Swanton v Resource Management and Planning Appeal Tribunal
[2015] TASSC 6
•26 February 2015
[2015] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Swanton v Resource Management and Planning Appeal Tribunal
[2015] TASSC 6
PARTIES: SWANTON, Michael
v
RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL
SWANTON, Michael
v
GLENORCHY CITY COUNCILRAY TAYLOR INVESTMENTS PTY LTD
R
v
RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL EX PARTE
SWANTON, Michael
FILE NOS: 1219/2013
1220/2013
JUDGMENT
APPEALED FROM: M Swanton v Glenorchy City Council
[2013] TASRMPAT 106
DELIVERED ON: 26 February 2015
DELIVERED AT: Hobart
HEARING DATE: 17 February 2015
JUDGMENT OF: Pearce J
CATCHWORDS:
Local Government – Powers, functions and duties of councils generally – Powers generally – Exercise of powers – Challenges to – Appeal from Local Government authority decision to sell public land.
Local Government Act1993 (Tas), s 178A.
Aust Dig Local Government [128]
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected.
Dixon v Commonwealth (1981) 61 ALR 173; Kioa v West (1985) 159 CLR 550; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, referred to.
Aust Dig Administrative Law [1059]
Administrative Law – Judicial review – Grounds of review – Generally – Whether orders in the nature of certiorari and mandamus to be made by consent.
Supreme Court Rules 2000 (Tas), r 627(2)(a) and (b).
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, applied.
Aust Dig Administrative Law [1028]
REPRESENTATION:
Counsel:
Applicant/Appellant: R Browne
Glenorchy City Council: N R Readett
Ray Taylor Investments Pty Ltd P Jackson and L Golding
Solicitors:
Applicant/Appellant: FitzGerald & Browne Lawyers
Glenorchy City Council: Simmons Wolfhagen
Ray Taylor Investments Pty Ltd Murdoch Clarke
Judgment Number: [2015] TASSC 6
Number of paragraphs: 37
Serial No 6/2015
File Nos 1219/2013
1220/2013
MICHAEL SWANTON v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
MICHAEL SWANTON v GLENORCHY CITY COUNCIL
and RAY TAYLOR INVESTMENTS PTY LTD
R v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL;
ex parte MICHAEL SWANTON
REASONS FOR JUDGMENT PEARCE J
26 February 2015
The Local Government Act 1993, s 178(4)(b) (the LG Act), provides that a member of the public may object to the proposed sale by a council of public land. In 2012 the Glenorchy City Council advertised its intention to sell a section of public land at 80A Creek Road, New Town, on the New Town Rivulet. The Council wished to sell the land to Ray Taylor Investments Pty Ltd (RTI). Michael Swanton is a member of an organisation called the New Town Rivulet Catchment Care Group. He objected to the proposed sale. When the Council resolved, on 2 July 2012, to proceed with the sale, the appellant appealed to the Resource Management and Planning Appeal Tribunal (the Tribunal) against the Council's decision. RTI was joined as a party to the appeal. On 31 October 2013 the Tribunal, without holding a formal hearing, dismissed the appeal. The appellant seeks review of that decision. He brings two proceedings. The first is an appeal under the Resource Management and Planning Tribunal Act 1993, s 25, (the RMPAT Act). The other is an application seeking relief under the Judicial Review Act 2000 and for relief in the nature of certiorari and mandamus under Pt 26 of the Supreme Court Rules 2000. I will refer to Mr Swanton in these reasons as the appellant. In both proceedings the appellant applies for an order that the Tribunal's decision be set aside. In each application the grounds for review are substantially the same. On 4 April 2014, in the Pt 26 proceedings, Holt AsJ made a general order pursuant to the Supreme Court Rules, r 624, requiring the Tribunal to show cause why its decision should not be quashed. That order and other documents were served on the Tribunal, the Council and RTI. The general order specified the grounds for the relief sought as:
"1 The Respondent show cause why the decision of the Resource Management and Planning Appeal Tribunal made 31 October 2013, whereby the Tribunal dismissed the prosecutor's appeal, should not be wholly quashed upon the grounds appearing below:
a) There was a breach of the rules of natural justice in the course of the making of the decision, in that the applicant was not afforded a reasonable opportunity or any opportunity to present his own evidence, challenge his opponents' evidence, or respond to the submissions received by the Appeal Tribunal from Glenorchy City Council and Ray Taylor Investments, such submissions made as to whether the Appeal Tribunal had jurisdiction to hear the applicant's appeal and/or whether the Appeal Tribunal ought to have dismissed the applicant's appeal because the appeal was claimed to be frivolous and vexatious;
b) The Appeal Tribunal fell into jurisdictional error by its breach of the rules of natural justice referred to in (a) above;
c) The Appeal Tribunal fell into jurisdictional error by purportedly receiving evidence without holding a hearing and making findings of fact without holding a hearing, as required by s 178A(4) of the Local Government Act 1993;
d) The decision involved an error of law in that the Appeal Tribunal incorrectly interpreted the provisions of section 178A of the Local Government Act 1993 insofar as that provision applied to the applicant's appeal in that the Appeal Tribunal:
(i) regarded the term 'community' as synonymous to the public at large when, properly construed, the term 'community' refers to the relevant community of users of the land or facility in question under s 178A;
(ii) determined that loss of public access is not per se (and thus can never be) a source of undue hardship;
(iii) failed to consider whether undue hardship may be suffered by the community as required by s 178A(3)(a), and instead, considered the applicable statutory test to be whether undue hardship had been shown."
In both applications the Tribunal submits to the jurisdiction of this Court. The Council and RTI concede that grounds 1(a), (b), (c) and (d)(iii) of the general order to show cause are made out. Both consent to orders that the Tribunal's decision be quashed and the appeal remitted to the Tribunal for hearing and determination. The Council was represented at the hearing of these proceedings but adopted the submissions of counsel for RTI.
The question for my determination is whether it is proper that I should make the orders sought, and, if so, whether I should make any further determination about the issues the Tribunal will be required to determine when the appeal is remitted to it.
The legislative provisions
Most of the issues in these applications arise from the terms of the LG Act, s 178A. It provides:
"178A Appeal
(1) Any person who lodged an objection under section 178 may appeal to the Appeal Tribunal against the decision of a council under section 178(6) within 14 days after receipt of notice of that decision under section 178(6)(b).
(2) An appeal must be made in accordance with the Resource Management and Planning Appeal Tribunal Act 1993.
(3) An appeal may only be made on the ground that the decision of the council is not in the public interest in that —
(a)the community may suffer undue hardship due to the loss of access to, and the use of, the public land; or
(b)there is no similar facility available to the users of that facility.
(4) The Appeal Tribunal is to hear and determine an appeal in accordance with the Resource Management and Planning Appeal Tribunal Act 1993.
(5) The decision of the Appeal Tribunal on hearing an appeal is final and section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 does not apply."
Because the Tribunal is to "hear and determine appeals in accordance with the Resource Management and Planning Appeal Tribunal Act 1993", the provisions of that Act about appeals and the Tribunal's procedure become relevant. The Tribunal is established by the RMPAT Act but exercises jurisdiction conferred on it by other legislation. Further reference to the RMPAT Act will be made later in these reasons. However, it is necessary to note three particular provisions at this stage. The first is that the Tribunal "is to dismiss an appeal if it is satisfied that the appeal is frivolous or vexatious": s 22A. The second is that, in an appeal before the Tribunal, the Tribunal must observe the rules of natural justice: s 16(1)(d). The third is that a party to an appeal before the Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Tribunal in the appeal: s 25(1).
The procedural history
On 30 September 2013, after receiving the appellant's appeal, the chairperson of the Tribunal conducted a directions hearing. RTI was joined as a party to the appeal. In the course of the directions hearing, counsel for the Council submitted to the Tribunal that the appellant's grounds of appeal did not sufficiently address the limited grounds of appeal provided by s 178A(3). In response to that submission, a direction was made that the appellant file further and better grounds of appeal. A further direction was made permitting the Council and RTI seven days to respond to the further grounds. The appellant sent his further and better grounds by email to the Council and RTI on 3 October 2013. The grounds are directed to s 178A(3)(b) of the LG Act that the decision of the Council is not in the "public interest", in that "the community may suffer undue hardship due to the loss of access to, and the use of, the public land". On 21 October 2013, the Council's lawyers wrote to the Tribunal asking that the appeal be dismissed under s 22A of the RMPAT Act as "frivolous or vexatious". The letter asserted that "the basis for seeking such an order is that on its face, the Appellant's particulars do not disclose a ground of appeal as provided by the limited grounds available in s 178A(3) of the Local Government Act". Having stated that the deficiency in the appellant's particulars appeared "on its face" [sic], the letter went on to make assertions of fact and law that the Council wished the Tribunal to take into account. The assertions of fact included that:
· the subject land comprised 1,198 square metres of land, only 77.32 metres of which runs parallel to the rivulet;
· the Council would retain a 384 square metre right of way to allow the Council access to the rivulet;
· the Council would uphold its function of maintaining the land, and that transferring the land will not affect the maintenance of weed management for, and the long term health of, the rivulet;
· the Council may allow public access through the right of way in the future.
A submission to the Tribunal was made by the solicitor for RTI by letter dated 21 October 2013. In that letter RTI made assertions of fact and law, and submitted to the Tribunal that the appellant's appeal was "doomed to fail" and should be dismissed as frivolous and vexatious. A copy of that submission was not provided to the appellant.
The Tribunal's decision of 31 October 2013 was made without further resort to the appellant. The decision reads, in part:
"6 The Appellant's sole contention is that the community may suffer undue hardship as a result of loss of access and use of the public land. It notes that access to this area of the rivulet is only available through the land. It submits that unless the land is retained in public ownership or made subject to an easement which allows public access to the rivulet weed management practices will not be maintained and the long-term health of the rivulet will suffer.
7 Given that the Council retains a right-of-way over the subject land, the net effect of the change can only be that the public does not enjoy similar rights of access over that right-of-way. Thus, the undue hardship asserted by the Appellant turns upon an assessment of the consequences of that loss vis-à-vis the maintenance of weed management practices and the long-term health of the rivulet.
8 Loss of public access is not, per se a source of undue hardship. Given Council's submission to the effect that it will maintain access for the purposes of carrying out maintenance on the rivulet bank, the consequences contended by the appellants are not likely to arise and not demonstrated to exist. Further, that the public at large is precluded from doing this work (absent some form of permission from the Council), does not constitute undue hardship. It could not.
9 Whilst it is important that the rivulet be appropriately maintained, it is not demonstrated and nor could it be, that a hardship will accrue to the community in the circumstances which are proposed, viz, that the land is transferred to a private entity and a right-of-way for the purposes of giving access to the rivulet banks is conferred upon Council.
10 In the circumstances, the appeal is properly described as having no prospects of success. Indeed, there is nothing in the materials which enlivens the Tribunal's jurisdiction under Section 178A."
The approach to consent orders
In considering the approach I should take when orders are sought by consent in matters such as this, I am guided by the decision of French J (as he then was) in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323. His Honour's approach has been approved and applied in many subsequent cases: see Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 at [12]–[15] and the cases there referred to.
I would respectfully adopt and apply his Honour's reasons. Although the appellant, the Council and RTI seek orders by consent, and it is not the function of the Court to impede settlement between legally represented parties, I should not make the orders unless I am satisfied that they are within power and there is a proper basis for setting aside the decision and remitting the appeal to the Tribunal: Kovalev at [12]. Judicial power is engaged in relation to the function of a public authority. The decision-maker, in this case the Tribunal, has submitted to the jurisdiction of the Court, is not party to the consent and has not participated in formulation of the orders or consideration of its reasons. It would be most discourteous to the Tribunal to overturn its decision without consideration and disclosure of the error that leads to the decision being overturned: Kovalev at [13]. There is a "particular public interest which requires the Court's specification of the error and its satisfaction that error occurred": Kovalev at [12]. French J observed at [19]:
"I do not think it necessary that a Judge in making consent orders of this kind should ordinarily elaborate reasons for being satisfied that they are within power and appropriate. I do not propose to do so in this case. I think it sufficient that the Judge be satisfied of the matters which I have referred to earlier and that the terms of the consent order themselves reflect the basis upon which the matter is being remitted to the Tribunal. It may be that parties submitting a consent order in such cases as well as formulating it with the requisite specificity could submit a brief joint memorandum identifying from the record those parts of the decision-maker's decision or process which disclose the conceded error."
In this case, I have concluded that it is proper to make the orders sought. Because there is no consent memorandum identifying the error which is the basis for the Court's intervention, I will give reasons. However, no exacting inquiry is necessary, Kovalev at [14], and my reasons need only be relatively brief: Irwin (above) at [15].
The Pt 26 proceedings
In my opinion, relief should be given in the Pt 26 proceedings, and not in the appeal or on the basis of the Judicial Review Act.
Since 1 December 2001, prerogative writs including certiorari are no longer to be issued: Judicial Review Act, s 43. Nevertheless, this Court still has power to grant relief of the nature of certiorari and mandamus, including a power to order in an appropriate case that a determination or order, or a purported determination or order, be quashed, and a power to order that a relevant authority or person perform some lawful duty: Supreme Court Rules, r 627(2)(a) and (b); Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16; R v Macdessi; ex parte Walton [2014] TASSC 64.
In Craig v The State of South Australia (1995) 184 CLR 163, the grounds upon which certiorari can be granted were summarised by the High Court at 175-176 (omitting footnotes):
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to available procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
In this case, the Council and RTI have specified the basis on which they concede that error has occurred – that is, on grounds 1(a), (b), (c) and (d)(iii) of the general order to show cause. Leaving aside ground 1(d)(iii), I am satisfied, with respect, that the concessions are properly made. The Tribunal was obliged to observe the rules of natural justice: RMPAT Act, s 16(1)(d). It ordered that the appellant's appeal be dismissed when he did not have the submissions made by RTI and had not responded to the submission of the Council. He was not given notice of what may happen, that is, that the Tribunal intended to act upon the submissions it had received and make a decision, which included findings of fact, dismissing his appeal without further resort to him. He was not afforded the opportunity, or at least a proper opportunity, to ascertain the issues to be addressed concerning that decision. He was not informed of, or given the opportunity to deal with, the nature and content of adverse material the Tribunal proposed to take into account: Dixon v Commonwealth (1981) 61 ALR 173 at 179; Kioa v West (1985) 159 CLR 550 at 587; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 at 359; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591. All of that was procedurally unfair. As I will shortly explain, I do not consider it desirable to attempt to provide a definitive explanation of what is required of the Tribunal by the requirement in the LG Act, s 178A(4), and the RMPAT Act, s 16, when it is to "hear and determine" an appeal. However, whatever may generally be required, I am satisfied that the Tribunal in this case did not observe natural justice to the appellant. It received evidence and made findings of fact without allowing the appellant an opportunity to be heard about the adverse material it took into account, and, to that extent, did not hold a hearing. Those matters deal with grounds 1(a), (b) and (c) of the general order.
The Council and RTI also concede ground 1(d)(iii) of the general order. It is set out earlier in these reasons but for convenience I will repeat it. It contends that the Tribunal "failed to consider whether undue hardship may be suffered by the community as required by s 178A(3)(a) and instead, considered the applicable statutory test to be whether undue hardship had been shown". The nature of the contended error is, to me at least, less readily apparent. Counsel for the appellant correctly submits that the full terms of s 178A(3) are to be applied. The Tribunal, at [5] of its reasons, set out the terms of s 178A(3)(a) in full and, at [6], correctly identified the appellant's contention by reference to the terms of that provision. It went on to refer to "undue hardship" without express reference to the community, but that does not mean that it did not have the full terms of the subsection in mind when using that term. It is not necessary for me to decide. Sufficient error has been demonstrated to enliven the power to make the orders sought. The Tribunal's decision will be quashed in any event and the matter returned to the Tribunal for hearing and determination. As to the contended error identified in ground 1(d)(iii), it is sufficient to point out that the limited ground of appeal which applies to this case requires the Tribunal to determine whether the Council's decision to sell the land is not in the "public interest" in that:
· the "community";
· "may suffer undue hardship"; and
· the undue hardship is "due to the loss of access to, and the use of, the public land".
In the course of hearing and determining the appeal it will be necessary for the Tribunal to interpret and apply the terms of the section according to its terms, examine the context and the purpose and policy of the provision, to attribute meanings to the terms "community" and "undue hardship" and determine whether the relevant undue hardship is "due to the loss of access to, and the use of, the public land". It will also be for the Tribunal to attribute meaning and purpose to the term "public interest". Those tasks cannot be undertaken by this Court. It will be for the Tribunal to do so, based on evidence before it and its findings of fact.
Both counsel directed me to the authorities which make plain that the grant of relief in the nature of certiorari and mandamus is discretionary. The existence of another remedy, such as an appeal, which is equally convenient, beneficial and effective may be a ground to refuse relief: Tooth & Co Ltd v Council of City of Parramatta (1955) 97 CLR 492 at 498; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [56]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 521 at [87]. However, discretion remains. The authorities to which I have been referred do not exclude a grant of relief, especially if there are, or may be, impediments to the alternative remedy or remedies. The following passage from the joint judgment of Gummow and Callinan JJ in Dranichnikov (above) at [33] is instructive:
"Relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary. One often compelling discretionary bar is the availability of other relief. Whilst it may be arguable that Mr Dranichnikov might have been entitled to relief under s 476(1)(e)[6] of the Act, the uncertainty of such an outcome, the repeal of s 476 as it then was, and the fact that before he could in any event pursue his arguments in respect of the decision of the Full Court of the Federal Court he would need special leave, mean that there is no relevant discretionary bar to constitutional relief here."
I could not conclude that the denial of procedural fairness would have made no difference to the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. Counsel for RTI did not seek to persuade me to the contrary.
Impediments to other remedies in this case
Counsel for the appellant urged me to find that the appropriate relief ought to be granted pursuant to the appeal brought under s 25 of the RMPAT Act. However, he was unable to direct me to any advantage to his client, or any other purpose to be served, were I to do so.
The appellant's appeal is brought under the LG Act, s 178A(5), which provides:
"(5) The decision of the Appeal Tribunal on hearing an appeal is final and section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 does not apply."
The RMPAT Act, s 25, provides for appeals to the Supreme Court from decisions of the Appeal Tribunal:
"(1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."
On hearing and determining an appeal, the Supreme Court may make such orders as it considers appropriate, including affirming the decision of the Tribunal or setting aside a decision of the Appeal Tribunal, and either making a decision in substitution for the decision set aside, or remitting the matter for reconsideration in accordance with directions: s 25(5) and (6). Counsel for RTI submits that s 178A(5) means that there is no appeal from the decision of the Tribunal because s 25 of the RMPAT Act does not apply. Counsel for the appellant submits that s 178A(5) applies only to decisions "on hearing an appeal", has no application in this case because there has been no "hearing", and the power to appeal on a question of law under s 25 remains. In support of his submission he relied on the decision of Porter J in Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd (2013) 198 LGERA 379 (which I will refer to as TasWater). In TasWater, Porter J considered whether an order made by consent as to the conditions of a planning permit under the Land Use Planning and Approvals Act 1993 (LUPA), was an order made "after hearing an application" under s 59(3) of that Act. His Honour determined that it was not. He observed at [36] that the word "hearing" must be construed "according to its context and having regard to the apparent purpose of the provision in which it appears". At [46] he drew a distinction between "procedural and interlocutory directions and the hearing of an appeal on the merits" and found that, in that case, there had not been a hearing on the merits. The case is not determinative of the issues in the appeal which is the subject of the proceedings before this Court. It does little to assist the determination of whether the Tribunal's decision was "on hearing an appeal" within the proper construction of s 178A(5). The Tribunal's decision was not of a procedural or interlocutory nature. It determined the appeal on the merits, albeit that the decision was affected by procedural unfairness. What amounts to a hearing under s 178A will depend on the construction of that term in that legislation, having regard to its context and purpose. The validity of the appeal depends on acceptance of the appellant's contentions about the correct interpretation of s 178A(5) and that its application should be so restricted. On that issue there is sufficient uncertainty of outcome that the availability of the appeal to this Court presents no discretionary bar to the grant of relief under Pt 26 of the Rules of the Supreme Court. The appeal is not a remedy that is equally convenient, beneficial and effective. Neither party asks that I make a decision in substitution for the decision set aside. I would decline to do so in any event because the manner in which the appeal proceeded means there is insufficient material before the Court to enable a decision.
I have reached the same conclusion about the application made under the Judicial Review Act. Again, I have not been directed to any purpose that may be served by the grant of relief under that Act, as opposed to relief under Pt 26. Counsel for RTI submits that the Tribunal's decision was not of an administrative character, and thus is not a decision to which the Act applies: Judicial Review Act, s 4. The submission is supported by authority: refer to Evans J's discussion of the issue in Medical Council of Tasmania v Medical Complaints Tribunal [2005] TASSC 24 at [8] and following. See also Kentish Council v Wood (2011) 21 Tas R 59 and Sansom v Anti-Discrimination Tribunal [2012] TASSC 73. Counsel for the appellant submitted that, in this case, the Tribunal did not act judicially because, amongst other things, it did not hold a hearing, made a decision "behind closed doors", made a decision beyond power and denied procedural fairness. However, as was pointed out by Blow J (as he then was) in Sansom (above), it is "necessary to consider the nature of the power the tribunal exercised, not whether its exercise was affected by improprieties". The point of this discussion is to demonstrate that there are sufficient hurdles to the appellant's success in the Judicial Review Act application that it presents no discretionary bar to the grant of relief under the Pt 26 proceedings.
There is a further issue concerning both the s 25 appeal and the Judicial Review Act application. Both were commenced out of time. Time for institution of the proceedings expired on 28 November 2013, and proceedings were not commenced until 2 December 2013. An extension is sought in each case until that day. Whether an extension is granted is a matter for the exercise of discretion. It is for the appellant to persuade me that the indulgence he seeks should be granted. Here the period of delay is short, there is an adequate explanation for not lodging the proceedings in time, the case is arguable and there is no undue prejudice to the adverse party. Those are all factors which favour the grant of the extension. However there are no rigid rules: Jackamarra v Krakouer (1998) 195 CLR 516 per Kirby J at [66]. In this case I am not persuaded that there is any purpose to be served in granting the extension. The appellant will have the relief he seeks. Full resolution of the proceedings requiring the extension of time will be a waste of the Court's time and resources. For that reason those proceedings should not be entertained and I would, in each case, refuse the application for an extension of time. In any event, I would have dismissed the Judicial Review Act application because "adequate provision is made by a law, other than this Act, under which the appellant is entitled to seek a review of the matter by the Court": Judicial Review Act, s 12(b). That is not to say that in general the availability of relief under Pt 26 of the Supreme Court Rules would be a ground to refuse a remedy under the Judicial Review Act. However the approach I have taken is appropriate to the circumstances of this case.
Other issues
An order will be made quashing the Tribunal's order made 31 October 2013 and remitting the appeal to the Tribunal, differently constituted, to hear and determine according to law.
Counsel for the appellant contended that I should also determine other issues not the subject of consent by the Council and RTI. It is sometimes appropriate, when orders are made quashing a decision and remitting a matter for re-hearing according to law, to make determinations about the law. The purpose of doing so is, in an appropriate case, to set out the law for the decision-maker below so that it does not, on remitter, adopt a course the Court regards as erroneous. In that way, further court proceedings may be avoided. Counsel relied on the decision of the Full Court of the Federal Court in Superannuation Scheme Board of Trustees (Cth) v Kitching (2004) 139 FCR 272. That case is distinguishable from the present circumstances. It deals with development of a jurisdiction to allow appeals where the order or judgment of the court below is not erroneous, but the reasoning on which it is based is. Such jurisdiction is exercised by varying the orders of the court below to include an appropriate declaration: see also Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203 at 209, 210 and at 217, 218, per Ryan, Jacobson and Foster JJ.
The Full Court in Kitching at 274, explained the power as follows:
"Although ordinarily a right of appeal lies only in respect of a Court's orders and not its reasons, there is an exception to this rule. As a Full Court said in Secretary Department of Social Security v Lowe (1999) 92 FCR 26 at [16], an order read in the light of the reasons justifying it may leave open to be implemented a conclusion which a Full Court holds to be erroneous. In such a case the Court has power on appeal to vary the order made below by the addition of an appropriate declaration, see Baxter Healthcare Pty Limited v Comptroller General of Customs (1997) 72 FCR 467 at 483."
I do not need to have resort to the principle espoused in Kitching. The grounds specified in the general order are properly before me for determination although, because of the view I have reached on the other grounds, it is not necessary for me to determine all of them. Counsel for the appellant directed his submission not only to the remaining two grounds of the general order to show cause, but also to one other issue. I will deal with the other issue first.
In the course of his submissions, counsel for the appellant spent some time addressing the issue of what constituted a "hearing" of an appeal under s 178A of the LG Act. He did so in the context of his submission that I should find that the appellant had a valid appeal under s 25 of the RMPAT Act because there had been no "hearing". I infer however (perhaps mistakenly), that his submission was directed also at persuading this Court to direct the Tribunal about the content of its duty when hearing and determining an appeal. I would decline to do so. It is undesirable and unnecessary, and I think impossible, to definitively and exhaustively explain what is required of the Tribunal when it conducts such a hearing. The Tribunal's procedure for hearing appeals is provided for by the RMPAT Act, s 18. Subject to that section, a hearing of an appeal must be held in public: s 18(1). At the same time the Tribunal may, if it thinks fit, permit or require a person who is to give evidence to the Tribunal to do so in writing: s 18(4). It may take evidence on oath or affirmation, s 20(1)(a), and may require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation: s 20(3)(a). Subject to s 18, the Tribunal must ensure that every party to an appeal before the Tribunal is "given a reasonable opportunity to present the party's case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the appeal and to make submissions in relation to the documents": s 19. Generally, for the purpose of an appeal, the Tribunal may do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal: s 22 (1). Beyond any specific statutory requirements, its procedure is within its own discretion: s 16(1)(a). Appeals are to be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the Tribunal permits: s 16(1)(b). It is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate: s 16(1)(c). As is already apparent from these reasons, the Tribunal must observe the rules of natural justice: s 16(1)(d).
The Tribunal must, of course, comply with the statutory requirements. It should otherwise be left to regulate its own procedure and make its own determination about the contents of its duty to "hear and determine" appeals. It may vary according to the circumstances of a particular appeal. The Tribunal may balance the nature of an appeal between the adversarial and the inquisitorial. Subject to its duty to hold a hearing in public and to observe the rules of natural justice, it may determine the extent to which an oral hearing occurs, and how material is presented to it.
That leaves the two grounds of the general order which are not the subject of the consent of RTI and the Council. Counsel for the appellant submitted that they raise matters of general importance concerning the interpretation and application of the statutory provisions, and the Tribunal should not be left to interpret and apply the provisions erroneously.
I will address ground 1(d)(ii) first. It can quickly be dealt with. It asserts that the Tribunal made an error of law by determining that loss of public access is not per se a source of undue hardship. The relevant passage is to be found in [8] of the Tribunal's reasons. It is submitted that by so finding, the Tribunal erroneously determined that loss of public access can never be undue hardship. I do not read the Tribunal's reasons in that way. To my mind, all the Tribunal asserted is that whether the community may suffer undue hardship due to the loss of access is a finding of fact to be made depending on the evidence of the effect of the loss. The occasion for any direction from this Court about that issue does not arise.
The final issue is identified in ground 1(d)(i) of the general order. It asserts that the Tribunal erred in that it "regarded the term 'community' as synonymous to the public at large when, properly construed, the term 'community' refers to the relevant community of users of the land or facility in question under s 178A". The submission could only be directed to the passage at [8] of the Tribunal's decision, which contains the only mention of the term "the public at large". The Tribunal had observed that, if the land is sold, the public will not enjoy access to the rivulet. It referred to the factual assertion made in the Council's letter to the Tribunal that it would use the right of way it retained to manage the weeds on the rivulet bank and continued:
"Further, that the public at large is precluded from doing this work (absent some permission from Council), does not constitute undue hardship. It could not."
I am not at all sure what this ground of the general order means. I cannot conclude that it discloses error without determining what, in the terms of the ground itself, is meant by "community" and what is meant by "public at large", and what the Tribunal intended to convey particularly by its use of that latter term. The meaning and import of the passage from the Tribunal's decision complained of is unclear and does not, to me at least, disclose a construction of the legislation that is erroneous. However, as the submissions made on behalf of the appellant make clear, what the appellant asks that I do is determine the meaning of the term "community" in s 178A(3)(a). I would decline to do so. It seems to me that what constitutes the "community" may vary according to the circumstances of each case. Determination of the question is a matter for the Tribunal and is likely to depend on findings of fact based on evidence. Without intending to bind the Tribunal's determination, I think that the relevant facts may include the nature and location of the land, the use to which is has been or may be put, the class of persons who may be affected by the loss of access to, or use of, the land and the nature of the effect it may have on them.
Resolution and orders
For the foregoing reasons I order:
(a)The application for an extension of time in appeal 1219/2013 is refused.
(b)In application 1220/2013, the order of the Resource Management and Planning Appeal Tribunal made 31 October 2013 dismissing the appellant's appeal to the Resource Management and Planning Appeal Tribunal is quashed. The appeal is remitted to the Tribunal, differently constituted, for hearing and determination according to law.
I will hear the parties as to the terms of any further or consequential orders.
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