Legal Research
Cases
Western Australian Planning Commission v Dungey

Western Australian Planning Commission v Dungey

Link copied

Case Copied 16 March 2010 32 min read

Contents

On this page

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…

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 Western Australian Planning Commission v Dungey 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: [2010] WASC 52
Decision Date: 16 MARCH 2010

CaseChat Overview and Summary

Western Australian Planning Commission (WAPC) sought to overturn a decision of the Western Australian State Administrative Tribunal, which had found that the respondent, Dungey, had not been represented by a legal practitioner during proceedings before the Tribunal. The dispute arose out of an appeal Dungey had lodged with the Tribunal concerning a planning decision made by the WAPC. The issue before the court was whether the word'represented' in the phrase'represented by a legal practitioner' should be interpreted narrowly, as referring only to a legal practitioner appearing on behalf of a party at a Tribunal hearing, or more broadly, to include the preparation of documents required to be filed at the Tribunal for the purposes of an appeal. The WAPC argued for the narrower meaning, while Dungey supported the wider interpretation adopted by the Tribunal.

The court began its analysis by examining the text of the relevant provision and found that the word'represented' was not defined in the Planning Act, and the dictionary definitions of the term were not conclusive. The court noted that the word'represented' could encompass both the narrow and wider meanings argued by the parties. The court then considered the principles of statutory interpretation, including the use of extrinsic material to confirm the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. The court emphasised that the words of the statute were of paramount significance, and that secondary materials could not be substituted for the text of the legislation. The court concluded that the wider interpretation of the term 'represented' was consistent with the language of the statute and the principles of statutory interpretation.

The court found in favour of Dungey, holding that the term 'represented by a legal practitioner' should be interpreted in the wider sense, to include the preparation of documents required to be filed at the Tribunal for the purposes of an appeal. The appeal was dismissed. The court made no further orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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…'