Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Power of tribunal to reconsider its decision – Original decision involving jurisdictional error.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s23(5), (6).
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, considered.
Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
           Appellants:  K J Stanton
           First Respondents:  B R McTaggart
           Second Respondent:  A C R Spence
Solicitors:
           Appellants:  Crisp Hudson & Mann
           First Respondents:  Wright Gilmour
           Second Respondent:  Page Seager

Judgment Number: [2012] TASFC 2
Number of paragraphs: 30

Serial No 2/2012
File No 477/2011

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,
ATHOL CHARLES JACKSON, WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
EVANS J
BLOW J
19 July 2012

Order of the Court

Appeal dismissed.

Serial No 2/2012
File No 477/2011

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,
ATHOL CHARLES JACKSON, WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  19 July 2012

Subject to reservations I have concerning the possible application of the Acts Interpretation Act 1931, s20(a), to the circumstances of this case, I agree that for the reasons given by Blow J, the appeal should be dismissed.
File No 477/2011

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,
ATHOL CHARLES JACKSON, WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT FULL COURT

EVANS J
19 July 2012

I agree with Blow J's reasons for judgment and would also dismiss the appeal.

I mention that support can be found in the following authorities for his Honour's view that, in consequence of the Acts Interpretation Act 1931 (Tas), s20(a), subject to any indication in legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 pars[34], [35], [100] and [113], Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 – 679 and Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430. These decisions refer to the Acts Interpretation Act 1901 (Cth), s33(1), a provision that is in similar terms to the Acts Interpretation Act (Tas), s20(a). See also Edenmead Pty Ltd v Commonwealth of Australia (1984 – 85) 59…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Purton v Jackson

Details

AGLC: Purton v Jackson [2012] TASFC 2
Case: [2012] TASFC 2
Decision Date: 19 July 2012

CaseChat Overview and Summary

The parties to this matter were Purton and Jackson, with the dispute concerning the powers of the Resource Management and Planning Appeal Tribunal (the Tribunal) in Tasmania to reconsider its own decision. The case came before the Supreme Court of Tasmania.

The central legal issue before the Supreme Court was whether the Tribunal possessed the power to reconsider and set aside its own prior decision, particularly where that original decision involved a jurisdictional error.

The Supreme Court held that the Tribunal did not have an inherent power to reconsider its own decisions, nor was such a power conferred by the relevant legislation. The Court reasoned that once the Tribunal had made a final determination, its jurisdiction in relation to that matter was exhausted. While acknowledging that jurisdictional error could render a decision voidable, the Court found that the appropriate avenue for challenging such a decision was through judicial review in the Supreme Court, not by the Tribunal reconsidering its own ruling. The Court distinguished the Tribunal's appellate function from the supervisory jurisdiction of the Supreme Court.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Purton v Jackson [2012] TASFC 2

Most Recent Citation

Yates v Jamison Nominees P/L [2014] SADC 209

Cases Citing This Decision

Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6
Citation 1

…egistrar-General [1962] HCA 58; (1962)109 CLR 619 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28,194 CLR 355 Purton v Jackson [2012] TASFC 2, 21 Tas R 310 Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 Sahab Holdings Pty Ltd v Registrar-General and Sahade v Owners Corporation…
Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2022] TASSC 16
Citation 2 (Para 12)

…Counsel for Blue House Corner relied on Purton v Jackson [2012] TASFC 2, 21 Tas R 310 and argued to the effect that it would be contrary to the scheme of the Land Titles Act for the Recorder to have the power to reverse a decision to correct the Register pursuant to s 139(1).…
Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632
Citation 3 (Para 18)

…This principle was further enunciated by Blow J in Purton v Jackson (2012) 21 Tas R 310; [2012] TASFC 2.…
AA v Secretary to the Department of Health and Human Services [2020] VSC 400
Citation 4

…[119] Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 [47]; Jackson v Purton [2011] TASSC 28 [86] (Wood J); Purton v Jackson [2012] TASFC 2 [20] (Blow J).…
Nightingale v Recorder of Titles [2018] TASSC 56
Citation 5 (Para 5)

…In Purton v Jackson [2012] TASFC 2, Blow J (as he then was) said of this provision at [21]: "In my view, subject to any indication in the legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. In my v…
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Citation 6 (Para 11)

…nister for Immigration and Citizenship v Maman (2012) 200 FCR 30; Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293; Purton v Jackson [2012] TASFC 2. Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, 2017), after referring to Bhardwaj , Plaintiff…
Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105
Citation 7 (Para 9)

…Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293; Purton v Jackson [2012] TASFC 2.…
Tasmanian Water and Sewerage Corporation Pty Ltd v Bass Corporation Pty Ltd [2017] TASSC 79
Citation 8 (Para 7)

…dwaj [2002] HCA 11, 209 CLR 597; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1 at [42]; Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [11]. Having regard to the consequences that would follow if a permit for the development of a residential subdivision were regarded…
Motor Accidents Insurance Board v Britton [2017] TASSC 60
Citation 9 (Para 6)

…o vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [3] and [21]; Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal (above) at [16]. Section 28(5) provides that a…
Purton v Jackson [2016] TASSC 56
Citation 10 (Para 1)

…te involving a series of proceedings: Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explained by Porter J in his Honour's de…
Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal [2016] TASFC 6
Citation 11 (Para 16)

…o vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [3] and [21]. Section 28(5) provides that a determination under s 28(4) is binding, as I have said. I am inclined to think that the…
Howlin v Resource Management and Planning Appeal Tribunal [2015] TASSC 48
Citation 12 (Para 3)

…not made any decision which finally disposed of either appeal. On that basis it is open to the Tribunal to revisit the decision; cf Purton v Jackson [2012] TASFC 2. In my opinion, that description of the situation is correct. There can be no valid argument that a permit or permits has or have been granted.…
Yates v Jamison Nominees P/L [2014] SADC 209
Citation 13 (Para 27)

…e (or purported exercise) of its powers under the Act, the Tribunal is functus officio . He cited Purton v Jackson [12] and DPP v Edwards [13] . [12] [2012] TASFC 2 [13] [2012] VSCA 293…
XYZ v Legal Profession Board of Tasmania [2014] TASFC 13
Citation 14 (Para 2)

…aving the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson (2012) Tas R 310 at [3] and [21]. He further noted that there was nothing in the Legal Profession Act 2007 (the Act) that expressly prohibited the Board fro…
Re Brian Charles Gluestein; Ex Parte Anthony [2014] WASC 381
Citation 15 (Para 8)

…xample, Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 [42] (Gray & Downes JJ); Purton v Jackson [2012] TASFC 2; (2012) 21 Tas R 310 [11] ‑ [20] (Blow J, Crawford CJ & Evans J agreeing); Attorney General v Kowalski [2014] SASC 1 [202]. [42] Respondent's supplemen…
Tasmanian Heritage Council v Strada Group Pty Ltd [2014] TASSC 48
Citation 16 (Para 7)

…In Purton v Jackson [2012] TASFC 2, their Honours had to consider this very issue, albeit in a somewhat different context. The Tribunal in that case made a decision it had no jurisdiction to deal with an appeal to it. After a number of other disputes elsewhere between the parties, one party wrote to the Tribunal…
Legal Profession Board of Tasmania v XYZ [2014] TASSC 33
Citation 17 (Para 6)

…ry or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2 at [3], [21].…
Krulow v Glamorgan Spring Bay Council [2013] TASFC 11
Citation 18 (Para 1)

…As to the first question senior counsel for the appellants focusses first on the learned primary judge's reliance on Purton v Jackson [2012] TASFC 2. He submits that the ratio of that case is that when the Tribunal rules it has no jurisdiction to determine an appeal lodged with it pursuant to s61(5) of the LUPA A…
Purton v Jackson [2013] TASSC 46
Citation 19 (Para 1)

…cond step was to appeal the decision of Wood J. That appeal failed and reasons were published by the Full Court on 19 July 2012 (see Purton v Jackson [2012] TASFC 2). The applicants were aware that, if that appeal to the Full Court failed, their only remaining means of pursuing their opposition to the respondents…
Krulow v Glamorgan Spring Bay Council [2013] TASSC 33
Citation 20 (Para 1)

…However, that argument has been decisively laid to rest by a decision of the Tasmanian Full Court. In Purton v Jackson [2012] TASFC 2 the status and consequences of an administrative decision of the Appeal Tribunal were squarely in issue. The question was whether the Appeal Tribunal had jurisdiction to re-visit i…
Director of Public Prosecutions v Edwards [2012] VSCA 293
Citation 21 (Para 1)

…isdictional error does not have sufficient legal effect to trigger the application of the functus officio doctrine.[58] [58]See also Purton v Jackson [2012] TASFC 2 [9] (Blow J, Crawford CJ and Evans J agreeing). Contra Jadwan Pty Ltd v Secretary of the Department of Health and Aged Care (2003) 145 FCR 1 [40].…

See all citing cases →

Cases Cited

Jackson v Purton [2011] TASSC 28
Citation 1

…APPEALED FROM: Jackson v Purton [2011] TASSC 28…
Jackson v Building Appeal Board [2010] TASSC 29
Citation 2

…it was within the council's powers under the LUPA Act, and remitted the building permit appeal to the board: Jackson v Building Appeal Board [2010] TASSC 29. In his reasons, his Honour held that there were a number of provisions in the planning scheme, not referred to in the tribunal's decision of 26 February 200…
Tasman Quest Pty Ltd v Evans [2003] TASSC 110
Citation 3 (Para 1)

…he Judicial Review Act , s43, commenced on 1 May 2001, but orders in the nature of mandamus are still available: Supreme Court Rules 2000, r627(2); Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16 at pars[8], [9]. If the learned primary judge was correct, then neither mandamus nor relief in the nature of mandamus would ever have been…
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Citation 4 (Para 1)

…In my view, as Gray and Downes JJ concluded in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at par[42], Bhardwaj does not stand as authority for a universal proposition that jurisdictional error will lead to a decision having no consequences whatsoever. It is authority for the pro…
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Citation 5 (Para 1)

…authority or decision-maker has the power to vary or reverse a statutory decision. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 pars[34], [35], [100] and [113], Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, Bond Corporation…
Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313
Citation 6 (Para 1)

…t par[12], his Honour quoted with approval a passage from the judgment of Finkelstein J in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413, which included the following:…
Craig v South Australia [1995] HCA 58
Citation 7

…it had no jurisdiction. An erroneous decision that the decision-maker has no jurisdiction involves "jurisdictional error": Craig v South Australia (1995) 184 CLR 163 at 177 – 179. Because the tribunal's first decision was affected by jurisdictional error, that first decision was and is a nullity. · The tribunal has…
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 19
Citation 8 (Para 1)

…tural Affairs v Bhardwaj (2002) 209 CLR 597 pars[34], [35], [100] and [113], Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 – 679 and Australian Broadcasting Tribunal v Bond C…
Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd [1989] FCA 108
Citation 9 (Para 1)

…Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 – 679 and Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430. These decisions refer to the Acts Interpretation Act 1901 (Cth), s33(1), a provision that is in similar terms to the Acts Interpretation Act (T…
Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal [1988] FCA 777
Citation 10 (Para 1)

…mmigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 – 679 and Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430. These decisions refer to the Acts Interpr…
Glasson v Parkes Rural Distributions Pty Ltd [1984] HCA 49
Citation 11 (Para 1)

…the Acts Interpretation Act (Cth), s33(3), on the power to make, grant or issue any instrument, and Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332. File No 477/2011…
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Citation 12

…conferred a right of appeal from "invalid decisions", as legislation sometimes does: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. The learned chairman delivered a decision by which he concluded that the tribunal was "without jurisdiction to further hear and determine the matter". ·…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 33
Citation 13 (Para 1)

…he fulfilment of the duty, without any need for an order quashing any defective decision: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 – 243 per Rich, Dixon and McTiernan JJ; Bhardwaj , per Hayne J at par[140]. Mandamus was still available in Tasmania as a common law remedy wh…
[1989] 2 SCR 848 [1989] 2 SCR 848
Citation 14

…exchange boards ( Posluns v Toronto Stock Exchange [1968] SCR 330) or other administrative proceedings (Chandler v Alberta Association of Architects [1989] 2 SCR 848) may change their mind, withdraw an earlier decision and substitute a new one, must necessarily give way, in a particular case, to the express langua…
[1964] AC 40 [1964] AC 40
Citation 15

…"General judicial observations that decision-makers in police watch committees ( Ridge v Baldwin [1964] AC 40), stock exchange boards ( Posluns v Toronto Stock Exchange [1968] SCR 330) or other administrative proceedings (Chandler v Alberta Association of Architects [1989] 2 SCR 848) may change their mind, with…
[1968] SCR 330 [1968] SCR 330
Citation 16

…bservations that decision-makers in police watch committees ( Ridge v Baldwin [1964] AC 40), stock exchange boards ( Posluns v Toronto Stock Exchange [1968] SCR 330) or other administrative proceedings (Chandler v Alberta Association of Architects [1989] 2 SCR 848) may change their mind, withdraw an earlier decis…

Legislation Cited

Acts Interpretation Act 1901 (Cth) 33(1)
1 mention (from Para 1)
Acts Interpretation Act 1931 (TAS) 20(a)
1 mention (from Para 1)
Building Act 2000 (TAS)
1 mention
Environmental Management and Pollution Control Act 1994 (TAS)
1 mention (from Para 1)
Judicial Review Act 2000 (TAS)
1 mention
Land Use Planning and Approvals Act 1993 (TAS) 57
1 mention
Living Marine Resources Management Act 1995 (TAS)
1 mention (from Para 1)
Local Government (Building and Miscellaneous Provisions) Act 1993 (TAS)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention
Resource Management and Planning Appeal Tribunal Act 1993 (Repealed) (TAS) 23(5)
1 mention
Strata Titles Act 1998 (TAS)
1 mention (from Para 1)
Supreme Court Rules 2000 (TAS) 627(2)
1 mention (from Para 1)