I set out below all that appears under that heading:

"28 It follows from all of the above that the Tribunal is satisfied on the balance of probabilities that the breaches alleged are established. The Applicants are therefore entitled to relief. It is appropriate that orders be made restraining Mr and Mrs Jackson in the following terms:

1 That A and M Jackson are restrained from using or permitting the use of the land and any building or structure thereon, including but not limited to the farm shed and the caravan on the land, as a dwelling, for a residential use or for any habitable purpose.

2 That A and M Jackson prevent any other person from using or permitting the use of the land and any building or structure thereon including but not limited to the farm shed and caravan on the land, as a dwelling, for residential use or for an habitable purpose.

29 The issue of demolition is less straight forward. Accordingly the matter will be relisted for argument in relation to the issue of demolition on:

for: Friday, 26^th February 2010 before the Chairman

at: 11:00 am

at: The Tribunal Offices, Level 1, 144 Macquarie Street, Hobart and via phone conference. Please provide the Tribunal of a telephone contact number 48 hours prior to the hearing.

Dated this 11^th day of February 2010" 

1. On 23 February 2010, the applicants sought orders relating to demolition of part of the shed.  The orders were opposed by Mr and Mrs Jackson.  The Registrar of the Tribunal wrote to the parties by letter dated 24 February 2010, with a hearing date to resolve the dispute. A timetable was also provided for written submissions as to costs to be exchanged and filed in advance of the hearing date.  An appeal to this Court was filed on 15 March 2010 in relation to the Tribunal's decision on 11 February 2010.  The hearing date before the Tribunal was vacated in view of the Supreme Court proceedings.

The issues raised by the appeal

1. As set out above, the Tribunal's decision included terms restraining Mr and Mrs Jackson from using the shed and the caravan for any habitable purpose.  There were originally three grounds of appeal, but two were abandoned at the hearing of the appeal, and at that time a fresh ground was added.  The remaining two grounds of appeal are set below and described as ground 2 and the new ground: 

"2        The Tribunal erred in law and fact in finding the evidence supported a finding the use of the caravan on the land meets the residential use class in terms of the Waratah/Wynyard Planning Scheme." 

The new ground:

"The Tribunal erred in law and fact in making restraining orders that were too wide in that they were not qualified by the words 'absent a planning permit' and/or were not limited to the use of the farm shed or the farm shed and the caravan." 

1. It was submitted for the appellants that the orders made by the Tribunal ought to be set aside and in lieu the following orders made:

"a)       That absent a planning permit A & M Jackson are restrained from using or permitting the use of the farm shed on the land as a dwelling, for a residential use or for any habitable purpose;

b)        That absent a planning permit A & M Jackson prevent any other person from using or permitting the use of the farm shed on the land, as a dwelling, for residential use or for any habitable purpose."

(par4 of outline of appellants' submission).

1. It was conceded by the respondents that the restraining order ought to have been subject to the words "absent a planning permit". It is acknowledged that otherwise the orders may potentially restrain Mr and Mrs Jackson from conduct which is not in breach of the LUPA Act. Clearly, the amendment should be made. The reason for the Tribunal not including that exception may lie in the Tribunal's earlier decision and the reasoning of the Tribunal that there was no power for the planning authority to issue a permit for a dwelling under the terms of the Planning Scheme. Mr Stanton made the submission that if the amendment to the order were to be made it should specify a "valid and effective permit". That refinement is also uncontentious. Accordingly, this aspect of the new ground does not require consideration, and an order will be made in those terms. The other matter raised in the new ground of appeal regarding the breadth of the Tribunal's orders was in contention.

1. Before leaving the grounds of appeal it may be noted that Mr and Mrs Jackson do not challenge the Tribunal's finding that on the balance of probabilities they contravened Pt 4 of LUPA Act in respect of their use of the shed and the caravan.

1. A preliminary objection to the appeal was raised by counsel for the respondents that the appeal was premature, as the Tribunal had not made any "orders" within the meaning of the LUPA Act, s65(1).

1. The issues raised in this appeal are as follows:

·     Whether the Tribunal made "orders" that can ground an appeal?

· Whether the orders were invalid because they were wider than that permitted by s64(3) because they extended to the use of the land?

·     Whether the Tribunal erred in determining that the caravan fell within the residential use class in the Waratah-Wynyard Planning Scheme 2000?

A preliminary point: orders?

1. It is submitted for the respondents that the appeal is incompetent because it is premature.  The submission is that the reason the appeal is premature is because the Tribunal has not yet made an order or orders, and the right of appeal is granted only from an order of the Tribunal; the Tribunal has made a decision to make an order but has not yet made the order.  Counsel for the respondents, Mr Stanton, relied upon State of Victoria v Turner (2007) 17 VR 217 and Lawrance v Commonwealth of Australia [2007] FCA 1524 at [65], in support of his argument that an expression of reasons is insufficient if a formal order is required to ground an appeal.

1. Counsel for the appellants argued that the Tribunal uttered formal orders and not a mere expression of reasons in relation to the matters dealt with at par[28] of the Tribunal's decision (see par[111] above) and that the only matter left outstanding was the matter of demolition.

1. The LUPA Act, s65, provides as follows in relation to the right to appeal from outcomes of enforcement proceedings before the Tribunal:

"65 Appeal in respect of decision of Appeal Tribunal under section 64

(1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against –

(a) an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64; or

(b)  a decision by the Appeal Tribunal not to make an order under that section."

1. Subsection (2) provides that the appeal must be instituted within 30 days of the date of the decision or order subject to appeal, or such longer period as may be allowed by the Supreme Court.

1. The appeal provision in s65 relates to orders made by the Tribunal in relation to proceedings under s64. An "order" is essential to ground the appeal. Has the Tribunal made an order or orders?

1. The clear effect of the Tribunal's decision is that orders have been made as set out in sub-pars(1) and (2) of par[28] of the decision.  It is clear that these are not merely proposed orders. I will explain in a little more detail why it is plain that actual orders have been made.

1. Paragraph [28] of the Tribunal's decision commences with a statement that the breaches alleged are established.  This is the essential precursor to the making of orders. The Tribunal then states that it turns to consider relief, and that the orders that follow are appropriate. The Tribunal does not describe them as proposed orders.  It is plain that sub-pars(1) and (2) that follow contain the orders.  The terms of the orders are typical of the language employed by courts and tribunals to express orders: they reflect the powers contained in the Act;  they are in clear and precise terms and command compliance; and the two orders are set out in separate and numbered paragraphs to distinguish them from the reasons that underpin the orders. 

1. In my view, the preamble to the terms of sub-pars(1) and (2) which speaks of it being appropriate that orders be made in the following terms does not introduce any ambiguity to what follows. It is plain that the Tribunal is pronouncing orders in those following sub-paragraphs. Furthermore, there can be no question that the Tribunal is expressing the view that the only issue that remains to be considered is the issue of demolition. If sub-pars(1) and (2) contained proposed orders, then it would be expected that the Tribunal would invite submissions about them and the parties would have been informed that they had an opportunity to address them as an outstanding issue. I conclude that the Tribunal made orders within the meaning of the LUPA Act, s65(1).

Whether the orders are invalid because they were wider than they need to be?

1. The Tribunal heard evidence regarding Mr and Mrs Jackson's use of the shed and whether they had breached the condition that they were not to use the shed for habitable purposes (condition 2 of the permit).  The Tribunal made a determination regarding the meaning of habitable purposes and that the term must relate to normal domestic activities such as sleeping, cooking, eating, washing and the like.  That is not in contention.  The Tribunal made a finding of fact that "the evidence also supports, conclusively, that the caravan is being used, at least some of the time, for domestic purposes, if not on a 'stand alone' basis then in conjunction with the shed".  That finding of fact is not challenged here.  The Tribunal was satisfied that Mr and Mrs Jackson had breached condition 2 of their permit.  That is not challenged.  The issue raised by the appeal relates to the width of the order made.  It is asserted that it is wider than permitted by the provision which empowers the Tribunal to make orders restraining breaches. 

1. The LUPA Act, s64, in part, provides:

"64 Civil enforcement proceedings

(1) Where a person contravenes or fails or is likely to contravene or fail to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(3) If –

(a)  after hearing–

(i)  the applicant and the respondent; and

(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings–

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; or

…

the Appeal Tribunal may, by order –

(c)  require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d)  preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

(e)  require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal." 

1. It is noted that the consequences of an order made by the Tribunal expose respondents to a pecuniary penalty if the order is breached. Section 64(7) provides:

"(7)     A person who contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence.

Penalty:

Fine not exceeding 500 penalty units." 

1. There is also provision for leave to be given by the Tribunal for work contemplated by the order to be carried out and the costs to be recovered as a debt from respondents: s64(8). There is also general power to require respondents to "make good the contravention or default in a manner, and within a period specified by the Appeal Tribunal": s64(3)(e).

1. The issue here is whether the orders are too wide because they extend to use of the land and are not limited to the farm shed and the caravan which had been the subject of the evidence and the findings by the Tribunal.  The complaint was that the entire use of the land was covered by the orders, when the allegations did not extend beyond the caravan and the shed.

1. It appears from the Tribunal's decision that submissions were not invited about the ambit of the orders, and the terms of the orders did not attract attention during the hearing.  The orders made reflected draft orders sought by Mr and Mrs Purton. 

1. A consideration of this submission turns on the statute and the power to make orders restraining conduct. It can be seen that the statutory power is closely tied to the contravening conduct. Section 64(3)(c) speaks of a discretion to make orders requiring respondents "to refrain" from the "course of action, that constitutes the contravention of, or failure to comply, …". Similarly, s64(3)(d) provides for a power precluding respondents "from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates". Here the order restrained use of the land but the contravention was limited to the shed and the caravan.

1. The wording of the provision indicates that it is necessary that orders address the contravention. Equally, the wording does not constrain the Tribunal to impose orders which mirror the acts of contravention. It is clear from the terms of the empowering provision that the Tribunal has a judgment to exercise as to the terms of such orders that will work effectively and which will restrain repetition of the breaches. It is important to note that it is also evident that the purpose of the Tribunal's powers to restrain conduct in the future relates to contraventions that the Tribunal has found to have occurred or found likely to occur. These contraventions must have been the subject of findings reached on the balance of probabilities: s64(3)(a). The Tribunal does not have broad powers to pre-empt breaches. The Tribunal's power is tied to the findings that have been made that the respondent has contravened or is likely to contravene the LUPA Act.

1. Orders under the LUPA Act, s64, have been likened to injunctions: State of Tasmania v Latham [1997] TASSC 148 at [4].  Counsel for Mr and Mrs Jackson relied on case law relating to injunctions to support the argument that the orders ought to be carefully drafted to ensure that they address the contravention.  My attention was drawn to two decisions of the Full Bench of the Federal Court which have emphasised that courts should be careful to ensure that an injunction does not go further than the circumstances of the case require, and that the injunction bears upon the case alleged and proved against the defendant: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 111 ALR 61 at 78, and Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 575.

1. It was submitted by Mr Stanton, for the respondents, that while injunctions should relate to the breach that is proved that does not mean that the injunction must precisely correspond to the breach. Mr Stanton also argued that the contravention here is not only a breach of condition 2 of the permit in relation to the shed, but also a contravention of the LUPA Act, s51(1), which states that a person cannot commence any use or development which requires a permit. Mr Stanton emphasised that the permit relates to the land.

1. I return again to the allegations before the Tribunal that were the subject of findings by the Tribunal.  The allegations were confined.  At par[7] of the Tribunal's reasons the allegations were referred to:

"7        Mr and Mrs Purton (and the Council) contend that Mr and Mrs Jackson’s use of 301 Pages Road is a breach of Part 4 of the Land Use Act for two reasons. First they say it breaches condition 2 of permit DA131/2006. Second it is alleged that the use and development of the shed amounts to a residential use in respect of which a permit is required under the Scheme and none exists." 

1. The Tribunal's findings were that the breach of s51 arose from the shed being used as a dwelling. 

1. In my view, the order is wider than it needs to be and extends to the use of the land generally as well as dealing specifically with the shed and the caravan.  The allegations related to the shed and the evidence did not touch on any other use of the land other than the caravan and the shed. 

1. If there is any use of the land amounting to a breach of the LUPA Act in the future, apart from the caravan and the shed, then it may be the subject of further proceedings. I cannot detect in the Tribunal's reasons any justification for the ambit of the order. I conclude that the reference in the order to the use of the land is not connected to the contravention the subject of the Tribunal's findings, and an order in those terms is wider than permitted by LUPA, s64.

1. A final point arose during this appeal as to the breadth of the orders.  During consideration of some of the photographic evidence that had been before the Tribunal, it was apparent that there were in fact two caravans on the appellants' land and not one.  It was argued that the order was vague and uncertain because it did not specify which caravan was the subject of the order.  I must say, I would see nothing wrong with including both caravans in the order if both were being used as dwellings.  However, the terms of the order indicate that the Tribunal only intended the order to relate to one caravan, and Mr and Mrs Purton sought orders relating to only one caravan.  I do not intend to enlarge the orders beyond what was sought at the hearing.  As for the uncertainty of which caravan is subject to the order, it is obviously the caravan that was the subject of evidence at the hearing before the Tribunal.  The parties will know which one that was.  However, the order should be objectively certain and clear to enable the determination of whether it has been breached: R v Resource Management & Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (supra) at 24.  Noting that the ground of appeal is to be upheld, the substituted order should provide an adequate description of the caravan the subject of the order.  I will hear from the parties further as to that description and the terms of the order. 

Whether the Tribunal erred in determining that the caravan fell within the residential use class in the Waratah-Wynyard Planning Scheme 2000

1. The Tribunal made a finding at par[15] of the decision that Mr and Mrs Jackson are "using the shed and caravan on the land in a way that meets the residential use class in terms of the Scheme".   The Tribunal concluded that the caravan was being used contrary to the Planning Scheme and amounted to a breach of LUPA, Part 4. 

1. The Planning Scheme sets up zones and various use classes.  The appellants' land is within the Primary Industry Zone.  Under the Planning Scheme each use of the land must be categorised within a use class (cl 3.1.8 of the Planning Scheme).  These various use classes are designated in cl 3.1.3:

"3.1.3  Use classes designated for use in this planning scheme are:

Residential

Business and Civic

Industrial

Resource Development

Environmental Management

Recreation

Utilities" 

1. The finding that the use of the caravan met the residential use class is challenged as erroneous and it is submitted that the caravan does not come within that class:  

1. Clause 4. 3 deals with various definitions.  The residential use class is defined:

"4.3.1 In the following definitions the word 'used' also means 'intended

to be used'.

Residential Use Class

Definition:

Use of land for one or more dwellings providing predominantly longer term accommodation.

It includes but is not necessary limited to:

boarding houses, group houses, communal dwellings, conjoined dwellings, apartments, flats, multiple dwellings, dwellings which may include an ancillary flat and retirement villages." 

1. Dwelling is defined in Part 4.2. of the Scheme:

"Dwelling means any building or part of a building used, or capable of being used, as a self contained unit for cooking, sleeping, eating, washing and other domestic purposes. It includes outbuildings and works incidental to a dwelling." 

1. The Tribunal made findings of fact about the use of the shed concluding, in par[24] that it was satisfied on the balance of probabilities that the shed is being used as a dwelling.  The Tribunal went on to find, at par[25] that the evidence also supports, conclusively, that "the caravan is being used, at least some of the time, for domestic purposes, if not on a 'stand alone' basis then in conjunction with the shed." 

1. The submission on behalf of Mr and Mrs Jackson is that the Tribunal erred in finding that the caravan met the residential use class in the Scheme, and that by virtue of cl 4.3 such class relates to "dwellings", that a dwelling means a building as defined in cl 4.2 of the Scheme and a caravan is not a "dwelling" and therefore does not fall within the residential use class.

1. The short answer to this submission lies in a further definition in the Scheme.  The word "building" is defined to extend it beyond the usual meaning of that word:

"Building includes:

(a)       a structure and part of a building or structure;

(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c)       a boat or pontoon which is permanently moored or fixed to land."

1. It was submitted for the respondents that the ordinary meaning of the word "structure" is a whole constructed unit. This proposition is consistent with the dictionary definition. The New Shorter Oxford English Dictionary (Clarendon Press 1993) defines the word "structure" as "A thing which is built or constructed; a building, an edifice. More widely, any frame work or fabric of assembled material parts". A caravan is a structure. The Tribunal did not err in concluding that the use of the caravan for a residential purpose was a breach of LUPA Act.

1. It was further submitted for the respondents that the Tribunal's finding was justified even if the caravan did not amount to a dwelling.  It was submitted that the Scheme requires a "best fit approach": cl 3.1.3.  It was submitted that it was open to the Tribunal to be satisfied that the most appropriate classification was residential use, and open to the Tribunal to determine that the use of the caravan as a dwelling required a permit.  The contention was that there being no challenge to the fact that the caravan was being used as a residence, it was open to the Tribunal to find that the most appropriate classification was residential use. 

1. A final submission for the validity of the orders extending to the caravan was that no matter what category of use applied under cl 4.3, a permit was required for any use of the land as a dwelling (LUPA Act, s51), and, given no permit was obtained, there was a contravention of the Act.  There is no need for me to consider these submissions as the residential use class in the Scheme could apply to the caravan.

Conclusion regarding 164

1. I conclude that orders relating to the caravan were permitted.  The Tribunal did not make an error in determining that the caravan met the residential use class in the Planning Scheme.  As a consequence, ground 2 of the appeal fails.

1. The new ground of appeal regarding the ambit of the restraining orders is upheld.  The orders should be set aside.  New orders will be substituted that add the uncontroversial words "absent a valid and effective planning permit".  The substituted orders will be confined to the caravan and shed.  The orders will also clarify the caravan in question.  As mentioned above, I will hear from counsel regarding the terms of the orders with respect to the caravan.

Orders

Appeal 732

1. The appeal is upheld.  The Tribunal's decision made on 23 August 2010 is set aside.

Appeal 164

1. I dismiss the abandoned grounds of appeal, 1 and 3.  Ground 2 is dismissed for the reasons I have set out above.

1. The new ground of appeal (set out at par[113]) regarding the ambit of the restraining orders made by the Tribunal pursuant to the LUPA Act, s64, is upheld. The orders are set aside. As indicated, I will hear from counsel as to the terms of the substituted orders to be made.