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Re Western Australian Planning Commission;

Re Western Australian Planning Commission;

Case [2010] WASCA 236 23 November 2010

Stay of Proceedings

Planning & Development Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASCA 236

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 NOVEMBER 2010

DELIVERED : 23 NOVEMBER 2010

FILE NO/S: CACV 74 of 2010

MATTER :In the matter of an application for a writ of certiorari against the Western Australian Planning Commission
EX PARTE
GREGORY HOWARD SOLOMON
First Applicant
DOUGLAS HOWARD SOLOMON
Second Applicant
STEPHEN GEOFFREY BEYER
Third Applicant
LEE HELEN SOLOMON
Fourth Applicant
NOREEN NYUNT
Fifth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
COMMERCIAL PROPERTIES PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
Citation  :RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [No 2] [2010] WASC 328
File No  :CIV 1574 of 2010

Catchwords:

Practice and procedure - Order nisi - Application for stay of order that applicants give undertaking as to damages

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant               :     Mr D H Solomon
Second Applicant          :     Mr D H Solomon
Third Applicant             :     Mr D H Solomon
Fourth Applicant           :     Mr D H Solomon
Fifth Applicant              :     Mr D H Solomon
First Respondent           :     Mr E M Heenan
Second Respondent      :     Mr M J McCusker QC

Solicitors:

First Applicant               :     Solomon Brothers
Second Applicant          :     Solomon Brothers
Third Applicant             :     Solomon Brothers
Fourth Applicant           :     Solomon Brothers
Fifth Applicant              :     Solomon Brothers
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     Hardy Bowen

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

PULLIN JA: The proceedings before this court have arisen because of an order by Simmonds J in the General Division requiring the first respondent, the Western Australian Planning Commission (WAPC), to show cause why certiorari should not be issued quashing the decision of the WAPC on 3 November 2009 granting approval of an application by a developer, Commercial Properties, to subdivide land at Mundaring.
The grounds supporting the order nisi were that the WAPC committed jurisdictional error and failed to have due regard to and apply certain statutory instruments. The order nisi was made by Simmonds J on 11 June 2010. Paragraph 7 of the order nisi provided that the order nisi should operate as a stay of the decision to the extent that the respondent should not indorse its approval on the survey strata plan for the subdivision pursuant to s 145 of the Planning and Development Act 2005 (WA) until determination of the application on return of the order nisi or until further order. By par 8 of the order nisi, Commercial Properties was granted leave on 24 hours' notice to the applicants and to the WAPC to apply to dissolve or vary the stay order.
Subsequently, such an application was made by Commercial Properties. Commercial Properties sought an order that the stay be dissolved or, alternatively,…

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.

Continue reading Re Western Australian Planning Commission;

Details

AGLC: Re Western Australian Planning Commission; [2010] WASCA 236
Case: [2010] WASCA 236
Decision Date: 23 NOVEMBER 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the Western Australian Planning Commission sought to stay an order nisi which required the applicants to provide an undertaking as to damages. The applicants were objectors to a planning application, and the dispute centred around whether the applicants should be required to provide such an undertaking as a condition of the stay of the order nisi.

The court was required to determine whether the applicants should be compelled to give an undertaking as to damages in order to obtain a stay of the order nisi. The applicants argued that such a requirement was not appropriate in the circumstances, and that it was an unnecessary burden. The Western Australian Planning Commission, on the other hand, argued that such an undertaking was necessary to ensure that the court's order was not frustrated by the applicants' inability to pay any potential damages.

The court considered the principles of equity and fairness in determining whether the applicants should be required to give an undertaking as to damages. The court held that the applicants should not be required to provide such an undertaking, as it would place an undue burden on them and potentially frustrate the purpose of the stay of the order nisi. The court further held that the Western Australian Planning Commission had not demonstrated that such an undertaking was necessary to prevent the frustration of the court's order.

Accordingly, the court refused to make the order nisi conditional upon the applicants providing an undertaking as to damages. The Western Australian Planning Commission's application for a stay of the order nisi was dismissed. No further orders were made.

Orders