THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE

Local Government - Town planning - Motion to stay order dismissing appeal from order dismissing claim for prerogative relief - Whether order founded in error as to zoning - Zoning undisputed at hearing - Whether perfected final order can be revisited

1 MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Parker J. I respectfully agree with them. There is nothing that I wish to add to them.

2 In my opinion, although there is no merit in the argument presented in support of the application before the Court, it would be appropriate to dismiss the application on the ground that it is not competent.

3 ANDERSON J: I agree with the judgment of Parker J.

4 PARKER J: On 4 October 2002 this Court dismissed an appeal which the appellants had brought from a decision of a Master of this Court given on 24 October 2001. The Master had dismissed an originating summons by which the appellants sought declaratory relief against the respondent. The declarations then sought by the appellants related to a planning appeal they had successfully pursued before the respondent. The respondent is the Minister for Planning and Infrastructure. She is the Minister responsible for both the Metropolitan Region Town Planning Scheme Act 1959 (WA) (the "MRS Act") and the Metropolitan Region Scheme (the "MRS") made pursuant to that Act and the Town Planning and Development Act 1928 (WA) (the "Planning Act") and the City of South Perth Town Planning Scheme No 5 ("TPS5") made pursuant to the Planning Act. Both the MRS and TPS5 provide for appeals in some circumstances to the respondent.

5 These proceedings, and earlier proceedings in this Court in which the appellants unsuccessfully sought prerogative relief against the then Minister - Marshall & Anor v The Hon Graham Kierath MLA, Minister for Planning [2001] WASCA 70 - arise from efforts of the appellants to secure development approval to construct an additional dwelling on a block of land comprising some 1,034 m2 which the appellants own ("the land" or "the land of the appellants"). This is situated at the corner of Susan Street and Gwenyfred Road, Kensington, which is within the Local Government District of the City of South Perth. At all relevant times there has been an existing self-contained dwelling on the land. They have not obtained planning approval.

6 Among many issues that were ventilated in the proceedings before the Master and on appeal before this Court was whether the MRS or TPS5, or both of them, applied to the land and governed the appellants' application for development approval. Among other matters this Court held in its decision on 4 October 2002 that both the MRS and TPS5 applied to the land, and did so without inconsistency, and that by virtue of

TPS5 the development approval which the appellants sought could not be granted.

7 On 29 October the appellants filed in this Court what was described as a motion for stay of execution, although the relief sought is far more extensive than this description suggests. As amended on 11 November 2002, the appellants now seek a stay of the judgment of this Court given on 4 October 2002 and also declarations, in effect, that the land is not within a residential zone under TPS5, the R-15 density code does not apply to the land, the land is zoned "Urban" under the MRS, and earlier decisions inter alia of the Town Planning Appeal Tribunal are "null and void". They also seek orders that the respondent be directed to allow two planning appeals which the appellants have taken to the respondent. They also seek costs and "damages" against the respondent.

8 The appellants were legally represented when their appeal from the Master's decision was heard by this Court. However, they prepared the motion for stay of execution without legal assistance and they were not represented when argument in respect of the motion was heard on 27 February 2003. They appeared in person on that occasion. In these reasons I will continue to describe them as the appellants to conform with the papers before the Court. Strictly they are applicants.

9 It became clear in the course of oral submissions that what the appellants now seek to advance is that the proceedings on appeal and the decision of this Court on 4 October 2002, and indeed the whole of the processes since they first sought development approval, have been vitiated by a fundamental error of fact. Everything and everyone, including this Court, it was contended, had proceeded on the basis that the land was zoned "Residential - R" under TPS5. The appellants now seek to contend that it is not so zoned. It follows, in the submission, that as the R - 15 density code applied only to a residential zoning it has no application to the land. It was the R - 15 density code under TPS5 which, by the decision of this Court, the Minister and others, prevented development approval being granted. Hence, the appellants argue, the effect of the factual error for which they contend is that they should now be granted development approval. They seek in effect to have this Court so declare, and to have earlier decisions to the contrary by other Tribunals and the respondent set aside, and to have this Court order that the respondent decide accordingly.

10 At the hearing the appellants were conscious that their motion was affected by procedural difficulty. They explored with the Court ways by which any procedural defiency which the Court saw might be overcome. Rather than examine this aspect of the submissions, however, it is preferable to turn to difficulties which are of substance, and not merely procedural.

11 There are two difficulties of substance. Each is fatal, in my view, to any course the appellants might now seek to take in the present proceedings before this Court.

12 A fundamental difficulty for the appellants is the factual foundation they advance for the view that there has been an error concerning the zoning of the land under TPS5. There are a number of aspects to this difficulty.

13 First, the appellants presented their case, before the Master and before this Court on appeal, on the factual basis that the land was zoned Residential - R with an R-Code density of R-15. Indeed, both parties filed and relied on affidavit evidence that this was the zoning of the land. It was a fact both asserted and accepted by both parties. The respondent filed an affidavit which annexed a copy of TPS5 including copies of the relevant sheets of the Scheme Map to establish this fact.

14 It was on this basis that in the reasons for decision of this Court delivered on 4 October 2002 it was said at [9]:

"It is undisputed that the land of the appellants is, and at all material times was, zoned:

• 'Residential R', with an R-Code density of 'R15' under TPS5."

15 The case before the Master and on appeal having been presented by both parties on this mutually accepted factual basis, and the legal arguments presented by the appellants having failed, the appellants now seek to avoid the consequences of the adverse decision which has been delivered by challenging that fundamental factual basis. Without more, that is an affront to the due administration of justice.

16 Secondly, it became apparent in the course of argument that the foundation for the appellants' contention is no more than a difference, as they perceive it, in the precise colour shade in which the land is coloured on the copy of the relevant sheet of the Scheme Map of TPS5 provided in the appeal books, and the colour shade on the zoning legend which is to be found on a separate copy sheet of the Scheme Map.

17 By cl 17 of TPS5, the Scheme Area is divided into 20 zones, 3 of which are residential, one being "Residential - R", 3 are shopping, 3 are commercial and there are 11 "other" zones. As cl 17(2) provides:

"The Zones respectively comprise the areas which are delineated, distinctively coloured, hatched or lettered and identified as such by the legend on the Scheme Map."

18 The sheet of the Scheme Map which contains the legend depicts these 20 zones using a variety of distinctive colours, borders hatching and lettering, so that each zone is distinctively identified.

19 The colour depicted on the legend for the Residential - R zoning is also used for a few other zones, but each of these other zones is distinctively identified, being distinguished from Residential - R by the use of the other devices of borders, hatching and lettering in conjunction with the colour.

20 It is the submission of the appellants, however, that when the shade of colour depicted for the Residential - R zoning on the sheet containing the legend is closely compared with the shade of colour used for the land on the relevant sheet of the Scheme Map applicable to the land of the appellants, a difference can be discerned. As the submission was put - "they looked different, therefore they are different". It follows, it is submitted, that if they are different the land can't be zoned Residential R because it isn't coloured the same as the legend for Residential - R.

21 An obvious difficulty with this line of contention is that the colour comparisons which it invites are between copies of two sheets of the Scheme Map. The Court does not have the original Scheme Map. The copies included in the appeal book appear to have been produced by a photocopying process. The precise shades of colour depicted on the two sheets are therefore dependent on the quality and consistency of the photocopying process.

22 Secondly, when the relevant shades of colour of the two copy sheets of the Scheme Map used by the members of the Court are compared, it is not obvious that there is a difference of shade of colour affecting the Residential - R zoning. If there is in truth a difference, it is slight indeed.

23 Thirdly, as cl 17(2) of TPS5 makes clear, the object of the distinctive colouring, in some cases together with borders, hatching and lettering, depicted on the legend of the Scheme Map is to delineate and identify each of the 20 zones, and to differentiate each one of them from the others. By this means the Scheme Map serves to determine the zoning applicable to a particular piece of land. In respect of the land of the appellants, even using the copies of the relevant sheets of the Scheme Map in the appeal books, there is no difficulty in determining which of the 20 zones of TPS5 is applicable. The colours used in the legend of the Scheme Map are each so distinctive that, together where applicable with the devices of borders, hatching and lettering, any slight difference of shade of colour which might be found between two different sheets of the Scheme Map, is not sufficient to give rise to doubt as to the intended zoning. In this case, in my view, the intention is clear that the land is zoned Residential - R.

24 Fourthly, the relevant sheet of the Scheme Map also depicts the land of the appellants as being contained within an area which is bordered in brown. The legend on the Scheme Map depicts the Residential - R zone not only by colour but also as delineated by a brown border. Further, that area delineated by the brown border has superimposed on it "R15". Clause 7(4) of TPS5 provides that:

"The R Code Density applicable to land within the Residential Zones shall be determined by reference to the R Code Density numbers superimposed on the areas within those Zones shown on the Scheme Map as being contained within the outer edges of the brown borders ..."

TPS5 only applies the R Codes to land within the residential zones for which TPS5 provides. Thus, it is also clear from the relevant sheet of the Scheme Map, that the land of the appellants is within an area zoned residential by virtue of the brown bordering and the superimposing of "R15". As indicated earlier, TPS5 provides for only three types of residential zoning. These cannot be confused on the Scheme Map because the other two residential zones are distinguished from Residential - R, in one case by hatching and in the other by distinctive colouring and hatching. Thus, if there were any uncertainty by virtue of some difference in shade of colour, which is not the case in my view, by virtue of the matters just considered, the intention of TPS5 to zone the land of the appellants as Residential - R is manifest. In my view TPS5 is effective to achieve that intention.

25 Fifthly, the submissions of the appellants appear to confuse the zoning of the land under TPS5 and under the MRS. As the reasons for decision of this Court on the appeal seek to make clear, TPS5 and the MRS are distinct planning schemes, each of which applies to the land. They do this in accordance with the legislative scheme of the Planning Act and the MRS Act, and without inconsistency. That is the effect of the "Urban" zoning of the land under and for the purposes of the MRS, and the "Residential - R" of the land under and for the purposes of TPS5.

26 By virtue of cl 23 of the MRS, land zoned "Urban" under the MRS is coloured "red brown" on the MRS Scheme Map. The land of the appellants is coloured red brown on the MRS Scheme Map. The argument of the appellants, however, appeared at one point to be that as the colour of the TPS5 Scheme Map in respect of the land might be described as a shade of red brown, then the effect of this is that for the purposes of TPS5, as well as the MRS, the land is zoned Urban. If such a contention was intended, it fails to recognise that the MRS and TPS5 are distinct planning schemes, each with zonings and Scheme Maps which are quite distinct from the other. Even if a colour on the TPS5 Scheme Map might be described as red brown, that has no effect on, or relevance to, the zoning of the land under the MRS and it is not a consequence that thereby the land is zoned Urban for the purposes of TPS5.

27 For the reasons given it has not been demonstrated on the material before this Court there is reason to conclude that the land is zoned other than Residential - R by TPS5, or that there is an adequate basis on which that view is arguable.

The order dismissing the appeal has been perfected

28 The second fundamental difficulty for the appellants is that the unconditional order of this Court, dismissing their appeal from the Master has been extracted. It was perfected when the formal order of the Court dismissing the appeal issued under the hand of the Registrar on 11 October 2002. This was before the appellants had filed their motion.

29 As was observed by Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the court."

As Menzies J made clear at 531 - 532, that is the position where litigation "has been brought regularly to an end" (532), which is the present case, but not if the litigation is still pending before the court. Gibbs J who was in dissent for other reasons, stated the legal position in these words at 539:

"It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it ... The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing."

His Honour went on to make clear that the rule is subject to exceptions which he discussed and that statutory provisions may also alter the position. There is no statutory provision which assists the present appellants. With respect to the exceptions a superior court has an inherent jurisdiction to modify or vary parts of an order other than the substantive or operative part, or to amend or vary an order so as to carry out the meaning intended by the court, or to make plain any language which is doubtful. There is also an inherent jurisdiction in relation to conditional orders. The position is also different where the order was obtained by fraud: Hip Foong Hong v H Neotia & Co [1918] AC 888; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529. As was said by Aickin J in Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 154:

" ... when an appeal has been finally disposed of in a Court of Appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud, and there would seem to be no reason why that rule should not also apply to judgments on appeal ..."

30 The decision in Bailey v Marinoff was applied in this Court in Biala Pty Ltd v Mallina Holdings Ltd (1990) 2 WAR 381 at 388 - 391 per Malcolm CJ, and 397 - 398 per Brinsden J, Franklyn J concurring at 400, and in New South Wales in Harrison v Schipp [2002] NSWCA 78; (2002) 54 NSWLR 612 at 615 - 616 per Handley JA, 630 per Giles JA and 645 per Ipp AJA. As indicated in Harrison v Schipp the law in relation to this matter is authoratively settled in Australia and, in this Court, effect cannot be given to the position taken in England in Taylor v Lawrence [2002] UKPC 30; [2002] 2 All ER 353 where it was held that the Court of Appeal had a (carefully confined) residual jurisdiction to reopen an appeal after the judgment had been drawn up: see Harrison v Schipp at 615, 637 and 645.

31 In the course of argument reference was also made to Rayner & Anor v Australian and New Zealand Banking Group Ltd [2002] WASCA 82, but as appears at [3], that was a case where the final order had not been extracted so there was no perfected order. It was accepted in that situation, consistently with Bailey v Marinoff, that there is "an exceptional jurisdiction" to reopen a decision not yet perfected although, even in such a case, as was noted by Doyle CJ in McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360 at [38]:

" ... the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong."

The decisions in Rayner and McAdam have no present application because, in this case, the unconditional order perfecting the appeal has issued. This was the position when the appellant's motion was filed.

32 The appellants sought to draw some support from words of Latham CJ to overcome this difficulty. These words are to be found in Cain v Malone [1942] HCA 20; (1942) 66 CLR 10 at 15:

"A decision of three Justices ... especially with one Justice dissenting, can certainly be overruled by a Bench of five Justices: See per Higgins J in Gray v Dalgety and Co Ltd [1916] HCA 35; (1916) 21 CLR 509 at 551. But the power to overrule a prior decision should be exercised with great caution and only in a clear case where, as it has been said, the prior decision is 'manifestly wrong' (The Tramways case [No 1] [1914] HCA 15; (1914) 18 CLR 54 at 58)."

The appellants contend from this that as the decision in this appeal is "manifestly wrong" it can be overruled. As the context of the passage from Cain v Malone indicates, Latham CJ was not concerned with the present situation, but was dealing with the circumstances in which the High Court might overrule an earlier decision of that Court (in another case), ie the doctrine of stare decisis. In my view, this passage is of no relevance for present purposes.

33 Although not suggested by the motion, in the course of oral submissions the appellants also ventured that the decision of this Court had been obtained by fraud and on this basis should be set aside under the acknowledged principle which recognises this exception to the normal rule. The only factual basis relied on to establish this proposition is the affidavit of the appellants sworn 28 October 2002 in which it is said that:

"4. Having been told repeatedly, over a period of several years, by various public authorities and Ministers of the Crown that our land is zoned 'Residential - R' under TPS5, with an 'R-15' density code, we believed this to be so. ...

5. We now believe we have been completely and utterly misled about the zoning of our land. Wherever we have repeated in our Affidavits that the land is zoned 'Residential - R' under TPS5, we believe we have been tricked into giving false testimony and have unwittingly misled the Court."

34 In oral submission it was made clear that the only foundation for the statement that the appellants had "been tricked", and the oral submission that this was fraudulently so, was an inference Mr Marshall submitted should be drawn that, because (as submitted) there was a colour shade difference on the Scheme Map with the consequence that the land was not in truth zoned Residential - R by TPS5, what the appellants had been told about the zoning of the land over the period of several years by the various public authorities and Ministers demonstrated that the appellants had been fraudulently deceived. As indicated, the primary factual foundation for the proposition that the land is not zoned Residential - R under TPS5 has not been established and is not shown to be arguable. Further, even had that been established or arguable, there is absent any direct evidence or sufficient foundation for an inference that what had been told them over the years was said fraudulently. The evidence does not, in my view, admit of an inference that any of those authorities and Ministers were both aware of a difference in colour shade and attached to that difference the legal significance for which the appellants now contend. In the absence of evidence of this nature there is not, in my view, an adequate factual foundation for the proposition that these authorities or Ministers acted fraudulently in the way contended.

35 For these reasons, in the present circumstances, this Court may not now recall the perfected order dismissing the appeal or interfere with the operation of that order.

36 In my view the motion of the appellants is misconceived and must be dismissed.