Mediation ­ Report to local authority concerning proposals developed through mediation ­ Access to copy of report ­ Whether caught by s 24 of the State Administrative Tribunal Act 2004 ­ Whether protected by s 55 of the State Administrative Tribunal Act 2004

State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 54(6), s 54(10), s 55

1 In the course of proceedings for review of a decision of the City of Subiaco to refuse the demolition of an existing single house, and the construction of four multiple dwellings, the parties engaged in mediation. As a result of that process, modified plans were prepared for consideration by the Council of the City. A report was prepared by a planning officer of the City, and was submitted to the Council for consideration in relation to the modified plans. The Council refused approval of the modified plans. Accordingly, the original application is proceeding to a hearing before the Tribunal which is listed for 21 May 2007.

2 The applicants sought access to a copy of the officer's report in relation to the modified plans. Although they did not propose to substitute the modified plans in lieu of the plans the subject of the original application, they contended that the modified plans were relevant because they may indicate appropriate modifications which might be the subject of conditions to any approval. Access to the officer's report was sought on the basis that the City's officer's comments on the proposed modifications might be put to the planning experts called by either side in the course of cross-examination.

3 The Tribunal considered the general public policy associated with the protection of things said or done in the course of mediations as reflected in the State Administrative Tribunal Act 2004 (WA). It considered that granting access to a confidential report produced following mediation would tend to undermine the operation of the mediation system. It concluded that the officer's report was subject to the protection of s 55 of the SAT Act. It 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, and concluded that the applicants should not be given access to the report.

4 The applicants have brought an application to the Tribunal to review a decision by the City of Subiaco (City) to refuse demolition of a single house, and the construction of four new multiple dwellings on the site. The application was lodged on 18 December 2006. and the first directions hearing was held on 12 January 2007. At that directions hearing, the matter was referred to mediation on 17 January 2007. The mediation took place, and as a result of it, a modified proposal was submitted to the respondent for consideration. It is common ground that the modified plans put forward were a product of the discussions conducted at mediation.

5 In accordance with usual procedures, the relevant planning officer of the City prepared a report to the Council on the modified proposals. That report went forward to the Council of the City on 27 February 2007. The minutes of the Council meeting dealing with that item, and reproducing the officer's report, were noted as "confidential minutes". Apparently, the Council resolved to refuse the modified proposal. The mediator had provided for that eventuality by making a number of directions culminating with a listing for final hearing for two days commencing on 18 April 2007. On 8 March 2007, the respondent filed a bundle of documents required under s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in accordance with the mediator's orders. That bundle did not include a copy of the officer's report in relation to the modified proposal.

6 The solicitor's for the applicants sought to be provided with a copy of the officer's report, but the City declined. Accordingly the matter was listed for directions before me on 5 April 2007. The applicants sought an order that the City produce a copy of the officer's report. Partly because of the dispute over access to the report, and also for various other reasons, I agreed to vacate the hearing date of 18 April 2007, and list the matter for hearing on 21 May 2007.

7 The applicants do not propose to substitute the modified plans as the plans the subject of the application. Rather, they wish to pursue the original plans at hearing. They maintain, however, that the modified plans are likely to be produced at hearing on the basis that, if certain of the City's objections to the original plans are supported by the Tribunal, the objections might be satisfied by conditions requiring development in accordance with some or all of the modifications reflected in the modified plans. Each party proposes to call a planner in support of its case. I was advised that, at present, neither party proposes to call the planner who prepared the report on the modified plans, who apparently now resides outside Western Australia. Mr Hotchkin, however, advised that he thought it possible, if not likely, that he would wish to put aspects of the officer's report to the planning witnesses during the course of their examination or cross-examination. It is on that basis that Mr Hotchkin contends that the officer's report is a relevant document, and comes within s 24 of the SAT Act which requires a decision-maker to provide to the Tribunal "documents and other material in the decision-maker's possession ... relevant to the Tribunal's review of the decision".

8 Section 55 of the SAT Act provides that evidence of anything said or done in the course of mediation is not admissible at any later stage of the proceedings except in certain circumstances which are not applicable for present purposes. Mr Hotchkin argues that s 55 is directed to questions of admissibility, as distinct from production of relevant documents under s 24. Furthermore, he contends that the officer's report, which was prepared after the mediation conference had concluded, and deals with plans also prepared after the mediation conference, cannot be described as something "said or done in the course of a mediation".

9 Section 55 of the SAT Act is a statutory recognition of the well established principle that discussions in the course of a mediation are conducted on a without prejudice basis and enjoy without prejudice privilege. That is an important aspect of the mediation process. Parties must be free to discuss issues arising in their dispute frankly, and be able to make appropriate concession which might facilitate a mutual resolution, or at lease narrowing, of issues. As in many other forums for dispute resolution, mediation has been found by the Tribunal to be of enormous value in achieving the correct and preferable decision in many areas of both the Tribunal's review jurisdiction, and reliable and constructive decisions in its original jurisdiction. The confidentiality of the process, reflected by s 54(6), the exclusion of the mediator from further participation in the proceedings after mediation, reflected in s 54(10), and the protection of things said or done in the course of mediation from admission at a later stage of the proceedings, reflected in s 55, are important elements in the success of the process.

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.

11 A planning report prepared following a mediation will, almost inevitably, either expressly or impliedly disclose things "said or done in the course of" the mediation. As it happens, with the parties' agreement, and because I will not be involved in the handing down of this matter, I have reviewed a copy of the report. As one might expect, it contains several passages directly referring to the mediation. If the report were to be produced at hearing, and used for the purposes of questioning witnesses, it would require editing so as to prevent the Tribunal members hearing the matter from becoming aware of things said or done in the course of the mediation.

12 Apart from that, 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.

13 The report is precluded from use at the hearing by reason of s 55 of the SAT Act. The report is in a different category from plans which, following mediation, an applicant seeks to substitute for the original plans the subject of the application, as I observed in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 97 at [9-10].

14 Section 24 is designed to ensure that the Tribunal has before it all relevant material to enable it to make the correct and preferable decision. The section contemplates that the material will be considered and, if appropriate, relied upon by the Tribunal in making its decision on the review. The applicants contend that the officer's report on the modified plan is a matter which is relevant to the Tribunal's consideration and thus should be produced in accordance with s 24, even if it is not admissible in the proceedings.

15 Section 24 is directed to provision of documents to the Tribunal, not to the other party, although procedural fairness generally requires that the other party have access to the documents. Even if what is said or done in a mediation, or a document produced in the course of mediation, might be relevant to the Tribunal's decision, s 55 expressly prevents the Tribunal taking that material into consideration. It would be inconsistent to put the material before the Tribunal under s 24 but require the Tribunal to disregard it under s 55.

16 There is no obligation on the respondent to include the officer's report on the modified proposal in the s 24 bundle.

17 The application for production of the officer's report to Council for its meeting of 27 February 2006 is refused.

I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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