A previous decision of the Tribunal involving the same parties and similar issues had held that there was jurisdiction to review the award of competing applications. But in that decision, importantly, there were competing applications which had been assessed by the Shire of Broome in the one transaction.

Polo Enterprises Australia Pty Ltd argued that there was objectively in existence, as the legislative framework envisaged, mutually exclusive competing applications which gave rise to review rights.

The Tribunal disagreed, holding that it had no jurisdiction to undertake a review of the June 2013 decision. In order for there to be a reviewable decision, the Council must actually consider an application and make a decision. This had not happened here for, in any event, reasonable and plausible administrative reasons.

The application for a review was accordingly dismissed.

Polo Enterprises Australia Pty Ltd and Shire of Broome & Anor [2013] WASAT 98

1 These proceedings concern a dispute over the awarding of rights to stage a beach polo event in the Shire of Broome (Shire) in 2014. The applicant, Polo Enterprises Australia Pty Ltd (Polo Enterprises Australia), applied under the Local Government Property and Public Places Local Law 2012 (Local Law) enacted by the Shire to stage such an event in the May 2014 season. (The Shire is the second respondent in these proceedings.)

2 The first respondent, Cable Beach Polo Pty Ltd (Cable Beach Polo), was awarded the rights for 2014 and for following years. In short, when the Council of the Shire voted, on 20 June 2013, on awarding such rights, it did not have before it Polo Enterprises' application, which had only been received two days before the meeting.

3 A preliminary question arose in relation to the Tribunal's jurisdiction to review the Council's failure to award such rights to Polo Enterprises in place of Cable Beach Polo.

4 At the conclusion of the expedited hearing on this preliminary point, the Tribunal held, on 16 October 2013, that it did not have any jurisdiction to undertake the review sought. The application for review was consequently dismissed.

5 Because of the urgent need to decide the jurisdictional issue as soon as practicable, the Tribunal gave brief oral reasons for its determination at the conclusion of the hearing, foreshadowing the delivery of more complete reasons in due course. These are those reasons.

6 The parties have filed written submissions in this matter and the Tribunal had the benefit of extensive oral argument. The main facts are common ground.

7 Counsel for the Shire, Mr Wittkuhn, tendered, without objection, the following 'key facts':

1. On or about 26 April 2013, Cable Beach Polo Pty Ltd (CBP) lodged with the Shire four Event Applications, each for the conduct of an event on a public place, with accompanying explanatory and supporting documents.
2. Each of the Event Applications related to the same public place, namely Cable Beach in front of the Broome Surf Life Saving Club Premises.
3. Each of the Event Applications related to the same type of event, namely 'polo sporting fixture'.
4. The factor differentiating the four Event Applications was the date of the proposed event. One application related to 24 and 25 May 2014[,] but with a bump-in date of 23 May [2014] and a bump-out date of 26 May 2014. One application related to 16 and 17 May 2015[,] but with a bump-in date of 15 May 2015 and a bump-out date of 18 May 2015. One application related to 21 and 22 May 2016[,] but with a bump-in date of 20 May [2016] and a bump-out date of 23 May 2016. One event related to 20 May 2017, but with a bump-in date of 19 May [2017] and a bump-out date of 21 May 2017.
5. The matter of CBP's proposal was scheduled as an agenda item for consideration by Council at its 20 June 2013 meeting.
6. On 22 May 2013, Polo Enterprises Australia Pty Ltd (PEA) wrote to the Shire signalling its intention to apply to the Shire for a 2014 beach polo event. PEA's letter to the Shire also sought certain advice concerning the Shire's process for determining applications for any beach polo event for 2014. PEA sought confirmation that (among other things) applications from separate applicants would be dealt with together.
7. By letter dated 5 June 2013, the Shire declined to give the confirmations sought, noting that the process would be a matter for Council to determine. The Shire's letter also informed PEA that CBP had already made applications to the Shire, and that it was the present intention for those applications to go before Council on 20 June 2013.
8. On 14 June 2013, the Council agenda papers including [an] officer report for the 20 June 2013 Council meeting were finalised, circulated to Council members, and published on the Shire's website. ... The item was assigned agenda item number 9.2.2.
9. On 18 June 2013, PEA lodged an Event Application with the Shire for a beach polo event for 2014. ... The 'application outline' was expressed in paragraphs 32-33 as offering the Shire a certain degree of flexibility as to dates of event. The 'application outline' also allowed the Shire to elect between one of two venues:
   • Either the portion of Cable Beach in front of the surf club; or
   • Gantheaume Point.
10. On the other hand, explanatory materials lodged with the Event Application also stated the following:

'33. ... In circumstances where Council has a preferred date, or if CBP has applied to stage its event on an alternative date, this application is to be deemed to relate to that alternative date.

1. However, if Council prefers the event to remain on Cable Beach proper, or if CBP's application relates to Cable Beach, then this application is deemed to relate to Cable Beach as the event venue. In such circumstances, PEA would, as a contingency plan, either:

(a) seek secondary approval for use of Gantheaume Point if, at the time of bump in, the sand is unplayable; or

(b) prepare the sand by watering ahead of any games'.

'(1) Authorises the CEO to issue permits to Cable Beach Polo Pty Ltd (CBP) under the Local Government Property and Public Places Local Law 2012 for the staging of CBP's proposed Broome Beach Polo 2014, 2015, 2016 and 2017 beach polo events respectively, at Cable Beach on the dates identified in CBP's application subject to [certain conditions [designated] (a)-(g)].

(2) Authorises the CEO to approve the vehicle access in respect of each year's event to the prohibitive area of Cable Beach for site mobilisation and deconstruction of the event.

(3) Authorises the CEO to approve [a] Trading Licence in respect of each year's event for Cable Beach Polo to sell:

on Cable Beach between the hours of 12:00-18:00 on the days of the event.'

8 Division 1 of Pt 9 of the Local Government Act 1995 (WA) (LG Act), so far as is relevant, provides as follows:

(1) This Division applies when a local government makes a decision under this Act as to whether it will ­

(a) grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or

(b) renew, vary, or cancel an authorisation that a person has under any of those provisions.

(3) This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.

In this Division, unless the contrary intention appears ­

(a) a decision to which this Division applies because of subsection (1) or (3) of section 9.1, means a person referred to in that subsection; ...

authorisation means a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition;

decision means a decision ... that, in accordance with section 9.1, causes this Division to apply.

...

9.4 Advice of objection and review rights

Whenever a decision is made that the affected person could consider to be unfavourable, the person making it is to ensure that, as soon as practicable after the decision is made, the affected person is given written reasons for the decision and informed of the person's rights under this Division to object against, and apply for a review of, the decision.

(1) An affected person may object to a decision if the person has not applied under this Division for a review of the decision.

(1) An affected person may apply to the State Administrative Tribunal for a review of a decision if the person ­

(a) has not lodged an objection to the decision; or

(b) has lodged an objection but, at the expiration of 35 days after it was lodged, has not been given notice in writing of how it has been decided to dispose of the objection.

(2) If the person lodged an objection and has been given notice in writing of how it has been decided to dispose of the objection, the person may apply to the State Administrative Tribunal for a review of the decision on the objection.

(3) The application is to be made within 42 days after the right to make it arose[.]

9 Attention was also drawn to reg 32A of the Local Government (Functions and General) Regulations 1996 (WA) (Regulations) which provides as follows:

(1) The following are excluded from being authorisations for the purposes of the definition of authorisation in section 9.2 of the Act -

(a) an authority to carry out private works on local government property;

(b) an authority allowing the use of local government land or premises, or the use of local government goods or equipment.

(2) Despite subregulation (1), an authority set out in paragraph (a) or (b) of that subregulation is to be regarded as an authorisation under section 9.2 of the Act if -

(a) a local law, or regulation that is to operate as if it were a local law, states that a decision in relation to that authority is one to which Division 9 [sic, Division 1 of Part 9] of the Act applies and that a person specified in it is an affected person for the purposes of that Division; or

(i) by virtue of that authority, a reasonable expectation of the enjoyment (or the continued enjoyment) of a right or interest conferred by that authority; or

(ii) by virtue of the usual circumstances surrounding the grant of an authority of that type, a reasonable expectation of successfully applying for the right or interest conferred by that authority.

When the local government makes a decision as to whether it will -

(a) grant a person a permit or consent under this local law; or

(b) renew, vary, or cancel a permit or consent that a person has under this local law,

the provisions of Division 1 of Part 9 of the Act and regulation 33 of the Regulations [form of an objection] applies to that decision.

10 The particular significance, if any, of these last two mentioned statutory provisions is briefly considered below.

11 As can be seen from the agreed facts, a meeting of the Shire's Council took place on 20 June 2013, at which there was no consideration of what had become, it was argued, 'competing' applications - at least for an event in 2014 - if a certain status were to be afforded to the applicant's document received on 18 June 2013 (or, perhaps, even the earlier notice thereof).

12 However, the critical fact here is that as at 20 June 2013, although a 'competing' application had been 'received' some two days before the meeting (to the admitted corporate knowledge of the Shire), it was not put before or raised with the Shire's deliberative body (that is, the Council) on the decision-making day of 20 June 2013.

13 The formal record indicates no more than that councillors were advised in their papers, as was then known at the point that they were prepared by the officers, that an application to the Shire by Polo Enterprises would be made at some later stage. In fact, Polo Enterprises had had several weeks' written notice of the Council meeting and of the fact of Cable Beach Polo's competing application.

14 During the hearing in this Tribunal, there were mechanisms uncovered for this 'late' matter to have been potentially placed on the agenda, or otherwise placed before councillors: see, for example, Standing Orders clause 2.5 ('Late Reports') and clause 3.12 ('Urgent Business Approved by the Person Presiding or by Decision'). In addition, one of the options put to Council by the officers was deferral and then comparative assessment of competing applications (as had occurred previously).

15 But, as I have said, the fact is that the 'late' application was not brought to the deliberative body's attention for assessment (or alternatively, say, for deferral of the whole agenda item).

16 Accordingly, when the Shire met on 20 June 2013, its decision was confined to the consideration of a grant of approvals for the successive years sought by and in relation to only the first respondent.

17 Since then there has been a subsequent meeting of the Shire in September 2013 which has led to a refusal of the Polo Enterprises' 18 June 2013 application to conduct a 2014 polo beach event.

18 Polo Enterprises Australia Pty Ltd and Shire of Broome & Anor [2013] WASAT 98 (Polo Enterprises and Shire of Broome) dealt with the same parties and similar issues. But there, importantly, there were competing applications assessed in the one transaction, which gave Polo Enterprises in that case, who is the applicant in this proceeding, certain rights of review.

19 Here, there were no truly competing transactions considered at the critical decision-making point of 20 June 2013.

20 It is true that in Polo Enterprises and Shire of Broome the Tribunal cautioned, at [20], that the Tribunal should not be taken as:

... suggesting that the form or timing of [the] decision necessarily dictates the rights of review. If an administrative 'transaction' can be characterised as including a decision relating to a refusal [then] the review of that decision consequently opens up all directly material issues relating to that refusal, including in effect the fate of the rights held by the successful applicant.

21 However, the Tribunal's review jurisdiction is still limited to decisions actually, or perhaps in some cases constructively, made. And the Tribunal cannot retrospectively exercise powers to achieve the same effect as, say, admitting a late item of business. Nor can the Tribunal either directly or indirectly review the failure (if that is what it was) of the Council to place an item on the agenda or otherwise deal with or, perhaps, defer that item. Nor do I think that the Tribunal can consider imputed or constructive or corporate knowledge of an application for a decision to be made as the same as the actual making of a relevant decision.

22 Thus, as counsel for the second respondent, Mr van Brakel, submitted, consistently with this position, s 29(9) of the State Administrative Tribunal Act 2004 (WA) Administrative Tribunal Act 2004 (WA) confines any review, and expressly prevents review of 'a matter that is different in essence from the matter before the decision-maker' (emphasis added).

23 In summary, the applicant argues that a combination of events, including:

• the lodging of a 'valid' application with the Shire, in proper form made under or as is contemplated under the Local Law;
• the existence in fact of competing applications (by way of, in effect, imputed or constructive knowledge, or 'conduct amount[ing] to a decision', as Mr King, for the applicant, put it) at the time that the June 2013 decision was made; and

• a competing - 'mutually exclusive' - application or process (that is, an application made by or a process applying to Cable Beach Polo) in existence at the relevant time that may or did lead to the grant to that competing applicant of a right inconsistent to that sought by the applicant (Polo Enterprises) in these proceedings,

all operating in combination with either s 9.1(1) or s 9.1(3) of the LG Act, read literally with reg 32A(2)(a) of the Regulations and cl 16.1 of the Local Law (as may be necessary), gave the Tribunal jurisdiction to review the applicant's failed application to stage a beach polo event.

24 I do not accept the broad characterisation of the law and facts advanced by the applicant which, with respect, seems to me to be both artificial and strained. Although the 'competing' applications can be viewed from afar as 'mutually exclusive', they were not actually considered side-by-side (or otherwise in the same transaction) by the original decision-maker, and then, in any case, for reasons which seem both administratively reasonable and plausible.

25 In my view, as I have already indicated above, the statutory review rights do not operate in the fashion contended for by the applicant; rather, they seem to me to generally contemplate one transaction, either competing applications as occurred in Polo Enterprises and Shire of Broome, or a decision giving review rights to the party who is actually refused an application. In short, here there was, on 20 June 2013, no relevant administrative decision to review.

26 It would require, in my view, much clearer words from the legislature to create in effect open-ended rights of review such as the circumstances considered here would suggest.

27 In addition, both matters of general policy (I have in mind, for example, the need for decision-making deadlines and cut-off dates and, generally speaking, a review of transactions already assessed below on their comparative merits) and the need for some degree of practical or commercial certainty also militate against acceptance of the applicant's arguments.

28 Although I acknowledge the ingenuity of these arguments made by Mr King, they are insufficient, with respect, to persuade me that the Tribunal has the jurisdiction that is sought to be invoked by the applicant.

29 For the reasons set out above, the orders of the Tribunal will be:

1. Subject to these orders, the Tribunal determines that it has no jurisdiction in the review.
2. Consequently, the application for a review is dismissed and the decision sought to be reviewed is otherwise affirmed.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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