Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MOUNT LAWLEY PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASC 82

Appeals - Practice and procedure - Applications to re­open decision of appellate court before orders perfected - Jurisdiction to re­open - Attempt to re­argue issues considered and decided in judgment

1 JUDGMENT OF THE COURT: The respondent applies for an order that this court's reasons for decision in Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226 (the appeal) be re-opened to amend alleged errors and to allow the parties to be heard on certain matters. At the hearing of the respondent's application, the appellant made an oral application to re-open the appeal. Both applications were dismissed. These are our reasons for doing so.

2 The court made determinations in the appeal as to whether the trial judge in Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 erred in fact or law as alleged in the appeal and cross-appeal. No orders have been made in the appeal pending a further hearing on the question whether this court is in a position to make the necessary findings for the determination of the matter or whether there must be a re-trial.

3 The legal principles applicable to an application to re-open are not in dispute. This court has the jurisdiction to re-open the appeal and review, correct or alter the determinations made therein: Elliott v The Queen [2007] HCA 51; (2007) 239 ALR 651; Minister for Education v Klein [2005] WASCA 185 (S). However, having regard to the public interest in the finality of litigation, the jurisdiction is exercised only in exceptional cases: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29; Autodesk Inc v Dyason [1993] HCA 6; (1993) 176 CLR 300.

4 The jurisdiction is exercised with great caution and the occasions of its exercise will be extremely rare: State Rail 45; Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, 684. Generally speaking, the jurisdiction will not be exercised unless the applicant can show that the state of affairs relied on for the re-opening is not attributable to its neglect or default: Elliott [33]; Wentworth 684.

5 The statement of Mason CJ in Autodesk (approved by the High Court in Elliott [32]) is of particular relevance in this case. He said:

[T]he public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law ... However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases (302 - 303).

6 The respondent asserts that the court made nine errors.

7 First, the respondent says the court erred in finding in effect (at [193] and [115]) that the relevant corridor the subject of the Corridor Review Plan did not reach the land that later became the subject of Amendment 879/33. We accept the statement is not entirely correct. The correct position is that the Sanwa land and part of the Homeswest land was indicated on the Corridor Review Plan as remaining rural. However, part of the Homeswest land was indicated as proposed future urban.

8 The respondent asserts the error is material because it was the reason the court held that the Corridor Review Plan was not a step in the scheme. The assertion is without foundation. The court concluded it was not a step in the scheme because it was not relevantly attributable to the scheme. As stated at [29]:

[T]he step or occurrence affecting value must be 'attributable' to the Scheme itself and not (as we understand s 36(2b)) to some different, or as yet unformed, notion that ultimately led to the creation of the Scheme. A step must be attributable to the Scheme, not the Scheme to a step. That is to say, the step must have been taken in order to bring about the Scheme itself, or a variant of it that is not materially different.

9 Secondly, the respondent asserts the court erred in stating at [173] and [188] that the trial judge concluded that the DPUD brochure was not a step in the scheme. That remains our interpretation of the trial judge's reasons. However, whether or not the trial judge held that view is irrelevant. We concluded, applying the test in [29] set out above, that the DPUD brochure was not a step in the scheme. That is the end of the matter.

10 Thirdly, the respondent contends the court 'held at [203] that Metroplan included (Ex 2233) some Mount Lawley land in the land to be rezoned "urban deferred"'. Paragraph 203 is in the following terms:

As to the contention that the trial judge was factually incorrect in saying [629] that Metroplan apparently excluded the subject land from the north-eastern corridor, it seems to us that, in that document, some part of the Mount Lawley land is shown as falling within that corridor. However, nothing turns on that issue given that, as we have said, the case was conducted upon the basis, accepted by the trial judge, that Metroplan was required to be disregarded in this respect.

11 The court did not determine the issue. Moreover, the accuracy or otherwise of the court's observation is irrelevant to the outcome of the appeal.

12 Fourthly, the respondent asserts at considerable length that the court erred in law in its interpretation of s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA). Its submissions address the meaning of the expression 'attributable' in s 36(2b) and the position relating to market foreknowledge. This is an improper attempt by the respondent to re-argue matters that arose for determination in the appeal and which have been considered and determined by the court. The parties used the expression 'step in the scheme' to cover all grounds for ignoring material having an effect on value, including foreknowledge. Our reasons are intended to be read in that light. It should be apparent from the reasons (in particular the principles discussed at [21] - [30] and their application in determining ground 1) that the court itself was alive to and considered the issues which the respondent wishes to re-argue.

13 Those issues had to be determined against a backdrop of matters determined in the first appeal and matters the subject of the agreement of the parties. Of particular (but obviously unappreciated) significance in this regard is the conclusion in [21] that the scheme is only the particular amendments (879/33 and 950/33), leaving open the possibility of the reservation of the Mount Lawley land and/or the upzoning of the Ellenbrook land as an available planning option when determining market value. This is to be contrasted with a situation where the same substantive planning outcome is not an available option. As noted in [25] and [29], the provisions considered in the New South Wales cases referred to (including Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 19) are different from and wider in scope than s 36(2b). It is not appropriate for this court to address and respond in more detail to the substantive issues raised in the respondent's submissions. To do so would be a backdoor method of permitting a re-opening. It is sufficient to say that the court is satisfied it has not made a mistake of law.

14 At the hearing of the application, the respondent contended it did not have adequate notice of the test of a 'step in the scheme' adopted by the court. The meaning of the expression was central to the determination of the primary issues in the appeal. In freezing planning considerations as at 1987, the trial judge had largely accepted the respondent's contentions (pressed again in the appeal and in the application) as to what was a step in the scheme. That approach was directly under challenge in the appeal. Moreover, the breadth of the test contended for by the respondent was queried and doubted by the court during the hearing of the appeal (including at ts 35, 36, 41, 42, 43, 49). Further, the appellant acknowledged in the appeal that it was prevented from advancing a coherent principled approach to the issue because it was constrained by the conduct of its case at trial. These matters were sufficient to put the respondent on notice that its understanding of the orthodoxy based on legislation in other jurisdictions was under challenge.

15 Fifthly, the respondent complains of the court's treatment of what it describes as 'internal documents' in [172], [174] and [179]. The court is not persuaded that the substantive objections have any merit. Even if they did, any error was incapable of being material having regard to the conclusions that the documents were not steps in the scheme.

16 Sixthly, the respondent claims the court erred in its statement in [180] that the appellant did not press the contention that Bulletin 642 was not a step. This submission was subsequently abandoned.

17 There is a common thread in the respondent's submissions as to alleged errors 7, 8 and 9. They boil down to this: the respondent's submissions in the appeal as to what constitutes a step in the scheme are correct; this court's construction of s 36(2b) and its test of what constitutes a step in the scheme are wrong resulting in the 'fundamentally flawed' conclusion that the DPUD brochure was not a step; binding the parties to their concessions (as, for example, that Metroplan was a step in the scheme) gives rise to a miscarriage of justice; the court's approach 'will not lead to justice between the parties or, if it does, it will be fortuitous'.

18 The parties failed below and in the appeal to advance a principled and coherent approach to the proper construction of s 36(2b) of the Act and, within that framework, to the test of what was a 'step in the scheme'. It was not possible to discern a consistent thread or underlying (albeit unarticulated) unifying principle from their positions as to whether or not a particular document was a step in the scheme. Their approach to the issues was informed by authorities from other jurisdictions without due regard to the terms of the Act or the unchallenged and agreed matters relating to what constituted the relevant scheme. The concessions made by the parties were made against this background. They must be bound by their concessions.

19 The alleged factual errors identified by the respondent do not materially affect the issues already determined by the court or the remaining matters for determination. Otherwise, the respondent seeks to re-argue, without justification, matters directly and indirectly arising from the issues litigated at the hearing of the appeal. Such a course is inappropriate. Senior counsel was so advised when the reasons in the appeal were handed down by the President.

20 The appellant opposed the respondent's application to re-open. It described that application as 'misconceived'.

21 The appellant, while opposing the respondent's application, 'foreshadowed' in its written submissions that it would make its own application to re-open. The appellant did not file a written application but, instead, as we have mentioned, made an oral application when the court heard oral argument from the parties on the respondent's application.

22 The appellant sought to re-open the court's determination in [24] that the reservation and upzoning had to be ignored as at the valuation date. It was suggested the conclusion is based on a 'misapprehension' of the fact of the delay between the date of the Scheme and the valuation date. There was no such misapprehension. The delay between the date of the Scheme and the valuation date was the sole basis for the appellant's case at trial that the Mount Lawley land would have been zoned urban (or urban deferred) at the valuation date which in turn was based on the assertion that the Scheme is to be ignored as and from the date of the Scheme. The court's conclusion to the contrary is based on the construction of s 36(2b) explained in [23] and [24]. The construction of s 36(2b) generally had to accommodate the unchallenged determinations in the first appeal and the other matters referred to in [21]. The appellant sought to re-argue a matter expressly considered and determined by the court. Nothing raised by the appellant caused the court to doubt the correctness of the conclusion or otherwise justified reconsideration of the issue.

23 Finally, it is necessary to record that the language and tone in which senior counsel for the respondent has chosen to express his written submissions in this application is inappropriate. It is, of course, entirely appropriate for counsel to criticise a court's reasons and, for that purpose, to use strong language if counsel considers it necessary or desirable in his or her client's interests. However, notwithstanding senior counsel's assertions to the contrary in oral argument, the only reasonable objectively determined inference is that his written submissions were calculated to cause offence. Such conduct is inconsistent with his duties to the court and the detachment and objectivity required to properly advance the interests of his client.