Re Griffiths; Ex parte Homestyle Pty Ltd

Case [2005] WASCA 103


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RE GRIFFITHS; EX PARTE HOMESTYLE PTY LTD [2005] WASCA 103

CORAM:   ROBERTS-SMITH JA

MCLURE JA
PULLIN JA

HEARD:   18 FEBRUARY 2005

DELIVERED          :   3 JUNE 2005

FILE NO/S:   CIV 1246 of 2004

MATTER                :Application for writ of certiorari against the Honourable NICHOLAS DAVID GRIFFITHS, Minister for Housing and Works, Racing and Gaming, Government Enterprises, Land Information

EX PARTE

HOMESTYLE PTY LTD
Applicant

Catchwords:

Administrative law - Return of order nisi for writ of certiorari - Scope of s 401 of Local Government (Miscellaneous Provisions) Act - Whether subject to s 12A of Builders' Registration Act - Whether s 401 notice an abuse of process or unreasonable - Whether failure by Minister to comply with rules of natural justice

Legislation:

Builders' Registration Act 1939 (WA), s 12A

Building Regulations 1989 (WA), reg 3, reg 5, reg 11
Home Building Contracts Act 1991 (WA)
Interpretation Act 1984 (WA), s 56
Local Government (Appeals to Minister) Regulations 1961 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 671

State Administrative Tribunal Act 2004 (WA), s 167

Result:

Order nisi made absolute
Decision of Minister quashed

Category:    A

Representation:

Counsel:

Applicant:     Mr M C Hotchkin

Amicus Curiae              :     Mr N C Monahan

Solicitors:

Applicant:     Hotchkin Hanly

Amicus Curiae              :     State Solicitor

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

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Dilatte v MacTiernan [2002] WASCA 100

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404

Hunter v Chief Constable of the West Midlands Police [1982] AC 529

Irving v Minister for Immigration, Local Government & Ethnic Affairs (1993) 44 FCR 540

Kahn v Minister for Immigration Local Government and Ethnic Affairs (1987) 14 ALD 291

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Mosman Park Town Council v Walker (1991) 73 LGRA 30

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

R v Carroll (2002) 213 CLR 635

R v O'Halloran (2000) 159 FLR 260

Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198

Rogers v The Queen (1994) 181 CLR 251

Saraswati v The Queen (1991) 172 CLR 1

State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81‑423

Telstra Corp Ltd v Kendall (1995) 55 FCR 221

Walton v Gardiner (1993) 177 CLR 378

Williams v Hunt [1905] 1 KB 512

Williams v Spautz (1992) 174 CLR 509

Case(s)…

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AGLC
Re Griffiths; Ex parte Homestyle Pty Ltd [2005] WASCA 103
Case
[2005] WASCA 103
Decision Date

CaseChat Overview and Summary

The case of Re Griffiths; Ex parte Homestyle Pty Ltd involved Homestyle Pty Ltd, which sought a return of an order nisi for a writ of certiorari against Griffiths. The dispute centred on the scope of section 401 of the Local Government (Miscellaneous Provisions) Act and whether it was subject to section 12A of the Builders' Registration Act. The case also examined whether the section 401 notice was an abuse of process or unreasonable and if there was a failure by the Minister to comply with the rules of natural justice. The matter was heard in the court, which was tasked with deciding these legal issues.

The court had to determine whether the doctrines of res judicata and issue estoppel, along with their criminal law analogues, applied in the context of an improper collateral attack on an earlier decision that had not been set aside. It was also necessary to examine if a party who was not involved in the earlier proceedings could raise or pursue an issue that had been determined between different parties in those earlier proceedings. The court needed to consider the guiding considerations for determining whether an issue should be relitigated, including the importance of the issue, the opportunity to fully litigate it, and the terms and finality of the finding.

The court found that the doctrines of res judicata and issue estoppel did not apply in this context, as there was an improper collateral attack on an earlier decision that had not been set aside. The court further held that a party not involved in the earlier proceedings could raise or pursue an issue that had been determined between different parties in those earlier proceedings. The court applied the guiding considerations for determining whether an issue should be relitigated, and found that there was no abuse of process or unreasonableness in the section 401 notice. The court also found that there was no failure by the Minister to comply with the rules of natural justice.

The court made an order that the application for the return of the order nisi for a writ of certiorari be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In each of the above situations the doctrines of res judicata and issue estoppel (and their criminal law analogues) have no application; there is, in effect, an improper collateral attack on an earlier decision that has not been set aside; and the abuse lies in a party to the earlier proceeding seeking to litigate the issue in subsequent proceedings. A party who was not involved in the earlier proceedings is, however, not prevented from raising or pursuing an issue that has been determined between different parties in earlier proceedings: Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 per Hunt CJ; R v O'Halloran (2000) 159 FLR 260 at 292 per Heydon J. Where earlier and subsequent proceedings are civil rather than criminal, greater flexibility is apparent in the application of the doctrine. In that situation, Giles CJ in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81‑423 at 64,089 said:"… guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b)the opportunity available and taken to fully litigate the issue; (c)the terms and finality of the finding as to the issue; (d)the identity between the relevant issues in the two proceedings; (e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ... (f)the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process." It is also to be noted that all the cases to which I have referred concern abuse of the processes of a court in its civil or criminal jurisdiction. The basis of the Court's power to permanently stay proceedings is the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people: Hunter v Chief Constable of the West Midlands Police (supra) at 536 per Lord Diplock; approved in Walton v Gardiner at 593. The High Court in Walton v Gardiner held there was an analogy between the concept of abuse of a court's process and the concept of abuse of a tribunal's process in relation to disciplinary proceedings, in that case a medical tribunal. The question is whether the analogy extends to the consideration and exercise by a decision‑maker of an administrative discretion under s 401(1) where there are no parties or proceedings in the traditional sense.