Polo Enterprises Australia Pty Ltd v Shire of Broome - [2015] WASCA 201

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

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: 4 JUNE 2015

DELIVERED : 1 OCTOBER 2015

FILE NO/S: CACV 49 of 2014

BETWEEN: POLO ENTERPRISES AUSTRALIA PTY LTD
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:

Administrative law - Merits review - Jurisdiction - Part 9 Division 1 of the Local Government Act 1995 (WA) - Whether State Administrative Tribunal had jurisdiction to review approval of permit under local law on application by party other than party to whom approval related - Where approval necessarily refused other party's application for a permit - Meaning of 'affected person' - Whether mental engagement required to constitute decision

Administrative law - Judicial review - Jurisdictional error - Whether State Administrative Tribunal mistakenly denied jurisdiction - Whether local government failed to accord procedural fairness - Where local government refused application for permit without first considering it - Discretionary bars to relief

Administrative law - Restriction on concurrent rights of merits review and judicial review - Proper construction and operation of s 19 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 3
Interpretation Act 1984 (WA), s 18
Local Government (Functions in General) Regulations 1996 (WA), reg 32A
Local Government Act 1995 (WA), s 1.3, s 2.1, s 2.5, s 2.6, s 3.5, s 5.36, s 5.42, s 5.43, s 9.1, s 9.2, s 9.4, s 9.7
Military Rehabilitation and Compensation Act 2004 (Cth)
Rules of the Supreme Court 1971 (WA), O 56 r 1, O 56 r 2
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14, s 16, s 24, s 27
Shire of Broome Local Government Property and Public Places Local Law 2012 (WA), cl 1.5, cl, 3.2, cl 3.3, cl 3.4, cl 3.5, cl 3.14, cl 5.2, cl 16.1
State Administrative Tribunal Act 2004 (WA), s 14, s 17, s 19, s 21, s 50, s 105
Supreme Court (Court of Appeal) Rules 2005 (WA), r 26(2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr D J Higgs SC & Mr J B King
First Respondent           :     Mr P L Wittkuhn
Second Respondent       :     No appearance
Third Respondent         :     Mr M D Cuerden SC

Solicitors:

Appellant:     Clear Lawyers
First Respondent           :     McLeods Barristers & Solicitors
Second Respondent       :     No appearance
Third Respondent         :     Allen & Overy

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities and Investment Commission v Citrofresh International Ltd [2007] FCA 1873; (2007) 164 FCR 333
Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28
Director-General of Social Services v Chaney (1980) 47 FLR 80
Harding v Her Worship Ms B Lane SM [2001] WASCA 37
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574
IW v City of Perth (1997) 191 CLR 1
Jennings Constructions v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 465
Kioa v West (1985) 159 CLR 550
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84
Luke v Inland Revenue Commissioners [1963] AC 557
Macalister v The Queen (1990) 169 CLR 324
Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 1; (2010) 243 CLR 31
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Polo Enterprises Australia Pty Ltd and Cable Beach Polo Pty Ltd [2014] WASAT 3
Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98
Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
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 Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344
MARTIN CJ:

Summary

The appellant, Polo Enterprises Australia Pty Ltd (PEA), and the third respondent, Cable Beach Polo Pty Ltd (CBP), each wish to conduct an annual polo tournament on Cable Beach at Broome. The area of Cable Beach upon which each wishes to conduct the event is land under the care, control and management of the relevant local government, the Shire of Broome (the Shire), which is the first respondent. Under the terms of a local law made by the Shire, it is necessary for anyone wishing to conduct an event of the kind proposed on land under the care or control of the Shire to obtain a permit from the Shire.
In 2012, PEA and CBP each applied to the Shire for a permit to conduct a polo tournament on Cable Beach during May 2013. After considering both applications, the Shire decided to grant the permit sought by CBP, and to refuse the permit sought by PEA. PEA applied to the State Administrative Tribunal (the Tribunal) for a review of the decision to refuse its application and the decision to grant CBP's application for a permit. The Tribunal held that it had jurisdiction to review both decisions but, on the merits, affirmed the Shire's decision to grant a permit to CBP in preference to the permit sought by PEA.[1]
[1] Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98.
In April 2013, CBP lodged applications with the Shire for the grant of permits which would enable it to conduct an annual polo tournament on Cable Beach on specified dates in May in each of 2014, 2015, 2016 and 2017. In May 2013, PEA wrote to the Shire advising that it intended to submit an application for a permit to conduct a beach polo tournament in 2014 and requested information with respect to the decision‑making process. The Shire declined to provide the information sought. However, the Shire did advise PEA that it had received applications from CBP which were expected to be considered by the council of the Shire on 20 June 2013.
On 18 June 2013, PEA lodged an application for a permit to conduct a polo tournament on the same part of Cable Beach and on the same dates in May 2014 for which CBP had applied for a permit. On 20 June 2013, the council of the Shire considered CBP's applications. At the time, members of the council of the Shire were not made aware that PEA had lodged an application and proceeded on the erroneous assumption that no such application had been received by the Shire. The council resolved to authorise the chief executive officer of the Shire to issue permits to CBP to enable it to conduct a beach polo tournament on each of the dates in 2014, 2015, 2016 and 2017 in respect of which permits had been sought.
On 30 July 2013, PEA applied to the Tribunal for a review of the Shire's decision. On 19 September 2013, the council of the Shire resolved to refuse PEA's application for a permit to conduct a beach polo event in May 2014 on the ground that the Shire had already granted to CBP a permit to conduct a similar event at the same place and at the same time. On 16 October 2013, the Tribunal decided that it did not have jurisdiction to entertain PEA's application for a review of the Shire's decision made on 20 June 2013.[2]
[2] Although formal written reasons for that decision were not published until 7 January 2014 - see Polo Enterprises Australia Pty Ltd and Cable Beach Polo Pty Ltd [2014] WASAT 3.
PEA did not apply for leave to appeal from the Tribunal's decision. However, on 20 December 2013,[3] PEA commenced proceedings in the Supreme Court seeking prerogative relief having the effect of quashing the decisions made by the Shire on 20 June 2013 and 19 September 2013 and the decision made by the Tribunal on 16 October 2013, and requiring the Tribunal to exercise jurisdiction to review the decision made by the Shire on 20 June 2013. In due course, the proceedings were amended to include a claim for declaratory relief against the Shire. Each of the Shire, the Tribunal and CBP were parties to those proceedings although the Tribunal (the second respondent to this appeal) took no active part in those proceedings or this appeal.[4]
[3] The last day within which proceedings could be brought seeking prerogative relief in respect of the Shire's decision on 20 June 2013, without an extension of time being necessary.
[4] As would be expected in accordance with long-standing practice. See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35 - 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ); Harding v Her Worship Ms B Lane SM [2001] WASCA 37 [17] (Anderson J, Kennedy ACJ & Wallwork J agreeing).
Those proceedings were heard by the trial judge during March 2014. For reasons published on 4 April 2014, the trial judge held that the decision made by the Shire on 20 June 2013 was valid, essentially because the council of the Shire had not decided to refuse PEA's application on 20 June 2013 because the application was not before the council. He also held that the Tribunal did not have jurisdiction to consider PEA's application for review of the decision made on 20 June 2013 essentially for the same reason. Because the trial judge concluded that PEA had failed to make out any grounds for relief against either the Shire or the Tribunal, he did not consider it necessary to determine whether relief would have been refused in any event on discretionary grounds.
For the reasons which follow, both the Tribunal and the trial judge were wrong to conclude that the fact that councillors were unaware of PEA's application at the time a decision was made on behalf of the Shire, which had the effect of refusing PEA's application, meant that no decision of that nature had been made. It follows that each was wrong to conclude that the Tribunal had no jurisdiction to entertain PEA's application for a review of that decision. Further, because the Shire had, in effect, refused PEA's application without giving any consideration to its merits, PEA was denied procedural fairness and therefore the Shire exceeded the jurisdiction conferred by the local law, with the result that the decision to grant CBP's application for a permit to conduct the beach polo tournament in 2014 was invalid.
However, if the trial judge had considered whether or what relief should have been granted in light of these conclusions in respect of the Shire, he would have concluded that relief against the Shire would be refused because that relief was sought in contravention of s 19 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), given that PEA had commenced proceedings in the Tribunal seeking review of a 'reviewable decision' before PEA commenced judicial review proceedings in respect of that same decision. Further, if he had considered whether relief in respect of the Tribunal's decision to decline jurisdiction should be granted, he should have concluded that relief would be refused on discretionary grounds, given PEA's unexplained failure to exercise its right to apply for leave to appeal from the Tribunal's decision; its delay in commencing the court proceedings; the prejudice occasioned to CBP by reason of that delay; and the futility of remitting the matter to the Tribunal for determination when the tournament was to be held in seven weeks time and CBP had put all necessary arrangements in place. Accordingly, notwithstanding the errors to which I have referred, the appeal should be dismissed.

The statutory framework

Before returning to the facts and the issues in more detail, it is appropriate to set out the statutory framework which governs the resolution of the issues raised in this appeal. That is because the essential issues in the appeal are all issues of statutory construction, with the exception of the issues relating to the refusal of relief on discretionary grounds.

The Local Government Act

The Local Government Act 1995 (WA) (the Act) creates a local government for each area of Western Australia declared to be a local government district pursuant to s 2.1 of the Act. Each local government is a body corporate with the legal capacity of a natural person.[5] The governing body of each local government is an elected council.[6] A local government is required to employ a person to be the CEO of the local government,[7] and may delegate to the CEO the exercise of any of its powers or the discharge of any of its duties other than those specified in s 5.43 of the Act.[8] Local governments are authorised to make local laws.[9] As there is no suggestion that the local law made by the Shire which is relevant to this case went beyond the legislative power of the Shire, it is unnecessary to consider the precise ambit of the legislative powers of a local government.

The local law

[5] Section 2.5 of the Act.

[6] Section 2.6 of the Act.

[7] Section 5.36 of the Act.

[8] Section 5.42 of the Act. There are no matters specified in s 5.43 of the Act which cannot be delegated to the CEO which are relevant to this case.

[9] Section 3.5 of the Act.

In 2012, the Shire promulgated the Shire of Broome Local Government Property and Public Places Local Law 2012 (WA) (the local law). Clause 3.14 of the local law prohibits specified activities on local government property unless a permit has been obtained authorising that activity. The expression 'local government property' is defined by cl 1.5 of the local law to include any property under the care, control and management of the local government. As the Shire has the care, control and management of that part of Cable Beach which each of PEA and CBP wish to use for the conduct of their polo tournaments, it is clear that activities conducted on that portion of the beach fall within the scope of the local law. There are a number of activities likely to be carried on in connection with the polo tournaments proposed by PEA and CBP for which a permit is required pursuant to cl 3.14 of the local law, including: erecting a structure for public amusement on local government property; carrying on trading on local government property; driving or taking any vehicle on to local government property; parking or stopping any vehicle on local government property; taking or riding a large animal or large animals on local government property; conducting a function on local government property; charging any person for entry to local government property; and depasturing any horse on local government property.
Clause 3.2 of the local law provides that where a person is required to obtain a permit under the local law, an application must be made in the form determined by the local government and the information required by the form must be forwarded to the CEO together with any fee imposed by the local government. The same clause provides that the local government may require an applicant to provide additional information or to give local public notice of the application for a permit. The clause also provides that the local government may refuse to consider an application for a permit which is not in accordance with the requirements of the clause. A necessary corollary of that provision, implicit in its terms and consistent with the scheme of the local law as a whole, is the obligation of the local government to consider an application for a permit which meets the requirements of the local law.
Clause 3.4(1) of the local law provides that in determining an application for a permit the local government must satisfy itself that the undertaking of the activity the subject of the application:
(a)will not result in harm to human health or safety or personal injury;
(b)will not result in property damage or a loss of amenity;
(c)will not result in environmental harm or environmental nuisance;
(d)will not result in a nuisance; and
(e)complies with the provisions of legislation that regulates the undertaking of the activity.
Clause 3.3 of the local law provides that the local government may approve an application for a permit unconditionally or subject to any conditions, or refuse to approve an application for a permit. The clause further provides that if the local government refuses to approve an application for a permit, it is to give written notice of that refusal to the applicant. If a local government approves an application for a permit, cl 3.3 requires it to issue a permit in the form which it has determined.
Clause 3.5 of the local law identifies a number of conditions which can be attached to the grant of a permit, without limiting the generality of the power to impose conditions upon the grant of such a permit.
There are other provisions of the local law relating to the duration, renewal and cancellation of permits. However, as those provisions are not relevant to the issues in this appeal, it is unnecessary to consider them in any detail.
Clause 5.2 of the local law provides:
In the event of two or more applications being made for the hire of the same local government property for the same date and time, the local government may determine which, if any, applicant shall be granted an approval to hire.
It is common ground that this provision has no application to the issues in this case, as neither PEA nor CBP were proposing to hire the portion of the beach to be used for their polo events.
Part 16 of the local law is headed 'Objections and Appeals'. Clause 16.1 of the local law provides:
When the local government makes a decision as to whether it will -
(a)grant a person a permit or consent under this local law; or
(b)renew, vary or cancel a permit or consent that a person has under this local law,
the provisions of Division 1 of Part 9 of the Act and regulation 33 of the Regulations applies to that decision.
In order to comprehend that clause, it is necessary to turn to the provisions of the Act conferring jurisdiction upon the Tribunal.

The review provisions of the Local Government Act

The jurisdiction of the Tribunal is divided between original and review jurisdiction.[10] Jurisdiction of both kinds is conferred upon the Tribunal by other legislation described in the SAT Act as an 'enabling Act' and by the SAT Act itself.[11] The Act is an 'enabling Act' within this taxonomy, as div 1 of pt 9 of that Act confers review jurisdiction upon the Tribunal, although that jurisdiction can only be invoked by an 'affected person'.[12]
[10] SAT Act, s 14.
[11] SAT Act, pt 3.
[12] Section 9.7 of the Act.

Section 9.1 of the Act specifies the circumstances in which div 1 of pt 9 of the Act applies. Those circumstances include the circumstance in which a local law 'states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division'.[13] CBP contends that the local law does not fall within s 9.1(3) of the Act because it does not expressly specify a person who is an affected person for the purposes of div 1 of pt 9 of the Act. I will return to that contention in due course.
[13] Section 9.1(3) of the Act.
However, for the purposes of assessing that contention, it is necessary to consider the other circumstances in which div 1 of pt 9 of the Act applies. By s 9.1(1) of the Act, those other circumstances include a decision under the Act as to whether a local government will grant a person an authorisation under pt 3 of the Act or under any local law or regulation that is to operate as if it were a local law, or a decision to renew, vary or cancel such an authorisation.
In that context, s 9.2 of the Act defines an 'affected person' to be either the person in respect of whom a local government has made a decision as to whether it will grant, renew, vary or cancel an authorisation, or relevantly, a person specified in a local law to be an affected person for the purposes of the Division. I digress to observe that while s 9.2 does not, in its terms, limit the persons who might be specified in a local law to be an 'affected person' for the purposes of div 1 of pt 9 of the Act, in respect of decisions to grant, renew, vary or cancel authorisations under pt 3 of the Act or a local law or regulation that is to operate as if it were a local law, it is only the person to whom the authorisation might or does apply that comes within the definition of 'affected person'. In other words, in respect of decisions made by a local government under s 9.1(1) of the Act, the only persons who are 'affected persons' for the purposes of the review rights conferred by that Division of the Act are the persons to whom the authorisation relates. Because s 9.7 of the Act provides that only an 'affected person' may apply to the Tribunal for a review of a decision, it follows that persons other than those to whom the relevant authorisation relates cannot apply to the Tribunal for review of the decision made by a local government with respect to that authorisation. Put even more simply, at least in respect of decisions made by a local government under pt 3 of the Act, the Act does not confer jurisdiction upon the Tribunal to review such decisions at the behest of third parties.

The facts

The 2013 polo tournament

PEA and CBP are engaged in the business of hosting polo tournaments. During each of 2010 and 2011, they collaborated in the conduct of a polo tournament on Cable Beach. However, differences arose in relation to the tournament which was to be jointly presented in 2012 with the result that no tournament was held that year. During May and June 2012, each of PEA and CBP applied to the Shire for a permit to conduct a polo tournament on Cable Beach during May 2013. In October 2012, the council of the Shire considered each application and decided to authorise the grant of a permit to CBP and to refuse PEA's application. PEA applied for a review of that decision by the Tribunal. The Shire and CBP were both respondents to that application. Both conceded that the Tribunal had jurisdiction to review the Shire's decision to refuse PEA's application for a permit, but each contended that the Tribunal had no jurisdiction to review the Shire's decision to grant a permit to CBP on the ground that PEA was not an 'affected person' in relation to that decision. The Tribunal concluded that it had jurisdiction to review that decision on the basis that the decision of the Shire was in substance a single decision in which the Shire determined which of two competing applicants was to be preferred.[14] After reviewing the Shire's decision on its merits, the Tribunal concluded that CBP had 'a demonstrated edge' in relation to most of the criteria applied to assess the competing applications.[15] The Tribunal gave oral reasons for that conclusion on 4 April 2013. Written reasons were published in June 2013.

The applications lodged in 2013

[14] Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98.

[15] Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98 [40].

On 26 April 2013, after the Tribunal had given oral reasons for concluding that CBP was the preferred applicant,[16] CBP applied to the Shire for permits to stage polo tournaments on Cable Beach on specified dates in May in each of 2014, 2015, 2016 and 2017. Separate applications, each in the form specified by the Shire, were lodged in respect of each year supported by detailed information relating to the tournament to be conducted, including a timeline of dates and events specific to each year. Each application was supported by a body of documents and information common to all years.
[16] But before written reasons for that conclusion were published.
On 22 May 2013, PEA wrote to the Shire giving notice of its intention to submit an application to stage a beach polo tournament in Broome during 2014. The letter sought information relating to any deadline for the lodgement of applications to conduct such events, the assessment criteria that would be applied by the council of the Shire when deciding whether to approve or refuse an application, and with respect to the procedure that would be followed by the council of the Shire in the event that more than one application to conduct a beach polo event during 2014 was received.
The CEO of the Shire replied to PEA by letter dated 5 June 2013. In that letter he noted PEA's intention to apply to stage a beach polo tournament during 2014. The letter advised PEA that the Shire did not invite applications for beach polo events, and further advised that in light of the contentious nature of the process relating to the 2013 event, officers of the Shire declined to set any deadline or give any undertakings without direction from the council of the Shire. The CEO declined to provide any further information in relation to the topics raised in the letter from PEA, although he did advise PEA that applications had been received from CBP and that it was the present intention for those applications to be considered by the council of the Shire on 20 June 2013. The letter also cited cl 5.2 of the local law in full, being the clause to which I have already referred pertaining to a circumstance in which two or more applications are made for the hire of the same local government property in respect of the same date and time. Although the citation of this provision may have encouraged PEA to the view that if it lodged an application for a permit to conduct a polo tournament at the same time and place in respect of which CBP had applied for a permit, the two applications would be considered together, nothing turns on whether the letter from the CEO did in fact induce that expectation.
On 18 June 2013, PEA lodged an application for a permit to conduct a polo tournament on Cable Beach on specified dates in May 2014. PEA's application was supported by an extensive set of documents providing detailed information in relation to the proposed event. The dates suggested in PEA's application initially differed from the dates for which CBP had applied in respect of May 2014. However, PEA's application stated that if CBP applied to host its event on dates in 2014 different to those requested by PEA, then PEA's application should be 'deemed to relate' to the same dates for which CBP had applied.[17] Consequently, both at first instance and on appeal all parties accepted that PEA's application was to be taken as relating to the same place and the same dates in May 2014 for which CBP had applied.

Council meeting on 20 June 2013

[17] AB 289.

A report prepared by officers of the Shire relating to CBP's application for a permit to stage a beach polo tournament in 2014 was included amongst the papers provided to members of the council of the Shire for consideration at the council meeting on 20 June 2013. CBP's applications for permits to conduct events in each of 2014, 2015, 2016 and 2017, and the correspondence passing between PEA and the CEO of the Shire, were attached to the report. It seems clear that the report was prepared prior to the receipt of PEA's application on 18 June 2013, as the report asserts:
At the time of this report, no actual event application from PEA had been received.
The report presented two alternative options to councillors, namely:
(a)approving CBP's application for a permit to conduct a beach polo tournament on specified dates in May 2014; or
(b)request PEA to submit an application by close of business on 19 July 2013 to allow both applications to be considered by council on the basis of selecting between competing proposals.
It is a fair inference from the papers presented to councillors at the meeting on 20 June 2013, and from the terms of the minutes of that meeting, that councillors were not advised by the CEO or by Shire staff that PEA had lodged an application for a permit to conduct a beach polo tournament in May 2014 two days prior to the council meeting. The proceedings at first instance and on appeal have been conducted on the basis that such an inference should be drawn. There is no evidence to explain the failure to bring PEA's application to the attention of councillors at their meeting on 20 June 2013, nor has any explanation been proffered for that failure.
The minutes of the council meeting record that the council resolved not to accept either of the options proposed by officers in their report to council. Instead, council resolved to authorise the CEO to issue permits to CBP authorising the conduct of beach polo tournaments on each of the dates identified in CBP's applications in 2014, 2015, 2016 and 2017, rather than 2014 alone, subject to certain specified conditions.

The application to the Tribunal

On 30 July 2013, PEA applied to the Tribunal for review of the decision made by the Shire on 20 June 2013. In the application, PEA requested the Tribunal to revoke the approval granted to CBP and to grant approval to PEA to conduct a beach polo tournament in 2014.

The council meeting on 19 September 2013

Amongst the papers presented to councillors for their consideration at a meeting of the council held on 19 September 2013 was a report from officers relating to the proceedings which had been commenced by PEA in the Tribunal on 30 July 2013. The report requested that council consider PEA's application for a permit to conduct its beach polo event in 2014.
The report refers to a delegation of authority from the council to the CEO, the precise terms of which are not in evidence. However, the report advises councillors that the delegation extended only to power to approve applications under the local law and did not include a power to refuse them.
The report advised councillors that PEA's application was for a permit to conduct a tournament at the same time and place as CBP's 2014 application, with the consequence that 'the two events are literally and physically incapable of occurring simultaneously'. The report recommended that the council resolve to refuse PEA's application on the basis that CBP's application for a permit to conduct an event at the same time and place had already been approved. Councillors accepted that recommendation, and unanimously resolved to refuse PEA's application 'based on the fact that the applicant has requested the same dates … and place as a previously approved event'.

The decision of the Tribunal

The Shire and CBP again submitted that the Tribunal had no jurisdiction to review the Shire's decision on 20 June 2013 to grant CBP's applications for permits on the ground that PEA was not an 'affected person' in relation to that decision. PEA submitted that the circumstances were indistinguishable from those which pertained in relation to the 2013 event because as at 20 June 2013, the Shire had received two mutually exclusive competing applications and by granting one such application had necessarily refused the other. The Tribunal was comprised by the same member who had previously determined that the Tribunal had jurisdiction to review the Shire's decision to grant CBP a permit for the 2013 event at the behest of PEA. However, on this occasion the Tribunal ruled that it had no jurisdiction to entertain PEA's application to review the decision to grant CBP a permit for the 2014 event. Oral reasons for that conclusion were given on 16 October 2013. Written reasons, generally to the same effect as the oral reasons, were published on 7 January 2014. Both versions of the reasons concluded, in effect, that the jurisdiction of the Tribunal to review the decision to grant CBP a permit in 2014 on application by PEA depended upon the decision‑maker having considered each of CBP and PEA's applications, and determining that they were mutually exclusive so that if one was granted, the other must necessarily be refused. That approach had been taken by the Shire in respect of the 2013 event, but had not been taken in respect of the 2014 event because the council of the Shire, as the relevant decision‑making organ, was not aware that PEA had in fact lodged an application for a permit to conduct an event in 2014 at the time it considered CBP's applications. Put another way, in the view of the Tribunal, its jurisdiction depended upon the subjective mental process undertaken by the decision‑maker, rather than the objective consequences of the decision under review.

The proceedings at first instance

PEA did not apply for leave to appeal from the decision of the Tribunal within the time specified for such an application,[18] or at all. PEA did, however, commence proceedings in the Supreme Court on 20 December 2013 seeking judicial review of the decisions made by the Shire on 20 June 2013 in respect of CBP's applications for permits to stage beach polo tournaments; the decision of the Shire made on 19 September 2013 in respect of PEA's application for the issue of a permit to stage a beach polo tournament; and the decision of the Tribunal made on 16 October 2013 to refuse to exercise jurisdiction in respect of the application made by PEA to the Tribunal. Those proceedings were commenced on the last day of the period specified by the rules of court within which proceedings for judicial review of the decision that the Shire made on 20 June 2013 had to be commenced, unless an extension of time was granted by the court.[19] In those proceedings, PEA sought orders quashing the decisions of the Shire and of the Tribunal, and an order directing the Tribunal to exercise jurisdiction in respect of PEA's application. Shortly prior to the proceedings being heard, PEA amended the proceedings to seek declaratory relief relating to the validity of the decision made by the Shire on 20 June 2013.
[18] 28 days in accordance with s 105 of the SAT Act.
[19] Rules of the Supreme Court 1971 (WA), O 56 r 1 & r 2.
PEA made no application for an order that the proceedings be heard expeditiously. If any such application had been made, PEA would have had to confront the difficulty created by the failure to commence the proceedings until the last day of the relevant limitation period. No evidence has been adduced to explain PEA's failure to take action earlier, or to exercise its right to apply for leave to appeal from the decision of the Tribunal. However, at first instance and on appeal, it was submitted that it was appropriate to seek judicial review of the Tribunal's decision and the Shire's decisions simultaneously, rather than appeal from the Tribunal's decision. I will return to that proposition later.
Ultimately, the proceedings were prepared for hearing and heard on 21 March 2014. The trial judge published his reasons for dismissing PEA's application on 4 April 2014, approximately seven weeks before the 2014 beach polo event was to be held. This appeal was commenced on 24 April 2014, which was the second‑last business day prior to the expiry of the time specified for the commencement of such an appeal.[20] No application has been made for an expedited hearing of the appeal, or for any interlocutory relief within the appellate proceedings. Since these appeal proceedings were commenced, CBP has conducted beach polo tournaments in each of May 2014 and May 2015 in accordance with permits purportedly granted by the Shire.
[20] Supreme Court (Court of Appeal) Rules 2005 (WA), r 26(2).

The trial judge's reasons for decision

After summarising the proceedings, the trial judge referred to s 19 of the SAT Act. As he observed, that section provides that if proceedings have been commenced in the Tribunal for the review of a reviewable decision, judicial review proceedings cannot subsequently be commenced in relation to that decision (and vice versa). The trial judge noted that PEA accepted 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 decisions could not proceed. I digress to observe that this concession accords with the proper construction and effect of s 19 of the SAT Act, to which I will return. The trial judge also noted that the Shire and CBP accepted the converse proposition - that is, if PEA's challenge to the Tribunal's refusal to exercise jurisdiction failed, s 19 of the SAT Act provided no impediment to PEA's application for judicial review of the Shire's decisions.
As the trial judge noted, this meant that it was preferable to deal first with PEA's challenge to the Tribunal's decision to refuse to exercise jurisdiction, as the resolution of that issue affected PEA's capacity to claim the alternative relief which it sought against the Shire. As will appear, PEA's appropriate concession[21] that s 19 of the SAT Act precludes its claim for judicial review of the Shire's decision in the event that the Tribunal had jurisdiction to review that decision is significant to the disposition of this appeal.
[21] From which it has never resiled.
On the subject of the Tribunal's jurisdiction, PEA argued that it was an 'affected person' in relation to the decision taken by the Shire on 20 June 2013 because the refusal of the application for a permit which it had lodged on 18 June 2013 was the necessary and inevitable consequence of that decision. The trial judge rejected that submission for the following reasons:[22]
The difficulty with the applicant's contention is that no application by PEA was before Council on 20 June 2013. The Council simply considered the application by CBP which was before it, and which had been assessed by officers of the Shire and was the subject of the officers' report. The decision which it made was a decision to grant CBP an authorisation. It was not a decision not to grant an authorisation to PEA, even though the practical effect of a grant of a permit to CBP was, as it is acknowledged by all parties, that any application by PEA, or anybody else for that matter, to conduct an event on the same day at the same place could not sensibly be granted.
It is inherent in any decision by the Shire to grant a permit to a person under the [local law] to use or hire property or land, that the property or land will not be available for use or hire on the same date by any other person who might subsequently apply for a permit. That consequence does not give rise to the conclusion that, in granting the permit to the first applicant, the Shire is making a decision that it will not grant a permit for the same property on the same date to anyone else who had applied or might apply for a permit. The Council simply directs its mind to the application before it to determine whether it will grant a permit to the person whose application is before it.
The position is quite different from the situation in Polo No 1. In that case, the Council chose, as a matter of procedure, to consider together two competing applications, and to make a decision in favour of one or other of the applicants. The Council had before it both applications. That was not the situation on 20 June 2013.
[22] Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120 [50] ‑ [52].

Having rejected PEA's challenge to the Tribunal's refusal to exercise jurisdiction, the trial judge went on to consider PEA's application for judicial review of the Shire's decision on 20 June 2013. Three grounds had been advanced in support of that application - namely, an assertion that the Shire had made an error of law by identifying a wrong issue or asking itself a wrong question; second, that the Shire had breached a duty to take into account the most recent material information being, in particular, the application by PEA; and thirdly, an assertion that the Shire had denied PEA procedural fairness. The trial judge rejected each of these assertions, essentially on the basis that the Shire was under no obligation to consider PEA's application at the time it considered CBP's applications.
The trial judge noted that the first and third respondents had submitted that the court should refuse relief in the exercise of its discretion, even if a ground of review was made out. In that context he observed:[23]
There are strong arguments as to why relief might have been refused in circumstances where the application was made on the last day of the six months within which prerogative relief can be sought, preparatory work has occurred in that period, significant financial commitments have been put in place, contracts for various services have been let, and preparatory steps must inevitably have continued during the period leading up to the hearing of the application.
[23] Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120 [83].
However, having concluded that no ground for relief had been made out, the trial judge considered it unnecessary to rule upon the question of whether relief would in any event have been refused in the exercise of discretion.

Did the Tribunal have jurisdiction?

It is convenient to follow the same course as that taken by the trial judge and to first consider whether the Tribunal had jurisdiction to review the Shire's decision of 20 June 2013 on PEA's application.

Does the local law confer jurisdiction on the Tribunal?

It is appropriate to commence consideration of that issue by first considering a contention advanced by CBP in response to PEA's appeal, and which was not put before the trial judge. That contention is to the effect that the Tribunal had no jurisdiction to review decisions made by the Shire under the local law because the local law did not satisfy the requirements of s 9.1(3) of the Act, and in particular, did not specify the person who 'is an affected person for the purposes of [div 1 of pt 9 of the Act]'. The same issue arises under s 9.2 of the Act which defines 'authorisation' for the purposes of s 9.1 of the Act to mean a licence, permit, approval or other means of authorising a person to do anything other than one that has been excluded by regulations from being an authorisation for the purposes of that definition. Regulation 32A of the Local Government (Functions in General) Regulations 1996 (WA) (Regulations) provides that an authority allowing the use of local government land or premises is excluded from the definition of authorisation in s 9.2 of the Act unless:[24]
A local law, or regulation that is to operate as if it were a local law, states that a decision in relation to that authority is one to which [Division 1 of Part 9] of the Act applies and that a person specified in it is an affected person for the purposes of that Division.
[24] Local Government (Functions in General) Regulations 1996 (WA), reg 32A(2)(a).
CBP submits that in order to satisfy each of s 9.1(3) of the Act and reg 32A(2)(a) of the Regulations, it is necessary for the local law to specify, within its terms, the persons who are to be an 'affected person' for the purposes of div 1 of pt 9 of the Act, and in this case the local law does not fulfil that requirement.
As I have noted, this proposition was not put to the trial judge. However, as the proposition is purely one of statutory construction, no evidence is relevant to its determination, and no party suggests that it suffers any prejudice if the issue is resolved by this court despite the issue not having been raised at first instance. Accordingly, there is no impediment to the issue now being determined.
CBP's contention must be rejected. As I have noted, cl 16.1 of the local law provides that when the Shire makes a decision as to whether it will grant, renew, vary or cancel a permit 'the provisions of Division 1 of Part 9 of the Act' apply to that decision. That provision manifests a clear and unequivocal intention to confer upon persons affected by decisions made under the local law the rights of objection and review conferred by div 1 of pt 9 of the Act, including the right to apply for review by the Tribunal. Further, the terms of div 1 of pt 9 of the Act, including s 9.1, clearly manifest a legislative intention to confer the rights of objection and review specified in that Division upon persons affected by decisions made under local laws which state that decisions made under the local law are to be decisions to which that Division of the Act applies. Each of the legislative intentions evident in cl 16.1 of the local law and s 9.1 of the Act would be defeated if the strictly literal construction of those provisions for which CBP contends were to be accepted, contrary to established principles of statutory construction.

The purpose of construing the text of a written law is to ascertain the intention of the entity enacting that law.[25] As the majority observed in Project Blue Sky Inc v Australian Broadcasting Authority:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[26]
[25] See, eg, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [41] (Brennan CJ).
[26] Project Blue Sky Inc [78] (McHugh, Gummow, Kirby & Hayne JJ) - see also Lacey v Attorney General(Qld)[2011] HCA 10; (2011) 242 CLR 573.
Further, the same judges observed:
[A] court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.[27] (footnotes omitted)
[27] Project Blue Sky Inc [71].
The intention to be attributed to the author of a written law is not the attribution of a collective mental state. Rather, legislative intention is ascertained by the application of the rules of construction known to legislative drafters and the courts.[28] Consistently with those rules of construction, primary attention is given to the natural and ordinary meaning of the words used in the relevant provision, construed in the context of the written law as a whole.
[28] Lacey v Attorney General (Qld) [43].
The natural and ordinary meaning of the words used in par 9.1 of the Act, construed in the context of the Act as a whole, and of the words used in reg 32A of the Regulations, construed in the same context, reveals an intention common to the authors of both written laws. That intention is that the provisions of div 1 of pt 9 of the Act relating to objection to and review of decisions made by local governments are to apply to decisions made under local laws if the local law states that div 1 of pt 9 of the Act applies to such decisions and that a person specified in the local law is an affected person for the purposes of the operation of that division of the Act.
The natural and ordinary meaning of the words used in cl 16.1 of the local law clearly and unequivocally manifests the intention of the Shire, as the maker of the written law, to the effect that the provisions of div 1 of pt 9 of the Act relating to objection and review are to apply to decisions made by the Shire under that local law. Consistently with the principles to which I have referred, it is the duty of the court to give the words used in cl 16.1 a construction which is consistent with that intention. Further, unless the words used in cl 16.1 are given such a construction, the entire clause would be rendered 'superfluous' and 'void'.[29]
[29] Using the language cited with approval by the majority in Project Blue Sky Inc.
Clause 16.1 expressly refers to decisions made under the local law with respect to 'a person' being decisions to either grant such 'a person' a permit or consent, or to renew, vary or cancel a permit or consent that such 'a person' has been given under the local law. Effect can be given to the intention which is clearly manifest in the words used in the clause by construing the clause as specifying such a person as 'an affected person' for the purposes of div 1 of pt 9 of the Act. Such a construction of cl 16.1 is consistent with the context in which the clause must be construed, which includes not only the whole of the written law but also div 1 of pt 9 of the Act and reg 32A of the Regulations. It is a construction which is reinforced by the application of all of the provisions of div 1 of pt 9 of the Act to decisions made under the local law, including the provisions of that division which manifest an intention that, at least in respect of decisions made by a local government under pt 3 of the Act, the only persons who are 'an affected person' are the persons referred to in s 9.1(1), who are the persons to whom an authorisation might or does apply, being the persons referred to in substantively the same terms as the persons identified in cl 16.1 of the local law.
Such a construction of cl 16.1 of the local law is also consistent with the natural and ordinary meaning of the language used in that clause, and the intention manifest in its terms, and avoids the clause being otiose in the sense that it would serve no purpose if construed as CBP contend. Further, a construction of s 9.1(3) of the Act and reg 32A(2)(a) of the Regulations to the effect that cl 16.1 of the local law falls within each of those provisions is consistent with the natural and ordinary meaning of the language used in those provisions. Such a construction of those provisions of the Act and Regulations is also consistent with s 1.3(2) of the Act which provides that the Act is intended to result in, amongst other things, greater accountability of local governments and more efficient and effective local government. Section 18 of the Interpretation Act 1984 (WA) requires this court to construe each of the Act, the Regulations and the local law in a manner which promotes the underlying purposes or objects of those written laws, whether or not those purposes or objects are expressed in the written law. The construction of s 9.1(3) of the Act, reg 32A(2)(a) of the Regulations and cl 16.1 of the local law which I have set out above promotes the purposes and objects of the Act. The construction for which CBP contends would significantly detract from those purposes or objects and have the consequence that decisions under the local law would not be reviewable by the Tribunal, despite the evident intention of the Shire that such decisions should be reviewable and which is manifest in the clear and unequivocal language of cl 16.1 of the local law.
It follows that the Tribunal has jurisdiction to review decisions made by the Shire under the local law if an application for review is made by a person in respect of whom the Shire has made a decision as to whether it will grant, renew, vary or cancel a permit under the local law. The question which must now be addressed is whether PEA was such a person in respect of the Shire's decision of 20 June 2013. That question turns upon whether the Shire refused PEA's application for a permit by its decision to grant CBP's application for a permit to conduct an event at precisely the same time and place in respect of which PEA sought a permit. For reasons which will appear, that question is critical not only to the issue of the Tribunal's jurisdiction, but also to PEA's application for judicial review of the Shire's decision on 20 June 2013.

Did the Shire refuse PEA's application for a permit on 20 June 2013?

The decision-maker was the Shire

In addressing this central question, the distinction between the entity which makes decisions as to whether or not permits will be granted under the local law, and the internal governance arrangements for the making of those decisions, is of vital significance. Under the local law, applications for permits must be made to the Shire by being provided to the CEO.[30] Decisions on any application for a permit under the local law are to be made by the Shire.[31] The local law is silent on the question of whether those decisions are to be made by the council or by the CEO pursuant to powers which may be (and it seems which have been, at least in some respects) delegated to the CEO pursuant to s 5.42 of the Act.
[30] Clause 3.2(2)(d) of the local law.
[31] Clause 3.3 of the local law.
In this respect, the local law is entirely consistent with the structure of the Act, under which a single body corporate is created to undertake the responsibilities of local government in respect of each district created under the Act. The Act makes provision for the manner in which the affairs of the bodies corporate created by the Act are to be conducted, and in that context makes express provision for governance by an elected body of representatives and administration by an employed executive known as the CEO. Within their relative spheres of responsibility and authority, the council and the CEO make decisions and perform actions for and on behalf of the Shire in much the same way as the board and executive officers of a company make decisions and perform actions for and on behalf of that company.

The knowledge of the Shire

These proceedings have been conducted at both first instance and on appeal on the assumption that PEA's application for a permit to conduct a beach polo tournament in May 2014 was lodged in accordance with the requirements of the local law on 18 June 2013. That assumption is consistent with the evidence which is to the effect that PEA's application was lodged at the offices of the Shire on 18 June 2013. It was reasonable for PEA to assume that the application which it lodged at the Shire's offices would be provided to the CEO in accordance with the scheme of the local law.[32] There is no evidence as to whether the officers of the Shire who received PEA's application drew it to the attention of the CEO. In accordance with cl 3.2 of the local law, those officers had a duty to do so. PEA was entitled to assume that those officers who had received the application had performed their duty and there is no evidence before the court to suggest that they did not. In circumstances in which PEA had done all that could be reasonably expected to lodge its application with the Shire, and there is no reason to suppose that the officers to whom the application was presented did not perform their duty to bring the application to the attention of the CEO, there is every reason to conclude that the Shire should be taken to have had knowledge of PEA's application. That conclusion can be drawn in accordance with the principle that the knowledge of an agent may be imputed to a principal in cases in which there is a duty upon the agent to convey that knowledge to the principal.[33] Further, as the local law expressly provided that applications for permits were to be provided to the CEO and PEA did all that could be reasonably expected to provide its application to the CEO, it may be concluded that the Shire was fixed with knowledge of PEA's application once PEA had done all that was required by the Shire under the provisions of the local law.[34]
[32] Clause 3.2(2)(d) of the local law.
[33] Sargent v ASL Developments Ltd (1974) 131 CLR 634, 649 (Stephen J), 658 - 659 (Mason J); Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405 [62] (Malcolm CJ, Kennedy & Murray JJ agreeing).
[34] See Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 582 - 583 (Brennan, Deane, Gaudron & McHugh JJ); The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 [6156] (Owen J) and the substantial discussion of whether the knowledge of employees could be attributed to corporate entities.
It seems clear that officers of the Shire failed to notify the council of the receipt of PEA's application prior to the council meeting on 20 June 2013 at which it was resolved to approve CBP's applications for permits. However, in circumstances in which the Shire, through its agents and employees, had knowledge of PEA's application, the failure of the Shire to communicate that knowledge to all those within the Shire who needed to be made aware of it cannot relieve the Shire of the responsibilities which flow from the lodgement of PEA's application in accordance with the provisions of the local law. As the majority observed in Krakowski v Eurolynx Properties Ltd:[35]
A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
Were it otherwise, local governments such as the Shire could rely upon their own maladministration for the purpose of defeating the rights of those with whom the local government deals. Such an outcome could result from the failure of systems and processes which ensure that the internal organs of the local government responsible for making decisions on its behalf are provided with all information within the possession of the local government necessary to adequately perform their relevant functions.
[35] Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 583 (Brennan, Deane, Gaudron & McHugh JJ).
For these reasons, on 20 June 2013 when the Shire decided to grant CBP's applications for permits, the Shire should be taken to have had knowledge of PEA's application for a permit to conduct a beach polo tournament at the same time and place as CBP proposed to conduct one of its tournaments. The fact that the organ of the Shire responsible for that decision - namely, its council - was not made aware of the application cannot be relied upon by the Shire to diminish its obligations or to defeat PEA's ability to exercise the rights conferred by div 1 of pt 9 of the Act. With respect, both the Tribunal and the judge at first instance were wrong to focus upon the subjective knowledge of the councillors at the time of their meeting on 20 June 2013, as the knowledge which was relevant was the knowledge of the Shire, being the corporate entity which made the decision on that date.

The jurisdiction of the Tribunal depends upon the effect of the decision, not the mental processes undertaken by the decision-maker

But in any event, both the Tribunal and the judge at first instance were wrong to conclude that the subjective processes of reasoning actually engaged by the councillors of the Shire on 20 June 2013 when they resolved to approve CBP's applications determined whether or not PEA was an 'affected person' within the meaning of div 1 of pt 9 of the Act. For the reasons which follow, the question of whether PEA was an 'affected person' in relation to a decision is to be determined by reference to the substantive effect of the Shire's decision upon PEA's application for a permit rather than by reference to the process of reasoning undertaken to arrive at the relevant decision.

With respect to those who have taken a contrary view, the proper application of div 1 of pt 9 of the Act to the particular circumstances of this case is relatively straightforward. At the time the Shire made its decision on 20 June 2013, there were a number of applications for permits under the local law which had been presented to the Shire, in accordance with the requirements of the local law. CBP's application for a permit to conduct a beach polo tournament in May 2014 was in direct and inexorable conflict with PEA's application to conduct a similar event at the same time and place. This is not a case in which one decision of an administrative body might have a collateral or tangential effect upon another application pending before that body. Rather, this is a case in which it was impossible for the Shire to grant both applications which had been made. In that circumstance, the Shire's decision to grant CBP a permit to conduct a beach polo tournament at the same place and at the same time in May 2014 as proposed by PEA in its application for a permit necessarily involved a decision as to whether it would grant PEA's application. That inevitable fact was recognised by the Shire on 19 September 2013 when it resolved that it could not grant PEA's application for a permit because it had previously granted CBP a permit to conduct a tournament at the same time and place as PEA's proposed tournament. Put another way, for the purposes of div 1 of pt 9 of the Act, whether a person is taken to be 'affected' by a decision is to be determined by the effect which the decision has upon that person's application for an authorisation rather than by reference to the subjective state of mind of the decision‑maker. That proposition follows from the natural and ordinary meaning of the word 'affected'.
This approach to the proper construction of div 1 of pt 9 of the Act is reinforced by the legislative purpose evident in its terms. That purpose is to provide persons who are 'affected'[36] by decisions falling within the scope of the Division to exercise the rights of objection and review conferred by the Division. It is entirely consistent with that evident purpose to construe the legislation as requiring a focus upon the effect which the decision has upon the person who asserts that they have been denied an authorisation for which they have applied, and, with respect, subversive of that purpose to construe the provisions as requiring attention to be focused upon the subjective state of mind of the decision‑maker.
[36] In the sense in which that term is defined in s 9.2 of the Act.
This approach to the proper construction of div 1 of pt 9 of the Act is further reinforced by the observation that the construction which each of the Tribunal and the judge at first instance in effect placed upon those provisions would substantially diminish the achievement of the evident legislative purpose of conferring rights of objection and review upon a person affected by a decision to refuse to grant that person an authorisation, or to refuse to renew, or to vary or cancel, an authorisation given to that person. The circumstances of this case illustrate the adverse effect which such a construction would have upon the conferral and utilisation of the rights of objection and review conferred by div 1 of pt 9 of the Act.
In this case, the Shire received two applications for a permit to conduct polo tournaments at the same time and at the same place in May 2014. It was physically impossible for both tournaments to be conducted at the same place and at the same time. It follows that the Shire could only grant one of the permits sought. It also follows that after one permit had been granted, it was not possible for the Shire to grant the other.
If the Tribunal and the judge at first instance were right to construe the provisions of div 1 of pt 9 of the Act conferring jurisdiction upon the Tribunal by reference to the subjective processes of consideration undertaken by the Shire, it would be open to the Shire to effectively exclude the jurisdiction of the Tribunal to review its decisions by the simple expedient of considering two applications sequentially rather than simultaneously. On the construction of the Act adopted by the Tribunal and the judge at first instance, if the first application considered was granted, the Tribunal would have no jurisdiction to review that decision upon the request of the party whose application has not been considered by the Shire. When that party's application is considered and refused by the Shire, although there would be a theoretical right for that party to seek review of that decision by the Tribunal, that right would be devoid of any practical content because it would be impossible for either the Shire or the Tribunal to grant the permit for which that party applied, because a permit has been granted to the other applicant and the Tribunal has no jurisdiction to review that grant.
The same practical denial of the rights of objection and review conferred by div 1 of pt 9 of the Act would follow even if the Shire decides to refuse the first application which it considers. Although the Tribunal would have jurisdiction to review that decision, on the construction of the Act adopted by the Tribunal and the judge at first instance, if the second application has been considered by the Shire and granted before that review is heard and determined,[37] the Tribunal would have no jurisdiction to review and set aside that second decision upon the request of the first applicant whose permit has been refused and therefore no practical capacity to grant a permit to that applicant in the exercise of its jurisdiction.
[37] Determination of the second application by the Shire prior to the determination of any review by the Tribunal seems inherently likely.
A construction of div 1 of pt 9 of the Act which would thwart its evident purpose of conferring a right of objection and review upon a person whose application for an authorisation is refused by a local government should only be adopted if compelled by the clear and unequivocal language of the statute.[38] With respect to those who took a contrary view, there is nothing in the language of div 1 of pt 9 of the Act which would suggest that the jurisdiction of the Tribunal depends upon the subjective processes of reasoning and analysis undertaken by the decision‑making entity. To the contrary, the natural and ordinary meaning of the language used reinforces the view that the jurisdiction of the Tribunal is to be assessed by reference to the effect, objectively assessed, which the decision had upon the applicant for review.
[38] Macalister v The Queen (1990) 169 CLR 324, 330 (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ), quoting Luke v Inland Revenue Commissioners [1963] AC 557, 577 (Lord Reid); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113 (McHugh J), citing IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J).
Pursuant to the terms of the Division, the jurisdiction of the Tribunal can only be invoked by an 'affected person'.[39] In respect of decisions made under the Act itself, a person will only fall within that expression and have the capacity to invoke the jurisdiction of the Tribunal if they are the person in respect of whom a decision has been made as to whether or not an authorisation will be granted or refused, or is the person in respect of whom a decision has been made in relation to the renewal, variation or cancellation of an authorisation issued to that person. Although it is possible that local laws might define the ambit of 'affected persons' in different terms, at least in this case, the local law, properly construed, has adopted the same approach to the class of persons able to invoke the jurisdiction conferred upon the Tribunal as is contained within the Act. As that class is defined by reference to the question of whether a decision has been made as to whether a permit would be granted to a person, or a permit already granted to a person renewed, varied or cancelled, the ambit of decisions falling within the jurisdiction of the Tribunal is to be determined by reference to the objective effect which the decision had upon the permit for which the applicant for review had applied or had previously been granted, consistently with the terminology used by the legislature in the critical expression 'affected person'.

Mental engagement by the decision‑maker

[39] Section 9.7 of the Act.

Each of the Shire and CBP submitted that the word 'decision' in div 1 of pt 9 of the Act should be construed as applying only to the outcome of a process of mental engagement by the decision‑maker with the subject matter of the decision. So, in their submission, a decision which had the effect of refusing an authorisation was not a 'decision' within the meaning of that term in div 1 of pt 9 of the Act unless the decision‑maker had turned his, her or its mind to the question of whether the authorisation should be refused. In their submission, this construction should be adopted even in cases in which the decision‑maker was aware that an application for a directly conflicting authorisation had been lodged and the inevitable consequence of the grant of one application would be the refusal of the other. CBP accepted that no distinction could properly be drawn between the knowledge of the councillors and the knowledge of the employees of the Shire,[40] and thereby implicitly accepts that the relevant decision‑maker, namely the Shire, should be taken to have knowledge of PEA's application at the time it decided to grant CBP's application on 20 June 2013. By contrast, the Shire initially submitted that it was significant that the decision‑maker, being the council, was unaware of PEA's application at the time of the decision. However, following an interchange between bench and bar, it was ultimately submitted that the issue of knowledge was 'a distraction'[41] and that even if the decision‑maker was aware of a conflicting application, on a proper construction of the Act, there was only a 'decision' on that conflicting application if the decision‑maker consciously turned his, her or its mind to that application. For the reasons I have given above, CBP's position and the position ultimately adopted by the Shire properly reflect the fact that the decision‑maker was the Shire (albeit that the decision was in fact made by the governing body of the Shire - its council), and the Shire must be taken to have had knowledge of PEA's application at the time the decision was made.
[40] Appeal ts 79.
[41] Appeal ts 59.
The Shire submitted that there is 'a world of difference' between, on the one hand, making a decision with respect to one application which has the practical consequence that the approval of another application pending before the decision‑maker is precluded, and on the other hand the decision‑maker actually turning its mind to a full contemporaneous consideration of each of two competing applications and selecting between them.[42] In support of that submission, the Shire relies upon the decision of the full Federal Court in Semunigus v Minister for Immigration and Multicultural Affairs.[43] In assessing the passages in that decision upon which the Shire relies, it is important to note that the issue which had to be determined by the court was whether the Refugee Review Tribunal (RRT) had exceeded its jurisdiction because it was functus officio at the time further material was presented to the RRT. So, the question was whether, in the circumstances of that case, the RRT's actions had the degree of finality and formality required to exhaust its jurisdiction. In that context, all members of the court agreed with the observation of the trial judge, Finn J, in which he observed:[44]
For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such a character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision‑maker at his or her option before the decision is to be regarded as final.
[42] AB 31.
[43] Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533.
[44] Semunigus [11] (Spender J), [55] (Higgins J), [101] (Madgwick J).
Essentially the question before the court was whether the processes of the RRT had passed beyond the point at which it was possible to recall the orders which had purportedly been made. That question was posed in the context of the particular factual circumstances in which a member of the RRT had turned his mind to the issues in the case and taken certain steps which were said to have rendered the RRT functus officio. Viewed in that context, it would not be appropriate to construe the passage to which I have referred as asserting that in every case and in every context there cannot be a 'decision' unless there has been a process of mental engagement by the decision‑maker. As all members of the full Federal Court observed more recently in Minister for Immigration and Citizenship v SZQOY,[45] Semunigus was primarily concerned with the question of the point at which a decision‑maker should be taken to have put the decision beyond his or her recall, which focused attention upon the quality of finality in relation to what had occurred. Perhaps even more significantly, in subsequent decisions of the Federal Court to which I will shortly refer, the decision in Semunigus has not been considered to preclude the conclusion that a decision‑maker has made a decision implicitly, by his or her conduct, without necessarily undertaking any process of mental engagement.
[45] Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 [29] (Buchanan J), [34] (Logan J), [50] ‑ [54] (Barker J).
The Shire also relies upon the decision of the High Court in Australian Broadcasting Tribunal v Bond.[46] That case was concerned with the meaning to be given to the word 'decision' in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). In particular, the question addressed by the court was whether, for the purposes of that Act, the word 'decision' should be construed as including findings made along the path to the determination of the substantive issue before the decision‑maker, or as only meaning a determination effectively resolving that substantive issue. In that context, Mason CJ observed that the word 'decision' has a variety of potential meanings, referring to a number of synonyms for the word, including 'ruling', 'adjudication' and 'determination'.[47] The Shire submits that those synonyms import the notion of mental engagement in the preceding process. I do not agree. To the contrary, those synonyms, and the observations of Mason CJ generally, suggest that a 'decision' must have the quality of resolving a contentious issue, which in the context of the ADJR Act had to be the substantive or ultimate issue.[48] Consistently with the view which I take of the meaning properly given to the word 'decision' in the context of div 1 of pt 9 of the Act, the focus of the observations made by Mason CJ is upon the effect or consequences of the action which is said to constitute the decision, rather than the subjective mental processes which preceded those actions.
[46] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[47] Bond, 335 (Mason CJ, Brennan, Deane, Gaudron & Toohey JJ agreeing). See also Director-General of Social Services v Chaney (1980) 47 FLR 80, 100 (Deane J).
[48] Subject to the qualification enunciated by Mason CJ with respect to intermediate decisions: see Bond, 337.
There are two decisions of the Federal Court to the effect that an administrative tribunal has jurisdiction to review a decision made implicitly, rather than explicitly. Those decisions are fundamentally inconsistent with the proposition that a process of mental engagement by the decision‑maker is a necessary condition of a 'decision'.
In Irwin v Military Rehabilitation and Compensation Commission,[49] a discharged soldier made a claim for compensation pursuant to the provisions of the Military Rehabilitation and Compensation Act 2004 (Cth) as a result of a back injury allegedly sustained while unloading trucks in the course of his duty. The claim requested the Military Rehabilitation and Compensation Commission (Commission) to accept liability for the back injury and to assess his entitlement to compensation. The Commission rejected the claim that it accept liability on the basis that there was no 'service injury' within the meaning of the relevant legislation. That decision was affirmed following an internal review. The applicant for compensation sought review by the Administrative Appeals Tribunal (AAT). The AAT considered, as a preliminary issue, whether it would have jurisdiction to assess compensation if it determined that the Commission should have accepted liability to compensate the retired soldier for his injury. The AAT concluded that it did not have that jurisdiction because the Commission had not, itself, assessed the quantum of compensation payable in the event that liability was established. In a unanimous joint decision, the Full Court of the Federal Court overturned that determination and ruled that the AAT would have jurisdiction to assess the quantum of compensation payable if it determined that the Commission was liable.
[49] Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574.
The court considered that the Military Rehabilitation and Compensation Act clearly contemplates that a claim could be made simultaneously for an acceptance of liability and for the payment of compensation. Mr Irwin had made such a claim. The Commission rejected the liability claim. The court observed:[50]
This did not mean that the compensation determination could not have been made contemporaneously had the Commission made a positive finding on the liability issue … It can, therefore, be said that the rejection determination involved both an explicit rejection of the liability claim and an implicit rejection of the compensation claim. This conjoint determination was reviewable. (Emphasis in original)
[50] Irwin [26].
The court distinguished the earlier decision in Lees v Comcare[51] on the ground that in that case, the applicant had only applied for a determination with respect to liability, and had not sought an assessment of compensation.
[51] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.
This process of reasoning can be applied, by direct analogy, to the circumstances of this case. The Shire received two applications for permits to conduct beach polo tournaments at the same time and the same place in 2014. The grant of either application necessarily meant the rejection of the other. The Shire could have considered the applications simultaneously, as it had previously. It did not do so. By granting CBP's application, the Shire implicitly refused PEA's application. It was not necessary for the decision‑making organ within the Shire (the council) to have mentally engaged with PEA's application for its decision to grant CBP's application to have had that effect. Of course, this process of reasoning depends upon the Shire having received two applications in circumstances in which the grant of one necessarily led to the refusal of the other.[52]
[52] Cf Lees.
The decision in Irwin has been applied in Telstra Corporation Ltd v Kotevski.[53] That case concerned a claim by a former employee of Telstra for compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The employee claimed that Telstra was liable pursuant to s 14 of the SRC Act, and claimed compensation pursuant to the provisions of s 16, s 24 and s 27 of the SRC Act. Telstra accepted liability to compensate the employee, and assessed compensation under s 24 and s 27 of the SRC Act. In the notices given to the employee with respect to the assessment of compensation both at first instance and following internal review, no reference was made to compensation pursuant to s 16 of the SRC Act. The employee sought review of Telstra's decision by the AAT. Telstra contended that the AAT had no jurisdiction to review the employee's claim for compensation under s 16 of the SRC Act because there had been no 'decision' in respect of that aspect of the claim. It relied upon the decision in Semunigus for the proposition that the word 'decision' in the Administrative Appeals Tribunal Act 1975 (Cth) should be construed as requiring a determination following a process of mental engagement.
[53] Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558.

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.[85] It is significant that those decisions preceded the decision of the High Court in Burrell, in which the plurality observed:[86]
[85] 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).
[86] Burrell [26] (Gummow ACJ, Hayne, Heydon, Crennan & Kiefel JJ).
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 Pantorno or Postiglione about these matters. Neither case decided that the general rule in Grierson should 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 Grierson and DJL make abundantly plain, it is there that the source of any such exception must be found.
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.[87]
[87] Achurch [14] (French CJ, Crennan, Kiefel & Bell JJ).
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.
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.
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.
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

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.
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.
In any event, as will be seen, there are many other reasons for dismissing those grounds.

Section 9.9 of the LG Act

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.
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.
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:[88]
[88] Appeal ts 18.
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.
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:[89]
[89] Appeal ts 102.
[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.
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.
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.[90] 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'[91] 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.
[90] Appeal ts 125.
[91] Appeal ts 129.
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.
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.
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

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.
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.
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.[92] 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 Wales[93] arose in the circumstances of the case.[94]
[92] Polo [44], [129] ‑ [130].
[93] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
[94] Polo [130]; trial ts 3 ‑ 4.
The written submissions filed and served in support of the appeal expressly adopt precisely the same position.[95] 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:[96]
[95] Appellant's submissions [6].
[96] Appeal ts 22.
Section 19 sets out various alternatives that will not bother your Honours.
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.
In written submissions[97] and oral argument in support of the application, it was submitted that the appellant's forensic strategy was part of an 'arrangement'[98] 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.
[97] Appellant's submissions on the application [34].
[98] Appeal ts 133.
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.
Turning now to the second aspect of this ground, in the written submissions[99] 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.
[99] But not the oral argument.
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.
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.
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.[100]
[100] Polo [105] - [106].
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 Ltd[101] (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.
[101] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [138] - [139] (Martin CJ, Wheeler JA agreeing).

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.
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:[102]
[102] Polo Enterprises Australia Pty Ltd v Shire of Broome [2014] WASC 120 [83].
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.
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

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.
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:[103]
[103] Polo [135].
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 Aala[104] 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 Green[105] 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.
[104] Re 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).
[105] R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 194.

Conclusion in relation to the application to set aside the order dismissing the appeal

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

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.[106] The appellant also submits, correctly, that the application of the general rule requires the identification of a successful party, and that the court should:[107]
[106] Rules of the Supreme Court 1971 (WA), O 66 r 1(1); appellant's submissions on the application [64].
[107] 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).
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.
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.
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

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.
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.
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

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?

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.[108] 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.
[108] Presumably relying upon R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35 ‑ 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).

A single set of costs?

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

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

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.