Re Carey; ex parte Exclude Holdings Pty Ltd
[2006] WASCA 219
•26 OCTOBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RE CAREY; EX PARTE EXCLUDE HOLDINGS PTY LTD & ORS [2006] WASCA 219
CORAM: MARTIN CJ
WHEELER JA
McLURE JA
HEARD: 16 MAY 2006
DELIVERED : 26 OCTOBER 2006
FILE NO/S: CIV 2197 of 2005
MATTER :Application for a Writ of Certiorari against MEMBER TIM CAREY of the STATE ADMINISTRATIVE TRIBUNAL
EX PARTE
EXCLUDE HOLDINGS PTY LTD (ACN 009 463 165)
DENNIS GEORGE WARWICK
JOSEPHINE RANDAZZO
BERNARD LANDRO
KEVIN JOHN CLAFFEY
MARGARET JOAN BAUHOFER
BRIAN WILLIAM PACKER
PAULINE JEAN PACKER
JAMES NORMAN COLLIS
NATALIE JANE COLLIS
RICHARD NORMAN COLLIS
SUZANNE COLLIS
ABENRA PTY LTD (ACN 009 258 468)
TANVIER PTY LTD (ACN 009 178 214)
ApplicantsAND
MEMBER TIM CAREY OF THE STATE ADMINISTRATIVE TRIBUNAL
First RespondentGEOFFREY JOEL MOSS
Second Respondent
Catchwords:
Administrative law - Prerogative writ - Application for a writ of certiorari - Review of decision of member of State Administrative Tribunal - Strata development - Application of Town Planning Scheme by reference - Whether or not the errors identified amounted to jurisdictional error - Error of law - Characterisation of a Tribunal - Failure of the applicants to exercise the right of appeal conferred by the State Administrative Tribunal Act 2004 (WA)
Legislation:
Evidence Act 1906 (WA)
State Administrative Tribunal Act 2004 (WA), s 13
Strata Titles Act 1985 (WA), s 35, s 42, s 77, s 81, s 83
Town Planning and Development Act 2005 (WA), s 68
Transfer of Land Act 1893 (WA)
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Applicants: Mr G R Donaldson SC
First Respondent : No appearance
Second Respondent : Ms R J Lee
Solicitors:
Applicants: Anderson Kershaw
First Respondent : No appearance
Second Respondent : Beere May & Meyer
Case(s) referred to in judgment(s):
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Archer v Howell (No 2) (1992) 10 WAR 33
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Beale v Government Insurance of New South Wales (1997) 48 NSWLR 430
Black v Toowoomba Resort Pty Ltd [2005] 1 Qd R 577
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Commonwealth v Wood (2006) 148 FCR 276
Craig v State of South Australia (1995) 184 CLR 163
Custom Credit Corp Ltd (in liq) v Commercial Tribunal of New South Wales (2000) ASC 155‑041
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
Gudgeon v Black (1994) 14 WAR 158
Harris v Caladine (1991) 172 CLR 84
Holland‑Stolte Pty Ltd v Mirvac Projects Pty Ltd, unreported; SCt of NSW; 16965 of 1990; 28 June 1991; Giles J
Kable v Director of Public Prosecutions for New South Wales (1996) 159 CLR 51
Lewin v End [1906] AC 299
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Monck v National Companies & Securities Commission (1992) 6 ACSR 625
Mount Lawley Pty Ltd v WA Planning Commission (2004) 29 WAR 273
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
R v Brisbane City Council; Ex parte Reed [1986] 2 Qd R 22
R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] QB 424
R v Compensation Court of Western Australia; Ex parte State Planning Commission (1990) 2 WAR 242
R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257
R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835
Re Bennett‑Borlase SM; Ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203
Rogers v Marion (1990) 3 WAR 279
Roy Morgan v State Revenue (Victoria) (2001) 207 CLR 72
South Sydney Municipal Council v James (1977) 35 LGRA 432
Tamas v Victorian Civil and Administrative Tribunal (2003) 9 VR 154
Tamas v Victorian Civil and Administrative Tribunal [2002] VSC 309
The Queen v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
Case(s) also cited:
Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311
Dahlia Mining Co Ltd v Collector of Customs (1989) 17 NSWLR 688
Optima Developments Pty Ltd v Lake Macquarie City Council (2003) 131 LGERA 376
Plaintiff S157/2002 v Commonwelath of Australia (2003) 211 CLR 476
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen (1999) 21 WAR 158
Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511
Teller Properties Pty Ltd v Randwick City Council (1994) 84 LGERA 369
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 BSWLR 78
MARTIN CJ:
SUMMARY
The applicants in these proceedings were unsuccessful parties to proceedings in the State Administrative Tribunal ("the Tribunal") which raised potentially significant issues relating to the impact of Shire of Busselton District Town Planning Scheme ("TPS") No 20 upon non‑resident owners of residentially zoned premises making those premises available for tourist accommodation.
However, the applicants did not exercise their statutory right of appeal from the decision of the Tribunal. Instead, they sought the prerogative remedy of certiorari on the ground that the Tribunal had made errors which took it outside the jurisdiction conferred upon it. Because of the nature of the remedy sought, it is neither necessary nor appropriate for the Court to express a view on the outcome of the substantive issues before the Tribunal. Rather, the role of the Court is limited to ascertaining whether, by reason of error, the Tribunal exceeded its jurisdiction.
In my opinion, the Tribunal made errors of law and failed to determine some matters which had to be determined before it could have arrived at its conclusion. However, because of the scope of the Tribunal's powers and functions and, in particular, its capacity to determine questions of law, in doing so, it did not exceed its jurisdiction and, in my opinion, the applicants are not entitled to the particular remedy they seek. Even if I had concluded that the Tribunal had exceeded its jurisdiction, I would have exercised a discretion to refuse the applicants prerogative relief because of their unexplained failure to exercise their right of appeal.
REASONS
The application for certiorari
This is the substantive hearing of an application by the various proprietors of 11 units in the strata title development known as "Bijou Marina Village" situated at Port Geographe near Busselton, in which they ask the Court to issue a writ of certiorari for the purpose of quashing the decision of a member of the Tribunal on 20 July 2005 by which the Tribunal ordered that:
"1.Pursuant to s 81(3) of the Strata Titles Act 1985 (WA), the proprietors of units 1, 2, 3, 4, 6, 9, 10, 11, 12, 13 and 15 of Bijou Marina Village refrain from advertising that their units are available for lease and refrain from entering into lease agreements for the temporary accommodation of tourists, visitors and travellelers.
2.Pursuant to s 81(3) of the Strata Titles Act 1985 (WA), the proprietors of units 1, 2, 3, 4, 6, 9, 10, 11, 12, 13 and 15 of Bijou Marina Village be required to terminate or cancel any current lease arrangements for the temporary accommodation of tourists, visitors and travellers."
The Tribunal was created by legislation which came into effect on 1 January 2005. Appeals have been brought to this Court from decisions of the Tribunal utilising the specific provisions in the legislation to which I will later refer. This is the first occasion upon which prerogative relief has been sought to quash a decision of the Tribunal, instead of utilising the appellate processes specifically created by the legislature. The applicants have made no attempt to explain this course of action. It has substantially complicated these proceedings. A significant part of this judgment will necessarily be dedicated to those complications.
In my view, the use of prerogative remedies to challenge decisions of the Tribunal is a course of action which this Court should actively discourage. The legislature has provided a specific right of appeal to this Court from decisions of the Tribunal. Prerogative relief should only be sought instead of exercising that right in the most exceptional circumstances. I will return later in my judgment to the approach which I think the Court should take when confronted with inappropriate proceedings of this kind. But first it is necessary to chart their course.
The proceedings in the Tribunal
By an application dated 17 February 2005, Geoffrey Joel Moss (who is the second respondent to these proceedings) lodged an application in the Tribunal seeking both interim and permanent orders in substantially the terms made by the Tribunal on 20 July 2005 and which I have set out above, together with a further order directing the strata company of Bijou Marina Village to enforce its by‑laws relating to the matters the subject of the substantive orders sought.
The grounds of the application refer to certain by‑laws made by the relevant strata company and which I will now relevantly set out:
Schedule 1
2.Duties of proprietors and occupiers
"(2)A proprietor, occupier or tenant of a lot shall:
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or tenants or their visitors; and …
(c)take all reasonable steps to ensure that his or her visitors do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor, occupier or tenant of another lot or of any person lawfully using common property; …"
Paragraph (b) of that clause was not referred to in the application, although it is relevant. It is in the following terms:
"(b)not use the lot or permit it to be used in such manner or for such purposes as causes a nuisance to any occupier of another lot (whether a proprietor or not); …"
Schedule 2 of the strata company by-laws reads:
"1.Use of Lots
No lot to be used for any purpose that contravenes any by‑law of the Strata Company or requirement or by‑law of the local government authority and any other authority that may have jurisdiction over the use to which a lot may be put.
2.Behaviour of Proprietors, Occupiers and Tenants within the Scheme
A proprietor, occupier or tenant of a lot shall not:-
(a)use any lot or part of the common property for any purpose which may be a breach of any Strata Company by‑law applying to the Scheme, any local government authority regulations or by‑law, or any other government and regulating authority law;
(b)use the lot that he or she owns, occupies, leases or rents for any purpose that may be illegal or injurious to the reputation of the scheme;
…
(m)use language or behaviour in a manner likely to cause offence or embarrassment to the proprietor, occupier or tenant of another lot or to any person lawfully using common property and shall be adequately clothed when upon common property.
…"
The application lodged in the Tribunal went on to allege that those by‑laws were being contravened by the respondents to that application, who were leasing their units for short stay or holiday accommodation contrary to the Shire of Busselton District TPS No 20 and further alleging that the tenants to whom those units were leased were engaging in conduct which was causing a nuisance to other proprietors of units in the development.
On 11 March 2005, the Tribunal made an interim order substantially in the same terms as the final orders made and which I have set out above.
The matter was heard on 17 May 2005. The Tribunal reviewed the interim orders made on 10 June 2005 and resolved that they should continue in force. As I have already observed, those orders were made final when the Tribunal's decision, and the reasons for that decision were published on 20 July 2005.
The proceedings in this Court
On 11 October 2005, applications were made to this Court for the issue of an order nisi for the grant of certiorari. That application was commenced a little less than two months after the time within which an appeal from the Tribunal's decision could have been brought. Notwithstanding the expiry of the time for appeal, application could, of course, have been made for an extension of time within which to appeal. However, that course was not taken, and no explanation is proffered for the failure to pursue the avenue of appeal specifically provided by the legislature in respect of decisions made by the Tribunal.
The order nisi in these proceedings was granted on 26 October 2005. On 13 January 2005, an application for a stay of the orders of the Tribunal was heard and refused. Notwithstanding the making of an order for the expeditious hearing of these proceedings on 13 January 2005, the applicants did not file the papers within the time specified. The matter eventually came on for hearing on 16 May 2005. Two of the grounds upon which the order nisi had been granted were abandoned, and leave was sought (and granted) to add a further two grounds. Argument during the course of the hearing extended well beyond the topics which had been covered in the written submissions exchanged by the parties, with the result that a timetable was set for the presentation of any further evidence and the exchange of submissions by the parties.
The application is brought on the ground of jurisdictional error - that is to say, on the basis of an allegation that as a result of error, the Tribunal exceeded the jurisdiction conferred upon it by the legislature. It is therefore appropriate to commence with a consideration of the ambit of that jurisdiction starting firstly with the legislation creating the Tribunal itself and then turning to the provisions of the Strata Titles Act 1985 (WA) which conferred the particular jurisdiction which the Tribunal was exercising in this case.
The State Administrative Tribunal Act 2004 (WA)
The Tribunal is established by s 7 of the State Administrative Tribunal Act 2004 (WA) ("the Act"). Section 14 of the Act provides that the jurisdiction of the Tribunal is either original or review jurisdiction. Section 15 provides that if the jurisdiction does not involve the review of a decision, the matter comes within the Tribunal's original jurisdiction. Section 17 provides that if a matter before the Tribunal expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. It is clear from the nature of the application before the Tribunal in this case that the matter fell within the original jurisdiction of the Tribunal.
Section 32 of the Act provides that the Tribunal is bound by the rules of natural justice except to the extent that the Act or the enabling Act conferring jurisdiction upon the Tribunal authorises, whether expressly or by implication, a departure from those rules. The same section provides that the Evidence Act1906 (WA) does not apply to the Tribunal's proceedings and the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.
Section 39 of the Act provides that parties to proceedings before the Tribunal may be represented by, inter alia, legal practitioners.
By subsection (1) of s 59, the expression "question of law" is defined, for the purposes of that section, to mean:
"a question of law arising in a proceeding for decision by the Tribunal and includes a question of mixed law and fact."
Subsection (2) of the same section provides that subject to subsection (10), a question of law is to be decided by the Tribunal according to the opinion of the presiding member if that member is a legally qualified member. I digress to observe that it is common ground that the member constituting the Tribunal in this case was a legally qualified member.
Other paragraphs of the same section make provision for the reference of questions of law to the President, and subsection (8) provides that if no sitting member of the Tribunal is a legally qualified member, the presiding member is required to refer a question of law to the President. Subsection (10) provides that where a question of law is referred to the President, he or she is to either determine the question or refer it to another legally qualified member of the Tribunal for resolution or, alternatively, refer the question to the Supreme Court for decision (in the latter case provided that it is not a question of mixed law and fact).
Section 61 provides that hearings of the Tribunal are to be held in public unless another provision of the Act provides otherwise, but empowers the Tribunal to make orders directing that a hearing or any part of it be held in private.
Section 66 provides that the Tribunal may summons witnesses to attend or produce documents or other materials. Section 67 provides that witnesses may be required to give their evidence on oath.
Section 74 requires that a decision of the Tribunal has to be given in writing if it is a final decision or has been reserved. Section 77 provides that the Tribunal is to give its reasons for a final decision, and that those reasons must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
Later provisions of the Act provide mechanisms for the enforcement of the decisions of the Tribunal by Courts, and empower the Tribunal to make an order for the costs of proceedings before it.
Section 90 empowers the Tribunal to grant an interim injunction, which power was exercised in this case. By s 91, the Tribunal is empowered to make declarations, if constituted by a judicial member.
Section 95 of the Act creates the offence of failing to comply with a decision of the Tribunal, and s 100 empowers the President to refer to the Supreme Court conduct which would have constituted a contempt of court if a proceeding of the Tribunal had been a proceeding in the Supreme Court.
Further, by s 102 of the Act, judicial members of the Tribunal are authorised to issue warrants for the apprehension of persons for failure to attend as required by a summons issued under s 66 of the Act.
Part 5 of the Act deals with appeals from the decisions of the Tribunal. By s 105, a party to a proceeding may appeal from a decision of the Tribunal with the leave of the Court to which the appeal lies. Appeals can only be brought on a question of law and are brought before the Court of Appeal if the decision was made by a judicial member, or before the General Division of the Supreme Court if the Tribunal was otherwise constituted. The same section provides that an application for leave to appeal has to be made in accordance with the rules of the Supreme Court and within the period of 28 days after the day on which the Tribunal's decision is given. In this case, that period would have expired on or about 18 August 2005. Subsection (7) of s 105 provides that the Court to which the appeal lies may extend the time limit fixed by the section, and the extension may be given even though the time limit has passed.
By s 105(13), the limitation of an appeal to a question of law is removed in respect of appeals brought from decisions made in legislation specified in Sch 1 to the Act or in regulations made pursuant to the Act and where the Tribunal's decision has the effect of depriving a person of the person's capacity to lawfully pursue a vocation. The Strata Titles Act is not such an Act.
Section 106 of the Strata Titles Act provides that the Supreme Court may stay a decision of the Tribunal pending determination of an appeal.
Later provisions of the Strata Titles Act make provision for the appointment of judicial members and non‑judicial members. Each of the President and Deputy President are to be Judges of the Supreme Court and the District Court respectively.
Section 163 of the Act provides that a member of the Tribunal has, in the performance of his or her functions as member, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge, and also provides that a person representing a party in the proceeding has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court. The same section contains equivalent provisions for the immunity of parties and persons appearing as witnesses, taking evidence, and acting as mediators.
I have set out the general provisions creating the Tribunal at some length because they are relevant to the availability of relief in this case. That is not because either party submits that any provision of the Act precludes the grant of prerogative relief quashing a decision of the Tribunal, but firstly, because it is necessary to characterise the nature of the functions being performed by the Tribunal for the purposes of defining the ambit of the errors which will take it outside jurisdiction and empower the Court to quash its decision (consistently with the principles enunciated in Craig v State of South Australia (1995) 184 CLR 163) and secondly, because the availability of an unexercised right of appeal is relevant to the Court's discretion to withhold relief. I will return to each of those issues in due course.
The Strata Titles Act 1985 (WA)
For the purposes of this case, it is not necessary to chart in exhaustive detail the Scheme for the creation and grant of strata titles created by the Strata Titles Act. It is sufficient for present purposes to observe that by virtue of s 32 of the Strata Titles Act, upon the registration of either a strata or a survey-strata plan, the proprietors of the lots identified in that plan from time to time constitute a strata company, which is a body corporate with perpetual succession and a common seal. By s 42 of the Strata Titles Act, a strata company is authorised to make by‑laws for, amongst other things, matters relating to the management, control, use and enjoyment of the lots created by the registration of the strata plan and any common property. Subsection (6) of s 42 provides that the strata company, the proprietors of the lots, any mortgagee in possession or occupier or other resident of a lot is bound by the by‑laws to the same extent as if the by‑laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident and as if they contained mutual covenants to observe and perform all the provisions of the by‑laws. Further, s 42(7) imposes an obligation upon a proprietor or mortgagee in possession to take "all steps that are reasonable in the circumstances to ensure that every occupier or other resident of that lot complies with the by‑laws for the time being in force". A penalty is provided for non‑compliance with that section.
Further, pursuant to s 35(1) of the Strata Titles Act, a strata company is obliged to enforce its by‑laws.
The Strata Titles Act contains a large number of provisions conferring jurisdiction upon the State Administrative Tribunal. Section 81(3) of the Strata Titles Act provides that in the exercise of that jurisdiction, the Tribunal may order a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot to do, or to refrain from doing, a specified act in respect of the land comprised in a strata plan.
Section 83(1) of the Strata Titles Act is in the following terms:
"(1)The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a Scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that Scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company."
The meaning and effect of this section is not pellucidly clear. However, in the present circumstances, it is clear that each of the parties to the proceedings before the Tribunal were proprietors of lots in a Scheme upon whom duties were imposed by the by‑laws to which I have referred, and in respect of which Mr Moss had made a complaint of failure to perform those duties. None of the parties to the proceedings before the Court have put any submission to the effect that the orders sought from the Tribunal, and which it ultimately granted, were not orders which fell within the scope of the power to make orders for "the settlement of the dispute, or the rectification of a complaint". This is therefore not an appropriate occasion upon which to consider the precise ambit or meaning of those expressions, or the precise ambit or scope of the powers conferred upon the Tribunal by the section.
It is, however, pertinent to observe that in the circumstances of this case, the jurisdiction of the Tribunal which was invoked pursuant to s 83(1), was a jurisdiction to enforce the performance of duties imposed by the by‑laws made by the relevant strata company which, by virtue of s 42 of the Strata Titles Act, took effect as if covenants in a deed under seal executed by all relevant parties. The jurisdiction invoked was therefore an alternative means of enforcing the statutory contract created by the making of by‑laws and the provisions of s 42 of the Strata Titles Act, which obligations could otherwise have been enforced in any Court with jurisdiction over contractual disputes.
The evidence before the Tribunal
I have already sketched the general history of the proceedings before the Tribunal. When the matter came on for hearing on 17 May 2005, oral evidence was given by Mr Moss and a former proprietor, a Mr Clarke, dealing with the practice of a number of proprietors of lots in the strata development of making their units available for short‑term rental (in the order of seven or 10 days per letting) by tourists or holiday makers, and of the disruption to the lives of the permanent residents caused by those short‑term tenants.
In addition, a number of documents were tendered, including the strata plan lodged at the Office of Titles on 1 September 1999, a certificate of a licensed valuer dated 15 August 1999, a certificate of a surveyor dated 1 September 1999, a certificate of the grant of approval by the Western Australian Planning Commission to the Strata Plan dated 26 August 1999, and a certificate of inspection by the Local Government (in this case the Shire of Busselton) dated 27 August 1999 to the effect that the buildings inspected complied with the approved building plans and specifications, the subject of the strata plan. There is a clear inference from these documents to the effect that construction of the units comprising the development the subject of the strata plan was completed by the latter part of August 1999 and not later than 1 September 1999, in accordance with the relevant permits and approvals required from the Local Government - namely, the Shire of Busselton.
The significance of that fact lies in the fact that the version of the District TPS No 20 of the Shire of Busselton lodged with the Tribunal showed that it was not gazetted until 7 September 1999. By cl 9 of that Scheme, the Shire of Busselton TPS No 5 was revoked. Thus it was clear from the face of the materials lodged with the Tribunal that the development of the units the subject of the strata Scheme must have taken place pursuant to permission and approvals granted under the provisions of TPS No 5, rather than TPS No 20. However, this fact does not appear to have been appreciated by the Tribunal or the parties or their legal representatives at any time until it was pointed out during the course of argument in this Court.
I will turn then to a consideration of TPS No 20 which was in force at the time of the proceedings before the Tribunal, although not in force at the time the relevant permissions and approvals were given and the construction of the development the subject of the strata Scheme carried out.
District Town Planning Scheme No 20
As I have already observed, the Scheme was gazetted on 7 September 1999. By cl 9, TPS No 5 was revoked.
By cl 20 of the Scheme, fourteen zones and eight areas were created for the purposes of the Scheme, including a residential zone, which included the land the subject of these proceedings.
Clause 21 of the Scheme is in the following terms:
"21.Zone Objectives, Zoning Table and Requirement for Consent
(1)The objectives and policies of a zone are set out in Table 1 under the heading: 'Objectives of Zone' and 'Policies of Zone' appearing in the matter relating to the zone.
(2)(a) In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, must comply with the provisions, standards and requirements herein;
(b)Except as may otherwise be provided in this Scheme, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the planning consent of the Council pursuant to the provisions of this Part;
(c)Except as otherwise provided by this Scheme, in relation to land within a zone specified in Table 2, the use (if any) which -
(i)may be carried out without Planning Consent in a specific zone is shown by the symbol 'P' in the specific zone column;
(ii)may be carried out only with Planning Consent in a specific zone is shown by the symbol 'AA' in the specific zone column;
(iii)may be carried out only with Planning Consent issued after public advertising of the proposal pursuant to Clause 12 in a specific zone is shown by the symbol 'SA' in the specific zone column.
(3)Where no symbol appears in the cross‑reference of a Use Class against a Zone in the Zoning Table, then a use of that class is prohibited unless elsewhere specifically permitted by this Scheme.
… "
Clause 22 is in the following terms:
"22.Uses Not Listed
If the use of the land for a particular purpose is not specifically mentioned in Table 2 Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the used categories, the Council may -
(a)determine that the use is consistent with the objectives and purposes of the particular zone and can therefore be carried out without Planning Consent; or
(b)determine that the proposed use may be consistent with the objectives and purpose of the zone and therefore may only be carried out after public advertising pursuant to Clause 12; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore prohibited."
Table 1 of the Scheme sets out the objectives and policies for each of the zones, including the residential zone. The policies said by the Table to be applicable to that zone include the making of allowance for residential‑based tourist development.
Table 2 of the Scheme comprises a zoning table in conventional form, namely, a matrix or spreadsheet in which the various zones and areas comprise the vertical axes and the various use classes, in alphabetical order, comprise the horizontal axes. At the intersection of these axes on the Table, there is either a blank space in which case, pursuant to cl 21(3), use of land for that purpose within that zone is prohibited, or one or other of the designations "P", "SA" or "AA" is found. If the letter "P" is found, it denotes that land within that zone may be used for the specified purpose without the planning consent of the Council. If either of the other designations is found, the consent of the Council is required.
The Table contains some 87 use classes. In the vertical column corresponding to the residential zone, there are blank spaces adjacent to the majority of those use classes, showing that those uses are prohibited within that zone. Amongst the use classes with a blank in the square applicable to the residential zone is the class "Tourist Accommodation". The designation "P" is found in the residential zone column adjacent to three use classes, namely, "Home Occupation", "Recreation Area" and "Single House". The designation "SA" is found adjacent to 13 use classes in the residential zone column, and the designation "AA" is found adjacent to four use classes in that column, including "Grouped Dwelling".
Schedule 1 to the Scheme contains a number of definitions of terms used within the Scheme. Relevant definitions include the definition of "Development" to mean:
"the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works and any land."
Thus, the term "Development" connotes two separate and distinct concepts, namely, the use of land on the one hand, and the physical development or alteration of the physical configuration of the land on another - see University of Western Australia v City of Subiaco (1980) 52 LGRA 360.
The expression "Dwelling" is defined to mean:
"a building or portion of a building being used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis by:
(a)a single person;
(b)a single family; or
(c)no more than six persons who do not comprise a single family."
The expression "Grouped Dwelling" is defined to mean:
"a dwelling which is one of a group of two or more dwellings on the same lot, such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise."
It is appropriate that I record the concession made by counsel for the second respondent during oral argument to the effect that the configuration of the physical development of the strata Scheme the subject of these proceedings does not involve any dwelling being placed wholly or partly vertically above another.
The expression "Home Occupation" is defined to mean a business or activity carried out within a dwelling house or the curtilage of a house by a person resident therein. The expression "Recreation Area" is defined to mean a children's playground, an area used for sporting activities or sporting facilities, or an area used to provide facilities for recreational activities. The expression "Single House" is defined to mean an independently constructed dwelling standing wholly on its own lot created pursuant to the Town Planning and Development Act 2005 (WA).
The expression "Tourist Accommodation" is defined to mean:
"a building or group of buildings substantially used for the temporary accommodation of tourists, visitors and travellers which may have facilities for the convenience of patrons such as restaurants, convention areas and the like but does not include a building or place elsewhere specifically defined in this Schedule or a building or place used for a purpose elsewhere specifically defined in this Schedule."
It is clear from the final portion of the definition that a building can only be categorised as falling within the scope of "Tourist Accommodation" if, and only if, the building, or the use to which the building is being put, does not fall within the scope of any other term defined in the schedule. In other words, a place can only be characterised as falling within the use class "Tourist Accommodation" if it can be excluded from all other use classes.
Part 10 of TPS No 20 contains the non‑conforming use provisions of the Scheme. Clause 91 of Part 10 is in the following terms:
"91.Non-conforming Use Permitted
(1)If, at the gazettal date, any land, building or structure is being lawfully used for a purpose not permitted by the provisions of the Scheme (hereinafter called 'non‑conforming use') or if any land is built on or any building or structure is built in a manner not permitted by the Scheme, such land, building or structure may continue to be used for that purpose or in that manner.
(2)No provision of the Scheme shall prevent the carrying out of any development on land for which, immediately prior to the gazettal date, a permit or permits required under the Act, the Shire of Busselton Town Planning Scheme No 5 (revoked by the Scheme) or any other law authorising the development to be carried out, have been duly obtained and are current."
As I have mentioned, on the materials before the Tribunal there was a clear inference available to the effect that permits and approvals had been issued for the carrying out of development on the relevant land pursuant to TPS No 5.
The issues before the Tribunal
From this analysis of TPS No 20, it can be seen that in respect of that part of the application before the Tribunal which alleged contravention of the strata company by‑laws by reason of contravention of the Scheme, the following issues arose for determination:
(a)What was the extent of the consents, permissions or approvals granted by the Shire of Busselton with respect to the use and/or development of the land in question;
(b)What were the uses to which the land was being put;
(c)Were those uses among the use classes listed in the Zoning Table of the Scheme, and if so, were they uses which were:
(i)permitted without the consent of the Council;
(ii)permitted with the consent of the Council;
(iii)prohibited;
(iv)not listed, and if so, had consent nevertheless been given pursuant to cl 22 of the Scheme;
(d)If the answer to the previous question is that the land is being put to a use which can be carried out within the residential zone with the permission of the Council, did the permits, consents or approvals identified in answer to the first question above extend to and include that use;
(e)If the use or uses to which the land was being put would otherwise have been prohibited by the terms of TPS No 20, was the land being lawfully used for that purpose at the time of gazettal of the Scheme, or for a purpose within the scope of the permit or permits required and granted under TPS No 5, so as to bring the use within the non‑conforming use provisions of TPS No 20?
The decision of the Tribunal
The decision of the Tribunal was delivered on 20 July 2005 accompanied by written reasons for decision. References to numbered paragraphs hereafter are references to those paragraphs in the reasons for decision published by the Tribunal.
In par 3 the Tribunal referred to the registration of the relevant strata plan on 1 September 1999. Thereafter the Tribunal set out a short history of the proceedings and a brief summary of the grounds upon which the application was brought.
In par 11 of the reasons, reference is made to cl 2 of Sch 1 of the by‑laws of the strata company and, in particular, pars (a) and (c). No reference is made to par (b), but in the result I do not think anything turns on this omission.
In par 12 of the reasons, reference is made to cl 1 and cl 2 of Sch 2 of the by‑laws of the strata company, again omitting reference to par (b) of cl 2, but again, in the result, nothing turns on this omission.
In par 15(a) of the reasons, one of the features of the Town Planning Scheme is found by the Tribunal to include:
"In respect of land (such as the parcel) zoned residential, the permitted use classes are 'home occupation', 'recreation area' and 'single house'."
This finding is correct if the expression "permitted" is construed to mean "permitted without the consent of the Council", but is not correct if construed as including those uses for which permission can be granted by the Council.
In par 15(b), the Tribunal refers to the definition of "Tourist Accommodation", but sets out only part of that definition, significantly omitting all the words after the words "the like" and therefore omitting those provisions of the definition which restrict its application to only those uses which do not fall within any other defined use class. This omission is significant when regard is had to the subsequent reasoning of the Tribunal.
In par 15(c), the Tribunal refers to the requirement of the Scheme that planning consent be applied for and obtained prior to any change in the use of land. However, it is clear from the subsequent reasons of the Tribunal that the Tribunal did not inquire into or make any finding in respect of the ambit or scope of the consent given by the Council at the time of development.
In par 16 of the reasons for decision, the Tribunal refers to a facsimile dated 18 June 2004 from an officer of the Shire in which it was asserted that "short‑stay tourist accommodation" is a non‑permitted use within the residential zone, and that there are no agreements or approvals in place to allow any "short‑stay or holiday accommodation use of the land". I digress to observe that neither "short‑stay tourist accommodation" nor "short‑stay or holiday accommodation use" are use classes within the Zoning Table of TPS No 20, but in any event, of course, the assertions made in the facsimile were matters which the Tribunal was itself required to determine on the basis of the evidence before it.
The Tribunal then referred to the documentary and oral evidence adduced, before reciting the various submissions of the parties.
The findings and reasoning of the Tribunal are to be found in that portion of the reasons for decision under the heading "Consideration".
In pars 31 and 32, the Tribunal finds, as a fact, that the respondents to the proceedings before the Tribunal were using their lots "for the purpose of short‑stay accommodation". In pars 33 and 34, reasons are given for rejecting submissions made by the respondents on issues pertaining to the relationships between the by‑laws of the strata company and the Town Planning Scheme.
Paragraph 35 is in these terms:
"The applicant [Mr Moss] argues that all the respondents have used their lots for the purpose of short‑stay rental accommodation, which is a non‑permitted use. The respondents see the matter in terms of whether or not the definition of 'tourist accommodation' is satisfied, and submits that it has not been. The respondents also made what I consider to be an erroneous reference to the parcel as a 'grouped dwelling being put to residential use' which has not assisted in reaching a conclusion one way or the other."
It is not appropriate for a Court to review the reasons for decision published by the Tribunal "minutely and finely with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, at [23]. However, there are two substantive points which must be made in relation to this paragraph.
Firstly, the Tribunal does not at any point elucidate the process of reasoning by which it was concluded that the submissions made by the respondents in respect of the land properly being classed within the use class "Grouped Dwelling" were erroneous or had "not assisted in reaching a conclusion". As the Tribunal is obliged to give reasons for its decision, and there is a right of appeal from those reasons, the reasons must elucidate the process of reasoning applied by the Tribunal for at least two reasons:
(a)firstly, so that the unsuccessful party can evaluate the prospects of success on appeal; and
(b)so that the Court can evaluate the process of reasoning if an appeal is brought (see Mount Lawley Pty Ltd v WA Planning Commission (2004) 29 WAR 273, 283; Beale v Government Insurance of New South Wales (1997) 48 NSWLR 430, 441).
The bald assertion that a submission is erroneous or "had not assisted", fails to elucidate the process of reasoning applied, and therefore fails to discharge the statutory obligation imposed upon the Tribunal to provide reasons for its decisions. In the present case it is impossible to know from the reasons published by the Tribunal whether the Tribunal had found that the development was not a "Grouped Dwelling", and if so why, or whether the Tribunal had taken the view that the submission was irrelevant because of some (undisclosed) view as to the construction and effect of TPS No 20.
The second point which must be made in relation to this paragraph of the Tribunal's reasons is that by reason of the approach taken by the Tribunal, the Tribunal appears to have made no determination as to whether or not the use to which the respondents were putting their units could allow their land to be characterised within the use class "Grouped Dwelling". Such a determination was necessary before the Tribunal could determine whether or not the respondents' lots were being used for a purpose which brought them within the use class "Tourist Accommodation", because that use class was only applicable if all other defined use classes had been excluded.
Paragraph 36 of the Tribunal's reasons is in the following terms:
"I have reached a finding in the case of each of the respondents, based on the relevant evidence, that the respondent has used its lots for a non‑permitted use, that use being, to adopt the language in the UMA [Unit Management Agreement], 'short-stay accommodation'. I agree with the respondents that such a use is not a use class listed in the zoning table in the Town Planning Scheme. However, it does provide a useful short hand description for the actual use. I accept the submission of the applicant that it is sufficient for him to establish a use which does not fall within the three permitted uses, and it is not necessary to go so far as establishing that the definition of 'tourist accommodation' is satisfied."
There are again a number of observations which must be made in respect of this paragraph of the reasons. The first is that it is very difficult to elucidate the processes of reasoning that have led to the conclusions expressed in the paragraph.
The second observation which flows from this paragraph is that the conclusion that the use to which the lots were being put did not fall within a use class listed in the Zoning Table is unequivocally inconsistent with, and contradicts, the finding made in the next paragraph of the Tribunal's reasons to the effect that the use to which the respondents were putting their lots came within the defined use class "Tourist Accommodation". While it is, of course, possible for parties to put inconsistent arguments in the alternative, it is not possible for the Tribunal to make inconsistent determinations.
The third observation which follows from this paragraph of the Tribunal's reasons is that if the Tribunal had concluded that the use to which the lots were being put was not a use class listed in the Zoning Table, before the Tribunal could conclude that such a use contravened the Scheme, it was necessary to find that cl 22 of the Scheme had no application - that is, that there had been no consent of the Council within the meaning of that clause. That question was never addressed by the Tribunal, nor was any finding made in relation to it.
The fourth observation flowing from this paragraph of the Tribunal's reasons derives from the last sentence of the paragraph, which records the Tribunal's acceptance of a submission made by the applicant and earlier described in par 23 of the reasons to the effect that "the only three permitted uses of land in the parcel (in the absence of a relevant approval) are home occupation, single house and recreation area. To the extent that any lot is being used for short‑stay or holiday accommodation, it therefore contravenes the Town Planning Scheme".
With the greatest of respect to the Tribunal, this submission cannot have been correct. There must have been Council permission for the development of the land - this was clear from the certificate of the local authority which was in evidence before the Tribunal to the effect that all relevant permissions and approvals had been complied with prior to the registration of the strata plan. Clearly, the approval for the development could not have fallen within the category of either "Home Occupation", "Single House" or "Recreation Area", as the development was a multi‑unit strata title development adjacent to a marina. There must therefore have been some permission or consent of the Council to a use other than one of those uses to enable the development to proceed and the various units in the development to be occupied and used. Before the Tribunal could determine that the use to which the lots were being put contravened the Scheme, in my view, it was essential to determine the scope of the consent or approval given by the Shire. However, the Tribunal did not at any point address that issue, or make any determination in relation to it.
Paragraph 37 of the Tribunal's reasons is in these terms:
"In any event, based on the evidence provided in relation to each of the respondents, I find the user of all respondents' lots does satisfy the definition of 'tourist accommodation' under the Town Planning Scheme and therefore that the respondents have breached the Town Planning Scheme by using their lots for a prohibited use. I agree with the applicants submissions on this issue. In particular I agree that the intention or design of the owners in respect of their lots is the crucial factor, and that design has in all cases been to rent out the premises 'for the temporary accommodation of tourists, visitors and travellers', generally through the agency of Ravensthorpe and generally whenever a willing tenant can be found. The fact that there is none of the facilities such as restaurants, convention areas and the like which are referred to in the definition is not fatal to satisfaction of the definition."
Two observations must be made in respect of this paragraph. The first is to repeat that a finding to the effect that the use to which the respondents were putting their lots came within the use class "Tourist Accommodation" is unequivocally inconsistent with the finding made in the previous paragraph of the Tribunal's reasons to the effect that the use to which the lots were being put was not within a listed use class.
The second observation is that the Tribunal concluded that the use to which the lots were being put fell within the definition of "Tourist Accommodation" without at any point identifying, addressing, or making any findings in respect of, the important qualification that such a use class only applied if no other defined use class was applicable. It is in this context that the significance of the Tribunal's apparent failure to make any determination in relation to the submission to the effect that the use to which the lots were being put brought them within the use class "Grouped Dwelling" is revealed.
For the purposes of prerogative relief, it is neither necessary nor appropriate for the Court itself to make the determinations which should have been made in the course of the impugned decision. Thus, it is neither necessary nor appropriate for the Court to determine whether or not the lots in question came within the use class "Grouped Dwelling" for the purposes of granting prerogative relief, once it is satisfied that such a determination was necessary for the purposes of the proper resolution of the issues before the Tribunal. A different and more satisfactory approach may well have been appropriate if the matter had been brought before the Court on appeal. However, that course was not taken. Because of the course which was taken, it will be necessary to shortly turn to the question of whether the various errors which have been identified constitute "jurisdictional error" so as to enliven the prerogative jurisdiction of the Court. Before doing so, however, I will complete my analysis of the Tribunal's reasons for decision.
At no point in the Tribunal's reasons for decision is any attention directed to, or any determination made, in respect of the ambit or scope of the permits and approvals which must have been granted to enable the development of the strata Scheme to take place. Perhaps because of this omission, at no point did the Tribunal address the question of whether the use to which the lots were being put at the time of gazettal of the Scheme was lawful and continuing, or whether the uses to which the lots were now being put were authorised pursuant to a permission or approval granted under TPS No 5, so as to bring those uses within the non‑conforming use provisions of TPS No 20.
Finally, in par 39 of the Tribunal's reasons, the Tribunal stated:
"In light of my findings on the issue of unlawful use, it is not necessary for me to determine the applicant's claims in relation to nuisance."
In my respectful opinion, this approach to the resolution of the issues presented to the Tribunal for determination was not appropriate. The applicant brought two substantive issues to the Tribunal for determination. One concerned the assertion that the by‑laws had been contravened by reason of contravention of the Town Planning Scheme. The other concerned the assertion that the by‑laws had been contravened by reason of the conduct of the short‑term tenants. Given that there is a right of appeal from the decision of the Tribunal, it will usually be appropriate for all the substantive issues presented to the Tribunal for determination to be determined by the Tribunal, rather than being left for resolution another day, after remission to the Tribunal in the event that an appeal is successful.
Similar considerations arise from the possibility of prerogative relief being granted in respect of the Tribunal's decisions. This case itself provides an example of the possible adverse consequences of the Tribunal failing to fully determine the issues presented to it for determination. In this case, if the Tribunal had made a finding on the alternative ground presented to it, and that finding had not been demonstrated to be vitiated by jurisdictional error, the prerogative relief claimed in these proceedings would necessarily have been refused. However, the second respondent to these proceedings has been denied the possibility of that argument by the Tribunal's failure to determine the issues presented to it. There may be cases in which the efficient operation of the Tribunal will be enhanced by a case being resolved on a short point, leaving other complex and time consuming issues unresolved, but this was not such a case.
It will be apparent from the views I have already expressed that, in my opinion, the reasons for decision published by the Tribunal are affected by error. If a comparison is made between the issues which, in my view, it was necessary for the Tribunal to determine before concluding that the conduct of the respondent's contravened the Scheme and therefore the by‑laws of the strata company, and the issues which were in fact determined by the Tribunal, many of the issues which I consider it was necessary to resolve were not addressed. The first question which therefore needs to be addressed is whether the errors and omissions I have identified fall within the scope of the grounds of the application, and the next question which needs to be addressed is whether those errors either singly or in combination are "jurisdictional" in the sense identified in the authorities.
The Grounds of the Application
I have already referred to the path taken by these proceedings. At the end of that journey, four grounds remained. The first two grounds related to the alleged failure of the Tribunal to find that the lots in question were being used for the use of "Grouped Dwelling". Although those grounds are not happily expressed in that they focus upon an alleged failure by the Tribunal to make an affirmative determination that the use was that of "Grouped Dwelling" (a finding of mixed fact and law which could never be made by a Court hearing prerogative proceedings), in my view, they are sufficiently broad to encompass what I consider to be the error of the Tribunal on this subject, which was its failure to make any determination, one way or the other, in respect of the submission put in relation to "Grouped Dwelling".
The third ground asserts that the Tribunal erred in concluding that the development and use to which the lots were lawfully able to be put was determined having regard to TPS No 20 when the relevant TPS in force at the time of the development was TPS No 5. As expressed, the ground is inaccurate because, of course, the use to which the land was lawfully able to be put must be determined by the Scheme in force at the time the use takes place - which in the present case was TPS No 20. However, because of the non‑conforming use provisions of that Scheme, the ambit or extent of any approval granted under the previous Scheme (TPS No 5) was plainly relevant to the question of contravention of TPS No 20. The written submissions exchanged by the parties subsequent to the hearing took this ground to encompass that proposition, and issue was joined in relation to it. I therefore consider that, in the way the parties approached this ground, it is broad enough to cover the Tribunal's failure to address the non‑confirming use provisions of TPS No 20.
The final ground of the application is convoluted. However, on one view it means and includes the Tribunal's erroneous acceptance of the submission put by Mr Moss before the Tribunal to the effect that his case was sufficiently made out if he could establish that the use to which the land was being put was none of the three "permitted" uses, and also embraces the Tribunal's failure to address the question of whether consent had been given under cl 22 in respect of its finding that the use was a use not listed, and its general failure to address and make any findings in respect of the ambit of the consent which had been given by the Council.
Accordingly, despite some inelegance of language, I have concluded that the grounds are sufficiently broad to encompass the errors and omissions I have identified above.
Jurisdictional Error
This brings me to what is, I think, the most difficult part of this case, which is the question of whether or not the errors I have identified were of a kind which took the Tribunal outside jurisdiction, so as to authorise intervention by this Court in its prerogative jurisdiction.
The questions which must be addressed derive from the unanimous judgment of the High Court of Australia in Craig's case at 176 ‑ 177:
"In considering what constitutes 'jurisdictional error', it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court.
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist."
Brennan, Deane, Toohey, Gaudron and McHugh JJ continued (at 179 ‑ 180):
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In Re Racal Communications Ltd [1981] AC 374, 383:
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'
The position is, of course, a fortiori in this country, where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by the appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."
So, according to this line of reasoning, because the jurisdiction of an administrative tribunal is presumed not to include the authoritative determination of questions of law, an error of law will take such a tribunal outside jurisdiction and render it amenable to prerogative remedy. By contrast, because the jurisdiction of an inferior court ordinarily extends to the determination of questions of law, an error of law will not, unless it assumes a particular character, take the Court outside jurisdiction and render it amenable to prerogative remedy.
Two points may be made about this line of reasoning which are pertinent to this case. The first is that the requirements of the Commonwealth Constitution relating to the separation of judicial and administrative powers do not apply to the exercise of those powers under the Constitution of the State of Western Australia (see Kable v Director of Public Prosecutions for New South Wales (1996) 159 CLR 51). So, in this and the other States, the distinction between judicial power and administrative function is not so sharply drawn and readily identifiable as is the allocation of those powers and functions under legislation enacted by the Commonwealth Parliament.
The second observation I would make is that at least in State jurisdictions, the task of distinguishing between bodies exercising judicial power and those performing administrative functions may not be straightforward, and may require a detailed analysis of both the body and the function it is performing in the particular case at hand.
If, in the exercise of its jurisdiction in this particular case, the State Administrative Tribunal is properly characterised as an administrative tribunal in the sense described in Craig's case, there can be no doubt that the errors I have identified are jurisdictional errors which would enliven the capacity of this Court to quash the Tribunal's decision. That is because, although remaining a somewhat indefinite and occasionally elusive concept, the scope of jurisdictional error on the part of an administrative tribunal is significantly broader than the scope of jurisdictional error on the part of an inferior court. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, after citing part of the passage from Craig which I have set out above, McHugh, Gummow and Hayne JJ went on to observe in respect of administrative Tribunals (at [82]):
"'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive … Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act [Migration Act 1958 (Cth)] suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law …"
In Yusuf, Gaudron J expressed the scope of jurisdictional error applicable to an administrative tribunal in these terms (at [41]):
"For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be 'an actual failure to exercise jurisdiction'. On the other hand, there is said to be a 'constructive failure to exercise jurisdiction' when a Tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account."
Thus, on this line of analysis if the State Administrative Tribunal is, in the exercise of its jurisdiction in this particular case, properly characterised as an administrative tribunal, there can be no doubt that the errors and omissions I have identified took it outside jurisdiction and rendered it amenable to the writ of certiorari. On the other hand, if, in the exercise of its jurisdiction in this particular case, the State Administrative Tribunal is to be regarded as an "anomalous tribunal" performing functions more analogous to those performed by an inferior court, the scope of its jurisdiction is presumptively expanded, and the scope of jurisdictional error correspondingly narrowed, and the question becomes more complex.
On the other hand, in my opinion, there is much to be said for the view that, properly analysed, the decision in Craig only mandates the classification of bodies into either inferior courts or administrative tribunals where that process is necessary to infer the extent of the body's jurisdiction to determine questions of law, so that the process of characterisation is unnecessary if the extent of the body's jurisdiction to determine questions of law appears from the express terms of the legislation creating it. This is the approach I take to be exemplified in the following passage from the decision of Phillips JA in Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203 at 214:
"In short, it seems to me that, though critical in some cases (as was recognised by the High Court in Craig at 179), the distinction between a court of law and a true administrative tribunal is essentially of importance only if and in so far as the nature of the one or the other sheds any light on deciding the intention of the Parliament in committing the task at stake to the body in question - and in particular whether that task includes not only the power to decide but also the power to decide wrongly (and whether on questions of fact or law) without attracting prerogative relief … In Australia legislative experience is so diverse that there must be a danger in relying too quickly upon presumption, and especially a presumption which depends upon the nature and function of the body in question, even if it is unquestionably a court of law."
Charles and Buchanan JJA concurred in these views.
On this approach, it would be sufficient in this particular case to note that the Tribunal has been specifically invested with the power to determine questions of law, and that particular procedures have been designated for the determination of those questions by legally trained personnel, and that an appeal lies on such questions, to conclude that the Parliament intended that the Tribunal was to be given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take the Tribunal outside jurisdiction.
Is the Tribunal an "Administrative Tribunal" or an "Anomalous Tribunal" analogous to a Court?
However, if Craig's case does require the process of characterisation to be undertaken, in my opinion, there are four factors of general application to the Tribunal and one factor peculiar to its jurisdiction in this case which compel the conclusion that, in the exercise of jurisdiction in this particular case, the Tribunal is to be considered "anomalous" and performing a function analogous to that performed by an inferior court. Those factors are:
(i)the specific provisions of the Act relating to the appointment of legally qualified personnel and the constitution of the Tribunal by such a member in this particular case;
(ii)the power of the Tribunal to make declarations and grant interim injunctions (which latter power was exercised in this case);
(iii)the specific provisions of the Act authorising the determination of questions of law by the Tribunal; and
(iv)the provision of a right of appeal from the determination of such questions.
Further, in this particular case, as I have observed, the jurisdiction which was being exercised by the Tribunal was jurisdiction which could have been exercised by any Court with jurisdiction to enforce contracts, because, in essence, the Tribunal was being called upon to enforce the contract created by the combination of the by‑laws of the strata company and the statutory provisions of the Strata Titles Act, to which I have referred.
This approach to the process of characterisation, which focuses on the function being performed, rather than the body performing it, is consistent with the decision of the Full Court of this Court in Re Bennett‑Borlase SM; Ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997, in which it was held that a Magistrate sitting in the Court of Petty Sessions on an appeal from a refusal of the Commissioner of Police to issue a firearms licence was properly characterised as performing the functions of an administrative tribunal for the purposes of the application of the principles in Craig's case.
This view is consistent also with the decision of Gillard J in Tamas v Victorian Civil and Administrative Tribunal [2002] VSC 309 in which he held that, at least when the Victorian Civil and Administative Tribunal was constituted by a qualified lawyer, it had jurisdiction to determine questions of law erroneously, and that, therefore, for the purposes of prerogative review, it was analogous to the "anomalous tribunal" or inferior court for the purposes of the application of the principles in Craig's case. (Note that this issue was not addressed in the Court of Appeal - see Tamas v Victorian Civil and Administrative Tribunal (2003) 9 VR 154). A similar approach was taken in Custom Credit Corp Ltd (in liq) v Commercial Tribunal of New South Wales (2000) ASC 155‑041.
The process of characterisation which is to be undertaken to determine the extent of a body's jurisdiction is distinct from, but nevertheless has some similarity to the question of whether a body is a "court of a State" within the meaning of s 77 of the Constitution of the Commonwealth. In both exercises, the critical questions are those of function and purpose, not nomenclature - see Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, 515 per McHugh JA; Commonwealth v Wood (2006) 148 FCR 276, per Heerey J.
Has the Tribunal exceeded its jurisdiction in this case?
Based on this conclusion as to the function and purposes of the Tribunal's jurisdiction in this case, the next question becomes whether the errors which I have identified in the decision of the Tribunal are of a kind which exceed the jurisdiction of a body invested with jurisdiction to determine questions of law. Accordingly, it is necessary to return to the decision in Craig for a more thorough exposition of the principles applicable to the scope of such jurisdiction (at 177 ‑ 178):
"Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre‑condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last‑mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."
In Craig's case, the High Court unanimously held that the well‑known principles enunciated by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171, had no application to a body invested with jurisdiction to determine questions of law, such as an inferior court. Thus, the High Court has held that, asking the wrong question, or taking an irrelevant matter into account, will not, of themselves, ordinarily take a body invested with power to determine questions of law outside jurisdiction.
The passage from Craig which I have set out above, requires attention to be focused upon the statute or other instrument establishing the relevant Court or Tribunal and conferring its jurisdiction upon it. A misconstruction of those statutory provisions which results in the Tribunal or inferior Court exceeding its jurisdiction, or misconceiving the nature of the function conferred upon it, will take it outside jurisdiction and render it amenable to prerogative remedy. However, the misconception of a statutory provision or principle of law which the Tribunal or inferior Court is required to construe and apply when exercising the jurisdiction conferred upon it will ordinarily constitute an error of law within jurisdiction rather than a jurisdictional error.
Accordingly, in the present case, if the Tribunal had misconceived or misconstrued the scope of the jurisdiction conferred upon it by the Strata Titles Act, or the Act by which it was created, namely, the State Administrative Tribunal Act, so that it exceeded the powers or functions conferred upon it, or misconceived those powers or functions, it would have committed a jurisdictional error which could be reviewed by this Court by way of prerogative remedy.
However, in the present case, the errors and omissions which I have identified in the decision of the Tribunal, do not go to, or involve any misconstruction of the Strata Titles Act or the State Administrative Tribunal Act, but rather go only to the construction and effect of TPS No 20 and TPS No 5. The construction and application of those Schemes was, in my view, a necessary step in the exercise of the jurisdiction conferred upon the Tribunal, because the case was presented to the Tribunal on the basis that a contravention of TPS No 20 gave rise to a contravention of the by‑laws of the relevant strata company. However, the task of construing and applying those Schemes was a task which fell within the scope of the tasks necessarily undertaken by the Tribunal in the discharge of its jurisdiction. The Town Planning Schemes to which I have referred did not define the scope of the Tribunal's jurisdiction - rather, the Tribunal was required to determine their construction and effect for the purposes of exercising its jurisdiction, not for the purpose of defining its scope.
As I have noted, there is no suggestion in this case that the Tribunal has entertained a matter which wholly or party lies outside the theoretical limits of its functions or powers, or that it has made an order of a kind which it lacked power to make, because it was not empowered to make orders of that general kind. Nor does s 83 of the Strata Titles Act make the existence of jurisdiction under that section dependent upon the occurrence of a particular event or requirement, other than the existence of a dispute or complaint in respect of the performance of a duty imposed by the by‑laws. In other words, the jurisdiction of the Tribunal is enlivened under the section if there is a dispute or complaint, and is not dependent upon the establishment of a breach of duty. The question of whether there has been a breach of duty will be the issue to be determined in the exercise of jurisdiction, rather than the jurisdictional question itself. Nor is there any statutory provision requiring the Tribunal to take any particular matter into account in the exercise of the jurisdiction conferred by s 83 of the Strata Titles Act. Nor, in this case, could it be, nor was it, contended that the Tribunal has misconstrued either the Act which created it, or the Act which conferred jurisdiction upon it. Rather, the errors of the Tribunal to which I have referred are errors in the construction and application of delegated legislation which the Tribunal was required to construe and apply in the exercise of the jurisdiction conferred upon it under the Strata Titles Act.
The appellants challenged the decision on the grounds that the Tribunal member erred in law:
"[1]in failing to hold that the Use Class relevant to the lots in the Bijou Marina Village was that of Grouped Dwelling;
[2]in holding that the Use Class of lots in the Bijou Marina Village was Tourist Accommodation when it could not be so within the definition of Tourist Accommodation in that as the lots in the Bijou Marina Village were of a Use Class of Grouped Dwelling they could not be of a Use Class Tourist Accommodation; and
[3]in concluding that the development and use to which the lots in the Bijou Marina Village Development were able lawfully to be put was determined having regard to [TPS20], when the relevant Town Planning Scheme in force at the time of the development was [TPS5].
[4]in wrongly construing [TPS20] (in the event that it was applicable) to the effect that a use of land did not comply with the Scheme if the use was not one of the three uses expressed in Table 2 of the Scheme in respect of land zoned Residential; when on its proper construction the Scheme provided that other uses were permitted if carried out with planning consent of the [Shire] and other uses not specifically mentioned in Table 2 could be determined as consistent with the objects and purpose of the Residential zone by the Shire ‑ where in this matter the Appellants had either planning consent of the Shire or a determination of the Shire that the use was consistent with the objects and purposes of the Residential zone … "
Grounds 1 and 2 are unhappily drafted. They do not clearly and concisely identify the particular errors of law for which the appellants contend. Further, they are drafted in the way of grounds of appeal rather than grounds of judicial review. The Court's appellate powers and functions are materially different than its judicial review powers and functions. In judicial review, the Court can only grant relief if there is a jurisdictional error of law or, where certiorari is sought, a non‑jurisdictional error of law on the face of the record. In the event a relevant error is established then, subject to a possible exception not applicable here, the only course open to the Court is to quash the decision and remit the matter back to the decision‑maker for determination according to law.
For bodies other than courts or tribunals performing functions analogous to a court ("anomalous tribunals"), the scope of jurisdictional error is largely, if not entirely, coextensive with the common law grounds of judicial review. Without being exhaustive, those grounds include improper purpose, failure to consider a relevant matter, unreasonableness or irrationality and breach of the rules of procedural fairness. However, the grounds of jurisdictional error for courts and anomalous tribunals are significantly narrower than for administrative bodies: Craig v South Australia (1995) 184 CLR 163. I agree with the Chief Justice, for the reasons he gives, that in exercising its powers and functions in this case, the Tribunal acted as an anomalous tribunal with powers and functions largely indistinguishable from those exercised by a court.
Grounds 1, 2 and 4
Grounds 1 and 2 identify the result with which the appellants quarrel but not the errors said to have caused the result. This Court has to identify the errors relied on in order to determine first, whether they are errors of law and second, whether the errors are jurisdictional in the narrow sense that applies to judicial review of courts and anomalous tribunals.
Having regard to the grounds (which were amended at the conclusion of the hearing) and the appellants' written and oral submissions, I winkle out the errors they rely on as being that the Tribunal misconstrued cl 21, cl 22 and Table 2 (in particular the definitions of "tourist accommodation" and "grouped dwelling") of TPS20. In particular, the appellants contended that the Tribunal:
1.erred in construing tourist accommodation as not requiring facilities such as restaurants and the like;
2.found that the use of the appellants' units fell within the use class tourist accommodation without considering and determining whether the development was in the use class grouped dwelling and if so, whether the latter use had planning consent;
3.found the appellants' use of the units did not comply with TPS20 if the use was not one of the three uses designated "P" in Table 2; and
4.having found the appellants' use of the land was not specifically mentioned in Table 2, failed to consider and determine whether planning consent was required, and if so whether it had been given by the Shire, under cl 22 of TPS20.
All these grounds are predicated on the assumption that only TPS20 applies. I accept they raise potential errors of law. There is no ground, and the appellants did not elsewhere contend, that the Tribunal erred in law in failing to give adequate reasons for decision. In those circumstances it is unnecessary to consider whether that is correct and if so whether it is a jurisdictional error in the narrow sense.
I deal first with the merits of each ground and then return to consider whether they raise jurisdictional errors in the narrow sense.
I have already referred to the substance of cl 21, cl 22 and Table 2 of TPS20. It is also necessary to refer to the definitions of "grouped dwelling", "dwelling" and "tourist accommodation" in Sch 1 of TPS20. They are as follows:
"'Grouped Dwelling' means a dwelling which is one of a group of two or more dwellings on the same lot, such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise."
"'Dwelling' means a building or portion of a building being used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis by –
(a)a single person;
(b)a single family; or
(c)no more than six persons who do not comprise a single family."
"'Tourist Accommodation' means a building or group of buildings substantially used for the temporary accommodation of tourists, visitors and travellers which may have facilities for the convenience of patrons such as restaurants, convention areas and the like but does not include a building or place elsewhere specifically defined in this Schedule or a building or place used for a purpose elsewhere specifically defined in this Schedule."
The appellants challenged the Tribunal's finding that the appellants' use of the units in the development fell within the tourist accommodation use class in Table 2 on two grounds. First, they contended that, notwithstanding the use of the permissive word "may" in the definition of tourist accommodation, in order to fall within that use class the building or group of buildings must have facilities for the convenience of patrons such as restaurants, convention areas and the like. There is no warrant in the definition of tourist accommodation or the broader context of TPS20 to justify interpreting the word "may" in the definition as "must".
Secondly, the appellants contended the Tribunal failed to exclude the application of all other use classes in Table 2. It was not suggested that a use class other than grouped dwelling could arguably apply. The Tribunal failed to give reasoned consideration to whether the units in the development were a grouped dwelling. However, this omission would only be significant if it was capable of affecting the outcome. That requires this Court to determine whether the units are capable of being a grouped dwelling.
The appellants submitted that, on the facts found by or conceded in the Tribunal, the development must be a grouped dwelling. The respondent had conceded that the units in the development were on the same lot and no unit was placed wholly or partly vertically above another. The appellants relied on this concession as requiring a finding that the development was a grouped dwelling. That is clearly wrong. To be a grouped dwelling, the buildings must also satisfy the definition of "dwelling" which requires the building to be "used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis" by the persons specified. However, there is nothing in the definition of dwelling or grouped dwelling to prevent the units in the development from being a dwelling or grouped dwelling simply because of the Tribunal's finding that the appellants used their units for commercial gain by renting them out for short-stay holiday accommodation.
A dwelling is not confined to what the building is being, or is intended to be, used for. It also includes "a building or portion of a building … adapted or designed to be used for the purpose of human habitation on a permanent basis" by the specified people. The word "or" in the definition has its ordinary disjunctive meaning. The words "adapted or designed" focus attention on the physical aspects of the building. If a building is physically adapted or designed to be used for the purpose of human habitation on a permanent basis by a single person, a single family or no more than six persons who do not comprise a single family, regardless of its actual or intended use for the specified purpose, it is a dwelling. Thus, a building will be a dwelling (and grouped dwelling) even if it is not used or intended to be used for the stated purposes.
This construction of dwelling is consistent with the definition of tourist accommodation from which it is apparent that some of the use classes in Table 2 are confined to buildings without reference to their actual or intended use for a particular purpose. The exclusion in the definition of tourist accommodation is two pronged; it excludes (1) a building or place elsewhere specifically defined in the Schedule and (2) a building or place used for a purpose elsewhere specifically defined in the Schedule. Other use classes in the first category of exclusion include chalet development and residential building.
I have also considered whether cl 22 may apply where the Table 2 use class does not incorporate a requirement that a building be used for a particular purpose. Clause 22 materially provides:
"If the use of the land for a particular purpose is not specifically mentioned in Table 2 Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use categories …" (emphasis added)
That wording is arguably wide enough to cover the situation where a use class in Table 2 does not require a building to be used for a particular purpose as well as where no use class applies at all. If cl 22 applied, the issue would be whether the appellants' use of the units for the purpose of short‑stay holiday accommodation was consistent with the objectives and purposes of the residential zone, in which event, planning consent for that use is not required. However, it is unnecessary to decide this matter as it does not impact on the construction of "dwelling" and was not the subject of submissions.
The construction of dwelling set out above is also consistent with authority. In South Sydney Municipal Council v James (1977) 35 LGRA 432 the Court was required to construe the definition of "dwelling house" in the City of Sydney Planning Scheme Ordinance. It was defined as "a building designed for use as a dwelling for a single family … ". The Court held that "design" did not mean intended but rather planned or constructed as a matter of physical layout and appearance. Samuels JA said (at 444):
"Once the correct meaning of 'designed' is applied, it follows that 'dwelling-house' is defined not in terms of use or intended use, but by reference to the character or structure of the building. The definition points to a building of a particular physical identity, rather than to the use to which it may, or must, be put. The inclusion of the words 'designed for use as a dwelling for a single family' requires the building to demonstrate a particular physical character. Once that requirement is satisfied its function is complete and its influence exhausted; it cannot then be made to determine the manner in which such a building must be used."
See also Holland‑Stolte Pty Ltd v Mirvac Projects Pty Ltd, unreported; SCt of NSW; 16965 of 1990; 28 June 1991; Giles J; Black v Toowoomba Resort Pty Ltd [2005] 1 Qd R 577; Lewin v End [1906] AC 299.
The Tribunal made no relevant findings of fact as to whether the buildings were adapted or designed for a specified purpose, did not purport to determine whether the appellants' units were a grouped dwelling under TPS20 or make a finding as to whether planning consent (it being an AA category use) was obtained. If the evidence was that the Shire had not approved the development as a grouped dwelling the omissions would not be material. However, there was no evidence to that effect and no such finding by the Tribunal. The evidence from the Shire that there was no approval of short‑term holiday accommodation is irrelevant to the issue of whether the development was approved as a grouped dwelling. The evidence in the appeal was that the development had planning consent under TPS5. I leave open the question whether that planning consent suffices for a building that satisfies the definition of a grouped dwelling under TPS20.
As the Tribunal had not excluded the appellants' units as a grouped dwelling, it necessarily follows that the Tribunal erred in concluding that the development was within the use class tourist accommodation. Moreover, the Tribunal was wrong to accept the respondents' contention that the appellants would be in breach of TPS20 if the use of the units in the development did not fall within the three permitted uses, being a reference to the P uses in Table 2 for which planning consent is not required. That finding is only sustainable if the Tribunal had found that the use did not fall within an AA or SA use; or if it did, that it was not the subject of planning consent; or if the particular use or the use for the particular purpose was not specifically mentioned in Table 2, that it was not lawful under cl 22 of TPS20. No such findings were made (or indeed possible on the evidence before the Tribunal).
For these reasons, I am satisfied that the Tribunal misconstrued TPS20 in material respects. As a result the member failed to consider and determine all the relevant issues and asked wrong questions.
Ground 3
In the absence of objection from the respondent, this Court at the hearing of the application granted leave to the appellants to amend the grounds to add grounds 3 and 4.
TPS5 was gazetted on 4 February 1983. TPS20 was gazetted on 7 September 1999. Council gave conditional approval to an "Approved Development Plan" dated 15 December 1998 as amended by the Shire by no later than 16 December 1998. The strata scheme for the development was registered on 1 September 1999.
Clause 91(1) of the TPS20 provides:
"If, at the gazettal date, any land, building or structure is being lawfully used for a purpose not permitted by the provisions of the Scheme … or if any land is built on or any building or structure is built in a manner not permitted by the Scheme, such land, building or structure may continue to be used for that purpose or in that manner."
It is beyond this Court's role to make the findings necessary to determine whether the development was lawful under TPS5. Insofar as discretionary considerations are concerned, I am satisfied the matter is clearly arguable.
The appellants contend that the Tribunal erred in law in failing to direct its attention to the correct question being whether the development was lawful at the time it was approved under TPS5 and whether the non‑conforming use provision in cl 91(2) applies. There was no evidence before the Tribunal that the development was approved under TPS5. Moreover, both parties conducted the case before the Tribunal on the basis that the only relevant scheme was TPS20. It was not suggested to us that the hearing before the Tribunal was primarily adversarial in nature and therefore the parties had control over the issues that arose for determination. Accordingly, I will assume without deciding that the parties are not confined to the matters on which they joined issue in the Tribunal. Even so, if this was the only ground of appeal and it involved a jurisdictional error in the narrow sense, there would be strong discretionary grounds for refusing to grant relief. However, as the Tribunal made other errors, it is necessary to determine whether any of the errors are jurisdictional in the narrow sense so as to enliven this Court's power of judicial review.
Jurisdictional error
The scope of jurisdictional error depends upon whether or not the decision‑maker has authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law: Craig at 179. If it does not have authority to do either, there can be judicial review in the broad sense where the distinction between jurisdictional error and error within jurisdiction is of no practical significance. If the decision‑maker has that authority, the Court's judicial review powers are confined to errors of jurisdiction in the narrow sense. The High Court in Craig identified five types or categories of such errors. It did not suggest the list was exhaustive. However, the appellants did not contend it should be expanded in any particular way to accommodate the errors in this case. The five categories are as follows. First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional "fact") there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
In this case the statute establishing the Tribunal is the State Administrative Tribunal Act 2004 (WA) ("SAT Act") and the source of jurisdiction is the SAT Act and the Strata Titles Act. Section 13 of the SAT Act identifies the source of the Tribunal's jurisdiction. Section 13(1) provides:
"A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned."
Section 77 of the Strata Titles Act impliedly enables an application to be made to the Tribunal. It provides:
"77.How applications are made
In addition to complying with any requirements of the State Administrative Tribunal Act 2004, an application to the State Administrative Tribunal for relief under this Part [VI] shall –
[(a)deleted]
(b)comply with section 77B; and
(c)specify the order or orders that are applied for and the grounds relied on for the making of each order."
Section 83 of the Strata Titles Act materially provides:
"(1)The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by‑laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company."
Proprietor is defined in the Strata Titles Act as the person who for the time being is registered under the Transfer of Land Act 1893 (WA) as the proprietor of an estate in fee simple in a lot (being land that is shown as a lot on the plan for the relevant scheme). Section 81 deals with the type of orders that can be made and subs (3) of s 81 provides:
"The State Administrative Tribunal may order a strata company, administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of lot to do, or to refrain from doing, a specified act with respect to a parcel."
The Tribunal characterised the matter to be determined as an application of a proprietor for "rectification of a complaint ... with respect to ... the failure to exercise or perform a duty ... imposed by ... the by‑laws on [the appellants]".
On the facts in this case the Tribunal's power to make an order under s 83 of the Strata Titles Act is conditioned on there being an application of a proprietor seeking rectification of a complaint with respect to the failure to exercise or perform a duty imposed by the by‑laws on a proprietor. In the statutory context, s 83 is not the source of jurisdiction but rather the source of its power to make an order which power is conditioned on the matters to which I have referred. Jurisdiction is the authority a body has to decide the range of matters that can be litigated before it; and in the exercise of that jurisdiction, a body has such express or implied powers as are conferred on it: Harris v Caladine (1991) 172 CLR 84 at 136 per Toohey J.
In further written submissions filed after the hearing, the appellants contended it was a precondition to the jurisdiction exercised by the Tribunal that it determine the duties imposed by the by‑laws on the appellants which in turn required the Tribunal to determine the requirements of the local government authority. The effect of the submission, as I understand it, is that the requirements of the local government authority are jurisdictional facts which the Tribunal does not have authority to authoritatively determine. This is third in the High Court's list of jurisdictional errors identified in Craig.
Whether a fact or other matter is correctly categorised as jurisdictional is a question of construction of the relevant statutes. As a jurisdictional fact is one over which the decision‑maker does not have the final word, that being reserved to a superior court, it is not common for a fact or matter to be characterised as jurisdictional. Dixon J explained why in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391:
"It cannot be denied that, if the legislature sees fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of [an inferior] court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the [inferior] court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary [inferior] courts of justice should receive such an interpretation unless the intention is clearly expressed."
Having regard to the powers and functions of the Tribunal in this case, Dixon J's statement of principle is equally applicable to the Tribunal. Further, the provision of a right of appeal makes it more likely the existence of a fact or matter will not be a condition of the exercise of jurisdiction: The Queen v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 225 per Mason J.
Even if it is correct to describe s 83 of the Strata Titles Act as the source of the Tribunal's jurisdiction, having regard to Dixon J's statement in Parisienne, the nature and extent of the Tribunal's powers and functions in this case and the statutory right of appeal on questions of law, I am satisfied that the legislature did not intend to deprive the Tribunal of the authority to authoritatively determine whether or not the appellants had failed to exercise or perform a duty imposed by the by‑laws (which incorporated the duties and the relevant town planning scheme). None of the other categories of jurisdictional error identified by the High Court in Craig apply in this case. The appellants did not suggest otherwise. Further, the appellants disavowed any reliance on non‑jurisdictional error on the face of the record. Accordingly, there being no relevant jurisdictional error I would refuse the relief sought and discharge the order nisi.
130
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