Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd
[2018] WASC 145
•10 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASC 145
CORAM: SMITH AJ
HEARD: 12 FEBRUARY 2018
DELIVERED : 10 MAY 2018
FILE NO/S: GDA 14 of 2017
BETWEEN: PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
Appellant
AND
DCSC PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram: MS N OWEN-CONWAY (MEMBER), MR J JORDAN (SENIOR SESSIONAL MEMBER)
Citation: DCSC PTY LTD and PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 114
File Number : DR 475 of 2015
Catchwords:
Planning and development - Use of land proposed in development determined as 'convenience store' as a preliminary issue by SAT on review of decision by Panel - Planning scheme amendment to definition of 'service station' came into force and effect before SAT delivered final decision on review
Authority to institute an appeal by presiding member of the Panel considered
Whether decision on preliminary decision final or interlocutory - Decision on preliminary issue binding on parties and Tribunal in determination of final decision to grant planning approval
Interpretation - Accrued rights - Operative effect of s 27 of State Administrative Tribunal Act 2004 (WA) when considered with s 37(1) of the Interpretation Act 1984 (WA) - Accrued right vested in the respondent to have legality of its development application determined in accordance with the decision on the preliminary issue made under the previous law
Legislation:
Acts Interpretation Act 1901 (Cth), s 8(c), s 8(e)
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), s 129(2)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Interpretation Act 1984 (WA), s 31(1), s 37(1)(b), s 37(1)(c), s 37(1)(f)
Judiciary Act 1903 (Cth), s 41(1)
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 7, reg 18, reg 18(2)
Planning and Development Act 2005 (WA), s 87, s 87(4), s 138
Rules of the Supreme Court 1971 (WA), O 58 r 11(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27, s 27(1), s 27(2), s 27(3), s 51A, s 82, s 105, s 106
Supreme Court Act 1935 (WA), s 60(1)(f)
Town Planning and Development Act 1928 (WA), s 20(5), s 20C, s 20(1)(a), s 26(1)(a)(i)
Workers Compensation and Rehabilitation Act 1981 (WA), s 93D(4)
Result:
Leave to appeal on ground 1 granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr C S Bydder |
| Respondent | : | Mr M C Hotchkin |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | Hotchkin Hanly Lawyers |
Case(s) referred to in decision(s):
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Allen v Golf Oil Refining Ltd [1981] AC 1001
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Atanasio v BT Refinery (Kwinana) Pty Ltd [2011] WASCA 95
Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
Attorney General (Qld) v AIRC (2002) 213 CLR 485
Attorney General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485
Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114
Donnellan v Public Trustee [2007] WASC 213
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Esber v Commonwealth of Australia (1992) 174 CLR 430
Executive Director, Public Health v Meers [2007] WASCA 187
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 (2002) CLR 478
Gray v Dalgety & Co Ltd (1916) 21 CLR 509
Hall v Busst [1960] HCA 84; (1960) 104 CLR 206
Hayley v The Queen [2006] WASCA 33
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Kishell v Nilant [2006] WASCA 223
Landsdale v Moore [2009] WASCA 176
Lee v Secretary, Department of Social Security (1996) 139 ALR 57
LS v Mental Health Review Board [2013] WASCA 128
Maxwell v Murphy (1957) 96 CLR 261
Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145
Miller and City of Stirling [2007] WASAT 247
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
R v Inhabitants of Denton (1852) Deas 3, 8; 169 ER 612
Re Ciffolilli; ex parte Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Santos v The State of Western Australia [2011] WASCA 216
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Shire of Augusta-Margaret River v Gray [2005] WASCA 227
Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd [2008] WASC 38
Smith v Maloney (1998) 19 WAR 209
State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994)
TAG Pacific Ltd v McSweeney (1991) 34 FCR 438
The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178
The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1
Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104; (2015) 207 LGERA 438
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
White v Brunton [1984] 2 All ER 606
SMITH AJ:
Background
On 28 August 2015, DCSC Pty Ltd, the respondent in this appeal, applied for approval to develop Lot 108 (57) Dunn Bay Road, Dunsborough (the land) to construct a petrol station. The respondent's development application expressly sought approval to develop and use the land as a 'convenience store'. The land is located within the City of Busselton, and is subject to the City of Busselton Local Planning Scheme No 21 (Planning Scheme 21).
Pursuant to reg 6 and reg 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), the respondent elected to have the application for development approval determined by a development assessment panel. On 14 December 2015, the Southern Joint Development Assessment Panel (the Panel) refused the development application. Part of its determination was that the proposed use of the land was 'service station' within the meaning of that use defined and prescribed in Planning Scheme 21.
The respondent sought review of the decision of the Panel by the State Administrative Tribunal, pursuant to reg 18(2) of the Planning and Development (Development Assessment Panels) Regulations. One of the central issues raised by the respondent in the application for review was that the proposed use of the land is, on a proper construction of Planning Scheme 21, 'convenience store'.
The grounds of the respondent's application for review by the Tribunal were as follows:
1. That the Southern Joint Development Assessment Panel erred in classifying the proposed use as 'service station' (a discretionary use under Local Planning Scheme 21) instead of 'convenience store' (a permitted use under Planning Scheme 21) and consequently misconceived the considerations to be taken into account.
2. The proposed development is consistent with orderly and properly planning principles.
At the time the application for approval was considered by the Panel, and at the time review proceedings were instituted in the Tribunal, the terms 'convenience store' and 'service station' were defined in pt 13, sch 1 of Planning Scheme 21 as follows:
'Convenience Store' means land and buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens and newsagents, but including the sale of petrol and operated during hours which include, but which may extend beyond, normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300m2 net lettable area.
'Service Station' means any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
The consequence that flowed from a classification of the proposed land use as 'convenience store' is that 'convenience store' is a permitted use, whereas the use of 'service station' is a discretionary use.
Prior to the application for approval for development being submitted to the Panel, an amendment to Planning Scheme 21 was initiated by the City of Busselton at a council meeting held on 26 August 2015. Among other proposed amendments, it was proposed to amend the definition of a 'service station' as follows:
'Service Station' means premises other than premises used for a transport depot, panel beating, spray painting, major repairs or wrecking, that are used for ‑
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental or convenience nature; or
(b)the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles.
On 22 January 2016, Senior Member McNab made orders by consent that the Tribunal was to determine on the documents as a preliminary matter the question of the proper land use category.
Both parties considered it appropriate that the determination of the proper use classification of the proposed development be determined as a preliminary issue. At that time it was contemplated by the parties that if it was found by the Tribunal that the proposed land use was to be properly characterised as 'convenience store', as defined in Planning Scheme 21, the Panel may wish to both mediate and reconsider its position in light of such a finding. However, if the proposed use was to be found to be 'service station' the hearing on the review of the remaining matters:
(a)would most likely proceed to a hearing without mediation or reconsideration by the Panel; and
(b)the matters to be considered by the Tribunal would not be confined to the range of potential objections that can be raised in respect of a permitted use. This is because the range of matters that can be raised to properly form objections to a permitted use are significantly less than the matters that can be raised as objections to a discretionary use.
Consequently, when the parties reached agreement in January 2016, it was contemplated that the determination of the preliminary issue of the 'use' of the land purposed in the development application would be binding on the parties and thereby establish the manner in which the balance of the matters to be determined on review would be conducted.[1]
[1] The appellant's submission is that the decision of the Tribunal on the preliminary issue was binding on the parties until the law changed.
Due to an administrative error, the hearing of the preliminary issue was delayed as it was overlooked by the Tribunal.
On 22 April 2016, Parry DP made substituted orders for the orders made on 22 January 2016 as follows:
a.The following issue is to be determined by the Tribunal as a preliminary issue: whether the proposed land use is correctly classified as 'convenience store' or as 'service station' under Planning Scheme 21.
b.By 6 May 2016 the parties are to file an agreed statement of facts and an agreed bundle of documents in relation to the preliminary issue.
The parties were required to file written submissions and the matter was listed for hearing on 26 May 2016. After the matter was heard the decision on the preliminary issue was reserved.
On 25 August 2016, Senior Member McNab delivered reasons for decision[2] and made the following order which was stated on the record of the order to be a 'final order':[3]
1. The preliminary issue as to whether the proposed land use is correctly classified as 'Convenience Store' or as 'Service Station' under the City of Busselton Local Planning Scheme No 21 is answered as follows:
'The proposed use is correctly classified as "Convenience Store".'
[2] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104.
[3] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104 [53].
The reasons why Senior Member McNab determined that the proposed use of land was to be classified as 'convenience store' are not material to this appeal. However, one of the issues dealt with by Senior Member McNab was whether it was permissible for the Tribunal to have regard to the draft scheme amendment to the definition of 'service station' in Planning Scheme 21. Senior Member McNab found that whilst there is benefit in making discretionary planning decisions consistent with what are considered to be draft planning instruments, it is impermissible to consult seriously considered proposed amending instruments, to discover the meaning of a principal instrument, when the task before the Tribunal was to determine what are essentially jurisdictional issues.[4]
[4] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104 [49].
The substantive hearing on the review or, put another way, for reasons that follow, the remaining aspects on the review were heard on 1 and 2 February 2017.
The amendment to the definition of 'service station' in Planning Scheme 21 was gazetted to have force of law on 4 August 2017.[5]
[5] Government Gazette, 4 August 2017, page 4327, [1.5(b)(vii)]; Pursuant to s 87(4) of the Planning and Development Act an amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by the Planning and Development Act.
The Tribunal delivered its decision on 23 August 2017. The Tribunal allowed the application for review.[6] The Tribunal observed in its reasons for decision, delivered on 23 August 2017, that on 25 August 2016 the Tribunal had determined as a preliminary issue the correct use classification of the application for development approval was 'convenience store' as defined by Planning Scheme 21. It also observed that subsequent to the Tribunal determining the preliminary issue the Panel had received revised plans in support of the application for development approval and had again refused the application.[7]
[6] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114.
[7] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114 [11] ‑ [13].
The Tribunal concluded that the application for development approval should be granted subject to the specified conditions as it was satisfied that the permitted use classification, 'convenience store', of Planning Scheme 21 was suitable for the land and that the use classification satisfied the business zone objectives and policies.[8]
[8] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114 [208], [217].
It is common ground that the Tribunal, in its decision given on 23 August 2017, did not have regard to the amendment to the definition of 'service station' that came into effect, by amendment 1, to Planning Scheme 21 on 4 August 2017.
Authority to institute an appeal under s 105 of the State Administrative Tribunal Act
The respondent contends the appellant, the Presiding Member of the Panel, is not authorised by statute or otherwise to institute this appeal by instructing the State Solicitor's Office to act on his behalf without the authority to do so by resolution of the members comprising the Panel.
Regulation 18 of the Planning and Development (Development Assessment Panels) Regulations deems the decision‑maker (within the meaning of decision‑maker in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)), in respect of a determination of a development application, to be the presiding member of a development assessment panel in any application for review of the determination of the application.
The effect of reg 18 is that a presiding member of a development assessment panel is the decision‑maker for the purposes of a review by the Tribunal, and party to a proceeding within s 105 of the SAT Act.
In light of the deeming provision that it is the presiding member of the Panel who is the decision‑maker, the respondent's contention that an appeal cannot be instituted without the authority of an effective resolution of the Panel to authorise the appeal cannot be maintained.
Consequently, this preliminary point necessarily fails.
The appeal
Pursuant to s 105 of the SAT Act, a party may appeal from a decision of the Tribunal on a question of law only with the leave of the court. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that leave be granted. It will be relevant to consider whether an applicant seeking leave to appeal has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave.[9]
[9] Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
In ground 1 of the appeal it is alleged that the Tribunal erred by approving the development approval application on the basis that the proposed use of the land was classified as 'convenience store' when the correct classification was 'service station', as that term was defined from 4 August 2017 in Planning Scheme 21.
The appellant also seeks leave to substitute ground 2 of the appeal, a ground that alleges the Tribunal erred in law in failing to enquire as to whether amendment 1 to Planning Scheme 21 had been approved by the Minister for Planning and published in the Government Gazette under s 87 of the Planning and Development Act 2005 (WA) (2005 Act) before making its decision upon the application for review on 23 August 2017.
The respondent, in an application filed on 3 October 2017, seeks orders that the appeal be struck out as an abuse of process or, alternatively, that leave to appeal be refused. It opposes the proposed amendment to ground 2 of the appeal.
The respondent argues that the institution of the appeal constitutes an abuse of process by bringing the administration of law into disrepute because:
(a)the grounds attempted to be put in the appeal are fundamentally different from the case that was run on behalf of the Panel in the hearing on 1 and 2 February 2017, and in the hearing of the preliminary issue;
(b)a collateral attack upon an earlier decision of the Tribunal by appealing the final decision of a differently constituted Tribunal (which was not called upon to consider the issue) should not be entertained because no party could be confident that resources should properly be applied to seek a determination of a preliminary issue;
(c)a collateral attack on an earlier decision will be an abuse of process if an appeal against the earlier decision could have been brought;[10]
(d)a successful appeal on the points sought to be put by the appellant strikes at the confidence that a party can have in a determination by the Tribunal of a preliminary issue if it has no binding effect in a court of law; and
(e)a change in a planning scheme after a decision of the Tribunal has been reserved but before it has been delivered which would affect the outcome of a decision is inconsistent with the purpose of the Tribunal to provide a fair hearing. It would also result in wasted costs, delay in seeking an outcome and additional costs in reopening a final hearing and requiring witnesses to be called, which is inimical to the rules of procedural fairness.
[10] In Donnellan v Public Trustee [2007] WASC 213, Newnes J accepted a submission that a collateral attack by a plaintiff on a final decision of a court of competent jurisdiction made in proceedings in which a plaintiff has had a full opportunity of contesting the decision of the court is clearly an abuse of process [21] ‑ [23].
Grant of leave to appeal ‑ principles
In Armstrong v Commissioner for Consumer Protection, Martin CJ described the principles the court will apply when determining whether to grant leave to appeal from a decision of the Tribunal:[11]
It is now well established that leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave, and that there are no rigid or exhaustive guidelines governing the grant of leave: Zampatti v Western Australian Planning Commission [2010] WASCA 149 [34] (Buss JA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing). However, the observations made by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls (1999) VSCA 117; [1999] 3 VR 331 in an analogous context are generally applied. There his Honour observed:
'When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible [16].'
It follows that the question of whether leave to appeal should be granted, and therefore whether time should be extended to enable an application for leave to appeal to be made, is inextricably connected with the merits of the arguments which the applicants would advance if granted an extension of time and leave to appeal, in the sense that there must be sufficient doubt as to the correctness of the Tribunal's decision to justify the grant of leave.
[11] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27] ‑ [28] (Newnes & Murphy JA agreeing).
In this matter, I am of the opinion that questions of law are raised in ground 1 of the appeal that go to the proper construction of provisions of the SAT Act that are important not only to the parties, but go generally to the power and function of the Tribunal in determining issues in split proceedings. I am also of the opinion that there is a significant argument to be put that there is sufficient doubt about the correctness of the Tribunal's decision on grounds whether:
(a)a decision made on a preliminary issue as an aspect of a matter to be determined in a review application is an interlocutory or final decision; and
(b)the operative effect of s 27 of the SAT Act, when read with s 37(1) of the Interpretation Act 1984 (WA), s 27 should be construed so as to express an intention to exclude the operation of s 37(1);
to justify a grant of leave to appeal.
The questions raised in ground 1 of the appeal raise important questions of law going to the construction of the meaning of 'decision' and 'final decision' in s 3(1), s 27, s 51A, s 82 and s 105 of the SAT Act, s 37(1) of the Interpretation Act and the effect of a decision made by the Tribunal on a preliminary issue heard as an aspect of the proceedings pursuant to s 51A of the SAT Act.
For these reasons, I am not of the opinion that the appeal should be struck out on grounds of an abuse of process.
For reasons that follow, I am of the opinion that leave to appeal should be allowed on ground 1 of the appeal. However, I am not satisfied that ground 1 has been made out and I do not find it necessary to deal with the issues raised in proposed ground 2 of the appeal.
Is the preliminary decision a final or interlocutory decision and is the effect of the preliminary decision binding?
The hearing of the preliminary issue proceeded on an agreed statement of facts. The parties agreed that the proposed development comprised the following elements:
(a)nine shopfront car parking bays for the use of customers;
(b)two staff parking bays;
(c)six bays adjacent to each other of the fuel bowsers (ie, three double sided bowsers);
(d)a retail building comprising 188 sqm of net lettable area on the western side of the site to be used for the sale of convenience goods;
(e)a canopy of 300 sqm with a height of 5.7 m, covering the refuelling bays and bowsers and providing sheltered access to the retail building;
(f)air and water service areas;
(g)three underground fuel storage tanks;
(h)proposed operating hours of 24 hours a day, seven days per week; and
(i)the type of goods available for retail purchase at the proposed development would include convenience goods commonly sold in supermarkets, delicatessens and newsagents, but would also include automotive supplies.
The first question that arises in ground 1 of this appeal is whether the decision on the preliminary issue is a final decision or simply an interlocutory decision that was not binding upon the Tribunal and the parties when the Tribunal made a final decision to dispose of the review application.
The first part of the question is whether the decision on the preliminary issue is a final decision or an interlocutory decision.
The respondent points out that the determination of the preliminary issue and the final hearing took place before different members of the Tribunal. The respondent contends that the members of the Tribunal who determined that planning approval should be granted were not called on to review the determination on the preliminary issue, nor did they have power to do so.
Importantly, this appeal has not been instituted against the determination in the preliminary issue decision of Senior Member McNab delivered on 25 August 2016.
The terms 'decision' and 'final decision' are defined in s 3(1) of the SAT Act as follows:
(1)In this Act, unless the contrary intention appears -
decision of the Tribunal includes an order, direction, or determination of the Tribunal;
final decision means a decision of the Tribunal that disposes of the matter raised in an application;
The power of the Tribunal to split issues within proceedings is conferred by s 51A of the SAT Act. Section 51A(1)(a) empowers the Tribunal to direct that any aspect of any proceedings be heard and determined separately.
The appellant contends that the preliminary decision given on 25 August 2016 determining the classification of the proposed use of the land cannot at law constitute a 'final decision' within the meaning of the definition in s 3(1) of the SAT Act.
The appellant points out that the Tribunal has jurisdiction to hear a preliminary issue as to part of its jurisdiction as to how it properly deals with an application for review. It says, however, that the determination of the preliminary issue in this matter should not be characterised as the first stage of a hearing split into two parts. It says, rather, the determination of the preliminary issue is an interlocutory decision, because the answer given did not directly affect the position of the litigants or resolve their rights. It says the final decision of the Tribunal upon the review was made on 23 August 2017 when the Tribunal exercised the power under s 29(3) of the SAT Act to set aside the decision of the Panel and substitute its own decision.
The respondent contends that it is immaterial to describe a decision given on a preliminary issue as either 'interlocutory' or 'final', because the issue is whether the 'decision' on the preliminary issue bound the parties and the Tribunal at the final hearing on that issue, such that:
(a)there was no longer any dispute about the proper characterisation of the use of the land from the date of the decision on 25 August 2016; and
(b)therefore the Tribunal at the final hearing did not 'have before it' any material relevant to that issue, because it was not called upon to make a 'decision' on that issue.
The definitions of 'decision' and 'final decision' in s 3(1) of the SAT Act were considered by the Court of Appeal in Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission.[12] McLure P observed that s 105 of the SAT Act is the source of this court's jurisdiction to hear and determine appeals from a 'decision' of the Tribunal and it is clear a 'decision' referred to in s 105(1) covers interim, interlocutory and final decisions of the Tribunal in a proceeding.[13] McLure P distinguished the difference between a 'final' and 'interlocutory' decision made by the Tribunal as follows:[14]
In the context of administrative (and judicial) proceedings, the ordinary meaning of 'decision' is a dispositive or operative outcome of the exercise of a power (the ordinary meaning). That is illustrated in the definition of 'final decision' as a decision that 'disposes of the matter raised in the application'. In a review application, the final decision is the outcome of the exercise of the power in s 29(3) of the SAT Act, whether that be to affirm, vary or set aside the reviewable decision with any consequential order under par (c)(i) or (ii) of s 29(3). An example of an interlocutory decision is a direction resulting from the exercise by the Tribunal of its power in s 34.
[12] Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104; (2015) 207 LGERA 438.
[13] Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104; (2015) 207 LGERA 438 [20] (Buss & Newnes JJA agreeing).
[14] Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104; (2015) 207 LGERA 438 [42] (Buss & Newnes JJA agreeing).
No issue arose nor were findings made in Wattleup Road Development about the effect in law of a decision following a direction to split proceedings to deal with an aspect in a proceeding. Nor did their Honours consider when an aspect of a matter is determined separately whether that aspect can be said to have been disposed of, so as to bind the parties, and the Tribunal, in a determination of the remaining aspect of the matter raised in an application. Further, the Court of Appeal made no observations as to whether a decision that determined a preliminary issue should be properly characterised as an interlocutory or final decision.
The appellant argues that the appeal does not constitute a collateral attack upon the decision of the Tribunal on the preliminary issue, because at the time that decision was made the amendment to the definition of 'service station' in Planning Scheme 21 had not come into force. Accordingly, it says the Tribunal's interlocutory decision on the preliminary issue was not affected by the error which is now the subject of ground 1 of the appeal.
I understand the argument put on behalf of the appellant to be that:
(a)when the hearing took place on 1 and 2 February 2017 the decision on the preliminary issue of the correct classification of the use of the land was accepted as a correct statement of the law;
(b)when the amendment to the definition of 'service station' in Planning Scheme 21 came into force on 4 August 2017[15] the Tribunal had not delivered its final decision which, at law, is the only final decision made by the Tribunal in respect of this matter. This is because the decision given on 23 August 2017 disposed of the matter raised in the application for review; and
(c)section 27(2) of the SAT Act required the Tribunal to produce the correct and preferable decision at the time the decision is given.[16] Therefore, at the time the Tribunal gave its decision on 23 August 2017 it was obliged to apply the terms of the current provisions of Planning Scheme 21. This would have resulted in the Tribunal applying the correct classification for the use of proposed development as 'service station' and not 'convenience store'.
[15] Being 19 days prior to the date the Tribunal delivered a final decision allowing the application for review and granting conditional planning approval for the proposed development.
[16] LS v Mental Health Review Board [2013] WASCA 128 [93] (Murphy JA); Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
The appellant does not contend the amendment to Planning Scheme 21 had retrospective effect. It simply says:
(a)the review application had to be finally determined on 23 August 2017 on the law as it stood at that time; and
(b)the determination of the preliminary issue was simply a statement of the law as it applied at the time the decision on the preliminary issue was made, which could be made ineffective by a subsequent amendment to Planning Scheme 21.
Thus, it is said that the decision on the preliminary issue cannot and did not have the effect of immunising the application for review from changes to the law. This consequence is said to follow as the respondent had no right to develop the land until and unless approval was given by the Tribunal in a 'final decision'.
The appellant's argument lies upon a fundamental assumption that the decision on the preliminary issue did not determine any rights between the parties and resulted in a decision that was not binding (as a result of the changes in the law) when the final decision was made.
Whilst I agree for reasons that follow that the decision on the preliminary issue was not a 'final decision' within the meaning of the definition of 'final decision' in s 3(1) of the SAT Act, in my respectful opinion, the argument put on behalf of the appellant wrongly characterises the effect of the decision made by the Tribunal on 25 August 2016. Once the order setting out the terms of the decision made on the preliminary issue was made by the Tribunal, subject to appeal, the decision was binding on the parties in the final determination of the application for review and it was not open to the Tribunal not to apply the finding made in the preliminary decision on the facts before it in determining whether to grant the respondent planning approval.
Although the decision given by the Tribunal on the preliminary issue, and the order made by the Tribunal directing the preliminary issue be determined, do not refer to s 51A of the SAT Act, it is clear that the power to determine the preliminary issue as a separate 'aspect' or issue in a split proceeding was exercised in accordance with the power conferred in s 51A.
Separate trials of issues will generally only be ordered by courts and tribunals where there is a clear line of demarcation between the issues and the determination of one or more of the issues in isolation from the other or others is likely to result in a substantial saving in time, inconvenience and expense.[17]
[17] Landsdale v Moore [2009] WASCA 176 [22] (Newnes JA) applying Allen v Golf Oil Refining Ltd [1981] AC 1001 and Smith v Maloney (1998) 19 WAR 209, 223.
A separate determination of an issue is also appropriate where the resolution of that issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of a litigious controversy.[18]
[18] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 [88] (Ward JA) citing Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215.
The appellant characterises the decision on the preliminary issue in this matter as interlocutory and not binding.
In support of its argument it relies upon observations made by Murray J in Metcalf v Permanent Building Society (in liq).[19]The question in Metcalf was whether a decision by the trial judge upon preliminary issues was a final decision, from which an appeal would lie as of right, or an interlocutory decision, requiring leave to appeal from either a judge or the Full Court pursuant to s 60(1)(f) of the Supreme Court Act 1935 (WA). In determining this question Murray J observed:[20]
It has been held that a decision on a preliminary issue is interlocutory rather than final: see Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 670. That decision of the Full Court of Victoria does not depend upon any consideration as to whether or not to deal with the preliminary issues raised effectively disposes of the litigation. The decision turns simply upon the fact that the answers given by the court in respect of the preliminary issues raised will not themselves directly affect the position of the litigants or finally resolve their rights. In Victoria, as in Western Australia, it remains necessary to move for judgment. The relevant provision of the Rules of the Supreme Court 1971 is O 32, r 7. The only orders made upon the preliminary issues in this case, as I understand it, are the orders made by his Honour on 7 December 1992, answering the questions raised by the statement of those issues and reserving the costs of their trial.
It is clear I think, that such an order is not final, but merely interlocutory, because it is not such as to finally determine the rights of the parties in a principal, rather than subsidiary, cause pending between them. It is clear that more remains to be done before the final resolution of the issues between the parties is achieved. This is not a case which requires attention to any fine distinctions or which requires any refinement of the test broadly formulated above. Expressed in those terms the test has been accepted as flowing from decisions of the High Court in a number of recent decisions in this Court: see Ex parte Stiles (1989) 2 WAR 270 at 274-275; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 at 387-388; Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 at 228; Lewandowski v Lovell (1991) 4 WAR 311 at 312-314.
[19] Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145 (Rowland & Seaman JJ agreeing).
[20] Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145 [149] (Rowland & Seaman JJ agreeing).
In Metcalf, five preliminary issues were heard and determined by the trial judge which went to the terms of construction of a management contract. Although Murray J found that the terms of the order made by the trial judge did not constitute a final decision but merely an interlocutory decision, his Honour observed a final decision is one that finally determines rights in a principal, rather than a subsidiary, cause pending between the parties. Importantly, in making this distinction, his Honour did not find that a decision on a preliminary issue is not, or could not, be binding in the final determination of the cause of action pending between the parties.
The appellant also relies upon a decision of the New South Wales Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services[21] in which the Court of Appeal had before it applications for leave to appeal from two interlocutory decisions of a lower court. The first interlocutory decision was an order stating a separate question for determination prior to the hearing on the merits and the second interlocutory decision was a decision answering the separate question.
[21] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA103; (2013) LGERA 182.
In Allandale, there was no argument about whether the decision stating the question for separate determination and the decision answering the question were interlocutory or final decisions. Nor did the New South Wales Court of Appeal consider whether the interlocutory decisions were binding upon the parties in the pending cause between them. It is notable, however, that unless the decision answering the separate question in Allendale was to be taken to be binding it is difficult to see why leave to appeal was sought to set aside the decisions.
In this matter, the order made on the preliminary issue constitutes a 'decision' against which an application for leave to appeal could have been made. The 'decision' determined a disputed issue between the parties as to the proper use classification of the proposed development. The respondent also says it is immaterial to describe such a decision as either 'interlocutory' or 'final', because leave to appeal in this matter does not turn on this question.
The respondent also argues that even if the appellant is not contending that the 'decision' was incorrect, it is still attacking the binding nature of the 'decision' and is thereby attacking it collaterally.
The issue raised in this appeal is solely about whether the 'decision' on the preliminary issue bound the parties such that:
(a)there was no longer any dispute about the proper characterisation of the use classification of the proposed development from the date the decision was given on 25 August 2016; and
(b)therefore the Tribunal at the hearing on 1 and 2 February 2017 did not 'have before it' any material relevant to that issue, because it was not called on to make a 'decision' on that issue and because the decision on the preliminary issue was binding the Tribunal had no power to consider or determine that issue.
Although the respondent makes a submission that it is immaterial to describe the decision on the preliminary issue as either 'interlocutory' or 'final', it points to a line of authorities which, if applied, has the effect that the determination of a preliminary issue if, on a proper analysis, is the first part of a final hearing, will not be an interlocutory decision. This line of authorities emerges from a decision of the United Kingdom Court of Appeal in White v Brunton.[22]
[22] White v Brunton [1984] 2 All ER 606.
In White v Brunton, the trial of issues was split in an action for damages for breach of contract. By order, a preliminary issue was tried going to issues of liability. Like Metcalf and Allandale, an issue arose as to whether leave to appeal was required to appeal the decision given on the preliminary issue.
In White v Brunton, whether leave to appeal was required turned on the question of whether the decision on the preliminary issue was an interlocutory decision. Sir John Donaldson MR aptly pointed out that clarity on the issue as to what is and what is not an interlocutory order or judgment is obscured. His Honour then set out two approaches that had been applied in other matters to determine this issue:[23]
In Schubrook v Tufnell (1982) 9 QBD, [1881-8] All ER Rep 180 Jessel MR and Lindley LJ held, in effect, that an order is not final if it finally determines the matter in litigation. Thus the issue of final or interlocutory depended on the nature and effect of the order as made. I refer to this as the 'order approach'.
In Salaman v Warner [1891] 1 QB 734, in which Shubrook's case does not appear to have been cited, a Court of Appeal consisting of Lord Esher MR, Fry and Lopes LJJ held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended on the nature of the application or proceedings giving rise to the order and not on the order itself. I refer to this as the 'application approach'.
[23] White v Brunton [1984] 2 All ER 606, 607.
The Master of the Rolls applied the 'application approach' to whether in the matter before him, the decision on the preliminary issue was a final and not an interlocutory decision. His Honour then observed:[24]
It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter on the ability of the court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.
[24] White v Brunton [1984] 2 All ER 606, 608; White v Brunton was applied without discussion of the point in issue in the matter by Wheeler JA in Kishell v Nilant [2006] WASCA 223 [29].
The principle enunciated by Sir John Donaldson MR in White v Brunton was applied by Master Bredmeyer in State Government Insurance Commission v Hipwell.[25] However, the 'application approach' referred to by the Master of the Rolls has not been applied in the Supreme Court of Western Australia or by the High Court.
[25] State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994).
In Hipwell, the Master found a decision on liability in a split trial of issues was a final judgment and in those circumstances the State Government Insurance Commission did not need leave to appeal from the judgment.
Mr Hipwell had sued the State Government Insurance Commission for personal injuries arising out of a motor vehicle accident. When the matter came on for hearing there was a problem about the availability of witnesses and it was resolved by agreement that Commissioner Birmingham should hear the witnesses as to liability and decide that question and leave the question of damages to a later date. Commissioner Birmingham proceeded to do so. The State Government Insurance Commission appealed against the decision on liability and an argument was put that leave to appeal was required as the decision was an interlocutory one as it left damages to be assessed.
In Hipwell, Master Bredmeyer made no reference to the application approach applied by Sir John Donaldson MR. However, the Master applied the principle in White v Brunton that if a first part of a final hearing is heard as a preliminary issue and not as an issue preliminary to a final hearing, any party may appeal without leave (against an order or judgment made on the preliminary issue) if he could have appealed without leave against the order or judgment if the issue (dealt with as a preliminary issue) had been heard as part of the final hearing and an order or judgment had been made on all the issues at the end of a complete hearing.[26]
[26] State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994) 7 ‑ 8.
Material to the reasoning of Master Bredmeyer is a finding that in the case decided by Commissioner Birmingham no further application could be made which could affect his decision on liability.[27] For those reasons, Master Bredmeyer considered the application for leave should be dismissed (as no leave was necessary to appeal).
[27] State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994) 9.
Master Bredmeyer in Hipwell also observed that the decision of Olney J in TAG Pacific Ltd v McSweeney[28] supported the view that he had expressed.[29]
[28] TAG Pacific Ltd v McSweeney (1991) 34 FCR 438.
[29] State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994) 9.
In TAG Pacific Ltd, Olney J had made orders for a separate trial on questions of liability prior to trial on quantum. Following a hearing confined to the question of liability, Olney J determined that the applicants were entitled to recover damages against the respondents and gave judgment for the applicants for damages to be assessed. The respondents applied to Olney J for leave to appeal from the decision. Olney J found that leave was unnecessary.
In TAG Pacific Ltd, his Honour dismissed the application for leave to appeal on grounds that applying the reasoning in White v Brunton, the proceedings under review related solely to the question of liability and the rights of the parties that were at issue had been finally determined as between the parties, and consequently the judgment given on the preliminary issue was final and not interlocutory. His Honour, however, did not apply or refer to the application test referred to by Sir John Donaldson MR in White v Brunton. Instead, Olney J applied the test for determining whether a judgment of a court which comprises orders are final or interlocutory is the test applied and expressed by Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc which is as follows:[30]
What is plain is that the judgment of that court comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. The question then is whether a judgment of that kind is a final judgment within the meaning of s 33(4) of the Federal Court of Australia Act, and s 35(3) of the Judiciary Act as they stood at the material time.
The test for determining whether a judgment is final, which has been laid down in a number of cases including Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; 34 ALR 449, is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable.
[30] Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767, 767 - 768.
Olney J found that the opinion of the Master of the Rolls in White v Brunton was entirely consistent with decision of High Courts in Carr v Finance Corporation of Australia Ltd (No 1)[31] and Computer Edge.[32]This is because in Computer Edge all of the issues which had been before the court below had not been finally disposed of until all of the rights of the parties were determined in a final hearing.
[31] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246.
[32] Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767.
In Carr v Finance Corporation of Australia Ltd (No 1),[33] the High Court found that an order of the Supreme Court of a State refusing to set aside a judgment obtained upon the default of a defendant in delivering a defence does not finally dispose of the rights of the parties. Hence, such an order was not a final order and an appeal did not lie as of right to the High Court.
[33] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246.
In Carr v Finance Corporation of Australia Ltd (No 1), Gibbs J explained why the test to be applied in determining whether a judgment is final or interlocutory is not whether the practical effect of the order or judgment appealed against is to finally dispose of the rights of the parties, but rather whether that is the legal effect of the order or judgment:[34]
The test now applied in this court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 8 ALR 437 at 446 ; 50 ALJR 439 at 444 . An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423 at 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
In my opinion the test in Licul v Corney requires the court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken ‑ an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the court's power to grant special leave to appeal.
[34] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, 248
What emerges from these observations is that whether the legal effect of an interlocutory judgment or order is binding is not relevant to the question of whether a judgment or order is final or interlocutory as the issue turns on whether the issues in the action have been disposed of. It does not follow, however, that because a judgment or order is interlocutory the legal effect of the judgment or order is not decisive of any issues between parties in a cause of action.
Whilst the 'application approach' applied by Sir John Donaldson MR in White v Brunton has not been considered by the High Court, Brennan J in O'Toole v Charles David Pty Ltd[35] cited Gray v Dalgety & Co Ltd,[36] with approval for the point that a decision which concludes an issue tried separately is a final order and is not open to review except on appeal, even though the decision does not conclude the entire cause of action or proceeding.[37] Brennan J also cited White v Brunton as authority for the same point.
[35] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232.
[36] Gray v Dalgety & Co Ltd (1916) 21 CLR 509.
[37] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 257; see also the observation made to the same effect by Dixon CJ in Hall v Busst [1960] HCA 84; (1960) 104 CLR 206, 218.
In Gray v Dalgety, Isaacs J observed:[38]
In my opinion, the principle enunciated by Lord Macnaghten for the Privy Council in Badar Bee v Habib Merican Noordin, (1909) AC 615 at p 623, applies. There His Lordship said ‑ 'It is not competent for the court, in the case of the same question arising between the same parties, to review a previous decision not open to appeal.' This, as was laid down by the same tribunal in Ram Kirpal Shukul v Mussumat Rup Kuarai, LR 11 IA 37, is not rested on any special statutory provision, but is a general principle of law. It is a settled doctrine of public policy based on the maxim interest reipublicae ut sit finis litium. It applies not merely to final judgments and orders in the sense which contrasts them with interlocutory judgments and others, but applies also to interlocutory decisions. This was definitely settled by the same august tribunal in Ram Kirpal v Rup Kuarai LR 11 IA at p 41, where it was said, speaking of the matter decided ‑
'It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution.
Their Lordships said ‑
'The judgment or order of Mr Probyn was an interlocutory judgment, he merely held that according to the proper construction of the decree of the Sudder court, mesne profits were awarded by it. He did not assess the amount.'
Later on, their Lordships say that if no appeal lay it was final; and if an appeal lay, and none was preferred, it was equally final and binding. But there the word final is used in antithesis, not to interlocutory, but to the power to dispute its correctness. They meant it was final in effect as distinguished from final in nature.
[38] Gray v Dalgety & Co Ltd (1916) 21 CLR 509, 541 ‑ 542; interest reipublicae ut sit finis litium: translated, in the interests of society as a whole, litigation must come to an end.
In O'Toole,[39] the issue was whether a case stated by a single Judge (to the Full Federal Court for hearing and determination) of seven questions was binding on parties and the High Court after the Full Court had answered the questions and the Attorney General for the Commonwealth had obtained an order under s 41(1) of the Judiciary Act 1903 (Cth) removing the whole cause into the High Court. In determining the issue, the High Court found that whether answers to preliminary questions in a stated case are binding on parties and the court depends upon whether the answers are advisory or consultative only, or answers which determine rights in a suit. The former category appears to be for the most part cases stated to a court which lacks jurisdiction to entertain and determine the basic proceeding in which the question or questions arise.[40] Other examples of advisory or consultative opinions are questions of law which may arise in a suit.
[39] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232.
[40] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 243 (Mason CJ).
Whilst questions stated for a determination by a court may be procedurally different to a determination of issues in split proceedings, as to whether answers given in preliminary issues are binding, in my respectful opinion, the same issue can be said to arise in proceedings for a stated case as in split proceedings. In O'Toole, Mason CJ observed in this regard:[41]
… not all answers to a stated or special case which do not determine rights in suit are not binding on the court or tribunal stating the case. When a statute provides for a case to be stated by a judge exercising original jurisdiction to the Full Court or appellate division of the court of which he is a member and also provides that the court to which the case is stated shall determine the question reserved in the case, in my view the determination of that question is binding on the judge exercising original jurisdiction and on the parties. That result is surely what the language and the context of the provision contemplate. The hierarchy of the court system and the doctrine of precedent combine to support this interpretation. The effect of the determination of the questions reserved by the case is just as if the primary judge had determined the questions as preliminary questions of law in advance of the hearing of the action.
[41] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 244 ‑ 245 (Mason CJ). In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [8], the plurality applied the reasoning of Mason CJ in O'Toole and observed that there are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties.
His Honour then went on to say that the views that he has expressed have the support of comments made by Diplock LJ in Fidelitas Shipping Co Ltd v V/O Exportchleb.[42] The same point was made by Brennan J.[43] Before referring to the observations of Diplock LJ, Brennan J said:[44]
The question whether an appeal may lie from an answer given by an intermediate court thus corresponds with the question whether the answer concludes the parties' rights and obligations. The applicable principle was recently stated by this Court in Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (3):
'It is well settled that an order must finally determine the rights of parties before it will qualify as an order within the meaning of s 73 of the Constitution and s 35 of the Judiciary Act 1903 (Cth): Smith v Mann (4); Minister for Works (WA) v Civil & Civic Pty Ltd (5); Yule v Junek (6); Fisher v Fisher (7). Thus, a distinction has been drawn between answers given to questions in a stated or special case which determine the rights of the parties (Smith v Mann (8)), and answers to a stated or special case which are advisory or consultative only: Minister for Works (WA) v Civil & Civic Pty Ltd (9). The former, but not the latter, constitute an order within the meaning of s 73 and s 35.'
(See also President of India v Moor Line Ltd [No 2] (10).) The passage cited cannot be taken to exclude all interlocutory orders from being appealed, but it excludes appeals from answers to questions of law which are given merely to guide a judge at trial.
In some circumstances, it appears that the reserving of a question for the consideration of a court which ordinarily sits on appeals amounts to an order that the question reserved be tried as a separate issue by the appellate court. Where the answer given by the appellate court does conclude the issue, the effect of that answer is binding on the parties at all subsequent stages of the proceeding unless set aside on appeal: Badar Bee v Habib Merican Noordin (11); Ram Kirpal Shukul v Mussumat Rup Kuari (12); Gray v Dalgety & Co Ltd (13); Fidelitas Shipping Co Ltd v V/O Exportchleb (14), esp per Diplock LJ (15).
[42] Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642.
[43] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 260 (Brennan J).
[44] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 259 – 260 (Brennan J).
Brennan J then went on to set out the following passage of Diplock LJ in Fidelitas Shipping:[45]
Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.
This is but an example of a specific application of the general rule of public policy, nemo debet bis vexari pro una et cadem causea. The determination of the issue between the parties gives rise to what I ventured to call in Thoday v Thoday ([1964] 1 All ER 352; [1964] P 181, 198) an 'issue estoppel'. It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined.
[45] Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642.
What emerges from this passage of Diplock LJ in Fidelitas Shipping is that where an issue is determined decisively in separate preliminary proceedings within the same suit, even though the decision on the preliminary point is not decisive of the entire suit, the broad rule of public policy, nemo debet bis vexari pro una et cadem causa (a person ought not to be vexed twice for one and the same cause), applies as a broad rule of public policy that operates so as to give rise to an issue estoppel in subsequent proceedings in the same suit in which the issue has been determined.
Turning to the application of these principles to this matter, the first question to be determined in this appeal is whether the decision by the Tribunal on the preliminary issue is an interlocutory or final decision.
The relevant considerations to be determined by the Tribunal in the final hearing that disposed of the review application, that being whether approval for the proposed development should be granted, turned on, among other issues, the proposed use of the land. It was an aspect of the proceeding that could be and was properly determined separately as a preliminary issue and the parties accepted that it should be.
In this matter, the aspect of the application for review that constituted the issue that was heard and determined separately as a preliminary issue was, but for the order splitting the proceedings, part of the issues that were required to be determined in a final determination of all of the issues in the application. If the issues had not been split and there was only one hearing, the 'use' of the land heard as a preliminary issue would have had to have been determined in the same hearing which disposed of the matter in the review application.
But for the definitions of 'decision' and 'final decision' in s 3(1) of the SAT Act, the determination of the preliminary issue in this matter could be characterised as final in the sense of a decision binding and final in nature. However, it is clear that the definition of 'final decision' in s 3(1) excludes such a construction. A 'final decision' within the meaning of s 3(1) only encompasses a decision of the Tribunal that disposes of the matter raised in the application in the sense that the decision finally disposes of all matters raised in the application.
However, for the reasons expressed by Mason CJ and Brennan J in O'Toole, and Isaacs J in Gray v Dalgety, it is immaterial whether an order in respect of a preliminary issue as made in this matter is to be regarded as an interlocutory decision. The real issue is whether the order setting out the terms of the decision made on the preliminary issue was binding on the parties and the Tribunal during the final hearing and when the Tribunal made the final decision disposing of all of the matters raised in the application.
As the respondent properly points out, the determination of a preliminary issue could have been challenged on appeal. Pursuant to s 105 of the SAT Act, leave is required to appeal a decision of a Tribunal on a question of law, providing the decision of the Tribunal is a decision as defined in s 3(1) of the Act. Consequently, leave to appeal is required to appeal a decision pursuant to s 105 irrespective of whether a decision is a 'decision' or a 'final decision' within the meaning of s 3(1) of the SAT Act.
Pursuant to s 82 and s 106 of the SAT Act, unless by order of the court a decision of the tribunal is stayed pending a determination of an application for leave to appeal, a decision of the tribunal comes into effect immediately after it was given.
The statutory direction given in s 27(1) and s 27(3) of the SAT Act, to the Tribunal to review a reviewable decision by way of a hearing de novo and to produce the correct and preferable decision at the time of the decision upon the review, must be read together with the operative effect of s 51A and s 82 of the SAT Act.
When a decision of the Tribunal has been previously given on a preliminary issue (in absence of an appeal of the preliminary decision) but for the split proceedings (that is, determined pursuant to the power conferred by s 51A of the SAT Act) would have been determined together with all other matters) the Tribunal in determining the correct and preferable decision at the time of the review, that is to result in a 'final decision', is bound to apply the decision given on the preliminary issue.
In this matter, the appeal is for leave against the final decision given by the Tribunal in the review proceedings to approve the development of the land. Absent an application for leave to appeal (out of time) against the decision on the preliminary issue, the decision on the preliminary issue cannot be set aside on grounds that an amendment to Planning Scheme 21 became operative on 4 August 2017.
When s 51A is read together with the operative effect of s 105 of the SAT Act, the determination of the preliminary issue in this matter (that is, the proper classification of the use of the land in the proposed development was 'service station' as defined in Planning Scheme 21 prior to 4 August 2017) was and is binding upon the parties and the Tribunal in making the final decision and is not a matter open to be challenged in this appeal.
For these reasons, I am not satisfied that error as alleged in ground 1 of the appeal has been made out. To the contrary, I am of the opinion that no error arises. It follows, therefore, that the issues sought to be raised in proposed ground 2 of the appeal do not arise.
It also follows that it is not strictly necessary to consider whether on the giving of the decision on the preliminary issue, a right accrued to the respondent to have the Panel's decision to refuse development approval be reviewed by the Tribunal (when making a final decision) by regard to the definition of 'service station' in Planning Scheme 21 as it was defined immediately prior to 4 August 2017.
However, as this matter was argued at length, I intend to consider this point.
Did a right accrue to the respondent to have the application for development approval determined under the law (Planning Scheme 21) as it stood immediately prior to 4 August 2017?
Importantly, the SAT Act confers upon the Tribunal in its review jurisdiction the power to make a decision in substitution for the decision made by the decision‑maker under review. The SAT Act empowers the Tribunal to exercise all the powers and discretions conferred by any relevant enactment under review and conferred on the original decision‑maker.[46]
[46] See Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88, 91 (Davies J); applied in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [33] (Kirby J).
The appellant argues that the respondent had no accrued right to have the application for review determined on the basis of the provisions of Planning Scheme 21 in force as at the date the application for review was lodged in the Tribunal.
The respondent contends the preliminary decision conferred a substantive right (subject to any appeal against that decision) that accrued, acquired or established that the proposed use of the land was classified 'service station' as defined in Planning Scheme 21 prior to 4 August 2017. That right, it is argued, was a right to have the remainder of the aspects raised in the application for review in the separate hearing determined in accordance with that determination of the classification of the proposed use of the land.
Accrued rights are rights that are to be determined under a law as it stood when the right accrued. Such a rule arises from the principle at common law that all matters that have taken place under the repealed law before its repeal are valid and cannot be called into question.[47] This principle is embodied in s 37(1) of the Interpretation Act. Section 37(1)(b), (c) and (f) of the Interpretation Act provides:
[47] R v Inhabitants of Denton (1852) Deas 3, 8; 169 ER 612, 614; applied by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267 and Brennan J in Esber v Commonwealth of Australia (1992) 174 CLR 440, 445.
37.General savings on repeal
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
…
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
It is established that amendments to legislation by substitution of a new provision constitutes a repeal within the meaning of s 37(1).[48]
[48] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1.
Section 37(1) of the Interpretation Act applies to all repeals of an enactment unless the contrary intention appears.
The appellant makes a submission that no accrued right can arise as the operative effect of s 27(2) of the SAT Act is that it is expressly required that the application for review of any development application be determined on the basis of the law as it stands at the time of the determination, whether by an original decision‑maker, or on review, or appeal, by a court or tribunal.[49]
[49] State Administrative Tribunal Act 2004 (WA) s 27(2).
A provision similar to s 27(2) of the SAT Act was considered by the majority of the High Court in the decision of Esber v Commonwealth of Australia[50] and found not to be material.
[50] Esber v Commonwealth of Australia (1992) 174 CLR 430.
Esber involved a challenge to a decision by a delegate of the Commissioner for Employees' Compensation not to allow Esber to convert weekly payments of compensation into a lump sum under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). After the application for review was made but before the hearing by the Administrative Appeals Tribunal (AAT), the 1971 Act conferring the right to convert weekly payments was repealed and replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) that provided that:
(a)weekly payments of over $50 were not redeemable; and
(b)proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued.
Section 129(2) of the 1988 Act enacted a transitional provision which provided that proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued on and after that day.
Their Honours in Esber considered the effect of s 8(c) and (e) of the Acts Interpretation Act 1901 (Cth) (which are in substance to the same effect as s 37(1)(c) and (f) of the Interpretation Act). The majority found that Esber had a right acquired or accrued to have an application reviewed and determined by the AAT pursuant to the provisions of a repealed Act.
Mason CJ, Deane, Toohey and Gaudron JJ found that although Esber had no right to a favourable determination by the AAT, he had an acquired or accrued right to have the decision of the delegate reviewed and determined pursuant to the 1971 Act.
The majority in Esber observed that the AAT (like the Tribunal pursuant to s 27(2) of the SAT Act) is required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision as to whether or not the decision of the delegate was correct or the preferable one on the material before the AAT. However, their Honours then went on to state that was not the point, that Esber:[51]
[H]ad a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister [The Winbar Claim]:
'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substitute right. Section 8 of the Acts Interpretation Act protects anything that may truly be described by a right, 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.
[51] Esber v The Commonwealth (1992) 174 CLR 430, 440.
The appellant in this matter puts forward arguments that:
(a)Esber should be approached with caution in light of a subsequent decision of the High Court in Attorney General (Queensland) v Australian Industrial Relations Commission (AIRC);[52] and
(b)on a proper analysis of the facts of this matter the respondent has no accrued right to have its development application determined as if the amendment to Planning Scheme 21 had not been made on 4 August 2017.
[52] Attorney General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485.
The appellant says that the respondent had no more than a mere hope or expectation that the Tribunal would exercise its discretion in its favour, which does not constitute a 'right' accrued by it for the purposes of s 37 of the Interpretation Act. For reasons that follow, I respectfully disagree. Although the law is clear that a mere hope or expectation is not sufficient to constitute a right, I do not agree in the circumstances of this matter an accrued right did not vest in the respondent.
In Santos v The State of Western Australia, Hall J observed that a narrow concept of an accrued right should not be adopted. Importantly, his Honour said:[53]
It is important not to use too narrow a concept of an accrued right otherwise the essential justice of the rule against the retrospective operation of laws that affect rights or liabilities would be eroded: Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139, 151 (Mason, Murphy and Wilson JJ). In Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 [40] Kirby J used the word 'entitlement' rather than 'right'. He said that this 'indicates that what is involved may fall short of an immediately enforceable legal right in the strict sense' (see also The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [37] - [40] (Steytler P). However, an accrued right must be distinguished from a mere hope or expectation that a right will be created: Director of Public Works v Ho Po Sang [1961] AC 901; Mathieson v Burton (1971) 124 CLR 1, 23 (Gibbs J); Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 [20] ‑ [33] (Steytler P).
[53] Santos v The State of Western Australia [2011] WASCA 216 [157].
Despite the appellant's argument that Esber should be treated with caution, Esber has not been overturned by the High Court. In AIRC, no party sought to reopen Esber. The facts of AIRC were distinguished from Esber by Gaudron, McHugh, Gummow and Hayne JJ who held there was no accrued right of the kind preserved by s 8(c) of the Acts Interpretation Act. In a separate judgment, Kirby J also distinguished Esber on the facts before him. His Honour observed it was unnecessary to respond to the suggestion that the court should reconsider the obiter remarks of the majority in Esber and review them, taking into account the persuasive dissenting opinion of Brennan J.[54]
[54] Attorney General (Qld) v AIRC (2002) 213 CLR 485 [137].
In support of its argument, the appellant also relies upon a decision of Senior Member Parry in Miller and City of Stirling[55] who applied the principle that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision-maker or on review or appeal by a court or tribunal.[56]
[55] Miller and City of Stirling [2007] WASAT 247.
[56] Miller and City of Stirling [2007] WASAT 247 [35];The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 [20]; see also The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126.
In Miller, no accrued right could arise as the applicant did not seek a review of a refusal of a development application until some weeks after the repeal of a clause from a planning scheme which was said to be the subject of an accrued right. Notwithstanding that Senior Member Parry found that no accrued right arose on the facts before him, he made a number of observations about Esber and a decision of Barker J in Western Australian Planning Commission and CPP Pty Ltd.[57]
[57] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379.
In CPP, the West Australian Planning Commission (the Planning Commission) commenced review proceedings before the President of the Tribunal for a review of a decision of a member that s 20(5) of the Town Planning and Development Act 1928 (WA) (repealed) (1928 Act) applied in the determination of the review proceedings. Section 20(5) was operative when review proceedings were commenced but was repealed before the member of the Tribunal heard the application for review. Section 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (the Transitional Act) repealed the 1928 Act. At the same time, s 138 of the 2005 Act came into force. The issue before the member of the Tribunal was whether in determining the application before him s 20(5) of the 1928 Act or s 138(2) of the 2005 Act applied. The consequence of applicable law to the determination of the application was important as the provisions set out diverse approaches to be applied by the member when sitting in the shoes of the Planning Commission. Section 20(5) provided:
In giving its approval under sub-section (1)(a), the discretion of the Commission is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration.
Section 138(2) provided:
Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
Consequently, if s 20(5) applied, when determining the application the member of the Tribunal was only required to have regard to compliance to the provisions of a town planning scheme in so far as the provisions were relevant to an environmental condition. Whereas, if s 138(2) applied, the member was required to have due regard to all of the provisions of a local planning scheme and not give an approval that conflicts with a local planning scheme.
In the review proceedings before the President of the Tribunal in CPP, the Planning Commission contended that the member erred in law in applying s 20(5). Barker J disagreed. Section 17 of the Transitional Act required that the 2005 Act was to be treated as if it repealed and re‑enacted the1928 Act. Accordingly, it was accepted by the parties that the relevant provisions of the Interpretation Act applied to the 2005 Act and the 1928 Act. Barker J found that the decision of the majority in Esber had been accepted as authoritative for some years.[58] However, his Honour also referred to the controversy surrounding the application of Esber and observed that:[59]
(a)the dissenting judgment of Brennan J in Esber was supported by Davies J in Lee v Secretary, Department of Social Security.[60] Nonetheless, the other members of the Federal Court in Lee applied Esber;
(b)in Dai Xing Yao v Minister for Immigration and Ethnic Affairs,[61] Black CJ and Sundberg J cast doubt upon the authority of Esber. The comments of Black CJ and Sundberg J are obiter, as the judges did not feel the need to express a final view on this point in the circumstances of that case;
(c)other judges have also expressed misgivings about the authority of Esber. For example, Spigelman CJ in Attorney General (NSW) v World Best Holdings Ltd[62] referred to the decision of the majority in Esber as 'problematic' and 'best explained as turning on the interpretation of the transitional provisions of the 1998 Act'; and
(d)the members of the High Court in AIRC distinguished Esber from the proceedings before it. The members of the High Court in AIRC did not expressly disapprove of the majority findings in Esber. Nonetheless, AIRC reveals that Esber should be treated with caution.[63]
[58] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [58].
[59] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [65], [69], [70].
[60] Lee v Secretary, Department of Social Security (1996) 139 ALR 57.
[61] Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273.
[62] Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 [63].
[63] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [71], [76].
Barker J nonetheless felt bound to apply Esber and held that CPP Pty Ltd had an accrued right to have its subdivision application determined in accordance with the conditions set out in the repealed law and found:[64]
[64] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [77].
Thus, while I consider there is a strong case to be made in support of the view that no right, interest, title, power or privilege is thereby created, acquired, established or exercisable prior to the operation of the repealing law in circumstances where an owner of land -
•has no existing right to subdivide land and may only subdivide if a statutory prohibition on subdivision is removed by a relevant approval authority;
•applies for such approval;
•is denied approval;
•then applies for review of that refusal as part of an administrative review process; and then
•before such review is complete finds that the law governing the exercise of the subdivision approval power has been changed by a repealing or amending law,
the decision in Esberstands as high authority in support of the contrary view and I can see no persuasive ground to distinguish Esber from the case before me. It is not for me, as a single judge, to purport effectively to set aside the decision in Esber. As a result, I should follow Esber.
In Miller, Senior Member Parry distinguished the facts before him and those in Esber and CPP and observed that it may be that the effect of the decisions in Esber and CPP is that they should be only applied in strictly comparable circumstances to the facts of those cases, namely to circumstances in which a written law repeals both an enactment that confers a right to seek a review/appeal and an enactment that regulates the way in which the application is to be determined, including on review/appeal.[65]
[65] Miller and City of Stirling [2007] WASAT 247 [43].
With respect, I do not agree with the observation made by Senior Member Parry that the observations made by the majority in Esber and the decision in CPP should be restricted to such circumstances. Such a construction is not supported by the express terms of s 37(1) of the Interpretation Act.
In Miller, Senior Member Parry also made a finding that the Full Court in Carcione Nominees Pty Ltd v Western Australian Planning Commission[66] assumed the correctness of the proposition that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision‑maker or on review/appeal by a court or a tribunal such as the Tribunal. However, it is not clear from the reasons of the Full Court in Carcione as to whether such an assumption can be drawn from their Honours' observations.
[66] Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97.
Whilst it appears from the cases cited in argument in Carcione that Esber was cited by counsel, no observations were made by the Full Court going to any issues of a right that could accrue as a result of the repeal of a legislative provision.
The matter before the Full Court in Carcione was an application for certiorari, mandamus and other declaratory relief. The application for certiorari was to quash an in principle decision by the Minister for Planning and Infrastructure to support a scheme amendment. Carcione Nominees Pty Ltd sought to challenge the recommendations on various grounds, including grounds that the Planning Commission acted for an improper purpose, or took into account an irrelevant consideration, and relied upon the fact that the Planning Commission's decision to recommend the approval of the amendment was taken at a time at the express request of the City of South Perth to stultify Carcione Nominees Pty Ltd's appeal to the Tribunal. The Full Court rejected that argument and found:[67]
… it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.
We should also reiterate that, in the application which was made before him on 1 June 2005, Barker J regarded the fact that there was an appeal pending in the Tribunal against a deemed refusal as having been totally irrelevant to the question whether or not the Council was entitled to initiate an amendment to the scheme as it did.
[67] Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 [90] ‑ [91].
It is notable that the Full Court simply found that a scheme amendment, if proceeded to be made, could result in the possibility of avoiding the approval of the development on review necessarily. Their Honours did not find that it would be a result of the effect of the scheme amendment.
In Miller, Senior Member Parry did not have regard to the then recent decision of Chaney DP in Health Resorts of Australasia Pty Ltd v Western Australian Planning Commission[68] which had been given in answer to preliminary questions, one of which was, what, if any, was the impact on the applicant's application of the gazettal of an amendment to a planning scheme that altered the law.
[68] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60.
In Health Resorts, the applicant had received approval from the City of Mandurah to develop a motel and accommodation complex. The City wrongly advised the applicant that the Peel Region Scheme required the applicant obtain approval from the Planning Commission. The applicant sought approval from the Planning Commission and approval was granted subject to a condition that the building be reduced by one storey. The applicant then sought a review of the Planning Commission's approval by the Tribunal. It argued that no approval from the Planning Commission was necessary. Shortly before the proceedings for review were commenced in the Tribunal, the Planning Commission amended the Peel Region Scheme as a resolution known as Resolution No 3 that had the effect of requiring its approval be obtained for development of the kind proposed by the applicant.
In Health Resorts, Chaney DP referred to the duty of the Tribunal required by s 27(1) of the SAT Act to conduct a review hearing de novo and to the obligation created by s 27(2) of the Tribunal to produce the correct and preferable decision at the time of the Tribunal's decision and said it follows that Resolution No 3 is a matter to which the Tribunal should have regard in considering its jurisdiction to consider the merits of its application.[69]
[69] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [24] ‑ [25].
His Honour then went on to observe that a mere hope or expectation of approval would have been insufficient for an accrued right to arise.[70] However, the event of grant of approval by the City of Mandurah elevated the expectation of acquiring a right (to development approval) to an acquired or accrued right.[71] His Honour explained:[72]
[70] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [35].
[71] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [35] ‑ [36].
[72] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [32] ‑ [35].
It is not, however, accurate to say that the applicant 'acquired a right to a development approval' by the grant of that approval. What the applicant did, in my view, acquire, however, is a right to develop its land on the conditions approved by the City and free of any need for WAPC approval under the PRS [Peel Region Scheme].
In Barminco, Steytler P, with whom Wheeler JA agreed, referred the apparent approval to the propositions extracted by Lord Hunter in Moray County Council v Maclean [1962] SLT 236; (1962) SC 601 at 606 namely:
'a)"[T]he mere abstract right to take advantage of a statutory enactment if 'right' it can properly be called, is not a 'right acquired' or a 'right accrued' within the meaning of s 38(2)(c) of the Act of 1889."
(b)"[E]ven if a person has taken steps to put statutory machinery in motion, the statutory proceedings may only by the date of repeal have reached the state when he has a hope or expectation of acquiring a right. In such a case it almost goes without saying that there is no right 'acquired' or 'accrued'."
(c)"[W]here statutory machinery has been set in motion and the statute is afterwards repealed, there may be a right 'acquired' or 'accrued' under the statute, although at the date of repeal further steps are still necessary to prove that the right did in fact exist at the date of repeal and even to prove the measure of the obligation incurred."
(d)"[A] right can, at any rate in certain circumstances, be a 'right acquired' although it may at the date of repeal still be of a contingent nature'."
Steytler P also made reference to the lead judgment by Simon Brown LJ in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 at 1787 where he said:
'True, as Lord Evershed observed in the Free Lanka case, at p 552: "The distinction between what is and what is not 'a right' must often be one of great fineness". But there are now to be found in the authorities helpful touchstones by which to reach the correct answer. A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right.'
The respondent submits that the applicant must point to facts or events prior to the change in law which conferred the right concerned. A number of examples were cited, such as the passage of time after a course of action arises (see Maxwell v Murphy (1957) 96 CLR 261 at 267), an injury (as in Barminco and Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1), the death of a tenant (Mathieson v Burton (1971) 124 CLR 1), the compulsory acquisition of land (for example Western Australian Planning Commission and Furfaro [2007] WASAT 24 at [27]), the commission of an offence triggering liability to penalty, and the making of invalid orders (Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557). The cases make clear that a mere hope or expectation of acquiring a right is insufficient, and generally it is necessary to identify some triggering event which elevate the expectation to an acquired or accrued right is necessary.
Chaney DP, however, found that the scheme amendment did not have the effect of depriving the applicant of an accrued right resulting from the approval obtained under the City of Mandurah planning scheme by the local authority. The entitlement was preserved by s 37(1)(c) of the Interpretation Act as a 'right or privilege' or as a 'status or capacity' by the operation of s 37(1)(b) of the Interpretation Act upon the gazettal of the scheme amendment.[73]
[73] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [36] ‑ [37].
In examining whether a contrary intention emerged to oust the application of s 37 of the Interpretation Act saving a repealed enactment, Chaney DP found the question was whether such an intention emerges from the repealing enactment. In Health Resorts, the repealing enactment was Resolution No 3 which amended the Peel Region Scheme and of the City of Mandurah Town Planning Scheme No 3.[74]
[74] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [40] ‑ [41].
Chaney DP distinguished the facts before him from CPP and Esber and found:[75]
In Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379, Barker J following Esber v Commonwealth of Australia (1992) 174 CLR 430, held that, where an application for review had been commenced prior to an amendment to legislation that altered the law as to the approach to be taken on the review, the applicant was entitled to have the review determined on the basis of the law as it stood at the time the application was made. In this case, Resolution No 3 was gazetted prior to the date on which the application for review was made. However the right enjoyed by the applicant in this case is not a right to have the review carried out under a particular legislative regime. Rather it was a right to proceed with the approved development without WAPC approval under the PRS. It is immaterial that these proceedings were not commenced until after the repeal of Resolution No 2, because the preserved right existed independently of the application for review of the WAPC decision that had been made without jurisdiction.
[75] Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 [42].
In Shire of Peppermint Grove v Owston Nominees [No 2] Pty Ltd,[76] a similar issue was raised to the point considered in CPP. In Owston Nominees, the 1928 Act and the enactment of the 2005 Act also gave rise to an argument whether a right had accrued under the 1928 Act.
[76] Shire of Peppermint Grove v Owston Nominees Pty No 2 Pty Ltd [2008] WASC 38.
In Owston Nominees, an issue arose about payment in lieu of public open space and the date of valuation of land which was dependent on the time approval by the planning authority and local government was given. Approval had been granted to Owston Nominees Pty Ltd by the Planning Commission to subdivide land conditionally upon ceding 10% of the land to the Crown to be used as public open space. At the time of the approval, Owston Nominees Pty Ltd were informed that pursuant to s 20C of the 1928 Act it could make a payment of money in lieu of the provision of land. Subsequently, the 1928 Act was repealed and replaced by the 2005 Act. The effect of the change was that the amount to be paid under the 1928 Act was to be calculated by reference to the valuation of the subject land as at the date of the subdivision approval, whereas the amount if calculated under the 2005 Act was to be calculated by reference to the value of the land at the date of valuation. The matter came before the court by way of an application for a declaration pursuant to O 58 r 11(1) of the Rules of the Supreme Court 1971 (WA). Templeman J considered the application of the reasoning in Esber in the context of a finding if made by him that the Shire of Peppermint Grove did not approve a cash in lieu payment before the 1928 Act was repealed. If that was the case then the matter turned on the construction of s 37 of the Interpretation Act.[77]
[77] Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd [2008] WASC 38 [84].
Templeman J observed that Esber had been regarded as 'problematic' by judges in other courts.[78] His Honour, however, went on to apply Esberand found:[79]
[A]s the majority of the High Court said in Esber, s 37 of the Interpretation Act 'protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent"' (440).
To hold otherwise, would, I think, be to give the 2005 Act a retrospective effect, which, in a rising property market would be likely to reduce the value of the conditional approval during its currency. There being no such intention appearing in the 2005 Act, it follows that the right to subdivide will be protected by s 37(1)(c) of the Interpretation Act: see Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88.
I therefore conclude that the right to subdivide which was given to the defendant by the WAPC's conditional approvals relating to stages 2 and 3, carried with it, albeit contingently, the right to make a payment in lieu of setting aside land for public open space, such a right arising under s 20C of the 1928 Act and entitling the defendant to have the relevant valuation carried out in accordance with the provisions of that Act.
[78] Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd [2008] WASC 38 [83].
[79] Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd [2008] WASC 38 [89] – [91].
The Court of Appeal in Western Australia has not indicated any need to treat Esber with caution. Esber has been distinguished by the Court of Appeal in three matters.[80] Esber has received neutral treatment by the Court of Appeal in two matters[81] and has been applied in two matters.[82]
[80] Re Ciffolilli; ex parte Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205; Atanasio v BT Refinery (Kwinana) Pty Ltd [2011] WASCA 95; Santos v The State of Western Australia [2011] WASCA 216 [74] (Buss JA, McLure P agreeing).
[81] Hayley v The Queen [2006] WASCA 33; Executive Director, Public Health v Meers [2007] WASCA 187.
[82] Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1; Shire of Augusta-Margaret River v Gray [2005] WASCA 227.
In Toolan v Metropolitan (Perth) Passenger Transport Trust,[83] the Court of Appeal applied Esber. In that matter leave of the District Court was required to commence proceedings to recover common law damages for personal injuries by virtue of s 93D(4) of the Workers Compensation and Rehabilitation Act 1981 (WA). On 20 May 1999, the District Court refused leave and Mr Toolan appealed to the Full Court. Before the appeal was heard, the Workers Compensation and Rehabilitation Act was amended to introduce a new regime limiting the opportunity for a worker injured at work to sue for damages at common law. Transitional provisions had been enacted which provided that the amended provisions did not affect the awarding of damages in proceedings commenced before the assent day (5 October 1999), or for proceedings, the commencement of which the District Court gave leave under the former provisions before the assent day.
[83] Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1.
Two issues arose in Toolan. These were whether the primary judge erred in refusing the appellant leave to commence proceedings in the District Court and, if so, should the Full Court make an order giving the appellant leave to commence proceedings, after the 1999 amendment came into effect.
Parker J applied the decision of the majority in Esber and found Toolan had a right to a grant of leave to commence proceedings for damages at common law and an accrued right to seek damages at common law conditional on two matters, a grant of leave by the District Court under the former provisions and on the relevant facts being established to justify the making of an award of damages.[84] Thus, Toolan had a right, nonetheless because it was conditional, which had accrued to Toolan because he had pursued his application for leave to the point of a decision by the court only to have leave refused, and had instituted an appeal against that refusal and was duly pursuing the appeal in accordance with the former provisions. Thus, Toolan had taken clear and manifest steps under the statutory scheme towards availing himself of that right. These steps had been taken prior to the 1999 amendments coming into force. In these circumstances, Parker J found that Toolan had acted sufficiently to take advantage of his contingent right to an award of damages in accordance with the former provisions and that right was a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c) of the Interpretation Act.[85]
[84] Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1 [53].
[85] Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1 [62]. Pidgeon and Owen JJ agreed with the reasoning of Parker J, while Malcolm CJ and Wheeler J each delivered separate judgments in which they did not refer to Esber.
In Shire of Augusta-Margaret River v Gray,[86] McLure JA relied on the decision of the majority in Esber to determine that Gray had an accrued right to have a review application heard and determined by the Tribunal, applying the law in force at the time of the initial decision. Gray had applied to the Planning Commission under s 20(1)(a) of the 1928 Act for approval to subdivide land. The Planning Commission refused the application. Gray lodged a notice of appeal with the Planning Tribunal (now abolished). Gray had a right of appeal to the Planning Tribunal under s 26(1)(a)(i) and pt 4 of the 1928 Act. The Shire of Augusta sought to be joined as a party or make submissions to the Planning Tribunal. The application was refused by the President of the Planning Tribunal. Before the hearing of the substantive matter the Planning Tribunal was abolished and a right of review by the State Administrative Tribunal replaced the right of appeal to the Planning Tribunal. In the proceedings before the Full Court on the return for an order nisi for a writ of certiorari and in an appeal, brought under s 105 of the SAT Act, the grounds of challenge to the decisions in the judicial review application and the appeal were the same. They were that the Tribunal erred in law:[87]
(1)in applying the wrong test in refusing to order joinder or, alternatively, submissions;
(2)by taking into account irrelevant considerations;
(3)in that the material before the Planning Tribunal compelled joinder of the Shire.
[86] Shire of Augusta-Margaret River v Gray [2005] WASCA 227.
[87] Shire of Augusta-Margaret River v Gray [2005] WASCA 227 [10].
A question arose in Shire of Augusta-Margaret River v Gray as to what was the law that applied to the determination of the matters in the court (the judicial review application) and the law that would apply if the Shire of Augusta-Margaret River was successful (in the appeal). In determining the issues it was necessary to have regard to the pre and post amendments to the SAT Act.
McLure JA observed that the SAT Act was silent on the law that applied to the determination of the appeal and the judicial review proceedings, and in these circumstances her Honour found that s 37 of the Interpretation Act applied.[88] Her Honour observed:[89]
The respondent contended that even if the Planning Tribunal erred, prerogative relief should be refused because the current law applies and that prevents joinder. Both parties' submissions are based on the premise that SAT cannot order joinder of the Shire. If that is correct, it would also affect the appeal. Assuming the appeal is competent and this Court has the power to vary the Planning Tribunal's decision, the Court would have to apply the law as it stands as at the date of the hearing of the appeal, it not being an appeal stricto sensu: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203. That law includes the relevant transitional provisions.
Thus, the issue is whether, having regard to the abolition of the former adjudicator, SAT can and must apply the law as it stood before the transfer day, notwithstanding it would be beyond its power under the new statutory regime. There is no fundamental impediment to such a course; it is simply a question of whether that is what the legislature intended: Esber v Commonwealth of Australia (1992) 174 CLR 430. In that case, a newly created statutory decision-maker was established to administer an amended Commonwealth employees' compensation scheme. Prior to the commencement of the new arrangements, the appellant had been unsuccessful in an application to the former decision-maker for the redemption of weekly payments and had appealed to the Administrative Appeals Tribunal ('AAT'). The new scheme contained no provision for redemption. The High Court held that on the proper construction of the amended compensation legislation, s 8 of the Acts Interpretation Act 1901 (Cth) (the equivalent of s 37 of the Interpretation Act (WA)) applied and the appellant had a substantive right to have the decision reconsidered and determined by the AAT in accordance with the former law. If this Court had the power, either in the appeal or in the review application, to substitute its decision on the merits for that of the Planning Tribunal, the facts would be in line with Esber. The question now is whether SAT has the power.
I have already concluded that, if the decisions are set aside or quashed, the joinder and submission applications are part of the subdivision appeal transferred to SAT under s 167(4)(a). Accordingly, SAT has the power (and duty) to determine those applications. Whether or not SAT must apply the law in force before the transfer is also a question of construction. It is arguable that subs (8), (9) and (13) are intended to cover the field so that, by implication, the law in force before the transfer to SAT does not apply where a transfer is effected under subs (4)(a) of s 167. That appears to be the intention in relation to the devolved matter. However, the section is silent in relation to pending applications in a devolved matter.
There is a presumption against the alteration or abolition of accrued rights, privileges or entitlements and clear language is required to overcome that presumption: Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161. The failure of s 167 to expressly deal with pending applications, together with the existence of s 37 of the Interpretation Act, leads me to the conclusion that the legislature intended s 37 to apply. That can only be achieved in all relevant circumstances if SAT has the same powers as those of the former adjudicator under the law in force before the transfer day. As the applications were made and determined under the previous law and their legality determined by this Court by reference to that law, the Shire has an accrued right. If one or more of the decisions are quashed, the matter can be remitted to, and heard and determined by, SAT applying the law in force before the transfer day.
[88] Shire of Augusta-Margaret River v Gray [2005] WASCA 227 [34].
[89] Shire of Augusta-Margaret River v Gray [2005] WASCA 227 [37] ‑ [40].
Whilst the findings by McLure JA in Shire of Augusta-Margaret River v Gray could be said to be restricted to the circumstances raised in that matter, it is notable that the accrued right arose out of interlocutory orders made by the Planning Tribunal and the court. In that matter, prior to the repeal of the law that established the Planning Tribunal, the Planning Tribunal had made orders dismissing an application by the Shire of Augusta-Margaret River to be heard, and the Supreme Court had granted an order nisi and a stay.
It is also notable that in Health Resorts, Chaney DP appears to have rejected the contention that s 37(1) of the Interpretation Act is excluded by a contrary intention expressed in the mandatory direction to the Tribunal in s 27 of the SAT Act. Yet, it is notable that the approach that s 27 creates a contrary intention could be said to be consistent with the observations made by Brennan J in his dissenting judgment in Esber where his Honour said:[90]
The appellant's application to the AAT invoked an administrative jurisdiction to review his application under s 49(1) for a redemption payment. Exercising an administrative jurisdiction, the AAT determines applications for review on a rehearing de novo, acting on the materials before it when it makes its determination. Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides.
[90] Esber v The Commonwealth (1992) 174 CLR 430, 448.
However, as discussed in [114] of these reasons, the majority in Esber rejected this approach and found that the operation of the effect of a provision that created a hearing de novo was not the point, that it was overridden by s 8 of the Acts Interpretation Act.
In my respectful opinion, if the view of the majority in Esber is applied then the question is not whether a contrary intention arises out of s 27 of the SAT Act to oust the effect of s 37(1) of the Interpretation Act. A contrary intention must arise from the repealing statutory provisions rather than s 27 of the SAT Act. This construction is supported by the opening words of s 37(1) of the Interpretation Act 'the repeal does not, unless the contrary intention appears' which must necessarily be interpreted that if a contrary intention appears, it must appear from the express words of the repealing provision. No submission has, however, been made in this matter that the amendment to Planning Scheme 21 expresses a contrary intention.
It follows, therefore, in determining whether the Tribunal made the correct and preferable decision when determining whether to grant development approval to the respondent, the court must consider whether an accrued right arises by operation of s 37(1) of the Interpretation Act to the repeal by amendment to the definition of 'service station' in Planning Scheme 21 (which has effect as if enacted by the 2005 Act, pursuant to s 87(4) of the 2005 Act).
Once it is accepted that a contrary intention to exclude s 37(1) of the Interpretation Act does not emerge from s 27 of the SAT Act, it follows from the observations in Esber, CPP, Health Resorts and Shire of Augusta‑Margaret River v Gray that where a decision has been made and determined by the Tribunal under the legality of the previous law as a preliminary issue, the respondent had a right to have the legality of the remaining matters determined in accordance with the decision on the preliminary issue made under the previous law.
It is clear that the respondent had taken steps to avail it of a contingent right to have the development application assessed by the Tribunal in accordance with the determination in the preliminary decision. The determination of the preliminary issue was that the use of the proposed development was properly classified in law as the permitted use of 'convenience store' as the definition stood in Planning Scheme 21 prior to being amended. The respondent instituted an application for a review by the Tribunal when the former definition was in force and sought and obtained a determination of a preliminary issue and an order to that effect, pursuant to the former provisions; a decision which stands unchallenged by an appeal to this court. In these circumstances, the respondent availed itself of a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c) of the Interpretation Act.
Consequently, as the aspect of the matter determined in the preliminary decision resulted in a right accrued to the respondent, no error on a question of law can be demonstrated in the decision of the Tribunal in applying the use classification for the proposed development as 'convenience store'.
It follows, therefore, it is immaterial whether the Tribunal had a duty before making a final decision to grant development approval to enquire whether an amendment had come into force of law to the definition of 'service station' in Planning Scheme 21.
Consequently, the issues raised in proposed ground 2 of the appeal do not arise on this ground. Once it is accepted that the decision on the preliminary issue vested an accrued right in the respondent in respect of the use classification of the proposed use of the land, the Tribunal was bound to apply the decision on the preliminary issue in making a final determination as to whether approval should be granted to the respondent to develop the land.
Conclusion ‑ orders
In light of the important questions of law raised in this appeal, whilst the appellant has failed in the appeal, I am not satisfied that the respondent is entitled to its costs on an indemnity basis. I am, however, of the opinion that the appellant should pay the respondent's costs on a party to party basis.
For these reasons:
(a)leave to appeal on ground 1 of the appeal should be allowed;
(b)leave to amend ground 2 of the appeal should be refused;
(c)the appeal should be dismissed; and
(d)the appellant should pay the respondent's costs of the appeal on a party to party basis to be assessed, if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH10 MAY 2018
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