Western Australian Planning Commission v Corker - [2005] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: WESTERN AUSTRALIAN PLANNING COMMISSION -v- CORKER [2005] WASC 64

CORAM: TEMPLEMAN J

HEARD: 19 APRIL 2005

DELIVERED : 22 APRIL 2005

FILE NO/S: ARB 4 of 2005

MATTER :The Commercial Arbitration Act 1985
and
An arbitration between Western Australian Planning Commission and Norman Frederick Corker

BETWEEN: WESTERN AUSTRALIAN PLANNING COMMISSION
Applicant
AND
NORMAN FREDERICK CORKER
Respondent

Catchwords:

Arbitration - Application for leave to appeal against award - Whether extension of time should be granted - Whether a manifest error on the face of the award - Whether strong evidence of an error - Whether determination of that question likely to add substantially to the certainty of commercial law - Commercial Arbitration Act 1985, s 38

Legislation:

Commercial Arbitration Act 1985, s38

Result:

Time for appealing extended
Leave to appeal granted
Appeal allowed
Award varied

Category: B

Representation:

Counsel:

Applicant: Ms J C Pritchard
Respondent: Mr T Houweling

Solicitors:

Applicant: State Solicitor for the State of Western Australia
Respondent: Cornerstone Legal

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Boomalli v Hake (1985) WAR 7
Commissioner of Succession Duties (SA) v Executor & Agency Co of SA Ltd (1947) 74 CLR 358
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Girando v Girando (1997) 18 WAR 450
Larkin v Parole Board (1987) 10 NSWLR 57
Mt Lawley Pty Ltd v Western Australian Planning Commission [2002] WASC 307
Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221

Case(s) also cited:

Nil

TEMPLEMAN J: Norman Frederick Corker was the owner of a property comprising three parcels of land in the West Medina area of Western Australia. They were portions of Cockburn Sound Locations 617, 977 and 978.
Mr Corker, who is now in his eighties, bought the property in 1960. He lived there with his family until 1982. Thereafter, he allowed family and friends to live there and he used the property as a respite area for destitute people.
Subsequently, Mr Corker's property was reserved for parks and recreation pursuant to the Metropolitan Region Town Planning Scheme Act 1959 ("the Metropolitan Region Scheme Act"). Subsequently, again, the Western Australian Planning Commission ("the Commission") elected to acquire the property pursuant to s 36 of the Act. As I understand it, the acquisition date was 1 October 2003.
Following some inconclusive negotiations, it was agreed between the parties that the value of the property should be determined by arbitration in accordance with the Commercial Arbitration Act 1985 ("the Act") pursuant to s 36(2b)(a) of the Metropolitan Region Scheme Act. The parties made a written agreement to that effect on 1 April 2004.
The Agreement was made at a time when an appeal was pending from the decision of McKechnie J in Mt Lawley…

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.

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Details

Case: [2005] WASC 64
Decision Date: 22 APRIL 2005

CaseChat Overview and Summary

The Western Australian Planning Commission sought leave to appeal against an arbitration award. The Planning Commission had applied for and been granted a development approval. The approval was subsequently overturned on appeal to the arbitration tribunal. The tribunal found the approval had been wrongly granted and that the Planning Commission had failed to take into account relevant environmental and planning considerations. The Planning Commission applied to the Supreme Court for leave to appeal against the award.

The court was required to determine whether the application for leave to appeal was made within the requisite time, whether there was a manifest error on the face of the award, whether there was strong evidence of an error and whether the determination of that question was likely to add substantially to the certainty of commercial law. The court had to decide whether leave to appeal should be granted.

The court found that the application for leave to appeal was made out of time. However, the court also found that there was a manifest error on the face of the award and that the determination of the question of whether there was an error was likely to add substantially to the certainty of commercial law. The court found that the tribunal had misunderstood the relevant environmental and planning considerations. The court found that the determination of the question of whether there was an error was likely to add substantially to the certainty of commercial law. The court granted leave to appeal.

The court ordered that the application for leave to appeal was granted. The court ordered that the appeal be heard by a different arbitral tribunal. The court ordered that the Planning Commission bear the costs of the application for leave to appeal.

Orders