THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

APPEALED FROM: E Kalis v Kingborough Council [2012] TASRMPAT 138

Administrative Law - Judicial review - Generally - Review sought of decision of Resource Management Planning and Appeal Tribunal to issue summons to a council to produce minutes of a closed meeting for purpose of costs application following successful appeal - Whether conduct or a decision - If a decision, was council a person aggrieved?

Judicial Review Act 2001 (Tas), ss4, 5, 7, 8, 17 and 18.

Administrative Law - Judicial review - Generally - Review sought of decision of Resource Management Planning and Appeal Tribunal to issue summons to a council to produce minutes of a closed meeting for purpose of costs application following successful appeal - Impact of Local Government (Meeting Procedures) Regulations 2005.

Local Government (Meeting Procedures) Regulations 2005 (Tas), regs15 and 34.

Judgment Number: [2013] TASSC 60

KINGBOROUGH COUNCIL v THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL and E KALIS

1 These reasons relate to an application for judicial review. The order sought to be reviewed is one made by a member of the Resource Management and Planning Appeal Tribunal ("the Tribunal") to issue a summons directed to the Kingborough Council ("the Council"). The summons required the Council to produce minutes of a closed meeting in the context of an application for costs by Mr E Kalis ("the respondent") in proceedings before the Tribunal. The Tribunal has submitted to the decision of the Court, and has not sought to be heard.

2 The respondent applied to the Council for a permit to enable him to develop a shopping centre at Margate. The Council refused the application. The respondent appealed to the Tribunal and was successful. The Tribunal made two decisions. In the first, it directed the Council to issue a permit. Negotiations then followed as to appropriate conditions to be attached to the permit. The Tribunal subsequently directed the Council to issue a permit subject to specified conditions.

3 The respondent thereafter applied for an order that the Council pay its costs of the appeal to the Tribunal. As part of that application, the respondent applied for a summons directed to the Council requiring it to produce to the Tribunal the minutes of a closed meeting. The minutes concerned a meeting at which the Council considered an offer by the respondent to resolve his appeal without proceeding to hearing. The respondent argues those minutes are relevant to his application for costs.

4 The summons was sought pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s20(2). That provides:

"(2) For the purposes of an appeal to be, or being, heard by the Appeal Tribunal, a presiding member may summon a person to produce such documents (if any) as are specified in the summons or to appear at a hearing to give evidence."

The respondent made submissions in writing as to why it was appropriate for the Tribunal to issue the summons sought. The Tribunal invited submissions from the Council about the issue, and these were supplied in writing. The presiding member of the Tribunal issued a written decision on 24 September 2012. In that decision, she canvassed the various submissions made, and determined to make an order issuing a summons. The summons was issued the same day.

5 This application is made pursuant to the Judicial Review Act 2001 ("the JR Act"), s17. That section provides that a person aggrieved by a decision to which the Act applies may seek an order of review relating to the decision. A decision to which the Act applies means a decision of an administrative character made under an enactment. A person aggrieved by a decision is a person whose interests are adversely affected by the decision.

6 Before embarking on a consideration of the grounds of review, the Court must be satisfied that there has been a decision to which the Act applies, and that the Council is a person aggrieved by that decision.

7 The respondent has raised three issues. These are:

- This application is premature and should be dismissed by reference to the JR Act, s13(c);

- The application is misconceived in that, at best, the action of the presiding member of the Tribunal was conduct which could only be addressed by an application pursuant to the JR Act, s18. The application should be dismissed because the Council has, in effect, chosen the wrong vehicle. There was no argument, as part of this submission that, were the Court to find that what the presiding member did amounted to a decision, it was not one of an administrative character made pursuant to an enactment, and thus inherently reviewable;

- In any event, the Council is not a person aggrieved.

"13 When application for order of review concerning initial proceeding must be dismissed

Despite section 10, but without limiting section 38, if -

(a) an application under section 17, 18 or 19 is made to the Court relating to a reviewable matter made or engaged in by a tribunal, authority or person in the course of a proceeding (the 'initial proceeding') before the tribunal, authority or person (the 'decision maker'); and

(b) review of the matter is available by virtue of a provision made by a law (including this Act) under which the applicant is entitled to seek a review by the Court, another court, or another tribunal, authority or person, of any decision of the decision maker at the end of the initial proceeding; and

(c) the Court considers that it is desirable to dismiss the application in order to avoid interference with the due and orderly conduct of the initial proceeding because, in all the circumstances, the balance of convenience (including the interests of the applicant, another party or another person, the public interest and the consequences of delay in the initial proceeding) so requires; and

(d) the Court is satisfied having regard to the interests of justice that it should dismiss the application -

9 Counsel for the respondent submitted that the Court had a discretion to dismiss an application for review where that application unduly interfered with the initial proceedings, and the balance of convenience so required. Footnoted to that submission was the JR Act, s13(c). Reliance was also placed on decisions of Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338, Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97; (2005) 15 Tas R 158 at [48] and Haas Investments Pty Ltd v Lowe [2003] TASSC 14 at [17].

10 The first point to be made is that s13 does not allow the Court the discretion the respondent seeks to rely on. If all of the provisions of s13 are satisfied, the Court must dismiss the application. Any discretion which might exist to stay or dismiss the application at a preliminary stage in the context of this matter could only arise under s38. No argument was directed specifically to the requirements of s38.

11 As to Yates' case, it dealt with a special leave application to appeal a decision of the Full Court of the Federal Court of Australia which dealt with a review of a magistrate's decision to commit an alleged offender for trial. The court commented, in refusing leave, about the undesirability of fragmenting the criminal process. With respect, the comments, in my view, are not particularly useful in the context of the present case. As to any reliance upon the Port of Devonport Authority case, the paragraph referred to was an observation by Evans J, not determinative of the matter before him. It should be noted that his Honour said, as part of his remarks, that:

"The delays consequent upon the fragmentation of proceedings are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit."

The qualification in the second part of those remarks needs to be considered in the context of present case.

12 In Haas's case, Cox CJ dealt with an appeal against a ruling made during the course of proceedings in the Workers Rehabilitation and Compensation Tribunal refusing a party leave to re-open its case. The proceedings had not at the time been finalised, in that parties had not yet made their final submissions, and no decision of the tribunal finalising the matter had been made. His Honour determined the appeal was incompetent. His Honour determined that no adverse consequences had flowed to the appellant in that case from the ruling made.

"7 It is not, as a general rule, in the public interest that rulings on adjectival matters, which may not affect the outcome of proceedings, should be the subject of appeals to this Court before the hearings to which they relate are concluded in the Tribunal. It would lead to great inconvenience if proceedings before a Tribunal were to be interrupted or prolonged by a succession of appeals on adverse rulings concerning the admissibility of evidence or the like ...".

14 In the present case, since the JR Act, s13, does not apply, and no argument was addressed by reference to s38, I will deal with the issue raised by reference to the argument as to whether the Council may be said to be a person aggrieved.

15 The question arises as to whether what the presiding member did, when she produced her written decision of 24 September 2012, amounted to the making of a decision, or was it conduct in the form of a step along the way?

16 The JRA Act, s18, provides that, if a person engages in conduct for the purpose of making a decision to which the Act applies, a person who is aggrieved by that conduct may seek a review of it. Section 18 also provides that a reference to such conduct includes a reference to the doing of anything preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

17 In the present case, the appeal itself has been determined. There remains only the issue of costs. It is true to say that the issue of the summons is a step along the way in the argument about costs. However, the very issue of the summons has raised a discrete issue, and one of importance to the Council. Both the presiding member and the parties obviously considered it a matter of importance, given the extent of the submissions and the fact that they resulted in a written decision. If the issue is left unchallenged at this point, the purpose of the challenge will be lost, and the ability of the Council to protect from scrutiny minutes of closed meetings will also potentially be lost.

18 I am of the view the actions of the presiding member did not amount to conduct by reference to s18, but did amount to a decision. This preliminary argument must fail.

19 The primary argument raised by reference to this issue was that the Council could not be a person aggrieved because no adverse consequences flowed to the Council as a consequence of the issue of the summons. All the summons required was that the relevant minutes be produced to the Tribunal. Without more, that would not result in the respondent or indeed anyone else being allowed to look at the material. In effect, there was no loss of confidentiality, and therefore no adverse consequences.

20 Counsel for the Council did not specifically address this issue, that is the loss of confidentiality, in the context of whether or not the Council was a person aggrieved. He argued that the Council was a person aggrieved because the issue of the summons affected the legal rights of the Council simply because the Council was being compelled to do something it would otherwise not have to do, and it could be punished if it did not comply.

21 The case to which counsel for the respondent referred as to this issue of confidentiality was Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38. In that case, a subpoena issued required the production of papers which the entity to whom it was directed said were highly confidential and could adversely impact upon their business if disclosed. In that context the entity sought to have the subpoena set aside as oppressive. The court accepted the material was confidential. However Debelle J said at 56:

"The parties to the arbitration are either competitors with BHP Petroleum or parties who might purchase its gas. Disclosure, therefore, has a capacity to prejudice the commercial interests of BHP Petroleum. The fact that documents are confidential or commercially sensitive does not, standing alone, mean that a subpoena is oppressive. Subpoenas not infrequently require production of confidential documents, albeit less frequently, of commercially sensitive documents. The risk to the confidentiality of the documents must be tolerated in the interests of the administration of justice: Alliance Petroleum Australia NL v Australian Gas Light Co (at 239). In any event, it must be remembered that the documents are to be produced to the arbitrators not to PASA as the party who issued the subpoena: see s 17 of the Commercial Arbitration Act. The return of the subpoena is the appropriate time to determine claims for confidentiality and make orders to protect confidential documents: cf Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (at 715). The arbitrators can make appropriate orders to protect the confidentiality. On production of the documents to them, the arbitrators can determine whether the documents are confidential, whether they should be disclosed and, if so, the terms in which they will be disclosed including requiring undertakings as to confidentiality from those inspecting the documents."

On the face of them, those remarks clearly suggest that issues of confidentiality were not ones which should result in a subpoena being set aside. However, it should be noted that the remarks hinged on the capacity of the arbitrator in that case to make a determination, once the documents were produced, whether they were indeed confidential and whether they should be disclosed.

22 The circumstances in the present case are somewhat different. In this particular case, the purpose of the summons is to obtain material which the respondent says may have an impact on a decision of the Tribunal as to costs. The documents sought to be produced are from a closed meeting. It is not the case that the assertion of confidentiality is one yet to be determined. The Local Government (Meeting Procedures) Regulations 2005 ("the Regulations"), reg15(9), provides that such material is to be kept confidential unless the Council authorizes its release to the public. Absent that authorization, keeping the material confidential is mandated. By the summons, the Tribunal is potentially seeking to override that mandatory requirement and in effect force the Council to produce material it would otherwise have no legal obligation to produce. In addition, there is the sanction of a penalty if it does not comply.

23 With respect in those circumstances, I am satisfied that the Council's interests have been adversely affected by the decision of the presiding tribunal member and that, hence, it is a person aggrieved. As I have already indicated, no issue was raised to the effect that, if the Court were satisfied the presiding member's decision was a decision, it was not one of an administrative character.

24 The application for a summons was made pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s20(2). There is no dispute that the Tribunal had the power to issue a summons. The issue is whether that power extended to issuing a summons to compel the production of minutes of a closed meeting of Council.

"(1) A council by absolute majority ... may close a meeting or part of a meeting to the public only for a reason specified in subregulation2."

For the purpose of this matter, the reason relied on appears in subreg2(h) which provides:

"matters relating to actual or possible litigation taken by or involving the council or an employee of the council."

26 Subregulations 3, 4, 5 and 9 and reg34 are also relevant, and are as follows:

"(3) Unless subregulation (4) applies, a council or council committee must not close a meeting or part of a meeting when it is -

(a) acting as a planning authority under the Land Use Planning and Approvals Act 1993; or

(b) considering whether or not to grant a permit under that Act; or

(c) considering proposals for the council to deal with public land under section 178 of the Act.

(4) A council or council committee may close a meeting when it is acting or considering as referred to in subregulation (3) if it is to consider any matter relating to actual or possible legal action taken by, or involving, the council.

(5) If a council or council committee closes a meeting or part of a meeting, the grounds for the closure are to be recorded in the minutes.

(9) Subject to the Right to Information Act 2009, any discussions, decisions, reports or documents relating to a closed meeting are to be kept confidential unless the council or council committee, after considering privacy and confidentiality issues, authorises their release to the public.

(1) In respect of any matter discussed at a closed meeting, the general manager -

(a) is to record in the minutes of the open meeting, in a manner that protects confidentiality, only the fact that the matter was discussed; and

(b) is not to record in the minutes of the open meeting the details of the outcome unless the council or council committee determines otherwise.

(2) The general manager is to record in the minutes of a closed meeting any occurrence, of a kind listed in regulation 32(1), that relates to the closed meeting.

(3) The minutes of a closed meeting are to be kept confidential unless the council or council committee, after considering privacy and confidentiality issues, authorises the matters to be released to the public.

(4) If the general manager is excluded from a closed meeting, the chairperson of the meeting is to direct a person to record the minutes of the meeting."

27 There was no dispute that minutes of the closed meeting could not be accessed by reference to the Right to Information Act 2009. There was also no dispute that, if the minutes of the closed meeting contained material the subject of legal professional privilege, that material could be removed prior to production.

28 The presiding member of the Tribunal did not accept that the minutes of the closed meeting were exempt from production pursuant to a summons. She referred to reg15(9) which permitted the Council to authorize the release of such minutes, and then said that provision suggested that "the confidentiality of closed minutes is not absolute". The presiding member then recited part of sub-reg(3) of reg15 and said at par[29]:

"29 It was submitted that the meeting was closed pursuant to sub-paragraph (h) of Regulation 15(2) being a matter 'relating to actual or possible litigation taken by or involving the Council or an employee of the Council.' The issue being discussed at the meeting was not one where legal action had been taken by or against the Council with respect to an action claimed to have been committed by the Council or one of its employees, but was for the purpose of discussing the contents of a settlement proposal submitted by the Applicant Developer regarding an appeal of the Council's decision to refuse a development permit. The litigation in which the Council was involved was the defence of its decision to refuse to issue a permit for the development application. The reasons for refusal would generally be open to public scrutiny in accordance with the provisions of Regulation 15(3). The Tribunal accepts that the deliberations at the closed meeting could have included privileged legal advice submitted by the Council's legal representatives regarding the settlement proposal. The Appellants concede that privileged material should not be produced and that where the documents the subject of the summons contain such material, it should be redacted.

30 The Tribunal is not persuaded that a summons in the form proposed should not issue on the basis that the documents are confidential. This issue is more properly raised and addressed following the production of the documents to the Tribunal and prior to any direction being made regarding their inspection by the Respondent and/or the Respondent's solicitors. The Tribunal has the power to close its proceedings in order to receive evidence of a confidential nature pursuant to the provisions of Section 18 of the RMPAT Act."

29 The presiding member of the Tribunal in the paragraphs set out above appears to suggest that the meeting, the subject of the minutes sought, was not properly closed.

30 The Regulations, reg15(1), permit the Council to close a meeting only for a specified reason. One of those reasons is in subreg(2)(h) and that is where "matters relating to actual or possible litigation taken by or involving the council or an employee of the council;" are to be discussed. With respect, while the presiding member accurately set out that provision, when she characterised the reason why the Council closed the particular meeting in this case, she restricted it without any basis to being "not one where legal action had been taken by or against the Council with respect to an action claimed to have been committed by the Council or one of its employees ...". It did not have to be. The subregulation allowed closure where the matters being discussed related to actual or possible litigation involving (my emphasis) the Council, which this clearly was.

31 Insofar as it may be relevant to a determination of this appeal, I am of the view that the presiding member's characterization of what the Council did was not correct. It follows that I accept the relevant meeting was properly closed.

32 It is then necessary to consider the regulations which deal with the consequences of closure. These are regs15(9) and 34. The starting point for both is that the minutes of a closed meeting are to be kept confidential unless the Council determines otherwise.

33 Counsel for the respondent submitted that reg34 did not assist the Council because it did not specifically provide that the minutes of a closed meeting were immune from summons. He submitted that, had that result been intended by parliament, the provision would have said so. He referred, by way of example, to the Supreme Court Rules 2000, r29, and the Social Security (Administration) Act 1999, s207, both of which contain specific embargos on the ability of persons to subpoena material. He submitted any prohibition against disclosure, to be effective, should be clearly absolute.

34 Counsel for the respondent also referred to a decision of this Court in Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, and made a submission to the effect that the prohibition against production considered in that case prevented production to a person, and it was there determined that a court was not a person. I do not propose to go to the detail of the case. Suffice to say the comments by Underwood J (as he then was) were made in the course of dealing with a submission of counsel in that case and were not determinative having regard to the provision being considered. The comments cannot have any relevance in the present case either, given the wording of the regulations with which we are dealing which do not contain any reference to material not being able to be produced to a person.

35 It is necessary to look at the Regulations generally. The Regulations made specific provision for meetings to be closed in certain circumstances, and for certain consequences to flow from that in relation to the minutes of those meetings. Such meetings, and the way in which their minutes are dealt with, are considered differently from the usual meetings of the Council. The clear intention behind the provisions must be to permit the Council, in certain circumstances, to have confidential meetings without concern about their content being generally available.

36 While subreg15(3) did specifically provide that the Council could not close a meeting when it was acting as a planning authority, it provided for an exception to that restriction in subreg15(4). That exception was the same as that provided for in reg15(2)(h). It was irrelevant that the Council was generally not permitted to close meetings where the grant or otherwise of a permit was being discussed. The fact of the matter in this case was that the Council could, and did, close the particular meeting.

37 What then was the status of the minutes of that meeting? Subreg15(9) provided that any discussions or decisions related to a closed meeting "are to be kept confidential" unless the Council authorizes their release to the public "after considering privacy and confidentiality issues". Relevantly regs9(3) and (6) provide that the general manager of the Council must withhold from the public all associated reports and documents which relate to any matter referred to in reg15(2) unless the Council authorizes the release of such documents under reg15(9). There is then of course reg34.

38 The Regulations do not define what is meant by "the public". It is arguable that the Tribunal does not fall within the scope of that term. However, clearly the respondent would. A closed hearing of the Tribunal would not address issues of confidentiality, only issues of non-disclosure to the general public.

39 The Tribunal clearly has power to issue a summons to a person to produce documents for the purpose of an appeal which is being heard. I am satisfied that the application for costs, which is the purpose for which the summons was issued, is part of the appeal process involving the Council and the respondent. Absent the considerations arising in this case, the tribunal had power to issue the summons it did.

40 Does the fact that the documents sought to be produced are minutes of a closed meeting of Council affect that power? I am of the view that it does. The Regulations specifically provide for a regime of closed meetings in certain identified circumstances. They specifically provide that where a meeting is closed, the minutes are confidential unless the Council authorizes otherwise. There has been no such authorization in this case.

41 Underwood J said in Allen's case at pars[17] - [19]:

"17 To construe s10 in absolute terms would effectively deny the court access to material which would assist in arriving at a determination of this dispute which involves the substantial question of whether the defendants allegedly tortious behaviour was rendered immune from legal sanction by virtue of compliance with the provisions of the Act. If s10 operated as a total bar to access by the courts of the material referred to, the lawfulness of the activities of the Council would, in every practical sense, be removed from scrutiny by the judiciary. No proper judicial enquiry by way of prerogative writ for example, into the exercise of power by the Council could properly be conducted if the court was denied access to information which fell within the scope of s10.

18 I am of the view that the prohibition against disclosure of information provided by s10 does not extend to include the court when the performance of duties or the exercise of powers referred to in the Act is the subject matter of litigation. The disclosure prohibited by s10 is governed by the opening words of that section, 'except in the course of his duties under this Act ...'. Those words should be given a broad interpretation. It was the duty of the defendants to act in accordance with the provisions of the Act. It was and is equally part of their duty to submit their actions to judicial scrutiny when properly called upon to do so.

19 In this case it is not necessary for me to consider the effect of s10 where disclosure of information is sought in circumstances where the judicial inquiry does not touch or concern the exercise of the powers or performance of duties under the Act."

42 However, he was dealing with a case which involved a section in an Act which provided:

"10 Except in the course of his duties under this Act no person shall disclose any information obtained by him in the exercise of any powers conferred on him by, or by virtue of his office or employment under, or for the purposes of this Act."

He was also dealing with a situation where there were court proceedings in which the plaintiff alleged he had been defamed by officers of Consumer Affairs in a report they had made to the relevant minister. The relevant officers sought to rely on the section of the Act I have identified as a defence to that claim. Clearly the actual material sought to be excluded from consideration was the very material which was the subject of the litigation. That is not the case here.

43 That decision highlights the need to consider the particular provision relied on. That in Allen's case was clearly designed to stop officers from Consumer Affairs, who came into possession of information about a person, from disclosing it, except in the course of their duties. The situation is entirely different here.

44 In the present case, the starting point is that the relevant information is confidential absent a decision of Council. There is no step which the Tribunal could take were the Council compelled to produce the minutes to maintain that confidentiality. It is not enough to say that production to the Tribunal per se will not result in the respondent accessing the material. The fact that even the tribunal accesses the material is enough to destroy the confidentiality provided for in the regulations.

45 I am of the view that the power of the Tribunal pursuant to the RMPAT Act, s20, did not and could not extend to requiring production of minutes of a closed meeting of the Council to the Tribunal. The review must, in those circumstances, succeed. The order of the Court is that the decision of the presiding member of the Tribunal, Mrs Cunningham, made 24 September 2012 to issue a summons directed to the Kingborough Council is quashed.