Marshall v The Town Planning Appeal Tribunal of Western Australia [No 3]
[2008] WASCA 27
•11 FEBRUARY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MARSHALL -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [No 3] [2008] WASCA 27
CORAM: BUSS JA
EM HEENAN AJA
HEARD: 12 OCTOBER 2007
DELIVERED : 11 FEBRUARY 2008
FILE NO/S: FUL 148 of 2003
BETWEEN: RAYMOND MARSHALL
INGRID MARSHALL
AppellantsAND
THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First RespondentTHE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
FILE NO/S :FUL 176 of 2004
BETWEEN :RAYMOND MARSHALL
INGRID MARSHALL
AppellantsAND
THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McLURE JA
Citation :MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2007] WASCA 80
File No :FUL 148 of 2003, FUL 176 of 2004
Catchwords:
Practice and procedure - Applications to review decision of single judge of appeal - No material error of law or fact - Applications dismissed - Turns on own facts
Legislation:
Nil
Result:
Applications to review dismissed
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):
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Elliott v The Queen [2007] HCA 51; (2007) 239 ALR 651
Keating v The State of Western Australia [2007] WASCA 98
Lawless v Turner [2007] WASCA 127
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; [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
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 612
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
BUSS JA: The appellants have applied to review the decision of McLure JA (Marshall No 7), delivered 27 April 2007, to dismiss the appellants' applications to re‑open 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.
The appellants' application to review McLure JA's decision is not a hearing de novo. It is an appeal by way of rehearing, and the appellants must satisfy this court that her Honour made an error in dismissing their applications. See Keating v The State of Western Australia [2007] WASCA 98 [21]; Lawless v Turner [2007] WASCA 127 [4].
The litigious background
The appellants have engaged in extensive litigation arising from their unsuccessful attempts to subdivide a piece of land in Kensington or to develop the land by constructing two buildings on it. The litigation in this court includes:
1.Marshall v The Honourable Graham Kierath MLA, Minister for Planning (2001) 113 LGERA 21; [2001] WASCA 70 (Marshall No 1);
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.Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276; [2004] WASCA 202 (Marshall No 5).
In Marshall No 6, this court dismissed the appellants' application to re‑open their earlier unsuccessful appeal in Marshall No 5.
In Marshall No 5, McLure J, as her Honour then was (with whom Murray and Roberts‑Smith JJ agreed), summarised the relevant litigation which had preceded Marshall No 5:
The appellants are the registered proprietors of land at the corner of Susan Street and Gwenyfred Road in Kensington ('the land'). The land comprises an area of 1034 sq metres and has a house constructed on it.
In November 1994 the appellants applied to subdivide the land into two lots of 530 sq metres and 504 sq metres. That application was made on the basis that the land was classified 'Residential R', with an R-code density of 'R15' under the City of South Perth Town Planning Scheme No 5 ('TPS5').
On 14 March 1995 the second respondent, the Western Australian Planning Commission ('Commission') refused the subdivision application on the ground that the proposal did not satisfy the minimum and average lot size requirements (550 sq metres and 666.66 sq metres respectively) of the R15 density code. After the Commission refused a request for reconsideration of that decision, the appellants on 11 May 1995 appealed to the first respondent, the Town Planning Appeal Tribunal of Western Australia ('Tribunal'). On 24 November 1995 the appellants' appeal to the Tribunal was dismissed.
On 11 July 1997 the Minister for Planning dismissed an appeal against a subsequent subdivision application in the same form.
Following the failure of their subdivision applications, the appellants lodged a number of development applications seeking approval to construct a second dwelling on the land. These culminated in an application dated 5 August 1999 to the City of South Perth for approval to commence a duplex development on the land. The appellants then appealed to the Minister for Planning against a deemed refusal of the development application. On 14 April 2000 the Minister for Planning dismissed that appeal on the ground that, inter alia, 'the form of development sought cannot be permitted under current and operative legislation'. Due to the size of the land, the development was prohibited under residential planning codes incorporated in TPS5. The appellants applied for certiorari and mandamus in respect of the Minister's decision of 14 April 2000. On 13 March 2001 this Court discharged the order nisi (Marshall v Minister for Planning (2001) 113 LGERA 21).
The appellants then sought declarations as to, inter alia, the validity of TPS5 and its application to the land. This application was dismissed (Marshall v MacTiernan (2001) 120 LGERA 24) as was an appeal from that decision (Marshall v MacTiernan [2002] WASCA 274). The appellants then sought a stay of the order dismissing the appeal on the ground that the TPS5 map did not in fact zone the land residential with the result that the residential planning codes were inapplicable. This application was also dismissed (Marshall v MacTiernan [2003] WASCA 67 ('the stay decision')).
Having exhausted all possible avenues of challenging the Minister's decision of 14 April 2000 in relation to their development application, the appellants then turned their attention to the Tribunal's 1995 decision in relation to their subdivision application.
On 7 July 2003 the appellants filed an application for an order nisi for writ of certiorari to quash the Tribunal's 1995 decision. The application came on for hearing before McKechnie J on 25 August 2003. By an oral application made on the day of the hearing, the application was amended to include an application for an extension of time within which to appeal against the Tribunal's 1995 decision. The only substantive ground stated in the application was that a residential density code of R15 did not in fact apply to the land.
It appears that at the hearing the appellants applied to add a ground of appeal in terms that 'there has been Jurisdictional error by the Town Planning Appeal Tribunal'. The basis of the Jurisdictional error was not further particularised in oral or written submissions before McKechnie J.
On 25 August 2003 McKechnie J dismissed the application for an order nisi for a writ of certiorari and for an extension of time within which to appeal. He did so primarily on the ground that there was no arguable case of error by the Tribunal as to the 'R' coding of the land.
On 6 October 2003 Pullin J ordered that the appellants have leave to appeal the decision of McKechnie J refusing an extension of time within which to appeal [8] ‑ [17].
In Marshall No 5, it was held, relevantly:
(a)The appellants had no arguable case that the land was zoned other than Residential-R with an R‑code density of 'R15' under City of South Perth Town Planning Scheme No 5 (TPS5). Indeed, the original scheme map established that the appellants' land was zoned Residential‑R with an R‑code of 'R15' under TPS5. See McLure J's reasons at [31].
(b)There was nothing in the reasons of the court in the stay decision (that is, in Marshall No 4) or in the relevant legislative framework (including subsidiary legislation such as TPS5) to support the appellants' contention that the Western Australian Planning Commission (and, on appeal, the Town Planning Appeal Tribunal) were required to have regard to certain matters (identified by the appellants) in the exercise of the discretion under s 20 of the Town Planning and Development Act 1928 (WA) (repealed). See McLure J's reasons at [35].
(c)The appellants' contention that the Tribunal took into account irrelevant considerations was without merit. See McLure J's reasons at [36].
(d)The Tribunal did not act under dictation. See McLure J's reasons at [41].
(e)McKechnie J did not determine the appellants' application on an improper basis or deny them procedural fairness. See McLure J's reasons at [42] ‑ [46].
(f)Even if the appellants did have one or more grounds of challenge to the Tribunal's 1995 decision which raised an arguable error of law, McKechnie J did not err in refusing the relief. There were very compelling discretionary grounds for refusing the applications. First, the delay was very considerable. Secondly, the appellants' case to the Tribunal was based on the assumption that the land was zoned Residential‑R with a density coding of R15. That was the factual basis on which all of the litigation conducted on behalf of the appellants between 1995 and October 2002 proceeded until they commenced acting for themselves. Thirdly, their primary contention was in all material respects identical to that put before the Full Court on 27 February 2003 in the stay application (that is, Marshall No 4). The appellants should have placed before the Full Court hearing the stay application all of the evidence and submissions made to the court in Marshall No 5 concerning the zoning of the land. Further, none of the additional grounds raised in Marshall No 5 was raised in the appeal to the Tribunal and the appellants refrained from appealing the Tribunal's 1995 decision on legal advice. The dismissal of the appellants' applications was entirely in accord with the public interest in a fair, timely and efficient administration of justice. See McLure J's reasons at [47] ‑ [52].
Accordingly, the court in Marshall No 5 dismissed the appellants' appeals in FUL 147 and 148 of 2003.
In Marshall No 6, there were two matters before the court. In FUL 148 of 2003, the appellants applied for a stay of the order dismissing, and for leave to re‑open, the appeal in Marshall No 5. In FUL 176 of 2004, the appellants appealed from an order made by Master Sanderson on 17 November 2004 dismissing their application for an extension of time for an order nisi for a writ of certiorari and other relief.
On 8 September 2004, the Full Court delivered judgment in Marshall No 5 and ordered that the appeals in FUL 147 and 148 of 2003 be dismissed. Subsequently, the appellants discontinued their application for a stay of the order dismissing the appeal in FUL 147 of 2003.
In Marshall No 6, McLure JA (with whom Malcolm CJ and Murray AJA agreed) said, in relation to the appellants' application in Marshall No 6 for leave to re‑open the appeal in FUL 148 of 2003:
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.
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] ‑ [8].
In Marshall No 6, the appellants also sought an extension of time for a writ of certiorari to quash the Minister's decision (the Minister being the respondent in FUL 176 of 2004) to approve City of South Perth Town Planning Scheme No 6 (TPS 6). The appellants also sought a declaration that TPS5 was ultra vires or alternatively that the decisions made by the former Minister for Planning in respect of the development of the appellants' land, while TPS 5 was in operation, be declared null and void. After reviewing, once again, the long history of the relevant litigation involving the appellants, McLure JA (with whom Malcolm CJ and Murray AJA agreed) held, relevantly:
(a)The issues that the appellants sought to raise (or their substance) in relation to the validity of TPS 5 had already been considered and determined against them in Marshall No 1 and at first instance and on appeal in Marshall No 3 and Marshall No 4. The doctrines of issue estoppel and res judicata prevented the appellants from re‑issuing a challenge to the validity of TPS 5. Further, even if the issues did not entirely overlap, they could and should have been raised in the previous litigation. See McLure JA's reasons at [28].
(b)The appellants' substantive objections to TPS 6 were the same as for TPS 5 and did not require separate consideration. There was no justification for departing from the reasoning and conclusions of the Full Court in Marshall No 1 and Marshall No 4 as to the relationship and effect of the Metropolitan Region Scheme, the Uniform Building By‑laws and TPS 5 (which apply by analogy to TPS 6). See McLure JA's reasons at [30].
(c)The grounds on which the appellants sought an order nisi and a declaration did not raise an arguable case. See McLure JA's reasons at [40].
The appellants' application was therefore dismissed.
The applications before McLure JA in Marshall No 7 and her Honour's decision and reasons
As I have mentioned, in Marshall No 7, being the decision the subject of the application to review before this court, McLure JA dismissed the appellants' applications to re‑open the judgments in Marshall No 6 relating to appeals FUL 148 of 2003 and FUL 176 of 2004.
McLure JA assumed, at [3], that the order of the court in Marshall No 6 had not been extracted. I will also make that assumption.
The appellants' application to re‑open relating to appeal FUL 148 of 2003 was supported by an affidavit sworn 30 November 2006. In par 19 of the affidavit, the appellants deposed:
We believe the respondent is in contempt of Court. We believe that the law was misrepresented to the Town Planning Appeal Tribunal in 1995, as well as to us: Marshall v Tribunal [2006] WASCA 146, at 21. An altered version of the Tribunal's decision was subsequently published, as law (cf pp 123‑138 to our affidavit in FUL/148/03 sworn 14/9/05 with Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170). Since that time legal process has been manipulated in an attempt, not just to validate the City of South Perth town planning schemes, but also to conceal wrongdoing. What happened before the Tribunal is, in microcosm, what has happened in the Supreme Court. We believe justice has miscarried and that the consequences are far‑reaching.
McLure JA said, in relation to the appellants' application to re‑open the judgment in Marshall No 6 relating to appeal FUL 148 of 2003:
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 [7].
Her Honour said, in relation to the appellants' application to re‑open the judgment in Marshall No 6 relating to appeal FUL 176 of 2004:
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.
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.
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 [8] ‑ [10].
Her Honour's reasons contain an addendum in these terms:
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 [11].
Applications to re‑open generally
This court has jurisdiction to re‑open an appeal and to review, correct or alter determinations made in the appeal. See Elliott v The Queen [2007] HCA 51; (2007) 239 ALR 651. The jurisdiction is, however, exercised with great caution. It is, in fact, rarely exercised. See Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, 684; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 612, 684. In general, the jurisdiction will not be enlivened unless the applicant can demonstrate that the facts and circumstances relied on for the re‑opening are not attributable to his or her neglect or default. See Wentworth, 684; Elliott, [33]. In Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, Mason CJ said:
[T]he public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment.
However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases (302-303).
Also see Elliott, [32].
The application to review: McLure JA's dismissal of the application to re‑open the judgment in Marshall No 6 relating to appeal FUL 148 of 2003
The appellants' application to review dated 3 May 2007 in relation to McLure JA's dismissal of their application to re‑open the judgment in Marshall No 6 relating to appeal FUL 148 of 2003 specifies the grounds of the application to review. The grounds are these:
1.The Applicant's allegations of a miscarriage of justice and abuse of the process of the Court have not been addressed.
2.An allegation is that the Court and Tribunal were misled; that the Applicant was fraudulently deceived. The appeal FUL 148/03 was reported as 'Marshall v The Town Planning Appeal Tribunal of Western Australia' (2004) 136 LGERA. Similarly 'Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170. Clearly her Honour has taken notice of reported decisions, as would any legal practitioner. The Applicant has been, and continues to be prejudiced.
3.One way or another the Court has a duty to deal with the allegations. There is an overriding public interest in the due administration of justice.
The appellants filed an affidavit sworn 4 October 2007 in support of their application to review relating to appeal FUL 148 of 2003. That affidavit sought to amend a statement in par 16 of their affidavit sworn 30 November 2006. Also, after the hearing before this court on 12 October 2007, the appellants filed, without leave, an affidavit sworn 25 October 2007 relating, principally, to various events occurring on and after 11 October 2007. Although such an affidavit, filed without leave, cannot be relied upon (Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246 [29] (Mason J)), I have read it and it does not advance the appellants' case.
The appellants' written submissions dated 8 June 2007 (as amended by letter dated 20 June 2007), in support of the application to review relating to FUL 148 of 2003, set out submissions in relation to the grounds, as follows:
7.In [2007] WASCA 80, the Honourable Justice McLure refers (at [10]) to the public interest in the finality of litigation. That principle is all very well where litigation 'has been brought regularly to an end' (Bailey v Marinoff (1971) 125 CLR 529, at 531-532, per Menzies J), but this litigation has not been brought to an end regularly, nor is it truly at an end when there are no extracted orders.
8.McLure JA does not seem to have addressed the appellants' allegations. The fundamental ground for seeking to have the judgments in [2006] WASCA 146 reopened is that there has been a miscarriage of justice; that the Respondents, and their servants, and their agents have abused the process of the Court. The public interest in the due administration of justice outweighs other public interests. It is a contempt to abuse the court process: Halsbury's Laws of Australia at [105-220].
9.At [5], McLure JA refers to her summary of the nature and outcome of litigation that preceded 2004 WASCA 202. When paragraphs [8]-[17] of 2004 WASCA 202 are compared with paragraphs [2]-[11] of the Second Respondent's submissions, dated 17 May 2004 (reproduced at pp 70-74 of the appellants' affidavit in FUL 148/03, sworn 30/11/06), the judgment repeats the Second Respondent's submissions almost verbatim. The Second Respondent's submissions suppress facts and convey falsehoods, intended to deceive the Court:
a)The Second Respondent's assertions of fact have not been proved in evidence (they were filed in FUL 147/03). The appeal papers to FUL 148/03 ('AP') tell a different story:
i)the basis of the application for subdivision approval was to use the lots for residential purposes: AP 36;
ii)the statutory authorities who know the law, or should know the law (they help make the law) led the appellants to believe that the land was zoned 'R15': AP 30 at [17];
iii)the Second Respondent advised the appellants of a right of appeal: AP 40;
iv)the Second Respondent defended the appeal to the Tribunal, and stated in evidence that the land was zoned Residential‑R R15 under the City of South Perth Town Planning Scheme No. 5 ('TPS5'): AP 53, 61 at 2.2, 63 at 1.2, 64 at 2.1. The representation was one of law:
Public Trustee v Taylor [1978] VR 289;
v)the Second Respondent misrepresented the law to the Tribunal. A town planning scheme for the City of South Perth has never been made under both heads of power, as required by law: ss 34 & 35 Metropolitan Region Town Planning Scheme Act, 1959 ('Scheme Act'), cl 25 Metropolitan Region Scheme ('MRS'): AP 74-76, 85. The Interpretation Act, l984, does not alter the construction of the Scheme Act: ss 3, 77 Interpretation Act, 1984. Writings, the direct tendency of which is to prevent a fair trial being had in a Court of inferior jurisdiction, which has not the power of protecting itself (which lead it to assume a jurisdiction it does not have), are a contempt of that court and of any court which may try the issue. The real offence is the wrong done to the public by interference with the due course of justice: The King v Davies [1906] 1KB 33;
vi)the effect of the Tribunal's decision determines the appellants' substantive rights: of appeal, compensation: AP 72-73, appellants' affidavit in FUL 148/03, sworn 14/9/05 at pp 125-138. The Tribunal has no jurisdiction to finally determine rights; it has no jurisdiction to make a decision on the basis of ultra vires subsidiary legislation: The King v Electricity Commissioners, ex parte London Electricity Joint Committee Company(1920) Ltd [1924] KB 171, at 204-206 per Atkin LJ, Chief Adjudication Officer v Foster (1993) AC 754, at 762 per Lord Bridge of Harwich, R v Middleton, Bromley and Bexley Justices ex parte Collins (1970) 1 QB 216. This Court has a supervisory jurisdiction over the Tribunal.
vii)The purported Tribunal decision was published as law: Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170. The Minister failed to act: AP pp 124-129. The Minister and the Second Respondent are in contempt of the Tribunal. The essence of the offence of contempt of court is 'action, or inaction, amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice ...': In re Dunn; In re Aspinall [1906] VLR 493, at 497 per Cussen J. An absence of intention to interfere with the administration of justice does not prevent a contempt from occurring, but intention is relevant and sometimes important. Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, at 258.
b)The Second Respondent misrepresented past events to the Court:
i)the appeal the Minister dismissed, dated 31 July 1997, (date disputed) is against the Second Respondent's third refusal of subdivision approval: Appeal Papers to FUL 148/03 at pp 161-170, 324-326;
ii)on 14/4/00 the Minister failed to determine the appellants' MRS development appeal; Appeal Papers to FUL 148/03 at pp 320‑323. No order nisi for a writ of certiorari went to that 'decision'. Had there been an order nisi for the Full Court to discharge, it would have had to have been for an order nisi for a writ of mandamus;
iii)past cases do not go to answering whether, in 1995, the Tribunal made a jurisdictional error, whether justice before the Tribunal miscarried. The discussion of concluded cases must not be made a pretence for interfering with pending cases: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273 at 320 G, per Lord Simon of Glaisdale.
c)The Second Respondent misrepresented the proceedings out of which the appeal to the Full Court arose:
i)the application filed on 7 July 2003 was an application for special leave to apply for a writ of certiorari. His Honour dismissed the application primarily on the basis of plans put into evidence and submissions made by Counsel for the Minister for the Planning Commission: Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia [2003] WASC 175, at [8]‑[12]: AP at pp 7‑19, 377. McKechnie J, like Parker J, found the evidentiary fact, but in neither case was the law applied to the facts as found. Equity will not permit a statute to be used as an instrument of fraud: Halsbury's Laws of Australia [185‑895];
ii)the Minister for the Planning Commission's intervention deprived the appellants of a fair hearing. Parties to litigation should be able to rely upon there being no usurpation by any other person of the function of that court to decide their dispute according to law: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273, at 309‑310 per Lord Diplock;
iii)the Second Respondent's submissions dated 26/9/03 in CIV 1792/03, misled the appellants into believing that McKechnie J had refused an order nisi for a writ of certiorari; that the appellants had an appeal 'as of right' from that purported decision. The appellants filed the notice of appeal in FUL 147/03 as a result of the Second Respondent's representations. Pullin JA did not grant the appellants an extension of time in which to file that appeal: appellants' affidavit in FUL 148/03, sworn 30/11/06, at Annexures 'J' par [2]‑[3] (p 68), 'K' par [10]‑[11] (p 74), 'N' (p 89), 'Q' (pp 108‑114). When legal proceedings are pending any comment which is likely to influence a party in the conduct of the proceedings is a contempt of court: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273 at 325‑326 per Lord Cross, HL;
iv)Where there appears to be a right of appeal it is preferable that the matter go by way of appeal: Project Tile Fixing Pty Ltd v Lane (SC WA) Full Court, Lib No 980334, 10 March 1998, unreported). The Full Court points out in [2004] WASCA 202, at [18]‑[19], that an extension of time is required in both cases. The Second Respondent has no excuse for not knowing that only FUL 148/03 was a valid notice of appeal;
v)Roberts‑Smith J (at [5]) was misled. The appellants have not had 'an opportunity to otherwise challenge the decision of the Tribunal'. The result of [2004] WASCA 202, however, is that only one appeal is dismissed i.e.: the appeal against McKechnie J's refusal to extend the time in which to appeal: [2006] WASCA 146 at [6], and [2007] WASCA 80 at [6];
vi)The Second Respondent had the temerity to have the Full Court dismiss both FUL 147/03 and FUL 148/03 with costs: Annexure 'P' to appellants' affidavit in FUL 148/03, sworn 30/11/06, at pp 106‑107. This act is evidence of the fact that the Second Respondent intended to deceive the Court. The Full Court had no jurisdiction to make a costs order in FUL 147/03 when there was no valid notice of appeal: Wing Luck Foods v Lay Choo Lim [1989] WAR 358, at 360. Further evidence that the Second Respondent knew there was no appeal in FUL 147/03 is that an affidavit and submissions were filed in FUL 148/03 only, even though the Second Respondent had not entered an appearance to FUL 148/03. The writings are misleading, and calculated to further prejudice the application to re‑open.
d)The Second Respondent set out to deceive the Court of Appeal:
i)the falsehoods the Second Respondent told the Full Court were repeated to the Court of Appeal. Alleged facts were 'verified' on affidavit and filed in FUL 148/03: Affidavit of John Loftus Quinn, sworn 23/11/04;
ii)the reasons for judgment of the Supreme Court, from Marshall & Anor v The Honourable Graham Kierath MLA, Minister For Planning [2001] WASCA 70 through to Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister For Planning And Infrastructure [2003] WASCA 67, should be sufficient proof that the issue of validity has not been ruled upon (which raises serious questions about extracted orders);
iii)The Second Respondent's conduct has prevented the appellants from raising a defence to the order dismissing the appeal in FUL 148/03. This decision cannot be challenged while there is an order in FUL 147/03 dismissing a purported appeal against refusal of a purported order nisi for a writ of certiorari: Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369, at 389 per Dixon J. The Court of Appeal was misled into believing that FUL 147/03 was FUL 148/03 and that it had actually been heard by the Full Court, when it had not: [2006] WASCA 146 at [4];
iv)The Court of Appeal dismissed one of the applications in the motion to FUL 148/03 - there could be no stay on a non‑existent appeal: [2006] WASCA 146, at [411, per Murray AJA. In complete disregard for the Court's judgment, the Second Respondent had the Court make an order dismissing the entire motion with costs: appellants' affidavit sworn 30/11/06 at pp 46, 122‑131, 176. The obstruction of a party from continuing proceedings is a contempt of court: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273, at 317‑319, per Lord Simon HL;
v)Conduct that is calculated to deter a party from settling proceedings on the basis of the applicable law is an interference with the administration of justice: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273 at 317‑319 per Lord Simon HL. The sovereign could pardon criminal but constitutionally could not pardon civil contempt. Where misconduct is wilful courts have a disciplinary jurisdiction which is exercised in the public interest and have power to fine for civil contempt:
Witham v Holloway (1995) 183 CLR 525, at 538‑542 per McHugh J.
10.The long history of litigation McLure JA refers to at [2007] WASCA 80, par [4], is, in reality, a long history of obstruction and/or interference, by the respondents, with the administration of justice:
a)Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276; [2004] WASCA 202 was published some time before the motion to stay and re‑open was listed. The question whether or not a contempt has been committed is one to be determined at the time of publication. Relevant factors are whether the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice and the likely durability of the influence of the publication on its audience: Hinch v The Attorney General For The State Of Victoria (1987) 164 CLR 15, at p 34 per Wilson J, and at p 70 per Toohey J:
i)the publication purports to be a decision of the Full Court of the Supreme Court of Western Australia, but it is a fraud. Judges, the legal fraternity in general, other would be litigants ought to be able to rely on it for a long time;
ii)it has a tendency to prejudice, or embarrass the Court. It appears to have impaired the Court of Appeal's ability to ascertain the true facts of the case: [2006] WASCA 146 [3]‑[4]. It may have influenced the State Administrative Tribunal: appellants' affidavit in FUL 148/03, sworn 14/9/05, at pp 84‑86;
iii)the reported decision prejudges issues the appellants sought to raise. It has been held that it is a contempt to publish such material: Halsbury's Laws of Australia [105‑235];
iv)had the appellants been aware of this, and other LGERA reported decisions in the matter of Marshall earlier, they may well have been influenced by them.
c)Inter alia, (2004) 136 LGERA 276 has altered, without authorisation, the citation and the references in the Supreme Court's own judgment and refers to reported LGERA versions of the Supreme Court's otherwise unreported judgments. The LGERA versions are not only prejudicial, in that they purport the Court has determined issues which remain undetermined, or were never even considered (compare catchwords), or raised. They are inconsistent amongst themselves misstating both the facts and the law:
i)In Marshall v Minister For Planning (2001) 113 LGERA 21, repeated in (2001) 120 LGERA 24, at p 26, it is purported that: 'The Metropolitan Region Scheme provided that where any provision of a town planning scheme of a local authority was at variance with it the provisions of the town planning scheme of the local authority was to prevail'. This, coupled with the Respondent's assertion that the land is zoned Residential‑R 'R15' under the City of South Perth Town Planning Scheme No.5 ('TPS5'), was the Respondent's submission (appellants' affidavit in FUL 148/03, sworn 14/9/05, at p 909 par [91, p 922 par 23(c) and 25, p 926 par 4). Because this assertion was made by the Minister it had the relevant tendency to influence those proceedings. The statement is a travesty of the law ‑ see Marshall & Anor v The Honourable Graham Kierath MLA, Minister For Planning [2001] WASCA 70 ('[2001] WASCA 70') at [15], and also Marshall v Director General Department of Transport [2001] 205 CLR 603 at 623 per Gaudron J;
ii)An example of inconsistencies: 'Applicants applied for writs ... the applications for the writs must be refused. So Ordered': (2001) 113 LGERA 21 at pp 22 and 25. "..the plaintiffs issued writs of certiorari and mandamus against the Minister, which were dismissed by the Full Court: (2001) 120 LGERA 24; [2001] WASC 294. 'The applicant thereafter issued writs of certiorari and mandamus, which the Court subsequently refused': (2002) 124 LGERA 118, at 119;
iii)the fact that other people have been guilty of contempt cannot be used to justify a publication which would otherwise constitute contempt: Director of Public Prosecutions v Wran & Anor (1986) 7 NSWLR 616, at 629
(see also appellants' affidavits in FUL 176/04 sworn 21/2/07 and 7/3/07);
d)A finding that a publication has a clear tendency to prejudice the due administration of justice may well be more readily made in a case where the conduct was engaged in for that very purpose: Hinch v The Attorney General For The State Of Victoria (1987) 164 CLR 15, at p 34 per Wilson J, at pp 46‑47 per Deane J:
i)The report to (2004) 136 LGERA 276, at p 278 purports 'These proceedings were an appeal ... The facts of the case are set out in the judgment'. Page 276 has already set out purported facts which have been taken directly from the Second Respondent's submissions. Two out of three judges in the judgment itself speak of 2 appeals, not an appeal. As submitted at [9] in this submission, the Second Respondent misrepresented the facts of the case to the Full Court and to the Court of Appeal;
ii)for the purposes of the Scheme Act, the Second Respondent is the responsible authority: s 37 Scheme Act. The Second Respondent is to do all things that are necessary for the purpose of carrying out the Scheme Act and MRS. It owes the appellants a duty to provide (proper) advice and assistance on land use planning and land development: ss 18(1)(c), 18(1)(e)(v) State Planning Commission Act, 1985. It has not;
iii)the Second Respondent misrepresented the law to the Tribunal in 1995; having misused court process at the Tribunal it went on to have the Tribunal's decision published as authority (strictly responsibility for a publication may be attributed to any person who, directly or indirectly, by his or her conduct, caused dissemination of the relevant material:
Halsbury's Laws of Australia [105‑105], Wade v Gilroy (1986) 83 FLR 14, at 29, per Frederico J);
iv)the Second Respondent, in concert with the Minister, followed the same pattern of behaviour in the Supreme Court. The Second Respondent, and its servants, and its agents have abused process to the extent of obtaining a final order dismissing an appeal from refusal of an order nisi for a writ of certiorari, which is a fiction. The appellants have been obstructed from having their rights determined according to law. The Court has been prevented from administering the law. Publication of the purported decision of the Full Court is calculated to conceal wrongdoing;
v)If the act constituting a contempt has been made punishable by statute the summary way of proceeding is still available: R v Lovelady, ex parte Attorney‑General [1982] WAR 65, at 67 per Burt CL. If the Tribunal had no jurisdiction the Second Respondent did not just (!) commit perjury, it attempted, or conspired to pervert the course of justice.
During oral argument on the application to review, this court endeavoured to clarify with the appellants the nature and character of their complaints. The following points emerged:
(a)The appellants contend that the decision in Marshall No 6 was wrong because the court misapprehended the effect of earlier decisions of courts in which the appellants were involved as litigants (appeal t/s 61).
(b)The point which the appellants want to litigate and have determined is the validity of TPS 5 (the former Town Planning Scheme) and TPS 6 (the current Town Planning Scheme) of the City of South Perth (appeal t/s 63 ‑ 64).
(c)The appellants contend that TPS 5 (which formerly applied to the appellants' land) and TPS 6 (which currently applies to that land) are invalid and the appellants want the court to make a determination to that effect (appeal t/s 64 ‑ 65).
(d)The appellants contend that the court has never determined the validity of TPS 5 (appeal t/s 66).
(e)The appellants contend that if TPS 5 was invalid then TPS 6 'would be equally invalid if it was made in the same terms, which leaves the Tribunal having made a decision on the basis of an invalid law' (appeal t/s 67).
(f)The appellants did not challenge the validity of TPS 5 before the Tribunal (appeal t/s 67).
(g)In Marshall No 3, the appellants required leave to appeal, but the Full Court did not formally grant leave. Rather, as Parker J stated in his reasons, the court proceeded to deal with the matter 'on the basis that the full merits of the appellants' case are in issue on this appeal, as they were before the Master, and to deal with those merits. This procedure, of course, avoids the appellants incurring further unnecessary costs.' See Marshall No 3 [7].
(g)The appellants complain that although the court in Marshall No 3 determined, relevantly, that TPS 5 was valid and effective to preclude the appellants' proposed development because of non‑compliance with the residential planning codes as required by TPS 5, and that nothing in the Town Planning (Buildings) Uniform General By‑laws 1989 (WA) affected or inhibited the provisions of TPS5 insofar as they prohibited the appellants' proposed development, the appellants' counsel in those proceedings 'didn't entirely put our case to the court' (appeal t/s 70). The appellants contend that their counsel abandoned ground 3 of their grounds of appeal without their prior knowledge (appeal t/s 70). See Marshall No 3 [8].
The application to review: McLure JA's dismissal of the application to re‑open the judgment in Marshall No 6 relating to appeal FUL 176 of 2004
The appellants' application to review dated 3 May 2007 in relation to McLure JA's dismissal of their application to re‑open the judgment in Marshall No 6 relating to appeal FUL 76 of 2004 sets out the grounds of the application to review, as follows:
1.The Applicant's allegations of a miscarriage of justice, and abuse of the process of the Court have not been addressed.
2.Falsifying the record of the court is a serious allegation. If the Applicant applied under the wrong rule, the Court still has a duty to deal with the allegation and, if proven correct, the Applicant has a right to redress.
3.The Applicant has been fraudulently deceived. The Respondent has interfered with the administration of justice as a continuing process.
4.There is a public interest in the finality of litigation, but there is an overriding public interest in the due administration of justice.
On 20 September 2007, the appellants filed an application for leave to amend their application to review dated 3 May 2007. The application for leave to amend was expressed as follows:
The applicant applies for
1.Leave to amend the application, dated 3/5/07, for review of a single judge's decision and to ask for:
i)a stay of execution of the Order of Master Sanderson in CIV 2358/04 dated 17/11/04.
ii)a stay of the orders of the Court of Appeal dated 26/7/06 and 28/10/06; that they be vacated, or varied.
2.Directions.
On 20 September 2007, the appellants also filed an affidavit in support of their application for leave to amend. In the affidavit, the appellants deposed, relevantly:
3.Since our affidavit made 7 March 2007, the Respondents have set bills of costs down for taxation. On 3 September 2007 we received notification from the State Solicitor's Office ('SSO') that bills of costs in CIV 2358, FUL 147 of 2003 and FUL 148 of 2003, and FUL 148 of 2003 and FUL 176 of 2003 [sic] had been set down for taxation in the Supreme Court on 6th September 2007: Annexure 'A'.
4.On 6 September 2007 the Acting Principal Registrar proceeded to tax the bill of costs in CIV 2358/04. On 17 November 2004 Master Sanderson summarily dismissed our application, dated 19 October 2004, for an extension of time for an order nisi for a writ of certiorari, and other relief: Annexure 'B'.
5.Taxation of the Respondents' bills of costs in FUL 147/03 and FUL 148/03, and FUL 176/04 was not proceeded with because, as we understand it, the orders in FUL 148/03 and FUL 176/04 have not yet been extracted and the combined bill in FUL 148/03 and FUL 176/04 needs either to be redrafted, or requires an order of a judge allowing the combination. Taxation of these bills was adjourned sine die.
6.After the appointment of 6 September 2007 and shortly after stepping out of the Supreme Court building Mr John Quinn, the representative from the SSO, repeated the Respondents previous out of court costs proposal, suggesting it would save us money - a proposal we let him know we could not agree to.
7.The Acting Principal Registrar allowed us until 14 September 2007 to file and serve any objections to the taxation of costs in CIV 2358/04. A copy of our objections as filed and served is at Annexure 'T'.
8.By letter dated 17 September 2007 the Associate to the Acting Principal Registrar acknowledged the Registrar's receipt of our letter dated 14 September 2007, but there is no mention of the matter being referred to the Court: Annexure 'D'.
9.We believe execution of the Order of Master Sanderson in CIV 2358/04, dated 17 November 2004, must be stayed because if, as we have come to believe, the Respondent's conduct before Master Sanderson was a contempt setting these costs down for taxation is a further abuse and would enable the Respondent to extort costs from us.
10.We believe that if the Court relinquishes jurisdiction over the orders the Respondents wrongly had the Court make on 26 July 2006, and if those orders are not set aside, or varied, we will have been denied justice and the Respondents will have successfully used the Court as an instrument of fraud.
The appellants also filed affidavits sworn 10 and 11 October 2007 in support of the application to review relating to FUL 176 of 2004. After the hearing before this court on 12 October 2007, the appellants filed, without leave, an affidavit sworn 25 October 2007 relating, principally, to various events occurring on and after 11 October 2007. Although such an affidavit, filed without leave, cannot be relied upon (Carr [29]), I have read it and it does not advance the appellants' case.
The appellants' written submissions dated 8 June 2007, in support of their application to review relating to FUL 176 of 2004, assert, in relation to the original grounds of the application to review:
7.The reasons for decision the appellants are seeking to have re‑opened have the citation Marshall & Anor v The Town Planning Appeal Tribunal of Westem Australia & Anor [2006] WASCA 146. Reasons for decision by the Supreme Court of Western Australia, bearing the citation Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146 do not exist.
8.The appellants made serious allegations, on affidavit, that the Respondent, and her servants, and her agents have abused the process of the Court which McLure JA has failed to address. Conduct which tends to inhibit litigants in general from obtaining adjudication by the court of their legal rights will affect not only the public interest, but the interests of parties. It is a contempt to abuse the court's process: Attorney‑General v Times Newspapers Ltd [1974] AC 273, at 307‑310 per Lord Diplock, Halsbury's Laws of Australia at [105‑220].
9.In [2007] WASCA 80 McLure JA notes, at [10] the public interest in the finality of litigation, and at [11] to the fact that Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning [2001] WASCA 70 was decided approximately six years ago. The principle of the finality of litigation is all very well where litigation 'has been brought regularly to an end' (Bailey v Marinoff [1971] 125 CLR 529, at 531‑532, per Menzies J), but this litigation has not been brought to an end regularly ‑ it has barely got off the ground. Whether orders have been extracted, or not, the Court has inherent jurisdiction to set aside, amend or vary an order, or judgment obtained by fraud. There is no statute of limitations on fraud.
10.That the Respondent intended to deceive the Court by making false representations is clear; the Respondent would otherwise not have had the Court make an order dismissing the appeal in FUL 176/04. The only application the majority of the Court could have refused, according to the Result of [2006] WASCA 146 is the appellants' application to set aside the Acting Court of Appeal Registrar's order of 27/10105. All other applications were granted.
11.When on 7/8/06 McLure JA ordered the appellants to make submissions on costs the Respondent was not required to respond, but the Respondent did respond, brandishing the order the Respondent had extracted in CIV 1907/00 discharging orders nisi.
12.The Respondent intended, from the outset, to deceive the Court. The unperfected judgment in Marshall & Anor v The Town Planning Appeal Tribunal of Westem Australia & Anor [2004] WASCA 202 ('[2004] WASCA 202') was used as authority before Master Sanderson, when the Respondent knew, or should have known, that what the Second Respondent had told the Full Court was misleading. The Respondent's submissions temporarily deceived the appellants: appellants' affidavit sworn 23/11/04 in the appeal book to FUL 176/04 at p 157, par [4]).
13.The Respondent says she understands the background to the appellants' endeavours to subdivide or develop the land. The Respondent knows the effect of the orders she has had extracted: Annexure 'S' to Exhibit B to appellants' affidavit in FUL 176/04, sworn 14/10/05, at p 153:
i)the Respondent should know that the appellants wrote to the Minister after the Tribunal's decision; that the Minister did nothing; Exhibit A to appellants' affidavit in FUL 176/04, sworn 14/10/05, at p 152;
ii)the date on which the Minister dismissed the appellants appeal against the Western Australian Planning Commission's 3rd refusal of subdivision approval. That that appeal is the same appeal referred to on the notice of originating motion in CIV 1907/00: Exhibit A to appellants affidavit in FUL 176/04, sworn 14/10/05, at pp 68‑69, 227‑229;
iii)that Owen J restricted the motion to the Minister's decision of 14/4/00: Annexure 'E' to appellants' affidavit in FUL 176/04 sworn 21/2/07, at pp 18‑20;
iv)that the Minister did not dismiss an appeal on 14/4/00: Exhibit A to appellants' affidavit in FUL 176/04, sworn 14/10/05, pp 53‑54;
v)that the Minister presumed that certiorari could not go to a decision the Minister had avoided making: Annexure 'T'. to appellants' affidavit in FUL 176/04, sworn 21/2/07 at p 12, par 1.
14.On 3 April 2001 the Respondent, or the Respondent's agent, presented a false order for sealing in CIV 1907 of 2000, which purports that on 13 March 2001 the Full Court had discharged orders nisi for writs of certiorari and mandamus:
Exhibit B to appellants affidavit in FUL 176/04, sworn 14/10/05 at pp 93‑94:
i)the notice of originating motion in CIV 1907 of 2000 came before the Honourable Justice Owen on 17/7/00 and was opposed by the Respondent. Owen JA gave directions, restricting the application to the Minister's 'decision' of 14 April 2000. His Honour did not make orders nisi. The order dated 17 July 2000 is a mistake the Respondent did not seek to have corrected. The matter was set down for hearing before the Full Court on 6/12/00:
appellants' affidavit in FUL 176/04, sworn 21/2/07, at par [4]‑[10];
ii)by affidavit sworn 5/12/00, the Respondent asserted the land was zoned Residential‑R 'R15' under the City of South Perth Town Planning Scheme No.5 ('TPS5'). The representation was one of law: Public Trustee v Taylor [1978] VR 289. The Respondent submitted that where TPS5 was inconsistent with the Metropolitan Region Scheme ('MRS'), TPS5 prevailed: Annexure 'U' p 29 at par 23 (c), 25, Annexure 'I' at p 33, par 4 to appellants' affidavit in FUL 176/04, sworn 21/2/07;
iii)the Respondent's representation as to the zoning of the land was a misrepresentation. The Respondent has never made, or approved, a town planning scheme for the City of South Perth under both heads of power, as required by law: ss 34 & 35 Metropolitan Region Town Planning Scheme Act, 1959, ('Scheme Act'), cl 25 MRS: Appeal Papers to FUL 148/03 at pp 74‑76, 85. Technically the Respondent was in contempt;
iv)the Supreme Court is a Court of Equity: s 16(a) Supreme Court Act, 1935. Equity will not permit a statute to be used as an instrument of fraud: Halsbury's Laws of Australia [185‑895]. The Full Court did not allow TPS5 to be used as an instrument of fraud. It points out, at [15], in its reasons for decision Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning [2001] WASCA 70 ('[2001] WASCA 70') the full terms of cl 21 MRS;
v)the Full Court dismissed the application for the writs, but left the appellants free to make another application for a similar purpose. The order extracted by, or on behalf of the Respondent in CIV 1907/2000 did not. The Respondent dishonestly altered process: Annexure 'D' to appellants' affidavit in FUL 148/03, sworn 30/11/06, at pp 13‑19 and Annexure 'J' to appellants' affidavit in FUL 176/04, sworn 21/2/07, at pp 34‑35. This false order has interfered with the due course of justice ever since.
15.On 31 July 2000 the Respondent presented a false bill of costs to the taxing officer in CIV 1907 of 2000 and fraudulently extorted costs from the appellants:
appellants' affidavit in FUL 176/04 sworn 21/2/07, at par [6], [11], [16].
16.The Respondent behaved contemptuously before Master Sanderson in CIV 1723 of 2001. Having deceived the appellants into settling the judgment in CIV 1907/00 (paying costs) the Respondent (Defendant) relied on the Respondent's affidavits filed in CIV 1907/00 and on the decision, which now included the order, in [2001] WASCA 70: Annexure 'P' to appellants' affidavit in FUL/176/04, sworn 21/2/07, at pp 53‑57. In Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister For Planning And Infrastructure [2001] WASC 294 the learned Master determined, at [27], ...'the plaintiffs' originating summons ought be dismissed. The plaintiffs ought pay the defendant's costs …'. The Master's jurisdiction is purely civil: The King v Davies [1906] 1 KB 33. The pattern of behaviour was repeated in CIV 2358/04.
17.The appellants filed a notice of appeal from the Master's decision, but they did not have leave: Exhibit B to appellants' affidavit in FUL 176/04, sworn 14/10/05, at pp 123‑132. As Parker J points out, in Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister For Planning And Infrastructure [2002] WASCA 274, at [7], 'The appellants proceeded by notice dated 9 November 2001 to appeal from that decision'. There was no appeal. The Court did not grant the appellants leave. The Court could have granted the appellants leave to appeal had counsel not removed pivotal grounds of appeal.
18.On 11/11/2002 the appellants filed an amended motion for a Stay of Execution, but the Full Court could not 'stay' a non‑existent appeal. The matter could have been re‑opened, but the Respondent maintained that there had been no mistake concerning the zoning of the land: Annexure 'U' to Exhibit A to appellants' affidavit in FUL 176/04, sworn 14/10/05. Parker J ruled on the basis of the evidence put up by the Respondent: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister For Planning And Infrastructure [2003] WASCA 67. The TPS5 Scheme Map was a false instrument: R v Webber (1988) 15 NSWLR 49.
19.On 1 April 2003 the Solicitors for the Respondent wrote to the appellants, informing them that the matter had been dismissed with costs. The appellants' own counsel and solicitors led the appellants to believe they must pay the respondent's costs. The appellants recall Parker J saying further orders would need to be made but he made no order for costs. The Court had no jurisdiction to make costs orders in FUL 164/01 when there was no valid appeal. The jurisdiction to hear the appeal is founded on the grant of leave: Wing Luck Foods v Lay Choo Lim [1989] WAR 358, at 360: appellants' affidavit in FUL 176/04, sworn 7/3/07 and Annexures 'I' 'V' and 'S' in the Appeal Book to FUL 176/04 (AB 175‑182).
20.On 27 May 2003 the Respondent presented two false bills of costs to the taxing officer in FUL 164 of 2001 and in CIV 1723 of 2001: Annexure B to appellants affidavit in FUL 176/04, sworn 14/10/05 at pp 144‑152.
21.Conduct that is calculated to deter a party from settling proceedings on the basis of the applicable law is an interference with the due administration of justice: Attorney General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273 at 317‑319 per Lord Simon HL. The sovereign can pardon criminal but constitutionally can not pardon civil contempt. Where misconduct is wilful courts have a disciplinary jurisdiction which is exercised in the public interest and have power to fine for civil contempt:
Witham v Holloway (1995) 183 CLR 525, at 538‑542 per McHugh J.
22.The use of process to effect an improper purpose is an abuse of process: Hanrahan v Ainsworth (1990) 22 NSWLR 73, from 107 per Clarke JA. The Respondent is attempting to perpetrate a fraud to conceal a fraud. The Respondent is attempting to use FUL 176/04 to put the City of South Perth Town Planning Scheme No.6 ('TPS6') and the Tribunal's decision beyond challenge.
23.The other order of the Full Court McLure JA refers to in [2007] WASCA 80, at [91, which is dated 19/8/03, is another example of the Respondent falsifying the record: Appellants' affidavit in FUL 176/04, sworn 21/2/07 at par [19‑20]. The application was for leave to appeal from the decision in [2001] WASCA 70. If, as her Honour says there is no appeal to this Court from a decision of the Full Court the order as extracted, or amended, should not be possible because it reflects an adjudication, not a lack of jurisdiction. False orders which sit on the record of the court prevent judicial officers from performing their duties free from prejudice and impartiality. They divert justice from its proper course.
24.[2001] WASCA 70 says there is no right of appeal to the Minister if TPS5 is valid. In [2002] WASCA 274 the Court is prevented from examining whether TPS5 is valid, but explains how TPS5 works. In the circumstances of this case there is a right of appeal to the Minister, but the Respondent will not willingly accept the judgment of the Court. Having been told by the Full Court in [2002] WASCA 274 how TPS5 works, it should have been clear to the Respondent that TPS5 was beyond power; that authorities were acting unlawfully. But the Respondent did nothing: Exhibit B to appellants' affidavit, sworn 14/10/05 at p 153. The Respondent's approval of TPS6 within a week of the reasons in [2003] WASCA 67 being published, is contumelious:
25.The Respondent makes the law, but the Respondent is not above the law. The Scheme binds the Crown: ss 34, 45 Scheme Act. The Tribunal has no jurisdiction to determine disputes on the basis of invalid subsidiary legislation. It is in the public interest that people's substantive rights be protected. The Court has a right, and a duty to see that the Minister has acted within the limits of the Minister's powers: Minister of Health v The King; ex parte Yaffe [1931] AC 494,
Yougarla v The State of Westem Australia HCA (2001) 181 ALR 371 at [81].
26.In the matter of the purported judgments of the Supreme Court which have been reported in the LGERA volumes, the appellants rely on the same arguments and authorities used in FUL 148/03.
The merits of the applications to review
In my opinion, McLure JA gave adequate reasons for dismissing the applications to re‑open the judgments in Marshall No 6 relating to appeals FUL 148 of 2003 and FUL 176 of 2004. Her Honour's reasons must be read in the context of the relevant litigation. Her Honour noted the decisions in question, and she had written the principal reasons for judgment in each of Marshall No 5 and Marshall No 6. The applications to re‑open were plainly unmeritorious and, in the circumstances, it was unnecessary for her Honour to elaborate upon the deficiencies in each and every point raised by the appellants.
I have examined the papers before McLure JA and the papers filed in connection with the applications to review. I am satisfied, based on that examination and also on my review of the relevant authorities, that:
(a)The appellants do not have a reasonably arguable case that the court in Marshall No 6 misapprehended the facts or the law in any material respect.
(b)The appellants do not have a reasonably arguable case that the respondents wilfully misled or fraudulently deceived the court in Marshall No 6 or the appellants.
(c)The appellants do not have a reasonably arguable case that the respondents have abused the court's process, dishonestly presented false orders for sealing, presented false bills of costs for taxation for the purpose of fraudulently extorting costs from the appellants, interfered with the administration of justice, or committed any contempts.
(d)The court in Marshall No 3 impliedly granted leave to appeal and determined the issues in the appeal on their merits.
(e)The appellants are bound by their counsel's conduct of the appeal in Marshall No 3.
(f)There is no material substance in the appellants' complaints about the reported versions of the judgments in the relevant litigation.
(g)The reasoning and conclusions of McLure JA in Marshall No 5 and Marshall No 6 were, with respect, correct.
(h)The appellants are endeavouring, in substance, to re‑argue, without lawful justification, matters directly or indirectly determined in or arising from issues litigated in one or more of Marshall Nos 1, 2, 3, 4, 5 and 6.
The appellants' application for leave to amend their application to review, dated 3 May 2007, relating to appeal FUL 76 of 2004 seeks relief which was not expressly sought before McLure JA; namely, a stay of execution of the order of Master Sanderson in CIV 2358 of 2004, dated 17 November 2004, and a stay of the orders of this court dated 26 July 2006 and 28 October 2006. The appellants, at least to that extent, raise matters which are not properly amenable to an application to review
McLure JA's decision in Marshall No 7. But, in any event, there does not appear to be any proper basis for the relief sought.
If the appellants wished to challenge the correctness of the judgments in Marshall No 6 (or any prior judgments of the Full Court of the Supreme Court of Western Australia in the relevant litigation) they should have made application to the High Court for special leave to appeal. No such application was made.
The appellants have not established that McLure JA made any material error of law or fact. Her Honour's decision to dismiss the appellants' applications to re‑open the judgments in Marshall No 6 is not attended by any doubt. I would dismiss the applications to review.
EM HEENAN AJA: I have had the opportunity of reading in advance the reasons for decision delivered by Buss JA. I am in agreement with those reasons and with his Honour's conclusion that the applications to review should be dismissed.
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