Nation v Kingborough Council

[2003] TASSC 85

[2003] TASSC 85

CITATION:            Nation v Kingborough Council [2003] TASSC 85

PARTIES:  NATION, Janette Dianne
  v
  KINGBOROUGH COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M66/2003
DELIVERED ON:  15 September 2003
DELIVERED AT:  Hobart
HEARING DATES:  8 September 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Administrative Law - Judicial review legislation - Tasmania - Procedure on appeal for review - Joinder of parties - Meaning of "aggrieved person" in Judicial Review Act 2000, s25.

Judicial Review Act 2000 (Tas), s25.
Supreme Court Rules 2000 (Tas), rr184, 777B, 777E.
Annetts v McCann (1990) 170 CLR 596, applied.
Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd & Others (1994) 121 ALR 373, followed.
R v Resource Planning and Development Commission; Ex parte Dorney (No 2) [2003] TASSC 69, referred to.
Aust Dig Administrative Law [7]

REPRESENTATION:

Counsel:
           Applicant:  In Person
           Respondent:  Not Represented
           Intended Party:  P A Kimber
Solicitors:
           Applicant:  In Person
           Respondent:  No Appearance
           Intended Party:  Butler McIntyre & Butler

Judgment Number:  [2003] TASSC 85
Number of Paragraphs:  15

Serial No 85/2003
File No M66/2003

JANETTE DIANNE NATION v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT  SLICER J

15 September 2003

1. The respondent Council made a decision which affected the land of the applicant who seeks review of that decision, pursuant to the Judicial Review Act 2000 ("the Act"). Garry Duffield and Janice Duffield, who are the owners of adjoining land, and who benefited from the decision, seek to be joined as parties to the judicial review. The respondent Council does not intend to take part in the proceedings and, presumably, will simply abide the decision. It has not filed a notice of intention to appear as provided for by the Supreme Court Rules 2000, r777F. The applicant opposes joinder on the ground that she will be exposed to a costs order at their behest if she is unsuccessful in her challenge to the decision of the Council.

1. Mr and Mrs Duffield, of 9 Utiekah Drive, Taroona, had petitioned the Council requesting amendment to sealed plan 35922 so as to widen the registered right of way dividing Lot 6 (7 Utiekah Drive) owned by the applicant, from 6.25 metres in width to 9.8 metres.  Sealed plan 35422 had been made pursuant to the Local Government Act 1962.  The petition followed notice by the applicant to the Duffields that she intended to fence the common boundary, thereby confining their access to the area provided for in the plan.

1. The applicant opposed the petition claiming, among other grounds, that the Council did not have jurisdiction to grant the petition.

1. The Council accepted the petition and resolved that:

"… the plan should be amended in accordance with the petition"

assessing an appropriate compensation amount "[to be] $2,000."

1. In its reason for decision, the Council accepted the recommendation of the Planning Committee that:

"The committee accepts that neither it nor the Council has the power to decide upon any claim for an equitable right in the land. The Council's powers are limited to that set out in the provisions of the Act that are under consideration."

1. One of the bases on which the Duffields advanced their petition was that the existing right of way:

"… extends over a steep embankment and is impossible to traverse"

and that fencing to the edge of the right of way would:

"… sever all access to [their] property."

1. There can be no doubt but that both parties have a direct interest in the decision of the Council and the review proceedings.  At common law, they would be entitled to be parties to review proceedings (Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596). The applicant contends that the right of joinder is restricted by statute (Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106; Minister for Industrial Relations v Baker & Anor A72/1994.

1. The Act, s16, affords this Court jurisdiction. Section 25 provides for joinder in the following terms:

"25 ¾ (1)  If ¾

(a)  a person is aggrieved by ¾  

(i)    a decision; or

(ii)     conduct (including conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision); or

(iii)    a failure to make a decision or perform a duty according to law; and

(b)  an application has been made to the Court under this Act relating to the decision, conduct or failure ¾

the person may apply to the Court to be made a party to the application.

(2)   The Court may grant or refuse the application."

1. The applicant's contention is that the Duffields are not aggrieved by the decision of the Council; rather they benefited from it.  A person aggrieved is defined by s7 as:

"7 ¾ (1) In this Act, a reference to a person aggrieved by a decision is taken to be a reference to ¾  

(a)   a person whose interests are adversely affected by the decision; or

(b)   in the case of a decision by way of the making of a report or recommendation, a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.

(2)    In this Act ¾  

(a)a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision; or

(b)…

is taken to be a reference to a person whose interests are, or would be, adversely affected by the conduct or failure."

1. The legislative scheme differs from comparable legislation, both state (Judicial Review Act 1991 (Qld), s28, "a person interested in a decision" (Hinchinbrook Society v Minister for Environment (1996) 69 FCR 1) including Tasmania (Magistrates Court (Administrative Appeals Division) Act 2001, s30) and federal (Administrative Decisions (Judicial Review) Act 1927 (Cth), s12, "a person interested in a decision").  The Tasmanian legislation (the Act, s43), abolished the prerogative writs of mandamus, prohibition, certiorari, quo warranto and scire facias.  It is difficult to accept that Parliament, by doing so, intended to restrict the right of a person directly and materially affected by the outcome of judicial review from advancing their cause, contrary to the claim of a prosecutor, or defending the decision of an administrative tribunal in his or her favour in circumstances where the relevant tribunal or decision-maker decides to abide the outcome.  It is difficult to accept that Parliament intended this Court to determine an issue brought by an "aggrieved person" without the benefit of an opposing contention.  The legislation governing the right of a party to advance a cause ought be interpreted in favour of permitted representation (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Others (1994) 121 ALR 373). The outcome of the legislation is illogical if a person with interest, supportive of the applicant, could be joined, whilst a person with an identical interest, adverse to the applicant, excluded. That outcome would be contrary to the established doctrine of procedural fairness (see R v Resource Planning and Development Commission; Ex parte Dorney (No 2) [2003] TASSC 69).

1. Consideration of the terms of the Act, s25, suggest resolution. Section 25(1)(a)(ii) refers to "conduct (including conduct that … is proposed to be, engaged in for the purpose of making a decision)". This Court might determine an outcome which favours the applicant which, in turn, would permit future conduct involving the alteration of the "right of way" to its original limits or reducing the area of the sealed plan. That proposed conduct, given that the Court, subject to permitted power, effectively stands in place of the decision-maker, would render the Duffields aggrieved parties as to a proposed course of conduct. The statute itself permits their joinder.

1. Counsel for the Duffields did not rely on the provisions of the Act, s25, but instead sought joinder as permitted by the Supreme Court Rules. The Act, s46, makes provision for the making of regulations. The Supreme Court Rules, Pt32, provides for "Proceedings Under Particular Statutes". Division 1A governs "Proceedings Under the Judicial Review Act 2000" and is within the power afforded by the Act, ss25, 46. Rule 777B requires an application to set out:

"(e)   particulars of any person who may be affected by the relief sought and the grounds on which that person may be affected."

Rule 777E provides that:

"(1)   An application is to be served on the respondent and on any other person the Court or a judge directs"

while r777F requires:

"777F ¾ (1)  An authority or a person on whom an application under the Judicial Review Act 2000 has been served is not to be heard on the hearing of the application unless the authority or person has filed and served on the applicant a notice of intention to appear.

(2)      A notice of intention to appear is to be in the prescribed form.

(3)      A notice of intention to appear is to specify an address for service of documents for the authority or person on whose behalf the notice is filed.

(4)      The filing of a notice of intention to appear is proof of service of the application on the authority or person filing the notice.

(5)      The Court or a judge may relieve an authority or a person of the consequences of failing to file a notice of intention to appear on any terms the Court or judge thinks fit."

1. While the respondent is, strictly speaking, the authority which made the decision challenged, the Rules acknowledge the interest of a person whose interests are affected by the decision.  Even if such a person might not be defined as a "respondent", that restrictive appellation ought not deprive that person of the status of party.  Rule 184(1)(b) permits the Court to order:

"(a)  that the name of a party improperly or erroneously joined be struck out; or

(b)that the name of a person who ought to have been joined as a party or whose presence may be necessary for the Court or judge to adjudicate on and settle all the questions involved in the proceeding be added; or

(c)if through a genuine mistake a proceeding has commenced in the name of the wrong person as plaintiff or applicant or it is doubtful if it has commenced in the name of the right plaintiff or applicant, that any other person be added or substituted as plaintiff or applicant."

1. The applicant does not concede the application of r184, but says that in any event joinder is not necessary for the Court to properly adjudicate the issue (Hinchinbrook Society v Minister for the Environment (supra); Australian Competition and Consumer Commission v News Corporation and Others (1998) 160 ALR 151; Australian Tape Manufacturers Association v The Commonwealth (1990) 64 ALJR 530). Those cases can readily be distinguished, either because the party seeking joinder had only a peripheral interest or was permitted appearance in a limited capacity. Here the Duffields have a direct interest. It was their petition which resulted in the decision impugned. They are parties in the true sense. Their joinder is necessary for a proper adjudication of the question before the Court.

1. Orders:

(1)Garry Lynton Duffield and Janice Mary Duffield be added as parties to proceeding M66/2003.

(2)The question of costs is reserved.