Re Western Australian Planning Commission; [No 2] - [2010] WASC 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [No 2] [2010] WASC 328

CORAM: SIMMONDS J

HEARD: 5 & 8 NOVEMBER 2010

DELIVERED : 8 NOVEMBER 2010

FILE NO/S: CIV 1574 of 2010

MATTER :Application for a Writ of Certiorari against the Western Australian Planning Commission

EX PARTE
GREGORY HOWARD SOLOMON
DOUGLAS HOWARD SOLOMON
STEPHEN GEOFFREY BEYER
LEE HELEN SOLOMON
NOREEN NYUNT
Applicants

Catchwords:

Administrative law - Application for dissolution or variation of stay order in respect of decision subject of order nisi for review for jurisdictional error made returnable in the Court of Appeal - Appropriate test to apply after determination that judge of General Division had jurisdiction to hear and determine application - Whether dissolution or variation of stay order should be granted

Legislation:

Planning and Development Act 2005 (WA), s 29, s 135, s 145, s 241
Rules of the Supreme Court 1971 (WA), O 59 r 9
State Tribunal Act 2004 (WA), s 31
Supreme Court (Court of Appeal) Rules 2005 (WA), O 45, O 46
Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (Cth), s 52, s 53

Result:

Stay order varied by conditioning its continuance on the giving of an undertaking as to damages

Category: B

Representation:

Counsel:

Applicants:        Mr D H Solomon
Western Australian Planning Commission :        Mr E M Heenan
Commercial Properties Pty Ltd             :        Mr M J McCusker QC

Solicitors:

Applicants:        Solomon Brothers
Western Australian Planning Commission :        State Solicitor for Western                     Australia
Commercial Properties Pty Ltd             :        Hardy Bowen

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 48 CLR 170
Air Express Ltd v Ansett Transport Industries Operations Pty Ltd [1981] HCA 75; (1981) 146 CLR 249
Cazaly Iron Pty Ltd v John Bowler MLA, Minister for Resources [2006] WASCA 282
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
De L v Director of Community Services [1997] HCA 14; (1997) 190 CLR 207
Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Re application for writ of certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Re Western Australian Planning Commission; Ex parte Solomon [2010] WASC 192
Smith v New South Wales Bar Association (1992) 176 CLR 256
Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52
Zampatti v Western Australian Planning Commission [2010] WASCA 149

SIMMONDS J: (This judgment was delivered orally on 8 November 2010 and has been edited from the transcript.)

Introduction

This is an application to dissolve or vary an order I made at the time I made the order nisi…

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: [2010] WASC 328
Decision Date: 8 NOVEMBER 2010

CaseChat Overview and Summary

This case concerns an application for the dissolution or variation of a stay order in relation to a decision that is subject to an order nisi for review, which was made returnable in the Court of Appeal. The parties involved are the Western Australian Planning Commission and Commercial Properties. The dispute revolves around the appropriate test to apply after it has been determined that the judge of the General Division had jurisdiction to hear and determine the application. The court had to decide whether to grant dissolution or variation of the stay order.

The legal issues at hand were the appropriate test to apply after determining that the judge of the General Division had jurisdiction, and whether dissolution or variation of the stay order should be granted. The court considered the changed circumstances, fresh evidence, and the balance of convenience in reaching its decision. The court also examined the insistence upon the giving of an undertaking as a means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined.

In its reasoning, the court concluded that, on the changed circumstances and fresh evidence in respect of three of the four factors reviewed, the case for dissolving the stay was not sufficient. However, the case for varying the stay order as sought by Commercial Properties for the trustees to provide an acceptable undertaking as to damages in the amount of $330,000 had been sufficiently made. The court also considered further factors such as the unexplained delay in bringing the present application, the proximity of the hearing of the appeal, and the importance of the issues raised by the order nisi.

The final orders made by the court were that the stay order should be varied to require the trustees to provide an acceptable undertaking as to damages in the amount of $330,000. The stay order was not dissolved, but the terms were altered to reflect the changed circumstances and fresh evidence presented.

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

Further, I note, in the context of the award of an interlocutory injunction, from Air Express Ltd v Ansett Transport Industries Operations Pty Ltd [1981] HCA 75; (1981) 146 CLR 249, 311 (Gibbs J), which is commonly quoted in this context, such as in Civil Procedure in Western Australia [52.1.17]:The insistence upon the giving of an undertaking is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined. Senior counsel for Commercial Properties laid substantial emphasis upon this principle as applicable in the present context and it appears to me that it is, indeed, applicable in the present context. Of course with the only tangible assets of a person offering an undertaking held in trust it may be necessary for that person to establish that recourse to that property will be available to meet an order for costs: see Civil Procedure in Western Australia [52.1.18]. However, it was not suggested by senior counsel for Commercial Properties that an undertaking by the trustees would be inadequate unless there was such a showing. Indeed, senior counsel emphasised that there was no showing the trustees were, under the terms of their trust, unable to give the undertaking. In my view, on the changed circumstances represented by compliance with the conditions under the WAPC decision of November 2009, the refinancing of the project on the property and the valuation evidence as at 1 July 2010, the balance of convenience should continue to be assessed as in favour of the stay, but the balance should now be assessed as in favour of an undertaking to a greater extent than as at the date of making the order nisi. In sum, on the four factors I have reviewed for the purposes of the exercise of my discretion whether to vary or dissolve the stay order, I am of the view that, on the basis of changed circumstances and fresh evidence in respect of three of the four of them, the case for dissolving the stay is not sufficient. However, the case for varying the stay order as sought by Commercial Properties for the trustees to provide to Commercial Properties an acceptable undertaking as to damages in the amount of $330,000 has been sufficiently made. However, this is before reaching further points counsel for the trustees pressed on me. I turn to those further factors. Counsel for the trustees, as I understood his submissions, drew my attention to the following further factors as relevant to the determination, whether or not the interests of justice required me to dissolve or vary the stay order. Those factors were: the unexplained delay in Commercial Properties bringing the present application; the proximity of the hearing of the appeal; and the importance of the issues raised by the order nisi where imposing as a condition for granting a stay the giving of an undertaking would effectively mean the order would not or likely would not be made absolute.