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[2013] WASAT 98
General information, not legal advice.
State Administrative Tribunal (WA)
2013-06-25
Original judgment source is linked above.
The application for review was therefore dismissed.
Second Respondent : Mr M Howard SC and Mr H Jackson
Bird v Shire of Broome [2006] WASAT 338; (2006) 47 SR (WA) 125
Edwards and Chief Executive Officer of the Department for Planning and Infrastructure [2007] WASAT 292
Edwards and Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014
1 This review concerns the decision (or decisions) taken by the Shire of Broome (Shire) on 29 November 2012 to refuse the applicant for review, Polo Enterprises Australia Pty Ltd (Polo Enterprises), a permit for a beach polo event, and the consequent or related approval given to the second respondent, Cable Beach Polo Pty Ltd (Cable Beach Polo), to run the event. The beach polo event was scheduled to take place on Cable Beach in May 2013.
2 On 4 February 2013 the Tribunal determined that it had jurisdiction in the review brought by Polo Enterprises. That preliminary decision on jurisdiction was as follows:
The Tribunal has jurisdiction to review the decision of the respondent Shire to refuse the applicant [Polo Enterprises] an approval for the relevant event and the Tribunal also has jurisdiction to review the consequential or related approval for the relevant event given instead to the second respondent [Cable Beach Polo].
3 The Tribunal took a wider view of the jurisdiction of the Tribunal, in favour of the applicant, and overruled the objections of the first and second respondents to the effect that the Tribunal could not review the November 2012 decision, or decisions, of the Shire insofar as they affected the second respondent.
4 Thereafter, the Tribunal proceeded to hear the matter in late March 2013 and delivered its reasons for decision, without delay, on 4 April 2013. The applicant was unsuccessful in the substantive review.
5 On both occasions the Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Reasons for decision - why the Tribunal has jurisdiction in the matter
6 For the reasons that follow, the Tribunal has jurisdiction to entertain the applicant's application.
7 I commence by noting that Mr Wittkuhn, counsel for the Shire, prepared a very useful chronology of events for the purposes of the preliminary hearing. This chronology is common ground and sets out the essential factual background to the matter. It read as follows:
Event application by Gary Grbavac of Gazmedia Temp Pty Ltd [later to become Cable Beach Polo]: Cable Beach Polo 2013.
Event application by [Polo Enterprises]: Cable Beach Polo 2013.
Robyn Fenech of Edge Tourism and Marketing [consultant] provides report to Shire, assessing competing applications.
Letter from Shire to Polo Enterprises enclosing Edge Tourism and Marketing report and inviting comment.
Letter from Shire to Gary Grbavac [Cable Beach Polo] enclosing Edge Tourism and Marketing report and inviting comment.
Each competing applicant submits further information to the Shire pursuant to the Shire's invitation.
Email Gary Grbavac [Cable Beach Polo] to Chris Lane of the Shire advising that Gazmedia Temp Pty Ltd's [original applicant's] name had been changed to 'Cable Beach Polo Pty Ltd'; attaching an ASIC certificate, and stating that 'Our application to host the 2013 Polo Event ought now be read as being submitted by Cable Beach Polo Pty Ltd'.
Special Council meeting, at which item '19.2.1 EVENT PROPOSAL - BROOME BEACH POLO 2013 - COMPETING APPLICATIONS' was considered. Councillors received confidential report as the item was designated 'Commercial in Confidence'. Council resolved:
Delegates authority to the [Shire's] CEO to approve the staging of the Cable Beach Polo 2013 by Cable Beach Polo PTY LTD ...
Advises Polo Enterprises Australia PTY LTD is [sic] application to stage the Broome Beach Polo 2013 event from 18 May 2013 to 20 May 2013 is not approved.'
Letter Shire to Polo Enterprises advising of terms of 11.10.12 resolution.
Letter Shire to Cable Beach Polo advising of terms of 11.10.12 resolution.
Letter Gilbert & Tobin, Lawyers, on behalf of Polo Enterprises Australia, to Shire. Makes certain assertions about the decisionmaking exercise by the Shire on 11.10.12 and asks that Council, within the next 7 days, reconsiders its decision.
Email Gary Grbavac [Cable Beach Polo] to Chris Lane (Shire).
Gilbert & Tobin lodges Application for Review in the State Administrative Tribunal.
Letter Shire to Gilbert [&] Tobin advising that further item to be put to Council on 29.11.12.
Letter Shire to Gilbert [&] Tobin inquiring whether [Polo Enterprises'] letter of 18.10.12 to be taken as a formal statutory objection.
Letter Gilbert & Tobin on behalf of Polo Enterprises, to Shire, advising that their letter of 18.10.12 was not intended to be a statutory objection.
Council meeting, item '9.2.5: EVENT PROPOSAL - CABLE BEACH POLO 2013' was deliberated upon by Council. Council was in receipt of an officer's report. Council resolved:
Reconfirms the resolution of Council at the Special Council Meeting of 11 October 2013 for the staging of the Cable Beach Polo 2013;
Instructs the CEO to approve the stage of the Cable Beach Polo 2013 by Cable Beach Polo Pty Ltd ...'[.]
Event permit issued by Shire to [Cable Beach Polo] under cover of letter.
8 I observe that, critically, at all material times the Shire regulated the matter as a choice between competing applicants for the running of a May 2013 beach polo event at Cable Beach. On 11 October 2012 the Shire in effect approved the second respondent as the sole facilitator of the event and refused the applicant the same privilege.
9 On reconsideration by the Shire of that decision on 29 November 2012, the October 'decision' was confirmed and the approval was, to the extent necessary, perfected as evidenced by an event permit issued under the hand of the Chief Executive Officer (CEO) of the Shire on 7 December 2012.
10 The event permit appears to give all necessary authorisations and approvals for the beach polo event as are envisaged by or under the Shire's Local Government Property and Public Places Local Law 2003 (WA) (Local Law).
11 Accordingly, as the respondent properly conceded, the applicant has certain rights of review under Pt 9, Div 1 of the Local Government Act 1995 (WA) (LG Act), which, 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.
9.2. Terms used
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; and
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.
9.5 Objection may be lodged
(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 ...
(1) If an objection has been lodged against a decision or an application has been made under this Division for a review of the decision, the effect of the decision is suspended until the person or tribunal authorised to deal with the objection or application has decided how to dispose of it unless ... [thereafter various mechanisms are set out by which the suspension may be revoked or set aside].
12 The application for review was conceded to be timely, and no objection process within the meaning of s 9.5 of the LG Act was engaged in by the applicant. Suspension of the decision, if any, was apparently revoked or otherwise dealt with by the Shire and no point arises concerning this aspect of the review process.
13 The Shire, as mentioned, properly concedes jurisdiction and standing to review the refusal, but denies jurisdiction and standing to, in effect, collaterally attack an approval given to another party - here, the second respondent - such that their rights could be set aside as a consequence of the review of the refusal.
14 The applicant on the other hand relies upon the decision of a former President of this Tribunal (Barker J) in Bird v Shire of Broome [2006] WASAT 338; (2006) 47 SR (WA) 125 (Bird). At [123], his Honour said:
I consider the decisions of the Shire of 27 June 2006 to approve the applications of Red Sun Camels Pty Ltd [the second respondent and one of the successful applicants for the relevant 'licences' issued by the Shire] and to refuse the applications for approval of the applicants, Mr and Mrs Bird and Mr Casley [two of the unsuccessful applicants for the 'licences' issued by the Shire], to be reviewable decisions at the instance of these unsuccessful applicants, who I consider to be affected persons for the purposes of Pt 9, Div 1 of the Local Government Act 1995 (WA).
15 The Shire and the second respondent both submit that his Honour's conclusion is not accompanied by any substantive reasoning (a point which may be conceded), and is said in a context where the issue before the Tribunal was very different to that to be considered here. In Bird, the issue was whether the policy and administrative framework of the Shire in respect of the issue of certain 'licences' was legally flawed.
16 The respondent Shire says that, in any event, Bird must be read now in the light of the later Edwards cases, which were also decided by his Honour: Edwards and Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328, and Edwards and Chief Executive Officer of the Department for Planning and Infrastructure [2007] WASAT 292 (Edwards).
17 Edwards dealt at length with whether the Tribunal could, on merits review, express opinions on matters of related validity ordinarily described as engaging in collateral attack. The Edwards litigation essentially dealt with the consequences of a regulatory system that permitted an incorporated association acting under a town planning scheme to allocate jetty moorings in a canal strata development. Reviews of related decisions by the planning authorities were attempted in Edwards.
18 The Tribunal held that collateral attack in this form, that is, short of actually quashing or revoking third parties' approvals, was within the jurisdiction of the Tribunal.
19 Whatever the position is in relation to the scope of collateral attack in Tribunal proceedings, in my view, that is not what is relevant here. The issue before the Tribunal in this case is the proper characterisation of the decision, or decisions, under review. The context here is between two competing applicants who, in the one transaction, secured, in substance, simultaneous decisions of approval given to the second respondent and refusal given to the applicant.
20 I do not wish to be taken as suggesting that the form or timing of such a decision necessarily dictates the rights of review. If an administrative 'transaction' can be characterised as including a decision relating to a refusal, which is the case here, then in my view 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 Of course, such jurisdiction may bring unwanted or unforseen consequences. Not the least of these is that at the point of decision on the review, the successful applicant might not be confirmed as the successful party because of such matters as the effluxion of time, the propinquity of the event, the expectations of the community, the letting of contracts and the financial and other consequences of a change of operator at that point in time. However, such matters cannot be taken, I think, to require a reading down of the Tribunal's jurisdiction; rather, they go to the scope of merits review.
22 I am further strengthened in the conclusion that I have reached - that the Tribunal has before it a reviewable decision - having regard to the conceptual nature of administrative decisions. Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 said, at 1064:
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.
23 It is true that his Lordship was talking there in judicial review terms, but the notion of administrative discretion and choice is closely related to the conceptual nature of an administrative decision, whether such decision is to be reviewed as to its merits or otherwise. In the encyclopaedic work The Laws of Australia at [2.4.13] the learned authors write (citations omitted):
The making of a decision is a mental process which may be communicated orally or in writing or be apparent from action taken or not taken. The conclusiveness of the decision is to be contrasted with the thought process that precedes it. The decision usually amounts to something of significance emanating from an authoritative source which materially affects another person or persons. A commercial effect is sufficient to satisfy the requirements of manifestation of the decision. There must be some real practical effect, some action or refraining or taking action.
24 These statements of general principle seem to me to be consistent with the characterisation of the decision under review that I have reached in this case.
25 I should add in conclusion on this point that, in the time available, which has been short, my own research has failed to unearth any other decision - other than Bird - in this or an equivalent jurisdiction on this same point and, therefore, recourse to the statements of principle (such as I have just referenced) assist, I think, in the resolution of what seems to be a surprisingly novel jurisdictional issue.
26 The Tribunal concludes that it has jurisdiction to entertain the application for review. In other words, the Tribunal has before it a decision of the respondent 'as to whether it will ... grant [the applicant] an authorisation under ... any local law' and, consequently, this requires the Tribunal to engage in an exercise of 'administrative discretion involv[ing] a right to choose between more than one possible course of action' which 'materially affects another person or persons'. This is what the Shire actually did here.
Reasons for decision - why the application for review must be dismissed
27 For the reasons that follow, the application for review will be dismissed.
28 I should commence the substantive review by saying something briefly about the difference between this review and the ordinary review that the Tribunal becomes involved in. First, mediation was not available because of the very tight timeframes caused by the special circumstances of the review; that is, the May date for the event. Here, in any case, mediation may have had little chance of success because of the significant breakdown of the commercial, and perhaps personal, relationships between the parties, reflected also in the related commercial litigation in the Supreme Court of New South Wales.
29 These looming deadlines also put the parties' counsel, their clients and witnesses and the Tribunal and its staff under pressure to hear and determine the matter in a less than desirable timeframe. Here everybody's cooperation has meant that this goal of a relatively quick hearing and the expedited delivery of reasons could be achieved. The Tribunal expresses its gratitude to everybody who assisted with that process.
30 Some of the background facts may be found above in the reasons of the Tribunal delivered on the jurisdictional ruling. In addition, the Tribunal has adopted those matters of common ground, which are to be found in Mr Wittkuhn's statement of issues, facts and contentions. Paragraphs 1 to 21 thereof, so far as are relevant, provide as follows:
'A person shall not on any local government property or public place within the Broome townsite area, without first having obtained an approval from the local government to do so:
(b) erect a structure for public amusement or for any performance for personal gain or otherwise;
(f) erect any tent, camp, hut, building or other structure, other than a beach umbrella or other portable item used for protection from the elements between sunrise and sunset on any day;
(h) charge a person for entry to local government property;
(i) operate any broadcasting or public address system or apparatus, other than those used by a life saving club in the performance of its functions;
(k) walk, lead, rise, herd or drive any large animal;
(l) play or use any musical instrument or any other similar device;
'The local government may, in respect of an application for an approval:
(b) approve the application on such terms and conditions, if any, as it considers fit.'
(d) Approximately 1,500 participants, comprising approximately 1,000 general public and 500 VIP guests.
Essential criteria to be demonstrated by Event Organisers
Mitigate risks to the safety of event participants and spectators
The natural and built environment of Broome is protected and enhanced
Ensure that existing commercial arrangements with the Shire of Broome are acknowledged and protected
Desirable criteria to be demonstrated by Event Organisers
Events are accessible and affordable and contribute to the wellbeing and safety of the community
31 In determining the relevant criteria in respect of deciding, in effect, which applicant is the 'better candidate' for an approval, my attention was drawn by all parties, but in varying degrees, to three main instruments. These were:
32 With respect to the authors of these documents and to those who suggested otherwise, in my view, these instruments provide only a largely formal framework for decision-making and do not directly provide a sufficiently certain criteria for the determination of the matters in this review.
33 Thus it will be necessary to formulate an alternative, context-specific criteria for the purposes of the review (see below).
34 It follows that the reliance by the Shire's consultants (Edge Tourism and Marketing) in their two reports on these framework instruments means that these reports are not as useful in comparison, say, to the substantial historical and organisational material that I have received from the parties.
35 Finally, I confirm what I observed in the hearing; that it will be necessary to 'look behind' the corporate entities or forms of the competing applicants and look instead at their principals. There are, in my view, three key individuals involved here: Mr Gazecki (from Polo Enterprises) and Ms Paspaley and Mr Grbavac (both from Cable Beach Polo). Their corporate manifestations are largely irrelevant to this review.
36 The essential issues to be determined are therefore as follows:
37 All things considered, the relevant criteria seems to me to relate to which of the competing parties - that is, Polo Enterprises and Cable Beach Polo makes best use of the public resource that they wish to use and provides the best return to the ratepayers and the people of Broome, such as to maximise community benefit, including economic benefits to the Shire.
38 Accordingly, in my view, such matters as the reliability; experience; capability; access to resources (financial and otherwise); and the track record of the respective parties, will inform any decision-maker on the choice to be made. These matters are to be assessed having regard to the relevant timeframe in the review. Such criteria as I have outlined will extend to such practical matters as Mr Wittkuhn, for example, alluded to, such as sponsorship; coordination of polo patrons; the arrangements for accommodation partners and the coordination of suppliers.
39 Necessarily, such a judgment on the wider criteria that is beyond the formal criteria that I just mentioned will be to some extent impressionistic. Nevertheless, each party must (and has) put forward, in my view, sufficient material to demonstrate fitness or suitability in each of the categories that I have suggested as may be relevant.
40 In my view, on balance, the second respondent (Cable Beach Polo) has a demonstrated edge in most, if not all, of the categories that I have identified. Its proposal has a wider range of activities over two days than that proposed by the applicant, even if Polo Enterprises is now suggesting that some of the second respondent's activities could be incorporated into its proposal.
41 I note that the Shire councillors unanimously saw a similar benefit in the Cable Beach Polo proposal based, I believe, on the same sorts of considerations as the Tribunal relied upon. I make it clear that I have independently come to the same conclusion; however, that expression of local opinion from those on the ground could not be said, in my view, to be wholly irrelevant to the decision to be made in this Tribunal, whatever the general position of such matters is in relation to other de novo reviews in the Tribunal.
42 The second respondent's current and former application is, for example, summarised at various points in paragraphs 40 to 54 of the second respondent's statement of issues, facts and contentions. These assertions went largely uncontested and may be accepted as proposals in respect of which Cable Beach Polo has committed itself and has been working towards implementing. They include, for example, the Jaipur (Indian) team, the Kimberley Station Challenge and significant other events scheduled over the two days.
43 In any event, the second respondent clearly has the resources, the event experience, and the proven track record to deliver the events that it has proposed. There is more than sufficient material in the lengthy written statements of Ms Paspaley and Mr Grbavac to indicate that they are also well advanced in the planning of and arrangements for the event.
44 Indeed, paradoxically to some extent, this directly relevant polo experience of the second respondent comes from their earlier personal and commercial association with the applicant in two previous events organised for the Shire.
45 Clearly also, the applicant has a demonstrated track record of delivering such events as beach polo in Broome and in other parts of Australia. Mr Gazecki is to some degree at a disadvantage, as all subcontracting arranged by him is necessarily provisional, given that he was the unsuccessful applicant with the Shire. Allowance must be made for this, but I do not doubt for one moment that, if pressed, the applicant could largely deliver even an expanded version of the event that he now proposes. None of the vigorous cross-examination to which he was subjected by Mr Howard, senior counsel for Cable Beach Polo, shifts me in that opinion.
46 I do note, however, the doubts expressed by Mr Ross McCulloch, an acknowledged tourism expert (engaged by the Shire), but those doubts must be seen, I think, alongside the commitments given by the applicant's agent and his readiness to deliver, and his demonstrated ability to deliver, based at least on past successes.
47 The Tribunal did toy with the possibility, if the applicant had been successful, of imposing as a condition some monetary performance bond. This was to be an added incentive to ensure that the applicant carried through on its commitments, given that it would have been a late starter, with only provisional arrangements in place. It is now unnecessary, of course, to explore this possibility further. The same bond considerations do not apply, I think, to the second respondent who has had the benefit of the earlier unanimous approval of the Shire's councillors and who is well underway in its preparation for the event.
48 For the reasons given above, the correct and preferable decision is in effect to affirm the grant of all necessary approvals to the second respondent. The application will be otherwise dismissed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2007) 155 LGERA 1