Krulow v Glamorgan Spring Bay Council
[2013] TASSC 33
•10 July 2013
[2013] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Krulow v Glamorgan Spring Bay Council [2013] TASSC 33
PARTIES: KRULOW, Ronald
KRULOW, Sarah
v
GLAMORGAN SPRING BAY COUNCIL
FILE NO/S: 679/2011
DELIVERED ON: 10 July 2013
DELIVERED AT: Hobart
HEARING DATE: 1 November 2011 and 8 May 2012
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Civil Enforcement Orders of the Resource Management and Planning Appeal Tribunal – Prosecution for failure to comply – Defence that orders invalid and cannot be basis for prosecution – Status and consequences of orders considered – Whether collateral challenge of orders permissible.
Land Use Planning and Approvals Act 1995 (Tas), ss23(3), 64 and 65.
Purton v Jackson [2012] TASFC 2; and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, applied.
Craig v South Australia (1995) 184 CLR 163; Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146; Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; Boddington v British Transport Police [1999] 2 AC 143; and R v Wicks [1998] AC 92, considered.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: M Edwards
Solicitors:
Applicant: Shaun McElwaine + Associates
Respondent: Abetz Curtis
Judgment Number: [2013] TASSC 33
Number of paragraphs: 102
Serial No 33/2013
File No 679/2011
RONALD KRULOW and SARAH KRULOW v
GLAMORGAN SPRING BAY COUNCIL
REASONS FOR JUDGMENT WOOD J
10 July 2013
The applicants were charged with an offence of breaching orders made by the Resource Management and Planning Appeal Tribunal ("the Appeal Tribunal") contrary to s64(7) of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). They operated sandstone works at Buckland in Tasmania. On 9 December 2009 the Appeal Tribunal had made an order which had the effect of requiring the applicants to "install and commission sprinkler infrastructure on the site" by 31 May 2010. In the event that the sprinkler system was not installed, the applicants were required by the terms of the order to cease processing, selling, and distributing sandstone on the site. They pleaded not guilty to the charge. At the hearing before Magistrate Rheinberger there was no issue that the applicants had breached the order by failing to install the sprinkler infrastructure as charged, and that they had continued to conduct their business in breach of the order. The defence was that the orders were invalid due to jurisdictional error. At issue between the parties was also the question of whether the order could be challenged in the prosecution. The conclusion reached by the learned magistrate was that she could "consider the orders of the Tribunal as valid". Noting the lack of contest about the breach of the order, the complaint was found proved. The learned magistrate recorded a conviction and ordered the applicants to pay court costs.
The applicants seek a review of the decision of the learned magistrate. The grounds are that she erred in her determination that she could, without inquiry, consider the orders of the Appeal Tribunal as valid, and in failing to determine whether the orders were valid "as a necessary precondition to her finding that the applicants were in breach of" the orders. If the motion were to succeed, the applicants contend that the appropriate order would be for the decision to be set aside and the matter to be remitted for the learned magistrate to determine the validity of the Appeal Tribunal's orders. The outcome of the prosecution would then rest with that determination.
The orders
In November 2008, in proceedings before the Resource Planning and Development Commission, the applicants sought the granting of a permit under the LUPA Act, and an amendment to the Glamorgan Spring Bay Planning Scheme 1994. The amendment was to insert in a particular clause of the Scheme, a specified departure with respect to a single title at Cruttenden Street, Buckland, the site of the applicants' business, to allow the use of the land for general industry. The property is zoned Rural and without the amendment, general industry was prohibited under the Scheme. Processing, selling and distributing of sandstone is general industry. On 27 November 2008 the amendment to the Planning Scheme was made. It made discretionary the use of the land in question for the purpose of a general industry, processing, selling and distributing sandstone. The Commission granted a planning permit to the applicants to allow the use of the land as general industry for the processing, selling and distribution of sandstone and for use or development subject to conditions and restrictions. One of the conditions, numbered 12, was that:
"The proposed sprinkler system and any other appropriate measures to eliminate dust shall be installed and fully commissioned within three (3) months of the date of this permit coming into effect to the satisfaction of Council's Environmental Health Officer and shall be maintained in effective operational order thereafter."
The date of the permit was 4 December 2008.
The conclusion of the Commission's decision noted in part that:
"The sandstone works is operational and carries certain existing use rights having been established prior to the current planning scheme taking effect. The draft amendment and permit brings the activity under the planning scheme and a set of permit conditions regulating the activity that previously did not exist".
The matter mentioned by the Commission of "existing use rights" has significance in these proceedings and I will return to that later.
Subsequently, civil enforcement proceedings were brought by the Glamorgan Spring Bay Council against the applicants to enforce the requirements of the planning permit. The proceedings were brought under s64 of the LUPA Act, and heard by the Appeal Tribunal. After the commencement of the hearing, agreement was reached between the parties. By consent of the applicants, orders were made by the Appeal Tribunal, as mentioned, on 9 December 2009. These are the orders the subject of the prosecution, and central to this review. These orders in part, are as follows:
"3 The Appeal Tribunal, by the consent of those parties, makes the following orders:
a)That the Respondents undertake all works necessary to satisfy the requirements of the Planning Permit No DA08078 (the 'Permit') the subject of this application within the time frames set out in the Permit but:
i) commencing from 1 January 2010; and
ii)amended to extend the period of three (3) months prescribed for compliance with condition twelve (12) of the permit concerning installation of the proposed sprinkler system to a period of five (5) months.
b)In the event that the Respondents fail to comply with the first order, they must refrain from carrying on the use of General Industry (processing, selling and distributing sandstone) on the site until such time as all outstanding conditions of the Permit have been satisfied in full."
The effect of Part 3(a) of the conditions was to extend a deadline previously set out in the permit for the applicants to install and commission sprinkler infrastructure on the site in accordance with the permit to no later than 31 May 2010. Section 64 of the LUPA Act relevantly 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
(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –
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.
…
(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."
The applicants were charged with breaching the orders of the Appeal Tribunal made on 9 December 2009. Particulars of the breach, set out in the charge, included the following allegations:
"Pursuant to Part 3(a) of the Orders, the Defendants were required to install and commission sprinkler infrastructure on the Site in accordance with the Permit no later than 31 May 2010. In the event that such infrastructure was not installed and commission [sic] by 31 May 2010, Part 3(b) of the Orders required the Defendants to cease conducting the Use on the Site until such time as all outstanding conditions of the Permit had been satisfied.
The sprinkler infrastructure was not installed and commissioned by 31 May 2010 (and is yet to be installed and commissioned) and the Defendant [sic] have continued to conduct the Use on the Site in contravention of the Orders and the Act."
It was alleged the date of the offence was 1 June 2010 and continuing. The charge was described as an offence of performing an act that constitutes a breach of orders made by the Appeal Tribunal dated 9 December 2009. It was alleged in the complaint, after an amendment made on 16 December 2010, that the breach was of s64(7).
The hearing was conducted on 16 December 2010 and 15 February 2011. There was no issue with the fact that by the deadline set out in the consent orders, 31 May 2010, the sprinkler infrastructure was not installed and beyond that date the applicants had continued to conduct the use on the site. Written submissions were filed by the parties and after oral argument on 16 March 2011, Magistrate Rheinberger reserved her decision.
The proceedings before the magistrate
The defence led evidence concerning the issue of the applicants having had existing non-conforming use rights over the land that was the subject of the orders.
The defence argued that the Appeal Tribunal did not have jurisdiction to make orders which affected or purported to require the cessation of any existing use rights which the defendants had in respect of the land. There was reliance on s20(3) of the LUPA Act and it was submitted that there is no power for a council to make amendments to a planning scheme which prevents the continuance of any pre-exiting lawful use of land, building, or works which use existed before the planning scheme commenced.
It was submitted that the orders of the Appeal Tribunal were not valid and had no legal effect. It follows that no person may be guilty of an offence where what that person is doing is protected by the existing use right provisions of s20(3).
The learned magistrate did not make factual findings as to the existence or non-existence of such rights. She considered the preliminary question of whether there had been jurisdictional error. The learned magistrate applied the meaning of jurisdictional error in Craig v South Australia (1995) 184 CLR 163, at 176 - 179. She reached the view that the argument put by the applicants did not qualify as an argument that the orders were tainted by jurisdictional error. She attached significance to the fact that the applicants had consented to the orders. She stated that their consent is "an implied acceptance by them that there is not a bar to the orders being made in the terms articulated ie, they do not purport to have existing land use rights which may bar the orders being made". She added, "In my view this does not constitute or amount to an argument about jurisdictional error being made by the Tribunal. In these circumstances I consider the orders made by the Tribunal to be valid." Various submissions by the applicants and authorities relied upon were considered by the learned magistrate in the course of reaching these conclusions.
The contentions on review
The applicants' main contentions at the hearing of the review were:
· If the Appeal Tribunal's orders are not valid, in the sense that it exceeded its jurisdiction, then the order is without legal effect and, as a consequence, the applicants cannot be guilty of having acted contrary to it.
· The applicants could not, by consent, confer jurisdiction upon the Appeal Tribunal to make the orders if it lacked jurisdiction.
The main contentions for the respondent on review were:
· The learned magistrate did inquire into the asserted jurisdictional error argued by the applicants, and did in fact deal with the validity of the orders. She considered whether or not the argument raised by the applicants amounted to an argument about jurisdictional error.
· The applicants' argument before the magistrate should not be regarded as asserting jurisdictional error but is to be regarded as an argument or inquiry which could only be properly heard by the Supreme Court. It is best described as raising an alleged "appealable error of law" albeit relying on an argument not previously raised before the Appeal Tribunal. The applicants had the opportunity to raise the existence of non-conforming use rights in the proceedings before the Appeal Tribunal or on appeal to the Supreme Court.
· The Appeal Tribunal cannot be said to have fallen into jurisdictional error by making orders that are allegedly invalid due to the existence of a factor, existing use rights, which was not brought to the attention of the Tribunal.
The motion to review was relisted to provide counsel with an opportunity to make submissions with regard to a body of case-law concerning the permissibility of "collateral challenge". Counsel's attention was drawn to Aronson, Judicial Review of Administrative Action (4th ed), par10.105 - 10.135, Australian cases Ousley v R (1997) 192 CLR 69 and Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568, and English and Canadian decisions, Boddington v British Transport Police [1999] 2 AC 14 and R v Consolidated Maybrun Mines Ltd (1998) 158 DLR (4th) 193. Counsel assisted the Court by providing written and oral submissions on this issue.
Mr McElwaine for the applicants advanced the following key contentions with respect to collateral challenge:
· This Court does not need to be concerned with collateral challenge having regard to his primary submission that the orders of the Appeal Tribunal are invalid and of no effect. The validity of the Appeal Tribunal's orders is not merely an incident in determining other issues, it is the central issue in the prosecution.
· In the alternative, the Appeal Tribunal's orders are to be characterised as activity of an administrative nature, and are open to collateral challenge.
Mr Edwards' key contentions for the respondent Council were as follows:
· Jacobs v OneSteel Manufacturing Pty Ltd sets out factors which assist in determining the circumstances in which a collateral challenge may be made. Applying these factors to this case, collateral challenge should not be permitted.
· The court has a discretion to disallow the applicants' collateral challenge.
The grounds of review in light of the magistrate's reasons
The notice to review correctly identifies a determination or inquiry that was not made or undertaken by the learned magistrate, namely whether the applicants had existing use rights. She did not determine the question of whether the applicants had existing use rights which grounded the argument that the Appeal Tribunal had exceeded its jurisdiction. But there was a reason why she did not make this determination. The learned magistrate considered, as a preliminary point to the applicants' argument, whether the error that had been identified by the applicants amounted to a jurisdictional error and resolved that against the applicants. After considering the meaning of jurisdictional error, her Honour stated:
"The defence submits that the Tribunal had jurisdiction to make orders in respect of the requirements of planning permit DA 08078 but did not have jurisdiction to make orders which affected or purported to require the cessation of any existing use rights which the Krulows' [sic] had in respect of the land. The matter before the Tribunal proceeded to orders with the consent of the Krulows. In those circumstances whilst it is incumbent on the Tribunal to proceed according to law it would seem that the Tribunal has not identified a wrong issue, asked a wrong question, ignored relevant evidence or relied on irrelevant evidence. By the Krulows consenting to the orders there is an implied acceptance by them that there is not a bar to the orders being made in the terms articulated ie they do not purport to have existing land use rights which may bar the orders being made. In my view this does not constitute or amount to an argument about jurisdictional error being made by the Tribunal. In those circumstances I consider the orders made by the Tribunal to be valid."
Jurisdictional error was a premise relied upon by the applicants and a premise which the prosecution had sought to dismantle by arguing that it was appropriately characterised as appealable error not jurisdictional error. Having determined that the argument did not qualify as one which identified jurisdictional error the learned magistrate treated the orders as valid. It may be noted that the grounds of review do not appeal her determination that the argument did not qualify as jurisdictional error and rather, assert more broadly that she erred by failing to determine the validity of the orders. Thus the notice does not squarely challenge the determination that was made by the magistrate, but rather challenges the implications of her determination, which was that validity was not decided. While the preliminary point was not a central issue in these proceedings because of the terms of review, it received some attention. It was argued that the learned magistrate's reasoning with regard to the preliminary point was flawed: her characterisation or definition of jurisdictional error was too narrow and the applicants could not confer jurisdiction by consenting to orders.
Issues
The following issues arise for consideration:
(1) A potential flaw in the orders
If the applicants have existing use rights, would that mean that the orders of the Appeal Tribunal were flawed because they were in breach of the Act? Put another way, do the terms of the Act oblige the Appeal Tribunal to not make orders that impinge on a person's existing use rights?
(2) Jurisdictional error
Was the learned magistrate correct to regard the assertion of existing use rights as a matter which could not be characterised as an assertion of jurisdictional error?
(3) Status and consequence of the orders
If the making of the orders may have been in breach of the Act, as set out in (1) above, an issue arises as to the status and consequence of the orders. Would the applicants have been entitled to treat the orders as if they did not exist, without a court order or declaration to that effect? Or was the status and consequence of the orders such that, notwithstanding any defect in the orders, they remained valid or effective, until set aside by a court of competent jurisdiction in competent proceedings?
(4) Availability of collateral challenge
If the orders were effective until set aside, were the applicants permitted to challenge the validity of the orders by way of a defence in a prosecution for contravening those orders? Alternatively, was the only challenge that could be brought restricted to the appeal process, or an application for judicial review under the Judicial Review Act 2000 (Tas) or relief in the nature of certiorari and mandamus.
I turn to consider these issues, dealing first with the question of whether the orders were potentially founded on a mistake or were potentially flawed.
A potential flaw in the orders
It is submitted by the applicants that the Appeal Tribunal did not have jurisdiction to make orders, by consent or otherwise, that impinged on the applicants' existing use rights. For the purpose of this review, it is not necessary that I determine whether the applicants in fact had existing use rights. Instead, my assessment is directed to whether, should the applicants be able to establish existing use rights, the orders of the Tribunal would be in breach of the requirements of the LUPA Act.
Section 20(3) addresses existing use rights:
"(3) Subject to subsections (4), (5) and (6), nothing in any planning scheme is to –
(a) prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme; or
(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building; or
(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d) prevent the use of any building or works for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or …"
See Crawford CJ in Calvary Health Care Tasmania Inc v Hobart City Council (2006) 15 Tas R 271, at [20] for the confined operation of each of the exceptions in s20(3). His Honour stated that unless the use of land, or the building or works upon it fall within one of these exceptions, it is given no protection from the application of a planning scheme that relates to it.
A submission that the orders merely regulated the use of the sandstone works, as opposed to "prevent the use of any works" as provided in s20(3)(c), is not borne out given the terms of the order in par3(b) which have the effect of preventing use.
If the evidence was that the applicants were continuing a use of sandstone works that, immediately before the coming into operation of a planning scheme, was lawful, then the protection in s20(3)(c) may apply. As noted by Crawford CJ in Calvary at [31] "if all the occupier of land does is continue a previous lawful use without any development in the form of buildings or works, s20(3) makes it clear that the continuance cannot be prevented by the planning scheme. … Nevertheless, once some development is proposed or undertaken, the development and its subsequent use are subject to the planning scheme that is in operation at the time."
Depending on the evidence, and the findings to be made by the learned magistrate, the Appeal Tribunal may have been in breach of the LUPA Act, s23, in making the orders.
Jurisdictional error
Does the making of orders that infringe a person's existing use rights amount to jurisdictional error?
The reasoning of the magistrate was that the error that was made was not jurisdictional error as defined in Craig v South Australia (1995) 184 CLR 163 at 176 - 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351. She attached some significance to the fact that the parties had consented to the order in deciding that the error was not capable of amounting to jurisdictional error.
The parties could not, by consenting to the orders, confer jurisdiction upon the Appeal Tribunal if it lacked jurisdiction to make the orders: Thompson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 163. The Appeal Tribunal derives its jurisdiction from the governing statute, not from the consent of the parties.
The case of Craig was not concerned with a statutory appeal regime but whether the prerogative writ of certiorari may properly issue. A distinct established ground of "jurisdictional error" enables the quashing of the impugned order or decision. Craig was concerned with defining "jurisdictional error" for the purposes of certiorari. The judgment of the court provides a definition of the sorts of mistakes that amount to jurisdictional error at 177 – 178. The learned magistrate quoted passages from Craig at 177 and Yusuf at 351 concerning the meaning of jurisdictional error.
I make a number of observations about the issue of jurisdictional error and the approach taken by the learned magistrate. It is not a straightforward inquiry and the line between jurisdictional error and mere error in the exercise of jurisdiction, may, in some cases, be difficult to discern, Craig per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 178. The passage of the judgment of the court in Craig which her Honour quoted applies to inferior courts. Jurisdictional error is more readily inferred in the case of administrative tribunals: Craig at 179 – 180. The definition of jurisdictional error derived from Craig is now regarded as not providing a "rigid taxonomy" of jurisdictional error. They are merely examples and do not mark the boundaries of the ambit of jurisdictional error by an inferior court, Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [73].
These observations highlight uncertainty about whether in fact the orders of the Appeal Tribunal do not fall on the jurisdictional error side of the line. In any event, I am not convinced that jurisdictional error is an essential step to an inquiry about the status and consequences of orders. As will be seen, the question of Parliament's intention is determinative of validity. I acknowledge that it may be right that a consequence of invalidity would be unlikely unless the error related to jurisdiction but that is not to set up an essential requirement before the inquiry can be embarked upon.
The correctness of the learned magistrate's determination as to whether the applicants' argument amounts to jurisdictional error does not need to be decided by me in these proceedings because of the view I reach regarding the status and consequences of the orders, even if there was jurisdictional error. Having identified a potential flaw in the Appeal Tribunal's orders I turn to the inquiry of what are the consequences of such an error.
Status and consequence of the orders
If the applicants' argument is accepted, the orders made by the Appeal Tribunal were invalid and they are without legal effect. They could not provide a foundation for a prosecution. In effect, there were no orders.
For the proposition that if the order exceeded the jurisdiction of the Appeal Tribunal then the order was not legally valid and the applicants could not, as a matter of law, be guilty of acting contrary to it, there was heavy reliance on a decision of the Victorian Court of Appeal in Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 and Pelechowski v Registrar, C of A (NSW) (1999) 198 CLR 435, at [27].
The decision of Herald and Weekly Times was concerned with the question of whether disobedience of an order made by the Victorian Civil and Administrative Tribunal restraining the Herald and Weekly Times Pty Ltd ("HWT") from publishing the contents of a settlement agreement could amount to a contempt when the Tribunal had no jurisdiction to make the order and it was invalid. A dispute under the Equal Opportunity Act 1995 (Vic) had attracted media interest. After participating in mediation the parties had reached a settlement of their dispute. The terms of the settlement agreement contained a confidentiality clause, but due to an inadvertent error the terms of settlement had been placed on the Tribunal file and made available for inspection by the public. A journalist of HWT inspected the file and copied the terms of the settlement. There was an application to the Tribunal regarding this conduct. The President made the restraining order that has been mentioned under the Equal Opportunity Act, s123(1). Notwithstanding that order, HWT published an article concerning the dispute and disclosing the terms of settlement. There were contempt proceedings before the Tribunal and it was submitted that the order of the President was invalid and could not found a proceeding for contempt. The Vice-President ruled that a collateral attack on the order of the President was not available. The appeals from both orders and judicial review proceedings were heard by the Court of Appeal. One of the questions raised for determination was whether, even if the restraining order was made without power, it must be treated as a valid order for the purposes of the contempt proceedings in the sense that until set aside it must be obeyed.
The Court of Appeal had regard to various authorities including Pelechowski and Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342 which were concerned with orders made by inferior tribunals exercising judicial power. In Mayas, McHugh JA had said:
"If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed."
It was argued that as a consequence of a proper construction of the Victorian Civil and Administrative Tribunal Act 1998, s137(1), which specified the acts that constitute contempt of the Tribunal, and referred in par(f), to acts that amount to contempt of the Supreme Court, the order of the Tribunal should be treated as if it were an order of the Supreme Court and thus, valid until set aside. The principle in Mayas did not apply. This reflected the approach taken at first instance.
However, it was determined that the order did not have the status of an order made by the Supreme Court. The approach of the Court of Appeal was that that determination was dispositive of the appellants' contention that the order had to be obeyed, and disobedience of the order could amount to a contempt of the Tribunal.
The reasoning of the Court of Appeal in that case was that, applying Mayas and Pelechowski, if an order made by an inferior tribunal exercising judicial power was made without authority, it was a nullity. Beyond the effect of s137(1)(f), limited consideration was given to whether the order should be obeyed until set aside.
In United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, at 335, Samuels AP, with whom Clarke and Meagher JJA agreed, in giving the judgment of the Court of Appeal, applied the principle from Mayas to the District Court. It was held that a judge of the District Court does not have power to order the prior restraint of a threatened contempt by media in broadcasting material which might identify the accused in a trial before the court. The order was a nullity and binds no one: its breach cannot found a prosecution for contempt.
In Pelechowski consideration was given to the authority of the District Court to make an equitable injunction of the type of an asset preservation order which was the subject of successful contempt proceedings. The statements in Mayas and United Telecasters were considered and endorsed with respect to the consequences for a contempt application in the District Court resulting from the absence of power to make the order in question. Recently, in State of NSW v Kable [2013] HCA 26, Gageler J, in obiter remarks at [56], referred to Pelechowski as authority for the proposition that a failure to obey a judicial order of an inferior court made without jurisdiction has no legal force, and as a consequence a failure to obey the order cannot be a contempt of court.
Counsel for the applicants relied on these contempt cases, submitting a prosecution for breaching an order of the Appeal Tribunal under s64 was analogous. The applicants sought to extrapolate from these cases and derive from them the general proposition that in the case of jurisdictional error on the part of a decision-maker, the decision will be a nullity and will have no consequences whatsoever. Thus, the orders of the Appeal Tribunal could not be the foundation for a successful prosecution for breaching the orders because the orders have no legal effect. The applicants relied on the High Court cases of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 for that general proposition.
However, that argument has been decisively laid to rest by a decision of the Tasmanian Full Court. In Purton v Jackson [2012] TASFC 2 the status and consequences of an administrative decision of the Appeal Tribunal were squarely in issue. The question was whether the Appeal Tribunal had jurisdiction to re-visit its earlier decision if that decision was invalid. It was argued that the status of the earlier invalid decision was that it had no effect, and could be treated as if it had never been made. Blow J (as he then was) with whom Evans J and Crawford CJ agreed, considered the effect of Bhardwaj, and concluded that it does not stand as authority for a universal proposition that jurisdictional error will lead to a decision having no consequences whatsoever. Rather, it is authority for the proposition that, when there is jurisdictional error, the legal and factual consequences of the decision, if any, will depend on the relevant legislation, at [11].
Consideration was given by Blow J to a passage in the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in the decision of S157 which might be thought to lend support for the applicants' argument, where their Honours citing Bhardwaj, said at [76]:
"This Court has clearly held that an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all".
Blow J noted that in S157 the High Court was concerned with the status, for the purpose of proceedings for judicial review and relief under s75(v) of the Constitution, of a decision that involved jurisdictional error, not with the status of such a decision for the purpose of a legislative regime. According to Blow J, at [20], S157 did not undermine the force of the judgments in Bhardwaj, that the legislation relating to such an administrative decision is critical for the purpose of determining its status and consequences.
The Full Court decision in Purton is binding authority and establishes the correct approach. It is unnecessary to attempt a rationalisation of the principles in Bhardwaj and the approach taken in the contempt cases.
I apply Bhardwaj and turn to consider the legislative regime. The provisions of the LUPA Act and the Resource Management and Planning Appeal TribunalAct 1993 ("RMPAT Act") were considered in Purton for the purpose of considering whether it was contrary to the scheme of the legislation for the Appeal Tribunal to be held to have power to vary or reverse its decisions. Here the question is whether it would be contrary to the scheme of the legislation for orders of the Appeal Tribunal, which fail to comply with s20(3) of the LUPA Act, to have no legal effect or factual consequences, such that they may be ignored. I give consideration to the legislative regime, particularly the provisions of the LUPA Act.
Before doing so, I note there is a dichotomy between judicial decisions of superior courts of record with inferior courts and tribunals exercising judicial and administrative power. In the case of superior courts of record, orders made without jurisdiction are binding until set aside: Re Macks; Ex parte Saint (2000) 204 CLR 158. The application of the presumption to judicial orders of superior courts of record was confirmed by the High Court in Bhardwaj per Kirby J at [107] – [108] and Hayne J at [151], and State of NSW v Kable at [31] – [32].Here, we are concerned with an inferior tribunal. There is no presumption of validity and I commence the task of statutory construction with a neutral disposition.
I commence the task of statutory construction by having regard to the statutory provisions which are the source of the power that has been exercised. See the question posed by Hayne J in Bhardwaj at [154].
As noted, the impugned orders were made under s64 of the LUPA Act, set out above at [8]. This section provides for a raft of orders to enforce compliance with Part 4 of the LUPA Act, in particular, planning schemes and permits. The orders that can be made by the Appeal Tribunal under this provision are extensive. They include provision for orders in the nature of injunctive relief. There are statutory consequences in the event of non-compliance or alleged non-compliance. As occurred here, a person may be prosecuted, pursuant to s64(7), for contravention of an order. In the case of non-compliance with an order made under s64(3)(e), requiring a person to make good the contravention in a manner and timeframe required by the Appeal Tribunal, the planning authority or the Commission may cause work to be carried out with the leave of the Appeal Tribunal and the costs may be recovered as a debt from the person, s64(8). It can be seen that the regime under s64 is of key importance in ensuring the effectiveness of the LUPA Act in controlling and managing planning and development.
An application under s64 is deemed to be an appeal for the purposes of the RMPAT Act, s64(11). There is no express provision in the LUPA Act or the RMPAT Act that states that an order of the Appeal Tribunal is valid or effective until set aside or stayed.
The LUPA Act, s65, establishes a special regime for appeals from orders and decisions in proceedings under s64. Section 65 provides:
"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.
(2) An appeal under this section 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."
The existence of this appeal pathway is a strong indication that orders cannot simply be ignored, that there is a process that must be followed, and that they are effective and binding unless overturned by the Supreme Court. The fact that the pathway is closed unless the appeal is instituted within 30 days or such longer period as allowed by the Supreme Court further indicates a Parliamentary intention of constraint and control with respect to upsetting those orders.
If the status of orders that are in breach of the LUPA Act or made without jurisdiction is that they can have no effect and be ignored, without a determination by the Supreme Court, it will encourage parties to take it upon themselves to decide what orders are invalid and may be ignored, and not follow the statutory pathway of appeal. This would have the effect of promoting disobedience of enforcement orders.
In Purton, Blow J had regard to the jurisdiction of the Appeal Tribunal to hear appeals from a broad range of statutes and the objectives of the system under the RMPAT Act, stating as follows at [24]:
"By virtue of the RMPAT Act, s5(3), the tribunal is 'part of the State's resource management and planning system'. The objectives of that system are set out in Sch1 to the RMPAT Act. One of those objectives, by virtue of cl 1(b) of that schedule, is 'to provide for the fair, orderly and sustainable use and development of air, land and water'. The existence of a power on the part of the tribunal to vary or reverse its decisions relating to the use and development of land, possibly years after those decisions are made, would be inconsistent with the statutory objectives of fairness and orderliness."
It may be noted that those same objectives are reflected in Schedule 1, Part 1 of the LUPA Act. Here, it would be inconsistent with the objectives of the LUPA Act for parties to ignore orders made by the Appeal Tribunal under s64 of the LUPA Act without pursuing the appeal process. Schedule 1 Part 2 of the LUPA Act, provides for the objectives of the planning process established by the Act. Those objectives are:
"PART 2 - Objectives of the Planning Process Established by this Act
The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule –
(a) to require sound strategic planning and co-ordinated action by State and local government; and
(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and
(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and
(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and
(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and
(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and
(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and
(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and
(i) to provide a planning framework which fully considers land capability."
If orders under s64 of the LUPA Act are not necessarily binding and effective unless set aside by the Supreme Court, it would entirely undermine the regime of enforcement of planning schemes and permits in s64. It would lead to uncertainty as to their status and affect public confidence in those orders. Ultimately it would undermine compliance with the LUPA Act. These ramifications are a stark contrast to the purpose of the legislation and could not have been the intention of Parliament.
Having analysed provisions of the RMPAT Act and the LUPA Act, Blow J concluded at [29]:
"In my view the nature of the tribunal's work and the scheme of the relevant legislation compel a conclusion that the tribunal's only powers to change a decision disposing of an appeal – even one disposing of an appeal on the basis that it had no jurisdiction – are those conferred by s23(5) and (6). Those subsections should be regarded as covering the field in relation to the changing of any final decision disposing of an appeal or, to use the words of s23(6), a 'decision on an appeal'. Such an interpretation promotes the purposes and objects of the RMPAT Act, whereas a contrary interpretation would not: Acts Interpretation Act, s8A(1). It would be contrary to the scheme of the relevant legislation for the tribunal to have any other power to reconsider, vary or reverse such a decision."
I adopt a similar line of reasoning in relation to the present appeal. I consider that the nature of the Appeal Tribunal's work in relation to s64 of the LUPA Act, the purpose of the legislation and the scheme provided for, including the specific provision in s65 for appeals to the Supreme Court from these orders, compel a conclusion that the legislature intended that the orders would be binding and effective unless overturned by the Supreme Court. As stated by Blow J, "such an interpretation promotes the purposes and objects of the [relevant legislation], whereas a contrary interpretation would not: Acts Interpretation Act, s8A(1)".
It follows that an order of the Appeal Tribunal pursuant to s64, but made in breach of the LUPA Act, has effect until set aside by the Supreme Court on appeal. It is capable of founding a prosecution pursuant to the LUPA Act, s64(7).
As a consequence of this determination it is necessary to consider the issue of whether the applicant could mount a challenge to the validity of the orders by way of a defence in a prosecution for failing to comply with them.
Collateral challenge
The question is whether the learned magistrate should have made a determination upon the validity of the Appeal Tribunal's orders permitting a collateral challenge to those orders. Collateral challenge has been defined by McHugh J in Ousley v R, at 98 - 99:
"A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. … [It occurs] in proceedings where the validity of the administrative act is merely an incident in determining other issues."
In a prosecution such as this, where an order is an element of an offence and it is alleged that there has been a contravention of, or failure to comply with the order, a question arising is whether a defendant may raise the validity of the order as a defence. In other cases, a similar question has been whether the validity of regulations said to be breached may be challenged in the prosecution, for example on the basis they are ultra vires. These are questions of the permissibility of collateral challenge. In this prosecution, it was undoubtedly the case that the defence that was advanced was in the nature of collateral challenge. Examples of collateral challenge from cases in Australia and England are set out in an article by Professor Enid Campbell, Collateral Challenge of the Validity of Government Action (1998), 24(2), Monash University Law Review, 272 at 273.
Collateral challenge is contrasted with a direct challenge to the validity of governmental action by means of an application for prerogative writ or like order, a suit for declaratory or injunctive relief to restrain a course of action said to be unauthorised, and applications for judicial review under statutes such as the Judicial Review Act 2000.
Collateral challenge was not identified in the proceedings before the learned magistrate as a basis for challenging the Appeal Tribunal's orders and it is not specifically identified in the grounds of review. It falls for consideration as a consequence of the assertion in the notice of review, that the learned magistrate ought to have made inquiry about the validity of the orders.
In Professor Campbell's article, she commences with the observation that no general principle has emerged from the authorities regarding the permissibility of collateral challenge. In Hinton Demolitions Pty Ltd v Lower (No 2) [1971] 1 SASR 512, Bray CJ commented on the lack of guiding general principle and the state of flux and confusion that existed in the authorities. His Honour went on to state, at 520 – 521, that "it is hardly likely that this Court will be able to construct an enduring causeway through the flood" and that the "task of imposing order on this chaos must, I think be reserved for the High Court, the Privy Council and the House of Lords."
Professor Campbell at 274 – 275 usefully summarises various reasons for restricting collateral challenge identified in the cases she discusses, mainly from Australia and the United Kingdom, and academic writing on the subject. It is worth noting these reasons in summary form:
· The law relating to judicial review is now a complex and sophisticated body of law and is best administered by central, superior courts invested with supervisory jurisdiction.
· Collateral challenge may provide a means of circumventing limitations (such as time limits, standing and the discretion of the reviewing court in the award of remedies) on judicial review by direct challenge.
· Collateral challenge may result in trials within a trial, a concern identified in criminal trials and which would, if allowed, involve production and evaluation of extrinsic evidence.
· The governmental body whose action is sought to be challenged will not necessarily be a party to the proceedings and will not have an opportunity to defend its action.
· A concern that collateral challenges may result in inconsistent judicial decisions about the validity of the same or much the same government action.
I turn now to a consideration of the cases and the guidance which can be gleaned from them in determining whether collateral challenge is permissible in this case.
In Hinton Demolitions Pty Ltd v Lower (No 2) there was a question of whether the act of the Registrar of Motor Vehicles in acting in accordance with regulations in relation to determining and recording the load capacity of vehicles could be challenged in a prosecution in respect of the use of the vehicles and other offences on the ground that the Registrar had failed to comply with the rules of natural justice.
The judgment of Bray CJ rested on the void and voidable distinction. Having considered the authorities he stated, at 523, that:
"… once the law makes the distinction between administrative acts which are nullities and those which are merely voidable, it must follow amongst other consequences that an invalidity of the former class can be asserted by anyone in any proceeding in which the invalidity is relevant, whereas an invalidity of the latter class can only be successfully asserted in appropriate proceedings brought by the appropriate party.
…
If I am right so far, I think there is no doubt that the present case falls into the second class. A determination was made without the appellant being heard; but it cannot be contended that it was made for a frivolous or futile cause."
Wells J reviewed the authorities and articulated eight principles relevant to the case under consideration, 548 – 550. The second and third principles are set out below. His Honour took a very narrow view of the availability of collateral review, ruling it out in that case:
"2 Except for those cases where what is claimed to be an administrative act has not even the colour of lawful authority, or where an authority or public official, who is a party to a civil action, pleads, and relies on his own administrative act, an allegedly unlawful administrative act cannot be collaterally impeached in any cause or matter, civil or criminal, unless an Act of Parliament or a valid regulation unequivocally authorises such impeachment. The only correct way of attacking an allegedly unlawful administrative act is by means of a separate proceeding appropriate for the purpose.
3 The proceedings so far regarded as appropriate for the purpose are the prerogative processes, and a declaration (with or without an injunction)."
Mitchell J agreed at 525 with the reasons of Bray CJ and Wells J.
In the course of his reasons Bray CJ, at 520, expressed concern about the practical ramifications of collateral challenge if it enabled the challenge of an array of administrative acts "by anyone at any time in any form of proceeding". Wells J noted, at 532, various practical implications if there was a lack of restraint in the impugning of administrative acts. He noted the unsettling effect of an unknowable proportion of administrative acts being a nullity, leading to contempt of the law and of all institutions of government. His Honour noted his concerns received some support from the nature and extent of the restrictions placed by law upon the availability of administrative remedies.
The distinction between void and voidable is considered problematic, belies the need for a more elaborate description and "there is no such thing as voidness in an absolute sense": NSW v Kable per French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ at [20] - [23].
If the approach of Bray CJ is followed in this case, the determination already made as to the status and consequences of the orders as not invalid would be determinative. The lack of patent error is determinative on the approach taken by Wells J.
In Ousley, the High Court considered whether an accused in a criminal trial in the County Court of Victoria could mount a collateral attack on the validity of listening device warrants in order to challenge the admissibility of recordings obtained by use of the listening device. A trial judge in the County Court had held that he had no power to rule whether warrants authorising the use of listening devices had been properly issued by Supreme Court justices. It was determined that the decision to issue a warrant was an administrative act and this meant there was no bar to collateral review. It was the view of the majority that while such challenge was permitted, it was limited to the validity of a warrant on its face, and the sufficiency of the material supporting the application for its issue could not be raised, Toohey J at 80, Gaudron J at 87, Gummow J at 124-127. McHugh J suggested that collateral challenge of the validity of the warrants is not so confined.
It was argued by Mr McElwaine, for the applicants, that the Appeal Tribunal, while bound to act judicially, does not exercise judicial power. The impugned orders were an exercise of administrative power and thus subject to collateral review. There was reliance on Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245, Attorney-General (Cth) v Breckler (1999) 197 CLR 83, and Attorney-General v Estcourt (1995) 4 Tas R 355. It was submitted that an important indicia of judicial power is absent, being the lack of enforceability of the Appeal Tribunals’ orders made under s64. The case of Kentish Council v Wood [2011] TASFC 3 was distinguished. The Anti-Discrimination Act 1998 provided for a statutory mechanism for the Anti-Discrimination Tribunal to enforce its orders. In Estcourt, the Full Court was concerned with an exercise of power by the Appeal Tribunal under the LUPA Act, s64. Wright J, with whom Crawford J agreed, noted that the Appeal Tribunal does not have power to enforce its own orders in respect of s64 proceedings and that it has many of the other characteristics which may be regarded as indicative that it is not a court. His Honour concluded at 364 that, "It seems therefore that the Tribunal when exercising s64 jurisdiction is not operating as a 'court'", although he noted that there was room for a contrary view. The task of determining whether a tribunal is exercising administrative or judicial power is rarely a straightforward one: per Kirby J in Breckler at [78].
On behalf of the respondent Council it was conceded that the orders were an exercise of administrative power. There is no need for me to decide the point and I proceed on the basis of Mr McElwaine's contention.
The High Court case of Attorney-General (Cth) v Breckler was concerned with a decision of the Superannuation Complaints Tribunal. It was held that a decision of the tribunal did not involve the exercise of judicial power. The judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [36] noted the availability of collateral review to administrative acts, subject to the "legislative prescription to the contrary":
"If the determination of a complaint by the Tribunal be characterised as activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seised."
In Jacobs v OneSteel Manufacturing Pty Ltd a Full Court of five justices was convened because it was considered that it might become necessary to consider the correctness of the decision in Hinton Demolitions Pty Ltd v Lower (No 2). In the result, it was not necessary to reconsider that decision. The question was whether the Workers Compensation Tribunal had jurisdiction to determine the validity of the rules of the Tribunal as a collateral issue. The challenge was on the ground that the exercise of power to make the rules was ultra vires the Act.
Besanko J surveyed authorities applicable where a person has raised, in a prosecution, the invalidity of the by-law or regulation said to have been breached. His Honour then considered if the question, whether a collateral challenge is permissible in that case, may be answered by reference to a general principle that applies in the case of all legislative and administrative acts. He concluded that the law has not yet reached the stage where such a general principle has been identified. He went on to state that since Bray CJ made the same observation in Hinton Demolitions Pty Ltd v Lower (No 2) in 1971, there have been some authoritative decisions which in particular areas provide the answer to whether a collateral challenge is permitted. He referred to the House of Lords decision in Boddington v British Transport Police, concerned with validity of by-laws prohibiting smoking in a railway carriage in a prosecution for breach of the by-law, and Ousley.
Besanko J stated at [93] that he did not think there was any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. His Honour went on to set out the following considerations:
"On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, 'Criteria for Restricting Collateral Challenge' (1998) 9 Public Law Review 237 and Professor Enid Campbell, 'Collateral Challenge of the Validity of Governmental Action' (1998) 24 Monash University Law Review 272. The factors identified include the following:
1 Are the grounds of challenge likely to involve the adducing of substantial evidence?;
2 If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?;
3 In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?;
4 Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5 Is the issue raised by the collateral challenge clearly answered by authority?;
6 Are there other cases pending which raise the same issue?
7 (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?"
In referring to the application of those factors in the case before him, Besanko J noted that "There is no statutory provision that indicates or suggests [my emphasis] that a collateral challenge ought not to be permitted …". Duggan, Vanstone and Layton JJ agreed with the reasons of Besanko J.
Statutes rarely contain provisions which expressly exclude or restrict collateral challenge. However, the legislation may nonetheless provide clear indications as to the availability of collateral challenge. The House of Lords in R v Wicks [1998] AC 92 emphasised the importance of statutory context and objectives in determining the availability of collateral challenge in a prosecution. The case concerned an enforcement notice issued by a local planning authority and served on the defendant under planning legislation alleging a breach of planning control by the erection of a building, and requiring its removal above a certain height. A period was provided for compliance and the defendant appealed under the legislative scheme but the appeal was dismissed. He was charged with breach of the legislation. He sought to defend the proceedings on the ground the enforcement notice was issued ultra vires. The judge at first instance ruled that the contention was a matter for judicial review and that the enforcement notice should be treated as valid. The appellant changed his plea to guilty and was convicted. He appealed his conviction. Lord Hoffman, in the leading speech, emphasised that the ability of a defendant in criminal proceedings to challenge the validity of an act done under statutory authority, depended on the construction of the statute in question. Significantly, in that case the legislation contained an elaborate code including provision for appeals against notices. The House of Lords held that on the proper construction of the statute, all that was required to be proved in the criminal proceedings was that the notice issued by the local planning authority was formally valid, ie that on its face it complied with the requirements of the statute and had not been quashed on appeal or by judicial review.
In Boddington, Lord Irvine of Lairg LC referred to the particular statutory schemes in question in Wicks and in a decision of the Divisional Court in Quietlynn Ltd v Plymouth City Council [1998] 1 QB 114, and expressed the view that they justified a construction which limited the rights of the defendant to call the legality of an administrative act into question. Lord Irvine went on to state, at 161:
"But in my judgment it was an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.
By contrast, where subordinate legislation (eg statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case."
Lord Irvine noted, at 162, that in the latter case concerning subordinate legislation, a "byelaw" prohibiting smoking in train carriages, there must be a strong presumption that "Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train". For discussion about the strong presumption operating in such cases, see the speech of Lord Irvine at p173. Lord Steyn expressed similar views. At 173 Lord Steyn said: "There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg v Wicks [1998] AC 92." These speeches are referred to in a footnote to the judgment of the majority in Breckler at [36].
In Director of Housing v Sudi [2011] VSCA 266, the Victorian Court of Appeal emphasised the terms of the statute in determining whether collateral review is available. The Director of Housing had applied to the Victorian Civil and Administrative Tribunal for possession of public housing and it was contended that the application was unlawful as the Director, in making that decision, had infringed the tenants' human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The question was whether VCAT had power to decide the lawfulness of the Director's decision to make the application. The Court of Appeal held that VCAT had no such power. Warren CJ considered the High Court decisions of Ousley and Breckler, and stated at [28]:
"The extent, if any, to which an inferior court can undertake collateral review of an administrate decision is ultimately a matter of construction of the statutory provisions conferring jurisdiction and functions on the court, as well as any privative clauses limiting the review of the administrative decision."
Maxwell P stated at [66]:
"Whether the Tribunal's jurisdiction to hear the Director's application extended to a consideration of the legal validity of the Director's decision to make the application is a question of construction of the terms of the RTA. For, in determining whether collateral review is available, the starting point is the legislation under which the governmental action is sought to be challenged."
Maxwell P went on to note examples such as Wicks which turned on the construction of the statute.
Weinberg JA, at [245], noted that:
"There is nothing in any of the statutes relevant to this case, whether the VCAT Act, the RTA, or the Charter, that deals specifically with the subject of collateral review. That is hardly surprising. Statutes rarely contain provisions which address that issue. Legislation may, however, establish a particular and comprehensive regime for the determination of specific issues. Where that course is followed, an implication arises that collateral review is not available."
In conclusion his Honour stated, at [283]:
"The question to be determined in this appeal is purely one of statutory interpretation. The issue is not whether VCAT should, as a matter of policy, have the power to engage in collateral review in relation to Charter issues. Rather, the issue is whether VCAT has that power as a matter of law."
I draw from the cases set out above, the following statement of principle, which is of application to this case. Determining whether collateral challenge is available involves the task of construing the relevant legislation. This would include consideration of the legislation governing the deciding body and constraints that it may be subject to, the statutory provision creating the offence, and whether the legislation establishes a scheme for the determination of the specific issues that have been raised.
In this case, like most others, there is nothing in any of the relevant statutes that expressly deals with the subject of collateral review. A magistrate presiding over a prosecution does not have any constraints on his or her power to decide the validity of an order of the Appeal Tribunal if properly required to make a determination on that matter for the purpose of deciding whether a breach of s64(7) had been committed. This begs the question whether such a question properly arises, whether invalidity of the order is a defence to the charge? The statutory provision creating the offence, the LUPA Act, s64(7), and the scheme does not suggest that an element of the offence to be proved by the prosecution, beyond reasonable doubt, is the validity of the order, rather than the mere existence of the order, or that a defendant may raise a defence of invalidity. More significantly, the offence arises from a statutory scheme which provides a clear and effective pathway to challenging the order. In fact, the offence provision is being used as an "instrument of coercion", an expression used by Lord Hoffman in Wicks at 121, to promote compliance with the planning scheme, to give force to the mechanism of civil enforcement proceedings and to complement other powers of the Appeal Tribunal.In terms apposite here, Lord Hoffman, in Wicks, described the criminal proceedings as forming part of the general scheme of enforcement of planning control contained in the Act, and stated that, in his view, it "should be interpreted to give effect to the overall policy of the enforcement procedures".
As noted by Weinberg JA in Sudi, the legislation may establish a particular and comprehensive regime for the determination of specific issues. Here, the scheme provided by the LUPA Act, the statutory context, the provision for appeals, and the purpose of the legislation are of particular relevance to the permissibility of collateral challenge.
Consideration of the LUPA Act reveals, as I have mentioned, a comprehensive scheme providing for civil enforcement, the making of orders by the Appeal Tribunal, an appeal process to the Supreme Court against an order or the refusal to make an order, and in the event of non-compliance, prosecution and a penalty regime. Parliament has provided for rights of appeal as the mechanism for challenge in the context of that scheme which includes prosecution. The time limit that is imposed for instituting appeals is consonant with the objectives of the legislation to provide certainty of outcome for the individual and others affected by the orders. Of course, the fact that the appeal mechanism may arguably not be available for consent orders, peculiar to this case, does not advance the task of statutory construction.
I conclude that the construction of the LUPA Act provides a clear indication that collateral challenge of orders of the Appeal Tribunal in a prosecution for breach of s64(7) was not intended.
If, as a matter of statutory interpretation, collateral challenge was not excluded, it may be that the way would be open for a defence bringing into question the validity of the orders. That does not fall for determination here. Considerable attention was given in submissions to the seven factors identified by Besanko J in OneSteel. These were described as discretionary considerations; I am not convinced that that description is appropriate. It was submitted on behalf of the applicants, that the identification of these factors as operating to exclude collateral review did not represent good law, and on behalf of the respondents, that they are to be applied and may operate to exclude collateral challenge.
I do not regard the seven factors as a statement of principle to be applied to an individual case. Rather, they are a summary of considerations that offer some guidance in predicting, in future cases, where the line may fall. They are some of the "good reasons", some of the imperatives, that may influence outcomes in cases and future directions of the law as to the permissibility of collateral challenge. That this is so is evident from some of the factors which are merely individual circumstances, such as the likelihood of adducing substantial evidence and whether the issue is clearly answered by authority. Cases such as Ousley have shown the courts to be mindful of such pragmatic considerations and the realities of trials but that the availability of collateral challenge does not turn on the practicalities of an individual case. There is no suggestion that considerations, such as whether the legal question was settled, would or could be contemplated as a reason for shutting out a defence in a criminal trial that would otherwise be available. It may be noted that Besanko J used them as a "cross-check" for his conclusion that collateral challenge was permitted. His Honour's identification of these factors draws from academic literature and case law from other jurisdictions such as Canada. Having discussed such factors, Besanko J moved on to consider possible future developments in the common law.
As a matter of statutory construction, I conclude that collateral challenge of the orders of the Appeal Tribunal was not available. I reiterate my conclusion that the status and consequences of the orders meant that they were binding and effective, unless set aside by the Supreme Court. The learned magistrate did not err in treating them as valid.
The motion to review is dismissed.
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