Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder - [2015] WASC 456

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAMONT HOLDINGS PTY LTD -v- CITY OF KALGOORLIE-BOULDER [2015] WASC 456

CORAM: KENNETH MARTIN J

HEARD: 24 AUGUST 2015

DELIVERED : 1 DECEMBER 2015

FILE NO/S: CIV 2507 of 2014

BETWEEN: RAMONT HOLDINGS PTY LTD
First Plaintiff
D J SHAVE PTY LTD
Second Plaintiff
SHAVE HOLDINGS PTY LTD
Third Plaintiff
AND
CITY OF KALGOORLIE-BOULDER
First Defendant
CHRISTOPHER HUGH FYSON
Second Defendant
VIER PTY LTD
MELCOVE PTY LTD
Third Defendant

Catchwords:

Local government - Voting interests of councillors - Proposed case stated by defendant - Opposed - Declaration and injunctions - Confusion of private law and public law relief - Actual or ostensible alleged bias of Mayor - Alleged non-disclosure of financial interest on motion - Affirmative vote - Causative effect of vote - Motion passed - Judicial review not sought

Private action - Questionable private law standing of plaintiffs to challenge validity of local government authority approval to second defendant for future competitive liquor outlet business on third defendants' land

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 11
Local Government Act 1995 (WA), s 5.21, s 5.60, s 5.60A, s 5.61, s 5.62, s 5.65, s 5.67, s 5.104
Rules of the Supreme Court 1971 (WA), O 56

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr M C Hotchkin
Second Plaintiff            :     Mr M C Hotchkin
Third Plaintiff               :     Mr M C Hotchkin
First Defendant             :     Mr D W McLeod
Second Defendant         :     Mr J G Kitto
Third Defendant           :     Mr J G Kitto

Solicitors:

First Plaintiff                :     Hotchkin Hanly Lawyers
Second Plaintiff            :     Hotchkin Hanly Lawyers
Third Plaintiff               :     Hotchkin Hanly Lawyers
First Defendant             :     McLeods Barristers & Solicitors
Second Defendant         :     Kitto & Kitto Barristers & Solicitors
Third Defendant           :     Kitto & Kitto Barristers & Solicitors

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

Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 31 ALR 44
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
AWB Ltd v Cole [No 2] [2006] FCA 913; (2006) 233 ALR 453
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 2] [2012] WASC 321
Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559
Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421
Ex parte McKenna (1989) 2 WAR 401
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Hall v City of Burnside [No 3] [2007] SASC 3
Irwin v Meander Valley Council [2008] TASSC 82
Irwin v Meander Valley Council [2009] HCASL 134
Irwin v Meander Valley Council [No 3] [2007] TASSC 79
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Kirk v Industrial Court (New South Wales) [2010] HCA 1; (2010) 239 CLR 531
Landsdale Pty Ltd v Moore [2009] WASCA 176
Macaura v Northern Assurance Co Ltd [1925] AC 619
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 680
Re Graham Anstee-Brook [2011] WASC 172; (2011) 42 WAR 35
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
KENNETH MARTIN J:

Introduction

I am dealing with an opposed application of the first defendant, seeking orders pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 31 r 2(1) that there be a case stated before a single judge for the determination of the following three proposed questions:
(1)whether the circumstances stated in the plaintiffs' second further re‑amended statement of claim (SFRASOC) said to indicate a 'financial interest' on the part of the Mayor of the first defendant, are capable of indicating an interest held by the Mayor within the meaning of s 5.60 of the Local Government Act 1995 (WA) (Local Government Act) requiring disclosure under s 5.65 of the Local Government Act (s 5.65 ‑ interest);
(2)if yes to (1), whether a s 5.65 interest of the Mayor in the matter would have the effect on the facts pleaded in the SFRASOC of rendering invalid the resolution referred to in par 19 of the SFRASOC;
(3)if no to (1), whether under the provisions of the Local Government Act, the possession by the Mayor of an interest affecting impartiality under reg 11 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct Regulations), or any other interest short of a s 5.65 interest, can negative the obligation of the Mayor as a council member from participating in voting on the matter the subject of the resolution pleaded in par 19 of the SFRASOC, and would have the effect on the facts pleaded in the SFRASOC of rendering invalid the resolution referred to in par 19 of the SFRASOC.
The first defendant has been advocating a case stated along the lines as seen above, for some time. But this has always been strongly opposed by the three corporate plaintiffs (the Shave Corporate Plaintiffs) as being inappropriate.
I refused an earlier application on 13 May 2015. But I then indicated I was amenable to hearing a further application, once the (then inadequate) pleadings were adjusted. This is that further application.
At present there is no agreed statement of facts put before the court for the purpose of the mooted exercise. This is a real problem.
Ordering of a case stated is firmly opposed by the Shave Corporate Plaintiffs, as the main respondents to the application.
The position of the second and third defendants (Mr Fyson and two corporations with which he is associated as a director/shareholder) is effectively to adopt a neutral stance, in not opposing the ordering of the proposed case stated, should the court think that path otherwise appropriate, but rendering no submission beyond that.
Effectively then, the contest is between the first defendant, as the advocate of the proposed case stated, and the Shave Corporate Plaintiffs, who oppose that course.
As I will explain, I am still not persuaded that the, as proposed, case stated course is a wise, safe, appropriate, or even viable, course at this stage. Furthermore, I hold, as I will also explain in the latter part of the reasons, some prima facie reservations about the legitimate standing of the Shave Corporate Plaintiffs, merely as established rival liquor business owners at property owned in Hannan Street, Kalgoorlie, to challenge the validity of this approval resolution of the first defendant (the Approval Resolution) - outside the realm of a process of judicial review. My concerns extend to the appropriateness of both the declaratory and injunctive relief they seek.
This private civil action has been explicitly accepted by the plaintiffs as litigation that does not seek to invoke any process of judicial review (ts 60). That, I assess, presents as another problem.
To gain a proper appreciation of the underlying issues it is necessary to examine what I would assess as somewhat unique contentions sought to be raised by the Shave Corporate Plaintiffs, under what is now a very much amended statement of claim.
Argument on this application saw the Shave Corporate Plaintiffs by counsel, Mr Hotchkin, towards the conclusion of the arguments, effectively concede a need for aspects of the statement of claim (as it was at that time) to once again be amended (ts 72). I will elaborate upon the ensuing changes in due course. At the time, I allowed the plaintiffs seven days to file and serve what has now become the SFRASOC, filed on 31 August 2015.
Although oral argument proceeded on the basis of a then current iteration of the Shave Corporate Plaintiffs' pleading (of 4 August 2015), it was accepted by Mr McLeod, counsel for the first defendant, that this would not affect his key submissions concerning the ongoing appropriateness of the ordering of a case stated upon the tripartite questions seen set out earlier (ts 78).
As a matter of convenience, given some underlying complexities, I will append the SFRASOC as a schedule A to these reasons.
That course allows me to proceed immediately to highlight some selected features arising within this litigation.

Unique features of the Shave Corporate Plaintiffs' current statement of claim and application

I mention the following:
1.The three Shave Corporate Plaintiffs issued their writ in this action, with an endorsed statement of claim, on 31 October 2014. This was almost one year after the Approval Resoulution had issued in favour of Mr Fyson from the council of the first defendant, on 25 November 2013 - and which the Shave Corporate Plaintiffs ultimately seek to have the court declare as invalid.
2.According to their prayer for relief, the three Shave Corporate Plaintiffs together seek:
A.a declaration that the Approval Resolution is invalid and of no force and effect; and
B.an injunction restraining the second or third defendants from taking or causing to be taken any further steps to implement the use pursuant to the Approval Resolution.
3.The Approval Resolution that the Shave Corporate Plaintiffs would seek to have declared invalid, and of no force and effect, is the decision of the council of the first defendant (City of Kalgoorlie‑Boulder) of 25 November 2013 (see pars 15 ‑ 19 of the SFRASOC) granting a planning approval which Mr Fyson as the second defendant had applied for, as regards the altered uses for properties owned by the corporate third defendants, that is, the council's approval granted to Mr Fyson, subject to certain conditions.
4.Particulars to SFRASOC par 19 refer to a 'Motion' passed at the 25 November 2013 council meeting by the council of the first defendant by a bare majority of five votes to four, thereby granting the second defendant approval to a change of use for a 'Liquor Store and associated Warehouse and Showroom at Hannan Street, Kalgoorlie premises', referred to as 'the Property', subject to conditions.
5.The Shave Corporate Plaintiffs' pursuit of an invalidity declaration, as relief by their prayer A, seeks to call into question the current legal status and effect of the Approval Resolution of the City of Kalgoorlie-Boulder, by its council, which issued at the meeting of 25 November 2013.
6.Prayer B would then seek to buttress any (otherwise wholly passive) declaration that is obtained as to invalidity of the Approval Resolution ‑ by pragmatically seeking the permanent injunctive orders that would be directed against Mr Fyson, or against the two related corporations to him, who are named as third defendants.
7.The invalidity declaration sought, as to the Approval Resolution under the Shave Corporate Plaintiffs' SFRASOC is seen, on analysis, to be worked up from an underlying attack that is directed against voting conduct at the 23 November 2013 council meeting by the Mayor of the City of Kalgoorlie-Boulder - Mayor Yuryevich. He, of course, is not a party to this action. It is said that the Mayor was one of the five councillors of the council then voting affirmatively to carry, in the end, a motion that ultimately passed 5:4, thereby delivering the approval for the requested change of use of the Hannan Street property connected to Mr Fyson (it is not contended that the Mayor exercised a casting vote as a presiding officer at the council meeting).
8.The attack against the Mayor's vote (and derivatively then what is the eventual legal validity attack put against the Approval Resolution) is seen pleaded on a basis of the Mayor's apprehended or, alternatively, his alleged actual bias as regards the Approval Resolution, for the change of use and liquor outlet approval for the third defendant's Hannan Street properties (see par 20).
9.The Mayor's alleged bias upon this vote and motion looks to be pleaded out as arising upon the alleged basis of his 'longstanding financial, business and personal relationship with Mr Fyson', defined, somewhat elliptically, as 'the Relationship' (see SFRASOC par 10(a)).
10.On closer analysis, the so‑called 'Relationship' looks to be argued for on the basis of some prior alleged Kalgoorlie region business dealings, and as between corporations said to be connected to the two men (Mayor Yuryevich and Mr Fyson).
11.For the Mayor, Mr Yuryevich, (who I repeat is not a party to this action and so is not bound by its outcomes) the pleaded contention of the three Shave Corporate Plaintiffs appears to be that Mayor Yuryevich is a director and sole shareholder of the corporation, Kalaire Pty Ltd, trading as Kalaire Climate Control in the Kalgoorlie region.
12.At par 8 of the SFRASOC, the Shave Corporate Plaintiffs contend that Kalaire has been engaged to provide air-conditioning services to local Kalgoorlie region properties (presumably, services to the owners of those properties, or perhaps to occupants) being local properties managed by a real estate company in Kalgoorlie, which trades under the business name, Fyson & Associates.
13.Next it is contended the second defendant, Mr Fyson, was a director of Vasad Pty Ltd and, further, that this corporation was trustee of the Vasad Unit Trust. That unit trust is then said to have traded under the business name, Fyson & Associates ‑ a Kalgoorlie based real estate business.
14.It is then contended that the first-named third defendant, Vier Pty Ltd, was a shareholder in that trustee, Vasad Pty Ltd (see par 7, it is not yet clear to me why the holding of shares in a mere trustee company of a unit trust could be at all significant). It is not contended Vier Pty Ltd holds or has held any units in the Vasad Unit Trust.
15.At all events, it is then seen via par 8(b) that the three Shave Corporate Plaintiffs all allege that the Fyson & Associates business has habitually preferred to retain (or possibly nominated) the air‑conditioning services provider corporation connected to Mayor Yuryevich, namely Kalaire. It is put (in a rather nebulous way) that this (effectively, a nomination, or a business referral that was made, for Kalaire) happened 'in priority to other air‑conditioning service providers in or about Kalgoorlie'. What 'priority' means overall, in a quantitative sense, is left unduly vague.
16.What appears to be argued overall by the Shave Corporate Plaintiffs towards their alleged 'Relationship' between Mr Fyson and Mayor Yuryevich, seems to be a suggested mutual business connection, arising through the interrelationship of the corporations, particularly as between the air‑conditioning business of the corporation Kalaire (connected to the Mayor) linking with the Kalgoorlie real estate corporate business, as operated by the Vasad Unit Trust, a trading trustee, trading under a business name Fyson & Associates, and connected to Mr Fyson.
17.The apparent 'high water mark' of the Yuryevich‑Fyson alleged mutual business connection and agreed 'Relationship' ‑ from a perspective of the air‑conditioning business corporation Kalaire, and thereby, presumably it is said, back to Mayor Yuryevich as a Kalaire shareholder ‑ is that, as contended via par 10(b) of the SFRASOC, Mayor Yuryevich has received a 'significant financial benefit over a period of time by reason of the Relationship'. This so-called benefit to the Mayor is said to be 'in his capacity as shareholder of Kalaire' (my emphasis).
18.Critically to the Shave Corporate Plaintiffs' pleaded attack, it is contended by par 10(b) of the SFRASOC that the Mayor 'would reasonably be expected to continue to [enjoy a significant financial benefit], in the absence of any matter arising to prejudice the Relationship'.
19.Paragraph 5 of the SFRASOC then argues that Mayor Yuryevich owns half the issued shareholding in Kalaire (ie, one of the two issued shares). No details are provided concerning Kalaire's payments of any dividends to its shareholders, or anything at all vis-à-vis distributed shareholder benefits. Ordinarily, of course, as a matter of most basic corporations law principles, a shareholder in a corporation holds no personal interest in the assets or undertaking of a corporation in which shares are owned ‑ even if all the shares are owned by that one person. A corporation is a separate and distinct legal entity to its shareholders: Macaura v Northern Assurance Co Ltd [1925] AC 619. Obviously, however, the underlying facts concerning a level of shareholding owned in a corporation, for a particular context, may be relevant and make a difference. A substantial corporate shareholding interest could carry legal consequences for particular contexts, for example, as a 'relevant' or 'substantial' shareholding interest in a corporate takeover scenario.
20.What the Shave Corporate Plaintiffs appear to be pleading for under the SFRASOC, to attempt to prove at a trial, is the existence of some underlying mutual relationship, suggestive of favours, or a disposition towards favouritism, flowing back and forth, as between Mayor Yuryevich and Mr Fyson, via the alleged business connection, as between the businesses of corporations linked to the two men, by reason of the shares they hold in each corporation. On the one side, the Mayor is the alleged recipient of argued business benefits directed to him from the Fyson & Associates real estate management business, flowing to the Kalaire corporation connected to the Mayor and thereby further suggested (somehow) as flowing down to him, as a Kalaire shareholder. This is pleaded as arising because the Kalaire air‑conditioning business is said to get the preferential directed customer business referred its way from Fyson & Associates - the Kalgoorlie real estate business operated by the Vasad Unit Trust that is linked back to Mr Fyson.
21.What then, from the possibility of Mr Fyson receiving a benefit of some kind from the Mayor, is the other side of the suggested equation ‑ from a perspective of showing some type of advantage flowing to Mr Fyson under the contended mutual favours Relationship? As pleaded under the current SFRASOC, the benefit seems to be a quid pro quo contention, concerning the argued favourable advantaging of Mr Fyson by the Mayor, whilst he was voting, so as to advantage Mr Fyson's related corporate third defendants (Vier Pty Ltd and Melcove Pty Ltd). This emerges out of pars 11 and 12, vis-à-vis an assertion as to Mayor Yuryevich, not wishing to put the 'Relationship' and (his) 'benefit' 'at risk'. The high water mark of this plea is seen under SFRASOC, par 12:
If a matter which may reasonably be supposed to affect the Relationship came before the Council for resolution and the Council was divided, requiring a deciding vote by Mr Yuryevich, the circumstances pleaded at pars 4 to 11 would give rise to a reasonable apprehension that any decision of the Council may have been tainted by bias, if Mr Yuryevich voted in favour of a decision which advanced the interest of Mr Fyson or was consistent with his will.
22.Hence, after something of a long journey, it appears to be contended at the end by the Shave Corporate Plaintiffs that Mr Fyson and the third defendants, as the corporate owners of 'the Property' (see par 13(b)) in Hannan Street, Kalgoorlie, have been advantaged by the vote of the Mayor, as one voting member of the council (of nine) of the City of Kalgoorlie‑Boulder. This favourable affirmative vote by the Mayor happened, it is put, in effect, to keep Mr Fyson and his defendant corporations happy, with the Mayor voting in favour of Mr Fyson's application seeking the new planning liquor outlet use approval concerning the Property owned by the third defendants in Hannan Street, Kalgoorlie, on Mr Fyson's change of use application (see par 19).
23.On the Shave Corporate Plaintiffs' arguments as pleaded, the Mayor's affirmative vote enabled the Approval Resolution to pass 5:4 at council, by the narrowest of margins. The Fyson application had sought planning approval for a change of use of those premises to 'liquor store and associated warehouse and showroom' at the third defendants' Property in Hannan Street. Such new use, in a new Hannan Street competitive liquor outlet, is possibly feared as allowing for a potential business rival to the business of the current Shave Corporate Plaintiffs and their existing liquor business outlets which are established in Hannan Street.
24.It is ultimately then complained of by the Shave Corporate Plaintiffs' plea, as owners of the established Shave corporation liquor outlet business at Hannan Street, Kalgoorlie, that at the relevant council meeting of 25 November 2013 (par 19(d)):
Mr Yuryevich did not declare an interest in the matter the subject of the Application.
25.The most recent SFRASOC pleading now alleges that the Shave Corporate Plaintiffs, through Greg Rowe & Associates, had lodged an objection to the Approval Resolution being sought by the second defendant from the council of the first defendant. That objection is said to have drawn attention to allegedly problematic issues with paving, landscaping and waste refuse and storage issues, arising upon the planning application (see pars 16 and 18 of the SFRASOC).
26.Earlier, in the SFRASOC at par 6(a), it is seen pleaded that Mr Fyson at all material times was said to be secretary and sole director of the first named third defendant, Vier Pty Ltd, and that he owned 7,999 of that company's 8,000 issued shares. As to the other third defendant, Melcove Pty Ltd, it is said Mr Fyson was that corporation's secretary. He is also said to be a director and the owner of one of its two issued shares. As regards Vasad Pty Ltd, said to be the trustee of the Vasad Unit Trust, trading as Fyson & Associates, it is merely said that Mr Fyson was a director of that corporate trustee. Nothing at all is said about the unitholders in that unit trust or that Mr Fyson was a unitholder.
27.At root then, what looks to be complained of by the pleading of the Shave Corporate Plaintiffs, is Mayor Yuryevich's alleged failure to declare, before voting, an alleged conflict of interest (arising by reason of the alleged 'Relationship'), a prohibited participation in that meeting from that point (as the Mayor did not leave the chambers), and then his voting affirmatively upon the Approval Resolution at the council meeting of 25 November 2013, causing the Approval Resolution to be carried (the Approval Resolution, in the end, being narrowly passed 5:4). The result of the carried Approval Resolution was to see the first defendant grant the planning proposal for the change of use to liquor outlet as was sought by Mr Fyson for the third defendants as property owners in Hannan Street, vis-à-vis that approved change of use.

As a result of the most recent tranche of amendments to the SFRASOC, the Shave Corporate Plaintiffs' two‑fold pleaded attack concerning the Mayor (who is not a party to this action) would also contend:
(a)that, via pars 5 ‑ 9 and 21 - 25 of the SFRASOC, there was an infringing (undisclosed) financial interest in the Mayor, within the meaning of s 5.61 of the Local Government Act followed by a breach by the Mayor of s 5.65 of the Local Government Act ‑ all of which meant that beyond declaring a financial interest, the Mayor should also not have voted on the Approval Resoluton. Instead it is said he should have absented himself from all debate; and
(b)further, via pars 4 ‑ 19 of the SFRASOC, there is alleged against the Mayor, on a wholly stand‑alone basis and outside the provisions of the Local Government Act, levels of apprehended bias, or, alternatively, actual bias, ultimately delivering in consequence of that bias a tainting of the Approval Resolution (which would not otherwise have passed without his affirmative vote), ultimately generating an alleged invalidity of the Approval Resolution and some further consequences (par 20), including the right of the Shave Corporate Plaintiffs to obtain permanent injunctive relief against Mr Fyson and the third defendant corporations from acting upon the council's approval and presumably also from proceeding with advancing the opening of their new, competitive liquor outlet business in Hannan Street, Kalgoorlie.

Breach of pt 5 div 6 of the Local Government Act: failure of a councillor to disclose a financial interest

The alleged failure by a local government councillor to declare an interest, when required, before voting upon a matter carries the potential to raise issues of considerable complexity under the Local Government Act and also potentially under Rules of Conduct Regulations to the Local Government Act. I turn to examine that material.
Part 5 of the Local Government Act displays a number of divisions.
Relevantly to the current issues, div 6 in pt 5 contains s 5.60, s 5.60A, s 5.61, s 5.62, s 5.65 and s 5.67. The provisions are of particular importance to the arguments upon the present application. So as to not unduly clutter the reasons, I have collected these provisions in a separate sch B found at the end of these reasons, where the provisions are set out.
As starting context, pt 5 div 1 appears under a heading: 'What this Part is about', and proceeds:
This Part deals with -
(a)council meetings, committees and their meetings and electors' meetings; and
…
(d)the disclosure of financial interests in matters affecting local government decisions and in returns; and
…
(g)codes of conduct.
The reference in (g) above to 'codes of conduct', leads me to also set out s 5.104(1) and s 5.104(3) of the Local Government Act in sch B.
Division 6 of pt 5 of the Local Government Act carries the heading: 'Disclosure of financial interests'. Subdivision (1) under div 6 carries the subheading: 'Disclosure of financial interests in matters affecting local government decisions'.
By the legislative selection seen in sch B I do not, of course, intend to suggest that other surrounding provisions in the Local Government Act are not also important, in terms of gaining a proper understanding of these particular provisions within their overall surrounding context and purpose, whilst in the process of me evaluating particular textual content.
I have observed that par 19(d) of the SFRASOC contends that Mayor Yuryevich did not declare an (alleged) interest in a matter the subject of the application concerning the Property.
It is not expressly pleaded Mayor Yuryevich did any more than fail to 'disclose' an interest.
It is not contended Mayor Yuryevich exercised any additional or casting vote, in circumstances where, as Mayor, he would likely have presided over this council meeting.
In the event of a tied vote it is open for the person presiding over a council meeting to exercise an extra (ie, casting) vote: see s 5.21(3), in pt 5 div 2 of the Local Government Act.
Provisions found within pt 5 div 6 of the Local Government Act addressing the issue of a councillor's financial interests in a matter impose the obligation upon a councillor holding such an interest to disclose the interest, either by a written notice before the relevant meeting given to the CEO, or immediately before the matter is discussed at the meeting: see s 5.65(1). Failure to make such a disclosure, when required, is a criminal offence, punishable by a maximum fine of $10,000, or by imprisonment for two years.
Furthermore, a councillor under a s 5.65(1) disclosure obligation concerning a holding of a 'financial interest' (as defined in s 5.60A), is correlatively prohibited, via s 5.67, from either presiding at a part of a meeting relating to the conflicted matter, or from participating in, or even being present during, any discussions or decision making procedure in relation to a conflicted matter. Breach of s 5.67 is also a criminal offence. It is punishable at the same levels by fine or imprisonment. The only exceptions are via s 5.68, which allows for a member that has made a disclosure to vote, if the other members of the council or committee allow the member to vote, or, by s 5.69, which allows a disclosing member to vote if allowed to do so by the relevant Minister.
The exercise of ascertaining, for the purposes of pt 5 div 6, whether a council member holds a 'direct' or 'indirect' 'financial interest', can involve a somewhat complicated factual application of provisions under s 5.60, s 5.60A, s 5.61 (as regards a holding of 'indirect' financial interests) and beyond that by s 5.62, for possible linkage via any 'closely associated persons' (via s 5.60(b)).
Hence, the process of factual and legal analysis required, towards rendering any ultimate assessment for the purposes of identifying a s 5.60 'interest' in a 'relevant person', may prove to be complex and heavily fact specific. As seen, the repercussions of a transgression against pt 5 div 6 by a councillor are serious - in terms of a potential application of criminal law sanctions.
Here, as I have mentioned, the Mayor, whose contended apparent or actual bias, as well as his alleged pt 5 div 6 infringing 'financial interest', is sought to be raised by the Shave Corporate Plaintiffs' challenges, is not even a party to these proceedings. Consequently, he enjoys no opportunity to viably respond to any of those challenges. He will, of course, not be bound by anything said or resolved within the proceedings as a result. That course presents as curious, to say the least.

Further observations

The full extent of the underlying contention looks to be that the Mayor ought not to have participated in any debate upon a motion concerning the Approval Resolution. In particular, it seems to be put that Mayor Yuryevich should not have voted at all, let alone affirmatively, as he did, this being said to be contrary to s 5.67 Local Government Act, in support of a motion which was only passed by a 5:4 vote in the end, and so by the weight of his extra vote it is seemingly said the Mayor has causatively delivered the affirmative outcome, in effect, for the Approval Resolution to pass, when it otherwise would have been lost.
The terms of the Shave Corporate Plaintiffs' ultimate challenge against the Approval Resolution is that it is invalid and of no force and effect.
The Shave Corporate Plaintiffs arrive at that conclusion via what are now two alternative pleaded arguments: first, that the Approval Resolution was tainted by the Mayor's bias (actual or apprehended) at common law, and therefore the Approval Resolution is invalid (see par 20 of the SFRASOC); or, second, that the Mayor suffered from a s 5.61 (indirect) financial interest and had failed, in breach of s 5.65 of the Local Government Act, to disclose the nature of that interest in accordance with the requirements of the Local Government Act.
It is put that the Mayor should have disclosed the nature of that financial interest in accordance with the Local Government Act, but, notwithstanding a failure to do so, the Mayor nevertheless presided at at least a part of the council meeting pertaining to the Approval Resolution and voted affirmatively thereon, rendering the Approval Resolution invalid and of no force and effect.
The City of Kalgoorlie-Boulder as first defendant submits that it would need to be shown that the casting of Mayor Yuryevich's affirmative vote actually did deliver the causative consequence of facilitating the Approval Resolution to pass its vote and, thereby, for the Approval Resolution to issue, as it did from the council (see ts 55 and subpars 9(c)(i) – (viii) of the affidavit of Mr Denis William McLeod, sworn 21 August 2015). It may be speculated that the Approval Resolution presents otherwise as likely to have been lost 4:4, hypothetically, assuming Mayor Yuryevich had absented himself from the council chamber on 25 November 2013 and then that the remaining councillors had still voted as they had.
However, counsel for the City of Kalgoorlie-Boulder argued at the hearing on 24 August 2015 that the Approval Resolution may still have passed, whether or not the Mayor voted (ts 55). In his affidavit sworn 21 August 2015 he goes a step further, to assert that the Approval Motion would have passed without the Mayor's voting participation.
Although the parties have not yet fully or finally addressed this issue, counsel for the City's position prima facie presents to me as somewhat problematic. This is because a finding of common law bias shown in one or more members of a collegiate body tasked with reaching an administrative decision, such as a council, is capable of tainting the votes of other members of the collegiate body, even if the other voting members may otherwise have constituted a majority. That is so, even if the decision would have passed, regardless of the biased member's opposing vote: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 50 - 51 (Gummow J). To reach the conclusion of invalidity by reason of common law bias, it may in the end be unnecessary for the defendants to establish that 'but for' the Mayor's (allegedly) biased vote the Approval Resolution would not have passed.
All that is so with regard to the showing of common law bias. But, with respect to the distinct and stand alone allegation as to invalidity arising directly out of a breach of s 5.65 of the Local Government Act by the holding of a financial interest that is undeclared, I am less certain as to whether the alleged transgression on the part of the Mayor might carry the effect of invalidity for the final decision.
There is uncertainty as to the effects of such a failure to disclose, pursuant to the operation of the Local Government Act.

Proposed question one under case stated

By the terms of issue one of the first defendant's proposed case stated, the posed question sees the explicit reference to circumstances as stated in the SFRASOC concerning a 'financial interest on the part of the Mayor'.
Reference is also found in question one to s 5.60 of the Local Government Act and to a requirement for disclosure, arising under s 5.65.
As mentioned, there has been no statement of underlying agreed facts submitted to the court, between the relevant parties, for the purpose of facilitating the current application - which is strongly opposed by the Shave Corporate Plaintiffs.
Consequently, the nature of the requested exercise, if allowed, would display features analogous to that of the old-fashioned demurrer procedure. That sees, effectively, the first defendant contending, for the purposes of the proposed argument, that everything contended for factually, by the Shave Corporate Plaintiffs, may be theoretically accepted as correct for the purposes of the exercise only, but that, even so, the Shave Corporate Plaintiffs' arguments as evaluated by law should be dismissed as unarguable and legally misconceived.
But the core difficulty with adopting that approach here, in a pragmatic sense, is that the underlying factual circumstances demonstrating the argued disclosable financial interest in the Mayor, arising from the corporate connections between his alleged Kalaire business interest as a shareholder and Mr Fyson's real estate interests, have only been sketched out in the most general of terms, even under the current iteration of the SFRASOC. That is particularly so as regards the distinct absence of any real trading or financial details concerning the financial affairs of underlying corporations, Kalaire Pty Ltd, Vasad Pty Ltd, Vier Pty Ltd and Melcove Pty Ltd. Moreover, there are no financial details provided concerning the Vasad Unit Trust that trades as the Fyson & Associates real estate business in the Kalgoorlie region.
On that basis, I must, upon considerations that are largely pragmatic, by reason of the unsatisfactory evidentiary platform provided for such an application, as I assess it, refuse the application to determine question one as a case stated.

Question two

The issue proposed under case stated question two proceeds on a linked hypothesis of an affirmative answer being eventually provided to question one above, as regards the detection of a s 5.65 financial interest, or potential levels of bias, in Mayor Yuryevich.
For circumstances where the Mayor is shown to have voted affirmatively on the Approval Resolution and where his one vote looks thereby to have been arithmetically causative to the eventual 5:4 affirmative outcome for the council, what is alleged, if all reliably established, as the underlying hypothesis for question two, would point to a transgression against s 5.67 of the Local Government Act. The position of the first defendant, upon that outcome hypothesis, effectively foreshadowed through Mr McLeod, a likely 'surrender' upon question two as regards invalidity of the resolution.
That invalidity end position is said to follow, applying a line of authority from Tasmania: see Irwin v Meander Valley Council [No 3] [2007] TASSC 79 (Crawford J, as his Honour then was), confirmed on appeal in Irwin v Meander Valley Council [2008] TASSC 82 (Evans, Tennent & Porter JJ), delivered 17 December 2008 (with special leave refused): see Irwin v Meander Valley Council [2009] HCASL 134 (17 June 2009). That litigation was, of course, an exercise in judicial review under Tasmanian legislation.
In that Tasmanian litigation there was, effectively, assumed to be a disclosable interest subsisting in a relevant person, Councillor Kelly. Both Crawford J at first instance, then the Tasmanian Full Court, concluded that the local law, s 56 of the Tasmanian Local Government Act 1993 (Tas) (Tasmanian Local Government Act), effectively displaced the common law, with respect to bias problems in a councillor. The consequence of the Tasmanian law was to validate the proceedings or decisions by the Meander Valley Council, the decision of which otherwise looked vulnerable to being cut down as invalid under the common law. That local result was notwithstanding the absence of any declaration of an interest and a subsequent vote by Councillor Kelly.
Critically important to that litigation's outcome was s 56 of the Tasmanian Local Government Act, which then provided:
56. Validity of decisions
Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member ‑
(a)had not declared an interest as required by section 48 or 48A; or
(b)had voted on a matter in respect of which the councillor or member had not declared such an interest.
But towards present circumstances, for Western Australia, there is submitted to be no equivalent to the Tasmanian validating legislation by a provision akin to s 56 of the Tasmanian Local Government Act found in Western Australia's Local Government Act.
The Meander Valley litigation in Tasmania was an exercise in judicial review conducted under the provisions of the Judicial Review Act2000 (Tas). But a process of judicial review may be strongly contrasted to the present private civil action, which seeks only declaratory and injunctive relief ‑ in circumstances which look to me to be rather unusual.
The Shave Corporate Plaintiffs here do not seek any prerogative relief by, say, a writ of certiorari to quash the 25 November 2013 approval decision of the first defendant.
Nor do they invoke or pursue any kind of judicial review process that is akin to the effects delivered under an order absolute by writ of certiorari, as provided under RSC O 56. The present action, therefore, looks rather to be a wholly private civil action.
At [36] and [37] in the first instance Meander Valley reasons, Crawford J said (in a context of that judicial review exercise):
Counsel for the applicants conceded that if the principles of bias or apprehended bias are to be applied, nevertheless the decisions of the council are not void but voidable at the Court's discretion, in accordance with Dimes v Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759 at 786. In any event, the Judicial Review Act, 27(1), provides for the exercise of a discretion whether to quash or set aside a decision on any ground. The ground relied on by the applicants is a breach of the rules of natural justice under s 17(2)(a) of that Act.
Although at common law a decision by such a body as the council is liable to be set aside if one of the councillors was disqualified for bias, actual or apprehended, an exception may be provided by statute. Dickason v Edwards (1910) 10 CLR 243 at 259; IW v City of Perth (1997) 71 ALJR 943 at 969.
The characterisation of a decision of an administrative body, affected by bias, as being 'not void, but voidable …' is significant. To be set aside, a voidable decision first needs to be quashed by a court holding jurisdiction to deliver that voiding outcome. Otherwise, it continues to subsist with full force and effect. Of course, a passive declaration issued by a court does not quash anything.
A declaration as to the (argued) invalidity of something presupposes some event to render what would otherwise be a fully effective decision no longer so. It is not clear to me how that invalidating outcome can be obtained here - absent a resort to judicial review to quash the merely voidable decision.
Crawford J proceeded in that Meander Valley litigation to deploy s 56 of the Tasmanian Local Government Act. At [38] he said:
The operation of the common law must be treated as having been excluded. Contrary to the submission of the applicants' counsel, such a conclusion is not inconsistent with R v West Coast Council; ex parte The Strahan Motor Inn (1995) 5 Tas R 411 for that case was not concerned with the pecuniary interest of a councillor and the circumstances did not fall within s 56.
An absence of any provision within the Western Australian Local Government Act akin to, or even broadly equivalent to, s 56 of the Tasmanian legislation (on the affirmative financial interest finding hypothesis governing case stated question two) removes the prospect of any shield against an attack upon the council resolution, if it was shown to be carried upon a causative vote of a financially interested, and thereby conflicted, councillor, assuming that were all established.
But a challenge against a merely voidable decision, seeking to quash and invalidate that decision, would be something eventuating as the outcome of a judicial review application, brought by a party with sufficient standing to bring such a review application, challenging the validity of the administrative decision maker and brought within any application time limit.
Here, as I see it, there is no process of judicial review invoked to quash and thereby invalidate the first defendant's Approval Resolution.

Here, the path under question two, as framed, has problems.

Question three

Case stated question three (set out earlier) proceeds on the alternate, in effect, reverse hypothesis to question two.
In other words, it assumes a negative answer to question one, as regards the assumed failure by the Shave Corporate Plaintiffs to show in Mayor Yuryevich a pt 5 div 6 financial interest, for a purpose of satisfying s 5.65, as regards requiring a disclosure of the alleged interest, or then, s 5.67 as regards a prohibition against the Mayor's participation and voting on the Approval Resolution in such circumstances.
As proposed, question three nevertheless proceeds theoretically, on the basis of the assumed ultimate establishment in Mayor Yuryevich of some level of lesser infringing interest, an infringing interest falling a level short of constituting a pt 5 div 6, s 5.65 disclosable financial interest.
As I understood the first defendant's submissions supporting the determination of question three, it seeks to probe the repercussions of other local government regulations - going beyond pt 5 div 6 of the Local Government Act, arising under Rules of Conduct Regulations, particularly reg 11. As exposed, question three looks to be founded on what is a wholly uncertain (from a factual perspective) hypothesis. It seeks to probe whether the Mayor, as a council member, in an assumed position of some lesser degree of conflict, was nevertheless still obliged to vote, once he had openly disclosed that lesser interest (whatever it was) to the meeting. That is all too theoretical.
I have set out that reg 11 in a separate sch C at the end of these reasons, along with (for context) conduct reg 7 (which, it may be observed, is drawn in terms wider than merely addressing scenarios of conflicted councillor voting, or for participating in a vote - by its broader (and looser) terminology, proscribing any 'improper use' of office).
The contention of the first defendant in support of proposed question three seeks to build upon the platform of reg 11, requiring the disclosure by a councillor of interests other than s 5.60 financial interests under the Local Government Act (which are expressly excluded from the range of conduct of reg 11 by reg 11(3)) with two further ingredients. First is a negative factor ‑ that the conduct regulations are seen to say nothing at all express about what is to occur ‑ vis-à-vis any subsequent act of voting ‑ following upon a conduct rule disclosure made under reg 11(1) and (2) concerning the 'interest'.
The type of 'interest' that is defined by reg 11(1) is referred to as an interest which could or could reasonably be perceived to adversely affect the impartiality of the councillor with that 'interest', including any interest arising from 'kinship, friendship or membership of an association'. Silence in the conduct regulations about what is to follow vis-à-vis the act of voting, in the aftermath of such a disclosure of a lesser than financial interest, is said to stand strongly in contrast to the position already seen under pt 5 div 6 - where s 5.67 is absolutely and negatively explicit, in terms of proscribing the obligation of a councillor who has made disclosure under s 5.65 of a financial interest, to then not participate or even be present (or axiomatically, to preside) in any following discussion or decision making procedure concerning the disclosed matter.
The second added factor is derived from the Local Government Act s 5.21, within pt 5 div 2 of the Local Government Act (set out in sch B to the reasons).
As regards voting, s 5.21(2), read literally, mandates the act of voting by a councillor. It says:
Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote. (my emphasis in bold)
Attention is then focussed at s 5.21(5). It says:
A person who fails to comply with subsection (2) or (3) [concerning the obligation of the presiding person to cast a second vote where the members of a council or committee are equally divided] commits an offence.
From all that, it emerges to be finally argued in support of question three that, in some contradistinction to Local Government Act s 5.65 and s 5.67 concerning pt 5 div 6 'financial interests', for reg 11(2) conduct impartiality disclosure scenarios, there is, after an express disclosure obligation to notify of the councillor's (lesser than financial) interest, nonetheless the abiding residual obligation upon the councillor to stay and vote after making an impartiality disclosure. Further, it is put that the very nature of that subsisting voting obligation is such that if not observed by a councillor, by their failing to vote, a serious offence is then committed under s 5.21(2).
Question three, in all the circumstances, would seem to advocate, if allowed, that were Mayor Yuryevich to be ultimately assessed to have been under some lesser obligation to disclose what was an impartiality interest via conduct reg 11 (ie, something less than a financial interest scenario), but that he did not disclose that interest, then nevertheless, by s 5.21(2) of the Local Government Act, despite that lesser (albeit disclosable) interest (whatever the lesser interest was) he was still required to vote. Hence it seems to be said the failure to disclose a lesser interest is not capable of undermining the validity of his contributing vote.
Consequently, it seems finally to be put, at the end, upon a long series of assumptions, that the Shave Corporate Plaintiffs' ultimate declared invalidity assertion as is contended for as regards the council's Approval Resolution for the new liquor store use for the Hannan Street Property - must be seen as misconceived.
I need to assume the question three argument is also advanced on a basis that failure to disclose the impartiality interest under reg 11(2) (whatever the interest was) would not, as a code of conduct transgression, deliver even a voidability problem for the carried Approval Resolution - by reason of the Mayor's vote still being required (even had he declared an impartiality interest).
The basal difficulty with the proposed case stated question three is that, in the context of declaratory relief being sought by the Shave Corporate Plaintiffs, the third question presents as uncertain, nuanced and unduly hypothetical. The precise factual character and dimensions of the hypothesised lesser interest, said to be caught by reg 11(1) (albeit also assumed as not being caught under s 5.65 and s 5.67), is nowhere crisply or definitively articulated. Rather, that disclosable interest manifests only in broadish concept, as something of an intellectual phantom.
Mayor Yuryevich is, of course, not even made a party to the proceedings which seek the declaratory (invalidity) relief outside, it seems, any process of judicial review (against the City of Kalgoorlie‑Boulder), and also then seeks permanent injunctive relief, without the Shave Corporate Plaintiffs identifying, as I would see it, any real private law cause of action (against the second and third defendants as the possible beneficiaries of the Approval Resolution vis‑à‑vis the Property).
The SFRASOC does not purport to adopt the first defendant's distinction, as between a pt 5 div 6 Local Government Act financial interest, and the Rules of Conduct Regulations reg 11(1) impartiality interest, vis-à-vis an assumed position of Mayor Yuryevich. Hence, the as mooted financial interest/lesser impartiality interest classification distinction (arising as between contrasting questions one and three on the proposed case stated) is entirely the hypothesis of the first defendant (the second and third defendants adopting a stance of overall case stated neutrality).
The 'classification distinction', in the end, looks to be heavily tied to the Shave Corporate Plaintiffs' pleaded invocation of the word, 'personal', found in the phrase 'personal relationship', seen in par 10(a) of the SFRASOC.
It is true par 10(a) makes reference to a longstanding financial, business and personal relationship enjoyed by Mayor Yuryevich with Mr Fyson. But no details at all of that alleged longstanding, as asserted, 'personal' relationship are provided. Nor is anything more said as to the precise temporal duration of this so-called 'longstanding' personal relationship.
I accept that what has been pleaded could be read (after the pars 21 ‑ 25 amendments of 31 August 2015) as some attempt by the Shave Corporate Plaintiffs to engage against the Local Government Act pt 5 div 6 financial interest disclosure and participation exclusion laws, under s 5.60, s 5.61, s 5.65 and s 5.67. But I am not prepared to undertake question three's presently hypothetical exercise, to attempt to engage with some alternative, lesser, phantom disclosable impartiality interest, that would be necessary for the purpose of pursuing question three. That exercise would be uncertain, unduly hypothetical and, in the end, inappropriate.

Allowing cases stated: concluding observations

There is no real dispute as between the parties concerning the applicable case law, which urges caution upon courts before sending parties down a potentially snare‑laden path of pursuing the investigation of what are truncated issues, rather than to a full trial.
A significant body of underlying case law urges restraint against such truncated exercises, particularly in the face of 'artificially constricted bodies of fact'. That observation seems apposite to present circumstances: see Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [7] (Gleeson CJ, Gummow, Hayne & Heydon); AWB Ltd v Cole [No 2] [2006] FCA 913; (2006) 233 ALR 453 (Young J); Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 [168] - [170] (Kirby & Callinan JJ); and Landsdale Pty Ltd v Moore [2009] WASCA 176 [19] - [20] (Newnes JA). I also respectfully adopt the recent observations by Pritchard J in BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 2] [2012] WASC 321 [26] - [27], to the same end.
I have already indicated my negative views against proposed question three, given its unduly uncertain and hypothetical nature. I reach that conclusion notwithstanding what is contended under the submissions of the first defendant as a significant interest in the conduct impartiality and voting issues, arising out of literature circulated by the Department of Local Government and Communities (the Department). I was referred during arguments to Operational Guidelines No 1 (January 2011): Disclosing of Interests Affecting Impartiality, and to the advice under heading 3 (pages 2 and 3) of that publication, in terms:
3.The impact of an impartiality disclosure
There are very different outcomes resulting from disclosing an interest affecting impartiality compared to that of a financial interest.
For example, with the declaration of a financial interest an elected member leaves the room and does not vote (unless permitted to do so by the meeting or the Minister).
With the declaration of an impartiality interest, the elected member stays in the room, participates in the debate and votes. In effect then, following disclosure of an interest affecting impartiality, the member's involvement in the meeting continues as if no interest existed.
I was told, in effect, that advice from the Department under these operational guidelines is tied to the two extra ingredient factors I earlier identified, concerning question three - namely, the silence in the rules of conduct about the topic of voting subsequent to a conduct impartiality disclosure made under reg 11(2), other than the disclosure being brought to the attention of the meeting, then recorded in the minutes of the meeting: see reg 11(5) and reg 11(6), which is then coupled with the obligation to vote under s 5.21(2) of the Local Government Act under pt 5 div 2. A resolution of the interesting issue as regards the contended subsequent mandatory voting by a councillor will need to await another day - and then be accompanied by concrete underlying facts to assist a safer evaluation of such an issue - which does present to me as being more challenging than just applying a literal application of the highlighted provisions.
A more finely balanced evaluation emerges around proposed case stated question one, as regards the identification and significance of the contended pt 5 div 6 financial interest in Mayor Yuryevich, pertaining to the resolution of the council concerning the Approval Resolution granted to Mr Fyson. Question two is something of a bare corollary to question one, in terms of ensuing legal consequences.
As the SFRASOC is now framed, post 31 August 2015, I think I need to proceed on the basis the Shave Corporate Plaintiffs now articulate bias arguments along with, but also separately to, infringing undisclosed financial interest statutory transgression arguments, and on a stand‑alone basis.
An assumed resolution of question one in the negative ‑ as to the absence of any infringing disclosable financial interest in the Mayor under s 5.65 and s 5.67 ‑ would not now seem to resolve the Shave Corporate Plaintiffs' stand‑alone 'bias' challenges. Those bias arguments would remain for their separate, discrete evaluation, come what may.
I mention again the lack of a statement of agreed facts for the proposed case stated. Of course, the first defendant is not to be held responsible for the absence of such a platform, given the Shave Corporate Plaintiffs' implacable opposition to any case stated, as is proposed by the first defendant.
Nevertheless, the end result is that I am not, as a matter of practicality, given a safe factual platform to determine question one's presenting issues, absent a firm underlying factual edifice. That is particularly so where, I note, the Shave Corporate Plaintiffs foreshadow seeking future discovery from the defendants.
Given the application is opposed by the Shave Corporate Plaintiffs and that there is no agreed statement of facts, the issue over question one for me, essentially, is whether or not it is safe or appropriate to order a case stated on the basis, effectively, of quasi‑demurrer arguments as proposed by the first defendant. Such arguments would contend, essentially, that what is pleaded in the current iteration of the SFRASOC could not, even arguably, show up a pt 5 div 6 Local Government Act disclosable financial interest in Mayor Yuryevich. But even that result still would not dispose of the current litigation, even were I to reach that position. An incomplete result is untidy and inefficient from a case management perspective.
In my view, the proposed exercise is not feasible as currently framed, even only on case stated question one. I reach that conclusion, essentially, due to what I assess as an undue residual factual and financial information vagueness, in the underlying alleged corporate financial linkage information, concerning the respective Yuryevich and Fyson corporations and their potential associations and interrelationships.
The current iteration of the SFRASOC, on my analysis, still approaches those issues in too superficial a way. More details are needed and seem likely to emerge in due course, under requested particulars and discovery or, if necessary, under cross‑examination at a trial.
A trial then is the required course overall, for a proper evaluation of question one, bearing in mind the mandated levels of caution to be applied in evaluating the desirability and viability of an exercise of this kind. Should the trial of the whole exercise require a longer hearing time, then so be it.
Before concluding these reasons, I wish to add some further observations concerning the nature of the current action, in the context of the Shave Corporate Plaintiffs', as expressed by counsel, apparently fully considered decision not to pursue relief under a process of judicial review.

The Shave Corproate Plaintiffs' claim to declaratory and injunctive relief under proceedings issued by writ

The argued interests of the Shave Corporate Plaintiffs who bring this action and pursue the nominated relief require scrutiny.
At par 2 of the SFRASOC, it can be seen that these entities are said to be the owners of land on Hannan Street, Kalgoorlie, by reference to various lots there identified. The nature of the activities conducted on the lots is then identified under par 3 by reference to hotel and accommodation facilities (on lot 7), a residential dwelling on lot 304, a residential dwelling on strata lots 1 and 3 on strata plan 9226, and hotel and motel accommodation facilities and a drive‑through liquor store on the residual lots.
As regards the Approval Resolution passed on a motion of the council of the first defendant on 25 November 2013, I observe that it is now said that the Shave Corporate Plaintiffs, effectively as business corporations, opposed that motion concerning the par 19 Approval Resolution regarding the change of use to a liquor store and associated warehouse and showroom at the Property.
The pleaded connection, I discern, is argued as between the second and third defendants and the par 19 motion and Approval Resolution of 25 November 2013, by the plea under par 17, that:
If the application was approved and the use was thereafter lawfully implemented, the use would compete with the interests of the plaintiffs.
No other details of asserted competing use concerning the Property in Hannan Street are provided.
Prayer B in the claim for relief sees the three Shave Corporate Plaintiffs seeking a permanent injunction, 'restraining the second or third defendants from taking, or causing to be taken, any further steps to implement the use pursuant to the Approval [Resolution]'. That injunctive relief is sought following on after the earlier relief sought under prayer A, namely, for a declaration to the effect that the Approval Resolution (ie, of the council of the first defendant on 25 November 2013 granting planning approval to the second defendant) is 'invalid' and of no force and effect.
The present litigation, as I mentioned, is initiated under the writ of the plaintiffs as action CIV 2507 of 2014, commenced out of this court on 31 October 2014. The action is explicitly not brought as an application for judicial review under O 56 of the RSC, as regards an application for the judicial review of a reviewable decision or of reviewable conduct: RSC O 56 r 1(1). Proceedings for judicial review in this court are properly commenced by application under form 67A: RSC O 56 r 2(1). There is no ascertainable application of that character in the present case.
Proceedings in this court seeking judicial review are the subject of a prima facie limitation period of six months, measured from the date on which a decision is made or the date on which an applicant becomes aware of it: see definition of 'limitation period', RSC O 56 r 1(1)(a). If an application were brought outside the limitation period, then, by RSC O 56 r 2(4)(a), there should be made an application for leave to proceed out of time. That would usually require an affidavit explaining why the review application is not brought within the allowed six‑month period: RSC O 56 r 2(4)(b).
RSC O 56 does not, of course, preclude the continued seeking of the prerogative writs of certiorari, mandamus or prohibition. Constitutionally, the right of a Supreme Court to issue certiorari for jurisdictional error cannot lawfully be impeded. State Supreme Courts are Chapter III courts under the Constitution, see: Kirk v Industrial Court (New South Wales) [2010] HCA 1; (2010) 239 CLR 531 [97] - [100] per the plurality, and my reasons explaining that in Re Graham Anstee-Brook [2011] WASC 172; (2011) 42 WAR 35 [32] - [34].
Orders absolute for the prerogative writs may be sought on the RSC O 56 application as an end remedy: see RSC O 56 r 2(2)(a). It is also open to seek as well a declaration or an injunction, or both, as a remedy, on the judicial review application: see RSC O 56 r 2(2)(b).

RSC O 56 was modified in December 2013. Previously there was a two‑step procedure (by way of seeking an order nisi, then an order absolute for certiorari) pursuant to which an initial application would be brought before a judge of this court, on a basis of the seeking first of an order nisi for certiorari from the single judge. This proceeded upon the basis of needing to show a respectably arguable case. Under the old procedure, if the order nisi rule was obtained, a subsequent attendance at court was needed, to then show cause, effectively, why orders absolute for certiorari should not issue.
By the old rule, show cause orders seeking the issue of orders absolute for certiorari, were regularly made returnable before three justices of this court, as the Full Court, then subsequently, after 2005, the Court of Appeal - albeit the selected hearing coram to some extent was assessed by the judge hearing the order nisi application. The position now is very different.
The former two-step procedure to obtain prerogative relief was inflexible. The old procedure did not readily lend itself to being invoked in circumstances of significant underlying factual disputes, as Kennedy J, in effect, had observed in Ex parte McKenna (1989) 2 WAR 401, 412 (line 19), 414 (line 42).
The revised RSC O 56 now removes the former two-step path to a quashing outcome, in the nature of an order absolute for a writ of certiorari, against the impugned administrative decision.
The procedural approach under RSC O 56 now more closely approaches the procedure in the Federal Court for seeking judicial review, via the Administrative Decisions (Judicial Review) Act 1977 (Cth).
In this court, judicial review applications are now brought automatically in the court's Commercial and Managed Cases (CMC) List (RSC O 4A r 11). In appropriate circumstances, where judicial review by certiorari (or quashing relief that is equivalent under RSC O 56 r 2) is sought, a CMC judge of this court, at the return of an early application for directions, in proceedings commenced by form 67A, will issue appropriate directions, as required, for pleadings, particulars, (limited) discovery, or such other appropriate pre-trial procedures as required for the circumstances of the particular dispute.
I render those observations in a context of providing a more considered response to counsel for the Shave Corporate Plaintiffs, who answered a question from me asking why this action had not been brought as an application for judicial review under RSC O 56 by, in effect, expressing his concerns over the underlying levels of factual disputation (ts 59 ‑ 61).
As now explained, such former concerns, under the workings of the revised RSC O 56, should be more than capable of being accommodated by bespoken directions issued in the CMC list for an appropriate path to the resolution of all underlying issues, including of any disputed facts, in scenarios of judicial review.

Locus standi of the plaintiffs: private law considerations

In dealing with an application seeking judicial review of an impugned planning decision, depending upon the precise underlying facts, a rival business competitor, I would accept, may have a legitimate basis to show sufficient locus standi (ie, to bring suit) as a proper applicant for judicial review, seeking an order absolute for a prerogative writ of certiorari, or for equivalent relief under RSC O 56.
Towards the standing issue, in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 [48], Gaudron, Gummow & Kirby JJ observed:
Upon the true construction of its subject, scope and purpose, a particular statute may establish a regulatory scheme which gives an exhaustive measure of judicial review at the instance of competitors or other third parties. An example is the special but limited provision by the legislation considered in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [[1994] FCA 161; (1994) 121 ALR 373] for judicial review of successful applications for registration. However, the circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject matter of the action. In Attorney-General v London County Council [[1901] 1 Ch 781], the plaintiffs were both the Attorney-General and omnibus proprietors who were ratepayers of the defendant and who competed with the business conducted by the defendant which they sought to restrain. More recently, the interest of a union of shop assistants in the trading hours of the enterprises employing its members was held by this Court to be an interest with respect to a statutory power to permit Sunday trading sufficient to ground standing for the union.
See also Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 31 ALR 44, a case of statutory judicial review under ACT legislation at [33] per French CJ & Keane J and also, Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 [37] (Heydon J) concerning conduct which had not yet taken place.
But outside the realm of judicial review (which realm I assess the current writ and civil litigation by the plaintiffs to eschew), by what other private law basis might the Shave Corporate Plaintiffs obtain permanent injunctive relief against the second and third defendants, in the terms as are currently sought? Such are issues yet to be addressed by the parties, so the observations now made are merely provisional.
In the context of the prayer A claim to relief by a declaration as to invalidity (of the Approval Resolution of the council of the first defendant), I am troubled (outside the field of judicial review) over the standing of the Shave Corporate Plaintiffs to pursue such private law relief. Of course, declaratory relief may be pursued in a context of seeking judicial review. RSC O 56 r 2 renders that absolutely explicit. But that is apparently not the present case.
This action eschews the pathway of judicial review, effectively proceeding via a 'back door', to pursue a declaration as to the invalidity of a 2013 decision by a local government body. I say that recognising the observations of Gaudron, Gummow & Kirby JJ in Batemans' Bay:
[i]n private law there is, in general, no separation of standing from the elements in a cause of action [43].
So, outside the territory of judicial review, what are the Shave Corporate Plaintiffs' cause(s) of action against the first defendant? No clear answer to that question is presently discernible. Is it inappropriate to pursue declaratory relief outside the parameters of RSC O 56, in circumstances where these Shave Corporate Plaintiffs do not seem to articulate any private law cause of action against the (first) defendant - against whom declaratory relief as to invalidity is sought?
A second question then presents. What is the private law claim of the Shave Corporate Plaintiffs to secure permanent injunctive relief against the second and third defendants, who may present as potential future rival business competitors in Hannan Street, Kalgoorlie? Is there a legitimate basis for that injunctive relief outside the arena of judicial review?
These possibly troubling questions have not been addressed at all to this point. I flag them for necessary future consideration. In doing so, I note that in the English Court of Appeal decision, O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 680, Lord Diplock held that, as a general rule, it will be contrary to public policy and, as such, an abuse of process of the court, to permit a person seeking to attack a decision of a public authority, to proceed by the ordinary law remedy of declaration, rather than the public law procedure of judicial review (see also Hall v City of Burnside [No 3] [2007] SASC 3 [16] ‑ [19] (Bleby J)).
I make two further observations in the context of standing, the first regarding the question of standing to pursue a statutory remedy and the other regarding the standing to pursue a private law cause of action in tort.
First, a person who is not the applicant for development approval or the owner of land in respect of which an application for development approval is made, would not be an 'affected person' for the purposes of sch 2 pt 9 cl 76 of the Planning and Development (Local Planning Schemes) Regulations 2015, and thus would not have the standing to apply to the State Administrative Tribunal for review of a determination by a local government to refuse the application for development approval or to grant development approval subject to conditions. Schedule 2 pt 9 contains the deemed provisions for local planning schemes regarding the procedure for dealing with applications for development approval.
Second, as regards private law causes of action, there are, of course, the torts of misfeasance in public office and breach of statutory duty, which would sound in damages: see, for example, Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 345 - 348 and Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [80] - [84]. However, questions of standing arise for those torts as well: see, for example, what was said by Lord Browne‑Wilkinson regarding the principles applicable to breaches of statutory duty in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 730.
Again at this preliminary level, I only flag for a future resolution the possible inappropriateness of a private law course. These lurking, and so far unaddressed, issues are difficult. They buttress my decision to resist a case stated path at this time, by reason of their potential future ramifications for the long term fate of the litigation.

Collateral challenges to administrative decisions

Another factor weighing in favour of not pursuing a case stated path at this time, particularly in the void of an agreed set of facts, is the issue of collateral review in circumstances where the collateral proceedings are not in the nature of judicial review.
The submissions regarding the defendant’s application for a case stated have not squarely addressed the complex issues surrounding what presents as - in effect - a collateral challenge to an administrative decision, albeit in circumstances where the plaintiffs have initiated these proceedings for the sole purpose of attacking the legality of the decision, rather than, for example, the question of validity arising either as a truly collateral issue in the course of another proceeding or in the context of an application brought for judicial review of that decision.
In Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 which dealt with a collateral challenge to the validity of a witness summons in the context of criminal proceedings, Allanson J (with whom McLure P agreed as to the outcome of the appeal) said at [127] - [128]:
As a general principle, the legality of an administrative act is open to collateral review in a court in the course of dealing with an issue properly arising in a controversy before that court: Attorney-General (Cth) vBreckler [1999] HCA 28; (1999) 197 CLR 83 [36], [94]; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, (69) (79 - 80), (87), (100), (130 - 131), (144 - 146). The availability of collateral review is regularly recognised at the highest level: see, for example, K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [144] - [145]; Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 [109].
In Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 Malcolm CJ (Seaman & Ipp JJ agreeing) said that as a general rule the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. The rule is subject to some exceptions: where the collateral attack is considered to be an abuse of process because it constitutes an attack on a final decision of a court of competent jurisdiction; where the decision sought to be challenged was made within jurisdiction but invalidated by error of law on the face of the record; and where, as a matter of statutory construction, there is a statutory remedy which is the only remedy available (561).
I also note the comments made regarding collateral review by the members of the coram in Director of Housing v Sudi[2011] VSCA 266; (2011) 33 VR 559 - see, for example, [25] - [28] (Warren CJ), [66] - [69] (Maxwell P), and [221] - [248] (Weinberg JA).
I do no more than flag these issues at this stage, but they reinforce my decision not to follow a case stated path at this time.

The scope and effect of a declaration

A further possible problem with respect to the Shave Corporate Plaintiffs' prayer for relief A presents. Prayer for relief A reads in these terms:
A. A declaration that the Approval is invalid and of no force and effect.
As noted previously, the means by which the Shave Corporate Plaintiffs seek to arrive at the invalidity of the first defendant's Approval Resolution of 25 November 2013 (granting the second defendant planning approval, per par 19 of the SFRASOC) is by contending as to the Approval Resolution being, as per par 20 of the SFRASOC:
(a)tainted by apprehended bias; and
(b)further, or alternatively, tainted by actual bias.
Paragraph 20 of the SFRASOC advances from that proposition to its asserted conclusion that the first defendant's Approval Resolution is 'therefore invalid', and such that:
(c)any purported implementation of the Approval [Resolution] would be unlawful; and
(d)the plaintiffs are entitled to restrain the second defendant and the third defendants from implementing the Approval [Resolution] by commencing any development the subject of the Approval [Resolution].
The Shave Corporate Plaintiffs alternatively seek to have the Approval Resolution declared invalid, on a basis that at the requisite time Mayor Yuryevich suffered a financial interest, within the meaning of s 5.61 of the Local Government Act, and, in breach of s 5.65 of the Local Government Act, he failed to disclose that interest (either prior to the meeting, or immediately before the second defendant's application was discussed) and discussed the second defendant's application, ultimately voting in favour of it (see pars 21 ‑ 25 of the SFRASOC).
Ignoring, for a moment, questions over whether the Shave Corporate Plaintiffs hold any private law entitlements to obtain injunctive relief of the character as is sought under (d), I also express concern over the 'leap' from the assertion of apprehended, or actual bias, to the conclusion of 'invalidity' of the first defendant's Approval Resolution.
Another question arises: by virtue of what event(s) has the Approval Resolution been rendered invalid? An academic detection of a possible bias problem from a distance does not thereby and of itself automatically invalidate a decision of an administrative body (all else being equal). In other words, the decision itself does not appear to be invalidated before the grant of some such quashing order by a court in the nature of certiorari: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 632 (Kirby J), 647 (Hayne J); Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, 277 (Aickin J).
What then do the Shave Corporate Plaintiffs raise here, to move beyond alleging an infringing financial interest in the Mayor and alleged apprehended or actual bias allegations, to support their conclusion of invalidity of the Approval Resolution? The first remedy they seek, being only a declaration, cannot deliver the outcome of invalidating or quashing the decision that has not otherwise been invalidated. As explained by Lord Woolf in Zamir & Woolf: The Declaratory Judgment (Sweet & Maxwell, 4^th ed, 2011), 1-02:
A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory, in other words coercive, judgment which can be enforced by the courts.
The basis upon which the Shave Corporate Plaintiffs can seek a declaration as to invalidity outside the realm of judicial review to quash the decision, presently stands to be answered.
Then there is a further issue to be addressed given that the existence of some level of common law bias, will not, it seems, automatically render a decision invalid. It is necessary to also consider the possible application of principles such as waiver and necessity, before a court could either issue certiorari quashing such a decision or declare such a decision as inflicted with some level of bias as invalid. None of that is to touch upon the court's ultimate discretion with respect to issuing a writ of certiorari.
The above factors point towards a conclusion that the Shave Corporate Plaintiffs' claim may only be tenable in the currently untapped context of judicial review.
So, the Shave Corporate Plaintiffs' base declaration, as conceived, may be problematic ‑ absent a prior quashing of the Approval Resolution of the first defendant.
The problematic framing of the Share Corporate Plaintiffs' prayer for declaratory relief (not to mention the following prayer for permanent injunctive relief) looks, at root, to stem from the fact that their proceedings, though not instigated under the format of judicial review, seek in substance what are essentially judicial review outcomes. The standard six-month limitation period with respect to commencing proceedings by judicial review also looks to have elapsed. So an extension of time would need to be applied for and properly justified: RSC O 56 r 2(4).
I render the above comments to note some conceptual concerns with respect to the present litigation. This issue, like the issue of locus standi discussed earlier, has not been raised by any of the defendants with respect to the litigation, nor as yet adequately explained by the Shave Corporate Plaintiffs. The preceding observations are therefore of an entirely provisional character at this early stage.

Conclusions

For the above reasons, the application of the first defendant seeking the case stated in the terms as formulated, must be refused. However, given some of the considerations which I have identified along the way in reaching these conclusions, the costs of this application, on my prima facie assessment, should be reserved to abide the ultimate outcome of the underlying litigation. In other words, prima facie as regards the costs of this application, there should be an order that the costs be costs in the ultimate cause. Otherwise the application should be dismissed.
The parties should now confer over these reasons and then provide my Associate with a (hopefully agreed) minute of orders giving effect to these reasons within 14 days of their publication.
SCHEDULE A
SCHEDULE B

SCHEDULE C