Walter & Anor v RMPAT & Anor

[2002] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 2001

B e t w e e n -

ROBERT WALTER and PENNY WISSLER

Applicants

and

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

First Respondent

G. RIDLER

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 SEPTEMBER 2002, AT 4.37 PM

Copyright in the High Court of Australia

MR P.W. TREE:   If it please, your Honour, I appear for the applicants.  (instructed by FitzGerald and Browne)

MR G. RIDLER appeared in person.

GUMMOW J:   The Court holds a notification from the Deputy Registrar that the Office of the Director of Public Prosecutions, the solicitor for the first respondent, the Tribunal, will submit to any order of the Court save as to costs.  Yes, Mr Tree.

MR TREE:   Thank you, your Honours.  Your Honour, at the outset can I ensure that the respondent’s summary of argument, extending to three pages and dated 8 July 2002, has made its way before your Honours.

GUMMOW J:   Yes.

MR TREE:   And similarly can I ensure that the two‑page reply of the applicants dated 27 August 2002 has similarly made its way before your Honours.

GUMMOW J:   Yes.

MR TREE:   Thank you, your Honour.

GUMMOW J:   It has not only made its way, it has been studied.

MR TREE:   Thank you, your Honour.  Your Honour, whilst I am attending to housekeeping matters, can I address a typographical mistake at page 82 of the application book, line 99.

GUMMOW J:   Yes.

MR TREE:   Your Honours will see that there a statutory declaration is referred to as being dated “29th July, 1999”.  That should in fact be “29 June, 1999”.  The error first appears in the formal order taken out at page 54 of your Honours’ papers.  Your Honours will see that the first order refers to a statutory declaration dated 29 July.  If your Honours have any doubt about the date actually being June, it is regularly canvassed in the transcript of proceedings for ‑ ‑ ‑

GUMMOW J:   No, you are counsel, and we rely on what you say.  Now, perhaps your time should start now, Mr Tree.

MR TREE:   Thank you, your Honours.  Your Honours, this application arises out of what I submit were three errors made by his Honour Underwood, and in logical order but not in the order that they are dealt with in the material.  The errors which his Honour made, I contend, are firstly to order the removal of the affidavit and statutory declaration material that was before his Honour.  Secondly, a failure ‑ ‑ ‑

GUMMOW J:   What happened to it?  It just disappeared, did it?  It has left the court file.

MR TREE:   A very diligent court clerk literally attended to his Honour’s order and took it off the court file.  It certainly was not before the Full Court.  Your Honours will appreciate that Justice Slicer went to considerable pains to try and read notes and so forth that were on the court file, and it is apparent from that clearly the affidavits and statutory declarations had in fact been destroyed.  That is the first error, although as your Honours would no doubt appreciate, given the unusual nature of that order, it, whilst curious, perhaps is not necessarily the best point to be trying to sell a grant of special leave to your Honours in relation to because no doubt it is an unusual order and would not be ordinarily made.  Secondly, the error which I contend is ‑ ‑ ‑

CALLINAN J:   An order could have been made that the affidavits be struck out though, could it not?  Could not such an order have been made?

MR TREE:   Yes, it could have, your Honours.  Indeed, that was what his Honour Justice Underwood was, at least in part, toying with, is apparent from page 33 and 34.  At the bottom of page 33 at line 438 his Honour said:

the Court has an inherent power to strike out affidavits that are prolix.

CALLINAN J:    Yes.

MR TREE:   But over at the top of page 34 that is then translated into the question:

the issue before me at the present time is why I should not order removed from the file the statutory declaration of the prosecutors . . . as being prolix ‑ ‑ ‑

CALLINAN J:    Where is that?  Page 39, is it?

MR TREE:   Page 34, I am sorry, your Honour, line 444.

CALLINAN J:   Yes.

MR TREE:   So there seems to have been a move from striking out to actually ordering that they be removed from the file.

CALLINAN J:   There seems to have been some acquiescence in that by whoever represented your clients.  I do not say a full acquiescence but there does not seem to have been any complaint about the fact that rather than striking them out, the order, which does seem to me to be an unusual order, for their removal was made.

MR TREE:   I would certainly accept that a more robust defiance might have been able to be deployed on the occasion.

CALLINAN J:   The actual form of the order does not seem to have been in issue, although I agree with you, it is a very unusual form of order.  You see at page 48, line 884:

The fact is there are no affidavits in front of you with respect to my client.

To the extent that they might have been admissible or there may have been problems about form and the like, you could have exhibited them with your material in support of your application for special leave, could you not?

MR TREE:   Assuming that those before the court were copied and able to be verified as being exactly what was before the court, yes.

CALLINAN J:   Mr Tree, I do not know whether this is your best point, as you really did seem to be conceding, because there does not seem to have been any doubt - and I take whoever represented your clients to concede this - that the affidavits or statutory declarations, as they may have been, were very defective in form and they were also argumentative.

MR TREE:   Yes.

CALLINAN J:   And enough appears from the transcript to make that clear, I think.  So I do not really think that that is your best point, that the affidavits were, in effect, struck out.

MR TREE:   I accept that, your Honours, and indeed, in the posing of the special leave questions at page 80, your Honours will appreciate that it really falls as the third of the errors, at least in the order in which it is arranged in the argument, but logically it is as a matter of fact the first one to deal with because ‑ ‑ ‑

GUMMOW J:   We understand.

CALLINAN J:   We understand the point too, I think.

MR TREE:   Yes.  Your Honours, the only other matter which I should draw your Honours’ attention to in connection with this point is that in fact, for instance, at page 41 of the application book, your Honours will see line 680/681, that the actual order that was made in respect of the statutory declaration is that it be removed from the file so that there was not a canvassing of the options of merely striking it out.

CALLINAN J:   You do not file statutory declarations in the court though, do you?  You file affidavits.

MR TREE:   Yes, albeit that there may have been some misinformation directed towards the applicants in relation to the statutory declaration, but there is no point in canvassing that at this application, your Honours.

Logically, then, the next error which his Honour Justice Underwood fell into, I submit, is that his Honour failed to consider that the nature of the errors complained of by the applicants, or then prosecutors, before his Honour dealt with error of law and jurisdictional error and hence obliged his Honour to consider what was the record of the statutory tribunal that he was dealing with.

Now, there is no suggestion in the material before the learned primary judge that those sorts of issues addressed his Honour’s mind at all, rather, it seems to have been a fait accompli upon this process.  All of the affidavit statutory declarations, et cetera, had been removed from the file.  There was an application for an adjournment which was refused and his Honour then almost automatically, as if by default, then proceeded to discharge the general order.  So that there was not at all an advertence to the step of considering the record and of adverting to the fact that this was an error of law, or a jurisdictional error, which obliged his Honour to look at the face of the record.

Now, that issue was not apparently directly ventilated before his Honour, nor was it directly ventilated in the proceedings before the Full Court, however, it does seem to have been one of the matters adverted to by his Honour Justice Slicer at page 71 of the application book where his Honour at paragraph 49 commences upon articulating two bases for his dissent and his dissent would have seen, had it formed the majority, the appeal upheld.  The first basis deals with the removal of the court material.  That is at paragraph 49.  At paragraph 50 his Honour goes on to deal with the second basis for upholding the appeal, namely, that there was an obligation – I am not at about line 620:

(assuming that copies were annexed to one of the affidavits) –

of the relevant decisions to determine “on the basis of the remaining material” – I am now skipping over a couple of lines.  So that there seems to have been some almost instinctive advertence to the obligations imposed upon the court by Craig v South Australia, albeit that in neither the hearing of the initial application which saw the general order issued, nor in relation to the return of the general order, nor in relation to the appeal does Craig’s Case ever seem to have actually scored a mention on any occasion at all.

Now, of course, that is not only arguably the Court’s error but also must, in some respect, reflect upon the practitioners who from time to time have appeared for these parties.  I think it is the case that on no occasion have both parties been represented.  On each occasion, at least one of them has been unrepresented.  So there does seem to have been, whilst not an express argument about the application of Craig’s Case, some advertence to it at page 71 by his Honour Justice Slicer.

That this was an allegation or a complaint in respect of error of law in the face of the record, it is quite clear from the analysis of Justice Crawford at pages 59 to 60 of the application book – I will not stay to take your Honours through that ‑ but effectively, his Honour ‑ ‑ ‑

GUMMOW J:   Mr Tree, if we were to take the case, we would be influenced by our view of what the ultimate destination of it all was, namely, what was the outcome before the Tribunal, and one of the things that seem to have agitated the Tribunal was the failure to specify what your people’s case was all about.

MR TREE:   That was certainly one of the strands of concern which appears from the decision of the Tribunal.  There were a number of other strands including ‑ ‑ ‑

GUMMOW J:   Certainly, certainly, but is not that, perhaps of itself, sufficiently significant to make this an unproductive exercise for us to take the case on because, at the end of the day, would not we be wondering about the utility of any relief, given the way in which it was open to the Tribunal and one of the ways in which it did proceed?

MR TREE:   With respect, it proceeded without undertaking a hearing, and that is the central complaint.

CALLINAN J:   Mr Tree, could I just ask you this – and I do not want you to go into the details of it – but your clients’ complaint is about the use of land by the second respondent, is that right?

MR TREE:   Yes, your Honour.

CALLINAN J:   All right.  Now, if in fact the second respondent is continuing to use the land in an objectionable way giving rise to a right for your client to make an application, then your client can make a further application, is that not so?

MR TREE:   Yes, your Honour.

CALLINAN J:   Alternatively, if the second respondent is not using the land, then there would be no point in our entertaining an appeal because there would be no activity upon which any order would operate.  So there is no utility if the second possibility is right and if the first is right, then surely your clients’ resources would be much better expended in starting properly constituted proceedings, again, in the Tribunal?

MR TREE:   That is certainly one option for them, your Honour, but there are issues dealing with or potentially arising out of the dismissal of their application in respect of the section 64 application.

CALLINAN J:   There is no issue estoppel arising out of that dismissal.  If your clients can make a case in the Tribunal on improperly constituted proceedings, then they can go ahead and do it.

GUMMOW J:   Presumably, if there is wrongful activity, it is continuing and there is more wrongful activity.

CALLINAN J:   No order this Court would make on an appeal would produce any – the best result that could possibly be achieved for your clients would be for the matter to go back to the Tribunal anyway.  That would be the best possible result. 

MR TREE:   I accept that the logical conclusion of the success of an appeal is not going to see breaches of section 64 established or punished or in any way dealt with.  I accept that, your Honours.

Now, the issue of utility, however, does arise in addition ‑ in relation to the unfortunate errors which have compounded the Tribunal’s initial mistake successively thereafter, so that there are a range of additional errors which have accrued which remain unremedied.  Now, I ‑ ‑ ‑

GUMMOW J:   Yes, that may be right, but why do they engender permanent, irremovable prejudice as to the real dispute?

MR TREE:   Not as to the real dispute, but certainly as to three things:  firstly, the time at which the breach of section 64 first arose; secondly, questions as to costs of the proceedings in the courts below; and, thirdly, questions of error of principle which now stand to have some value as precedent, if not in the Commonwealth, then certainly in this State.  So that there are errors of principle which ‑ ‑ ‑

GUMMOW J:   Well, wait a minute.  The first point, I think is answered by what Justice Callinan has been putting to you.  The second point, costs, we understand.  What is the third point?  What are the errors of principle that would have some compulsive and final detrimental effect hereafter on your clients’ position?

MR TREE:   I am not suggesting that those errors of principle restrict themselves to the applicants, your Honour.  I am saying that the errors of approach of the primary judge and the Full Court stand to inhibit the exercise of prerogative relief.

GUMMOW J:   We could deal with that.

MR TREE:   And it may be that a subsequent court chooses not to follow the approach of the Full Court on this occasion if the matter were properly ventilated.  I accept that that is another argument.

GUMMOW J:   What is the point of principle about prerogative writs that would clog up the system in Tasmania?

MR TREE:   I am not suggesting it would clog up the system, your Honour, but the point is that, on this occasion, the court has chosen to deal with its role ‑ ‑ ‑

GUMMOW J:   Is the point about Craig v South Australia?

MR TREE:   Yes. 

GUMMOW J:   I see.  Well, that binds all courts.

MR TREE:   It is an approach which would be highly persuasive on a single judge in this State.

GUMMOW J:   But is there detailed consideration of Craig in the Full Court?

MR TREE:   No, and, indeed ‑ ‑ ‑

GUMMOW J:   Well, yes.

MR TREE:   And, indeed, clearly any counsel would argue that this decision in the Full Court was per incuriam Craig.

CALLINAN J:   There is another matter, Mr Tree, that occurs to me that, having regard to what seems to me to have been a rather inexplicable, if not to say obstinate, refusal by your clients to provide particulars, that might not provide a discretionary basis for refusing prerogative relief, even if, formally, grounds were made out for it, because they are discretionary remedies.

MR TREE:   I accept that, your Honour.

CALLINAN J:   And your clients’ conduct – and I do not say this in any particularly critical way – was very determined and it was persistent and it was in the face of a number of opportunities given to them by the Tribunal.

MR TREE:   Yes.

CALLINAN J:   Now, that might provide a very good basis for discretionary refusal of prerogative relief.

MR TREE:   I would certainly concede it might provide a consideration militating against the grant of prerogative relief.

CALLINAN J:   And a further discretionary ground might be all of the expense that the other respondents ‑ the second respondent, was being put to by all of these proceedings.  It seems to me that that might be a very compelling reason, particularly when your clients can go again in the Tribunal if they want to.

MR TREE:   I accept the force of your Honour’s submissions but, of course, those considerations which presumably would have weighed upon Justice Wright’s mind in determining whether to grant the general order in the first place ‑ ‑ ‑

CALLINAN J:   He only granted an order nisi.  He did not grant an order absolute.  You never got an order absolute.

MR TREE:   I accept that, your Honour.

CALLINAN J:   And all you need show is some kind of a prima facie basis for an order nisi.

MR TREE:   Yes, I accept that.  My point is simply this:  those sorts of considerations were not sufficient, or sufficiently powerful to motivate his Honour to refuse to at least go to the first stage.  So that in so far as

those considerations have been put to the test, the test on the occasion they were ‑ ‑ ‑

GUMMOW J:    No.  What we would be doing here would be what the Full Court should have done.  One of the things the Full Court should or might have done was to have regard to these discretionary considerations.  You see what I mean?

MR TREE:   Yes.  I accept that, your Honour.  My point is a very slender one:  that in so far as those were the sorts of considerations that arose at the time of the grant of the order nisi, they were not of sufficient weight to ‑ ‑ ‑

CALLINAN J:   Mr Tree, courts do not explore those sorts of matters when an order nisi is granted usually.  Those matters are explored usually on the return of the order nisi.

MR TREE:   And I accept the force of that too, your Honour.  In so far as they have been before the court, the consequence - and one does not even know that they were considered necessarily by the learned primary judge who dealt with the order nisi, but in so far as they may have been, they did not have sufficient weight to cause his Honour not to grant the order.  Otherwise I rely on my written submissions, your Honour.

GUMMOW J:   Yes, thank you, Mr Tree.  We will take a short adjournment.

AT 5.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 5:04 PM:

GUMMOW J:   Yes, we do not need to hear from you, Mr Ridler.

The applicants made an application to the first respondent which is the Resource Management and Planning Appeal Tribunal of Tasmania.  They did so in respect of land used by the second respondent.  The applicants repeatedly refused to provide particulars sufficient to identify the basis upon which their case might be maintained and to provide evidence of their capacity to meet an order for costs if their application were to fail.

Ultimately, the Tribunal, the first respondent, dismissed their application by reason of these refusals.  The applicants then obtained from a judge of the Supreme Court of Tasmania an order nisi requiring the first respondent to show cause why its decision to dismiss the application should not be quashed for want of jurisdiction to make the orders it did, the failure to comply with which had led to the dismissal of the applicants’ application and the making of orders for costs against them.

On the return of the order nisi the second respondent objected to the reception of the affidavits upon which the applicants sought to rely for their order absolute, submitting that they did not state facts and were argumentative in form.  The objection was upheld and the affidavits, effectively, were struck out.  The affidavits are not before this Court.  The applicants who were legally represented accepted that unless an adjournment to file further affidavits were granted, the order nisi should be discharged.

No adjournment was granted and the order nisi accordingly was discharged.  The applicants then appealed to the Full Court of the Supreme Court of Tasmania and by a majority their appeal was dismissed.  Both in the Full Court and in their application here, the applicants again argued that the Tribunal had no power to order that the applicants provide evidence of their capacity to pay costs before the conclusion of the proceedings in the Tribunal.

They also have argued that their original application to the first respondent contained sufficient particulars to enable the second respondent to attempt to meet their case.  Further, they contended that the Supreme Court should not have rejected the affidavits that they had filed there.

The application for special leave should be refused.  All that could be said for the applicants has been well and properly put by Mr Tree.  The persistent and repeated refusal of the applicants to provide particulars of their claim was sufficient to justify the dismissal by the first respondent.  Further, those considerations would also have been highly relevant to a refusal of prerogative relief on discretionary grounds.  We also note that as counsel for the applicants properly conceded, the applicants are not precluded by what has happened so far in these proceedings from bringing another application in proper form to the Tribunal.  In all the circumstances, any appeal to this Court would not enjoy sufficient prospects of success to justify a grant of special leave.

We should say that we express no opinion as to the jurisdiction of the Tribunal to make the order that it did with respect to the appellants capacity to pay costs at a time when it made it or as to the correctness, or otherwise, of the effective striking out in the circumstances of such parts of the applicants’ affidavits filed in the Supreme Court as did no more than set out or exhibit the transcript of the proceedings before the Tribunal.

The special leave is refused and refused with costs.

AT 5.09 PM THE MATTER WAS CONCLUDED