DELIVERED : Edited reasons delivered extemporaneously on 10 APRIL 2007

Interim injunction - Review proceedings - Whether mandatory interim injunction available - Test for granting interim injunction

Local Government Act 1995

State Administrative Tribunal Act 2004, s 17, s 25(2), s 27, s 27(2), s 29, s 29(1), s 29(3), s 90, s 90(1), s 90(5), s 90(6)

1 The applicant, Mr Madden, held a licence from the Shire of Broome to operate camel tours on Cable Beach at Broome, Western Australia for a limited period of time. He applied, as did a number of others, for a longer licence. His application was, however, refused. The Shire granted licences to three other persons on the basis that only three operators should be permitted to conduct camel tours on Cable Beach. Mr Madden's earlier licence then expired.

2 Mr Madden commenced review proceedings in the Tribunal in respect of the decision of the Shire to refuse his licence for the longer period. He then brought an application for an interim injunction requiring the Shire, in effect, to grant him a licence to operate camel tours in the period up to the determination of his main review application.

3 The Tribunal heard the application for the interim mandatory injunction and decided that either it did not have the power to grant such an injunction in the circumstances, or that, if it did, for discretionary reasons it was not appropriate to grant such an injunction.

4 Mr Madden's application for an interim injunction was therefore refused.

5 The main application for review of the decision to refuse the licence was programmed for final determination.

6 On the hearing of the application for an interim injunction on 10 April 2007, the President of the Tribunal dismissed the application and gave oral reasons for doing so at that time. The reasons which now follow are an edited version of the reasons for refusing an interim injunction given orally at the time.

7 The applicant, Mr Madden, held a licence from the Shire of Broome to operate camel tours on Cable Beach at Broome, Western Australia for a limited period of time. He then applied, as did a number of others, for a longer licence. His application was, however, refused. The Shire granted licences to three other persons on the basis that only three operators should be permitted to conduct camel tours on Cable Beach. Mr Madden's earlier licence then expired.

8 Mr Madden then commenced these review proceedings in the Tribunal in respect of the decision of the Shire to refuse his licence for the longer period. He now makes application for an interim injunction requiring the Shire, in effect, to grant him a licence to operate camel tours in the period up to the determination of his main review application.

9 The State Administrative Tribunal Act 2004 (WA) (SAT Act) gives the Tribunal, amongst other powers, the power under s 90(1) to grant an interim injunction in any proceeding if it is just and convenient to do so. Section 90(5) says that an interim injunction may be granted in any case for a specified period and, if granted on the application of a party, for a period up to the final determination of that application. Section 90(6) goes on to provide the Tribunal with the consequential power to require an undertaking as to costs or damages if an interim injunction is granted.

10 This application has come on urgently. The parties, including the Shire's lawyers, have not had the opportunity exhaustively to develop all of their arguments. Nor has the Tribunal had the opportunity to consider all of the possible types of injunctions that might be given under the statutory power to grant an interim injunction.

11 I should say, though, that on what is before the Tribunal at the moment, I rather doubt that the Tribunal has the power to grant an interim mandatory injunction, at least in a circumstance like we find before us today. I say that because I think there is some force in a number of the observations and submissions made by Mr Wittkuhn on behalf of the Shire this morning.

12 One has to be very careful to have regard to just what sort of proceedings the Tribunal has before it and what sort of functions it may exercise. Mr Madden's main application is in the Tribunal's review jurisdiction under s 17 of the SAT Act. The Shire under its local laws made under the Local Government Act 1995 (WA) (LG Act) is the primary decision-maker as to who should have trading licences on Cable Beach in respect of camel tours. Under the LG Act, if a person such as Mr Madden is unsuccessful on an application for a licence, they may apply to the Tribunal for a review of the Shire's decision to refuse the licence. The Tribunal has very clear powers and they are the ones stated in the SAT Act. It does not have general powers to do what it likes.

13 Section 29 of the SAT Act sets out what those powers are. Section 29(1) says the Tribunal has the powers that correspond to those exercised by the decision-maker making the reviewable decision. Section 29(3) says the Tribunal may affirm the decision that is being reviewed or vary the decision that is being reviewed, or set aside the decision that is being reviewed and substitute its own decision, or send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations the Tribunal considers appropriate.

14 So in the review jurisdiction, the Tribunal must decide whether or not it should affirm a decision, vary it or set it aside and substitute its own decision or send it back. When the Tribunal determines a matter in the review jurisdiction, the Tribunal is bound to have regard to the requirements of s 27 of the SAT Act. First, under s 27(1), the hearing is a de novo hearing, which means it is heard afresh. The Tribunal is not just looking at whether what the Shire did was done according to correct form; it is considering all of the facts and circumstances and making a decision on the merits of the case at the time it makes the decision. Secondly, s 27(2) importantly identifies the purpose of the review. It is:

" ... to produce the correct and preferable decision at the time of the decision upon review."

15 It is in this context that an application for mandatory interim injunction is now made. There has been a refusal of the Shire to grant a licence. There has been an application in the review jurisdiction of the Tribunal to substitute a fresh decision in its place. The obligation of the Tribunal is to hear that application de novo and to make the correct and preferable decision at the time of making the decision.

16 To grant an interim mandatory injunction in all of these circumstances, which would have the effect of providing Mr Madden with a temporary licence up to the time that a final decision is made on his review application, would, I consider, involve at least some assessment of the merits of the case.

17 That is where one runs into difficulties with the SAT Act and the proper function of the Tribunal in a review proceeding. I do not think the Tribunal can make a partial assessment of the merits of the application and grant a temporary licence in a case like this. The Tribunal needs finally to decide what the merits of the case are and what the correct and preferable decision is. At this stage of the proceedings, it is not possible to state the correct and preferable decision in relation to the licence decision affecting Mr Madden because we have not received all of the evidence. That is yet to happen.

18 I do not think it is necessary to say, and certainly I am not saying today, that there may never be a circumstance in which an interim injunction of a mandatory kind may not be granted under s 90. That will have to await another day.

19 The question of how one deals with some decisions which are the subject of review in the Tribunal in an interim situation has arisen before. There was one case not long ago where the Shire of Serpentine-Jarrahdale had made a decision to require the operator of an abattoir business to do certain things. There was a reviewable decision there. The operator brought proceedings in the Tribunal to review the decision and a question arose as to whether or not there should be a stay of the decision: Peel Pet Foods Pty Ltd and Serpentine Jarrahdale Shire (CC 974 of 2006).

20 The Tribunal has a power under s 25(2) of the SAT Act to stay a decision, but you need a decision that can be stayed. Here we do not have any positive decision at all; there is really nothing that can be stayed. It was accepted in the Peel Pet Foods situation that a stay might provide a benefit to the applicant in that, perhaps, they might not be at risk of criminal proceedings for not complying with a relevant law while the stay was in place. But, as I say, that is not the situation we have here.

21 There may be other circumstances, for example, and I think occasionally there are in the Tribunal, where a decision-maker has made a decision effectively to take away a person's vocational licence and a review application is made. In those circumstances, a stay order can also make sense because if you stay the decision to take a person's licence away, it does not have immediate operation. The person can continue to carry on working, for example, pending the final determination. But again, that is not the situation we have here.

22 We are not talking about a stay of a decision. It does not really make a lot of sense to talk about the stay of a decision not to grant a licence. Even if you could, it would simply mean that there would be no decision at all. It would not have the result of putting a decision in place, because there is nothing unless a licence is granted. Where there has been a pre­existing licence which has expired, there is nothing. If there is a decision not to give a new licence, there is no pre-existing right, in circumstances such as these, to renewal of the expired licence.

23 So one way or the other, it is very difficult to see how, in particular circumstances like these, where there is a decision not to grant a licence, the power to grant an interim injunction can be utilised to cause the granting of a licence for an interim period. I think the proper understanding of the SAT Act in the review jurisdiction is to ensure that a person who is aggrieved by a reviewable decision can bring their proceedings in the Tribunal to achieve a final merits review.

24 It is also difficult to contemplate just how an interim mandatory injunction could be given in a situation like this in the face of the Shire's decision to grant other licences. It was said for Mr Madden this morning that you could just add another licence to the existing three that have been granted and that it could be on the same terms and conditions; that there is enough space for the fourth operator, at least on an interim basis.

25 Be that as it may, it just shows the difficulties that the Tribunal is faced with when asked to make a very preliminary decision along these lines. We are not privy yet to all of the information which led to the initial decision, and we could make a very bad decision by allowing a fourth operator in on an interim basis pending the finalisation of their review application.

26 It is usual to say when an interlocutory injunction is sought in court proceedings, as in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, that there are a number of principles that normally have to be established to get the injunction. The first is that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability at the trial of the action that the plaintiff will be entitled to relief; secondly that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and thirdly that the balance of convenience favours the granting of an injunction.

27 Those principles were laid down in the context of the principles governing the grant or refusal of interlocutory injunctions in private law litigation. They have also been applied in constitutional cases. Those principles are not entirely relevant in an administrative review context where the Tribunal has a statutory power to grant an interim injunction. However, they provide some guidance to the exercise of the statutory power in an administrative review context.

28 For example, it remains important, I think, whenever an injunction question is raised, to ask, "How serious is the 'question to be tried', or the issue that the person wanting the injunction is contending for?" As I say, we start from a position here, where there is no licence at all. There is a review application to get it. It is difficult for the Tribunal at this stage to enter into an inquiry as to how likely it is that the application will be successful. The Shire has put up information to suggest the three-operator rule is well considered. The Shire also says the three-operator rule was not attacked in the earlier case involving Bird and Shire of Broome [2006] WASAT 338. They are certainly considerations.

29 There is also the question of irreparable injury. If an injunction is not granted, will the applicant lose its interest forever? There is no doubt that if Mr Madden were ultimately successful on the materials put to the Tribunal at the moment, he might certainly miss out on some of the business that he has lined up, because we are getting closer and closer to the day when the dry season would start in the Kimberley region. That is also a factor. However, he will still have the opportunity to have his case heard, either way.

30 In balancing convenience, it is difficult to deal with the matter in an administrative review context. You can take account of other parties. You can also take account of the fact that the primary decision-maker here, the Shire, has decided what is best for Cable Beach and how many operators there should be, and it has management obligations in respect of the beach. To put another operator in for the season or a portion of it could affect other parties who are not represented here. It would certainly run counter to the Shire's considered assessment of what Cable Beach should have occurring on it.

31 So even approaching the matter in a way which would accord strictly with the usual principles applied on applications for interlocutory injunctions in courts, I think I would be reluctant to grant an injunction.

32 But as I say, I also suspect that the power to grant an interlocutory mandatory injunction, which involves the grant of interim relief along the lines of the final relief sought in the proceedings, may simply not be open to the Tribunal in a review proceeding like this because it would mean, in effect, the Tribunal would have to make at least a partial determination of what is correct and preferable. I am not presently convinced the Tribunal can make a partial determination of the correct and preferable decision.

33 However, even if the Tribunal does have the power to entertain the grant of a mandatory interim injunction under s 90 of the SAT Act in circumstances like these, I do not think, on the facts of the application, it would be appropriate to do so in this case.

34 The most appropriate way forward, I think, is to have this matter proceed to a hearing as expeditiously as possible. That was discussed on the first directions hearing. The statements of issues, facts and contentions are to be put in by the parties on a carefully thought out timetable. Towards the end of this month, when the matter comes back before me, it will be important to take stock of the circumstances as they then exist, work out how much time is needed for the hearing, list the hearing and, as I said on the last occasion, decide exactly where that hearing will be and how it should be conducted.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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