FABCOT PTY LTD -v- CITY OF STIRLING [2026] WASC 29 (11 February 2026)

The proposed Extension of Time relates to the development application conditionally approved by DevelopmentWA, formerly referred to as the Metropolitan Redevelopment Authority (MRA), on 1 July 2021 pursuant to the Metropolitan Redevelopment Authority Act (MRA Act). The development approval remains valid with substantial commencement required to occur by 1 July 2025. The proposed Extension of Time application made under clause 8.3.1 of LPS3 seeks to extend the substantial commencement period for the development by a further four years, from 1 July 2025 to 1 July 2029.

...

The City's view is that clause 8.3.1 does not provide a power to amend an approval granted by the MRA under the MRA Act. Consistent with its legal advice, the City's view is that the term 'planning approval' in clause 8.3.1 means the planning approval of the Council under LPS3. That seems clear from the context in which it appears, and from reading LPS3 as a whole.

Although the development approval granted by DevelopmentWA remains in force pursuant to section 66(7) of the MRA Act, it does not have effect as approval granted under LPS3. That being the case, the City regretfully advises that it cannot determine the application for an Extension of Time pursuant to clause 8.3.1.[11] (reference omitted)

1. By its application filed on 11 June 2025, Fabcot seeks certain relief against the City, or alternatively the MRA. Counsel for Fabcot made plain at the hearing that if the Court were minded to grant relief against either of the respondents then a declaration that the particular respondent had power to determine Fabcot's extension application would be sufficient.[12]
2. Fabcot contends that one or other of the respondents, but not both, had power and authority to determine Fabcot's applications to extend the time.
3. The facts were not in dispute between MRA and Fabcot. Nonetheless, I record that Fabcot read, without objection, an affidavit of its State manager, Alicia Carol Jones, made and filed on 17 June 2025. Additionally, Fabcot tendered a letter from the City's solicitors to Fabcot's solicitors dated 23 June 2025, which became Exhibit 1.
4. In short, Fabcot contends that the City had power and authority to determine Fabcot's extension application made to it on 24 March 2025 or, in the alternative, the MRA had authority and power to entertain Fabcot's application made to it on 25 November 2024.
5. The City filed a notice of intention to abide on 27 June 2025 (the same day it filed its appearance).
6. Notwithstanding that, on 3 July 2025, the City wrote to the Court and stated:
   1. Although it does not intend to play an adversarial role in the proceeding the City wishes to explain why it concluded that the City does not have the power to deal with the development application the subject of this proceeding. This is done because the City's letter rejecting that application did not articulate its reasons in detail, and with the intention of assisting the Court with its deliberations. (reference omitted)
7. What followed across five pages were effectively submissions to the Court.
8. The City did not appear at the hearing. I consider that the City's position has left this Court in a less than ideal position.
9. It is, of course, not known to the Court whether the City's position encapsulated by its notice to abide and its subsequent letter to the Court reflected legal advice it had received as to an appropriate course for it to adopt.
10. The effect is that the City has sought to explain a decision it has made and to advance a construction of its own LPS 3, but without engaging in the process of forensic debate and examination which happens in courts around this country on a daily basis. Not only is that an everyday occurrence, but it is an important feature in the determination of disputes in the oral, common law tradition practised in the superior courts operating in this State.
11. In response to the City's letter of 3 July 2025, the Court indicated that, without the City appearing at the hearing, the Court would not take the letter to be submissions. That was because it seemed to me to work an unfairness where effectively submissions could be put but not be supported or debated in Court.
12. In the result, as will be seen, in the absence of proper participation by the City, I have had regard to the propositions contained within the letter. I consider that occasions no unfairness (contrary to what may well be the normal situation) to Fabcot. Counsel for Fabcot, while not responding directly to the letter, quite properly addressed the letter's propositions.
13. In my view, it is, at the least, an error of judgement on the part of the City, and/or its legal advisers, to not participate where Fabcot's application against the City raises questions of the City's power that depend on the proper interpretation of its own LPS 3 and where the legality of the City's decision made on 9 May 2025 is challenged in this Court.
14. In my view, those matters should have led to the City participating fully in the proceeding.

1. Against the City, Fabcot started with s 66(7) and s 67 of the MRA Act which provides:
   1. Deciding development application

...

(7) Subject to section 67 and any condition limiting the time for which it remains in force, a development approval for land remains in force even if the land ceases to be in a redevelopment area.

If development approved under a development approval is not substantially commenced within the period decided under section 66(3), the development approval lapses.

1. By reason of the plain words of s 66(7) of the MRA Act, I accept that the Development Approval survived the cessation of the Scarborough Redevelopment Area (effected by the Metropolitan Redevelopment Authority Amendment Regulations 2023).
2. Fabcot submitted that the Land (from 9 August 2023) was within the Scarborough Special Control Area to which the City's LPS 3 specifically applies. I accept that is the position resulting from the amendments to LPS 3 effective from 9 August 2023 as set out in [9] above.[13]
3. The moving of land from a redevelopment area under the control of the MRA to the control of a local authority and its planning scheme is, I was told without objection, known as 'normalisation' within the industry.[14]
4. Fabcot submitted that there are four possible routes by which the City had authority and power to determine Fabcot's extension application.[15]
5. The first (and the most direct) relies on cl 8.3.1 of LPS 3 which provides:

8.3 Amending or Revoking a Planning Approval

8.3.1 The Council may, on written application from the owner of land in respect of which planning approval has been granted, revoke or amend the planning approval, prior to the commencement of the use or development subject of the planning approval.[16]

1. Fabcot submits that cl 8.3.1 of LPS 3 gives the City power to consider and determine Fabcot's extension application, notwithstanding that the Planning Approval was granted by the MRA.
2. Clause 8.3 is within pt 8 which is headed 'Development of Land', and its provisions were part of LPS 3 prior to 9 August 2023.
3. For present purposes, I note that the express words of cl 8.3.1 of LPS 3:
   1. do not specify which authority had granted the planning approval; and
   2. may be contrasted with other provisions of LPS 3 - such as cl 10.5.1 (which will be returned to) - which expressly refer to the City itself granting a planning approval.
4. I have noted already that from 9 August 2023, cl 6.9 was introduced into the LPS 3 and the Scarborough Special Control Area was established.
5. Relevantly, cl 6.9 of LPS 3 provides:

...

6.9.2 Purpose

To facilitate redevelopment and urban renewal of the Scarborough Special Control Area and to identity the Scarborough Development Contribution Area.

6.9.3 Subdivision and Development

(a) The subdivision and development of all land within the Scarborough Special Control Area shall comply with the requirements of Schedule 13 of the Scheme.

6.9.4 Planning Instruments Adopted Under the Scarborough Redevelopment Scheme

(a) All Policies and Design Guidelines adopted under the Metropolitan Redevelopment Authority Act 2011 for the Scarborough Redevelopment Area apply as if adopted under the provisions of Local Planning Scheme No.3 as Local Planning Policies and may be amended and revoked as needed under the Planning and Development (Local Planning Schemes) Regulations 2015.[17]

1. Schedule 13 of LPS 3[18] specifically deals with the Scarborough Special Control Area and refers to cl 6.9 of LPS 3. While cl 6.9.3(a) refers to the 'requirements' of sch 13, it would be, perhaps, more accurate to characterise sch 13 as containing core principles and aspirations for planning outcomes in the Scarborough Special Control Area.[19]
2. I do not consider that the text of sch 13 assists in the determination of Fabcot's application, save to say that it and cl 6.9 of LPS 3 were clearly introduced to reflect the City's planning authority or control over what had become the Scarborough Special Control Area which contains the Land.
3. By cl 6.9.4 of LPS 3, as seen above, the City from 9 August 2023 adopted the 'policies and design guidelines' that the MRA had previously adopted for the Scarborough Redevelopment Area. That is, until the City amended or revoked those policies, the MRA's policies would be continued by the City in the latter's now control over what had become the Scarborough Special Control Area.
4. The MRA had published and adopted 'Development Policies' for the Scarborough Redevelopment Area, including Development Policy 11.[20]
5. Development Policy 11 provided, relevantly:

Policy Purpose

This policy clarifies when and why an application is required to amend a development approval and outlines the information required and process involved in the determination of such applications.

...

Where the policy applies

The policy applies to all applications to amend a valid development approval submitted in accordance with the Metropolitan Redevelopment Authority Regulations 2011 and the applicable redevelopment scheme, to do any or all of the following:

• to extend the period within which it must be substantially commenced;
• to amend or delete any condition(s) to which the approval is subject;

...

3.1 Amendment to Substantial Commencement Period

An application to amend an approval by extending the period within which the approved development is to be substantially commenced is to be:

3.1.1 received by the Authority within the validity period of the approval;

3.1.2 minor in nature, being less than or equal to the length of the original validity period;

3.1.3 supported by written evidence and related documentation demonstrating, to the satisfaction of the Authority, alignment with the Objectives of this Policy and, as a minimum:

1. why substantial commencement of construction of the approved development has not occurred within the approved period;
2. that the applicant has actively and consciously pursued implementation of the approved development within the approved period;
3. that the applicable planning framework has not substantially changed since the approval date of the original approval;
4. that there has been no material change to either the site or the surrounding locality since the development approval was granted; and
5. the proposed steps/milestones to achieve implementation of the approved development within the extended period having regard to provision 3.1.2 above.[21]

1. I have not quoted s 3.2 of Development Policy 11; it is headed 'Amendment to Approved Plans or Condition(s) of Development Approval'. It is sufficient to note for present purposes that Development Policy 11 dealt with that topic and is part of the Policy adopted by the City by cl 6.9.4 of LPS 3.
2. On Fabcot's submission, cl 8.3.1 of LPS 3 allows the City to consider an application to amend an extant development approval granted by the MRA in respect of land which, at the time of the application to amend, is under and subject to LPS 3. Further, unless amended or revoked, the City would apply Development Policy 11 via cl 6.9.4(a) of LPS 3.[22]
3. The City's rejection letter accepted, as is the case, that the MRA Development Approval remained in force by operation of s 66(7) of the MRA Act.
4. But the City's rejection letter took the view that 'planning approval' in cl 8.3.1 of LPS 3 meant a planning approval made by the City and could not apply to a development approval granted by the MRA.
5. At its highest, the City appeared to put two propositions to the Court in its letter of 3 July 2025; namely:
   1. that cl 8.3.1 was inconsistent with a deemed provision - namely cl 77 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) such that by operation of s 257B of the Planning and Development Act 2005 (WA) cl 77 prevailed over cl 8.3.1 of LPS 3; and
   2. 'planning approval' is used in 104 places in LPS 3 but is not defined. In other places within pt 8 of LPS 3 express provisions (such as cll 8.1.1, 8.1.2, 8.4.1 and 8.5.1) refer expressly to City granted planning approval and so cl 8.3.1 should not be read as meaning something different.
6. Fabcot accepted,[23] as is the case, that cl 77 is a deemed provision within the meaning of s 257B(1) of the Planning and Development Act and would prevail over cl 8.3.1 of LPS 3 if the former was 'inconsistent' within the meaning of s 257B(3) of the Planning and Development Act.
7. There are two interpretation questions to consider. The first is what 'inconsistent' means in s 257B(3) of the Planning and Development Act. The second is whether cl 77 of the deemed provisions is relevantly 'inconsistent' with cl 8.3.1 of LPS 3.
8. Fabcot referred to Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 (Castle Constructions). In that case, there was provision in a local environment plan which was expressed to 'prevail over all other provisions of this plan, to the extent of any inconsistency'.[24]
9. The word 'inconsistency' was used in that case in the delegated instrument itself, rather than in a statute (such as the Planning and Development Act here).
10. In that case, there was a consideration of whether 'inconsistency' should be read by reference to the cases which have interpreted the operation of s 109 of the Constitution (Cth): see Tobias JA at [55(f) ‑ (h)] (with whom Bell J agreed), and Basten JA at [110].
11. Notwithstanding the word being in the delegated instrument, I consider that Castle Constructions provides assistance as the recognised rules of interpreting a legislative text apply both to a planning scheme and to a statute: Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [77] (Buss P, Murphy, Mitchell JJA); City of Gosnells v Reid [2024] WASCA 155 [147(1)] (Buss P & Vandongen JA).
12. Basten JA, who was in dissent in the result, but not as to the principles to be applied, stated:
    1. ... There is a significant difference between the conferral of primacy to one part of an instrument over other parts, and, on the other hand, conferring paramountcy to the laws of the Commonwealth, over those of the States. An example of the former may be found where a particular instrument contains a description of land and a diagrammatic representation. The obvious intention of the drafter will be to ensure, as far as possible, that the two specifications are consistent with each other. However, in case there is a flaw in the achievement of that purpose, it is as well to give a rule for determining which form of identification is to prevail. By contrast s 109 of the Constitution engages quite different concepts. For example, the legislature may be assumed to know what laws it has passed on a particular subject matter, but there is no assumption that it knows of the range of statutes passed by other subordinate legislatures. Further, where the Commonwealth Parliament legislates, its laws may be expected to apply uniformly throughout the country, unless there is a contrary indication: this expectation may give rise to its own rules of construction.[25]
13. For those reasons, which I respectfully adopt, I have not considered the case law into s 109 of the Constitution.
14. Vandongen J, as he then was, described the question of whether the interpretation of 'inconsistent' (there found in s 3.7 of the Local Government Act 1995 (WA)) should be informed by s 109 of the Constitution jurisprudence as possibly being a 'large question',[26] which his Honour did not need to consider to resolve the matter before him. Obviously, I have gone a little further than his Honour did in that case.
15. Tobias JA in Castle Constructions considered that the ordinary and natural meaning of 'inconsistency' involved 'incongruity as well as incompatibility ... or lack of harmony'.[27]
16. Vandongen J in Barrett similarly adopted that ordinary meaning of the word 'inconsistent'.[28] I have done the same.
17. I now turn to consider cl 77 of the deemed provisions and cl 8.3.1 of LPS 3.
18. Fabcot submits that cl 77 of the deemed provisions is 'ex hypothesi' part of LPS 3.[29] By reference to s 257B(2) of the Planning and Development Act, I accept that submission.
19. Clause 77 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations provides as follows:
    1. Amending or cancelling development approval

(1) An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following -

(a) to amend the approval so as to extend the period within which any development approved must be substantially commenced;

(b) to amend or delete any condition to which the approval is subject;

(c) to amend an aspect of the development approved which, if amended, would not substantially change the development approved;

(d) to cancel the approval.

...

(4) The local government may determine an application made under subclause (1) by -

(a) approving the application without conditions; or

(b) approving the application with conditions; or

(c) refusing the application.

1. It is significant to note that the question is whether two provisions (cl 77 and cl 8.3.1) of the one instrument, namely LPS 3, are inconsistent. That falls to be considered in circumstances where I consider it appropriate to apply the presumption that two provisions within the one legislative instrument are intended to work together.[30]
2. The plurality in NSW Commissioner of Police v Cottle stated:

... Nonetheless, if, properly construed, it is concluded that the two ... provisions cannot 'stand or live together', the presumption is displaced. That 'requires the construction of, and close attention to, the particular provisions in question' (citations omitted).[31]

1. While I have noted above that the recognised rules of statutory interpretation also apply to a planning scheme, the following established principles must also be borne in mind and brought to bear on the exercise, namely:
   1. the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies.[32] While 'uses' is not in issue in this case, the approach, in my view, still has application to the interpretation exercise here;
   2. the text is to be read in its context and for its statutory purpose so that the meaning of the planning scheme emerges;[33]
   3. legislative purposes are to be ascertained from what the legislation says, rather than any assumption about the desired policy outcome or desirable reach or operation of the relevant provisions;[34]
   4. it is relevant to note that planning schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of a statute;[35] and
   5. planning schemes should be construed broadly rather than pedantically and with a sensible practicable approach.[36]
2. In my view, there is no inconsistency between cl 77 of the deemed provisions and cl 8.3.1 of LPS 3 - at least insofar as cl 8.3.1 applies to a planning approval granted other than by the City. I do not need to consider and resolve whether there is any relevant inconsistency between cl 77 of the deemed provisions and cl 8.3.1 of LPS 3 where a development approval has been granted by the City.
3. In my view, cl 8.3.1 of LPS 3 can operate, at least, harmoniously with cl 77 of the deemed provisions where a planning approval had been granted by an authority other than the City.
4. If cl 8.3.1 of LPS 3 is read in that way, then it can stand and live together with cl 77 of the deemed provisions. Each would have a distinct operation.
5. Consequently, I do not conclude that there is any relevant inconsistency between the two provisions. Further, accepting the particular considerations that apply to a planning scheme, the reading which I prefer seems to reflect the actual words used; an outcome which is within the presumption, and which gives the two provisions a sensible, practicable reading.
6. If, as the City appears to have proposed, cl 8.3.1 of LPS 3 only applied to extensions of time for planning approvals granted by the City, then it or cl 10.5.2 would appear to be redundant within the LPS 3 provisions but without the deemed provisions. Clause 10.5 of LPS 3 provides:

10.5.1 Where the Council grants planning approval for the development of land -

a) the development approved is to be substantially commenced within 2 years, or such other period as specified in the approval, after the date of the determination; and

b) the approval lapses if the development has not substantially commenced before the expiration of that period.

10.5.2 A written request may be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period in Clause 10.5.1.[37]

1. I do not need to consider, here, whether there is any relevant inconsistency between cl 77 of the deemed provisions and cl 10.5 of LPS 3.
2. Further, it might be thought there are good reasons why cl 8.3.1 may be intended to apply to planning approvals granted other than by the City. Without making any assumption about what might be a desired or desirable policy outcome,[38] if cl 8.3.1 did not so apply, then on the City's reading of LPS 3, it would have no power to amend the Development Approval which would place the Land (now under the control of the City's planning regime) in a completely different position from any other development approval granted over land within the City.
3. That result would be against the background of LPS 3 making express provision for land which had been within the Scarborough Redevelopment Scheme as is made apparent by cl 6.9 considered above.
4. If the City's proposition in this respect were to be accepted, then the effect would be that following 'normalisation' neither the MRA, nor the City could amend (in any respect) a development approval made by the MRA.[39] That is notwithstanding that LPS 3 expressly recognises that land within the Scarborough Redevelopment Scheme is now within the purview of LPS 3 and, further, that the City has said that it adopts and will apply (until amendment or revocation) the policies of the MRA applying to that land.
5. That there is a reading (the one I have adopted) which allows the two provisions to be read harmoniously suggests strongly to me that it is not to be inferred that such a surprising lacuna is the intended result.
6. From the above reasons, obviously I have not accepted that cl 8.3.1 of LPS 3 is limited in its application to planning approvals made by the City.
7. So I would also reject the City's second proposition[40] that notwithstanding that the express words in cl 8.3.1 do not refer to the City granting the approval (in contradistinction to other provisions), cl 8.3.1 ought to be read as restricted to City granted approval.
8. For these reasons, I am of the view that as at 9 May 2025, the City had power to consider Fabcot's extension application. Further, on the material before me, it appears to be entirely appropriate to make the declaration against the City as sought by Fabcot.
9. As seen, I have accepted the first and most direct route relied upon by Fabcot in its application. Consequently, I have not gone on to consider any of the alternative three routes proposed.

1. Because of the conclusion I have reached, it is strictly unnecessary for me to consider Fabcot's alternative case against the MRA. Further, and in any event, Fabcot acknowledges, in my view entirely appropriately, that 'a deal of contortion' is required for it to succeed against the MRA.[41]
2. Because of those matters, I set out my views on Fabcot's application against the MRA in short form in case I am wrong in the conclusion I have reached against the City's position.
3. Fabcot relied on reg 22(1)(a) of the Metropolitan Redevelopment Authority Regulations which provides relevantly:
   1. Amending development approval on application

(1) A person to whom a development approval has been issued by the Authority may apply to the Authority to do any or all of the following -

(a) to amend the approval so as to extend the period within which any development approved must be substantially commenced;

1. The Metropolitan Redevelopment Authority Regulations are made pursuant to s 131(1) of the MRA Act. It is in a common form and provides:

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Act.

1. The MRA submitted that it only has, relevantly, powers and functions within redevelopment areas declared under s 30 of the MRA Act and that ceased to be the case in respect of the Scarborough Redevelopment Area (and the Land) as and from 9 August 2023 when, relevantly, the Metropolitan Redevelopment Authority Amendment Regulations 2023 became operative.
2. That is, the MRA effectively submitted that it had no relevant function to perform in respect of the Land from 9 August 2023 and so it was not empowered to do anything relevantly in respect of that Land having regard to s 11(2) of the MRA Act which provides:

The Authority may do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

1. The MRA submitted that 'planning authority and power' over the Land passed back to the City from 9 August 2023.[42]
2. The MRA submitted, in effect, reg 22 ceased to have effect with respect to the Land when the Scarborough Redevelopment Area ceased to be. More particularly, the MRA submitted:
   1. Section 131 empowers the Governor to make regulations for all matters required or permitted by the MRA Act, or necessary or convenient to be prescribed. Section 131(2) expressly notes that procedures in relation to development applications and the amendment of development approvals may be the subject of such regulations.
   2. Regulation 22 of the MRA Regulations - which prescribes how an application may be made to amend a development approval issued by the Authority and guides the consideration of such applications by the Authority - derives from this power.
   3. Regulation 22(4) provides that when considering an amendment application made under regulation 22(1), the Authority must have regard to the matters mentioned at section 66(1) of the MRA Act. The prescribed matters listed at section 66(1) assume that a redevelopment scheme and redevelopment area are in place. (references omitted)[43]
3. I do not consider that the cessation of the Scarborough Redevelopment Area from 9 August 2023 changed the interpretation or operation of reg 22 of the Metropolitan Redevelopment Authority Regulations.
4. Rather, in respect of that Scarborough Redevelopment Area, from 9 August 2023, the MRA no longer had a relevant function (within the meaning of s 11(2) of the MRA Act) and so it did not have statutory power under s 11(2) of that Act to exercise power apparently provided to it by reg 22.
5. I accept Fabcot's submissions which were put entirely properly as follows:
   1. The MRA's functions under s 7(1)(b) of the MRA Act include powers under Part 5 of the Act to prepare and keep under review redevelopment schemes for redevelopment areas, and under Part 6 to control development in each redevelopment area. A deal of contortion would be required to construe reg 22 as relevantly empowering the MRA because Lot 1 is not in a redevelopment area and it is now subject to particular provisions of LPS 3.

1. A deal of contortion would also be required to construe section 11(2) as empowering the MRA to act in respect of a development approval after a redevelopment area ceases and a development scheme ends as it does not have such a power to perform its statutory functions.[44]
2. I would have found, if I needed to decide it, that the MRA had no power on 11 December 2024 to consider Fabcot's application made to it on 29 November 2024.

1. I have found that Fabcot is entitled to the declaration against the City which it sought[45]; namely that: On 9 May 2025, the City of Stirling had power to determine the extension application made to it by Fabcot Pty Ltd to it on 24 March 2025.
2. I will hear the parties, as needs be, as to the final orders sought and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Alicia Jones dated 17 June 2025 (Jones affidavit) [13].

[2] Jones affidavit [18] and Attachment 'ACJ-4' at page 28.

[3] Jones affidavit [16] and Attachment 'ACJ-3' at page 9.

[4] Jones affidavit [16] and Attachment 'ACJ-3' at page 15.

[6] Jones affidavit [32] and Attachment 'ACJ-9' at page 471.

[8] Jones affidavit [33] and Attachment 'ACJ-10' at page 508.

[9] Jones affidavit [35] and Attachment 'ACJ-11' at page 509.

[10] Jones affidavit [36] and Attachment 'ACJ-12' at page 547.

[11] Jones affidavit, Attachment 'ACJ-12' at pages 547 - 548.

[13] Fabcot's written submissions dated 13 August 2025 (Fabcot's submissions) [23].

[14] Jones affidavit [21] and Attachment 'ACJ-10' at page 508; ts 27.

[16] Jones affidavit [28(a)] and Attachment 'ACJ-6' at page 286.

[17] Jones affidavit [28(a)] and Attachment 'ACJ-6' at page 235.

[18] Jones affidavit [28(a)] and part of Attachment 'ACJ-6' at page 346.

[19] I do not need to decide the accuracy of Fabcot's description of Schedule 13 as 'containing aspirational jargon': Fabcot's submissions [25].

[20] Jones affidavit [28(c)] and part of Attachment 'ACJ-8' at page 465.

[21] Jones affidavit [28(c)] and Attachment 'ACJ-8' at pages 465 - 467.

[25] Castle Constructions; Tobias JA was to similar effect at [55(f)].

[26] Barrett v City of Cockburn [2023] WASC 384 [69] (Barrett).

[30] See, for example, Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 [18] (Gummow & Hayne JJ); NSW Commissioner of Police v Cottle [2022] HCA 7; (2022) 276 CLR 62 (NSW Commissioner of Police v Cottle) [23] (Keifel CJ, Keane, Gordon & Steward JJ).

[31] NSW Commissioner of Police v Cottle [23] (Keifel CJ, Keane, Gordon & Steward JJ).

[32] Australian Unity Property Ltd v City of Busselton [82].

[33] Australian Unity Property Ltd v City of Busselton [83].

[34] Australian Unity Property Ltd v City of Busselton [85].

[35] Australian Unity Property Ltd v City of Busselton [84].

[36] Australian Unity Property Ltd v City of Busselton [84]; City of Gosnells v Reid [147(6)] (Buss P & Vandongen JA).

[37] Jones affidavit [28(a)] and Attachment 'ACJ-6' at page 292.

[38] Cf Australian Unity Property Ltd v City of Busselton [85].

[42] MRA's written submissions dated 3 September 2025 (MRA's submissions) [3].