Western Australian Planning Commission v Dungey
[2010] WASC 52
•16 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WESTERN AUSTRALIAN PLANNING COMMISSION -v- DUNGEY [2010] WASC 52
CORAM: BEECH J
HEARD: 3 MARCH 2010
DELIVERED : 16 MARCH 2010
FILE NO/S: GDA 13 of 2009
BETWEEN: WESTERN AUSTRALIAN PLANNING COMMISSION
Appellant
AND
BEVERLEY MARK NORTON DUNGEY
ANGELA DUNGEY
Respondents
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR D R PARRY (SENIOR MEMBER)
File No :DR 286 of 2009
Catchwords:
Courts and tribunals - Statutory right to elect that no party be represented by a legal practitioner - Whether preparation of documents to be filed in tribunal amounts to representation by a legal practitioner - Whether representation concerned only with hearings
Words and phrases - 'represented by a legal practitioner'
Legislation:
Planning and Development Act 2005 (WA), s 239
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr C S Bydder
Respondents : Mr M J Hardy
Solicitors:
Appellant: State Solicitor for Western Australia
Respondents : Hardy Bowen
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Baker v Campbell (1983) 153 CLR 52
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543
Dungey v Western Australian Planning Commission [2009] WASAT 230
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Victims Compensation Fund Corporation v Brown [2003] HCA 54
BEECH J:
Introduction
This appeal concerns the scope of the right of election conferred by s 239(1) of the Planning and Development Act 2005 (WA) (the Planning Act).
Section 239(1) provides that in certain categories of applications for review of a planning decision, the applicant may elect that no party to the application is to be represented by a legal practitioner. If such an election is made, s 239(2) provides that, with certain exceptions, no party to the application is entitled to be represented by a legal practitioner. This appeal turns on the meaning of 'represented by a legal practitioner' within the meaning of s 239(2). In Dungey v Western Australian Planning Commission [2009] WASAT 230 the State Administrative Tribunal (the Tribunal) held that if a legal practitioner prepares a statement of issues, facts and contentions, witness statement, pleading or other document to be filed, the party has been 'represented by a legal practitioner'.
The appellant, the Western Australian Planning Commission (the WAPC), appeals against that decision, submitting that, in its context, the phrase 'represented by a legal practitioner' is confined to appearances by a legal practitioner at a Tribunal hearing. For the reasons that follow, I accept the WAPC's submission.
It is convenient to begin with the relevant legislative framework.
The legislative framework
Section 239 of the Planning Act is in the following terms:
239. Representation
(1)In the case of an application described in section 237A(2) the applicant may, at the time the application is made, elect that no party to the application is to be represented by a legal practitioner.
(2)If an applicant makes an election under subsection (1), no party to the application is entitled to be represented by a legal practitioner unless ‑
(a)the President, being of the opinion that the application is likely to raise complex or significant planning issues, directs that the parties may be so represented;
(b)the President, having regard to whether the application involves a question of law, directs in any other case that the parties may be so represented;
(c)the applicant is a legal practitioner; or
(d)the applicant withdraws the election.
Section 239 refers to applications described in s 237A(2). Section 237A provides:
237A. Constitution of State Administrative Tribunal
(1)When exercising the jurisdiction referred to in section 236(2), the State Administrative Tribunal is to be constituted under this section and section 238.
(2)The State Administrative Tribunal is to be constituted by one Tribunal member when it is dealing with an application for a review of the determination of, or conditions imposed in respect of ‑
(a)a development application to commence a development of a value of less than $250 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004; or
(b)a development application to commence a development of a single house on a single lot where the development is of a value of less than $500 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004, or any development ancillary to that development; or
(c)an application for approval to subdivide a lot into not more than 3 lots.
(3)The State Administrative Tribunal is to be constituted by one Tribunal member when it is dealing with an application that the applicant, with the agreement of each other party, has elected at the time of making the application to have determined by one Tribunal member.
(4)If ‑
(a)subsection (2) or (3) does not apply; or
(b)the President is of the opinion that an application referred to in subsection (2) or (3) is likely to raise complex or significant planning issues,
the State Administrative Tribunal is to be constituted under section 11 of the State Administrative Tribunal Act 2004.
Sections 39 and 60 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) are also relevant. Those sections are in the following terms:
39. Representation
(1)At a hearing in a proceeding before the Tribunal a party to the proceeding may appear in person or may be represented by another person, but a party cannot be represented by a person other than a legal practitioner unless ‑
(a)the party is a body corporate and the person is a director, secretary, or other officer of the body corporate;
(b)the party is a public sector body as defined in section 3(1) of the Public Sector Management Act 1994 and the person is a public sector employee authorised by the party to represent it;
(c)the party is a party in the course of or because of the performance, or purported performance, of his or her duties as a public sector employee and the person is another public sector employee authorised by the party to represent him or her;
(d)the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding);
(e)the Tribunal agrees to that person representing the party, and any conditions imposed by the Tribunal are satisfied; or
(f)the regulations or the rules authorise it.
60. Electronic hearings and proceedings without hearings
(1)If the Tribunal thinks it appropriate, it may allow the parties and their representatives and any witnesses (or one or more of them) to participate in a hearing in a proceeding by means of telephones, video links, or any other system or method of communication.
(2)If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.
(3)If the Tribunal conducts a proceeding in accordance with this section, the Tribunal is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the Tribunal with the attendance in person of all persons involved in the proceeding.
(4)Provisions of this Act applying in relation to hearings (other than section 61 or 63) apply with any necessary modifications in relation to a proceeding conducted in accordance with subsection (2).
The relevance of s 39 will appear more clearly when I turn to the legislative history.
Next, I will outline the factual context of the Tribunal's decision and the reasoning of the tribunal.
The factual context
The facts can be stated briefly.
On 24 July 2009 Mr and Mrs Dungey sought review by the Tribunal pursuant to s 251(1) of the Planning Act of the decision by the WAPC to refuse their application for a two lot subdivision of their property. Because the application for review related to a subdivision of a lot into not more than three lots, it was an application of the kind described in s 237A(2) of the Planning Act.
On the application form Mr and Mrs Dungey elected that no party be represented by a legal practitioner, thereby engaging s 239(2) of the Planning Act.
On 19 August 2009 the Tribunal directed the WAPC to file and serve a statement of issues, facts and contentions and a bundle of documents required by s 24 of the SAT Act. The WAPC filed those documents. Each document stated on the cover page that it was prepared by 'Timothy Sharp, State Solicitor for Western Australia'.
On 8 September 2009 the Tribunal vacated the final hearing date and made an order that the application for review be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Pursuant to directions made by the Tribunal on that day, the WAPC filed an amended statement of issues, facts and contentions, a supplementary s 24 bundle, written submissions and written submissions in reply. Like the earlier documents filed by the WAPC, each document stated that it was prepared by 'Timothy Sharp, State Solicitor for Western Australia'.
In early November 2009, Mr and Mrs Dungey's agent wrote to the Tribunal complaining that documents lodged by the WAPC had been authored by Mr Sharp of the State Solicitor's Office.
In response, the Tribunal listed the matter for hearing 'in order for the tribunal to consider whether the respondent's use of the State Solicitor's Office in th[e] matter contravene[d] s 239 of the [Planning Act]'.
On 17 November 2009 the Tribunal delivered reasons for decision concluding that the WAPC had contravened s 239. The Tribunal ordered that the WAPC file various further documents to be prepared by officers and agents of the WAPC who are not legal practitioners and who have not seen or discussed the contents of any of the documents already filed.
The Tribunal's decision
In Dungey v Western Australian Planning Commission the Tribunal concluded that the WAPC had been represented by a legal practitioner, within the meaning of s 239(2) of the Planning Act in that the State Solicitor's Office had prepared the WAPC's statement of issues, facts and contentions, s 24 bundles of documents, written submissions and written submissions in reply.
The reasoning of the Tribunal can be summarised in the following way:
(a)the dictionary definition of 'represent' includes 'to stand or act in the place of or as a substitute, proxy or agent' and 'to speak and act for by delegated authority' [22];
(b)to prepare the various documents filed by WAPC was to stand and act in the place of the WAPC as a substitute, proxy or agent and to speak and act for [23];
(c)this was reinforced by the fact that the application for review was to be determined entirely on the papers pursuant to s 60(2) of the SAT Act [24];
(d)however, the same conclusion applies to a review that is to be the subject of an oral hearing as in either case, the Tribunal refers to and relies upon the documents in its determination of the application [24];
(e)the right of election under s 239 cannot have a different effect depending on whether the application for review is adjudicated by an oral hearing or by a determination entirely on the documents [24];
(f)consideration of the explanatory notes and Second Reading Speech to the predecessor to s 239 reveals that the purpose of giving applicants the right to elect is 'in order to ensure the appeals process is as informal as possible' [25];
(g)that purpose is not achieved where lawyers prepare documents to be filed and served because a lawyer's involvement necessarily brings 'an element of formality in the content and expression of documents that would be absent without them' [26];
(h)s 239 of the Planning Act does not restrict an applicant's election in a Class 1 application to representation at a hearing, but rather applies to representation 'in relation to the application for review' [28];
(i)an election under s 239(1) does not preclude a respondent from obtaining legal advice in relation to the application, but does preclude a respondent from relying on a document required by the Tribunal that is prepared by a legal practitioner on behalf of the respondent [29].
The appellant challenges almost all of these aspects of the Tribunal's reasoning.
The Tribunal's reasons refer to the Planning Act in its form prior to the amendments made by Act No 5 of 2008. Those amendments repealed s 238(3) and (4) and inserted s 237A. However, nothing turns on this.
The appeal
The WAPC appeals against the Tribunal's decision on the ground that it erred in law in holding that the WAPC had been represented by a legal practitioner within the meaning of s 239 of the Planning Act.
The appeal is on a question of law, as required by s 105 of the SAT Act.
On 8 January 2010 leave to appeal under s 105(1) of the SAT Act was granted.
As the appeal turns on the proper construction of s 239, I will outline the principles relevant to the process of a statutory construction.
Statutory construction: principles
The starting point for the construction of a statute is the text. Statutory construction is a 'text based activity': Alcan (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4], [47]; Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 [16]. In Alcan Hayne, Heydon, Crennan and Kiefel JJ said the following about the task of statutory construction:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy [47].
In that passage, their Honours referred to the limits of the use of historical considerations and extrinsic materials when the text has a clear meaning. As I will later explain, and as counsel for the respondent concedes, in this case the text does not have a clear meaning.
It is well established that the language of the words of the statute must be interpreted having regard to their context and the legislative purpose. Context is used in a wide sense: Alcan [4]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [153] ‑ [155]. For convenience, I repeat the statement of principles set out in Mijatovic.
In determining a question of construction of statutes, attention is to be given to considerations of context, object, and inconvenience or improbability of result.
In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11] McHugh ACJ, Gummow and Hayne JJ restated the following principles of statutory interpretation, by reference to earlier authorities:
In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112, McHugh J observed:
'[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.'
His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said (408):
'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' (footnotes omitted)
In the passage from CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, set out above, Brennan CJ, Dawson, Toohey and Gummow JJ cited with approval the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 - 321, where their Honours said:
If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.
... the propriety of departing from the literal interpretation is not confined to situations described by these labels [namely absurd, extraordinary, capricious, irrational or obscure]. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
By s 18 of the Interpretation Act 1984 (WA) a construction that would promote the purpose or object underlying a written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object. That section is not directed to a construction which better achieves the object of an Act. Rather, the section assists when there is a choice between a construction that would promote the underlying object or purpose of the Act, and one which would not: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262. Nevertheless, as the principles set out above demonstrate, quite apart from the Interpretation Act, at common law the court has regard to the evident purpose and context, in its wide sense, when construing legislation.
A provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
Section 19 of the Interpretation Act identifies extrinsic material which a court may consider in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. Such material includes any explanatory memorandum relating to the Bill and the Second Reading speech. However, secondary materials must not be substituted for the text of the legislation: K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53]. The words of the statute, not non‑statutory words seeking to explain them, are of paramount significance: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22]; see also [82] ‑ [84].
Consistently with the principles I have stated, I begin with consideration of the text and language of s 239.
Textual considerations of s 239 of the Planning Act
The primary issue in the appeal is the proper construction of the word 'represented' in the phrase 'represented by a legal practitioner'. The question is whether 'represented by a legal practitioner' refers only to a legal practitioner appearing on behalf of a party to an appeal at a Tribunal hearing, or whether it carries the wider meaning adopted by the Tribunal. This wide meaning encompasses the preparation by a legal practitioner of documents required to be filed at the Tribunal for the purposes of an appeal. The WAPC contends for the narrower meaning; the respondent supports the wider meaning adopted by the Tribunal.
The Planning Act does not define the term 'represented' or 'representation'. The parties agree that the various dictionary definitions of 'represent' did not provide any clear answer to the question of meaning. To the contrary, the word 'represented' is capable of shades of meaning that could encompass both the narrow and the wider construction.
Some relevant dictionary definitions were helpfully collected in the WAPC's submissions:
The Macquarie Dictionary Online [< at 7 March 2010] relevantly defines:
(a)the verb 'represent' to mean '3. to stand or act in the place of, as a substitute, proxy, or agent. 4. to speak and act for by delegated authority: to represent one's government in a foreign country';
(b)the noun 'representation' to mean '1. the act of representing. 4. speech or action on behalf of a person, body, business house, district, or the like by an agent, deputy or representative';
(c)the adjective 'representative' to mean '1. serving to represent; representing. 2. standing or acting for another or others'; and
(d)the noun 'representative' to mean '7. someone or something that represents another or others. 10. an agent or deputy; a legal representative'.
The Oxford English Dictionary Online [< at 7 March 2010] defines:
(a)the verb 'represent' to mean '1. a. To assume or occupy the role or functions of (a person), typically in restricted, and usually formal situations; to be entitled to speak or act on behalf of (a person, group, organization, etc.); (in later use esp.) to act or serve as the spokesperson or advocate of … b. Originally: to occupy or assume (the status, role, etc.) of a person or group of people (obs.). In later use: to serve as a representative of (the interests, etc.) of a person or group';
(b)the noun 'representation' to mean '3. a. The fact or process of standing for, or in the place of, a person, group, institution, etc., esp. with the right or authority to speak or act on behalf of these; (in later use also) the action or fact of representing a party in a legal case';
(c)the adjective 'representative' to mean '1. a. That stands in the place of a person or thing; spec. …(b) that speaks or acts on behalf of a wider body or group of people… b. Of, relating to, or based on the fact of one person, group, or thing standing in the place of another …';
(d)the noun 'representative' to mean '3. a. More generally: a person who stands for, speaks, or acts on behalf of another person or group of people, typically in an official capacity…'
The concept of standing or acting in the place of another person is a common theme of these definitions. That concept plainly encompasses an appearance by a legal practitioner on behalf of a party at a hearing. Whether it also encompasses preparing documents on behalf of a party to be filed in legal proceedings is less clear. The WAPC submits that preparing documents for a party to an appeal does not amount to standing or acting in the place of a party and thereby representing that party, at least in circumstances where (as here) the documents are not signed on behalf of the party to the appeal. For reasons which will emerge, it is not necessary to consider that submission in isolation from the context of the s 239. Part of that context is the legislative history, to which I now turn.
The legislative history
Prior to the Planning Appeals Amendment Act 2002 (WA) there was no right to elect not to have legal representation in planning appeals. At that time, planning cases were conducted in the Town Planning Appeal Tribunal constituted under the Town Planning and Development Act 1928 (WA) (the Town Planning Act). The Planning Appeals Amendment Act inserted pt V in the Town Planning Act. Part V included s 58 of the Town Planning Act, which was, when enacted, in the following terms:
(1)A party to an appeal may
(a)appear personally; or
(b)subject to subsection (4), be represented by an agent or legal practitioner.
…
(3)An appellant in an appeal referred to in section 40(3) may, at the time the appeal is commenced, elect that no party to the appeal is to be represented by a legal practitioner.
(4)If an appellant makes an election under subsection (3), no party to the appeal is entitled to be represented by a legal practitioner unless ‑
(a)the President has given a direction under section 40(4) in respect of the appeal;
(b)the President, having regard to whether the appeal involves a question of law, directs that the parties may be so represented;
(c)the appellant is a legal practitioner; or
(d)the appellant withdraws the election.
Section 58(3) and s 58(4) were repealed when the Town Planning Act was repealed and replaced by the Planning Act in 2005. Section 239 of the Planning Act is to substantially the same effect as s 58(3) and s 58(4) of the Town Planning Act. At the hearing of this appeal, the parties agree that the scope of 'represented' in s 239 is the same as the scope of 'represented' in s 58(3) and s 58(4).
As the WAPC's submissions emphasise, the Tribunal referred to s 58(3) and s 58(4), but did not refer to s 58(1) of the Town Planning Act. On appeal, counsel for the respondents correctly concedes that the proper construction of s 58(3) and s 58(4) must take account of s 58(1). In particular, the meaning of the phrase 'represented by a legal practitioner' in s 58(3) and s 58(4) must take account of and be consistent with the use of that phrase in s 58(1)(b). Subsection (4) is expressed, in s 58(1)(b), to be an exception or qualification to the general entitlement of a party to appear personally or to be represented by an agent or legal practitioner. Section 58(1) makes representation by an agent or a legal practitioner an alternative to appearing personally. The two alternatives cover the universe of possibilities. Consequently, the scope of what is meant by being 'represented by a legal practitioner' must be construed consonantly with the words 'appear personally'. As I understand it, that is accepted by the counsel for the respondents in the appeal.
The parties contend for different constructions of s 58(1). The WAPC contends that:
(1)in its context, 'appear personally' meant physically appearing in person at a hearing before the Tribunal; and
(2)consistent with that, the phrase 'represented by a legal practitioner' referred to a legal practitioner appearing on behalf of a party at a hearing.
Against this, the respondents submit that:
(1)'appear personally' should be construed to mean acting on one's own behalf in the proceedings; and
(2)a party was 'represented by a legal practitioner' if the practitioner acted for the party in the proceedings, including preparing documents to be filed in the proceedings.
I will complete my outline of the legislative history before resolving this construction issue.
On 1 January 2005 s 58(1) of the Town Planning Act was repealed by s 1208 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (the Repeal Act). That Act was enacted contemporaneously with the SAT Act. The explanatory notes to the Repeal Act explain the repeal of s 58(1) as follows:
Section 58 of the Town Planning and Development Act 1928 provides that an applicant may elect that no party to the application is to be represented by a legal practitioner, with the President retaining the authority to direct otherwise in certain circumstances. Subsections 58(1) and 58(2) of the Act refer to previous provisions under the Town Planning Tribunal. As the functions of the Tribunal are to be subsumed by the State Administrative Tribunal, this division is irrelevant and is therefore being repealed.
Subsections 58(3) and 58(4) of the Town Planning and Development Act 1928 outline the processes that are to apply to the State Administrative Tribunal. The terminology in the subsections is to be amended to better reflect the nature of the administrative actions involved.
At the same time, s 58(3) and s 58(4) were amended, but without altering their substance. The parties accept that the amendments to s 58(3) and s 58(4) did not alter their scope. In particular, the meaning of 'represented by a legal practitioner' was unchanged.
I have set out the provisions of s 39 of the SAT Act earlier in these reasons. It can be seen that s 39 relates to what may happen 'at a hearing' in a proceeding before the Tribunal. The WAPC submits that in this respect, s 39 made explicit what was implicit in s 58(1) of the Town Planning Act. That submission can be understood in either of two ways. First, it may reflect a conclusion derived after first construing s 58(1) of the Town Planning Act, independently of the terms of s 39(1) of the SAT Act, in the manner summarised in [41] above. Alternatively, it may invite a consideration of the terms of s 39 of the SAT Act, in the context of the legislative history, to support the adoption of the WAPC's construction of s 58(1). Whilst the position of the WAPC seemed to alter in this respect at different points in the course of the hearing of the appeal, ultimately, it appears to invite the second approach. That approach seems to me to be unconventional, in that it invites a form of retrospective construction of an earlier Act by reference to what was subsequently enacted (in the SAT Act). In any event, it is not necessary to come to any final view on this submission because independently of s 39 of the SAT Act, I construe s 58(1) of the Town Planning Act as being concerned only with hearings before the Tribunal. I turn to explaining my reasons for that construction.
The meaning of 'represented by a legal practitioner' in s 58 of the Town Planning Act and s 239 of the Planning Act
It follows from what I have already said that the meaning of the phrase 'represented by a legal practitioner' in s 58(1) of the Town Planning Act and the same phrase in s 239 of the Planning Act can be considered together.
In my opinion, on a proper construction, a party to an appeal is 'represented by a legal practitioner' only when a legal practitioner appears at a hearing on behalf of the party. In summary, that is because:
(1)textual considerations, in particular the words 'appear personally' in s 58(1)(a), favour this construction;
(2)this construction is reinforced by the Second Reading speech of the Minister; and
(3)the consequences of the wider construction adopted by the Tribunal make that construction less likely to have been intended by Parliament.
I now explain those conclusions and deal with some other submissions made by the parties.
Textual considerations of s 58 of the Town Planning Act
I have set out the competing constructions of s 58(1) earlier in these reasons [41] ‑ [42]. I accept that the language of s 58(1) is open to both interpretations contended by the parties. In particular, the word 'appear' in the context of 'appear personally' can be used in different senses. It may refer to a physical appearance at a hearing, or to taking a formal role in legal proceedings, as usually assumed by a legal practitioner. However, that latter usage is generally confined to appearing by a defendant. Apart from at a hearing, a plaintiff is not usually said to 'appear' in proceedings, either personally or by a practitioner. In my opinion, the phrase 'appear personally' more comfortably and naturally refers only to someone appearing in person at a hearing than to the broader meaning invited by the respondents.
The Second Reading speech introducing s 58 of the Town Planning Act
The Minister's Second Reading speech in introducing the Planning Appeals Amendment Act included the following:
Division 2 deals with how the tribunal will be constituted for an appeal. The president will determine how the tribunal is to be constituted, and it may comprise one or three members. One of the objectives of the Bill is that the new appeal system will operate with as little formality and technicality as possible and will provide determinations as rapidly as possible, consistent with sound decision making. With this objective in mind, the Bill provides for the constitution of the tribunal for an appeal to be determined on the basis of the degree of complexity and formality appropriate to its resolution. For more simple cases - developments of less than $250,000, subdivisions of not more than three lots, and other classes of appeal set out in the Town Planning Appeal Tribunal rules - the appeals will be conducted with a degree of informality and flexibility similar to that found in the Small Claims Tribunal. Those appeals will be heard by a single ordinary member. The hearings will be conducted in an informal atmosphere. The emphasis will be on inquisitorial rather than adversarial processes. However, if the president is of the opinion that an appeal is likely to raise complex or significant planning issues, he may direct that the appeal be determined by a senior member or by the tribunal constituted by three members.
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Division 4 deals with the proceedings of the tribunal. All planning appeals and related referrals, which currently are made to the minister or the tribunal, in future will be made to the tribunal. All procedures for lodging appeals, giving notice, attendance at hearings and related matters will be contained in the rules and regulations. The tribunal will have the power to affirm the original determination or direction, vary or set it aside, or make another determination or direction. The tribunal may also make ancillary or incidental orders. The procedures of the tribunal embrace the concept of natural justice and procedural fairness, ensuring that no party is disadvantaged by the process. Within this context, the tribunal will deal with each appeal with as little formality and technicality as possible to provide soundly based outcomes in the minimum time. Parties who attend a hearing may appear personally or be represented by an agent or legal practitioner. To ensure the appeals process is as informal as possible, legal representation for the more simple appeals mentioned previously would be elected by the appellant at the time the appeal is lodged. If the appellant elects not to have legal representation, no party to the appeal will be entitled to representation by a legal practitioner. For other appeals, including those of a more complex nature or which raise questions of law, parties may be represented by a legal practitioner if they choose. An appellant who is a legal practitioner may appear and legal representation may be permitted in cases in which an appellant subsequently withdraws an election not to have legal representation (emphasis added): Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2001, 1583 (The Hon A MacTiernan, Minister for Planning and Infrastructure)
The Tribunal referred to the Second Reading speech in stating that the purpose of the provision was 'to ensure the appeals process is as informal as possible'. That proposition is supported by the second italicised sentence in the passage set out above. However, in my respectful opinion, when the relevant parts of the Minister's speech are read as a whole, the speech does not support the construction adopted by the Tribunal.
In my opinion, all of the italicised portion of the Minister's speech is concerned with s 58 of the Town Planning Act. The first sentence relates to s 58(1); the second sentence to s 58(3); the third to the opening words of s 58(4); the fifth to the exceptions in s 58(4)(a) and (b); and the last sentence to the exceptions in s 58(4)(c) and (d). Thus, it seems to me that everything that is said in the italicised passages should be read in the context of the first sentence. The first sentence refers to parties who personally attend a hearing. Consequently, the Minister's speech seems to me to reinforce the construction of s 58(1) that I favour.
Other purpose arguments
Both parties advance arguments that the evident purpose of the relevant legislation favours their particular construction of s 58(1) and s 239. For the reasons that follow, I do not accept those arguments.
The respondents submit that the purpose of the legislation was to create a right of election that had an attendant benefit. The purpose of the legislation, the submission continues, was to permit an appellant to elect to reduce his or her own costs without a consequent disadvantage as against the other side, thereby 'ensuring a level playing field' (ts 48 ‑ 49). I accept that articulation of the purpose of s 239 (and s 58 as its predecessor). However, I do not consider that identification of that purpose assists in determining the question of construction presented in this appeal. To use the terms of the respondents' submission, that is because identification of the 'playing field' is the very question raised by the issue of construction: is it hearings, or is it the conduct of appeals in the Tribunal, including the preparation of documents for filing in those appeals? That question of construction cannot be approached by any prior assumption that the legislature intended the wider, rather than the narrower, consequences for an election. The statements in Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 [28] and Victims Compensation Fund Corporation v Brown [2003] HCA 54 [33] about the limits of the use of purpose arguments in construing statutes in those cases provide some analogy. In this case, to assume the wider purpose is to assume the wider construction.
The WAPC submits that the construction it advances is supported by the purpose of a review under the SAT Act, which is 'to produce the correct and preferable decision at the time of the decision upon the review': s 27(2) of the SAT Act. The WAPC refers to the Tribunal's statement that is generally found that the involvement of lawyers has greatly assisted the Tribunal to come to the correct and preferable decision in planning review proceedings (reasons [26]). It followed, the submission continues, that a construction that precludes lawyers from preparing documents should not lightly be adopted.
Whilst I accept the Tribunal's statement, I do not accept the conclusion drawn from that in the WAPC's submission. By definition, the right of election conferred by s 239 (and its predecessor) has a purpose which the legislature views as a sufficient countervailing purpose to outweigh the general benefits of permitting lawyers to represent parties. The issue raised by the question of construction is the scope of the election. For reasons analogous to those relating to the respondents' argument on purpose, the WAPC's purpose argument does not assist the resolution of the construction question. The construction question cannot be approached with an assumption that the general benefits of permitting lawyers to be involved in proceedings justify the narrower scope of the consequences of an election.
The consequences of the wider construction of s 58 and s 239
The construction adopted by the Tribunal seems to me, with respect, to give rise to practical consequences that make that construction unlikely to have been intended by Parliament.
The Tribunal found that if a legal practitioner prepares a document to be filed in the Tribunal, the party has been 'represented by' that practitioner. The Tribunal also found that there is a distinction between obtaining legal advice and being represented by a legal practitioner, and that an election by an applicant in a Class 1 application did not preclude the respondents from obtaining legal advice. As the respondents accept, the Tribunal was, with respect, correct in so holding. The common law recognises the public interest in a citizen's entitlement to obtain legal advice and that right cannot be abrogated except by clear words in legislation: Baker v Campbell (1983) 153 CLR 52, 114 and 116; Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543 [11]. Plainly, a party who seeks legal advice in relation to an application is not thereby 'represented by a legal practitioner' in those proceedings.
That invites attention to the question, on the wider construction, of what form of legal advice and assistance (apart from appearance at a hearing) is and is not permissible when an election has been made, and what amounts to preparation of a document to be filed (and thus to representation). The respondents accept that, so long as a legal practitioner does not personally prepare any part of the documents to be filed in an appeal, a party could obtain legal advice about what should be contained in those documents without the practitioner having thereby represented them. Further, the respondents accept that a draft of a document prepared by a party could be provided to a practitioner for further advice about its contents without thereby representing the party. However, the respondents contend that the line would be crossed if the legal practitioner drafted specific words for inclusion in the document.
Assuming the Tribunal's construction were adopted, I do not accept that the line between legal representation and legal advice is to be drawn in the way contended by the respondents. If a lengthy document to be filed in the Tribunal is drafted by a party, and a legal practitioner proposes a form of words for a particular paragraph in response to a request for advice, that practitioner has not, in substance, prepared the document, and (on the Tribunal's construction) has not 'represented' the party in the appeal.
I accept the WAPC's submission that, if the Tribunal's construction is adopted, in many circumstances the line between what is and is not representation by a legal practitioner will be difficult to draw. Such uncertainty is undesirable. The significant consequences of being subsequently found to have erred about whether particular assistance from a practitioner amounts to representation are clearly demonstrated by the orders made by the Tribunal in this case. Moreover, the existence of uncertainty may well operate as a substantial constraint upon the obtaining of legal advice.
The respondents submit that countervailing uncertainty would be created by the narrow construction contended by the WAPC. The respondents submit that on the narrow interpretation, it would be uncertain whether a legal practitioner would represent a party by assisting in the preparation of witness statements, drafting cross-examination questions or opening or closing submissions, or attending hearings and providing notes to the 'unrepresented' party. I do not consider that there is any unacceptable uncertainty arising from those questions. In my opinion, on the construction contended by WAPC, which I prefer, none of these categories of conduct would amount to representation by a legal practitioner. Whether, in the last category, in an extreme case the conduct of the practitioner might give rise to questions of propriety and professional misconduct is something I need not decide.
To my mind, the construction adopted by the Tribunal gives rise to substantial uncertainty that has undesirable practical consequences. This is a consideration that favours the narrow construction.
Other matters
In adopting its construction, the Tribunal took into account that s 60(2) of the SAT Act permits the Tribunal to decide that it will determine a case on the documents without a hearing. The Tribunal said that the right of election cannot have a different effect depending on whether the application for review is determined by an oral hearing or by a determination entirely on the documents. However, as the WAPC submits, the construction advanced by the WAPC does not result in an election having a different legal effect. In each case the documents can be prepared by a legal practitioner. The respondents submit that there would nevertheless be a different practical effect, in that the benefit of the election is completely lost if the appeal is determined entirely on the documents (ts 48). That benefit is, the submission continues, the 'level playing field'. As I have sought to explain in [55], that begs the question of what the playing field is, which reflects, rather than providing, the answer to the construction question on which this appeal turns.
The Tribunal stated that s 239 of the Planning Act does not restrict an applicant's election to representation at a hearing. Rather, the Tribunal said 'the election applies to representation in relation to the application' [28] (emphasis added). It is true that s 239 does not, in terms, refer to representation at a hearing. However, s 239 does not contain the italicised words. It does not state that an applicant's election means that no party may have legal representation 'in relation to the application'. Hence the question of construction of the words 'represented by a legal practitioner' arises. For the reasons given, I prefer the narrower construction.
Conclusion
For the reasons I have given, in my opinion, s 239 of the Planning Act is concerned only with hearings. A party is 'represented by a legal practitioner' if and only if a legal practitioner appears before the Tribunal on behalf of the party.
Consequently, I would uphold the appeal.
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