Polo Enterprises Australia Pty Ltd v Shire of Broome
[2014] WASC 120
•4 APRIL 2014
POLO ENTERPRISES AUSTRALIA PTY LTD -v- SHIRE OF BROOME [2014] WASC 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 120 | |
| Case No: | CIV:2914/2013 | 21 MARCH 2014 | |
| Coram: | CHANEY J | 4/04/14 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | POLO ENTERPRISES AUSTRALIA PTY LTD SHIRE OF BROOME STATE ADMINISTRATIVE TRIBUNAL CABLE BEACH POLO PTY LTD |
Catchwords: | Administrative Law Certiorari Mandamus Decision of local government to grant permit for polo event Whether another applicant for permit to same event is 'person affected' for purpose of review Whether council asked itself the wrong question Whether failure to have regard to most recent material Whether Council required to give notice of intended procedure Words and phrases 'affected person' |
Legislation: | Local Government Act 1995 (WA) Local Government (Functions and General) Regulations 1996 (WA) Shire of Broome Local Government and Public Places Local Law 2012 |
Case References: | Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v NZYTS [2013] FCAFC 114 Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319 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 Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 SZJTQ v Minister for Immigration [2008] FCA 1938; (2008) 172 FCR 563 Woolworths Ltd v Directors of Liquor Licensing [2013] WASCA 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
SHIRE OF BROOME
First Respondent
STATE ADMINISTRATIVE TRIBUNAL
Second Respondent
CABLE BEACH POLO PTY LTD
Third Respondent
Catchwords:
Administrative Law - Certiorari - Mandamus - Decision of local government to grant permit for polo event - Whether another applicant for permit to same event is 'person affected' for purpose of review - Whether council asked itself the wrong question - Whether failure to have regard to most recent material - Whether Council required to give notice of intended procedure
Words and phrases - 'affected person'
Legislation:
Local Government Act 1995 (WA)
Local Government (Functions and General) Regulations 1996 (WA)
Shire of Broome Local Government and Public Places Local Law 2012
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr J King
First Respondent : Mr P Wittkuhn
Second Respondent : No appearance
Third Respondent : Mr M Cuerden
Solicitors:
Applicant : Clear Lawyers
First Respondent : McLeods Barristers & Solicitors
Second Respondent : No appearance
Third Respondent : Allen & Overy
Cases referred to in judgment:
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v NZYTS [2013] FCAFC 114
Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319
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
Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
SZJTQ v Minister for Immigration [2008] FCA 1938; (2008) 172 FCR 563
Woolworths Ltd v Directors of Liquor Licensing [2013] WASCA 227
1 CHANEY J: This action for prerogative and declaratory relief centres on a decision taken by the first respondent, the Shire of Broome, on 20 June 2013 to grant to the third respondent, Cable Beach Polo Pty Ltd (CBP), a permit to conduct a beach polo event from 23 to 26 May 2014, and then annually thereafter for the following three years to 2017.
2 On 18 June 2013, the applicant, Polo Enterprises Australia Pty Ltd (PEA), lodged an application to stage a beach polo event on the same date in 2014 with the Shire. PEA had foreshadowed making that application on 22 May 2013. The practical effect of the approval of CBP's application, at least for 2014, was that PEA's application could not have been granted, since it sought to conduct a polo event on the same day and at the same place as the CBP application.
3 On 19 September 2013, the Council of the Shire refused PEA's application.
4 In the meantime, on 30 July 2013, PEA lodged an application for review in the State Administrative Tribunal (SAT) of the Shire's decision to approve CBP's application. The Tribunal determined that PEA did not have standing to seek a review of the 20 June 2013 decision and that therefore SAT lacked jurisdiction to deal with the application for review. It was accordingly dismissed.
5 PEA did not seek leave to appeal against SAT's decision as it could have done pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Rather, on 20 December 2013, it brought this action seeking prerogative relief by way of a writ of certiorari and a writ of mandamus against SAT or alternatively for writs of certiorari against the Shire.
6 In relation to SAT, PEA contends that it mistakenly denied the existence of jurisdiction in concluding that PEA did not have standing to seek a review of the 20 June 2013 decision.
7 In the alternative, PEA claimed that in passing the resolution on 20 June 2013 in respect of CBP's application, the Shire erred in law in identifying the wrong issue and asking itself the wrong question, failing to make its decision on the basis of the most current material available to it, and in failing to observe the requirements of procedural fairness. At the hearing, PEA was given leave to amend its application to add a prayer for a declaration that the Shire made errors of law, being the errors asserted in support of the application for prerogative relief.
8 In addition to challenging the Shire's decision of 20 June 2013, PEA also challenges a subsequent decision of the Shire made on 19 September 2013 to refuse PEA's application to hold an event on the same day and at the same place as the event proved on CBP's application. Relief is sought in relation to the 19 September 2013 decision on the basis that it was infected with errors of law in that:
(i) Council proceeded on the basis that its resolution of 20 June 2013 was lawful and valid; and
(ii) Council dealt with the matter on the basis that it did not have the power to revoke the resolution passed on 20 June 2013.
Section 19 of the SAT Act
9 Section 19 of the SAT Act provides that a right of review under an enabling Act does not exclude a right to take judicial review proceedings in relation to the decision. It provides, however, that if an application for review by SAT is commenced, judicial review proceedings cannot be commenced in relation to the same decision, and if judicial review proceedings are commenced, then an application for review by the Tribunal cannot subsequently be commenced. PEA accepted that, if it was successful in this action as against SAT, so that the review proceedings before SAT were effectively reinstated, then its application for judicial review of the Shire's decisions in these proceedings could not be dealt with. On the other hand, if the application as against SAT in these proceedings was unsuccessful, on the basis that it rightfully declined jurisdiction, then no valid application will have been made to SAT which would preclude judicial review proceedings in relation to the decisions of the Shire. The respondents accepted that position. It is thus necessary first to consider the application for judicial review of the decision of SAT.
The history of beach polo in Broome
10 Mr John Gazecki is a director of PEA. He deposed three affidavits which were read in this application, subject to objections made by the third respondent to the third of those affidavits, which was sworn on 11 March 2013. I will deal with those objections later in these reasons.
11 Marilynne Paspaley is a director of CBP. She is also the sole director of Pinctada Hotels and Resorts Pty Ltd (PHR) which is a hospitality and hotel operations company which owns and operates, among other hotels, the Pinctada Cable Beach Resort and Spa in Broome.
12 When considering CBP's application on 20 June 2013, the Council of the Shire (Council) had before it a report prepared by its officers and bearing the date 4 June 2013 (officers' report).
13 In the officers' report it is recited that CBP successfully staged the 2013 Cable Beach Polo Event on 18 and 19 May 2013. It recites that, in previous years, PHR, a company in the same corporate group as CBP, worked in conjunction with PEA to achieve similar events on Cable Beach in 2010 and 2011, but the working relationship was disbanded in 2012 resulting in the cancellation of the event of that year.
14 The officers' report also recites that, in respect of the 2013 beach polo event, the Council had engaged in a process of selection between two competing applicants, with the options being to select one proposal and reject the other, or to refuse both applications. It is apparent that approval was given to CBP to conduct the 2013 event, and that that decision was the subject of an application for review to SAT. SAT heard that application by PEA and affirmed the decision to grant the permit to CBP.1 In those proceedings, objection was taken by the Shire and CBP to the standing of PEA to review the decision to grant the licence to CBP. In its reasons for decision on that issue (Polo No 1), the Tribunal noted that 'at all material times the Shire regulated the matter as a choice between competing applicants for the running of a May 2013 beach polo event'2 and that '[t]he context here is between two competing applicants who, in one transaction, secured, in substance, simultaneous decisions of approval given to the second respondent and refusal given to the applicant'.3
CBP's application for 2014 to 2017 beach polo events
15 On 26 April 2013, CBP submitted its application to stage beach polo events on Cable Beach for each year from 2014 to 2017 inclusive. In accordance with the Shire's usual procedures, the officers' report was prepared for submission to the Council at its meeting on 20 June 2013. The officers' report was dated 4 June 2013, but according to Mr Paul Martin, the Deputy Chief Executive Officer of the Shire under whose directorate CBP's application was assessed, 4 June 2013 was the date when writing of the officers' report commenced. He said that finalisation and settling of the officers' report was concluded around, but certainly no later than, mid-morning on 17 June 2013, when it was uploaded on the Shire's website as part of the agenda papers for the upcoming meeting on 20 June 2013. I will return to the content of the officers' report below.
PEA's application for the 2014 polo event
16 On 22 May 2013, Mr Gazecki wrote to the Shire advising that PEA intended to submit an application to stage a beach polo event in 2014. The letter sought the following 'clarification and confirmation':
1. What is the deadline is [sic] for the lodgment [sic] of any beach polo event application in 2014;
2. What assessment criteria council will apply when deciding to approve, or not approve, beach polo event application 2014? In particular:
a. please confirm it will apply the policy known as 'Events Held on Local Government Property and Public Places' adopted on 25 May 2005; or
b. if it will not apply the policy, or apply a combination of the policy and other considerations, please identify in detail each aspect of the policy, and each other consideration, that will be applied, and what weight will be given to each;
3. Please confirm that council will only approve 1 (one) beach polo event in Broome in 2014;
4. Please confirm that in circumstances where 2 (two) or more 2014 beach polo applications are received, Council will:
a. consider each of those applications together, even if they relate to different event dates nd [sic] venues, applying the assessment criteria to all applications objectively, equally, fairly and openly; and
b. select the best applicant based on merit, having regard to the disclosed assessment criteria only.4
18 On 5 June 2013, the Shire replied in the following terms:
I refer to your letter dated 22 May 2013.
Your intention to apply to stage a 2014 event is noted.
Replying to your points employing your numbering:
1. The Shire does not invite applications for beach polo events. Such applications are applied for on an ad hoc basis by private applicants. Particularly in light of the contentious nature of the 2013 process, the Shire's officers decline on this occasion to administratively set any deadline or give any undertakings without Council direction.
2. Officers decline to comment or give any undertakings or assurances concerning the assessment criteria to be applied. The range of considerations to which the Shire might have regard to in determining any application, may depend on the precise circumstances.
3. Officers decline to commit the Council on this question.
4. Officers decline to commit the Council on this question. The manner of determining applications is a matter for Council to deliberate upon.
It should be noted, however, that the Local Government and Public Places Local Law 2012 does not incorporate a provision equivalent to the 2003 Local Law's section 6.2. It should also be noted that the Shire is in receipt of applications from Cable Beach Polo Pty Ltd, and it is the present intention for those applications to go before Council on 20 June 2013.
Which read:
'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.'
Should you have any further queries please do not hesitate to contact me on 08 9191 3455 or via email [email protected].5
19 On 18 June 2013, PEA lodged with the Shire an event application seeking the issue of permit to stage a beach polo event in 2014 on the same dates and in the same place as had been sought by CBP in its application. The covering letter with the application made no reference to the CBP application nor requested that it be dealt with in any particular way.
The officers' report on the CBP application
20 The officers' report identified that it was 'an assessment report on the CBP application'. It continued:
However it is relevant for Council to know that the Shire has subsequently been in receipt of a letter from PEA stating the intent to lodge an application for a 2014 beach polo event (Attachment Two). In view of previous proceedings involving the State Administrative Tribunal, Shire Officers sought legal advice (Confidential Attachment as per Item 5.23(2)d of the Local Government Act 1995) and provided a response to PEA's letter on 5 June 2013 (Attachment Three). At the time of this report, no actual event application from PEA had been received.6
21 The last sentence was true at the time that the officers' report was written and finalised, and published on the Shire's website and to the Council, as part of the agenda papers. It is not in issue, however, that at the time the Council came to consider the issue on 20 June 2013, PEA's application had been lodged at the Shire's offices.
22 The officers' report continued:
It would be open to Council to choose to engage in a selection process in a similar way, and directly address the test identified by the Tribunal as quoted above. However, if the Shire were obliged to engage in such a selection process every time it received an application that could be regarded as competing with an application already received, the process could go on ad infinitum, with no certain way of knowing how many competing applications might be received, and when. Beach polo is not an event for which the Shire invites applications and imposes a deadline for lodgement. They are applied for ad hoc.
By the same token, there is no obligation on the Shire to progress the first-received application without having regard to the fact of receipt of a competing application, or even a foreshadowed application. Council has a choice. Council can suspend its consideration of the CBP application and invite a full report comparing, and making a recommended selection, between the CBP application and the PEA proposal. That sort of approach might be seen to as assessing more squarely which proposal meets 'best use of the public resource' (ie portion of Cable Beach) and which 'provides the best return to the ratepayers and the people of Broome, such as to maximise community benefit, including economic benefits'.
Alternatively, Council could proceed to determine the CBP application only, on its merits, though acknowledging without any detailed assessment, that the PEA application might well also be a very meritorious alternative. In that case Council would need to be satisfied to a high degree that the CBP proposal makes worthy use of the public resource of Cable Beach, and is likely to provide a very good return to ratepayers and the people of Broome, such as to deliver a very good community benefit, including economic benefits.7
23 The officers' report then outlined the application in general terms and recommended two options for Council's consideration. The first option was to approve the 2014 event application by CBP. The officers' report suggested that that option was justifiable in light of the merit of the application in terms of Council's Policy 5.1.7 entitled 'Events held on local government property and public places', and acknowledged the significant community and economic benefit to be gained from the staging of the beach polo event in 2014 which it then outlined.
24 Option 2 was said to be to request that PEA submit an event application by 19 July 2013 and for both applications to be considered by Council according to Council policy and local law 'in all likelihood on the basis of Council selecting between competing applications'.
25 The officers' report then examined policy implications, financial implications and strategic implications of the CBP proposal.
Council's resolution
26 It is not in issue that, when considering the item agenda concerning CBP's application, the Council was not informed that PEA had actually lodged an application two days before the Council meeting.
27 Council resolved to authorise the CEO to issue permits to CBP under the Shire of Broome Local Government Property and Public Places Local Law 2012 (PPP Local Law) for the staging of the proposed beach polo events in 2014, 2015, 2016 and 2017 subject to certain conditions. The minutes of the Council meeting record the following reasons for the Council's decision:
1. The proposal submitted was for four years whereas the officer report only dealt with it on a one-year basis. Council's decision should engage with the proposal as actually submitted.
2. A four-year approval would give confidence and certainty for the planning purposes, for sponsors, investors, the tourism sector and Broome's event calendar, whereas approval for one year is not considered to give the desired level of planning certainty.
3. The proposal demonstrates a high level of merit when assessed against the Shire's Policy 5.1.7 - Events Held on Local Government Property and Public Places.
4. Council has sufficient confidence in the merit of CBP's proposal, the vision for the kind of polo tournament proposed, and the track record of CBP's principals in their involvement in staging previous events, to support conditional approval of the event for four years.
5. Council acknowledges the significant community benefit to be gained from the staging of Cable Beach Polo, in particular:
1. The economic benefit provided to Broome's tourism industry by the two day format.
2. The Kimberley Challenge and Swan Valley Polo Scholarship
3. The establishment of the family enclosure on the Saturday enabling an affordable, alcohol free environment for families to enjoy the event with particular benefit for the members of the isolated Children and Parents Association.
6. Additional conditions (f) - (g) allow a mechanism for fine-tuning the operational management issues to achieve continuous improvement from year to year.8
The application for review by SAT
28 On 30 July 2013, PEA applied under s 9.7(1)(a) of the Local Government Act 1995 (WA) (LG Act) for review of the decision of the Shire of 20 June 2013. The application sought a decision that SAT grant approval and allow PEA to stage the Broome beach polo 2014 event, and to revoke the approval granted to CBP to stage its beach polo events in 2014, 2015, 2016 and 2017.
29 The respondents to that application, being CBP and the Shire, raised a preliminary point concerning the Tribunal's jurisdiction to review the decision on the application of PEA. The Tribunal dealt with that application as a preliminary issue. The same senior member dealt with it as had dealt with the previous application by PEA in 2013, which is discussed above. The learned senior member distinguished the position from Polo No 1 on the basis that, in that case, 'importantly, there were competing applications assessed in the one transaction which gave Polo Enterprises in that case, who is the applicant in this proceeding, certain rights of review'.9 He observed that at the decision-making point of 20 June 2013, there were 'no truly competing transactions considered'. In effect, the Tribunal concluded that PEA was not 'an affected person' for the purposes of s 9.7 of the LG Act and thus not entitled to apply for review under that section in relation to the 20 June 2013 decision.
19 September 2013 decision
30 The application lodged by PEA on 18 June 2013 was considered by the Council at its meeting on 19 September 2013.
31 The officers' report submitted to that meeting referred to the decision on 20 June 2013 and the officers' report on the CBP application. It said:
The Officer Report drew Council's attention to the fact that Polo Enterprises Australia Pty Ltd (PEA) had also signalled its intention to apply for a 2014 beach polo event on Cable Beach. Subsequent to the publication of the agenda report, but two days before the Council meeting, PEA formally lodged its application with the Shire.10
32 The report then expressed the view that there was no real alternative available to Council other than to refuse the application by PEA since the proposed event could not occur simultaneously with the already approved CBP event. Council resolved to refuse the application on the basis that it sought to hold the events on the same dates and places as the previously approved event.
The statutory basis of the permit
33 The requirement for a permit to conduct an event on land owned or controlled by the Shire arises under the PPP Local Law, and in particular cl 3.14.
34 Clause 3.2(1) specifies that where a permit is required, an application must be made in accordance with cl 3.2(2), which provides:
(2) An application for a permit under this local law shall -
(a) be in the form determined by the local government;
(b) be signed by the applicant;
(c) provide the information required by the form; and
(d) be forwarded to the CEO together with any fee imposed and determined by the local government under and in accordance with sections 6.16 to 6.19 of the Act.
36 Clause 3.4 sets out the factors relevant to the determination of an application. It provides:
3.4 Factors relevant to the determination of an application
(1) In determining an application for a permit the local government must satisfy itself that the undertaking of the activity 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.
Part 9 of the LG Act
38 Division 1 of pt 9 of the LG Act deals with objections and review. Section 9.1 provides that div 1 applies when a local government makes a decision under the LG Act as to whether it will grant a person an authorisation under any local law. Section 9.1(3) provides that div 1 also applies whenever a local law states that a decision under it is one to which the division applies and that a person specified in it is an affected person for the purposes of that division.
39 Section 9.2 defines certain terms used in pt 9 div 1. Relevantly for present purposes, it defines 'affected person' as follows:
In this Division, unless the contrary intention appears -
affected person, in relation to -
(a) a decision to which this Division applies because of subsection (1) or (3) of section 9.1, means a person referred to in that subsection; …
40 'Authorisation' is defined 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 this definition;
41 'Decision' is defined to mean:
A decision or notice that, in accordance with section 9.1, causes this division to apply.
42 Section 9.1 specifies when pt 9 div 1 applies. It provides:
9.1. When this Division applies
(1) This Division applies when a local government makes a decision under this Act as to whether it will -
(a) grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b) renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2) ...
(3) This Division also applied whenever a local law or regulation that it to operate as if it were a local law, states that a decision under it is one to which this Division applied and that a person specified in it is an affected person for the purposes of this Division.
43 The right of review is conferred by s 9.7(1) which provides:
(1) An affected person may apply to the State Administrative Tribunal for a review of a decision if the person -
(a) has not lodged an objection to the decision; or
(b) has lodged an objection but, at the expiration of 35 days after it was lodged, has not been given notice in writing of how it has been decided to dispose of the objection.
45 It can be noted that the definition of 'authorisation' contains an exception for permits that have been excluded by regulations from being an authorisation for the purposes of the definition. For completeness, it is relevant to note that cl 32A of the Local Government (Functions in General) Regulations 1996 provides:
32A. Excluded authorisations (Act s. 9.2)
(1) The following are excluded from being authorisations for the purposes of the definition of authorisation in section 9.2 of the Act -
(a) an authority to carry out private works on local government property;
(b) an authority allowing the use of local government land or premises, or the use of local government goods or equipment.
(2) Despite subregulation (1), an authority set out in paragraph (a) or (b) of that subregulation is to be regarded as an authorisation under section 9.2 of the Act if -
(a) 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 9 of the Act applies and that a person specified in it is an affected person for the purposes of that Division; or
(b) a person has -
(i) by virtue of that authority, a reasonable expectation of the enjoyment (or the continued enjoyment) of a right or interest conferred by that authority; or
(ii) by virtue of the usual circumstances surrounding the grant of an authority of that type, a reasonable expectation of successfully applying for the right or interest conferred by that authority.
Did SAT have jurisdiction?
47 The preliminary question before SAT was whether or not PEA is an 'affected person' for the purposes of pt 9 div 1 of the LG Act in relation to the decision taken on 20 June 2013. The Tribunal concluded that it was not. In my view, the Tribunal was plainly correct.
48 An affected person is the person to whom the local government decides to grant or refuse an authorisation. Clearly, CBP is an affected person in relation to the decision of 20 June 2012.
49 The thrust of the applicant's argument is that the Shire's decision to grant a permit to CBP required, as a necessary consequence, that the Shire would not grant a permit to PEA.
50 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.
51 It is inherent in any decision by the Shire to grant a permit to a person under the PPP 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.
52 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.
53 It follows that the application for relief against SAT must fail.
54 There never having been jurisdiction on the part of SAT to undertake a review on the application of PEA of the decision of 20 June 2013, it becomes necessary to consider the applications for relief against the Shire.
Did the Shire identify the wrong issue?
55 It is not in issue that an administrative decision-maker makes an error of law amounting to jurisdictional error where the decision-maker identifies a wrong issue or asks itself a wrong question.11
56 In support of its contention that the Shire asked itself the wrong question, the applicant points to those sections of the officers' report on the CBP application which advised Council that a letter had been received from PEA stating its intention to lodge an application for the 2014 event, the Shire's response to that letter and the assertion that no actual event application from PEA had been received. PEA then refers to the two options recommended for consideration, namely, to approve the event application by CBP, or alternatively to request PEA to submit an event application. The applicant then submits:
The issue identified by the report, being a choice between option 1 and option 2, and the question asked, being which of those two options should be chosen, was plainly incorrect. The Shire had already received a competing event application from PEA, and PEA's application was a valid application under clause 3.2 of the Local Government Property and Public Places Local Law 2012.
It follows that the issue that should have been identified by the Shire, and the question that the Shire should have asked itself, was whether one application should be granted or the other refused, or both applications should be refused. That was the issue identified and the question asked in the previous year. In identifying the wrong issue and asking itself the wrong question, the Shire committed jurisdictional error.12
57 There are several reasons why that submission should not be upheld.
58 The first is that the fact that the officers' report suggested two options. They were simply recommendations. The content of the recommendations does not establish the issues which the Council identified, or the questions it asked itself. It can be noted that the decision taken by Council was to approve not only the 2014 event (which was the limit of the first option), but also to approve events to be held in each of the following three years. The reasons expressed by Council, as recorded in the minutes, show that it brought to account its own consideration of issues it considered relevant to its determination.
59 The second thing that can be said is that the Shire was not required to ask itself whether one application should be granted and the other refused, or both applications should be refused. The fact that it may have approached the matter that way in the previous year, when it had before it two fully assessed separate applications to be dealt with at the same time, does not mean that it was required to ask itself the same question, in quite different circumstances, at the 20 June 2013 meeting.
60 The questions which the Council was required to ask itself were those which were relevant to the criteria for the grant of a permit under the PPP Local Law. Those matters are those enumerated in cl 3.4 of the PPP Local Law which is set out above. It was entirely a matter for the Council as to whether it dealt with applications in the order that they were received, or in some other way. There is nothing in the PPP Local Law which requires the Council to have regard to competing applications, or to deal with competing applications together. That is so, whether or not a competing application has been foreshadowed, or has actually been lodged with the Council.
61 As a secondary argument, PEA contended that the Shire erred in making its decision on the basis that PEA had not made a valid application when in fact it had. It contends that whether or not a valid application under the PPP Local Law had been made is a question of law. It contends that any facts required to determine the question of whether or not there has been an application are jurisdictional facts 'because it's only if they are satisfied that there is then jurisdiction to approve or grant the application'. That argument is without merit. Whether or not PEA had made a valid application under the PPP Local Law was not a jurisdictional fact in relation to the consideration of CBP's application. That question could only arise for consideration in the context of dealing with PEA's application. PEA's application was not before the Council on 20 June 2013. The alternative argument has no merit.
62 The applicant has not established that the Shire asked itself the wrong question in dealing with CBP's application on 20 June 2013.
Failure to take account of most recent information
63 The applicant argues that the information contained in the officers' report that no actual event application from PEA had been received was, by the time Council became to consider CBP's application, 'plainly outdated'.
64 The principle upon which this contention is based is that identified by Mason J in Minister forAboriginal Affairs v Peko-Wallsend Pty Ltd13 (Peko-Wallsend) that an 'administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made'.14 It is necessary to examine that 'general principle'.
65 Peko-Wallsend concerned an allegation that the Minister for Aboriginal Affairs had failed to take into account a relevant consideration in making a decision that land be granted to a land trust. The relevant consideration was said to be the extent to which the respondents would be detrimentally affected by the grant. The Minister had before him a report of the Aboriginal Lands Commissioner which included comment on the detriment to persons including the respondents. The respondents had made a number of submissions to the Minister after publication of the Commissioner's report containing information which affected the extent of the detriment to the respondents by a land grant. The Minister had regard to the Commissioner's report and comments, but not to the more recent information going to the question of detriment. The respondents brought proceedings against the Minister contending that, by failing to have regard to the later information supplied, the Minister had failed to have regard to relevant information.
66 Mason J identified a number of established propositions concerning a failure to take into account a relevant consideration or taking into account irrelevant considerations. In summary those propositions were:
(a) the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account the consideration which he is bound to take into account in making that decision;15
(b) what factors the decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion;16
(c) where the ground of review is that a relevant consideration has not been taken into account, and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the act.17
(d) not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law;18
(e) the court has a limited role in reviewing the exercise of administrative discretion, and it is not the function of the court to substitute its own decision for that of the original decision-maker.19
67 Having identified that the central issue was whether the failure by the Minister to consider submissions which had been made amounted to a failure to take into account a consideration he was bound to take into account, Mason J said:
It is convenient to divide the central issue into two separate, but related, questions. The first is whether the Minister is bound to take into account the comments on detriment which the Commissioner is required by s 50(3)(b) of the Act to include in his report to the Minister. The second is whether he is also bound, as opposed to merely entitled, to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment.20
68 In addressing the second question, Mason J said:
The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.
…
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.21
69 The fact that PEA had lodged an application was not a matter which the Council was bound to take into account in dealing with CBP's application. There is nothing in the PPP Local Law, or in its subject matter, scope or purpose which would suggest that the local government is bound to have regard to the existence of a competing application. I do not understand the applicant to have contended otherwise. Rather, what it contends is that there is a separate general principle, unrelated to the requirement to have regard to relevant considerations (in the sense discussed in Peko-Wallsend), being the requirement to make a decision on the basis of the most recent material available. In support of that contention, the applicant relies on Minister for Immigration and Border Protection v NZYTS22(NZYTS) where the Full Federal Court approved a statement by Rares J in SZJTQ v Minister for Immigration23 where his Honour said:
More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39 - 42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision 'on the basis of the most current material available to [it]': Peko-Wallsend 162 CLR at 45.
70 The Full Court in NZYTS agreed that Mason J's judgment in Peko-Wallsend does articulate two distinct principles.24
71 The observations of both the Full Federal Court, and of Rares J, both need to be seen in the context of the cases with which they were concerned. Each case dealt with the question of whether or not an applicant for refugee status had a well-founded fear of persecution if returned to their country of origin. The more recent information, with respect to which there was said to be a failure to have regard, was information relevant to that question. The question of the existence of a well-founded fear was the central issue to be determined by the original decision-maker. The decision-maker was bound to consider that question. The original decision-maker had regard to that question, so it could not be said that the decision-maker failed to have regard to a relevant consideration. The complaint was, however, that it failed to have regard to the most recent available information going to that issue. The requirement for it to do so was clearly therefore a separate (although related) requirement.
72 That is not this case in these proceedings. As I have already determined, the Council of the Shire was not obliged to have regard to the fact that PEA had foreshadowed making an application for a permit, nor the fact that it had made such an application. The 'more recent information', namely that an application had been made by PEA, did not elevate that fact to a relevant consideration in the Peko-Wallsend sense.
73 The second ground of challenge to the Shire's decision of 20 June 2013 is not made out.
Failure to accord procedural fairness
74 The applicant argues that the failure by the Shire to give notice to PEA of its intention not to consider both CPB's and PEA's applications together constituted a breach of the requirements of procedural fairness. It relies on the observations of the High Court 'that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power' and that 'plain words of necessary intendment' are required to exclude the principles of procedural fairness.25
75 This ground can be shortly disposed of. There is nothing in the PPP Local Law which requires, or even contemplates, that competing applications for permits would be dealt with together, or in any other particular way. The fact that, in the previous year, Council had dealt with and determined the two competing applications at the same time did not create any right, interest or expectation that it would deal with future applications in the same way.
76 PEA sought to rely on its letter of 22 May 2013 as indicating its expectation that competing applications would be dealt with together, and, in effect, requiring the Shire to give notice if that were not to be the case. That submission ignores the response from the Shire which declined to commit the Council on the question and specifically advised that the manner of determining application was a matter for Council. It was, of course, entirely appropriate for the Shire's officers not to commit to the Council on a matter of council procedure which, as the letter correctly stated, is a matter entirely for the Council.
77 PEA does not argue that it had any entitlement to be heard on the consideration of CBP's application. Rather, it claims an entitlement to be heard on the question of the Council's procedure for dealing with competing applications. The PPP Local Law gave it no right or reasonable expectation on that question, nor did such a right or reasonable expectation arise by the procedure adopted by the Council in the previous year, nor by the exchange of correspondence between PEA and the Shire in late May and early June 2013.
78 PEA argue that the expectation that it would be given notice of a proposal by the Shire not to deal with its application separately from CBP's application arises from the provisions of the PPP Local Law read with certain provisions of the LG Act. It is observed that cl 3.2(2)(d) of the PPP Local Law requires that an application for a permit 'be forwarded to the CEO'. The functions of the CEO of a local government are found in s 5.41 of the LG Act. One such function is to 'ensure that advice and information is available to the council so that informed decisions are made' - s 5.41(b).
79 These provisions are said by PEA to show that the statutory framework contemplates not only applications being considered, but that, where there are competing applications, they should be considered together, and that the Council's decisions are intended to be made in an informed way.
80 This ingenious argument reads too much into the provisions referred to. As I have already observed, nothing in the PPP Local Law requires the Council to have regard to competing applications. An obligation to do so cannot be inferred from the fact that applications are to be made to the CEO. The CEO is charged with managing the day-to-day operations of the local government - LG Act s 5.41(d), and to advise the council in relation to its functions - s 5.41(a). The obligation under cl 3.2 of the PPP Local Law to submit applications to the CEO simply enables the CEO to take responsibility to manage and process the application in accordance with the Shire's procedures.
81 There is no substance in this ground of review.
Council's decision of 19 September 2013
82 The application for relief in relation to the Council's decision on 19 September 2013 to decline PEA's application rests entirely on the proposition that the Council wrongly proceeded on the basis that the 20 June 2013 decision was valid. That assumption was not wrong. Relief in relation to the 19 September 2013 decision must therefore be refused.
Discretion
83 It was contended by the respondents that even if the applicant were successful in establishing some ground of review, then the Court ought not, in its discretion, grant the relief sought. 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. In relation to the relief sought against SAT, I am mindful of the observations of Martin CJ in Re Carey; Ex Parte Exclude Holdings Pty Ltd,26 with whom Wheeler JA agreed, that 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.
84 Having reached the conclusion which I have as to the substantial merits of the applicant's arguments, the question of discretion obviously does not arise, and thus it is unnecessary for me to deal with the arguments on that question.
Objections to Mr Gazecki's affidavit of 11 March 2013
85 Certain objections were raised by the third respondent to portions of Mr Gazecki's affidavit of 11 March 2013. I received that affidavit subject to those objections on the basis that I would deal with them in these reasons.
86 There were two broad bases upon which most objections rested. The first was that Mr Gazecki's affidavit of 11 March 2013 was filed pursuant to leave for the applicant to file any responsive affidavits, and a large portion of the affidavit was not responsive, but raised new material to which the respondents had no opportunity to respond. The second objection was as to relevance, in that the evidence was directed to the respective merits of the applicant, as against CBP, to host the polo event.
87 The applicant's response was that the material went to questions of discretion, both as to the grant of prerogative relief and declaratory relief.
88 To the extent that the matter goes to the discretion to grant declaratory relief, is not purely responsive, since the application for declaratory relief was only first raised at the hearing. To that extent it was therefore filed without leave. On the other hand, the question of discretion to grant a remedy arises in relation to the claims for prerogative relief. The affidavit of Marilynne Paspaley of 28 February 2014 dealt at length with matters going to the question of discretion. Although I accept that parts of Mr Gazecki's affidavit (in particular the background material found between pars 7 and 32 concerning previous polo events in Broome) do little more than provide historical context, the material is arguably relevant to the question of discretion, and accordingly I would not decline to receive those paragraphs. Had I found it necessary to rely on those passages of Mr Gazecki's affidavit to which objection was taken, I would have first provided the respondents an opportunity to file an affidavit in response. As it happens, none of the material objected to has any bearing on the decision I have reached, so no occasion to respond is necessary.
89 I would uphold the objections to pars 45, 46 and 47 on the basis that they are bare assertions and conclusions.
Conclusion
90 For the foregoing reasons, the application for relief against each of the respondents must be dismissed.
1Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98.
2Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98 [8].
3Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98 [19].
4 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 273.
5 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 275 - 276.
6 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 396.
7 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 396.
8 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 406.
9Polo Enterprises Australia Pty Ltd and Cable Beach Polo Pty Ltd [2014] WASAT 3 [18].
10 Exhibit JG1 to Affidavit of John Janek Gazecki, dated 18 December 2013, 434.
11Woolworths Ltd v Directors of Liquor Licensing [2013] WASCA 227 [65] - [67] (Buss JA), [91] (Murphy JA agreeing); Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 571 - 573 (the Court).
12 Applicant's outline of submissions, dated 11 March 2014 [23] - [24].
13 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24.
14Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 45.
15Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 39.
16Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 39.
17Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
18Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
19Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
20Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 42 - 43.
21Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24, 44 - 45.
22Minister for Immigration and Border Protection v NZYTS [2013] FCAFC 114.
23SZJTQ v Minister for Immigration [2008] FCA 1938; (2008) 172 FCR 563 [37].
24Minister for Immigration and Border Protection v NZYTS [2013] FCAFC 114 [77].
25Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319, 352 (the Court); citing Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ).
26Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [6], 505 - 529 (Martin CJ), 529 (Wheeler JA agreeing).
2
13
3