REID and WESTERN AUSTRALIAN PLANNING COMMISSION
[2017] WASAT 107
•11 AUGUST 2017
REID and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 107
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 107 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:355/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) | 11/08/17 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Matter to be heard as hearing de novo Orders programming matter to final hearing to be made | ||
| B | |||
| PDF Version |
| Parties: | LANCE ROBERT REID WAYNE PETER REID WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Matter remitted to Tribunal from Supreme Court following appeal Matter remitted to a differently constituted Tribunal Type of hearing before differently constituted Tribunal Whether differently constituted Tribunal should conduct hearing de novo |
Legislation: | Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 27, s 31(1), s 31(3), s 32, s 105 Victorian Civil and Administrative Tribunal Act 1998(Vic), s 148(7), s 148(8) |
Case References: | Reid and Western Australian Planning Commission [2015] WASAT 35 Reid v Western Australian Planning Commission [2015] WASC 293 Reid v Western Australian Planning Commission [2016] WASCA 181 Seventh Day Adventist Ltd v Casey CC [2012] VCAT 513 Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324 (3 August 2012) |
Orders | 1. The reconsideration of the matter by differently constituted Tribunal is to be by way of hearing de novo.,2. The matter is to be listed for further directions to allow programming orders to be made to final hearing. |
Summary | Lance Robert Reid and Wayne Peter Reid applied to subdivide Lot 5 Harvey Road, Warrenup into four lots. On 29 August 2013 the Western Australian Planning Commission refused that application and on 27 September 2013 the applicants applied to the State Administrative Tribunal for a review of that decision.,Following mediation and an invitation to reconsider its decision the Western Australian Planning Commission issued an approval for a two lot subdivision subject to conditions on 2 September 2014. ,The applicants contested the conditions attached to the approval and the matter was heard by the Tribunal on 10 December 2014 following which the application was dismissed.,Lance and Wayne Reid then appealed that decision to the Supreme Court where the Tribunal's decision was upheld at the first instance but was later set aside by the Court of Appeal.,The Court of Appeal then remitted the matter to this Tribunal differently constituted, to be reconsidered. ,The parties could not agree on what form that reconsideration should take and whether fresh evidence should be permitted in the course of any reconsideration.,Following written submissions by the parties the Tribunal determined that the reconsideration to be heard by a differently constituted Tribunal was a hearing de novo and the parties were entitled to call fresh evidence if they so wished and the matter was listed for directions for programming to final hearing. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : REID and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 107 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 11 AUGUST 2017 FILE NO/S : DR 355 of 2013 BETWEEN : LANCE ROBERT REID
- WAYNE PETER REID
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Matter remitted to Tribunal from Supreme Court following appeal - Matter remitted to a differently constituted Tribunal - Type of hearing before differently constituted Tribunal - Whether differently constituted Tribunal should conduct hearing de novo
Legislation:
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 31(1), s 31(3), s 32, s 105
Victorian Civil and Administrative Tribunal Act 1998(Vic), s 148(7), s 148(8)
Result:
Matter to be heard as hearing de novo
Orders programming matter to final hearing to be made
Summary of Tribunal's decision:
Lance Robert Reid and Wayne Peter Reid applied to subdivide Lot 5 Harvey Road, Warrenup into four lots. On 29 August 2013 the Western Australian Planning Commission refused that application and on 27 September 2013 the applicants applied to the State Administrative Tribunal for a review of that decision.
Following mediation and an invitation to reconsider its decision the Western Australian Planning Commission issued an approval for a two lot subdivision subject to conditions on 2 September 2014.
The applicants contested the conditions attached to the approval and the matter was heard by the Tribunal on 10 December 2014 following which the application was dismissed.
Lance and Wayne Reid then appealed that decision to the Supreme Court where the Tribunal's decision was upheld at the first instance but was later set aside by the Court of Appeal.
The Court of Appeal then remitted the matter to this Tribunal differently constituted, to be reconsidered.
The parties could not agree on what form that reconsideration should take and whether fresh evidence should be permitted in the course of any reconsideration.
Following written submissions by the parties the Tribunal determined that the reconsideration to be heard by a differently constituted Tribunal was a hearing de novo and the parties were entitled to call fresh evidence if they so wished and the matter was listed for directions for programming to final hearing.
Category: B
Representation:
Counsel:
Applicants : Ms L Rowley
Respondent : Dr S Wiley
Solicitors:
Applicants : Rowley Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Reid and Western Australian Planning Commission [2015] WASAT 35
Reid v Western Australian Planning Commission [2015] WASC 293
Reid v Western Australian Planning Commission [2016] WASCA 181
Seventh Day Adventist Ltd v Casey CC [2012] VCAT 513
Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324 (3 August 2012)
Background
1 Lance Robert Reid and Wayne Peter Reid (applicants) applied to subdivide Lot 5 Harvey Road, Warrenup (subject land) into four lots.
2 On 29 August 2013 that application was refused and on 27 September 2013 the applicants applied to the Tribunal for a review of that decision.
3 Various programming orders were made in the Tribunal and the matter was due to go to final hearing on 30 and 31 July 2014. However, on 26 June 2013 orders were made vacating that final hearing and listing the matter for mediation on 30 July 2014.
4 Following that mediation by order of 30 July 2014 the Tribunal ordered that pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the respondent is invited to reconsider its decision at its meeting on 9 September 2014 and the proceeding adjourned to a further directions hearing on 12 September 2014.
5 By a decision dated 2 September 2014 the respondent issued an approval subject to conditions stating:
Pursuant to section 31 of the State Administrative Tribunal Act 2004, the West Australian Planning Commission has reconsidered its decision dated 29 August 2013 to refuse the application (WAPC reference: 146472) (DR 355 2013), and has resolved to set aside its decision and approve the application in accordance with the attached revised plan dated 12 August 2014 subject to the following conditions and advice.
6 Those conditions and advice notes were then set out over the following two pages of the respondent's approval.
7 Although an approval had been issued the matter still came on for directions before the Tribunal on 12 September 2014 where it is clear from order 1 made on that date that the applicants wished to contest the conditions attached to the approval. That order stated:
1. By 26 September 2014 the applicant is to file and serve a statement of grounds of review in relation to the conditions it disputes.
8 Further programming orders were then made by the Tribunal and the matter proceeded to a final hearing on 9 December 2014.
9 At that hearing the applicants called no evidence and the respondent called three witnesses (Deon Utber and Lei Zhang from the Department of Parks and Wildlife and Alexander Petrovski from the Department of Planning). Only Mr Petrovski was required to oral evidence.
10 Pursuant to s 31(3) of the SAT Act it is clear that it was the respondent's decision of 2 September 2014 which was the decision under review and not the respondent's earlier decision of 29 August 2013.
11 The matter was determined on 10 December 2014 with an ex tempore decision being delivered by the Tribunal and the application for review was dismissed. The reasons for decision were published on 31 March 2015 as: Reid and Western Australian Planning Commission [2015] WASAT 35.
12 The applicants appealed the Tribunal's decision which appeal was dismissed at first instance by Chaney J in: Reid v Western Australian Planning Commission [2015] WASC 293.
13 The applicants then appealed that to the Court of Appeal which appeal was successful and the matter remitted to this Tribunal: Reid v Western Australian Planning Commission [2016] WASCA 181. It is that remitted matter that is now before this Tribunal.
14 In its reasons for decision under the heading 'Disposition of the Appeal' the Court of Appeal stated at [46]:
The Tribunal's error of law had the consequence that the appellants were, in effect, denied the review to which they were entitled. It follows that substantial injustice would be occasioned if the decision of the Tribunal were not corrected. Accordingly, this court should allow the appeal from the judge at first instance and set aside his decision dismissing the appellants' application for leave to appeal, and instead make orders granting leave to appeal, allowing the appeal, and setting aside the decision of the Tribunal.
15 And at [49] further stated:
Accordingly, the proper course to be taken is to remit the matter to the Tribunal differently constituted for reconsideration in accordance with these reasons. Given the course taken by the Tribunal in this case, it is appropriate to emphasise that the course of that reconsideration will require the Tribunal not only to make the findings of fact necessary to ascertain whether the conditions imposed by the Commission can be lawfully imposed, but also to itself consider and produce the correct and preferable decision with respect to the nature and extent of the conditions to be imposed upon the subdivision of the land. I express that view because the reasons given by the Tribunal suggest that it considered the ambit of its review to be limited to the lawfulness of the conditions imposed by the Commission. While that approach might have responded to the nature of the case presented to the Tribunal, the stance adopted by an applicant in any particular case cannot detract from the Tribunal's overriding obligation to 'produce the correct and preferable decision' which must inevitably require a review of the decision on its merits.
Issue for determination
16 On 16 December 2016 the remitted matter came on for directions when there was disagreement between the parties as to what form the remitted hearing should take before this Tribunal.
17 The respondent made submissions seeking an opportunity to adduce further evidence in any reconsideration. The applicants objected to such a course of action and contended that no further evidence should or could be admitted and that the matter should be reconsidered only on the evidence already before the Tribunal on the previous occasion.
18 As stated by the applicants at paragraph 12 of its written submissions:
The issue which now arises for determination between the parties is whether, on that reconsideration, fresh evidence should be permitted or whether, as the applicants' submit, the reconsideration should take place on the evidence before the Tribunal at first instance.
(Tribunal's emphasis)
19 That is now the issue the Tribunal must decide.
Applicants' submissions
20 In support of their contention that the reconsideration should take place on the basis of the evidence before the Tribunal at first instance, the applicants referred to various portions of the decision of the Court of Appeal and at paragraph 17 of their submissions stated:
The tenor of the Decision, and the repetition of the single complaint in it that the Tribunal failed to make the appropriate findings of fact to support nexus between the approval and the conditions, makes clear that the Court of Appeal did not intend to reopen the matter de novo. The plain intention was for the Tribunal to address a narrowly confined issue for the reasons which follow.
21 At paragraph 30 under the heading 'Analysis' the applicant further stated:
Taking all of the foregoing into account, the following conclusions are relevant:
30.1 the central recurring issue is the failure of the Tribunal to make any findings of fact, directed to nexus, based on the evidence before the Tribunal
30.2 all of the quoted paragraphs of the Decision speak exclusively of the evidence before the Tribunal and there is no reference to the need for additional or supplementary evidence
30.3 in fact there is not the slightest hint of a suggestion that the evidence was incomplete or inadequate or that any witness made any error or omission or misled the Tribunal in any way
30.4 no ground of appeal and, most relevantly, no notice of contention complained of any evidential issue: both parties appeared content with Member McNab's statement at [30] of the SAT Decision that it is broadly correct that from a practical perspective there will be no material changes on the ground.
30.5 the significantly central finding of the Court of Appeal is that, having heard the evidence, the Tribunal failed to make any findings of fact on it
30.6 in light of that omission and the Respondent's clear submission that the evidence before the Tribunal was capable of yielding those findings of fact, that task was remitted back to the Tribunal by the Court of Appeal to finish, in a surfeit of caution
30.7 having made that submission to the Court of Appeal which was highly significant in its decision to remit the matter back to the Tribunal, the Respondent should not now be allowed to resile from it and to adduce any further or additional evidence
30.8 to do otherwise may constitute an abuse of process[.]
Respondent's submissions
22 Under the heading 'The purpose of the Tribunal's review' at paragraph 16 19 the respondent stated:
16 In reconsidering the matter, the Tribunal is to, again, make the correct and preferable decision: s.27(2) SAT Act.
17. The Tribunal's review is a hearing de novo. Section 27(1) of the SAT Act provides:
The review of a reviewable decision is to e by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
18. The reviewable decision (being the decision of the Respondent to conditionally approve a two lot subdivision) was made on 2 September 2014. That is nearly 2.5 years ago.
19. The review is to be the correct and preferable decision at the time the review decision is made: s.27(2) SAT Act.
23 The respondent then submitted that in the time since the matter was determined by the respondent on 2 September 2014 the applicable planning framework had changed significantly and that fresh evidence was required. At paragraphs 20 25 they stated:
The applicable planning framework
20. Since 2 September 2014 the planning framework as it applies to Lot 5 has changed significantly.
21. Lot 5 is zoned 'General Agriculture'. Since making the reviewable decision, the Respondent has updated State Planning Policy 2.5 Rural Planning (SPP 2.5) and also Development Control Policy 3.4 (DC 3.4) in December 2016. SPP 2.5 and DC 3.4 are the Respondent's two primary policies which focus on the protection of agricultural and rural land.
22. Likewise, in May 2016 the Respondent adopted and released the Lower Great Southern Strategy 2016 (the LGSS). The LGSS is a document to assist and guide land use decision making in the Great Southern Region. The LGSS has sections which deal with Agricultural and Environmental issues and discusses the subdivision of rural land.
23. The Respondent has also advertised draft State Planning Policy No 1 (Draft SPP 1) which incorporates the LGSS. Draft SPP 1 is also a seriously entertained planning proposal that now needs to be considered by the Tribunal: Nicholls v WAPC (2005) 149 LGERA 117.
24. Perhaps most significantly, in October 2015 the Respondent released a comprehensive new Bushfire Policy Framework. This includes the (new) State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7) together with the Guidelines for Planning in Bushfire Prone Area (Guidelines), a Map of Bushfire Prone Areas for Western Australia (MBPA) as well as provisions which form part of the Planning and Development (Local Planning Scheme) Regulations 2015.
25. Lot 5 is shown on the MBPA is being within a bushfire prone area.
- At paragraphs 35 40 the respondent further stated:
Fresh evidence is required
35. As has been explained, SPP 2.5 and DC 3.4, the two most relevant Respondent policies relating to the planning, management and protection of rural and agricultural land, have been amended and updated since September 2014.
36. Likewise, the Respondent has prepared the LGSS which also informs the exercise of discretion and the conditions that should be imposed.
37. As stated, the Bushfire Policy Framework is a significant policy addition which responds to a number of recent catastrophic fire events in Western Australia (and Australia generally) in recent years.
38. Together these policies inform the question of whether:
(a) the proposed subdivision should be supported in the exercise of discretion;
and
(b) the conditions that should be imposed if an approval is granted.
39. Lot 5 is identified as being prone to bushfire. In the recent decision of Rigg and WAPC [2017] WASAT 19 the Tribunal dismissed an application for review because a subdivision would result in the intensification of land use in an area with a known (and extreme) bushfire risk which was found to be contrary to the Bushfire Policy Framework. Similar considerations are likely to apply to Lot 5. The built form potential across two lots is more than is currently available. The subdivision would be an intensification of land use. The actual bushfire risk for Lot 5 needs to be evaluated and considered. That is a matter of evidence.
40. In order to satisfy the requirements of s.27 of the SAT Act, the Tribunal needs the benefit of fresh expert evidence on the application of the planning framework as it currently exists in order to be able to make a decision as to whether the subdivision of Lot 5 should be supported and if so, what conditions ought to be imposed.
…
8. Whilst s27(1) of the SAT Act provides that a review of a reviewable decision is to be a hearing de novo, the language of that provision makes clear that the context is only in dealing with a review of a decision of an original decision maker and not, as in this instance, a specifically redirected matter from the Court of Appeal. That subsection has no application in the present circumstances.
…
13. Paragraphs [20-28] of the Respondent's submissions indicate its continuing fixation with the application of its own policies; the very issue which the Court of Appeal criticised the Tribunal for taking into account over and above the actual facts which may or may not ground any nexus with the imposed conditions.
14. It is indisputable that policies rarely stand still for long but the issue is not what facts or evidence link the policies to the requirement for a condition but the actual facts or evidence which form the nexus for it. The Respondents' witnesses were given ample opportunity to answer that question and it was fairly put to them. In the Respondent's own submission to the Court of Appeal, that nexus may be found in the evidence which was before the Tribunal.
Consideration
25 Section 105(1) to 105(8) of the SAT Act under the heading 'Appeal from Tribunal's decision' sets out what and how matters may be appealed to the Supreme Court. Subsections 9 and 10 then set out how the Supreme Court may deal with the matter having made its decision and states:
(9) The court dealing with the appeal may
(a) affirm, vary, or set aside the decision of the Tribunal; or
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10) If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
26 As is evident from the Court of Appeal's reasons set out earlier clear directions were given in the present case at [49] as was required by s 105(10) of the SAT Act, as to how the Tribunal is to be constituted in any reconsideration when they stated 'Accordingly, the proper course to be taken is to remit the matter to the Tribunal "differently" constituted for reconsideration in accordance with these reasons'. (Tribunal emphasis)
27 The other relevant portion of s 105 of the SAT Act for the purposes of this determination is s 105(9)(c) which states: 'The court dealing with the appeal may (c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate'. (Tribunal emphasis)
28 In the present case the Court did not give any specific direction to the Tribunal as to whether the reconsideration should be 'with or without hearing of further evidence' and it this, that is the principal issue of difference between the parties.
29 The respondent submitted that in the absence of such an order it is for the Tribunal to determine whether there will be fresh evidence.
30 The applicant on the other hand referring to [49] of the reasons of the Court of Appeal stated that it 'certainly cannot be said to be reopening the matter de novo'.
31 Further at paragraph 30.2 of its submissions the applicants stated:
all of the quoted paragraphs of the Decision speak exclusively of the evidence before the Tribunal and there is no reference to the need for additional or supplementary evidence.
32 Although s 105(9) and s 105(10) of the SAT Act have not previously to the Tribunal's knowledge, been judicially considered by the Supreme Court, s 148(7) and s 148(8) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) which are essentially in the same terms have been considered on a number of occasions.
33 In Seventh Day Adventist Ltd v Casey CC [2012] VCAT 513 (26 April 2012) in dealing with the scope of the matters that Tribunal may consider upon remittal of a proceeding from the Victorian Supreme Court the Deputy President of the Victorian Civil and Administrative Tribunal (VCAT) stated at [37 [39]:
37. The nature of the application before the Tribunal is to review the decision of the responsible authority to granat a permit in respect of permit application P406/08. Once the decision of the Tribunal to grant a permit was set aside, in the absence of some express limitation, it is for the Tribunal rehearing the matter to determine all questions of fact and law relevant to that application for review.
38. In Minister for Immigration and Multicultural Affairs v Wang the High Court held that on remittal, the Tribunal was required to carry out its task afresh and make whatever findings of fact were appropriate at the time of its decision.
39. A similar finding was made in John W Blackman v Commissioner of Taxation where the Federal Court said:
[13] … The Tribunal stands in the place of the original decision maker, to make the 'correct or preferable decision' on the material before the Tribunal. See Drake v. Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J. The Tribunal has the responsibility of ascertaining the facts necessary for the making of the decision. By s. 33(1)(c) of the Administrative Appeals Tribunal Act 1976, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
[14] The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s. 44 of the Administrative Appeals Tribunal Act 1975. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned senior member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon a case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts.
52. In my view, the proposition that the Tribunal will integrate 'preserved' findings from the first Tribunal hearing with its own findings on noise impacts and that the Tribunal will be picking up where it previously left off (minus the legal error), misconceives the effect of the remittal order. It is predicated on the remittal order altering the jurisdiction of the Tribunal, which cannot be the case. To the contrary, the character of the Tribunal's jurisdiction informs the nature and scope of the remitted hearing and the remittal order must be construed by reference to the statutory power to make such an order and the statutory jurisdiction conferred on the Tribunal.
…
54. By the remittal order, the order of the Tribunal was set aside as contemplated by s 148(7)(a). That means that the individual orders which in combination disposed of the proceeding have been set aside. The Tribunal's decision has been quashed and no part of it has survived[.]
55. It follows that the jurisdiction of the Tribunal invoked by the appellant on 12 August 2009 when it made an application for the Tribunal to review the Council's decision to refuse a permit remains unexercised. The Tribunal is obliged to exercise its review jurisdiction afresh[.]
56. Nothing in the remittal order changes the nature of the review proceeding or the decision that the Tribunal is required to make under he P&E Act[.]
…
59. I reject the submission that the manner in which s 148(7)(c) of the Act permits a limited remitter means that the rehearing of a matter on remittal, in contrast to an application for review de novo, is 'inextricably associated with the matter as originally decided'. Although the proceeding that is remitted is not a new and different proceeding, it involves the Tribunal exercising its jurisdiction afresh. Because the Tribunal's order was set aside, there is no 'original decision' and the task of the Tribunal cannot be described as 'a reconsideration of the decision made in the same proceeding'. There has been no binding determination and there are no surviving findings of fact supporting a binding determination. The Tribunal can only exercise the jurisdiction that has been conferred on it by the VCAT Act and the P&E Act, and the remittal order must be construed having regard to that constraint.
35 Further, in dealing with the issue of preserved findings His Honour referred to findings of the High Court and stated at [65]:
65. In Minister for Immigration and Multicultural Affairs v Wang, [24] the High Court considered an order made by the Full Court of the Federal Court remitting a matter to the Refugee Review Tribunal 'as previously constituted' in an attempt to preserve findings made by that tribunal that were thought to be favourable to the applicant for review. Chief Justice Gleeson held that orders setting aside a decision and remitting the matter to be determined according the law meant that all questions of fact and law relevant to the claim before the tribunal (in that case, the Refugee Review Tribunal) had to be determined again.[25] Justice McHugh noted that the tribunal was not bound to make the same findings that it had made on the first occasion [26] and Gummow and Hayne JJ held that on remittal, the tribunal was required to carry out its task afresh and to make whatever findings of fact were appropriate at the time of its decision[.]
36 And at [68] further stated:
68. … Where the order of the Tribunal has been set aside and it is directed to hear and determine a proceeding again, there is no capacity for the Tribunal to 'pick up' where it left off or for its factual findings to be preserved.
37 This Tribunal agrees with and adopts all of that reasoning.
38 Although s 105(10) of the SAT Act in respect of how the Tribunal should be reconstituted on any reconsideration is prescriptive by the use of the words 'is to give directions', s 105(9) is not so prescriptive and allows (but does not require) the Supreme Court to direct that further evidence be permitted or not permitted.
39 There was clearly in the Tribunal's view no direction from the Court of Appeal in its reasons in the present case as to whether any reconsideration was to be 'with or without the hearing of further evidence' as there could have been under s 105(9)(c) of the SAT Act. The reconsideration is therefore in the Tribunal's view to be heard as a hearing de novo without restrictions by a differently constituted tribunal.
40 When one turns to the relevant provisions of the SAT Act as to what that requires, s 27 under heading 'Nature of review proceedings' states:
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
41 Furthermore, s 32 of the SAT Act dealing with the practices and procedure before the Tribunal states:
…
(4) The Tribunal may inform itself on any matter as it sees fit.
(5) To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines.
(6) The Tribunal is to take measures that are reasonably practicable
…
(c) to ensure that the parties have the opportunity in the proceeding
(i) to call or give evidence; and
(ii) to examine, crossexamine or reexamine witnesses; and
(iii) to be heard or otherwise have their submissions considered.
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding; and
(b) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument;
43 Indeed, if there was any doubt in respect of that issue it is entirely dissipated in the Tribunal's view by the Court of Appeal's own reasons in remitting the matter back to this Tribunal when it stated at [48]:
However, as I indicated at the commencement of these reasons, it is important that the court not usurp the functions imposed upon the Tribunal with respect to the ascertainment of relevant facts and the exercise of administrative discretions.
- and at [49]:
… it is appropriate to emphasise that the course of that reconsideration will require the Tribunal not only to make the findings of fact necessary to ascertain whether the conditions imposed by the Commission can be lawfully imposed, but also to itself consider and produce the correct and preferable decision with respect to the nature and extent of the conditions to be imposed upon the subdivision of the land[.]
and in its final sentence:
… the stance adopted by an applicant in any particular case cannot detract from the Tribunal's overriding obligation to 'produce the correct and preferable decision' which must inevitably require a review of the decision on its merits.
45 The Tribunal notes that the respondent also sought that the Tribunal extend an invitation to it pursuant to s 31 of the SAT Act for the respondent to reconsider its decision of 2 September 2014. However the applicants objected to any such invitation being made.
46 In the circumstances of the present case as the reconsideration before the Tribunal will be a hearing de novo and the applicants are entitled to have the finality in the matter with as few intervening steps or delays as possible and keeping in mind the Tribunal's obligations in respect of natural justice and procedural fairness, the Tribunal will not extend the invitation sought by the respondent.
47 The Tribunal will therefore list the matter for further directions when the parties can inform the Tribunal what further evidence, if any, they wish to call as part of the reconsideration of the matter by the Tribunal.
Conclusion
48 For the reasons set out above the Tribunal finds that the reconsideration of the matter as remitted by the Court of Appeal by a differently constituted Tribunal will be by way of hearing de novo when the Tribunal will exercise its review jurisdiction afresh in line with these reasons.
49 The matter will be listed for further directions to allow relevant programming orders to be made.
Order
1. The reconsideration of the matter by differently constituted Tribunal is to be by way of hearing de novo.
2. The matter is to be listed for further directions to allow programming orders to be made to final hearing.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER
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