Marshall v The Town Planning Appeal Tribunal of Western Australia
[2007] WASCA 80
•27 APRIL 2007
MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2007] WASCA 80
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 80 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:148/2003 | 9 MARCH 2007 | |
| Coram: | McLURE JA | 27/04/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to apply refused | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND MARSHALL INGRID MARSHALL THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE WESTERN AUSTRALIAN PLANNING COMMISSION THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Practice and procedure Application for leave under O 67 r 5(3) of the Rules of the Supreme Court 1971 (WA) No arguable grounds to reopen Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 67 r 5 |
Case References: | Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) 120 LGERA 24; [2001] WASC 294 Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118; [2002] WASCA 274 Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231; (2002) 124 LGERA 118; [2003] WASCA 67 Marshall v The Honourable Graham Kierath MLA, Minister for Planning (2001) 113 LGERA 21; [2001] WASCA 70 Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276; [2004] WASCA 202 Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2007] WASCA 80 CORAM : McLURE JA HEARD : 9 MARCH 2007 DELIVERED : 27 APRIL 2007 FILE NO/S : FUL 148 of 2003 BETWEEN : RAYMOND MARSHALL
- INGRID MARSHALL
Appellants
AND
THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
- INGRID MARSHALL
Appellants
AND
- THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
- ROBERTS-SMITH J
McLURE J
Citation : MARSHALL - v - THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2004] WASCA 202
File No : FUL 147 of 2003, FUL 148 of 2003
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIACoram : MASTER SANDERSON
Citation : MARSHALL - v - THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2004] WASCA 202
File No : CIV 2358 of 2004
Catchwords:
Practice and procedure - Application for leave under O 67 r 5(3) of the Rules of the Supreme Court 1971 (WA) - No arguable grounds to reopen - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 5
Result:
Leave to apply refused
(Page 3)
Category: B
Representation:
FUL 148 of 2003
Counsel:
Appellants : In person
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Appellants : In person
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
FUL 176 of 2004
Counsel:
Appellants : In person
Respondent : No appearance
Solicitors:
Appellants : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) 120 LGERA 24; [2001] WASC 294
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118; [2002] WASCA 274
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231; (2002) 124 LGERA 118; [2003] WASCA 67
Marshall v The Honourable Graham Kierath MLA, Minister for Planning (2001) 113 LGERA 21; [2001] WASCA 70
(Page 4)
Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276; [2004] WASCA 202
Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146
(Page 5)
1 McLURE JA: The appellants seek leave under O 67 r 5(3) of the Rules of the Supreme Court 1971 (WA) to file applications to reopen the judgments in Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146 ("Marshall No 6") relating to appeals FUL 148 of 2003 and FUL 176 of 2004. Order 67 r 5 materially provides:
"(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the Registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a Judge or a Master first had and obtained by the party seeking to file or issue it.
(2) In the case of a motion or an application ordinarily returnable before a Master in chambers, an application for leave to file or issue such motion or application shall be made to a Master in chambers.
(3) In all other cases, an application or commission shall be made to a Judge in chambers."
2 The Registrar refused to file the applications to reopen without leave of a Judge. I will deal with each application separately.
FUL 148 of 2003
3 In Marshall No 6 the Court dismissed the appellants' application to reopen their earlier unsuccessful appeal in Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276; [2004] WASCA 202 ("Marshall No 5"). I will assume that the order has not been extracted.
4 As I said in my reasons in Marshall No 6, there is a long history of litigation commenced by the appellants in this Court and elsewhere relating to their unsuccessful attempts to subdivide their land in Kensington or develop it by constructing two buildings on the land. In addition to Marshall Nos 5 and 6, that litigation includes:
1. Marshall v The Honourable Graham Kierath MLA, Minister for Planning (2001) 113 LGERA 21; [2001] WASCA 70 ("Marshall No 1");
(Page 6)
- 2. Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) 120 LGERA 24; [2001] WASC 294 ("Marshall No 2");
3. Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118; [2002] WASCA 274 ("Marshall No 3");
4. Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231; [2003] WASCA 67 ("Marshall No 4").
5 In pars [8] - [17] of Marshall No 5 I summarised the nature and outcome of the litigation that preceded that case. I also noted in Marshall No 6 the occasions on which the appellants have made previous applications to reopen.
6 In my reasons in Marshall No 6 (the subject of this application to reopen) I said (at [6] - [8]):
"The appeal in FUL 148 of 2003 was dismissed on two separate grounds being first, that the appellants had no arguable case and second, that regardless of the merits, there were compelling discretionary considerations for refusing relief. The discretionary considerations are detailed in pars [47] - [52] of my reasons in [Marshall No 5]and not repeated here.
By an amended notice of motion the appellants seek a stay of the order dismissing the appeal in FUL 148 of 2003, an order that the appeal be re-opened and that they have leave to rely on additional grounds. The additional grounds are detailed in seven pages. In essence the appellants now wish to contend in FUL 148 of 2003 that the City of South Perth Town Planning Schemes 5 ('TPS5') and 6 ('TPS6') are ultra vires and invalid. There is a considerable overlap between the grounds the appellants wish to pursue in this matter and the challenge the subject of FUL 176 of 2004. The merits of the challenge to the validity of TPS5 and TPS6 are discussed below. However, it is unnecessary to consider the merits in this application because the substantive and discretionary considerations that justified the dismissal of the appeal are unaffected by the grounds which the appellants now wish to pursue. The appellants also seek to re-argue matters already determined in [Marshall No 5],such as the costs order.
(Page 7)
- Although the orders were not extracted at the time of the application, the jurisdiction to re-open is still only exercised in exceptional circumstances: [Marshall No 4] at [31]. This reflects the strong public interest in the finality of litigation. There is no proper basis on which to re-open the decision in [Marshall No 5]. I would dismiss the application and order that the appellants pay the respondents' costs of the application."
7 In this application, the appellants rely on six grounds that are particularised. The grounds contend that the Court misapprehended the facts, misrepresented the law, that the respondents had used court processes and procedure to gain a collateral advantage outside the scope of the process, that there had been no determination as to whether the Town Planning Appeal Tribunal of Western Australia had made a jurisdictional error and that the appellants' substantive rights have been affected. Insofar as the appellants rely on alleged errors of fact or law, the proper course was to have applied for special leave to appeal. None of the grounds relied on provide any arguable basis for reopening Marshall No 6. I hereby dismiss the application for leave.
FUL 176 of 2004
8 In addition to the application for leave to apply to reopen Marshall No 6, the appellants also seek orders vacating or varying orders dated 19 August 2003 made in CIV 1793 of 2003 and orders dated 17 June 2000 and 13 March 2001 made in CIV 1907 of 2000. The reference to 17 June 2000 should have been a reference to 17 July 2000.
9 The order dated 19 August 2003 was made in an application for leave to appeal from the decision of the Full Court in Marshall No 4. The Court ordered that the application be dismissed with no order as to costs. The order dated 13 March 2001 gave effect to the Full Court decision in Marshall No 1 discharging orders nisi for prerogative writs and ordering that the appellants pay the respondent's costs of the application to be taxed if not agreed. The orders dated 17 July 2000 in the same action granted the orders nisi which were subsequently dismissed.
10 The appellants stated in oral submissions that they rely on the same grounds as in FUL 148 of 2003. The appellants also recognise that the earlier decisions of this Court constitute an insurmountable impediment to subsequent claims. Applying the relevant legal principles (which stress the public interest in finality) referred to in Marshall No 6, there is no arguable basis for reopening any of the decisions under challenge. The application for leave is refused.
(Page 8)
Addendum
11 On 20 April 2007 the appellants filed an amended minute of proposed orders seeking in addition an extension of time in which to appeal against the decision in Marshall No 1 which was decided approximately six years ago. That decision was made by the Full Court and was the first in a long series of litigation relating to the appellants' land in Kensington. There is no appeal to this Court from a decision of the Full Court. In any event, it is far too late to seek to challenge that decision. The application is misconceived and without merit and must be dismissed.
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