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[2009] WASAT 230
State Administrative Tribunal (WA)
2009-11-17
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : DUNGEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 230
Practice and procedure Legal representation Class 1 planning application Applicants elected that no party to the application is to be represented by a legal practitioner State Solicitor's Office prepared documents relied on by respondent in proceeding Whether respondent's use of the State Solicitor's Office contravened applicants' election Whether application should be summarily approved Whether the respondent is conducting the proceeding in a way that unnecessarily disadvantages the applicants Costs
State Administrative Tribunal Regulations 2004 (WA), reg 10(1)
The respondent's use of the State Solicitor's Office contravened s 239 of the Planning and Development Act 2005 (WA)
Documents prepared by the State Solicitor's Office struck out
Respondent ordered to file and serve fresh documents prepared by officers or agents who are not legal practitioners
Applicants ordered to file and serve responsive documents and respondent ordered to pay applicants' reasonable professional costs incurred in doing so
Respondent : Mr F Scibilia (Public Sector Employee)
1 Mr and Mrs Dungey filed a Class 1 application with the Tribunal in which they sought review of the refusal of a two lot subdivision application and elected that no party to the application is entitled to be represented by a lawyer. The Tribunal ordered that the application for review is to be determined entirely on the documents and made directions for the filing and service of documents to enable the determination.
2 The Western Australian Planning Commission filed and served statements of issues, facts and contentions, bundles of documents and written submissions, each prepared by the State Solicitor's Office. Mr and Mrs Dungey objected to the Western Australian Planning Commission's reliance on these documents.
3 The Tribunal determined that the Western Australian Planning Commission was 'represented by' a legal practitioner, contrary to Mr and Mrs Dungey's election, by the State Solicitor's Office preparing the documents on its behalf. The Tribunal struck out the documents and directed the Western Australian Planning Commission to file and serve fresh documents prepared by officers or agents who are not legal practitioners and who have not read or discussed the contents of the documents prepared by the State Solicitor's Office. The Tribunal directed Mr and Mrs Dungey to file and serve fresh documents in response to the Commission's documents and ordered the Western Australian Planning Commission to pay Mr and Mrs Dungey's reasonable professional costs of doing so.
4 On 24 July 2009, Mr and Mrs Dungey sought review by the Tribunal, pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the Western Australian Planning Commission (Commission) to refuse their application for a two lot subdivision of their property at Lot 878 Treendale Road, Roelands. As the application for review relates to a subdivision of a lot into not more than three lots, it is termed a 'Class 1 application': reg 10(1) of the State Administrative Tribunal Regulations 2004 (WA). The application form for an application for review under s 251(1) of the PD Act contains the following information:
If your application is a Class 1 application about ... a subdivision of a lot into not more than three lots, you may elect, at the time that the application is made, that no party to the application is to be represented by a lawyer.
Do you want to elect that no party be represented by a lawyer?
6 In answer to this question, Mr and Mrs Dungey crossed the box 'Yes'. Mr and Mrs Dungey thereby elected that neither they, nor the Commission, may be represented by a lawyer.
7 The information and question on the application form in relation to an applicant's right in a Class 1 application to elect that no party to the application is to be represented by a lawyer summarises the effect of s 239 of the PD Act. Section 239(1) of the PD Act states that:
In the case of an application described in section 238(3)(a) 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.
8 Section 238(3)(a) of the PD Act describes Class 1 applications, including 'an application for review of ... the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than three lots'.
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.
10 On 19 August 2009, the Tribunal listed the application for review for final hearing on 6 October 2009 and made directions in relation to preparation for hearing. In particular, the Tribunal directed the Commission to file and serve a statement of issues, facts and contentions and a bundle of documents required by s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) by 19 August 2009. On 21 August 2009, the Commission filed these documents. Each of these documents states on the cover page that it was prepared by 'Timothy Sharp, State Solicitor for Western Australia'.
11 On 8 September 2009, the Tribunal vacated the final hearing date and made an order that the application for review is to be determined entirely on the documents pursuant to s 60(2) of the SAT Act. The Tribunal made directions to enable the determination of the application for review on the documents. In particular, the Tribunal directed the Commission to file and serve any changes or additions it wished to make to its statement of issues, facts and contentions and s 24 bundle of documents by 11 September 2009, and directed both parties to file and serve written submissions by 23 October 2009 and written submissions in reply by 30 October 2009.
12 On 10 September 2009, the Commission filed an amended statement of issues, facts and contentions and a supplementary s 24 bundle of documents. On 27 October 2009, the Commission filed written submissions and, on 11 November 2009, the Commission filed written submissions in reply. Each of these four documents stated on the cover page that it was prepared by 'Timothy Sharp, State Solicitor for Western Australia'.
13 On 3 November 2009, Mr and Mrs Dungey's agent, Mr Aaron Lohman, wrote to the Tribunal as follows:
Further to Directions Hearing dated 30 October 2009 it has come to our attention that on lodgement of the Application for Review that the Applicant elected that no party be represented by a lawyer.
We understand that the Statement of Issues Facts and Contentions and Respondent's Written Submissions were authored by Mr Timothy Sharp of the State Solicitor's Office. It is acknowledged that the documents have already been lodged with the Tribunal.
It is considered that utilisation of a lawyer contrary to the lodgement of the Application for Review is procedurally unfair to the Applicant. It is therefore requested that the Tribunal consider this, and in addition not allow further documents to be submitted to the Tribunal by the Respondent which are authored by the Respondent's legal representatives.
14 On 9 November 2009, the Tribunal listed the matter for a hearing 'in order for the Tribunal to consider whether the respondent's use of the State Solicitor's Office in this matter contravened s 239 of the [PD Act]'.
15 Mr Lohman submitted that Mr and Mrs Dungey elected, in accordance with s 239(1) of the PD Act, that no party to the application is to be represented by a lawyer. He noted that Mr and Mrs Dungey have not retained a lawyer. Mr Lohman argued that, in these circumstances, it would be unfair to Mr and Mrs Dungey to allow the Commission to rely on documents prepared by a lawyer in relation to the application for review.
16 Mr Frank Scibilia, an officer of the Department of Planning, made three submissions on behalf of the Commission.
17 First, Mr Scibilia referred to the terms of the orders made on 8 September 2009 which required the parties to file and serve their written submissions and written submissions in reply. Each of these orders stated that the submissions must identify 'where drafted by a legal representative or agent, the responsible draftsperson'. Mr Scibilia suggested that this form of order contemplated that the Commission's submissions could be prepared by the State Solicitor's Office.
18 Second, Mr Scibilia submitted that the Commission has not been 'represented by' the State Solicitor's Office at any directions hearing or mediation, and would not have been 'represented by' the State Solicitor's Office had the matter proceeded to an oral hearing as was originally contemplated.
19 Finally, Mr Scibilia noted that the Department of Planning's lawyers had instructed Departmental staff to refer all applications for review to the State Solicitor's Office 'for advice'.
Has the Commission's use of the State Solicitor's Office contravened s 239 of the PD Act?
20 As noted earlier, if an applicant makes an election in a Class 1 application that no party to the application is to be represented by a legal practitioner, then, under s 239(2) of the PD Act, 'no party to the application is entitled to be represented by a legal practitioner', unless one of four exceptions is applicable. None of the four exceptions set out in s 239(2) of the PD Act is applicable in this case.
21 The question to be decided is, therefore, whether the Commission has been 'represented by a legal practitioner', within the meaning of s 239(2) of the PD Act, by the State Solicitor's Office preparing the Commission's statements of issues, facts and contentions, s 24 bundles of documents, written submissions and written submissions in reply.
22 The term 'represented by' is not defined in the PD Act. The verb 'represent' is relevantly defined in The Macquarie Dictionary (4th ed, 2005) at page 1202 as 'to stand or act in the place of, as a substitute, proxy or agent' and 'to speak and act for by delegated authority'. The noun 'representative' is relevantly defined at page 1202 as 'someone or something that represents another or others' and 'an agent or deputy: a legal representative'.
23 By preparing the statements of issues, facts and contentions, s 24 bundles of documents, written submissions and written submissions in reply, the State Solicitor's Office stood and acted in place of the Commission as a substitute, proxy or agent, and spoke and acted for the Commission. The Commission has, therefore, been represented by a legal practitioner in relation to the application, contrary to s 239 of the PD Act.
24 This conclusion is all the more obvious because the application for review is to be determined entirely on the documents pursuant to s 60(2) of the SAT Act. The Commission has clearly been represented by the State Solicitor's Office when the State Solicitor's Office has prepared key documents on the basis of which the matter is to be determined by the Tribunal. However, the conclusion would apply equally in relation to an application for review that is to be the subject of an oral hearing. Whether an application for review is to be determined by an oral hearing or entirely on the documents, the Tribunal's usual practice is to make orders requiring documents, such as statements of issues, facts and contention, s 24 bundles of documents and, in some cases, written submissions, to be filed and exchanged prior to the hearing or determination on documents. In either case, the Tribunal refers to and relies upon the documents in its determination of the application of review. Moreover, the purpose of s 239 of the PD Act is to enable an applicant in a Class 1 application to elect, at the time the application is made, that no party to the application is to be represented by a legal practitioner. The right conferred by Parliament 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.
25 Furthermore, s 239 of the PD Act essentially re-enacted s 58(3) and s 58(4) of the Town Planning and Development Act 1928 (WA), which were introduced by the _Planning Appeals Amendment Act 200_2 (WA) (Planning Appeals Amendment Act), with effect from 18 April 2003. The explanatory memorandum in relation to the Planning Appeals Amendment Act stated at page 4 that the reason why an applicant in a Class 1 application was given a right to elect that no party to the application is to be represented by a legal practitioner was 'in order to ensure the appeals process is as informal as possible'. In her second reading speech in relation to the Planning Appeals Amendment Act, made on Thursday, 28 June 2001, the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan MLA, gave the same reason for this provision: Western Australia, Parliamentary Debates, Legislative Assembley, 28 June 2001 (AJG MacTiernan, Minister for Planning and Infrastructure) at page 1583.
26 The appeals process is not 'as informal as possible' where lawyers prepare documents required to be filed and served by the Tribunal's orders. The involvement of lawyers necessarily brings with it an element of formality in the content and expression of documents that would be absent without them. While the Tribunal has generally found that the involvement of lawyers with an understanding of the planning jurisdiction has greatly assisted it to come to the correct and preferable decision in planning review proceedings, particularly in complex cases, the Parliament decided to give applicants in Class 1 applications the right to elect that no party to the application is to be represented by a legal practitioner. Mr and Mrs Dungey made that election. The Commission has not abided by their election.
27 The terms of the orders made by the Tribunal on 8 September 2009 for the parties to file and serve written submissions and written submissions in reply, and in particular, the requirement that submissions must identify 'where drafted by a legal representative or agent, the responsible draftsperson', simply follow the form of orders in the Tribunal's published Standard Orders made at Directions Hearings: see Standard Orders 24 and 25. The purpose of this requirement is to ensure that, where a written submission is prepared by a legal representative or agent, rather than a party personally, the responsible draftsperson is identified. The purpose is not to override an applicant's election in a Class 1 application that no party to the application is to be represented by a legal practitioner. Indeed, the Tribunal would not have power to override that election, except in the manner prescribed in s 239(2) of the PD Act.
28 While it is correct, as Mr Scibilia observed, that at each directions hearing and mediation, the Commission was 'represented by' an officer of the Department of Planning, and not by a lawyer employed by the State Solicitor's Office, importantly, s 239 of the PD Act does not restrict an applicant's election in a Class 1 application to representation at a hearing. Rather, the election applies to representation in relation to the application for review. In this case, although a lawyer employed by the State Solicitor's Office did not appear on behalf of the Commission at any directions hearing or mediation, nevertheless, the Commission has been 'represented by a legal practitioner', namely, the State Solicitor, in relation to the application for review.
29 Finally, there is a distinction between obtaining legal advice and being represented by a legal practitioner. As noted earlier, Mr Scibilia observed that officers of the Department of Planning have been instructed to refer all applications for review to the State Solicitor's Office 'for advice'. An election by an applicant in a Class 1 application that no party to the application is to be represented by a legal practitioner does not preclude the respondent from obtaining legal advice in relation to the application. However, the election does preclude a respondent from relying on a document required by a Tribunal order that is prepared by a legal practitioner on behalf of the respondent.
What should be the consequence of the Commission's contravention of s 239 of the PD Act?
30 Mr Lohman submitted that the consequence of the Commission's contravention of s 239 of the PD Act should be the summary approval of the subdivision application which is the subject of the application for review. Section 48(1) of the SAT Act states, in part, as follows:
This section applies if the Tribunal believes that a party to a proceeding is conducting a proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as
...
(b) failing to comply with this Act or the enabling Act;
...
31 Section 48(2) of the SAT Act states, in part, as follows:
...
(b) if the party causing disadvantage is not the applicant
(i) determine the proceeding in favour of the applicant and make any appropriate orders;
32 By its failure to comply with s 239 of the PD Act, the Commission has conducted this proceeding in a way that has unnecessarily disadvantaged Mr and Mrs Dungey. The Commission has the benefit of documents required by Tribunal orders having been prepared by its lawyers, whereas Mr and Mrs Dungey do not.
33 However, the word 'may' in s 48(2) of the SAT Act imports a discretion. It would not be an appropriate exercise of this discretion, in the circumstances of this case, to summarily approve the proposed subdivision for the following three reasons.
34 First, it appears that the Commission did not intend to conduct the proceeding in a way that would unnecessarily disadvantage Mr and Mrs Dungey. It appears that the Commission genuinely, although mistakenly, understood that s 239 of the PD Act merely precluded representation by a lawyer in a hearing, not preparation of documents required by orders of the Tribunal, and that the preparation of documents for the proceeding fell within the scope of obtaining advice.
35 Second, the disadvantage to Mr and Mrs Dungey caused by the Commission's contravention of s 239 of the PD Act can be cured other than by summary approval of the subdivision application, without causing any material prejudice to Mr and Mrs Dungey. In particular, the documents prepared by the State Solicitor's Office on behalf of the Commission can be struck out and the Commission can be directed to file fresh documents prepared by officers or agents who are not legal practitioners and who have not seen or discussed the contents of the documents prepared by the State Solicitor's Office. Furthermore, Mr and Mrs Dungey can be directed to file fresh documents in response to the Commission's documents, with the Commission to pay Mr and Mrs Dungey's reasonable professional costs of doing so. The filing of fresh documents by both parties is likely to extend the final determination of the proceeding by approximately two months. While this is unfortunate, it does not give rise to any significant prejudice in the circumstances of the case. Furthermore, Mr and Mrs Dungey's agent only objected to the Commission's use of documents prepared by the State Solicitor's Office on 3 November 2009, 10 weeks after the Commission filed and served its statement of issues, facts and contentions prepared by the State Solicitor's Office and by which time all documents required by the Tribunal's orders had been filed, other than written submissions in reply.
36 Third, the approval of the proposed subdivision would involve the exercise of a statutory discretion under s 135 of the PD Act. Notwithstanding the fact that the proceeding has been conducted in a way that has unnecessarily disadvantaged Mr and Mrs Dungey, it would be an inappropriate exercise of the discretion to grant subdivision approval to do so in a summary manner.
37 The Tribunal is a generally no-costs jurisdiction. The starting position is that each party should bear its own costs of a proceeding in the Tribunal: s 87(1) of the SAT Act. Furthermore, while s 87(2) of the SAT Act confers a discretion on the Tribunal to order one party to pay all or any part of the costs of any other party, the Tribunal's usual practice in relation to costs in review proceedings is that, normally, each party should pay its own costs. However, in this case, where the Commission has conducted the proceeding in a way that has unnecessarily disadvantaged Mr and Mrs Dungey by failing to comply with the enabling Act, it is appropriate to depart from the Tribunal's usual practice and order the Commission to pay Mr and Mrs Dungey's reasonable professional costs incurred in consequence of curing the disadvantage.
38 For the foregoing reasons, the Tribunal makes the following orders:
(a) Statement of issues, facts and contentions filed on 21 August 2009;
(b) Section 24 bundle of documents filed on 21 August 2009;
(c) Amended statement of issues, facts and contentions filed on 10 September 2009;
(d) Supplementary s 24 bundle of documents filed on 10 September 2009;
(e) Written submissions filed on 27 October 2009; and
(f) Written submissions in reply filed on 11 November 2009.
(a) Statement of issues, facts and contentions by 1 December 2009;
(b) Indexed and paginated bundle of documents required by s 24 of the State Administrative Tribunal Act 2004 (WA) by 1 December 2009;
(d) Written submissions in reply by 23 December 2009.
(a) Statement of issues, facts and contentions responding to each issue, fact and contention in the respondent's document and raising any further issues, facts and contentions on which they rely by 8 December 2009;
(b) Any documents not in the s 24 bundle of documents on which they rely by 8 December 2009;
(d) Written submissions in reply by 23 December 2009.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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