WISEOWL INVESTMENTS PTY LTD and SHIRE OF BUSSELTON
[2010] WASAT 122
•13 AUGUST 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WISEOWL INVESTMENTS PTY LTD and SHIRE OF BUSSELTON [2010] WASAT 122
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 13 AUGUST 2010
DELIVERED : 13 AUGUST 2010
FILE NO/S: DR 98 of 2010
BETWEEN: WISEOWL INVESTMENTS PTY LTD
Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Practice and procedure Facilitative dispute resolution Mediation Privilege Whether expert report required to be prepared and submitted to respondent by order made at conclusion of mediation hearing was 'in the course of ... a mediation'
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 31, s 55
Result:
Reports privileged from production under s 55 of the State Administrative Tribunal Act 2004 (WA)
Category: B
Representation:
Counsel:
Applicant: Mr PG McGowan
Respondent: Mr A Roberts
Solicitors:
Applicant: Lewis Blyth & Hooper
Respondent: McLeods
Case(s) referred to in decision(s):
Jacobs and Anor and City of Subiaco [2007] WASAT 84
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 97
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Wiseowl Investments Pty Ltd sought review by the Tribunal of the deemed refusal of a development application. As typically occurs, the Tribunal referred the matter for mediation. At the conclusion of the mediation hearing, the Tribunal ordered the Shire of Busselton to engage an expert to prepare a report to be presented to the Council by no later than 23 June 2010 and invited the Shire of Busselton to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) at the Council meeting held no later than 23 June 2010. Two reports were prepared and presented to the Council in accordance with the Tribunal's order.
The Shire reconsidered its decision and decided to approve part of the proposal and to refuse another part. The proceeding then continued in relation to the refused aspect of the development application.
Wiseowl Investments Pty Ltd applied to the Tribunal for an order that the reports that were prepared and presented to Council were required to be produced in accordance with s 24 of the State Administrative Tribunal Act 2004 (WA). The Shire of Busselton opposed the application on the basis that the reports were privileged from production under s 55 of the State Administrative Tribunal Act 2004 (WA).
Following the hearing, the Tribunal gave an oral decision in which it determined that the reports were prepared 'in the course of … mediation' within the meaning of s 55 of the State Administrative Tribunal Act 2004 (WA) and were therefore privileged from production under that section. The reports and the reconsideration were not a separate and distinct process from the mediation; rather, the reports and the reconsideration were the culmination, and necessarily part of, the mediation process. The reports emerged in consequence of the mediation hearing and were required as part of a process of seeking to facilitate resolution of the proceeding through the mediation process.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Background
Wiseowl Investments Pty Ltd (Wiseowl or applicant), is the applicant in proceedings before the Tribunal seeking review of what was originally the deemed refusal by the Shire of Busselton (Shire or respondent) of a development application for the establishment of a cellar door, restaurant and microbrewery at Lot 100 Caves Road, Wilyabrup.
Wiseowl commenced the application for review on 7 April 2010 and the matter proceeded to an initial directions hearing on 16 April 2010. At that directions hearing, the matter was referred to mediation on 5 May 2010 and a representative of Cullen Wines was invited to attend the mediation. The relevance of Cullen Wines is that that entity apparently occupies an adjoining property and has expressed a concern about the impact of the proposed development on its operations, particularly a concern related to the microbrewery component of the proposal.
The mediation took place as scheduled on 5 May 2010 and the mediator, Member Marie Connor, made orders at the conclusion of the mediation hearing. The first three orders made by Member Connor were as follows:
1)Any additional information to be provided by the applicant or Ms Cullen is to be given to the respondent by Wednesday, 12 May 2010.
2)The respondent is to engage an expert to prepare a report to be presented to the Council of the respondent no later than its meeting of 23 June 2010.
3)Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider the reviewable decision at its meeting to be held no later than 23 June 2010.
The orders made by Member Connor then programmed the matter for final hearing, apparently on the assumption that the reconsideration by the respondent would not result in the complete resolution of the proceeding.
It appears that the applicant and Ms Cullen provided further information to the respondent as permitted by order 1 and that the respondent then engaged an expert to prepare a report to be presented to the Council of the respondent as required by order 2. The expert who was engaged by the respondent to prepare the report was Professor Fleet. Mr Roberts, counsel for the Shire, indicated that Professor Fleet is an expert in relation to yeast, which is obviously a component in the microbrewery aspect of the development. I understand from the parties that Professor Fleet in fact prepared two reports, a preliminary and a subsequent report, and that both reports were presented to the Council of the respondent at a meeting held on 23 June 2010.
At that meeting, the Council acted on the invitation expressed in order 3 made on 5 May 2010 to reconsider the reviewable decision. The Council resolved to approve the cellar door and restaurant components of the development application but to refuse the microbrewery component.
In accordance with the subsequent orders made by Member Connor on 5 May 2010, that aspect of the proposed development is now programmed for final hearing in late September 2010.
Issue for determination
An issue for determination has arisen between the parties as to whether the applicant is entitled access to the two reports of Professor Fleet in accordance with s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Section 24 of the SAT Act states that:
If a proceeding for the review of a decision is commenced, the decision‑maker is to provide the following to the Tribunal in accordance with the rules
(a)a statement of the reasons for the decision;
(b)other documents and other material in the decisionmaker's possession or under the decisionmaker's control and relevant to the Tribunal's review of the decision.
There is no dispute that the reports of Professor Fleet are documents in the decisionmaker's possession. It is also apparent that, given their subject matter and the issue for determination in the proceeding, the reports would be relevant to the Tribunal's review of the decision. The question for determination in relation to the application by Wiseowl for access to the two reports of Professor Fleet is whether, as Mr Roberts submitted on behalf of the Shire, they fall within the contemplation and application of the privilege expressed in s 55 of the SAT Act.
Section 55 of the SAT Act states, with certain presently irrelevant exceptions that, 'Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding'. Mr Roberts submitted that the reports of Professor Fleet comprise, relevantly, something that is said or done 'in the course of ... a mediation', and therefore that the preclusion of admissibility under s 55 of the SAT Act applies and, in effect, overrides the obligation under s 24 of the Act.
Mr Roberts submitted that the reports are 'part and parcel of a proposal agreed at mediation for a possible resolution of the proceeding', and that they are 'a step taken in the possible resolution of the proceeding'.
Mr McGowan, counsel who appeared for Wiseowl, submitted that the mediation process which was subject to the privilege in s 55 of the SAT Act concluded on 5 May 2010. Mr McGowan submitted that the process that then occurred in the proceeding was a separate and distinct process from the mediation. The separate process, Mr McGowan argued, was the subject of order 3 made on 5 May 2010, the terms of s 31 of the SAT Act and the public nature of the decisionmaking process of the respondent in accordance with the order and the section.
Section 31 of the SAT Act authorises the Tribunal, at any stage of a proceeding for the review of a reviewable decision, to invite the decisionmaker to reconsider the decision.
Relevant authorities
The President of the Tribunal, Chaney J, has made two decisions referred to by Mr Roberts and that bear on the question for decision before me.
The first decision is Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 97. In the course of determining whether amended plans that were prepared subsequent to mediation were inadmissible at a later stage of the proceeding by virtue of s 55 of the SAT Act, his Honour said the following, at [9]:
It is common ground that the plans which now form the subject of this application were prepared as a result of the mediation process. The Tribunal accepts that the privilege attached by s 55 to communications in the course of a mediation is capable of extending to things said or done in the subsequent pursuit of a possible resolution which emerges in the actual mediation hearing. As an example, comments made in a report to counsel as to the outcome of the mediation and observations about any proposed settlement could not be adduced in evidence at the subsequent hearing without the consent of all parties.
The second decision of his Honour is Jacobs and Anor and City of Subiaco [2007] WASAT 84 (Jacobs). That decision concerned a report of a planning officer of the City of Subiaco which was submitted to the Council for consideration in relation to modified plans that were prepared by an applicant following mediation.
The Tribunal considered in the course of the decision the general public policy associated with the protection of things said or done in the course of mediation, as reflected in s 55 of the SAT Act. His Honour concluded that the officer's report was subject to the protection of s 55 of the SAT Act. His Honour also did not consider that access to the report by the Tribunal determining the matter was necessary to enable the Tribunal to reach the correct and preferable decision. In the course of his reasoning, his Honour said the following, at [10]:
Achievement of the objectives set out in s 9 of the SAT Act is greatly assisted by the efficacy of the mediation process. The protection of the process, and of the important elements of it, serves the public interest in the Tribunal meeting the s 9 objectives and achieving reliable outcomes acceptable to the parties to the dispute. This is particularly so in the planning area, where constructive discussion through the mediation process often gives rise to preferable planning outcomes than might be achieved by either approval or refusal of an original application. Accordingly, s 55 should be given a broad application so as to achieve that public interest.
At [12], his Honour said the following:
… a broad view should be taken, for the purposes of s 55, of what constitutes 'the course of a compulsory conference or mediation'. It does not, in my view, encompass only the things said or done in the presence of the mediator whilst the formal conference is occurring. If steps are taken, as they commonly are, by parties following a mediation to further progress the possible solutions discussed at mediation, then those steps are, in my view, steps taken 'in the course of' the mediation. That fact is commonly reflected by the fact that local authorities treat the reports following the mediation process as confidential, as occurred in this case.
Are the reports privileged from production?
In my view, the reports prepared by Professor Fleet and submitted to the Council in anticipation of the reconsideration under s 31 of the SAT Act are documents that are privileged from production by virtue of s 55 of the SAT Act. They are, in my view, documents that were prepared relevantly 'in the course of ... a mediation'.
It is clear from the orders made by Member Connor on 5 May 2010 that the reports in question and the s 31 reconsideration was not a separate and distinct process from the mediation; rather, the report(s) required by order 2 and the s 31 reconsideration invited by order 3 were the culmination, and necessarily part of, the mediation process that also involved the mediation hearing on 5 May 2010.
The procedure applied by the Tribunal in this case in order to facilitate the resolution of the matter commenced with the directions hearing that I have referred to on 16 April 2010, proceeded to the mediation hearing itself on 5 May 2010, and then culminated in the reconsideration, pursuant to s 31 of the SAT Act, that occurred on 23 June 2010. What occurred in this case is typical of the way in which the Tribunal conducts proceedings in the planning area consistently with its objectives set out in s 9 of the SAT Act.
Professor Fleet's reports and the s 31 process, in my view, was, as Mr Roberts said, 'part and parcel' of the mediation. The documents that were prepared by Professor Fleet in accordance with order 2 made on 5 May 2010 were clearly documents that emerged in consequence of the actual mediation hearing and were required as part of a process seeking to facilitate resolution of the proceeding through the mediation process. It matters not, in my opinion, that there was not a subsequent mediation hearing required by the Tribunal between the mediation on 5 May 2010 and the reconsideration that occurred on 23 June 2010. The conclusion to which I have come in this case is consistent with Chaney J's indication that a broad view should appropriately be taken of the scope of s 55 of the SAT Act in light of the scheme and purpose of the legislation.
As his Honour Chaney J recognised in the decision in Jacobs at [15], even if a document, such as the reports of Professor Fleet, is relevant to the Tribunal's review of a decision and would therefore otherwise fall within the ambit of s 24 of the SAT Act, s 55 of the SAT Act, as his Honour said, 'expressly prevents the Tribunal from taking that material into consideration'. As his Honour said at [15], 'It would be inconsistent to put the material before the Tribunal under s 24 but require the Tribunal to disregard it under s 55'.
Orders
The Tribunal makes the following orders.
1.The two reports of Professor Fleet, prepared and submitted to the respondent in accordance with order 2 made on 5 May 2010, are not admissible in the proceeding, under s 55 of the State Administrative Tribunal Act 2004 (WA).
2.The hearing dates of 28 and 29 September 2010 are confirmed.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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