Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal

Peninsula Development Group (Tannum Sands) Pty Ltd sought judicial review of decisions made by the Retail Shop Leases Tribunal in a dispute with the lessee. The Tribunal had ruled against the applicant on a finding of promissory estoppel, a concept that was not raised by the parties during the proceedings. The applicant also contested the Tribunal's refusal to issue an attendance notice to a witness, which would have allowed the witness to produce a file and provide evidence on a relevant issue. Additionally, the applicant argued that the Tribunal erred in its handling of legal professional privilege, particularly concerning the disclosure of solicitor advice on a lease clause.

The court considered whether the Tribunal's decisions constituted a jurisdictional error or a denial of natural justice. The court determined that the Tribunal's reliance on promissory estoppel, without proper opportunity for the parties to address this concept, constituted a significant procedural irregularity. Furthermore, the refusal to issue an attendance notice to a key witness, who could have provided crucial evidence, was found to be a failure in procedural fairness. The court also examined the issue of legal professional privilege and found that the applicant had not waived the privilege by disclosing certain aspects of the solicitor's advice. The partial disclosure did not encompass the entirety of the privileged information, leading to an inconsistency in the Tribunal's approach.

Consequently, the court set aside the Tribunal's decisions, finding them to be flawed due to the procedural errors identified. The case was remitted to a differently constituted Retail Shop Leases Tribunal for a rehearing and proper determination. The court ordered the second respondent to pay the applicant's costs of the proceeding and granted an indemnity certificate to the second respondent under the Appeal Costs Fund Act 1973, ensuring that the respondent would not bear the costs of the successful party in the current proceeding.