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Re Carey; ex parte Exclude Holdings Pty Ltd

Re Carey; ex parte Exclude Holdings Pty Ltd

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Case Copied 26 October 2006 75 min read

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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)
Applicants
AND
MEMBER TIM CAREY OF THE STATE ADMINISTRATIVE TRIBUNAL
First Respondent
GEOFFREY 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2006] WASCA 219
Decision Date: 26 OCTOBER 2006

CaseChat Overview and Summary

In the case of Re Carey; ex parte Exclude Holdings Pty Ltd, the applicant, Exclude Holdings Pty Ltd, sought a writ of certiorari to challenge a decision of a member of the State Administrative Tribunal of Western Australia in relation to a strata development application. The dispute centred on the application of the Town Planning Scheme by the Tribunal member and whether the errors identified by the applicant amounted to jurisdictional error or merely errors of law. The court was required to determine if the Tribunal member's decision could be reviewed on the grounds that it was based on an error of law and whether the failure of the applicant to exercise the right of appeal conferred by the State Administrative Tribunal Act 2004 (WA) precluded them from seeking judicial review.

The primary legal issues that the court had to address were whether the errors made by the Tribunal member were of such a nature that they amounted to jurisdictional error, and whether the failure of the applicant to appeal the Tribunal's decision precluded them from seeking judicial review. The court also had to consider the proper characterisation of the Tribunal as an administrative body and the scope of review available for decisions made by its members.

The court held that the errors made by the Tribunal member did not constitute jurisdictional error but were rather errors of law. The court emphasised that the Tribunal member's characterisation as an administrative body meant that the scope of judicial review was limited to jurisdictional error, which was not present in this case. Additionally, the court found that the applicant's failure to appeal the Tribunal's decision precluded them from seeking judicial review. Consequently, the court dismissed the applicant's application for a writ of certiorari, finding that the errors made by the Tribunal member were not of a jurisdictional nature and that the applicant's failure to appeal the decision barred their claim for judicial review.

The court's decision underscores the importance of correctly characterising administrative bodies and understanding the scope of judicial review available for their decisions. Furthermore, it highlights the consequences of failing to exercise the right of appeal conferred by statute, as it may preclude a party from seeking judicial review of a decision. In this case, the court dismissed the application for a writ of certiorari, affirming the decisions made by the Tribunal member and the limitations on judicial review in administrative law.

Orders