Purton v Jackson [2012] TASFC 2

Supreme Court of Tasmania (Full Court)|2012-07-19|Before: Crawford CJ, Blow JJ, Evans J

CITATION: Purton v Jackson [2012] TASFC 2

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Power of tribunal to reconsider its decision - Original decision involving jurisdictional error.

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, considered.

Judgment Number: [2012] TASFC 2

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,

1 Subject to reservations I have concerning the possible application of the Acts Interpretation Act 1931, s20(a), to the circumstances of this case, I agree that for the reasons given by Blow J, the appeal should be dismissed.

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,

2 I agree with Blow J's reasons for judgment and would also dismiss the appeal.

3 I mention that support can be found in the following authorities for his Honour's view that, in consequence of the Acts Interpretation Act 1931 (Tas), s20(a), subject to any indication in legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 pars[34], [35], [100] and [113], Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 211, Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal [1988] FCA 433; (1988) 84 ALR 669 at 678 - 679 and Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430. These decisions refer to the Acts Interpretation Act 1901 (Cth), s33(1), a provision that is in similar terms to the Acts Interpretation Act (Tas), s20(a). See also Edenmead Pty Ltd v Commonwealth of Australia (1984 - 85) [1984] FCA 368; 59 ALR 359, which deals with the impact of the Acts Interpretation Act (Cth), s33(3), on the power to make, grant or issue any instrument, and Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332.

MARK PURTON, JUDITH PURTON v MAUREEN FAYE JACKSON,

4 This appeal concerns some land at Moorleah, south of Wynyard, that is owned by a couple named Jackson. They are two of the respondents to this appeal. For some years they have wanted to build a house on their land. The appellants, Mr and Mrs Purton, own some neighbouring land. They are opposed to the Jacksons' proposal to build a house. The land is within the municipal area of the Waratah-Wynyard Council, which is also a respondent to the appeal. The appellants and the respondents have become entangled in complex, expensive, protracted and messy legal proceedings that have gone on for years. This is a situation that could and should have been avoided. This appeal will not bring the litigation to an end. Whatever the result, there will have to be at least one further hearing of some sort.

5 The unfortunate history of this dispute, so far as is relevant, can be summarised as follows:

In September 2008 the Jacksons applied to the council for a planning permit for the construction of a residence pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s57.
The Purtons made a representation to the council under s57(5) objecting to the granting of a permit.
On 17 November 2008 the council decided to grant the permit.
The Purtons appealed to the Resource Management and Planning Appeal Tribunal ("the tribunal"). In the course of the appeal proceedings the council's then solicitor raised questions as to whether the relevant planning scheme empowered the council to grant the permit at all and whether, as a result of the council having no jurisdiction to grant a permit, the tribunal had no jurisdiction to hear an appeal. On 26 February 2009 the tribunal, constituted by its chairman, Mr Cooper, decided that that was the situation. Evidently none of the parties argued that the relevant legislation, properly construed, conferred a right of appeal from "invalid decisions", as legislation sometimes does: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307. The learned chairman delivered a decision by which he concluded that the tribunal was "without jurisdiction to further hear and determine the matter".
The parties had the right to appeal from that decision under the Resource Management and Planning Tribunal Act 1993 ("the RMPAT Act"), s25(1), or to apply for it to be reviewed under the Judicial Review Act 2000. No such proceedings were instituted at that stage. Evidently the Purtons were content with the tribunal having taken the view that the permit was invalid, and the Jacksons were content that there was no risk of the tribunal interfering with their permit.
In May 2009, acting in reliance on the planning permit, the Jacksons applied to the council's permit authority under the Building Act 2000 for a building permit for the proposed dwelling. The permit authority refused that application.
The Jacksons appealed to the Building Appeal Board. The board took into account the tribunal's finding that the permit was invalid, and rejected the appeal on the basis that the requisite planning permit had not been granted.
The Jacksons applied under the Judicial Review Act for the review of the board's decision. The council and the Purtons were joined as respondents to that application. Porter J set aside the board's decision, declared that the permit was valid in that it was within the council's powers under the LUPA Act, and remitted the building permit appeal to the board: Jackson v Building Appeal Board [2010] TASSC 29. In his reasons, his Honour held that there were a number of provisions in the planning scheme, not referred to in the tribunal's decision of 26 February 2009, that empowered the council to grant the permit.
Two days after Porter J gave judgment, the Purtons wrote to the tribunal requesting that their appeal proceed. The Jacksons made written submissions to the effect that the tribunal was functus officio and had no power to deal with the appeal. On 23 August 2010 the tribunal delivered a second decision, determining that it had jurisdiction to hear and determine the appeal, thereby reversing its first decision.
The Jacksons appealed to the Court against the tribunal's second decision. The tribunal has not taken any further steps in relation to the appeal to it, pending the outcome of the court proceedings. Wood J heard the appeal, held that the tribunal had no power to proceed to hear and determine the Purtons' appeal against the grant of the permit, and made an order setting aside the tribunal's second decision: Jackson v Purton [2011] TASSC 28.

6 This is an appeal from the decision of Wood J setting aside the tribunal's second decision. The Purtons, as appellants, contend that the tribunal has, and continues to have, the power and the duty to hear and determine their appeal against the granting of the permit. The Jacksons and the council contend that the learned primary judge was correct when she decided that the tribunal no longer had any such power.

7 If this appeal succeeds, then the tribunal will have to conduct a hearing and determine on the merits the appeal to it against the council's granting of the permit. The day after this appeal was instituted, the Purtons instituted an appeal against the tribunal's first decision, more than two years out of time, and applied for an extension of the relevant time limit. If this appeal fails, the next step will be a hearing before a single judge of the application for an extension of time.

8 Essentially, the contentions of the appellants in the appeal to this Court are as follows:

For the reasons stated by Porter J in Jackson v Building Appeal Board, the council had the power to grant the permit. Therefore the permit was a valid permit and the appeal to the tribunal was a valid appeal. The decision of Porter J is binding on all parties, since they were all parties to the application that was before him.
When it made its first decision, the tribunal was in error in holding that it had no jurisdiction. An erroneous decision that the decision-maker has no jurisdiction involves "jurisdictional error": Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177 - 179. Because the tribunal's first decision was affected by jurisdictional error, that first decision was and is a nullity.
The tribunal has not yet heard and determined the appeal against the granting of the permit.
The RMPAT Act, s23(2), provides that the tribunal "must make a decision in writing" either affirming, varying or setting aside the decision appealed against. The tribunal has not done any of those things.
In the circumstances, the tribunal had, and continues to have, a duty to hear and determine the appeal to it, and to make a decision as required by s23(2).

9 Counsel for the appellants relied on the High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. That case concerned some proceedings before the Immigration Review Tribunal ("the IRT") in which that tribunal overlooked a letter from an applicant's agent stating that the applicant was unable to attend the scheduled hearing and was seeking a later hearing date; proceeded with the hearing in the absence of the applicant and affirmed the decision under review; published its decision and reasons to the applicant and the secretary of the relevant department; later had the agent's letter brought to its attention; held a second hearing; and made a second decision, in favour of the applicant. The High Court held that the IRT had the power to make the second decision. Four of the six judges who constituted the majority in that case - Gaudron, McHugh, Gummow and Hayne JJ - took the view that the first decision was of no legal effect because it was made in jurisdictional error.

10 However, in the proceedings that we are concerned with, the learned primary judge treated Bhardwaj as authority for the proposition that the legal consequences of the tribunal's first decision depended upon the governing legislation. Her Honour considered the relevant provisions of the RMPAT Act in detail. There is nothing in that Act that expressly prohibited the tribunal from reconsidering and reversing its first decision. However her Honour concluded that, on a proper construction of that Act, the tribunal's first decision was final, and unable to be reconsidered. In my view, for the reasons stated below, she was correct.

11 In my view, as Gray and Downes JJ concluded in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at par[42], Bhardwaj does not stand as authority for a universal proposition that jurisdictional error will lead to a decision having no consequences whatsoever. It is authority for the proposition that, when there is jurisdictional error, the legal and factual consequences of the decision, if any, will depend on the relevant legislation.

"To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision."

13 At par[12], his Honour quoted with approval a passage from the judgment of Finkelstein J in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413, which included the following:

"In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside."

His Honour went on to hold that, on the facts in Bhardwaj, it was not inconsistent with the scheme of the Migration Act 1958 (Cth) for the IRT, not having conducted a review as required by that Act, to give the respondent in that case the opportunity that the Act required to appear, give evidence, and present arguments.

"There being no provision of the Act which, in terms, purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error, as did the September decision, it is necessary to consider whether, nevertheless, the Act should be construed as impliedly having that effect."

Their Honours went on to hold that the relevant statute did not give legal effect to the "September decision", ie the IRT's first decision. McHugh J agreed with their reasons at par[63].

"Nothing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequence should be attributed to the September decision."

16 The sixth member of the majority in that case was Callinan J. His Honour did not discuss the impact of legislation on a decision affected by jurisdictional error, but rejected the appellant's argument on the basis that the IRT had not exercised its jurisdiction at all at the time of the "September decision", and that it was therefore open for it to do so at a later time.

17 Although Kirby J dissented, he did so on the basis that the question whether the IRT had the power to make its second decision depended on the legislation in question. At par[112], his Honour said:

"General judicial observations that decision-makers in police watch committees (Ridge v Baldwin [1963] UKHL 2; [1964] AC 40), stock exchange boards (Posluns v Toronto Stock Exchange [1968] SCR 330) or other administrative proceedings (Chandler v Alberta Association of Architects [1989] 2 SCR 848) may change their mind, withdraw an earlier decision and substitute a new one, must necessarily give way, in a particular case, to the express language and implied operation of the particular legislation under which the decision in question was made. Attention must therefore be addressed to the language of the Act."

18 A more lengthy analysis of the judgments in Bhardwaj was undertaken by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (above) at pars[29] - [40]. Their Honours expressed the following conclusions at par[42]:

"In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute."

Kenny J agreed at par[64]. The relevant comments in that case were obiter, since it was held that there had not been any jurisdictional error in that case. However their Honours' comments were authoritative and were supported by sound reasoning.

19 Counsel for the appellant argued that Bhardwaj is authority for the proposition that jurisdictional error on the part of a decision-maker will lead to the decision being regarded, in law, as no decision at all, and therefore having no consequences whatsoever. He relied on a passage in the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at par[76], where their Honours said:

"This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'."

20 Their Honours cited Bhardwaj as authority for that proposition in footnote 107, referring to the judgments of Gaudron and Gummow JJ at par[51], McHugh J at par[63], and Hayne J at par[152]. The judges whose judgments were referred to were four of the five judges who made the comment now relied on by counsel for the appellant. In my view that comment is not authority for the proposition that a decision which involves jurisdictional error must always be regarded as a nullity, regardless of the provisions of the relevant legislation. In S157 the High Court was concerned with the status, for the purpose of proceedings for judicial review and relief under s75(v) of the Constitution, of a decision that involved jurisdictional error, not with the status of such a decision for the purposes of a legislative regime. Further it is clear, from the passages I have already quoted from the judgments in Bhardwaj relied on in footnote 107, that their authors regarded the legislation relating to such an administrative decision as critical for the purpose of determining its status and consequences. Those judgments were published only about 11 months before the decision in S157. If, during that period, the four judges who wrote those judgments had changed their minds about the significance of the legislation relevant to a decision involving jurisdictional error, they would no doubt have made that clear. I therefore reject the argument based on S157.

21 In accordance with Bhardwaj, it is necessary to consider the provisions of the relevant legislation. In my view, subject to any indication in the legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. In my view that is a consequence of the Acts Interpretation Act 1931, s20(a), which provides as follows:

"Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed -

(a) from time to time as occasion may require ...".

22 There is nothing in the RMPAT Act that expressly prohibits the tribunal from varying or reversing its decisions. However limited powers of correction and amendment are expressly conferred by s23(5) and (6). Section 23 reads as follows:

"(1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal.

(2) The Appeal Tribunal must make a decision in writing -

(a) affirming the decision appealed against; or

(c) setting aside the decision appealed against and -

(i) making a decision in substitution for the decision appealed against; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal.

(3) The Appeal Tribunal must notify each party to the appeal of its decision as soon as practicable after making its decision.

(4) A decision of the Appeal Tribunal comes into effect at the expiration of the period of 10 days after the day on which the decision is made or, if a later day is specified in the decision, that day.

(5) The Appeal Tribunal may correct a clerical mistake or an error arising from any accidental slip or omission or an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in its decision.

(6) The Appeal Tribunal may amend its decision on an appeal if it is satisfied that the amendment -

(a) does not change the effect of any condition required by the Appeal Tribunal; and

(b) will not cause an increase in detriment to any person.

(7) The Appeal Tribunal's decision in relation to an appeal must be given effect to by the person who is responsible for giving effect to the decision that gave rise to the appeal."

23 The respondents contend that it would be contrary to the scheme of the legislation for the tribunal to be held to have any powers to change its decision on an appeal other than those expressly conferred by s23(5) and (6).

24 The tribunal has jurisdiction to hear appeals from decisions made under quite a range of statutes, including the Living Marine Resources Management Act 1995, the Environmental Management and Pollution Control Act 1994, the Strata Titles Act 1998, and the Local Government (Building and Miscellaneous Provisions) Act 1993. By virtue of the RMPAT Act, s5(3), the tribunal is "part of the State's resource management and planning system". The objectives of that system are set out in Sch1 to the RMPAT Act. One of those objectives, by virtue of cl 1(b) of that schedule, is "to provide for the fair, orderly and sustainable use and development of air, land and water". The existence of a power on the part of the tribunal to vary or reverse its decisions relating to the use and development of land, possibly years after those decisions are made, would be inconsistent with the statutory objectives of fairness and orderliness. When decisions are made about land use and development, substantial expenditure is often involved. Such expenditure is not necessarily made by the owner or developer of the land to which a decision relates. No doubt there are appeals when objectors or owners of neighbouring land are successful, and they then invest money on the development or renovation of their properties, relying on the tribunal's decisions being final. For a number of reasons, it is highly desirable that the tribunal should dispose of appeals promptly and conclusively.

25 A number of provisions in the legislation reflect that. There is a time limit of 14 days for the institution of appeals to the tribunal against decisions refusing or granting permits: LUPA Act, s61(4) and (5). If no appeal is instituted, a permit takes effect 14 days after it is granted: LUPA Act, s53(1). Subject to any extension of time, a permit lapses if the use or development in respect of which it was granted is not substantially commenced within two years of it being granted, or within two years of the determination or abandonment of an appeal to the tribunal: LUPA Act, s53(5). Subject to any extension of time, the tribunal must hear and determine any appeal to it about the granting or refusal of a permit within 90 days after it is instituted: LUPA Act, s16(1)(f). The tribunal is given only limited powers to correct and amend its decisions: RMPAT Act, s23(5) and (6). The power to amend conferred by s23(6) is not wide enough to allow the tribunal to make a completely different decision from its original one.

26 When considering the relevant legislation for the purpose of determining the status of an administrative decision affected by jurisdictional error, it is appropriate to consider whether the legislation confers statutory rights of appeal and, if so, the scope and nature of those rights. The conferring of a right of appeal may tend to indicate that the decision-maker does not have any power of self-correction. Under the RMPAT Act, s25(1), a party to an appeal before the tribunal may appeal to the Court "from any decision of the Appeal Tribunal in the appeal", but only on a question of law. The appeal must be instituted within 28 days after the making of the decision: s25(2)(a). However the time for instituting the appeal may be extended by the Court, even after the 28 days have expired: s25(3) and (4).

27 There are a number of ways that appeal proceedings before the tribunal can come to an end. They can come to an end as a result of the tribunal making a decision as required by the RMPAT Act, s23(2), which is set out above, affirming, varying or setting aside the decision appealed against. They can also come to an end as the result of an appellant abandoning an appeal - a concept referred to in the LUPA Act, s53(3) and s53(5)(a)(ii). They can also come to an end as a result of the tribunal concluding that it does not have jurisdiction, as this case illustrates. Subject to any statutory provision to the contrary, a tribunal with a duty to act according to law always has the power to determine jurisdictional questions: Attorney-General v Estcourt [1995] TASSC 65; (1995) 4 Tas R 355 per Wright J, with whom Crawford J (as he then was) agreed, at 365 - 367. Once the tribunal was created, it was practically inevitable that there would very occasionally be cases when the tribunal disposed of appeals or purported appeals by deciding that it had no jurisdiction to determine them. This was one such case.

28 The learned primary judge reached a conclusion to the effect that, except when s23(5) or (6) applies, the tribunal has no power to correct a decision disposing of an appeal, even when it disposes of an appeal by deciding that it does not have jurisdiction. If that is correct then, from the moment the tribunal made its first decision in this matter, it ceased to have any further jurisdiction in relation to the appeal that it then disposed of. At common law, if a public authority failed to fulfil a public duty, or even if there was a "constructive failure" to perform a public duty, a writ of mandamus could issue to command the fulfilment of the duty, without any need for an order quashing any defective decision: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242 - 243 per Rich, Dixon and McTiernan JJ; Bhardwaj, per Hayne J at par[140]. Mandamus was still available in Tasmania as a common law remedy when the RMPAT Act was enacted in 1993. It ceased to become available when the Judicial Review Act, s43, commenced on 1 May 2001, but orders in the nature of mandamus are still available: Supreme Court Rules 2000, r627(2); Tasman Quest Pty Ltd v Evans [2003] TASSC 110; (2003) 13 Tas R 16 at pars[8], [9]. If the learned primary judge was correct, then neither mandamus nor relief in the nature of mandamus would ever have been available to compel the tribunal to determine an appeal after it had erroneously decided that it had no jurisdiction, subject to one qualification. If certiorari or relief in the nature of certiorari was also sought, it may be that the erroneous decision as to a lack of jurisdiction could be quashed, and mandamus or relief in the nature of mandamus then granted. In my view such a state of affairs would not involve too extreme a departure from common law principles for it to be inconsistent with the scheme of the legislation.

29 In my view the nature of the tribunal's work and the scheme of the relevant legislation compel a conclusion that the tribunal's only powers to change a decision disposing of an appeal - even one disposing of an appeal on the basis that it had no jurisdiction - are those conferred by s23(5) and (6). Those subsections should be regarded as covering the field in relation to the changing of any final decision disposing of an appeal or, to use the words of s23(6), a "decision on an appeal". Such an interpretation promotes the purposes and objects of the RMPAT Act, whereas a contrary interpretation would not: Acts Interpretation Act, s8A(1). It would be contrary to the scheme of the relevant legislation for the tribunal to have any other power to reconsider, vary or reverse such a decision. In this regard I see no reason to treat a decision that the tribunal lacks jurisdiction any differently from a decision under s23(2) affirming, varying or setting aside a decision that has been appealed against. It follows that the tribunal had no power to make its second decision, and that the learned primary judge was correct to take that view.

Management and Planning Appeal Tribunal Act 1993

Interpretation Act 1931

Interpretation Act 1901

Marine Resources Management Act 1995

Management and Pollution Control Act 1994

Government (Building and Miscellaneous Provisions) Act 1993

Supreme Court Rules 2000

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