Re State Administrative Tribunal; Ex Parte McCourt
[2007] WASCA 125
•12 JUNE 2007
RE THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE McCOURT [2007] WASCA 125
| (2007) 34 WAR 342 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 125 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:2012/2005 | 9 FEBRUARY 2007 | |
| Coram: | STEYTLER P WHEELER JA McLURE JA | 12/06/07 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | RUTH ELLEN McCOURT THE STATE ADMINISTRATIVE TRIBUNAL MARK KRASENSTEIN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Administrative law Prerogative writs Certiorari and mandamus Application for joinder as an intervener pursuant to State Administrative Tribunal Act 2004 (WA) Tribunal applied "Harding test" Jurisdictional error Error of law on the face of the record |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 36, s 37(3), s 105 |
Case References: | Archer v Howell (No 2) (1992) 10 WAR 33 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Craig v The State of South Australia (1995) 184 CLR 163 Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 Director of Consumer Affairs Victoria v Australian Finance Direct Ltd (2004) ASC 155-064 Harding v Shire of Chittering (2003) 35 SR (WA) 229 Harper v The Racing Penalties Appeal Tribunal of Western Australia [2001] WASCA 217 Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213 Kaard and City of Nedlands [2005] WASAT 2 Krasenstein and Western Australian Planning Commission [2005] WASAT 201 Krasenstein v Western Australian Planning Commission [2004] WATPAT 213 Levy v Victoria (1997) 189 CLR 579 McCourt v Shire of Busselton [2004] WATPAT 76 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 R v Compensation Court (WA); Ex parte State Planning Commission (1990) 2 WAR 242 R v Cook; Ex parte Twigg (1980) 147 CLR 15 Re Bennett-Borlase SM; Ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997 Re Boothman SM; Ex parte M J Edmonson (1984) Pty Ltd v Flint, unreported; FCt SCt of WA; Library No 980361 Re Boothman SM; Ex parte Optimum Resources v Kalgoorlie Consolidated Gold Mines Ltd, unreported; FCT SCt of WA; Library No 970347; 11 July 1997 Re Calder; Ex parte Gardner (1999) 20 WAR 525 Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25 Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Gillett; Ex parte Rusich [2001] WASCA 111 Re Heaney; Ex parte Flint, unreported; SCt of WA Library No 960320; 3 July 1996 Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996 Re Narula; Ex parte Atanasoski [2003] WASCA 156 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 Re Roberts SM; Ex parte Burge [2003] WASCA 2 Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203 Rogers v Marion (1990) 3 WAR 279 Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE McCOURT [2007] WASCA 125 CORAM : STEYTLER P
- WHEELER JA
McLURE JA
RUTH ELLEN McCOURT
Applicant
AND
THE STATE ADMINISTRATIVE TRIBUNAL
First Respondent
MARK KRASENSTEIN
Second Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Third Respondent
(Page 2)
Catchwords:
Administrative law - Prerogative writs - Certiorari and mandamus - Application for joinder as an intervener pursuant to State Administrative Tribunal Act 2004 (WA) - Tribunal applied "Harding test" - Jurisdictional error - Error of law on the face of the record
Legislation:
State Administrative Tribunal Act 2004 (WA), s 36, s 37(3), s 105
Result:
Order nisi discharged
Category: A
Representation:
Counsel:
Applicant : Mr M C Hotchkin
First Respondent : No appearance
Second Respondent : Mr M J Hardy
Third Respondent : Mr C S Bydder
Solicitors:
Applicant : Hotchkin Hanly
First Respondent : No appearance
Second Respondent : Hardy Bowen
Third Respondent : State Solicitor
Case(s) referred to in judgment(s):
Archer v Howell (No 2) (1992) 10 WAR 33
Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Craig v The State of South Australia (1995) 184 CLR 163
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
(Page 3)
Director of Consumer Affairs Victoria v Australian Finance Direct Ltd (2004) ASC 155-064
Harding v Shire of Chittering (2003) 35 SR (WA) 229
Harper v The Racing Penalties Appeal Tribunal of Western Australia [2001] WASCA 217
Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213
Kaard and City of Nedlands [2005] WASAT 2
Krasenstein and Western Australian Planning Commission [2005] WASAT 201
Krasenstein v Western Australian Planning Commission [2004] WATPAT 213
Levy v Victoria (1997) 189 CLR 579
McCourt v Shire of Busselton [2004] WATPAT 76
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Compensation Court (WA); Ex parte State Planning Commission (1990) 2 WAR 242
R v Cook; Ex parte Twigg (1980) 147 CLR 15
Re Bennett-Borlase SM; Ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Re Boothman SM; Ex parte M J Edmonson (1984) Pty Ltd v Flint, unreported; FCt SCt of WA; Library No 980361
Re Boothman SM; Ex parte Optimum Resources v Kalgoorlie Consolidated Gold Mines Ltd, unreported; FCT SCt of WA; Library No 970347; 11 July 1997
Re Calder; Ex parte Gardner (1999) 20 WAR 525
Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Heaney; Ex parte Flint, unreported; SCt of WA Library No 960320; 3 July 1996
Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Re Narula; Ex parte Atanasoski [2003] WASCA 156
Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82
Re Roberts SM; Ex parte Burge [2003] WASCA 2
Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203
(Page 4)
Rogers v Marion (1990) 3 WAR 279
Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55
(Page 5)
1 JUDGMENT OF THE COURT: This is the return of an order nisi for prerogative relief.
2 The applicant ("McCourt") and the respondent ("Krasenstein") own adjoining blocks of land ("McCourt land" and "Krasenstein land" respectively). Each of them submitted a draft Development Guide Plan ("DGP") to the Busselton Shire Council ("Shire"). The DGP submitted by McCourt was one for subdivision of the McCourt land into nine lots. Eight of these required access through the Krasenstein land. The DGP submitted by Krasenstein was one for subdivision of the Krasenstein land into six lots. That plan made no provision for access through the Krasenstein land to the McCourt land. The Shire resolved not to adopt the McCourt DGP. It adopted the Krasenstein DGP.
3 McCourt appealed to the former Town Planning Appeals Tribunal ("Appeal Tribunal"). Her appeal was upheld: McCourt v Shire of Busselton [2004] WATPAT 76. The Deputy President of the Appeal Tribunal found (at [18]) that the McCourt DGP was superior to the Krasenstein DGP. He required the Shire to advertise the McCourt DGP and then to forward it to the third respondent ("Commission") together with any submissions and its comments.
4 Some five weeks after the Appeal Tribunal delivered its decision, the Commission resolved to endorse the Krasenstein DGP subject to modifications, including one to the effect that access be provided through the Krasenstein land to the McCourt land. Krasenstein appealed against that modification ("access modification") to the Appeal Tribunal. McCourt applied to be joined as a party to the proceedings. Her application was refused but she was permitted to make submissions. The Appeal Tribunal upheld the appeal and approved the Krasenstein DGP without the access modification: Krasenstein v Western Australian Planning Commission [2004] WATPAT 213.
5 Krasenstein submitted his subdivision plan to the Commission. The subdivision plan was consistent with the Krasenstein DGP. On 1 June 2005 the Commission approved the subdivision plan under s 20(1)(a) of the Town Planning and Development Act 1928 (WA) ("TPD Act"). The approval under the TPD Act (it is common cause that, so far as is material, that Act remains applicable in these proceedings notwithstanding that it was repealed in 2005) was subject to a number of conditions. One of these, condition 2, required Krasenstein to provide a road reserve through the Krasenstein land so as to provide access from the McCourt land to the public road system to the north of it.
(Page 6)
6 Krasenstein applied to the first respondent ("Administrative Tribunal") under s 26(1)(a)(ii) of the TPD Act for review of condition 2 and two other conditions. At the time, the McCourt DGP was still before the Commission, which had given "in-principle support" to it, subject to conditions. McCourt sought leave to intervene in the Administrative Tribunal proceedings under s 37(3) of the State Administrative Tribunal Act 2004 (WA) ("SAT Act"). She could not be joined as a party to these proceedings because of the provisions of s 63 of the TPD Act (to which we will return later), which excluded the application of s 38 of the SAT Act (to which we also return later), the latter being the section that provides for the joinder of a party to a proceeding in the Administrative Tribunal. By her counsel, McCourt contended that it was necessary that she be granted leave to intervene in order to enable the Administrative Tribunal properly to dispose of the proceedings. She said that there could otherwise be no proper comparison between the two DGPs and, in circumstances in which the Appeal Tribunal had approved both when they were inconsistent, there remained the prospect of approval of inconsistent planning approaches if intervention was not permitted. Leave was refused by a legally qualified Senior Member of the Administrative Tribunal, Mr D R Parry: Krasenstein and Western Australian Planning Commission [2005] WASAT 201. However, McCourt was given leave to make submissions in relation to the disputed conditions.
The Administrative Tribunal's reasons
7 The Administrative Tribunal found that, read in its context, s 37(3) of the SAT Act is principally concerned with the advancement of the public interest ([24] of the reasons). It accepted that, where intervention is necessary for the proper disposition of the proceedings, it is in the public interest (at [25]). The Senior Member suggested that one circumstance in which the proper disposition of proceedings will require the intervention of a person is where, in the absence of intervention, "there would not be sufficient material before the Tribunal to enable it to dispose of the proceedings on an informed, insightful and critically-analysed basis" (at [25]). He found that it was unnecessary for McCourt to be granted leave to intervene. This was because the Commission proposed "to defend the disputed conditions on the very same comparative basis as that sought to be advanced by Mrs McCourt, if leave to intervene were granted" ([27] of the reasons). He rejected a submission that McCourt was "peculiarly placed" to assist the Administrative Tribunal and that she had "particular knowledge" in respect of the difficulties of access. The submission had not been developed by counsel for McCourt. The Senior Member found that it was inappropriate to grant leave to intervene "with
(Page 7)
- the consequent conferral of status as a party, on the basis of such generalised and undefined assertions" (at [28]). However, he found that McCourt had a sufficient interest to justify the discretionary grant of leave to make submissions in the proceedings under s 62 of the TPD Act. That section provides, in a part of the Act (Part V) encompassing review of the Commission's decisions by the Administrative Tribunal, that the Tribunal may receive or hear submissions in respect of an application for review from a person who is not a party to it if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
The application for prerogative relief
8 On 24 August 2005 McCourt applied to the Supreme Court for prerogative relief. She sought an order requiring the Administrative Tribunal to show cause before this Court why a writ of certiorari should not be issued quashing its decision refusing leave to intervene and why a writ of mandamus should not be issued directing it to give McCourt leave to intervene. She sought, as an alternative to this last form of relief, an order that the Tribunal show cause why a writ of mandamus should not be issued requiring it to exercise its discretion in respect of the application for leave to intervene in accordance with reasons of the Court to be given in these proceedings.
9 The grounds relied upon by McCourt, as they have since been amended, read as follows:
"[(1)] … [I]n dismissing the Applicant's application for leave to intervene in the SAT Appeal, the State Administrative Tribunal failed to properly exercise its jurisdiction in failing to find that:
(a) in the unusual circumstance of inconsistent planning outcomes having previously been determined by the Town Planning Appeals Tribunal in [2004] WATPAT 76 and [2004] WATPAT 213 that affected the Applicant's land as well as that of the Applicant in the SAT Appeal, it was sufficient for the Applicant to establish, as it [sic] did, that its [sic] earlier involvement in one of the appeals giving rise to the inconsistency would more likely than not enable her to provide material assistance to the State Administrative Tribunal as to which planning outcome should be preferred; and
- (b) it was a sufficient basis to grant the Applicant leave to intervene if the State Administrative Tribunal was satisfied there was a reasonable risk that the Respondent to the SAT Appeal may not conduct its case to ensure that the SAT Appeal was disposed of on an informed, insightful and critically-analysed basis if the Applicant was not joined; and
(c) as it was not possible for the Applicant to predict precisely in what respect the Respondent to the SAT Appeal may not properly conduct its case there was nonetheless a reasonable basis for the Applicant to intervene, having regard to the matters which occurred in [2004] WATPAT 213, in order to increase the probability of enabling the State Administrative Tribunal to dispose of the SAT Appeal on an informed, insightful and critically-analysed basis; and
(d) having regard to all relevant considerations, the Applicant should properly have been granted leave to intervene in the SAT appeal and be joined as a party.
- [(2)] The Tribunal misapprehended the nature or limit of its functions or power by failing to consider the public interest in granting leave to intervene and joining the Applicant as a party to the SAT Appeal so that the Applicant would thereby be bound by all findings resolving the inconsistency arising from the two prior TPAT decisions, and that the weight of the public interest weighed in favour of granting leave to intervene."
The applicant's four contentions
10 Having acknowledged that the grounds reflected in the order nisi were not as helpful as they might be, counsel for the applicant presented us with a summary of contentions which, he said, encapsulated the arguments sought to be addressed pursuant to the grounds of the order nisi. This initially consisted of the following three propositions:
"1. The question of whether to grant leave to intervene in SAT proceedings on planning matters requires an
- exercise of discretion, by taking into account relevant considerations.
- 2. Relevant considerations are not confined solely to identifying a public interest or satisfying a particular test, but includes [sic] the identification of various interests, public or private, and weighing all of them up in arriving at a just or appropriate decision about the way to determine the issues before the Tribunal.
3. The SAT committed either jurisdictional error or an error of law on the face of the record by failing to exercise its discretion in that way."
11 A fourth contention was added in the form of ground 2 of the order nisi, that ground having been added by amendment during the hearing of McCourt's application to this Court.
12 Before considering these contentions, it is convenient to deal with two preliminary issues. The first is the test for jurisdictional error as it applies to the Administrative Tribunal.
The test for jurisdictional error
13 In Craig v The State of South Australia (1995) 184 CLR 163 at 176 the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said that, in considering what constitutes jurisdictional error, it is necessary to distinguish between inferior courts which are amenable to certiorari, on the one hand, and tribunals exercising governmental powers which are also amenable to the writ, on the other. The ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact. Demonstrable mistake in the identification of relevant issues or the formulation of relevant questions, while commonly involving error of law which might be corrected by an appellate court, will not ordinarily constitute jurisdictional error: Craig at 179 - 180. The same is ordinarily true of a failure by an inferior court to take into account some matter which it was required by law to take into account, or of reliance by such a court upon some irrelevant matter which it was not entitled to take into account, in determining a question entrusted to it: Craig at 180. On the other hand, in the absence of a contrary intent in the statute or other instrument establishing it, an administrative tribunal lacks authority to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law: Craig at 179. Accordingly, as the Court pointed out in Craig at 179:
(Page 10)
- "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."
14 The basis for the distinction, and for the consequences that flow from it, rests upon the authority to determine questions of law authoritatively or to make orders or decisions otherwise than in accordance with the law. Consequently, in a case of an administrative tribunal, it is important to have regard to the statute or other instrument which establishes it in order to see whether or not it has the relevant authority. If it does, the test for jurisdictional error will ordinarily be the same as that applicable in the case of an inferior court entrusted with the requisite authority. In Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203 at [27] Phillips JA (with whom Charles and Buchanan JJA agreed) said:
"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 … "
15 In Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 Martin CJ (with whom Wheeler JA and, relevantly, McLure JA agreed at [143] and [158] respectively), having considered the relevant provisions of the SAT Act, concluded (at [110]) that the Administrative Tribunal "was … given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take … [it] outside jurisdiction". There is no challenge to the correctness of that decision. It is common cause that, in determining the scope of jurisdictional error, the test to be applied in this case is the same as that which is ordinarily applied in the case of an inferior court.
(Page 11)
16 There will consequently be a jurisdictional error only if the Administrative Tribunal makes a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [163] per Hayne J. There will be no jurisdictional error if all that the Tribunal has done is to decide something, which it is authorised to decide, incorrectly. In Craig at 177 - 178, the High Court identified five categories of jurisdictional error in this narrower sense. These are not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) 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 applicant contends that there has been jurisdictional error in the second and fifth categories.
(Page 12)
Do the Administrative Tribunal's reasons form part of the record?
17 We will return to the issue of jurisdictional error later. We propose, first, to deal with the contention advanced by the applicant that the Administrative Tribunal's reasons form part of the record for the purposes of judicial review. The significance of this is, of course, that if an error of law is non-jurisdictional, certiorari cannot issue unless the error is one that appears on the face of the record.
18 The applicant bases her contention that the reasons form part of the record on the ground that the Tribunal is required by the SAT Act to provide written reasons for its decisions. By s 77 of the SAT Act, the Tribunal is required to give reasons for a final decision. These must include its findings on material questions of fact, referring to the evidence or other material on which those findings are based. By s 78, if the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and without giving reasons, a party may, within 28 days after the day on which the decision is given, require it do so.
19 Prior to Craig, there was an increasing tendency to find that, where a decision-maker gave reasons for making its order or decision, those reasons formed part of the record: see R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 27 - 28 and the cases there summarised. The preponderance of authority in this State, prior to Craig, was to the effect that, where the decision-maker was obliged to give reasons, the reasons form part of the record: R v Compensation Court (WA); Ex parte State Planning Commission (1990) 2 WAR 242 at 251 - 252; Rogers v Marion (1990) 3 WAR 279 at 284; Archer v Howell (No 2) (1992) 10 WAR 33 at 41 - 42; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 540 per Rowland J; at 546 per Murray J.
20 In Craig, the High Court turned its back on the expansive approach to certiorari that had previously been taken. It said (at 180 - 181):
"One finds in some recent cases in this country support for the adoption of an expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the 'modern record' of an inferior court … As Priestley JA pointed out in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 389 - 390, that approach is not precluded by any direct decision of this Court. Nonetheless, it should, on balance, be rejected. For one thing, it is inconsistent with the weight of authority in this Court which supports the conclusion that, in the absence of some statutory
(Page 13)
- provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision (see, in particular, R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 at 495 - 496, per McTiernan J; at 501 - 502, per Menzies J; Hockey v Yelland (1984) 157 CLR 124 at 131, per Gibbs CJ; at 142 - 143, per Wilson J; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667, per Gibbs CJ (Wilson, Brennan and Dawson JJ concurring)). More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law … upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error … It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature."
21 The Court went on to say (at 181) that the fact that the transcript of proceedings and reasons did not, of themselves, constitute part of the record did not preclude incorporation of them by reference. However, it said that this qualification "should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and 'the record' … " (at 182).
22 It seems to us to be apparent from what was said in Craig that, in the absence of any contrary intention appearing in the applicable legislation, if the reasons are not expressly incorporated by the court or tribunal into its order or decision they will not form part of the record for the purposes of judicial review (see also Public Service Board (NSW) v Osmond
(Page 14)
- (1986) 159 CLR 656 at 667 per Gibbs CJ, Wilson, Brennan and Dawson JJ agreeing and Deane J in general agreement).
23 The legislature should be taken to have been aware of the law as it stood at the time of the enactment of the SAT Act. Notwithstanding this, there is no provision in that Act which expressly requires that the Administrative Tribunal's reasons are to form part of the record: cp s 69 of the Supreme Court Act 1970 (NSW) and s 10 of the Administrative Law Act 1978 (Vic). In arguing that the SAT Act implicitly requires that the reasons be incorporated into the record, counsel for the applicant relies, as we have said, upon the fact that written reasons are required. In Carey (at [126]) Martin CJ, while making no determination on this question, thought that there was much to be said for the proposition that the requirement to give reasons had the consequence that they formed part of the record for the purposes of the prerogative remedy of certiorari. He referred, in that respect, to a number of cases that predated Craig (including Danagher, which was decided very shortly prior to Craig).
24 In our respectful opinion, the requirement in the SAT Act that the Administrative Tribunal give reasons is not, of itself, sufficient to make them part of the record, at least when that requirement is looked at in the overall context of the Act. Rather, it seems to us that the Tribunal's reasons were not intended by the legislature to form part of the record. That is so for a number of reasons.
25 First, as we have said, the legislature must be taken to have been aware of the decision in Craig at the time of the enactment of the SAT Act, but it made no express provision for incorporation of the Tribunal's reasons into the record.
26 Next, and most importantly, s 105 of the SAT Act provides for an appeal, by leave, from a decision of the Tribunal. Section 105(2) provides that the appeal can only be brought on a question of law (although s 105(13) provides for a number of specified exceptions). The right to appeal is extended by s 105(1) only to a "party to a proceeding". Section 36 identifies the persons who are to be regarded as parties to a proceeding before the Tribunal. Subsections (1) to (4) of that section read as follows:
"(1) A person is a party to a proceeding before the Tribunal if the person is -
(a) the applicant;
- (b) a person joined under section 38 as a party to the proceeding;
(c) a person intervening in the proceeding; or
(d) specified by this Act or the enabling Act to be a party to the proceeding.
- (2) If the proceeding is in the Tribunal's original jurisdiction, anyone else in respect of whom a decision of the Tribunal is sought is also a party.
(3) In a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, a person affected by or the subject of the decision or matter is also a party.
(4) If the proceeding is in the Tribunal’s review jurisdiction, the decision-maker is also a party."
- Moreover, s 105(11) provides that, if the Tribunal's decision is made in a proceeding prescribed by the regulations, a party cannot apply for leave to appeal under s 105 unless the party agrees to indemnify each other party to the proceedings against that other party's reasonable legal costs of the appeal. Section 105(12) provides that, in the case of a decision coming within the Tribunal's review jurisdiction, any leave to appeal granted to the decision-maker is to be granted on the condition that the costs of the other party are to be met by the decision-maker, unless the court considers that it would be unjust or unreasonable to impose that condition.
27 The limitation of the right of appeal provided by s 105(1) to the persons identified in s 36 (which do not include a person "in respect of whom a decision of the Tribunal is sought" in proceedings that are not in the Tribunal's original jurisdiction), is consistent with one of the Tribunal's main objectives recorded in s 9 of the Act, being "to act as speedily … as is practicable, and minimise the costs to parties". If the reasons were to be read as forming part of the record for the purposes of judicial review, this would mean that a non-party would be in almost the same position as a party with respect to the ability to challenge errors of law, as any error of law in the reasons would be an error on the face of the record. Moreover, that non-party would be able to bring his or her challenge without first obtaining leave, and satisfying the requirements of s 105(11) and s 105(12) where those requirements would otherwise have
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- been applicable. We very much doubt that this could have been the legislature's intention. This construction of the SAT Act would not only cut away the efficacy of the limitation on appeal rights, it would also have the potential to bring about significant delays and an increase in costs at the behest of a person who was not a party to the proceedings.
28 The provisions concerning the right of appeal must also be considered in the context of the enactment of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("Amendment Act"), which was assented to on the day after the SAT Act and took effect on 1 January 2005, the commencement day of the SAT Act. The Amendment Act amended a number of other Acts so as to confer jurisdiction upon, and to make provisions in respect of the exercise of that jurisdiction by, the Administrative Tribunal. Sections 1212 and 1213 of the Amendment Act inserted into the TPD Act s 62 of that Act (mentioned above) and also s 63 of that Act. The latter section provides that s 38 of the SAT Act (the provision providing for joinder as a party) does not apply in a proceeding for review in accordance with Part V of the TPD Act (which, as we have said, deals with applications for review of decisions made under the TPD Act). If the Administrative Tribunal's reasons are always to be regarded as part of the record for the purposes of judicial review, s 63 of the TPD act would not prevent a person who might otherwise have been joined as a party (and hence obtained a right of appeal) from challenging a decision of the Administrative Tribunal, without obtaining leave, on the ground of any error of law appearing in those reasons. We very much doubt that the legislature could have intended to deny to an interested person the right to become a party to review proceedings in the Administrative Tribunal, but to leave that person with a right to challenge its decision on the grounds of any error of law appearing in its reasons.
29 Moreover, the fact that there is an appeal on questions of law and, in the circumstances provided for by s 105(13), on a question of fact also, provides a sufficient justification for the requirement to give reasons. It might be worth noting in this respect that the SAT Act contemplates that a decision might, in some circumstances, be made without giving written reasons. We have said that s 77 requires the Tribunal to "give its reasons for a final decision" and that s 78 provides that, when it makes a decision without having reserved and without giving written reasons, a party might request that reasons in writing be given. Also, s 81 of the SAT Act provides that a failure to comply with a requirement of Div 4 does not affect the validity of a decision. Sections 77 and 78 form part of Div 4.
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30 Before leaving the point, we should mention that, since Craig, there has been a number of decisions of the Full Court in this State (apart from Carey) dealing (somewhat inconsistently) with the question whether or not reasons form part of the record: see, for example, Re Bennett-Borlase SM; Ex parte Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997 (a case concerning the Firearms Act 1973 (WA)); Re Boothman SM; Ex parte Optimum Resources v Kalgoorlie Consolidated Gold Mines Ltd, unreported; FCT SCt of WA; Library No 970347; 11 July 1997; Re Calder; Ex parte Gardner (1999) 20 WAR 525; Re Boothman SM; Ex parte M J Edmonson (1984) Pty Ltd v Flint, unreported; FCt SCt of WA; Library No 980361; 24 June 1998; Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25; Re Heaney; Ex parte Flint, unreported; SCt of WA Library No 960320; 3 July 1996 and Re Roberts SM; Ex parte Burge [2003] WASCA 2 (all of which concern decisions of a warden made under the Mining Act 1978 (WA)); Harper v The Racing Penalties Appeal Tribunal of Western Australia [2001] WASCA 217 (a case concerning the Racing Penalties (Appeals) Act 1990 (WA)); Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996; Re Gillett; Ex parte Rusich [2001] WASCA 111; Re Croser; Ex parte Rutherford (2001) 25 WAR 170; and Re Narula; Ex parte Atanasoski [2003] WASCA 156 (all of which concerned the Workers Compensation and Rehabilitation Act 1981 (WA), now the Workers Compensation and Injury Management Act). Because each case necessarily depends upon its own statutory context, and because none of these cases was decided in the context of the SAT Act, it seems to us that they are of limited assistance in the present case.
31 Finally, there is nothing in the terms of the orders made by the Administrative Tribunal in this case that suggests that the reasons were expressly incorporated into those orders. The orders say no more than that McCourt's application for leave to intervene "is dismissed" and that she has "leave to make submissions in relation to the proceedings under s 62 of the … [TPD Act]". Furthermore, while it is true that the orders were mentioned at the conclusion of the reasons (for what seem only to be reasons of convenience, the orders having been made on 8 August 2005, prior to publication of the reason on 12 August 2005), that, of itself, is an insufficient basis for inferring an intention to incorporate the reasons into the orders.
32 It consequently seems to us that the reasons were not part of the record for the purposes of judicial review.
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The applicant's contentions
33 The proposition that there was an error of law on the face of the record (not advanced in the grounds of the order nisi) necessarily fails, given our conclusion that the Administrative Tribunal's reasons are not part of the record. It is not suggested that the record otherwise reveals any error of law. It reveals no more than that there was an application to the Tribunal to join the applicant as an intervener, that the application was dismissed and that the applicant was given leave to make submissions. There can be no suggestion (and there is none) that the power to join, or to refuse to join, an intervener, or to allow her to make submissions, is beyond the Tribunal's jurisdiction.
34 Next, the failure to take account of relevant considerations does not necessarily amount to jurisdictional error. There will only be jurisdictional error in such a case if it was mandatory under the SAT Act for the Tribunal to take account of the consideration or considerations in question as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the case: Craig at 177. Consequently, to the extent that the first three contentions rely solely upon the failure to take into account considerations that were not required by the SAT Act to be taken into account as a pre-condition of the exercise of the Tribunal's authority, they cannot succeed.
35 The considerations relied upon are those outlined in grounds 1 (a) to (c) of the order nisi. These are to the effect that McCourt was able to provide material assistance to the Administrative Tribunal as to which planning outcome should be preferred, that there was a reasonable risk that the respondents to the appeal might not conduct their case in such a way as to ensure that the appeal was disposed of on an informed, insightful and critically-analysed basis if McCourt was not joined and that McCourt's joinder would "increase the probability of enabling … [the Tribunal] to dispose of the … Appeal on an informed, insightful and critically-analysed basis", more especially in circumstances in which she could not predict "precisely in what respect the Respondent to the … Appeal may not properly conduct its case". While ground (d) refers to "all relevant considerations", no other considerations are identified either in the grounds for the order nisi or in the summary of contentions, other than by way of the amended ground which, as we have said, has become the fourth contention.
36 The Senior Member is said to have failed to take account of these considerations because he mistakenly formed the opinion that
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- "intervention under the SAT Act is principally concerned with the advancement of the public interest, as opposed to private interests" ([23] of his reasons). He relied, in this respect, upon the terms of s 37 and s 38 of the SAT Act. These sections read as follows:
"37. Intervening in proceeding
(1) The Attorney General may, on behalf of the State, intervene in a proceeding of the Tribunal at any time.
(2) The Commissioner referred to in section 15 of the Consumer Affairs Act 1971 may, on behalf of the State, intervene at any time in a proceeding if the Minister responsible for the administration of that Act is responsible for the administration of the enabling Act.
(3) The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
38. Joining as a party
(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -
(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding;
(b) the person’s interests are affected by the proceeding; or
(c) for any other reason it is desirable that the person be joined as a party.
(2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative."
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- that intervention should be permitted principally in the public interest, with private interests to be catered for by joinder as a party.
37 This conclusion is not without its difficulties.
38 The first is that s 37(3) could very simply have provided that the power to give leave to intervene is to be exercised so as to give effect to the public interest, or even required that, in exercising the power, the Tribunal must have regard to the public interest. However it does neither of these things. Instead, the section provides for a discretion which, in its terms, is unconfined. It is consequently important to bear in mind considerations of the kind mentioned by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 as follows:
"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act."
39 In our respectful opinion, there is nothing in the subject matter, scope and purpose of the SAT Act to suggest that the principal basis upon which private persons should be permitted to intervene is to advance some public interest or to argue for a particular view of the law: see, in this last respect, Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331 per Dixon J; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 182; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 399 - 400 per Hutley JA;
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- Levy v Victoria (1997) 189 CLR 579 at 601 - 602; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at [9] per Gleeson CJ and [135] per Kirby J.
40 Nor is there anything in the notion of intervention, as opposed to joinder as a party, which suggests that the concept is designed with public, rather than private, interests in mind. While the position under each statute must, of course, depend upon the terms of that statute, rights of intervention, exceptional cases aside, are ordinarily accorded only to persons who "wish to maintain some particular right, power or immunity in which they are concerned": Australian Railways Union at 331 per Dixon J (speaking in the context of intervention in matters arising under the Commonwealth Constitution); Levy at 601 - 602 per Brennan CJ (speaking in a similar context); Bradley at 399 per Hutley JA (who provides an informative history of the concept of intervention); and see also s 62 of the TPD Act. Consequently, the presence in the Act of s 37(1) and s 37(2) is more readily explicable by reference to an intention to expand the category of those who might intervene rather than by an intention to restrict the basis upon which a person acting in a private capacity might intervene.
41 In our respectful opinion, the importance of the distinction between s 37 and s 38 rests in another aspect of the concept of intervention, as that concept has traditionally been understood, being that, in the absence of any statutory intention to the contrary, an intervener, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided: Hocking v The Southern Greyhound Racing Club Inc (1993) 61 SASR 213 at 216 per King CJ (who also provides a useful history of the concept of intervention) and at 221 per Debelle J; News Ltd at [9] per Gleeson CJ and [135] per Kirby J. In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the Administrative Tribunal to the matters at issue between the applicant and the decision-maker, as it has done through s 62 and s 63 of the TPD Act.
42 Consequently, in an ordinary case (where, unlike the present case, there is no statutory exclusion of the power to join parties), a decision whether to join a person as a party or as an intervener would depend very largely upon the nature of that person's interest and upon the nature and effect of the proceedings concerned. The decision will also be influenced
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- by the objectives of the SAT Act, including those of minimising costs and avoiding delay.
43 It is also important to mention the further distinction that, unlike the case of joinder of a party under s 38, s 37 provides that leave to intervene may be given "on conditions, if any, that the Tribunal thinks fit". Counsel for the Commission contended in this respect that it is difficult to see why there should be a need to impose conditions on an intervener who was concerned only with a private interest and that the power to impose conditions supports a construction that intervention is to be permitted only in the public interest. We are unable to accept that submission. There may be many kinds of private interests that might lead a person to seek leave to intervene and, in circumstances in which a private interest may be insufficient to justify joinder as a party (in cases not the subject of exclusion of the power to join the applicant as a party), it might often be appropriate to impose conditions limiting the extent of the intervention. Moreover, even if it was true that it was inappropriate to impose conditions in cases of interveners in the private interest, the fact that the legislature saw fit to create a power to impose conditions to cover the case of an intervention in the public interest says nothing about the power to give leave to a person to intervene in his or her private interest.
44 In this case, although the Senior Member erred, in our respectful opinion, in stating as a general proposition that intervention is principally concerned with the advancement of the public interest as opposed to private interests, he went on to say ([25] of his reasons) that the public has an interest in the "proper disposition of the proceedings". That phrase seems to us to encompass the need to take such steps as might be necessary to facilitate the proper consideration of private rights that might be affected by the disposition of the proceedings. Consequently, the distinction drawn by the Senior Member may have had little significance for any practical purpose. That may be evident from the fact that he found that the applicant's intervention was unnecessary only because the Commission proposed to oppose the application for review "on the very same … basis" ([27] of his reasons). There is no doubt that this was a material consideration: Australian Railways Union at 330 per Gavan Duffy J and Rich J and at 330 - 331 per Starke J; Levy at 603 - 604 per Brennan CJ; Director of Consumer Affairs Victoria v Australian Finance Direct Ltd (2004) ASC 155-064 at [54]. While counsel for the applicant pointed out in this respect that issues might alter in the course of proceedings in the Tribunal, that is true of many tribunals and there is nothing in the SAT Act which precludes the applicant from bringing a
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- second application if the issues should alter materially (s 37(3) empowers the Tribunal to give leave to intervene "at any time").
45 Counsel for the applicant also urged upon us the proposition that the Senior Member failed to take account of the considerations referred to in the grounds set out in the order nisi because he wrongly fettered his discretion by applying (ironically, at the urging of the applicant's counsel) what was referred to as "the Harding test". This is a test that was propounded by the Appeal Tribunal in Harding v Shire of Chittering (2003) 35 SR (WA) 229 at [20] in the context of an application for joinder as a party to proceedings before the Appeal Tribunal at a time when the TPD Act did not prevent the joinder of parties in a case of the present kind. The test (as to which see also Kaard and City of Nedlands [2005] WASAT 2) is one to the effect that " … if the Tribunal thinks fit in order for it to adequately deal with the proper disposition of the appeal, then a party may be joined for that purpose". The Senior Member also referred to the suggestion in Harding at [26] to the effect that joinder would be permitted if there was "a possibility that the disposition of … [the] appeal would [otherwise] be other than on an informed, insightful and critically analysed basis".
46 The test applied in Harding arose in a very different context to that which arose in this case, which concerns joinder as an intervener and not as a party. The Harding test was formulated in the context of an implied power to add a party to proceedings in the Appeal Tribunal. The rights of an intervener may be a good deal more restricted than those of a party and it is difficult to see why the same test should be thought to be appropriate in both cases. In fact, s 38 of the SAT Act sets out the factors to be taken into account in the case of joinder of a party and the test in Harding may consequently be inapposite in that context also. The test was disapproved in Shire of Augusta-Margaret River vGray (2005) 143 LGERA 55which was decided after the decision the subject of this application. The factors adverted to in the Harding test are relevant considerations but they are not exhaustive nor necessarily determinative.
47 That brings us back to the applicant's grounds of challenge. Grounds 1(a), (b) and (c) assert that the Senior Member erred in failing to make factual findings that the applicant would have provided material assistance to SAT and ensured the SAT appeal was disposed of on an informed, insightful and critically-analysed basis.
48 We have said that the Senior Member found that the Commission proposed to defend the disputed condition relating to access "on the very
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- same comparative basis as that sought to be advanced by [the applicant]" (at [27]). We have also said that he declined to make the findings referred to in the grounds of challenge because of what he described (at [28]) as the generalised and undefined assertions on which the applicant's claims were based.
49 A mere failure to make a finding of fact (that is not jurisdictional) is not a recognised ground of judicial review and does not constitute a jurisdictional error in the narrow sense identified by the High Court in Craig. We would dismiss grounds 1(a) to (c).
50 The applicant relied on ground 1(d) as the basis for an alternative claim which was to the effect that the Senior Member erred in construing s 37(3) as being principally concerned with the advancement of the public interest and failed to take into account relevant considerations being (1) that the applicant's proprietary interests were directly and significantly affected by the proceedings, (2) the desirability of the applicant being bound by the findings of SAT relating to the access condition (condition 2) and (3) the associated desirability of avoiding any further inconsistent planning outcomes.
51 The failure to take into account a relevant consideration only gives rise to a reviewable error of law if the decision-maker was obliged to take the factor into account: Peko-Wallsend at 39. Section 37(3) of the SAT Act does not expressly oblige the decision-maker to take these matters into account. However, an obligation to consider a relevant matter may be implied where the matter has been the subject of submission: Peko-Wallsend at 39 - 46. It may be accepted that the Senior Member failed to take the specified matters into consideration. However, there is no evidence that the applicant raised them in her submissions. If she did, all the errors relied on would, if SAT was not an anomalous tribunal, constitute reviewable errors of law which would require the decision to be set aside. However, the applicant conceded that SAT is an anomalous tribunal analogous to a court and that she had to demonstrate that the Senior Member made a jurisdictional error in the narrow sense.
52 Where the decision-maker is a court or anomalous tribunal, misconstruing a statute, identifying the wrong issue, asking the wrong question, taking into account irrelevant considerations or failing to take into account relevant considerations do not ordinarily involve jurisdictional error: Craig at 179 - 180. Insofar as relevant and irrelevant considerations are concerned, they only relate to jurisdiction if the matters to be taken into account or ignored are a precondition of the existence of
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- any authority to make an order or decision in the circumstances of the case: Craig at 177 - 180. We are not persuaded that the considerations now relied on by the applicant can be so characterised.
53 We confirm for the record that the applicant does not complain of any denial of natural justice or procedural fairness. We assume that is because the Senior Member granted the applicant leave to make submissions under s 62 of the TPD Act. Accordingly, it is unnecessary to determine whether a failure to comply with such a right gives rise to a jurisdictional error in the narrow sense.
54 The remaining issue is whether in misconstruing the SAT Act, the Senior Member misconceived the extent of his powers in the circumstances of the particular case so as to fall within any of the categories identified in Craig. The High Court in Craig said (at 177 - 178):
"[A]n inferior court will exceed its authority and fall into jurisdictional error if it misconstrues … [the statute establishing it and conferring its jurisdiction] 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" [emphasis added].
55 This statement has to be considered in the context of the observation (at 179) that misconstruing a statute does not necessarily give rise to jurisdictional error for a body with the power to authoritatively decide questions of law as well as fact.
56 A difficulty for the applicant is that she contended, along with the other parties, that the Harding test applied and the Senior Member applied that test. In applying that test the Senior Member excluded from its ambit the matters listed in s 38 which he characterised as relating to the applicant's private interests. The question arises whether the applicant can now depart from her position below to contend that the discretion in s 37(3) of the SAT Act is in effect unfettered. If the misconstruction of s 37(3) is jurisdictional it would give rise to invalidity in which event it may be thought that a party is not bound by the conduct of its case below. However, it is unnecessary to resolve this issue because the respondents did not object to the applicant pursuing her alternative case and we will proceed on that basis.
57 Section 37(3) of the SAT Act is the source of the power to permit a party to intervene in proceedings. The Senior Member erred in construing
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- s 37(3) by identifying and applying a wrong test. However, this error did not cause the Senior Member to misconceive the nature of the function he was performing or the extent of his powers in relation to the application for intervention which are confined to the grant or refusal of leave to intervene. The error resulted in an unjustified limitation on the discretion with the result that the questions he asked were relevant but too narrow and relevant considerations were ignored. The error does not in our view constitute a want or excess of jurisdiction or a constructive failure to exercise jurisdiction.
58 This contention consequently fails.
Conclusion
59 We would discharge the order nisi.
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