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 in CIV 1574 of 2009. The order nisi was in terms that the respondent, the Western Australian Planning Commission (the WAPC) show cause before the Court of Appeal why a writ of certiorari should not be issued quashing a decision of the WAPC made in November 2009 (either on 3 or 4 November, as explained in my reasons for making the order nisi) granting approval of an application to subdivide land in Mundaring (the property) on certain conditions (the WAPC decision of November 2009).
The application for the approval of the WAPC had been made by Commercial Properties Pty Ltd (Commercial Properties) in respect of a project on the property to subdivide the property by survey strata plan (the project on the property). Commercial Properties seeks dissolution or variation of an order I made staying the WAPC decision of November 2009 (the present application).
The order I am referring to as the subject of the present application was that the order nisi should operate as a stay of the WAPC decision of November 2009, and the WAPC should not endorse its approval on the survey strata plan for subdivision pursuant to Planning and Development Act 2005 (WA) s 145, until the determination of the application on the return of the order nisi, or further order (the stay order). It may be observed that the stay order was not made subject to an undertaking by the applicants for the order nisi.
Those applicants are - and it is not in contest that they are ‑ persons holding their title as registered proprietors of a lot adjoining the property (the adjoining lot) as trustees under a trust relating to the use of the adjoining lot as a meditation centre. From this point I will call the applicants for the order nisi 'the trustees'.
My reasons for making the order nisi and other orders at that time, including the stay order, were given orally on the day the orders were made: see Re Western Australian Planning Commission; Ex parte Solomon [2010] WASC 192 (Re WAPC).
At the hearing of the present application on 5 November 2010 the trustees submitted the application was 'incompetent' as the order nisi was made returnable before the Court of Appeal and that, by virtue of the interaction of provisions of the Supreme Court Act 1935 (WA), Rules of the Supreme Court 1971 (WA) (RSC) and the Supreme Court (Court of Appeal) Rules 2005 (WA) (CAR), a single judge of the Court of Appeal had jurisdiction in relation to the stay order and an application like the present application, and that jurisdiction was exclusive of any jurisdiction that a judge of this court would have.
For reasons I gave on 5 November 2010 I concluded that I should not accede to that submission and that I had jurisdiction. I also stated at that time for the reasons I gave then that it was my view that a single judge of the Court of Appeal also would have jurisdiction in relation to an application of the present kind. Today, 8 November 2010, was set, following the further submissions made to me after that determination with respect to the merits of the present application, as the date upon which I indicated I would deliver the present judgment.
On the morning of 8 November 2010 counsel for the trustees gave notice to the court, Commercial Properties and WAPC that he would apply to reopen argument on the matter of jurisdiction on the basis that orders consequent on the determination in that regard had not been drawn up and that the determination involved misapprehension of facts and law. There was (he submitted) a matter calling for review and the interests of justice required a re-opening, and I was referred to Smith v New South Wales Bar Association (1992) 176 CLR 256, 265 and De L v Director of Community Services [1997] HCA 14; (1997) 190 CLR 207, 215.
Before commencing giving these reasons I had indicated why, although I granted leave to reopen, I determined that I should not change the determination that I had jurisdiction; and I also indicated, for the reasons I gave that short while ago, that I should exercise that jurisdiction.
In the present reasons I first describe the background to the present application before me in more detail before describing the law applicable to it and applying that law. The final section of these reasons is my conclusion and orders.

Background

The background to the making of the order nisi in respect of the WAPC decision of November 2009 is set out in Re WAPC. I repeat only so much of that background as is necessary to understand the present application.
The WAPC decision of November 2009 followed the quashing on 6 May 2009 by a decision of mine - see Re application for writ of certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116 (Re SAT) ‑ of a decision of the State Administrative Tribunal. That decision, made in November 2008 (the SAT decision of November 2008), was to allow an application by Commercial Properties for a review of a decision of the WAPC of March 2008 (the WAPC decision of March 2008) to refuse an application by Commercial Properties for approval of the subdivision of the property into 34 survey strata lots and common property. The SAT decision of November 2008 had been to grant its approval of the proposed subdivision on certain conditions. Following the quashing of the SAT decision of November 2008, SAT exercised its powers in s 31 of the State Administrative Tribunal Act 2004 (WA), inviting WAPC to reconsider the WAPC decision of March 2008. Following the invitation the WAPC changed its decision to produce the WAPC decision of November 2009.
By notice of originating motion dated 27 April 2010, the trustees applied for an order nisi to quash the WAPC decision of November 2009. The trustees' application also sought orders for a stay of that decision and that the order nisi be listed for hearing before a judge in chambers on the first available date more than six weeks after the making of the order nisi. On 11 June 2010 at the conclusion of hearings on 8 and 11 June 2010, I delivered orally my reasons for granting the application but also for having the order nisi made returnable before the Court of Appeal. The reasons were subsequently published as Re WAPC.
In Re WAPC I applied the test for making an order nisi which I considered to be that described in Cazaly Iron Pty Ltd v John Bowler MLA, Minister for Resources [2006] WASCA 282 [53] ‑ [55] (Buss JA). I applied it to the case for making the order nisi advanced for the trustees. That case was that the WAPC had made jurisdictional errors in the second or the fourth category of such error described in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181] (McLure J), which is frequently cited in this regard.
On the trustees' case the jurisdictional error was the failure of the WAPC to give certain applicable policies of the WAPC which had been incorporated into and formed part of State Planning Policy 1 (SPP 1), (which was given force and effect under the Planning and Development Act s 29(2)) proper weight in making the WAPC decision of November 2009. On that case the proper weight to be given those policies was as fundamental elements in the WAPC's decision making process.
On my application of the test in Cazaly Iron I concluded an arguable case had been made, both that the WAPC was required to give those policies fundamental weight, and that the WAPC had, in the WAPC decision of November 2009, failed to do so: see Re WAPC [35], [36] and [58]. In Re WAPC I stated that I would exercise my discretion to order a stay of the WAPC decision of November 2009, having regard to four factors that I drew from Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52 [19], [20] (Johnson J): see Re WAPC [59] and [88]. As will be seen, those four factors were the basis upon which the principal case of Commercial Properties before me was put on the present application.
The first factor was the prospects of success or otherwise on the return of the order nisi. The second factor was that prima facie the person against whom the stay is sought is entitled to the fruits of the decision obtained. The third factor was that the decision obtained was one obtained from a body with presumptive expertise in considering concerns of the kind that had agitated the applicants for the order nisi. The fourth factor was the balance of convenience: see Re WAPC [89] ‑ [91]. I will deal with these factors in detail when dealing with the case for the orders that Commercial Properties seeks by the present application shortly.
On my analysis of those factors in Re WAPC, I concluded that the stay order should be made. However, I also indicated I would make the stay order on liberty to apply to dissolve the stay on 24 hours' notice.
In Re WAPC I also stated I would make the order nisi returnable before the Court of Appeal and not before a judge in the General Division of the court, having regard to two factors. The first factor was the need for a court hearing the return of the order nisi to take account of a pending Court of Appeal decision, pending at that time, in a matter in which argument had been addressed to the Court of Appeal as to the correctness or otherwise of the reasoning in Re SAT, including its reasoning at [68] ‑ [76]. That reasoning had been heavily relied upon in the case of the trustees for the order nisi. However, I had indicated that that reasoning could not be straightforwardly applied to this case. That meant that the task of the court on the return of the order nisi, following the release of that Court of Appeal decision, would be to determine both the meaning of the decision and its application, if any, to the decision the court on the return of the order nisi was called upon to make: see Re WAPC [112], [113], read with [46], [54] and [92].
The second factor which led me to make the order nisi returnable before the Court of Appeal was that there would be important implications of the decision on the return of the order nisi for the alignment between the powers of the SAT on a review of decision like the WAPC decision of March 2008, or the WAPC decision of November 2009, and the powers of the SAT to make a decision on review, where such a decision was in respect of the 'intensely significant' issue, involving decision-making of the WAPC, subject to review by the SAT, of subdivisional matters under the Planning and Development Act s 135 and s 145: See Re WAPC [114], the source of the quotation.
Having regard to those two factors, it seemed to me to be highly likely, if the order nisi were made returnable before a single judge of the General Division of the court, and regardless of the result, that the matter would then be taken to the Court of Appeal. Accordingly, I made the order nisi returnable before the latter court.
I indicated that I expected that order nisi would be returned before the Court of Appeal as soon as possible after the release of the reasons in the pending decision in the Court of Appeal that I have referred to, although it was not clear to me, as I said in Re WAPC, that I could make an order for expedited hearing or similar before the Court of Appeal. At the same time, I also indicated there should be a general liberty to apply, the subject of a separate order from that in respect of the stay order, which I indicated I 'presume' would be to a judge of the Court of Appeal: see Re WAPC [114] ‑ [116]: the quote is from [116].
On 30 July 2010, the decision of the Court of Appeal in the case previously pending that I have referred to was handed down: see Zampatti v Western Australian Planning Commission [2010] WASCA 149 (Zampatti). I consider that decision in more detail below, so far as its relevance to the present application is concerned.
I turn then to the present application.

The present application

The present application was commenced by a notice of motion dated 27 October 2010. By that notice of motion, Commercial Properties applied for the dissolution of the stay order or, in the alternative, that, as a condition of the stay continuing, the trustees provide Commercial Properties with an acceptable undertaking as to damages in the amount of $330,000 within seven days of the order, and that the undertaking endure up and including the date upon which the Court of Appeal handed down its decision on the return of the order nisi.
Commercial Properties' application was made, I am satisfied, under the liberty to apply that I granted in respect of the stay order on 11 June 2010. That liberty to apply is in Order 8, which needs to be read with Order 7, the stay order. For convenience, I will set out in this judgment those two orders:
7.The Order Nisi operate as a stay of the Decision, to the extent that the Respondent [the WAPC] shall not endorse its approval on the survey-strata plan for the Subdivision pursuant to s.145 of the [Planning and Development Act] until determination of the application on return of the Order Nisi or further order.
8.Commercial Properties may on 24 hours' notice to the Applicants [the trustees] and the Respondent apply to dissolve or vary the stay ordered in paragraph 7.
I turn then to the applicable law.

The applicable law

Counsel for the trustees directed me to the law as stated in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 48 CLR 170, 178, where, in the judgment of Gibbs CJ and Aickin, Wilson and Brennan JJ, their Honours considered whether, otherwise than in the case of operative mistake at the time a party gave an undertaking, a court could release a party from an undertaking, at least without the consent of the other party.
In Adam P Brown Male Fashions, a party to an action for injunction and damages for alleged breaches of the Trade Practices Act 1974 (Cth) s 52 and s 53 had given an undertaking in lieu of an injunction, together with an undertaking as to damages. Their Honours said this (at 178):
But in our opinion a Court undoubtedly has such a power. Just as an interlocutory injunction continues 'until further order,' so must an interlocutory ordered based on an undertaking. The Court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust…Of course the changed circumstances must be established by evidence … (citations omitted)
Counsel for the trustees also laid considerable emphasis on a matter appearing in Re WAPC [85] which is common ground between the parties as a statement of the consequences of dissolution of the stay order. Paragraph 85 is a matter, so far as I was able to determine it, central to the submissions of counsel for the trustees, and reads as follows:
It is common ground that if the stay is not granted and the respondent endorses its approval under Planning and Development Act s 145 on the survey strata plan, after which the Registrar of Titles would be in a position to issue titles, and sale activity of the subdivided lots ensues, the position will be presented to a court at the return of the order nisi in which, in the exercise of its discretion in relation to the grant of that relief, it would have substantial reason to exercise the discretion against the grant of relief, notwithstanding that the order should otherwise be made absolute.
This would also be the consequence, it appears to be common ground, if the stay order were varied as in the alternative Commercial Properties seeks by the present application, if the trustees did not give the undertaking, a matter to which I return below.
The consequences described mean that the effect of a stay order without an undertaking was in the submission of counsel for the trustees substantive and not procedural. On that distinction I note Adam P Brown Male Fashions 176 ‑ 177, which is referred to in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [25] (Steytler P). President Steytler in that paragraph said this, of relevance to me:
However, even when orders of a substantive nature have been made after a contested interlocutory hearing, courts have been willing to set aside, vary or discharge them where the interests of justice require this (usually in cases of a material change of circumstances or the discovery of fresh evidence): Brimaud v Honeysett Instant Print Pty Ltd [(1988) 217 ALR 44] at 46 per McLelland J and Nominal Defendant v Manning (2000) 50 NSWLR 139 (in which there was a difference in approach in this respect as between Heydon JA and Foster AJA, on the one hand, and Mason P, on the other).
I also note from Albany Port Authority, in the judgment of the other member of the Court of Appeal in that case, Pullin JA, [74]:
I refer again to Manning and Christie [DA Christie Pty Ltd v Baker [1996] 2 VR 582]. Heydon JA in Manning said at [72]:
'… a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred to in Christie [supra] ‑ the risk of conflicting decisions, the unnecessary vexing of respondents, judge shopping and a diminution of certainty in the conduct by respondents of their affairs - and others ‑ damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily ‑ are evils which each court in its individual discretion will rightly strain to avoid.'

Senior counsel for Commercial Properties in fact conducted his case on the basis that he needed to show that dissolution or variation was required in the interests of justice on the basis of material change of circumstances or the discovery of fresh evidence, in the words used by President Steytler in Albany Port Authority [25]. Such an approach in my view meets the submission of counsel for the trustees that the present application should be dismissed as an attempt to re-argue the issue whether the stay without an undertaking as to damages should have been ordered in the first place and thus the present application was an abuse of process. On such a dismissal see Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27] - [28] (French CJ, Gummow, Hayne & Crennan JJ); Albany Port Authority [75] (Pullin JA).
I turn then to the matters senior counsel for Commercial Properties put to me, as well as other matters to which counsel for the trustees directed me.

Prospects of success

As I have indicated already, senior counsel's case was framed in terms of the four factors to which I had regard in making the stay order. The first factor was prospects of success.
In Re WAPC I said this as to this factor:
The prospects of success are not easy to evaluate in proceedings of the current kind even if they did, as they did, extend over some days with substantial argument. I have already indicated, however, that this is not a case of the straightforward application of Re SAT. The decision-makers are different, the statutory provisions are different, and the nature of the use of the policies in question is different.
Furthermore, the extent of the support for making the present order nisi absolute to be derived from Re SAT is under active consideration, it might be said, by the Court of Appeal ‑ not obviously in the context of the present application, but in ways which will have relevance to the present application [92] ‑ [93].
Zampatti, in my view, weakens the support for the trustees' case for the order nisi that they sought to derive from Re SAT. I am of that view because the only member of the court to consider the correctness of the reasoning in Re SAT made observations I shortly reach as to Re SAT [72], on which I understood counsel for the trustees to lay particular emphasis in relation to one of the policies of the WAPC: see Re WAPC [50].
As to Re SAT [72], in Zampatti Kenneth Martin J said, referring to the requirement in Planning and Development Act s 241(1)(a) for SAT to have 'due regard' to the matters there referred to, and after considering extrinsic materials on that provision, as well as Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41 ‑ 42 (Mason J's classic statement in this regard), at [137] this:
The extrinsic materials confirm that s 241(1)(a), correctly understood, does not carry any statutory indication as to a level of particular weight to be attached to SPPs, or for that matter, to any other factor which could qualify as a 'relevant planning consideration', in the overall decision-making process. A flexible weighing process in overall context, as was classically explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend above, is the applicable approach required for s 241(1), in my view. To the extent that any observations in Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [72], might be read to suggest a contrary evaluation approach is required by the decision-maker under s 241(1)(a) of the P&D Act 2005, I would respectfully disagree, based on the statutory analysis above, and applying Peko as the guiding rationale of legal principle.
I do, however, add that I found it not altogether easy to determine the force of the judgment of his Honour Kenneth Martin J when that judgment is considered with that of Pullin JA, with whom Buss JA agreed, on the effect for the purposes of judicial review of the identification within a policy of the WAPC incorporated into and forming part of SPP 1 of a matter as a fundamental element or similar in the decision-making process of the WAPC. Compare Zampatti [19] and [22] (Pullin JA) with [125] - [130] (Kenneth Martin J).
However, Zampatti in this respect concerned a matter in a policy of the WAPC which the policy itself described as 'the principal criterion': see [18] (Pullin JA), quoting from the policy. The judgment of Pullin JA does not, as I understand it, go to circumstances under which matters not similarly described in a policy of the WAPC might nonetheless be required to be weighed as a fundamental element in the WAPC's decision making process. At least two of the policy documents relied upon by the trustees in the present matter, at least arguably, are of that kind. See Metropolitan Rural Policy and Policy 3.4 of the WAPC as discussed in Re SAT [79] - [86]. Re SAT [72] is directed precisely to those circumstances.
Even taking the judgments of Pullin JA and Kenneth Martin J as divergent, it seems to me that the judgment of Kenneth Martin J at [137] deals with a matter, not addressed by the other members of the Court of Appeal, in a way which directly undercuts the support to be derived from Re SAT for the trustees' case for the order nisi. It follows, in my view, that, at least at present, the prospects of success on the order nisi must now be assessed as significantly lower since Zampatti than before it. The decision in Zampatti, of course, represents a new circumstance since the making of the stay order.
I turn now to the second factor.

Entitlement to the fruits of the decision

The second factor is entitlement to the fruits of decision. I refer to this factor in Re WAPC [94], in which the 'respondent' is a reference to the WAPC and the decisions referred to are the WAPC decision of March 2008, Re SAT, and the decision of the Court of Appeal in Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132. In Re WAPC [94] I said this:
Turning then to the second factor, the person entitled to the fruits of the November 2009 decision, Commercial Properties, has it seems to me over a lengthy series of decisions seen an extensive exploration of issues which are relevant, even if not all of the issues are relevant, or not relevant in precisely the same ways, to the November 2009 decision. They have seen that exploration in decisions of the respondent itself, a decision of the SAT, a decision of the Supreme Court General Division and a decision of the Court of Appeal. I list those decisions in a hierarchy, a hierarchy that is slightly misleading because of course the Court of Appeal was dealing with different issues in which it pronounced only on some aspects of the matters that might be of direct concern in the present application. The same might be said with rather less force of the decision of the SAT and in Re SAT.
I consider this factor makes relevant the period of time before the decision of the Court of Appeal on the return of the order nisi may be expected. The only evidence on that is in the supporting affidavit of Clive Raymond Hartz of 27 October 2010, which is that on the state of the proceedings as at the date of the affidavit, it was unlikely there would be a decision before 30 June 2011.
Counsel for the trustees informed the court that they would be prepared to consent to a request for an urgent appeal order, upon which, as counsel for the trustees explained this afternoon in relation to the jurisdictional reopening, the Court of Appeal would then be required to make a determination for the purposes of CAR O 45 and O 46.
However, it seems to me, on the evidence I have of delays thus far, that request, even if granted, would not likely bring the decision as early as the date that had been expected for the decision on the order nisi, expected as at the date of the stay order. At that date, I had stated in Re WAPC [115]:
… In any event, it would be my expectation that this order nisi would be returned before the Court of Appeal as soon as possible after the release of the reasons in the Zampatti decision.
The only estimate as to that date I had at that time was in the affidavit of Clive Raymond Hartz, sworn 4 June 2010, in opposition to the grant of the order nisi. That estimate was one of three to six months between the grant of the order nisi and the hearing of the application by the Court of Appeal. I note that the six-month anniversary of the making of the order nisi is shortly to come. In my view, on the present factor, the case against stay, or at least stay without an undertaking, is stronger at present than at the date of the making of the stay order.
I turn then to the next factor, specialised decision maker.

Specialised decision-maker

I refer to this factor in Re WAPC [99] ‑ [100] as follows:
With respect to the further factor of whether there was a specialised decision maker which had considered the concerns which agitated the applicants, it seems to me reasonably clear from the November 2009 decision, viewed against the backdrop of the previous decisions of the respondent, including most notably the March 2008 decision, that the respondent is such a decision maker that did consider concerns of that kind.
The concerns undoubtedly relate to ones of amenity as well as of proper application of the respondent's own policies. It seems to me to be rather difficult to argue that the respondent is not expert in matters of both kinds.
I did not understand senior counsel for Commercial Properties to submit there was any material change of circumstances or discovery of fresh circumstances in respect of this factor.
I turn to the fourth factor, balance of convenience.

Balance of convenience

I refer to this factor in Re WAPC [101] ‑ [105]:
That brings me then finally to the balance of convenience. The calculation here is a difficult one. I have already referred to the calculation on the applicants' side, that they face the real prospect of fruitless proceedings if the stay is not granted.
I also accept, as the applicants strenuously put to me, that Commercial Properties has not shown, beyond strong argument, that it will necessarily be in a position to meet the conditions for avoiding a call on the bank finance to which Commercial Properties is subject within the three to four-week time period referred to in the first Hartz affidavit. I refer in this case to condition 10 in the November 2009 decision on which the applicants rested considerable emphasis.
If, however, it had been clear beyond any strong argument that the condition would be met and therefore the only thing that would stand between the Commercial Properties and avoiding a call on the finance of the bank was a stay, then the calculation of balance of convenience would have been a very difficult one indeed.
If there were a call on the finance as a result of an inability to make title the result of a stay, there are in the first Hartz affidavit, read with the second, indications of losses of not insignificant size which, however, are properly qualified as contingencies. Nonetheless it seems to me that those contingencies are sufficiently identified so as to count as real prejudice that should be borne in mind in making the determination I am called upon to make.
Furthermore, if a stay is ordered and it brings about the call, which in turn causes the risks referred to as contingencies earlier in my reasons to mature, the losses flowing from that, it is common ground, would be non-compensable. There is, I was informed, not only at the first hearing but also at the second, no question of the applicants being able to provide an undertaking in this case. It is clear on the authorities that an adequate undertaking is relevant to the exercise of the discretion whether or not to order a stay: see Coogee Coastal Action [Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264] [137].
The reference to not necessarily being in a position to meet the conditions for avoiding a call on bank finance by reference to condition 10 in the WAPC decision of November 2009 was to a condition in it which, on the evidence in the affidavit of Mr Hartz, in opposition to the grant of the order nisi, sworn 10 June 2010, had been 'deemed satisfied', but in respect of which no clearance letter from the Shire of Mundaring so stating had as at that date been issued.
The earlier affidavit of Mr Hartz of 4 June 2010 had stated that, unless titles to the property issued within three to four weeks ‑ which it was accepted required all conditions to be certified by the WAPC as having been met ‑ the bank facility would be repayable. If the facility became repayable, and unless Commercial Properties could refinance, it was 'at least possible' that the property might be required to be sold to make repayment with a 'potential' loss for Commercial Properties of '$9 million', before calculation of the loss represented by the holding costs of finance to provide what would otherwise have been provided through profits from a sale of titles from the property towards the costs of other projects of Commercial Properties.
The Hartz affidavit of 27 October 2010 states that by letter dated 16 August 2010, the WAPC had confirmed to Commercial Properties that it was satisfied all conditions of subdivision as specified in the WAPC decision of November 2009 had been met, and that it was precluded by the stay order from endorsing the deposited plan for the property, although it added that it had not yet received the certified plan from Landgate.
The affidavit further states that by letter dated 27 August 2010 from surveyors acting for Commercial Properties, those surveyors stated that the certified plan had been sent to WAPC for 'final endorsement'. The Hartz affidavit of 27 October 2010 also states that Commercial Properties has been able to re-finance the project to avoid a call on the original bank financing.
However, Commercial Properties' monthly holding costs on the property, including, but not limited to, the cost of the new financing, was $14,892, while its cost of finance to provide what otherwise would have been provided through profits from the sale of titles of the property towards another project, an acquisition for which was made on 6 August 2010, was a monthly interest cost of $50,000, plus facility establishment costs, including valuation fees, totalling $103,100.
The affidavit also refers to the likelihood Commercial Properties would wish to acquire further projects towards which the proceeds of sale of titles to the property would have been applied on completion of a due diligence process, 'which usually takes 18 months'.
Leaving aside what is, in my view, insufficiently specified for my purposes, being the finance costs for such further projects which proceeds of the sale of titles to the property would have avoided, it may be seen that the total of the amounts referred to in Hartz's affidavit of 27 October 2010 would be substantially less than the $9 million referred to in the Hartz's affidavit of 4 June 2010, and indeed would be about the amount of $330,000 for which Commercial Properties seeks an undertaking if the stay order is not dissolved. The Hartz affidavit of 27 October 2010 also attaches an unimproved value report from Landgate, showing unimproved values of the adjoining lot as at 1 July 2008, of $600,000; 1 July 2009, of $550,000; and 1 July 2010, of $520,000 ‑ while the certificate of title to the adjoining lot showed no registered encumbrances.
Senior counsel for Commercial Properties reminded me that at the hearing of the application for the order nisi, counsel for the trustees had stated that the trust was a charitable one and the trust did not have assets, 'to risk on the likes of Mr Hartz's damages' (8 June 2010, ts 114 ‑ 115).
I took senior counsel to be submitting that the only matter put to the court at that time as to the ability of the trustees to provide an undertaking was that the trust lacked assets sufficient to cover damages in the order of the only amount before me then, the $9 million previously referred to. Senior counsel's submission, as I understood it, was that, on the changed circumstances represented by Commercial Properties' refinancing of the project on the property, and the valuation evidence for the adjoining lot as at the date after the hearings, confirming valuations for dates before those hearings, the trust was shown to have assets sufficient for the provision of an adequate undertaking as to damages in the amount sought. As noted in Re WAPC [105], an adequate undertaking is relevant to the exercise of discretion whether or not to order stay.
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.

Overall

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.

Further factors relevant to my determination of the application

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.
Further, as a separate point, counsel reminded me there was no memorandum of conferral or other evidence of compliance with RSC O 59 r 9, on the basis of which no order should be made on the present application as O 59 r 9(1) provides. I deal with those submissions in that order.

Turning to unexplained delay, it seems to me that unexplained delay in bringing an application of the present kind may in suitable circumstances go to show that the interests of justice do not require dissolution or variation of an order of the kind sought here. I consider that there is delay in bringing the application here for which no explanation was provided.
That delay was the period between the date as at which on the Hartz affidavit of 27 October 2010 it was deposed that a deposited plan had been sent to the WAPC for an endorsement following the WAPC's satisfaction as to compliance with all the conditions in the WAPC decision of November 2009 ‑ that date was 27 August 2010 - and the date of Commercial Properties' application ‑ that date was 4 October 2010.
It is not apparent from the affidavit why a delay of just over one month supervened. However, the urgency represented by the possible call under the original financing of Commercial Properties project on the property appears to have been met by refinancing, the date of which was not apparent from the Hartz affidavit of 27 October 2010. Nor was any prejudice to the trustees from that delay made apparent to me.
In the circumstances I consider that, while the delay was unexplained, that delay did not go to show that the interests of justice did not require orders to be made in the terms Commercial Properties had applied for in respect of the variation.
I turn to the proximity of the hearing of the appeal. I have previously referred to evidence that I have as to the proximity of the decision on the appeal. On that evidence it is not evident to me that a hearing is not sufficiently proximate as to go to show that the interests of justice do not require orders to be made in terms of the present application. I therefore can leave aside that factor.
The importance of the issues under the order nisi is a further factor referred to by counsel for the trustees. I understood the submissions of counsel for the trustees to be directed to what I described in Re WAPC as the 'intensely significant issue of the decision-making of [the WAPC], subject to review by [the SAT], in respect of subdivision matters under the Planning and Development Act s 135 and s 145' to which I have previously referred [114].
In my view, that factors weighs strongly in favour of the stay as counsel for the trustees submits. However, that factor does not necessarily outweigh the combined effect for the purposes of making the present determination as to the variation of all of the other factors I have described as weighing in favour of that variation.
In this regard I note what I said in Re WAPC [106] after I had weighed the four factors I had considered in relation to the making of the stay order:
Weighing all of this is a difficult matter. It seems to me that it is not a case where the failure to offer the undertaking is necessarily determinative. It is, however, a matter I have had to bear in mind. On balance, I would grant the stay and I would grant it without an undertaking.
I consider that, in view of the changed circumstances and fresh evidence I have referred to, the significance which counsel for the trustees presses on me does not prevent me finding the interests of justice require the making of the variation of the stay order for which Commercial Properties contends.
That takes me to the final matter referred to by counsel for the trustees, the lack of conferral under RSC O 59 r 9. It was not in contest that there had been no conferral in relation to the present application within O 59 r 9.
Senior counsel for Commercial Properties, as I understood him, submitted such lack of conferral should not prevent the court hearing and determining the present application, on the basis that the matters of dissolution of the stay order, and the trustees' refusal to give an undertaking, by reference to an application of the kind represented by the present application on notice insufficient to prevent conferral were contemplated by the terms of the liberty to apply on 24 hours' notice in order 8 made on 11 June 2010, previously quoted.
If the submission to me was that an order for liberty to apply of the kind I have described dispensed with the obligation to confer under O 59 r 9, I would not accept that submission. It could not be contended, it seems to me, that there was urgency here which called for a notice period as short as that which the liberty provided for. That period related to the possibility of a call under the original financing of the project on the property. However, that call did not fall in.
However, it seems to me that this is a case in which waiver of the conferral is appropriate, and I say this notwithstanding that no application for waiver accompanied by a form 109 was made. See on the requirement for a form 109 Civil Procedure in Western Australia [59.9.2]. I consider that, in view of the position taken by the trustees with respect to the stay and any undertaking at the hearings of 8 and 11 June 2010, as well as the hearing before me on 5 November 2010 and again today, the irregularity represented by the lack of application for a waiver of compliance accompanied by form 109 is not such as to cause me to set aside the present application.
True it is, as counsel for the trustees pressed on me, that had there been an attempted conferral the trustees would have offered to consent to an urgent hearing order before the Court of Appeal, an offer which, as I understood it, continued to stand. However, it was not apparent to me, as I have already explained, that this would have sufficiently addressed the case for the variation of the stay order Commercial Properties sought.

Conclusion and orders

I have concluded that I should make orders in terms of the variation of the stay order sought by Commercial Properties. I will hear from the parties as to any other orders I should make.