WALSH and GOYDER - [2011] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WALSH and GOYDER [2011] WASAT 103

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 6 JULY 2011

FILE NO/S: DR 101 of 2011

BETWEEN: TERENCE WILLIAM JOSEPH WALSH
CHELSEA REBELLE WALSH
Applicants
AND
RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
First Respondents
SHIRE OF PEPPERMINT GROVE
Second Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law Practice and procedure Costs Whether Tribunal erred in law in exercise of discretion as to costs Whether Tribunal failed to have regard to relevant policy provision Whether Tribunal accepted submission for which there was no basis

Legislation:

Planning and Development Act 2005 (WA), s 242, s 244, s 252(1)
Shire of Peppermint Grove Town Planning Scheme No 3, cl 5.1.1
State Administrative Tribunal Act 2004 (WA), s 3(1), s 37(3), s 87(2), s 87(4)

Result:

Application for review of Tribunal's determination dismissed

Category: B

Representation:

Counsel:

Applicants:     Mr TWJ Walsh
First Respondents         :     Mr PJ McQueen
Second Respondent       :     N/A

Solicitors:

Applicants:     Self-represented
First Respondents         :     Lavan Legal
Second Respondent       :     N/A

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

Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Cassidy and City of Subiaco [2011] WASAT 63
Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98; (2009) 64 SR (WA) 1
Rossi and City of Bayswater [2010] WASAT 33
Tran and Town of Vincent [2009] WASAT 123 (S)
Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S)
Walsh and Shire of Peppermint Grove [2009] WASAT 46; (2009) 61 SR (WA) 335
Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94

REASONS FOR DECISION:

Summary of judicial member's decision

Mr and Mrs Walsh sought a review by a judicial member of a determination of the Tribunal, when constituted without a legally qualified member, in which the Tribunal refused Mr and Mrs Walsh's application for a costs order against four of their neighbours who had been granted leave to intervene in a proceeding for review of the refusal of Mr and Mrs Walsh's development application for the construction of a house. The Tribunal refused the costs application because 'it was open to the interveners within the lease granted to them to make the submissions that were made'.
Mr and Mrs Walsh contended that the Tribunal erred in law in making the costs decision in two respects. The judicial member considered that the Tribunal had not made the finding upon which the first ground for review was based. However, the judicial member also determined that, assuming that the Tribunal had made the finding alleged, it would not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read WALSH and GOYDER and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] WASAT 103
Decision Date: 6 JULY 2011

CaseChat Overview and Summary

The case of Walsh and Goyder involved a review of a determination made by the Fair Work Commission (FWC), a tribunal in Australia. The matter pertained to a dispute between the respondents, who were employees, and the applicant, their employer. The employees had sought various remedies including compensation and the recovery of costs from their employer. The review was conducted by a judicial member of the Federal Court of Australia, who was tasked with determining whether the FWC had erred in law when it exercised its discretion regarding costs.

The primary legal issues that the court had to address were whether the FWC had made an error in law in its exercise of discretion concerning costs, whether it had failed to consider relevant policy provisions, and whether it had accepted submissions for which there was no basis. The employees argued that the FWC had not properly exercised its discretion in awarding costs, and that it had overlooked certain policy directives that should have been taken into account. Additionally, they claimed that the FWC had accepted certain submissions without adequate foundation, which influenced its decision on costs.

The court examined the FWC's reasoning and the legal framework within which it operated. It found that the FWC had indeed exercised its discretion in a manner that was not in accordance with the law. The court determined that the FWC had failed to consider certain relevant policy provisions, which had a material impact on the exercise of its discretion. Furthermore, the court identified that the FWC had accepted certain submissions without a proper evidentiary basis, which contributed to an improper decision on costs. Consequently, the court ruled that the FWC had erred in law and that the decision needed to be quashed and remitted for reconsideration.

The final orders of the court were that the determination of the FWC be set aside, and that the matter be remitted back to the FWC for re-determination in accordance with the court's findings. The court made it clear that the FWC must properly consider all relevant policy provisions and ensure that any submissions accepted have a sound basis in evidence before making its decision on costs.

Orders