Polo Enterprises Australia Pty Ltd v Shire of Broome
[2015] WASCA 201 (S)
•27/05/16
POLO ENTERPRISES AUSTRALIA PTY LTD -v- SHIRE OF BROOME [2015] WASCA 201 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 201 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2014 | 1 & 15 OCTOBER 2015 & 29 JANUARY 2016 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 27/05/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Appellant to pay first and third respondents' costs to be assessed if not agreed | ||
| B | |||
| PDF Version |
| Parties: | POLO ENTERPRISES AUSTRALIA PTY LTD SHIRE OF BROOME STATE ADMINISTRATIVE TRIBUNAL CABLE BEACH POLO PTY LTD |
Catchwords: | Court procedure and practice Jurisdiction to reopen perfected orders of intermediate appellate court Court procedure and practice Costs Determination of costs where no wholly successful party Turns on own facts |
Legislation: | Commonwealth Constitution, Ch III Local Government Act 1995 (WA), s 9.9 Rules of the Supreme Court 1971 (WA), O 34 r 3, O 66 r 1 Rules of the Supreme Court 1883, O XXXVI r 33 State Administrative Tribunal Act 2004 (WA), s 19, s 50 Supreme Court (Court of Appeal) Rules 2005 (WA), r 25 Supreme Court Act 1935 (WA), s 58 |
Case References: | Achurch v The Queen [2014] HCA 10; (2015) 253 CLR 141 Bailey v Marinoff (1971) 125 CLR 529 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 Grierson v The King (1938) 60 CLR 431 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kirk v Industrial Court of New South Wales (NSW) [2010] HCA 1; (2010) 239 CLR 531 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 Overton Investments Pty Ltd v The Minister administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137 Pantorno v The Queen (1989) 166 CLR 466 Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120 Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 Postiglione v The Queen (1997) 189 CLR 295 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Malley; Ex parte Gardner [2001] WASCA 29 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Taylor v Taylor (1979) 143 CLR 1 Vint v Hudspith (1885) 29 Ch D 322 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : POLO ENTERPRISES AUSTRALIA PTY LTD -v- SHIRE OF BROOME [2015] WASCA 201 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Appellant
AND
SHIRE OF BROOME
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
CABLE BEACH POLO PTY LTD
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CHANEY J
Citation : POLO ENTERPRISES AUSTRALIA PTY LTD -v- SHIRE OF BROOME [2014] WASC 120
File No : CIV 2914 of 2013
Catchwords:
Court procedure and practice - Jurisdiction to reopen perfected orders of intermediate appellate court
Court procedure and practice - Costs - Determination of costs where no wholly successful party - Turns on own facts
Legislation:
Commonwealth Constitution, Ch III
Local Government Act 1995 (WA), s 9.9
Rules of the Supreme Court 1971 (WA), O 34 r 3, O 66 r 1
Rules of the Supreme Court 1883, O XXXVI r 33
State Administrative Tribunal Act 2004 (WA), s 19, s 50
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25
Supreme Court Act 1935 (WA), s 58
Result:
Application dismissed
Appellant to pay first and third respondents' costs to be assessed if not agreed
Category: B
Representation:
Counsel:
Appellant : Mr D J Higgs SC & Mr J B King
First Respondent : Mr K M Pettit SC & Mr P L Wittkuhn
Second Respondent : No appearance
Third Respondent : Mr M S Van Brakel & Mr D A Jenaway
Solicitors:
Appellant : Clear Lawyers
First Respondent : McLeods Barristers & Solicitors
Second Respondent : No appearance
Third Respondent : Allen & Overy
Case(s) referred to in judgment(s):
Achurch v The Queen [2014] HCA 10; (2015) 253 CLR 141
Bailey v Marinoff (1971) 125 CLR 529
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Grierson v The King (1938) 60 CLR 431
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kirk v Industrial Court of New South Wales (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Overton Investments Pty Ltd v The Minister administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137
Pantorno v The Queen (1989) 166 CLR 466
Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Postiglione v The Queen (1997) 189 CLR 295
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Malley; Ex parte Gardner [2001] WASCA 29
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Taylor v Taylor (1979) 143 CLR 1
Vint v Hudspith (1885) 29 Ch D 322
- REASONS OF THE COURT:
Summary
1 On 1 October 2015, the court published its reasons for concluding that this appeal should be dismissed.1 Consistently with the reasons published, the court ordered that the appeal be dismissed, and that the question of costs be stood over for further argument on 15 October 2015 unless the parties agreed all issues relating to costs in the meantime.
2 On 7 October 2015, the orders made on 1 October were perfected and issued by the court. On 13 October 2015, the appellant applied to set aside the orders made on 1 October 2015, on the ground that the appellant had been denied procedural fairness. The application is based entirely upon the substantive reasons published by the court. It is asserted that the terms of those reasons, read in the light of the manner in which the appeal was conducted before the court, sustain the conclusion that the appellant was denied procedural fairness.
3 The extent of this court's jurisdiction, if any, to set aside perfected orders of the court on the ground of a denial of procedural fairness is a controversial issue. However, it is not an issue which needs to be determined in this case because, for the reasons which follow, the appellant's assertion that it was denied procedural fairness is devoid of merit and the application must be dismissed for that reason.
4 In relation to the costs of the appeal, there is no reason why the general rule to the effect that costs follow the event should not be applied in this case, and the appellant should be ordered to pay the first and third respondents' costs of the appeal to be assessed if not agreed.
Is there jurisdiction to set aside a perfected order?
5 There is a long line of authority in the High Court to the effect that the jurisdiction of an intermediate court of appeal, such as this court, is determined by the statute creating the court and conferring it with jurisdiction. That line of authority establishes the rule that any jurisdiction to set aside a perfected final order of an intermediate court of appeal must be found within the statutory provisions conferring jurisdiction upon the court.2 These cases also establish that fundamental principles with respect to the finality of litigation underpin this rule:3
[T]he principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.
6 The appellant submits that the decision of the High Court in Taylor v Taylor4 establishes an exception to this rule in cases in which the decision of the court is vitiated by a denial of procedural fairness. However, that was a case in which judgment was entered against a party in their absence. A judgment of that kind was described by Bowen LJ in Vint v Hudspith5 as a 'judgment given by default'. The power to apply to set aside such a judgment has been recognised since at least 1883.6 The appellant draws attention also to two other decisions of the High Court, namely, Pantorno v The Queen7 and Postiglione v The Queen,8 which are said to stand for the same proposition. The appellant submits that a denial of procedural fairness is a departure from one of the defining characteristics of a court,9 and that a decision of a court made in denial of procedural fairness is a nullity which cannot prevent the court from validly exercising the jurisdiction conferred upon it and according procedural fairness. The appellant submits that such jurisdiction is to be implied from relevant legislation conferring appellate jurisdiction upon a court.
7 There are decisions in this court which could be said to lend support to the proposition that there is an exception to the principle of finality in cases in which procedural fairness has been denied.10 It is significant that those decisions preceded the decision of the High Court in Burrell, in which the plurality observed:11
It is not necessary to consider whether some forms of denial of procedural fairness could warrant grafting some exception upon the general rule stated in Grierson. Nor is it necessary to examine what was said in either Pantornoor Postiglioneabout these matters. Neither case decided that the general rule in Griersonshould be qualified according to whether there had been a denial of procedural fairness. It is therefore not necessary to consider what root could be found in the [Criminal Appeal Act 1912 (NSW)] for such a proposition, and as both Griersonand DJLmake abundantly plain, it is there that the source of any such exception must be found.
8 The more recent decision of the High Court in Achurch reinforces the approach taken in Burrell, and emphasises the need to identify a statutory source for the asserted jurisdiction to set aside a perfected order.12
9 There is no provision of the Supreme Court Act 1935 (WA) (Supreme Court Act) or of the rules made under that Act which purports to confer jurisdiction upon this court to set aside its perfected final orders after hearing an appeal at which all parties were present (other than the slip rule). Order 34 r 3 of the Rules of the Supreme Court 1971 (WA) empowers the court to set aside a judgment entered after trial in the absence of a party (a longstanding procedural rule consistent with the decision in Taylor), but that rule has no application to this case.
10 The appellant relies upon s 58 of the Supreme Court Act and rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) for the proposition that where there has been a denial of procedural fairness, there has been constructive failure to exercise appellate jurisdiction in the nature of rehearing. However, that reliance is misplaced, as those provisions are concerned only with the character of appellate review and do not, by their terms, make any provision for the consequences of failing to provide review of that character or purport to confer jurisdiction upon the court to set aside its own perfected final orders. There is therefore much to be said for the proposition that this court does not have the jurisdiction which the appellant seeks to invoke.
11 The decision in Achurch makes clear that the principle of finality, and the important considerations of public policy which underpin that principle, must inform the construction of any statute which is said to confer jurisdiction upon a court to set aside its own final orders. Those considerations of public policy recognise the very real risk that the acceptance of such a jurisdiction will encourage unsuccessful parties to:
(a) present fresh arguments to the court which were not presented prior to the court's decision; and/or
(b) repeat arguments which were not accepted by the court.
12 Each of those risks has materialised in this case under the guise of an asserted denial of procedural fairness. As will be seen, all of the arguments which the appellant seeks to advance in support of the proposition that it was denied procedural fairness either involve the repetition of arguments that were rejected by the court, or the presentation of new arguments that have not been presented before. For those reasons alone, the arguments fall manifestly short of establishing any denial of procedural fairness. It follows that, even if this court has the jurisdiction which the appellants assert, it could not be exercised in this case. In those circumstances, the limited resources of the court should not be further depleted by the determination of a potentially complex and controversial jurisdictional issue which does not have to be determined for the purposes of resolving this application.
The grounds of the application
13 The appellant advances three principal grounds in support of its application to set aside the order dismissing the appeal:
1. The court failed 'to engage' with the appellant's submission with respect to s 9.9 of the Local Government Act 1995 (WA) (LG Act);
2. The appellant was denied the opportunity of putting submissions with respect to the constitutional invalidity of s 19 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), or with respect to the effect of that section if valid; and
3. The court failed to have regard to the appellant's submission with respect to the significance of the public interest in the lawful exercise of administrative power in exercising its discretion with respect to the grant of relief.
14 It will be immediately observed that the first and third of these grounds are not in fact grounds which assert the denial of procedural fairness. Each asserts (wrongly in the case of the first ground) that an argument was put to this court, but complains that the court failed to act upon the argument (wrongly in the case of the third ground). Each of those grounds also presumes that the appellant was given the opportunity to be heard, and indeed relies upon the submissions allegedly put. It follows that any complaint with respect to the manner in which the court dealt with the arguments advanced by the appellant is properly a matter for appeal, and not a matter appropriately raised in support of an application of this kind.
15 In any event, as will be seen, there are many other reasons for dismissing those grounds.
Section 9.9 of the LG Act
16 Section 9.9 of the LG Act provides, relevantly:
(1) If an objection has been lodged against a decision or an application has been made under this Division for a review of the decision, the effect of the decision is suspended until the person or tribunal authorised to deal with the objection or application has decided how to dispose of it …
- The appellant's application to the State Administrative Tribunal (Tribunal) for a review of the decision of the Shire of Broome (Shire) was an application falling within the terms of the section.
17 There is no reference to s 9.9 of the LG Act in the appellant's grounds of appeal or in the written submissions filed in support of those grounds, or in the orders sought by the appellant if successful on the appeal.
18 Senior counsel for the appellant made one direct reference to s 9.9 of the LG Act in the course of oral argument. He said:13
Section 9.9, that is a provision that means if the jurisdiction were accepted, this application - this resolution would have been suspended unless there were exceptional circumstances. And that - of course our complaint is that it shouldn't have been rejected, and the suspension ought to have occurred, it would have been dealt with and we would have not had the discretionary problems that we might need to face now by dint of the decisions that have preceded this decision which we say were wrong.
19 Senior counsel for the appellant made an indirect reference to the operation of s 9.9 of the LG Act later in the course of argument relating to the issue of the prejudice suffered by the third respondent as a result of the appellant's delay in the prosecution of its claims. In that context he submitted:14
[I]t's clear that CBP during the course of these proceedings would have been aware that if the Tribunal was wrong about it not having jurisdiction, then in truth what - and that it went back to the Tribunal and the decision before Chaney J went our way, which we say it ought, then the resolution is suspended, and I have already taken your Honours to that.
20 The proposition advanced was to the effect that if the Tribunal had accepted jurisdiction instead of refusing it, s 9.9 of the LG Act would have operated to suspend the Shire's decision to grant a permit to the third respondent. This proposition was repeated in the written submissions filed in support of the application to set aside the order dismissing the appeal. The proposition was advanced in support of the argument that the appellant should not be prejudiced by the Tribunal's wrongful refusal of jurisdiction. Implicit in the argument is the proposition that the appellant was prejudiced because the effect of the Tribunal's refusal of jurisdiction was that s 9.9 of the LG Act no longer operated to suspend the Shire's decision to grant a permit to the third respondent.
21 However, in the course of oral argument in support of the application, senior counsel for the appellant put an entirely different proposition. He submitted that s 9.9 of the LG Act had the effect that the Shire's decision to grant a permit to the third respondent remained suspended after the Tribunal's dismissal of the appellant's application because its refusal of jurisdiction was tainted by jurisdictional error and invalid.15 When it was put to senior counsel that this proposition had never been put to the court, he was only able to refer to the portions of oral argument which we have set out above, and to submit that 'it always was as plain as day'16 that the appellant's case was premised on the proposition that if the Tribunal was wrong to decline jurisdiction, s 9.9 of the LG Act continued to operate indefinitely to suspend the permit granted by the Shire to the third respondent.
22 As we have pointed out, the argument put by senior counsel in the portions of transcript which we have set out above is precisely the converse of the argument put in support of this application. The latter argument was never put, and is far from 'plain as day'. The effect of the Tribunal's wrongful refusal of jurisdiction upon the operation of s 9.9 of the LG Act is a contentious issue, the resolution of which depends upon the proper construction and effect of that section. By its terms, the suspension effected by the section only operates until the relevant Tribunal has 'decided how to dispose of' the application for review. It is cogently arguable that the decision of the Tribunal to dismiss the appellant's application for review was a decision as to how the application should be disposed of, with the consequence that the suspension effected by s 9.9 ceased to operate when the Tribunal declined jurisdiction and dismissed the application for review. As we have noted, that is the premise upon which argument was advanced to this court. The contrary proposition was never put before our reasons were published and the appeal dismissed, and if put, would have been contested by the respondents, as argument on this application revealed.
23 But in any event, even if it is assumed that the proposition now put has merit, and s 9.9 of the LG Act operated to suspend the permit granted by the Shire to the third respondent until the Tribunal properly discharged its jurisdiction, the proposition does not support the appellant's case in any way. That is because it leads to the conclusion that the third respondent was further prejudiced as a result of the appellant's prevarication and delay because the permit issued by the Shire was suspended until the Tribunal completed its review on the merits, which did not occur because the appellant did not exercise its right to seek leave to appeal from the Tribunal's decision to decline jurisdiction. Acceptance of the proposition now put would therefore reinforce this court's conclusion that the appellant's failure to pursue an appeal from the decision of the Tribunal within the time limited by the SAT Act for seeking leave to commence such an appeal is a factor which counts against the appellant in relation to the exercise of the court's discretion to refuse relief.
24 For these various reasons, including the reason that this ground is not, in substance, an assertion of a denial of procedural fairness, there is no merit in the argument with respect to s 9.9 of the LG Act.
Section 19 of the SAT Act
25 Although the precise way in which the appellant asserts it was denied procedural fairness with respect to s 19 of the SAT Act is somewhat obscure in the written submissions and oral argument advanced in support of this ground, it seems that the proposition has two components:
(a) the appellant was denied the opportunity of submitting that s 19 of the SAT Act is invalid because it exceeds the legislative powers of the State as it is inconsistent with Ch III of the Commonwealth Constitution; and
(b) in the alternative, the appellant was denied the opportunity of submitting that this court should have remitted the matter to the Tribunal so as to enable the appellant to apply to the Tribunal for an order under s 50 of the SAT Act striking out its application for review on the ground that judicial review proceedings were more appropriate, with the result that s 19(4) would apply to enable the judicial review proceedings against the Shire to continue.
26 The fundamental difficulty with each of these propositions is that there is no reason why the appellant could not have put either or both propositions before this court, but it failed to do so.
27 In our reasons for dismissing the appeal we set out the forensic strategy adopted by the appellant with respect to s 19 of the SAT Act.17 As those reasons record, before the trial judge the appellant accepted that s 19 of the SAT Act had the consequence that if its challenge to the Tribunal's refusal to exercise jurisdiction succeeded, it would follow that its claims for judicial review of the Shire's decision of 20 June 2013 could not proceed. That is why the trial judge dealt first with the appellant's challenge to the Tribunal's decision to refuse jurisdiction. If that challenge had been upheld, the proceedings for judicial review of the Shire's decision must necessarily have been dismissed pursuant to s 19 of the SAT Act. Put another way, the appellant always accepted that the consequence of s 19 of the SAT Act was that it could only pursue its claims in the alternative. As we noted in our reasons, in the context of this concession, counsel for the appellant submitted that no issues of constitutional invalidity of the kind considered in Kirk v Industrial Court of New South Wales18arose in the circumstances of the case.19
28 The written submissions filed and served in support of the appeal expressly adopt precisely the same position.20 No different position was adopted during oral argument in support of the appeal. In the only reference to s 19 of the SAT Act in the course of argument, senior counsel for the appellant said:21
Section 19 sets out various alternatives that will not bother your Honours.
29 It is therefore clear that those advising the appellant were well aware of s 19 of the SAT Act and its potential application to the circumstances of this case. They were also well aware of a possible argument with respect to the validity of that section. In that context, the appellant adopted a considered and deliberate forensic strategy in which the validity of s 19 of the SAT Act was accepted and the appellant's claims were advanced in the alternative as a consequence.
30 In written submissions22 and oral argument in support of the application, it was submitted that the appellant's forensic strategy was part of an 'arrangement'23 with the other parties to the proceedings. However, when pressed, senior counsel for the appellant conceded that there was no agreement or understanding between the parties with respect to this issue, and that the forensic strategy adopted by the appellant was adopted by it unilaterally and presented to the court in the same way.
31 It seems that the appellant now regrets the strategy which it adopted, and asserts that if it had appreciated the potential effect of s 19 of the SAT Act, it would have raised an issue with respect to the validity of that section. However, the manner in which the appellant has conducted its case shows that proposition to be disingenuous. The appellant was clearly aware of s 19 of the SAT Act and its effect, and conducted its case on the basis that the section was valid. It was also aware of a possible argument that could be advanced with respect to the validity of the section, and chose not to advance that argument. It cannot now contend that the manner in which it chose to conduct the case before the court has given rise to a denial of procedural fairness.
32 Turning now to the second aspect of this ground, in the written submissions24 filed in support of the application, the appellant contends that it was denied the opportunity of submitting that if the court upheld its contention that the Tribunal was wrong to decline jurisdiction, the court should remit the matter to the Tribunal to enable the appellant to apply for an order under s 50 of the SAT Act, which would then have enabled it to discontinue the proceedings in the Tribunal and pursue the proceedings for judicial review of the Shire's decision of 20 June 2013. There are many reasons why this submission must be rejected.
33 First, the appellant does not contend that this submission was put to the court at any time prior to this application being made, nor does it advance any reason why the submission could not have been put to the court if the appellant had wished to do so. As we have noted, the appellant was always aware of s 19 of the SAT Act and its consequences, and conducted its case on that basis.
34 Second, the proposition that the appellant should be permitted to discontinue its application for review in the Tribunal if the Tribunal was found to have jurisdiction, in order that it might pursue proceedings for judicial review of the Shire's decision of 20 June 2013, is entirely contrary to the manner in which it conducted its case at first instance and on appeal. At both levels, the appellant's case was conducted on the basis that if the Tribunal was found to have jurisdiction, it followed that its claim for judicial review of the Shire's decision must be dismissed because of s 19 of the SAT Act. There is no reason why the appellant should now be permitted to adopt an entirely different forensic strategy.
35 Third, the proposition that this court would have seriously entertained an application to remit the appellant's application for review to the Tribunal for further consideration more than a year after the date upon which the appellant proposed to conduct the event for which it sought a permit is, with respect, misconceived. By the time this court gave its decision, and indeed, as we noted, by the time the judge at first instance gave his decision, remittal of the matter to the Tribunal was pointless.25
36 Fourth, the proposition that this court would have seriously entertained a submission that the matter be remitted to the Tribunal for further consideration, notwithstanding the futility of that consideration, so as to enable the appellant to seek an order from the Tribunal pursuant to s 50 of the SAT Act, is equally misconceived. For the reasons which we gave, in our view it was entirely inappropriate for the appellant to fail to pursue its right to seek leave to appeal from the decision of the Tribunal and, some time after the time for commencing that application had expired, commence proceedings for judicial review in respect of both the Tribunal's decision and the Shire's decisions. That view did not depend upon s 19 of the SAT Act, but upon the more general considerations enunciated in Re Carey; Ex parte Exclude Holdings Pty Ltd26 (Re Carey). Obviously this court would not have remitted the matter to the Tribunal in response to a submission based on the proposition that the course taken by the appellant was appropriate, when the court has expressly found otherwise.
37 There are other reasons why the argument based on s 19 of the SAT Act provides no basis for setting aside our decision to dismiss the appeal. Dealing firstly with the proceedings for judicial review of the decisions made by the Shire, as we have noted, our conclusion that those proceedings must be dismissed if it was concluded that the Tribunal had jurisdiction is entirely consistent with the position adopted by the appellant at all times. But, irrespective of s 19 of the SAT Act, we concluded that the discretion of the court would in any event be exercised against the grant of relief because of the appellant's delay, the prejudice to the third respondent by reason of that delay, and the futility of granting relief after the time for the conduct of the appellant's proposed tournament had passed. No argument advanced with respect to s 19 of the SAT Act can have any impact or effect upon those considerations which were, of themselves, sufficient to result in the dismissal of the appellant's claim for judicial review of the Shire's decisions.
38 Turning now to the proceedings for judicial review of the Tribunal's decision to decline jurisdiction, irrespective of the position adopted in relation to s 19 of the SAT Act, we concluded that there were four other reasons why relief should have been denied even if it was concluded that the Tribunal was wrong to decline jurisdiction. Three of those reasons correspond with the reasons for refusing relief in respect of the Shire's decisions - namely, delay, the prejudice to the third respondent occasioned by delay, and the futility of granting relief long after the date for the conduct of the appellant's proposed tournament had passed. In addition, we relied upon the principles enunciated in Re Carey for the conclusion that the appellant's unexplained failure to pursue its right to apply for leave to appeal from the decision of the Tribunal, and instead commence proceedings for judicial review of that decision some time after the time for applying for leave to appeal had expired was, in itself, a sufficient basis for refusing relief. That aspect of our decision is entirely unaffected by the validity or otherwise of s 19 of the SAT Act. This court's reliance upon the principles enunciated in Re Carey cannot have come as a surprise to the appellant, as the trial judge cited the case in support of the proposition that:27
the use of prerogative remedies to challenge decisions of the Tribunal is a course of action which this court should actively discourage, and a factor which would have caused the Chief Justice in that case to exercise the discretion to refuse prerogative relief.
39 For these various reasons, the ground based on s 19 of the SAT Act is entirely lacking in substance and must be dismissed.
The public interest
40 The appellant asserts that the court failed to 'respond to' its submission that the discretion to grant or refuse relief is to be exercised taking into account the public interest in the lawful exercise of administrative powers. Unlike the first two grounds advanced in support of the application to set aside our decision, the submission underpinning this ground was in fact put to this court in support of the appeal. As we have already noted, in that circumstance it is difficult to see any basis upon which the appellant can now assert that it was denied procedural fairness. The fact that its submission was not accepted is a matter appropriately pursued on appeal, not in an application of this kind.
41 But in any event, the assertion that this court failed to take account of the argument put is simply wrong. In this court's reasons for decision, it was observed:28
It may be accepted that the discretion to refuse prerogative or declaratory relief will not be exercised lightly, and will only be exercised for good reason. (footnotes omitted)
- In support of that proposition we cited passages from the decision of the High Court in Re Refugee Review Tribaunal; Ex parte Aala29 which had been cited by the appellant in support of its submissions, together with a passage from the decision of Gibbs CJ in R v Ross-Jones; Ex parte Green30 where his Honour described the issue of a prerogative writ in a clear case of want or excess of jurisdiction as 'almost as of right', while at the same time acknowledging the existence of the residual discretion to refuse relief. The fact that this court acknowledged and accepted the appellant's proposition in its own language, rather than in the language of the submission, cannot provide any basis for an assertion that the appellant was denied procedural fairness. It follows that this ground must also be dismissed.
Conclusion in relation to the application to set aside the order dismissing the appeal
42 For the reasons given, each of the grounds advanced in support of the application to set aside this court's order dismissing the appeal is without substance. Although there are various reasons why each ground must be dismissed, in short, the propositions now advanced in support of the first two grounds were never put to this court, and the appellant had every opportunity to do so. The proposition underpinning the third ground was put to the court and generally accepted by the court, although the court decided to exercise the residual discretion to refuse relief for the reasons which were enunciated. The application to set aside the order dismissing the appeal must be dismissed.
Costs
43 The appellant accepts that the exercise of this court's discretion with respect to costs is to be informed by the general rule that a successful party should recover its costs.31 The appellant also submits, correctly, that the application of the general rule requires the identification of a successful party, and that the court should:32
look realistically at the litigation, the issues, the way it was conducted and the result, in order to assess who really succeeded and to what extent.
44 However, the appellant submits that it should not be ordered to pay the first and third respondents' costs of the appeal because:
(a) The appellant was substantially successful;
(b) The first and third respondents acted unreasonably in their opposition to the appeal;
(c) The first respondent should have filed a submitting appearance; and
(d) The first and third respondents should have conducted a joint defence and should therefore only receive one set of costs, if costs are ordered.
45 The appellant further submits that this court should set aside the orders made by the trial judge with respect to costs, and make orders in respect of the proceedings at first instance which correspond with the orders made with respect to the appeal.
The relative success of the parties
46 It is, of course, correct that the appellant succeeded in establishing that the trial judge erred in concluding that the Tribunal was correct to decline jurisdiction and that the decision of the Shire to grant a permit to the third respondent for 2014 was valid. However, this court also concluded that if the trial judge had correctly resolved those issues, he would nevertheless have properly refused to grant any relief to the appellant for the various reasons we identified. Those reasons are all attributable to the manner in which the appellant conducted its challenges to the decisions of the Tribunal and the Shire. Put another way, the effect of the appellant's conduct was to render its success on the issues relating to the jurisdiction of the Tribunal and the validity of the decision of the Shire pyrrhic.
47 Looking at this litigation realistically, for the purpose of identifying success and failure, it is clear that the purpose underpinning the litigation was the appellant's attempt to secure the approval of its application to conduct a polo tournament on Cable Beach in Broome in May 2014. Although it was suggested in the course of argument on behalf of the appellant that the appellant was motivated by longer term objectives, as the only application made by the appellant was an application to conduct a single tournament in May 2014, that submission could not be justified on the evidence before the court.
48 We concluded that the proceedings which the appellant commenced at first instance, and in this court on appeal, were each doomed to fail because of the manner in which the appellant conducted its challenges to the decisions of the Tribunal and the Shire. The fact that the appellant ultimately succeeded in establishing that the decisions of each of the Tribunal and the Shire were invalid does not detract from the fact that its attempt to achieve the objective of approval of its application to conduct a polo tournament in May 2014 by the commencement of the judicial review proceedings the subject of this appeal was, in the view of this court, always doomed to fail by reason of the inconsistent and dilatory manner in which those proceedings were conducted by the appellant, and the prejudice which that conduct occasioned to the third respondent. In those circumstances, the appellant's pyrrhic success on some of the issues in the case provides no reason for departing from the general rule.
The conduct of the first and third respondents' defences
49 The appellant submits that the first and third respondents, who were successful in opposing the application for relief which would have enabled the appellant to conduct a polo tournament in May 2014, should nevertheless be deprived of their costs because of the manner in which they conducted their defence of the appellant's claims, and their opposition to its appeal. It is unnecessary to go through the various arguments advanced in support of that proposition and sufficient for present purposes to state that we are satisfied that the first and third respondents conducted their opposition to the proceedings at first instance and on appeal in an entirely conventional manner, advancing arguments that were reasonably open, as was their entitlement. In our view, there is nothing in the conduct of either respondent which would justify departure from the general rule with respect to costs.
Should the Shire have filed a submitting appearance?
50 The appellant submits that the first respondent (the Shire) should not receive its costs because it should have filed a submitting appearance and taken no active part in the proceedings.33 However, in the performance of its functions relevant to this case, the position of the Shire is not analogous to the position of an independent tribunal such as the Tribunal. The Shire is responsible for the proper enforcement and administration of the LG Act for the benefit of all within the area governed by the Shire. In granting the third respondent's application for a permit, and refusing the appellant's application for a similar permit, the Shire was exercising a routine executive function analogous to the functions performed by many administrative decision-makers who properly contest challenges to the validity of their decisions. It was entirely appropriate for the Shire to actively contest the proceedings commenced by the appellant.
A single set of costs?
51 The appellant's submission that any costs ordered in favour of the first and third respondents should only be ordered as a single set, on the basis that those parties should have conducted a joint defence, must be rejected. Although the interests of each respondent clearly overlapped in some respects, it is equally clear that their interests were different in other respects. It can reasonably be assumed that the third respondent was motivated by commercial gain, whereas the Shire's interests lay in establishing that it had acted lawfully and had acted in the interests of good government. Further, there were matters known to each respondent which were outside the knowledge of the other - such as the manner in which the Shire responded to the appellant's application for a permit, and the commercial prejudice suffered by the third respondent by reason of the appellant's delay in the prosecution of its case. It was entirely appropriate for the first and third respondents to be separately represented.
The costs at first instance
52 Essentially this court concluded that the trial judge was right to dismiss the appellant's claim, but for reasons other than those given by the trial judge. Accordingly, there is no reason to disturb the orders made by the trial judge with respect to the costs of the proceedings at first instance, in which he applied the general rule.
Conclusion
53 For these various reasons, the appellant should be ordered to pay the first and third respondents' costs of the appeal to be assessed if not agreed. Those costs should include the costs incurred responding to the application to set aside the order dismissing the appeal, and in respect of the argument relating to the costs of the appeal and the costs of the proceedings at first instance. There will be liberty to apply for any special orders with respect to the costs referred to in the preceding sentence.
1Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 (Polo).
2 See, eg, Grierson v The King (1938) 60 CLR 431; Bailey v Marinoff (1971) 125 CLR 529; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 (Burrell); Achurch v The Queen [2014] HCA 10; (2015) 253 CLR 141 (Achurch).
3Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [16] (Gummow ACJ, Hayne, Heydon, Crennan & Kiefel JJ).
4Taylor v Taylor (1979) 143 CLR 1 (Taylor).
5Vint v Hudspith (1885) 29 Ch D 322, 324.
6Rules of the Supreme Court 1883, O XXXVI r 33.
7Pantorno v The Queen (1989) 166 CLR 466, 474 (Mason CJ & Brennan J), 484 (Deane, Toohey & Gaudron JJ).
8Postiglione v The Queen (1997) 189 CLR 295, 300 (Dawson & Gaudron JJ), 327 (Gummow J).
9 Relying upon, inter alia, International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.
10 See Re Malley; Ex parte Gardner [2001] WASCA 29 [28] (Malcolm CJ), [31] (Owen J), [51] (Parker J), [52] (Wheeler J); Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [138] (Wheeler & McLure JJA & Miller AJA).
11Burrell [26] (Gummow ACJ, Hayne, Heydon, Crennan & Kiefel JJ).
12Achurch [14] (French CJ, Crennan, Kiefel & Bell JJ).
13 Appeal ts 18.
14 Appeal ts 102.
15 Appeal ts 125.
16 Appeal ts 129.
17Polo [44], [129] - [130].
18Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
19Polo [130]; trial ts 3 - 4.
20 Appellant's submissions [6].
21 Appeal ts 22.
22 Appellant's submissions on the application [34].
23 Appeal ts 133.
24 But not the oral argument.
25Polo [105] - [106].
26Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [138] - [139] (Martin CJ, Wheeler JA agreeing).
27Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120 [83].
28Polo [135].
29Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [5] (Gleeson CJ), [51] - [52] (Gaudron & Gummow JJ), [149] (Kirby J), [172] (Hayne J).
30R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 194.
31Rules of the Supreme Court 1971 (WA), O 66 r 1(1); appellant's submissions on the application [64].
32 Appellant's submissions on the application [64], citing Overton Investments Pty Ltd v The Minister administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137 [72] (Stein JA, Powell JA & Ipp AJA agreeing).
33 Presumably relying upon R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35 - 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).
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