Pipi Holdings Pty Ltd v The Council of the City of Caloundra

[2000] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:

Pipi Holdings Pty Ltd v The Council of the City of Caloundra [2000] QSC 343

PARTIES:

PIPI HOLDINGS PTY LTD ACN 009 923 988
(applicant)
v
THE COUNCIL OF THE CITY OF CALOUNDRA
(respondent)

FILE NO/S:

11160 of 1999

DIVISION:

Trial

DELIVERED ON:

6 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2000

JUDGE:

Douglas J

ORDER:

1.  The decision of the respondent Council of the City of Caloundra made on 25 November 1999, that the respondent Council would make application to the Minister for Natural Resources for the resumption of land described as Lots 7, 8 and 9 on RP52962, and Lot 1 on RP120196, Parish of Bribie, be quashed with effect from 25 November 1999.

2.  The matter be referred back to the Council of the City of Caloundra to make a decision according to law in respect of the applicant’s objection and amended objection or any such further decision.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – REASONS FOR DECISION AND DISCLOSURE OF INFORMATION – respondent Council relied on material not disclosed to the applicant prior to making a decision to make application for resumption of land – whether non-disclosure amounts to breach of rules of natural justice .

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS FOR REVIEW OF DECISION – BREACH OF RULES OF NATURAL JUSTICE – whether decision to hear objection in a closed sitting amounts to a breach of rules of natural justice – whether evidence disclosed bias or reasonable apprehension of bias.

Acquisition of Land Act 1967 (Qld), s 8
Judicial Review Act 1990 (Qld), s 30
Local Government Act 1993 (Qld), s 457(2)(a), s 462.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Little v Minister for Land Management [1995] 1 QdR 190
Old St Boniface Residents Association Inc v City of Winnipeg (1990) 75 DLR (4^th) 385

R v West Coast Council; ex parte The Strahan Motor Inn (1995) 87 LGERA 383

COUNSEL:

D G Russell QC with P G Bickford for the applicant
P J Favell for the respondent.

SOLICITORS:

Griffiths McColm & Parry for the applicant
Garland Waddington for the respondent

1. DOUGLAS J:  The applicant is the owner of land described as Lots 7, 8 and 9 on RP52962 and Lot 1 on RP120196, Parish of Bribie.  This an application to review the decision of the respondent Council made on 25 November 1999 that the respondent would make application to the Minister for Natural Resources (“the Minister”) for the resumption of that land for parking purposes.

1. The applicant is aggrieved by that decision because it is the owner of the land to which the said decision relates.  A relevant chronology is as follows:

24/4/96Respondent resolves to acquire land for Local Government (Parking) purposes.

26/4/96             Notice of Intention to Resume

26/8/99Respondent resolves to discontinue resumption pursuant to Notice of Intention to Resume dated 26/4/96 and to acquire the land for Local Government (Parking) purposes.

27/8/99             Discontinuance of existing resumption
2/9/99               Notice of Intention to Resume
28/9/99             Respondent’s Statement of Reasons
6/10/99             Applicant’s objection to resumption
5/11/99             Applicant’s amended notice of objection

11/11/99Objection hearing pursuant to acquisition of Land Act 1967.

25/11/99Respondent resolves to make application to the Minister for Natural Resources for the resumption of the land for Local Government (Parking) purposes.

6/12/99             Statement of Reasons

1/6/2000Respondent resolves to endorse the decision of previous two (2) Councils and continue resumption

Breach of the Rules of Natural Justice

1. There are two bases upon which it is alleged that there has been a breach of the audi alteram partem rules of natural justice:

(a)        First, it is alleged that the applicant should have been given a right to be heard prior to the Council purporting to pass a resolution to have the hearing of the applicant’s amended objection to the proposed resumption heard at a closed sitting of Council; and

(b)        Second, it is alleged that there was a breach of the rules of natural justice in that in reaching its decision the Council relied on material which was not shown to the applicant and the applicant was not given an opportunity to make submissions in relation to that material prior to the Council making its decision.

1. To deal with the first basis, it is clear that the decision to hold the meeting in a closed sitting was by a majority of 6 to 5, with the majority being partly comprised of Councillors Dwyer, Smith and Cummins (each of whom is alleged to have prejudged relevant issues).  Further, it is clear that the appellant was not given a right to be heard prior to the Council purporting to pass the resolution to hear the applicant’s amended objection in a closed sitting of Council.

1. It was submitted by the applicant that the resolution was unlawful. Section 457(2)(a) of the Local Government Act 1993 (Qld) (“the LGA”) provides that voting must be open. Section 462 of the LGA provides that a meeting should be in public unless otherwise resolved.

1. The argument of the applicant does, in my view, confuse the type of meeting which was being held by the Council at the time that the decision to have a closed sitting was made. In fact the meeting was one which was held pursuant to the provisions of s 8 of the Acquisition of Land Act 1967 (Qld) (“the Acquisition Act”) which deals with objections. It requires the constructing authority, in this case the Council, to consider the grounds of objection of the taking of any land. This was done over a long period of time with every conceivable issue covered.

1. Further, and in addition, s 8(2)(a) requires that if the objector (the applicant) has been heard by the constructing authority, the constructing authority shall consider the matters put forward by the objector in support of such grounds. That appears to have been done here. The argument of the applicant assumes that the hearing was a meeting under the LGA. That does not appear to be so to me. The hearing was an information gathering exercise held under the Acquisition Act and, as such, was not required to be a meeting of the local government or of a committee of that local government. Indeed a hearing under the Acquisition Act can be conducted by a delegate.

1. Even if I am incorrect in this conclusion, I am not satisfied that any of the statutory grounds of review pursuant to s 30 of the Judicial Review Act 1990 have been made out.  The power to grant relief under that section is plainly discretionary and, in my view, if there was an error in deciding to hold a closed meeting, that error was of a trivial nature and did not involve a substantial miscarriage of justice.  It could not be shown that a different result would have followed had the error not been made.

1. As to the second basis, there is more substance.  The evidence reveals that the respondent did take into account, in deciding to proceed with the resumption, material which purported to contradict assertions made by the applicant’s expert at the closed meeting.  As appears from the statement of reasons given by the respondent, it relied upon the following documents:

(i)         A report No 991122.1 SC from Manager, Corporate Policy, S Linnane, dated 22 November 1999;

(ii)       A report No 981013.1 GRS from Chief Executive Officer, G Storch, dated 4 November 1999;

(iii)      A report by Garland Waddington dated 22 November 1999; and

(iv)       A report of the Council Program Manager, Service Planning, dated 15 November 1999, specifically responding to the applicant’s expert’s report dated 28 September 1999 and relied upon by the applicant at the objection hearing.

None of those reports were made available to the applicant at any time prior to the Council making its decision on the objection and resolving to make application to the Minister for the resumption of the subject land on 25 November 1999.

1. Also not disclosed in the statement of reasons, or at any other time prior to the hearing of this application, but admittedly relied upon to a significant degree by the respondent’s then Mayor and Chief Executive Officer, were views expressed by Mr Wright as to the economic viability of the applicant’s alternative proposal for the provision of car parking.

1. Two of the reports listed above are irrelevant as being essentially formal in nature.  The other three, however, are of substance and appeared to carry weight with at least two Councillors (Dwyer and Smith).

1. In my view those documents, and the views of Mr Wright, should have been communicated to the applicant prior to the Council’s decision made on 25 November 1999.  Support for my view can be found in the judgement of Fitzgerald P and Derrington J in Little v Minister for Land Management [1995] 1 QdR 190 at 201-202 where it was said:

“There is nothing either particularly unusual or unfair in an administrative procedure which entitles those potentially affected access to material information and documentation and an opportunity to respond before the final decision is made on all relevant material, including any subsequent information obtained in response to any issues raised by the objectors.  However, in such circumstances, it might be appropriate to provide objectors with a chance of further response, but that would depend on the existence of circumstances which would otherwise make it unfair to proceed to a final decision.” (italics supplied)

1. It follows that the applicant’s expert, Mr Poole, ought to have been given the opportunity to comment upon, and perhaps rebut, particularly the views of Mr Wright as to the economic viability of the applicant’s alternative proposal for the provision of car parking.

1. It is appropriate therefore that orders be made in respect of the decision made on 25 November 1999 at least on this ground.

Prejudgment of the Issue

1. It was submitted by the applicant that on the evidence it was clear that the former Mayor, Mr Dwyer, and two Councillors, Messrs Cummins and Smith, had prejudged the matter.  The evidence reveals that Councillors Cummins and Smith are still on the Council and form part of the 6 to 5 majority which decided to continue with the resumption.

1. The most substantial allegation of prejudgment is that against Mr Dwyer.  It was submitted that he had consistently, both publicly and privately, supported the resumption of the applicant’s land.  It was submitted that the evidence clearly disclosed that he has a closed mind on the issue and is prepared to act in such a way as to prevent the formation of objective judgments by others.  In particular, three articles in local newspapers are pointed to. An example is a quote from the Sunshine Coast Daily on Saturday, 27 April 1996, where Dwyer is quoted as saying from a prepared statement that: “The property was the last vacant land in central Caloundra Central Business District and as such, is the cheapest option for ratepayers to plan for future needs.”  He is also quoted as saying: “The land would be paved to provide 100 car parks and park and display meters installed.”

1. As against Mr Cummins it was asserted that on 2 September 1999 during the morning tea break at a Council meeting he, in reply to a question posed by one Kersley as to why it was necessary to resume the subject land, said words to the effect of: “Why should I listen to you when I can listen to solicitors.  I have made up my mind.”  A few days later on 10 September 1999 he was overheard to say: “Council have it all sorted out and they will be building a car park on the site.”

1. As against Councillor Smith it was alleged, inter alia, that in 1997 or 1998 when approached by one Mr Scott, who expressed a view that he thought it was wrong to resume the subject land, Smith is alleged to have said words to the effect that Gerry Bell (the principal of the applicant) had done pretty well out of the town and that he was maintaining his decision to support the resumption.  Closer to the date of the relevant decision, on 2 September 1999 at a Council meeting, the same Mr Kersley approached Councillor Smith regarding the proposed resumption and suggested an alternative site for a further parking station.  Smith replied to Kersley that the Council would be proceeding with the resumption.  Kersley said that he gained the impression from the manner in which Smith spoke that he had made up his mind on the issue.

1. I gained the impression that Messrs Kersley and Scott were prepared to paint a picture of Councillors Cummins and Smith based upon impressions rather than what might have been actually said.  The fact that Mr Kersley has a role to play in respect of both Councillors suggests to me that he either sided with the applicant’s interests or was somewhat of a busybody.  Both struck me as being people with much time on their hands and who were favourably disposed to Mr Bell.

1. There is no doubt that decisions of Council, and resolutions of Council, may be invalidated if one of the Councillors who takes part in the making of the decision and the passing of the resolution is either actually biased or there is a reasonable apprehension of bias.  See Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 81-82 and 99-100.

1. As submitted, in the context of prejudgment, it is only necessary to show that a fair minded and responsible bystander might reasonably assume that the Councillor, having committed himself to a position, had closed his mind to the possibility of doing other than vote in favour of the proposal.  See R v West Coast Council; ex parte The Strahan Motor Inn (1995) 87 LGERA 383 at 389 and 393.

1. In that case the decision of Sopinka J in Old St Boniface Residents Association Inc v City of Winnipeg (1990) 75 DLR (4^th) 385 was referred to. There his Honour said:

“In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out their political and legislative duties entrusted to the Council is one which requires that objectors or supporters be heard by members of Council who are capable of being persuaded.  The legislature could not have intended to have a hearing before a body who have already made a decision which is irreversible.  The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile.”

1. There is no doubt that all of the Councillors must have formed a view one way or other prior to the hearing.  They, after all, in order to get to the stage of the hearing were required to have determined first to give notice that the Council intended to give a notice to resume.  The situation then is that the applicant, having been put on notice, had the opportunity of dissuading the decision maker from providing further.  The applicant was given every opportunity to do so with the exception of not being shown the material to which I have referred earlier in this judgement.  In R v Westcoast Council (supra) at 309.8 the court recognised that:

“it may be expected that they will support particular views as to what is in the best interests of the community and often they will have strong personal views as what ought to occur in the community.  In one sense they may be expected to hold views which may be described as being biased.  Councils may be expected to hold particular views as to how they would wish their community to develop and discharge their duties as Councillors by reference to those views.”

1. I am of the view that the evidence does not disclose a bias but rather the natural forming of a view by each of the Councillors.  In evidence I reached the clear view that each of the Councillors called did have an open mind at all relevant times.  Therefore in my view neither bias nor a reasonable apprehension of bias has been made out.

Premature Resolution of Intention to Resume

1. The applicant further contends that the Council has erred in relation to the resumption process in that it passed a resolution that a notice of intention to resume the applicant’s land the issue prior to discontinuing the previous resumption proceedings commenced by Council by way of its notice of intention to resume issued on or about 24 April 1996.

1. It was submitted that the Council resolved to issue a fresh notice of intention to resume on 26 August 1999 but did not sign a notice of discontinuance in relation to the previous resumption until 27 August 1999. It was further submitted that the purported notice of intention to resume issued on 2 September 1999 was in the circumstances not a valid exercise of the Council’s power under the Acquisition Act.

1. In my view nothing has been shown in relation to this matter even if the submission is correct to attract the discretion to be exercised judicially pursuant to s 30 of the Judicial Review Act.  The point taken has no substance and in any event, but for the failure to disclose to the applicant the material referred to earlier in this judgement, the Council on my findings acted with propriety at all times.

1. It follows that the applicant is entitled to an order quashing the decision made on 25 November 1999 with effect from the day of making that decision but only on the ground that the Council failed to disclose to the applicant material which was not disclosed at the meeting and the further comments of Mr Wright. 

1. I order that:

1.          The decision of the respondent Council of the City of Caloundra made on 25 November 1999 that the respondent Council would make application to the Minister for Natural Resources for the resumption of land described as Lots 7, 8 and 9 on RP52962, and Lot 1 on RP120196, Parish of Bribie, be quashed with effect from 25 November 1999.

2.          The matter be referred back to the Council of the City of Caloundra to make a decision according to law in respect of the applicant’s objection and amended objection or any such further decision.

1. I shall hear submissions as to costs.