Temwood Holdings Pty Ltd v Western Australian Planning Commission

[2001] WASCA 354

TEMWOOD HOLDINGS PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ANOR [2001] WASCA 354

Reported Decision:	(2001) 25 WAR 311
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 354
Court:	THE FULL COURT (WA)
Case No:	FUL:121/2001	Heard:	24 OCTOBER 2001
Coram:	MURRAY J ANDERSON J SCOTT J	Delivered:	13/11/01
No of pages:	15	Judgment Part:	1 of 1
Result:	Application refused
Category:	A
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Parties:	TEMWOOD HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION THE STATE OF WESTERN AUSTRALIA
Catchwords:	Practice and procedure Appellant's application for interlocutory mandatory injunction concerning subject matter of appeal Application grounded in allegation of contempt of court Whether application competent Whether application properly grounded in contempt
Legislation:	Supreme Court Act 1935 (WA), s 61 Town Planning and Development Act 1928, s 20(1)
Case References:	Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316 J & P Coats v Chadwick [1894] 1 Ch 347 Mickelberg v The Queen (No 3) (1992) 8 WAR 236 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Resolute Ltd v Warnes [2000] WASCA 359 Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor [2001] WATPAT 4 Allesch v Maunz [2000] HCA 40; (2000) 173 ALR 648 Appliance Holdings Pty Ltd v Lawson [1983] 1 NSWLR 246 Attorney-General v Hislop [1991] 1 QB 514 Attorney-General v Times Newspapers Ltd [1974] AC 273 Bradley v Commonwealth (1973) 128 CLR 577 Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585 Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421 H B Holmes Pty Ltd v Beer [1986] 2 QdR 379 Harkinakis v Skalkos (1997) 42 NSWLR 22 John Fairfax Ltd v Australian Postal Commission [1977] 2 NSWLR 124 Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657 North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 908 North Sydney Municipal Council v Comfytex Pty Ltd & Anor [1975] 1 NSWLR 447 Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627 Parker v Camden London Borough Council [1996] Ch 162 Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230 Re Colina [1999] HCA 57 Re Totalisator Administration Board of Queensland (1988) 80 ALR 73 Redland Bricks Ltd v Morris [1970] AC 652 Resolute Ltd v Warnes [2000] WASCA 359 The Siskina [1979] AC 210 Victoria v The Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25 Westminster Brymbo Coal & Coke Co v Clayton (1867) 36 LJ Ch 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TEMWOOD HOLDINGS PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ANOR [2001] WASCA 354 CORAM : MURRAY J

ANDERSON J
SCOTT J

HEARD : 24 OCTOBER 2001 DELIVERED : 13 NOVEMBER 2001 FILE NO/S : FUL 121 of 2001 BETWEEN : TEMWOOD HOLDINGS PTY LTD

Appellant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent

THE STATE OF WESTERN AUSTRALIA
Second Respondent

Catchwords:

Practice and procedure - Appellant's application for interlocutory mandatory injunction concerning subject matter of appeal - Application grounded in allegation of contempt of court - Whether application competent - Whether application properly grounded in contempt

(Page 2)

Legislation:

Supreme Court Act 1935 (WA), s 61

Town Planning and Development Act 1928, s 20(1)

Result:

Application refused

Category: A

Representation:

Counsel:

Appellant : Mr D H Solomon
First Respondent : Ms C J Thatcher
Second Respondent : Ms C J Thatcher

Solicitors:

Appellant : Solomon Brothers
First Respondent : State Crown Solicitor
Second Respondent : State Crown Solicitor

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

Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316
J & P Coats v Chadwick [1894] 1 Ch 347
Mickelberg v The Queen (No 3) (1992) 8 WAR 236
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Resolute Ltd v Warnes [2000] WASCA 359
Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor [2001] WATPAT 4

Case(s) also cited:

Allesch v Maunz [2000] HCA 40; (2000) 173 ALR 648
Appliance Holdings Pty Ltd v Lawson [1983] 1 NSWLR 246


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Attorney-General v Hislop [1991] 1 QB 514
Attorney-General v Times Newspapers Ltd [1974] AC 273
Bradley v Commonwealth (1973) 128 CLR 577
Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585
Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670
Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421
H B Holmes Pty Ltd v Beer [1986] 2 QdR 379
Harkinakis v Skalkos (1997) 42 NSWLR 22
John Fairfax Ltd v Australian Postal Commission [1977] 2 NSWLR 124
Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 908
North Sydney Municipal Council v Comfytex Pty Ltd & Anor [1975] 1 NSWLR 447
Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627
Parker v Camden London Borough Council [1996] Ch 162
Queensland v Australian Telecommunications Commission (1985) 59 ALR 243
Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230
Re Colina [1999] HCA 57
Re Totalisator Administration Board of Queensland (1988) 80 ALR 73
Redland Bricks Ltd v Morris [1970] AC 652
Resolute Ltd v Warnes [2000] WASCA 359
The Siskina [1979] AC 210
Victoria v The Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25
Westminster Brymbo Coal & Coke Co v Clayton (1867) 36 LJ Ch 476

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1 MURRAY J: The appellant owns some land near Singleton which it wishes to subdivide and develop. It abuts the ocean. About 20 hectares on the western boundary of the land is reserved under the Metropolitan Region Scheme for parks and recreation. It would constitute a foreshore reserve dividing the appellant's land from the ocean. I need not go to the relevant statute or the provisions of the Metropolitan Region Scheme. It is sufficient for present purposes to note that this land, which constitutes about one-fifth of the appellant's property, may not be developed without the approval of the first respondent (the "Commission"). Under the Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36(3), because of the reservation of the land for a public purpose, no compensation is payable by the Commission for injurious affection to the land so reserved arising out of the reservation until the land is sold, or the Commission refuses an application made under the Scheme to develop the land, or approves such an application only upon unacceptable conditions. In that event, if the price obtained for the land on its sale is less than it might otherwise have commanded had it not been reserved under the Scheme, or upon the refusal of an application for development of the land, compensation for injurious affection may be obtained.

2 The Commission has, under s 20 of the Town Planning and Development Act 1928 (WA), granted approval to subdivide various portions of the appellant's land and, generally speaking, it has done so subject to conditions, including a condition that the reserved land is to be vested in the Crown pursuant to the Town Planning Act, s 20A. The condition requires the appellant to cede the land "free of cost and without any payment of compensation by the Crown". The purpose is obvious enough. It is to enable the land to be acquired by the Crown (and hence the joinder of the second respondent) consistently with and for the purposes of the reservation under the Scheme at no cost. The effect of the condition, it is accepted, would be to defeat the claim that the appellant potentially has, for compensation for injurious affection. The land will vest in the Crown pursuant to the provisions of the Transfer of Land Act 1893 (WA) without any conveyance or transfer being required.

3 As I understand it, the appellant has made three applications for subdivisional approval. One is in respect of a very large lot which the appellant has contracted to sell for $2.75M. The plan is for the purchaser to further subdivide that land for residential purposes. The contract is subject to the Commission's approval to subdivide this land from the balance of the land owned by the appellant. The appellant has made two further applications for subdivisional approval in respect of other portions of its land and in relation to all three applications the condition to which I

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have referred above has been imposed on the approval granted by the Commission.

4 The appellant brought three appeals against the condition imposed on the approvals for subdivision and they were heard together by the Town Planning Appeal Tribunal on 18 October 2000. On 21 March 2001 the Tribunal delivered its decision upholding the validity of the conditions: Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor [2001] WATPAT 4. From that decision an appeal was made to a single Judge of this Court and on 4 July 2001, that appeal was dismissed with costs. From that decision the appellant now further appeals to the Full Court. That appeal is pending. It is to be heard on 27 November 2001. By it the appellant seeks orders that the relevant condition be declared to be void and consequentially, that the second respondent be required to "re-convey the land ceded by the appellant under protest following the delivery of her Honour's judgment and known as the foreshore reserve to the appellant, free of any cost or charge to the appellant". The order so sought does, of course, assume that the cession of the land required by the condition will have taken place, albeit under protest having regard to the alleged invalidity of the condition requiring that to occur if the appellant is to be enabled to act upon the subdivisional approvals conditionally provided by the Commission.

5 The proceedings presently before the Court are concerned with the appellant's attempt ultimately to comply with the disputed condition, despite the pendency of the appeal. Various other proposals have been put by the appellant to the Commission. The final position which the Commission has taken, expressed in a letter dated 13 July 2001 from its solicitors, is that it will not endorse the diagrams of survey with the Commission's approval unless the condition has been complied with and the land has been ceded by the appellant to the Crown free of cost. It was to that letter that the appellant's solicitors were instructed to reply on 20 July 2001, advising that "our client will now cede the foreshore land to your client free of charge under protest". The solicitors went on to advise that the appellant proposed to apply for injunctive relief in the Full Court to require the State to transfer the land back to the appellant should it be successful in the appeal.

6 However, the land has not been ceded and the subdivisional development is held up. The Commission takes the view that it will not endorse the relevant diagrams until the appeal process has been finalised and there is a final decision in relation to the relevant condition of approval. The exchange of correspondence between the solicitors shows

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that the Commission simply takes the position that until the appeal process is concluded there is no certainty as to the conditions which will ultimately form part of the approval of the subdivision sought. Until then, it takes the view that it should not allow the subdivision to proceed, even on a condition which is manifestly against the appellant's interests and even upon the application of the appellant that it be done. If the condition is ultimately not upheld the Commission considers that may ultimately "detrimentally affect not only the applicant for the subdivision, but also any purchasers of the subdivided land".

7 For myself, I must say that I find that difficult to understand. It can hardly be a concern of the Commission that the appellant, even if it succeeds on the appeal, may not be able to obtain an order from the Court that the foreshore land be reconveyed free of cost. On the other hand, if the appeal should be lost, no harm will be done by the subdivision having been allowed to proceed in accordance with a condition the validity of which has been upheld. So far as purchasers of the subdivided land may be concerned, I cannot see how they may be disadvantaged either way. There is no evidence to suggest that the price at which they might acquire the land would be adversely affected either way and whether the appeal is won or lost the purpose for which the land was reserved may effectively be preserved. The question really is whether the appellant may lawfully be required to cede the land free of cost or whether it might be able to proceed to deal with it in a way which may confer upon it a capacity to seek compensation for injurious affection.

8 However that may be, upon the Commission's refusal to accept the ceding of the land, the appellant took out a summons for a mandatory injunction, effectively in the form of an order that the Commission endorse its approval on the relevant diagrams or plans of survey and take the other steps necessary to enable the land to be dealt with. That summons was returned before Wheeler J and upon her Honour's dismissal of the application it has been renewed before the Full Court, specifically seeking an order that her Honour's order dismissing the appellant's application for an injunction should be discharged and this Court should grant the mandatory injunction sought in the form of the order couched in the terms to which I have referred above.

9 I digress to observe that the relief sought in that regard seems to me to be defective in the sense that the first part of the relief sought ought to be that the Commission co-operate in and do all things necessary to enable the appellant to cede the land to the Crown free of cost. It would, of course, do so unconditionally. No legal effect would attach to the fact

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that it did so under protest. Thereupon the Commission would be required to endorse its approval on the relevant diagrams or plans of survey upon their submission to the Commission with a request for approval pursuant to the Town Planning Act, s 20AA, if the steps envisaged by that section were taken within the period allowed, three years from the date on which the Commission conditionally approved the plan of subdivision.

10 The application as brought before Wheeler J was in the form of an amended chamber summons seeking in the alternative to the relief discussed above that the appeal be expedited and, oddly in my opinion, having regard to the alternative forms of relief sought, grounding the application upon an allegation that the Commission has been guilty of a contempt of court because its conduct was designed to deter or obstruct the appellant's pursuit of its appeal and thereby to interfere with the due administration of justice or alternatively, to place "improper pressure on the appellant to deter the appellant from obtaining curial vindication of its rights". The conduct so impugned is the Commission's refusal to endorse its approval on the relevant diagrams or plans of survey. As to the question of expedition of the appeal, as I have said it is listed to be heard on 27 November 2001.

11 Wheeler J addressed a number of issues to which the allegation of contempt obviously gave rise. In the first place her Honour commented upon what I have described above as the oddity of a chamber summons grounded in contempt when the relief sought was in the form of a peremptory order or mandatory injunction and in the alternative, expedition of the appeal. As her Honour commented, contempt expresses "an affront to the administration of justice which the Court is concerned to punish" rather than being primarily a matter of private concern, even though it may be the case that the Court will consider it unnecessary to go so far but will think it appropriate to take a more lenient course in the form perhaps of an order of some kind, including a mandatory injunction designed to remedy the conduct in which the contemnor has engaged. Her Honour also adverted to the potential procedural difficulty that the matter came before the Court by way of summons rather than upon a motion for committal or other punishment for contempt, returnable before the Full Court under the Rules of the Supreme Court 1971, O 55.

12 In the end, her Honour found it unnecessary to resolve these questions and, in my opinion, that is so for this Court although were it necessary to resolve the question of the validity of the procedure as a vehicle to bring before the Court an allegation of contempt, I would be of the view that the procedure chosen was ineffective. This being alleged to

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be a contempt in the form of conduct calculated to interfere with the course of justice, it was, generally under the law and particularly under O 55, to be dealt with by motion on notice to the contemnor returnable before the Full Court. However, I need not express reasons for that view in any detailed way because the allegation of contempt is, in my opinion, entirely without merit. That also was the view of Wheeler J and it was the basis upon which she dealt with the application made to her.

13 It is sufficient for present purposes to cite the decision of this Court in Resolute Ltd v Warnes [2000] WASCA 359, as did Wheeler J. Her Honour set out the statement of principles as formulated by Ipp J at par [13] with the agreement of Kennedy and Miller JJ, as follows:

"(a) The charge must be established beyond reasonable doubt.

(b) The claimant must prove, according to the criminal standard, that the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case. [To make it applicable to this case, one would substitute for the words 'the published material', 'the act or omission', being the act or omission of the alleged contemnor].

(c) Because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution.

(d) Intention to interfere with the administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution.

(e) The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material [or some other act or omission] is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.

(f) It is an open question as to whether the tendency is to be measured against the capacity of the particular litigant

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involved to withstand pressure, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude.

(g) In punishing certain types of interference with litigants, the law distinguishes between proper and improper pressure."

The reference in the particularisation of the grounds of contempt to which I have referred above to improper pressure having the tendency to deter the appellant "from obtaining curial vindication of its rights" shows that the appellant also based its application upon the convenient statement of the principles applicable in the judgment of Ipp J in Resolute.

14 Wheeler J found that if she had jurisdiction she would not exercise it. Her Honour took the view that the Commission, acting on legal advice, was motivated by the view that it should not endorse the relevant diagrams or plans of survey until on appeal it was determined what the conditions of approval were to be and those conditions had been complied with. There is no doubt on the evidence that that view is genuinely held and, like Wheeler J, I find it difficult to characterise as improper pressure the maintenance of a genuinely held view as to the legalities of its position by the Commission. In my opinion, the allegation of contempt is without merit and distracts from the real nature of the proceedings before Wheeler J.

15 Before this Court, but not before her Honour, it was said that the chamber summons was brought in the appeal pursuant to the Supreme Court Act 1935 (WA), s 61, which provides:

"(1) In any cause or matter pending before the Full Court, any direction incidental thereto not involving the decision of the appeal may be given by a single Judge, and a single Judge may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal, if he thinks fit.

(2) Every order made by a Judge in pursuance of this section may be discharged or varied by the Full Court."

16 The matter comes before this Court, not as an appeal from the decision of Wheeler J (any such appeal being, in my opinion, doomed to failure), but on motion by way of the renewal of the application under s 61(2). The motion seeks orders firstly that "the order made pursuant to

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s 61(1) of the Supreme Court Act 1935 by the Honourable Justice Wheeler on 28 September 2001 dismissing the appellant's application for an injunction be discharged". Then follows the application for an injunction in the terms it was made to Wheeler J. I have already commented that in my view that substantive application is incomplete, the real point being that the refusal to endorse the approval on the diagrams or plans of survey is, as I understand it, because the Commission refuses to accept and cooperate in the processes directed to ceding the land in question to the Crown without cost.

17 There is very little in the way of decided authority on the operation of s 61. In Mickelberg v The Queen (No 3) (1992) 8 WAR 236, Malcolm CJ was hearing a motion by the appellants to have leave to uplift and conduct tests on various exhibits in the case. His Honour noted that proceedings in the Court of Criminal Appeal by way of appeal were proceedings in the Full Court under the Criminal Code (WA), s 687(1). His Honour therefore thought that pending the determination of the appeals it was "arguable" that s 61(1) of the Supreme Court Act would apply to the Full Court sitting as a Court of Criminal Appeal to allow it to give a direction under the Criminal Practice Rules, O 14 r 3(3) regarding the custody or disposal of exhibits in the custody of the Registrar. For myself I would have thought that in view of the fact that the exhibits were required to be tested to provide new evidence bearing on the subject matter of the appeals, there would be no difficulty in saying that any such direction would be "incidental" to the appeals and their subject matter.

18 In Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, the question arose in relation to an application made in respect of the costs of a trial following the determination of an appeal. The application was brought before a single Judge of the Full Court which had dealt with the appeal and an order was made. Malcolm CJ, with whom Kennedy J agreed, at 524 said that although it was not necessary to finally determine the matter, his Honour was "inclined to the view" that in the circumstances mentioned a single Judge would have power to make an order in relation to the costs of the appeal acting under s 61(1).

19 I note that s 61(1) allows a direction "incidental" to "any cause or matter pending before the Full Court", "not involving the decision of the appeal". In my opinion, that provision would be satisfied if the direction given was by way of an order or, if thought to be appropriate, by way of injunction, incidental in the sense of relating to the appeal, the process of appeal or the subject matter of the appeal, but concerning the proceeding in respect of which the appeal was brought. When s 61(1) speaks of the

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power of a Judge during vacation, it talks of preventing prejudice "to the claims of any parties pending an appeal". By the Act, s 4, the term "cause" is defined widely to include "any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding by the Crown". The reference in s 61(1) to a "matter" completes the broad reference to any proceedings because by s 4, the term "matter" includes "every proceeding in the Court, not in a cause". Nothing could be more all-encompassing.

20 I note that in neither case to which I have referred above was the application to the single Judge expressly grounded on s 61(1) and nor does it appear to have been the case in Monaco that it came before the Full Court comprised of Malcolm CJ and Kennedy J expressly by way of renewal of the application under s 61(2). That seems to me to be immaterial. The question is whether s 61 provides a head of power to the single Judge under s 61(1) or the Full Court under s 61(2).

21 In this case the proceedings by way of summons before Wheeler J were brought in the proceedings by way of appeal. What was sought was relief in the form of a mandatory injunction, but effectively in the form of an order, designed pending the determination of the appeal to permit the appellant to satisfy the conditions of its approval and get on with its subdivision. Such an order properly framed would, in my opinion, be a direction to the Commission incidental to the cause or matter pending before the Full Court by way of appeal, but not involving the decision of the appeal which is concerned to resolve the question of the validity of the condition in the terms in which it had been imposed.

22 The difficulty, however, for the appellant in the present application is that no such order or direction was made. Her Honour refused. She dismissed the application for reasons to which I have referred directly related to the allegation of contempt in respect of which I have expressed the view that it was made by the appellant without foundation. However that may be, I do not think it can be said that to refuse the order or direction sought is of itself to make a direction incidental to the cause or matter pending before the Full Court in the appeal. That being the case, in my opinion, Wheeler J made no order pursuant to or within the power conferred by s 61(1) and there is nothing which the Full Court, on the appellant's present application, may discharge or vary. Section 61(2) can have no application to the case. In my opinion the motion before the Court is incompetent. On that ground it should be dismissed.

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23 Before finally leaving this case, however, I wish to express some concern that the Commission refuses to comply with the course of action requested by the appellant pending the determination of the appeal. It has approved the subdivisions subject to a condition, the validity of which has been upheld by the Appeal Tribunal. The fact that a further appeal has been brought to this Court challenging the validity of the condition in no way strikes it down or robs it of force pending the final determination of the appeal.

24 In the circumstances, success in its appeal could not, in my view, cause harm to any purchaser from the appellant in the meantime. It may be that if the subdivision proceeds as approved and subject to the conditions upon which approval was granted, the appellant will suffer if, although successful in obtaining a decision of this Court that the condition in question is invalid, it is for any reason unable to obtain a consequential order reversing the effect of proceeding with the subdivision in accordance with the terms of the condition. But those are risks to the appellant alone and they are risks which it is prepared to take. If, even now, the appellant was to put to the Commission that it wished to proceed in the way discussed above it may be that the Commission would think it not only proper to provide its cooperation in the process, but would take the view that there was no ground upon which it was required to refuse to do so.

25 ANDERSON J: This matter was commenced as a chamber summons founded on an alleged contempt. As the subject matter of the proceedings is an alleged contempt, it seems to me that the proceedings have been in the wrong form from the start. The proceedings should have been commenced in accordance with the provisions of O 55 r 4(1), that is, by motion on notice to the contemnor or contemnors for an order that they be punished for their contempt. The motion should not have been returned in chambers, but in open court; and it should not have been returned before a single Judge, but before the Full Court: O 55 r 2(2). See, for example, Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316, a case of contempt in the form of a misuse of documents obtained on discovery and interference with the administration of justice by pressuring witnesses not to give evidence.

26 The summons in this case was returned before a single Judge, Wheeler J. Although the relief sought was an injunction, her Honour rightly dealt with the summons as an application for relief which was founded on a contempt. That is what it was. She found there was no contempt and refused to grant relief. In doing so, she expressed grave

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reservations about her jurisdiction as a single Judge to grant relief founded upon a contempt.

27 It follows from what I have already said that, in my opinion, her Honour's reservations were well-founded. Had she granted the relief that was sought, she would have acted in excess of the authority conferred upon her by the rules of court and her orders could not have obtained coercive effect. The court would not have enforced them. The rule that the power to punish for contempt is generally to be exercised only by the Full Court is no mere procedural technicality. The purpose of the rule is to ensure that an alleged contemnor who is liable to be punished for conduct of the kind alleged in this case should have his fate determined by the Full Court, rather than by a single Judge. The requirement to move in open court before the Full Court cannot be side-stepped by moulding the claim for relief. I do not accept that a person who seeks relief in the exercise of the court's jurisdiction to deal with contempts need not obey the rules with respect to such proceedings because he is content to have relief in the form of an injunction.

28 The proceedings which bring the matter to this Court from Wheeler J are also entirely misconceived, in my opinion. The proceedings are before this Court by way of a "motion to discharge or vary order pursuant to s 61(2) of the Supreme Court Act1935".

29 Section 61 is in the following terms:

"(1) In any cause or matter pending before the Full Court, any direction incidental thereto not involving the decision of the appeal may be given by a single Judge, and a single Judge may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal, if he thinks fit.

(2) Every order made by a Judge in pursuance of this section may be discharged or varied by the Full Court."

30 It is true that when the contempt proceedings came before Wheeler J, there was a "matter pending before the Full Court". There had been an appeal to the Supreme Court from a determination of the Town Planning Appeal Tribunal dismissing the applicant's appeal from a decision of the Western Australian Planning Commission to attach a condition to a subdivisional application which required the applicant to cede quite a large parcel of land to the Crown free of cost and without payment of compensation. The appeal was heard on an expedited basis by a single

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Judge, McLure J, who dismissed it. The matter pending before the Full Court is an appeal from the decision of McLure J.

31 It is contended on behalf of the applicant that the determination by Wheeler J in the contempt proceedings not to make orders against the respondents was a "direction incidental" to the appeal from McLure J.

32 I cannot accept that submission. Proceedings for contempt, in all its forms, are quasi-criminal proceedings. They are substantive proceedings. An order disposing of contempt proceedings is not an "incidental direction" or "interim order" in any sense. It matters not that the initiating process (in this case a chamber summons) is titled up in the Full Court proceedings. To the extent that the rules require this to be done, it is a matter of administrative convenience only. It cannot change the essential nature of the contempt proceedings.

33 In my opinion, this Court has no authority in the proceedings which are before it to deal with the respondents, that is the Western Australian Planning Commission and the State of Western Australia, for contempt. That being so, there is no authority to grant the interlocutory relief which the applicant seeks as an alternative remedy. Because there is no power to deal with the respondents for contempt, there is no power to "take the more lenient course of granting an injunction in preference to making an order for committal or sequestration": J & P Coats v Chadwick [1894] 1 Ch 347.

34 I would dismiss the application on this basis.

35 I should add that I am quite unable to see that Wheeler J made any error in determining that a contempt had not been proved. At the risk of oversimplification, the allegation against the respondents is that, by refusing to approve a plan of subdivision, they are interfering in the administration of justice by placing so much economic pressure upon the applicant that the applicant will be forced to abandon its appeal to the Full Court from the judgment of McLure J.

36 On the face of it, the first respondent, the Western Australian Planning Commission, is simply exercising a power which it undoubtedly has to withhold its approval of a plan of subdivision until it is satisfied that all of the conditions which are imposed on the grant of approval have been met: Town Planning and Development Act1928 s 20(1). Before the exercise of an express statutory power could amount to an improper interference in the administration of justice, I think it would have to be shown, at the very least, that the exercise of power was not bona fide. In

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the context of the facts of this case, that is tantamount to saying that the power (or duty) to refuse endorsement is being exercised not for town planning purposes, but for the purpose of placing improper pressure on the applicant to abandon its appeal. A contempt is not proved unless proved beyond reasonable doubt. It is impossible to be satisfied on the material before this Court that the refusal in this case is not a bona fide exercise of a power (or the duty) to regulate the subdivision of land.

37 Whether in point of law the circumstances are such that the Commission is entitled to assert that the condition as to ceding of foreshore land has not been carried out is another issue. The Commission argues that a conveyance of the land in question to the Crown "under protest" during a legal challenge, the object of which is to have the condition declared invalid and expunged and the conveyance reversed, would not be a carrying out of the condition. That might be a difficult argument; but it is not one that fairly arises in proceedings founded on an allegation that the Commission is guilty of contempt in refusing to endorse the plan of subdivision. Whether the Commission is right or wrong, the applicant will not have proved a contempt in the absence of proof beyond reasonable doubt that the Commission, in maintaining its refusal to endorse the plan, is not acting bona fide.

38 SCOTT J: In this matter I have had the opportunity of reading in draft the reasons of Murray J and Anderson J. I agree with both of their Honours that the motion should be dismissed as incompetent and generally I agree with the reasons of Anderson J for reaching that conclusion.

39 In my view, it is not necessary to determine the question as to whether or not the relevant condition may "detrimentally affect not only the application for subdivision but also any purchases of the subdivided land", a view expressed by the first respondent when the application for subdivision was determined. In my opinion, it is not necessary for that issue to be resolved in these proceedings because, as expressed by Anderson J in his reasons, the appeal is incompetent.