Re Shire of Carnarvon - [2005] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE SHIRE OF CARNARVON; EX PARTE HUMPHREY & ANOR [2005] WASCA 35

CORAM: ROBERTS-SMITH JA
MCLURE JA

HEARD: 23 FEBRUARY 2005

DELIVERED : 23 FEBRUARY 2005

FILE NO/S: CIV 1090 of 2004

MATTER :Application for a Writ of Certiorari against the SHIRE OF CARNARVON
EX PARTE
JOHN HUMPHREY
KAREN TRACEY HUMPHREY
Applicants

Catchwords:

Practice and procedure - Prerogative writ - Adjournment - Return of order nisi for certiorari - Planning approval - Amendment to town planning scheme proposed - Would result in rezoning of the relevant land - Whether hearing should be adjourned pending approval of the amendment

Legislation:

Nil

Result:

Application for adjournment refused

Category: B

Representation:

Counsel:

Applicants: Mr P L Wittkuhn
Caltex Australia Petroleum Pty Ltd : Mr D H Solomon

Solicitors:

Applicants: McLeods
Caltex Australia Petroleum Pty Ltd : Solomon Brothers

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

Re Minister for Minerals & Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190

Case(s) also cited:

Gudgeon v Black (1994) 14 WAR 158
Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1

ROBERTS-SMITH JA: This is an application by Caltex Australia Petroleum Pty Ltd ("Caltex"), for an adjournment of the hearing on the return of the order nisi for certiorari as made by notice of motion dated 8 December 2004. It is supported by two affidavits from Marcus Procopio sworn 7 December 2004 and 17 February 2005 respectively, and an affidavit of Barrie Charles Norton sworn 3 November 2004.
The order nisi was made on 9 February 2004. It concerns a decision made by the Shire of Carnarvon ("the Shire") in July 2003. The order nisi calls upon the Shire to show cause before the Full Court why a writ of certiorari should not be issued quashing their decision to grant planning approval to Australian Petroleum Pty Ltd in respect of a service station development on North West Coastal Highway, Kingsford, Western Australia.
The order nisi sets out four grounds upon which the application is based. The first contends that part of the land was not appropriately zoned for the use and is not severable from the rest of the planning approval. The second pertains to a claim of breach of noise regulations. The third has to do with road safety, which relates to the egress of road trains from the relevant property. The fourth is a contention that the planning approval is void because it was not issued to either the owner of the subject land or the person who would undertake the proposed development.
The present application arises out of or is founded upon events which have occurred essentially since October 2004. In that month there was a meeting of the Shire, at which the Council considered a proposed amendment to the Carnarvon Town Planning Scheme. The amendment sought to rezone the eastern portion of the relevant property from intensive horticulture to commercial. The contention advanced by Mr Solomon on behalf of Caltex is that the proposed rezoning is a major factor in the applicants' case, at least with respect to the exercise of discretion.
At the meeting of the Council, the Council resolved to adopt the amendment without modification. It has forwarded its report in relation to the amendment to the Department for Planning and Infrastructure with a request that the Minister approve the amendment. The amendment is currently being considered by the department which is required to report to the Western Australian Planning Commission with respect to it. The proposed amendment is to be put to the Minister. According to the information before us today and to what Mr Solomon says from the Bar table, it is anticipated that the Minister will make a decision in relation to the proposed amendment at least within the next few weeks.
In those circumstances Caltex seeks an adjournment of the hearing of the return of the order nisi because of its contention that the outcome of the Minister's decision, that is to say the amendment, will be a factor in the exercise of the judicial discretion and it would be in the interests of justice for the adjournment to be granted so that the position in relation to the amendment can be known by the time the matter comes on for hearing. No actual date for the hearing has yet been set but the matter is in the list and current indications are that it will be heard probably in May but certainly not before that time.
Caltex relies in particular on the decisions of Re Minister for Minerals & Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 and the submission based on that authority is that for similar reasons to those which actuated the majority in that case, this matter ought also to be adjourned because the amendment itself may become moot. It is also submitted that the adjournment would not be a lengthy adjournment and the order sought also seeks that the matter be removed from the list without loss of priority.
The applicants oppose the application for the adjournment. They contend that the rezoning effectuated by the amendment, if and when that occurs, could not have any effect upon the impugned planning consent and they point out that the zoning question is in any event only one of a number of grounds of challenge.
That is clearly correct as has already been indicated. It is further submitted that given that the earliest hearing date is May 2005, then on Caltex's own submissions the rezoning application should have been determined well before the return of the order nisi. Finally it is submitted on behalf of the applicants that in any event it is a matter of pure speculation as to when a decision on the rezoning might be made.
As I have said, Caltex relies substantially on the decision in Re Minister for Minerals & Energy; Ex parte Wingate Holdings. That was a decision of the Full Court of the Supreme Court in 1986, a decision of the majority comprising of Wallace and Olney JJ. It is notable that the then Chief Justice, Burt CJ, was in dissent in that case. It is not necessary I think to refer to all of the facts or circumstances. Suffice to say that the Chief Justice said at 194:
"In my opinion and as a matter of principle the submission made by Wingate in its opposition to the adjournment should be accepted. The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be Pyrrhic. If it is, then so be it. That is a matter for him."
Neither of the other two Judges in that case, as I read it, disagreed with the principle to be applied but they came to a different result on the application of the principle to the circumstances of that case. Indeed as Wallace J said at 195:
"Again as a general rule it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future."
His Honour's reason for reaching the conclusion that the adjournment application should be granted in that case was that in his Honour's view the case had been made out that the court would otherwise be asked to deliberate upon a point which in all probability would become moot. That of course is not the situation here. It is common ground that the amendment will make no difference to the correctness or otherwise of the decision which is impugned.
The amendment goes only to the exercise of discretion and as counsel for the applicants point out, the discretion is to be exercised having regard to all of the grounds which in the end may be upheld, if any, and in those circumstances the relevant considerations would probably or may well depend more on the other three grounds than on the proposed amendment.
To return for the moment to Re Minister for Minerals & Energy; Ex parte Wingate, Olney J again observed that the only question that arose on the application was whether the interests of justice would be better served by proceeding to deal with the return of the order nisi on the return date then set or by adjourning until after Parliament had had the opportunity to deal with the matter in the manner foreshadowed by the

Minister. In that case it is to be noted that there was no real doubt that the foreshadowed legislation would be passed and passed in terms which would unquestionably terminate the dispute adversely to Wingate. That again is in contrast to the circumstances of the present case.

So far then as the adjournment is concerned it is of particular note to my mind that the matter has now been outstanding for some considerable time. The notice of originating motion was filed in January 2004 and as I have observed, it concerns a decision made in July 2003 and of course it is now 2005. I consider there will be prejudice to the applicants if the adjournment is granted. That prejudice will result at least from continuing delay and the uncertainty resulting from that. There is no guarantee the amendment will be dealt with by the Minister in the immediate future, although that may be expected, and nor indeed that it will necessarily go a particular way.
I put to one side the applicant's submission that even if the amendment were approved and gazetted, Caltex would still need to apply for approval by Council and that would take time and be of uncertain outcome. I do so because Mr Solomon says that Council approval has already been given and in any event he has given an undertaking there would be no further adjournment application made by Caltex by reason of it.
Whilst I accept the effect of the amendment may bear on the exercise of judicial discretion, the extent to which it might do so is speculative. As I have said, there are three other grounds of appeal. There is also the question of delay. All of those matters go to the exercise of discretion as does the fact that on Mr Solomon's submission the Minister is expected to make a decision within the next few weeks which would therefore be appreciably before the hearing on the return of the order nisi, much less the decision, and if necessary at that point, and the court were to be of the view that it might have a significant affect on the exercise of its discretion, the court could adjourn for that limited purpose or alternatively receive written submissions.
That course or either of them would be preferable to adjourning the hearing at this stage. The applicants are entitled to have their application heard on the law as it stood at the relevant time. For the reasons that I have outlined, I would refuse the application for an adjournment.
MCLURE JA: I too would refuse the application for the reasons given by Roberts‑Smith JA.