Administrative Law - Judicial review at common law - Procedural fairness - Right of party affected to be heard - Nature of hearing - Opportunity to present case - Duty to observe the rules of natural justice - No obligation upon the person conducting the hearing to determine ultimate issue - Requirement of natural justice may be satisfied by delivery of report on hearing to those exercising the determinative power - Whether natural justice has been satisfied will have to await production of the report after hearing.

Land Use Planning and Approvals Act 1993 (Tas), ss40(1)(2), 41 and 42.

Resource Planning and Development Commission Act 1997 (Tas), s8(1).

Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208, applied.

White v Ryde Municipal Council [1977] 2 NSWLR 909; Whim Creek Consolidated NL v Colgan & Anor [1991] FCA 467; (1991) 103 ALR 204, followed.

THE QUEEN v GEOFFREY DAVIS and JOHN VANDENBERG;

1 Should a writ of prohibition issue against the respondents prohibiting them from continuing to hear representations in respect of Draft Amendment 1/1998 to the City of Hobart Planning Scheme 1982?

The circumstances giving rise to these proceedings

2 Draft Amendment 1/1998 to the City of Hobart Planning Scheme 1982 concerns modifications to the Calvary Hospital master plan. The prosecutor wants to erect more buildings on its land and to enlarge its operations into the neighbouring residential area. According to an affidavit filed in support of the order nisi, the proposal is a substantial one involving capital works to the value of some $10m - $12m. It appears that the draft amendment is opposed by a number of nearby residents. This is not the first time that this Court has been called upon to consider whether a writ of prohibition should issue to stop the respondents from conducting a hearing with respect to representations concerning the proposed draft amendment. In R v Davis and Vandenberg; ex parte Curtis and Anor [1999] TASSC 22 the representors, or some of them, were the prosecutors. Those proceedings were initiated as a result of the respondents' decision, announced when the hearing began on 30 September 1998, not to allow cross-examination of witnesses at the hearing. Crawford J held that such a course would constitute a denial of procedural fairness and a failure to obey the rules of natural justice.

3 That decision was handed down on 8 March 1999 and the hearing was reconvened on 7 April 1999. That day the respondent, Mr Davis, announced that his function and that of his fellow delegate was confined to the conduct of a hearing in relation to the representations. Although it had been common practice for those holding the hearing to make the decision about the draft amendment, Mr Davis said that at the conclusion of the hearing he and Mr Vandenberg would make a report about the hearing to the Resource Planning and Development Commission and it would make the final decision about the draft amendment.

4 Counsel for the prosecutor at the hearing complained that this proposed course of action would also be a breach of the rules of natural justice and asked the respondents not to proceed with the hearing unless they were also going to exercise the power to determine the draft amendment. In short, it was contended that they who heard the representations concerning the draft amendment must also decide whether the draft amendment should be allowed, modified or rejected. After a brief adjournment to consider the matter, the respondents announced that they proposed to proceed in the manner announced and the hearing commenced. It did not get very far. Before lunch on the next day (8 April 1999), counsel for the prosecutor obtained an order nisi, calling upon the respondents to show cause why the further hearing should not be prohibited. Immediately upon being advised of the existence of the order nisi, the respondents, very properly, adjourned the further hearing until after the return of the order nisi. Thirteen days later the application was before this Court for determination.

The Resource Planning and Development Commission

5 The Resource Planning and Development Commission ("the Commission") is a statutory corporation created by the Resource Planning and Development Act 1997 ("the Commission Act"), s4. The Commission Act, s5, provides for the appointment to the Commission of six persons, each with different expertise. The powers and functions of the Commission are those imposed upon it by other Acts of Parliament.

6 The Commission Act, s8(1) confers on the Commission a power to "delegate any of its functions or powers other than this power of delegation". Section 9 empowers the Commission "by instrument in writing, [to] establish committees of such persons as the Commission considers appropriate for the purpose of assisting it in the performance of its functions and the exercise of its powers".

7 It seems, as appears later, that there was a "Standing Committee on Planning" but there was no evidence of any "instrument in writing establish[ing] such a committee." However, this is of little moment in the determination of the issue presently before the Court.

8 There was evidence that the Commission had exercised the power of delegation conferred by the Commission Act, s8(1). An "Instrument of Delegation" was tendered in evidence. This document was sealed by the Commission in accordance with the provisions of the Commission Act. It is dated 18 November 1998, nine days before the hearing of the first case before Crawford J. By par1, the instrument "revokes the delegation which it made to the members of the Standing Committee on Planning by Instrument dated 11 February 1998." Presumably, this delegation was the authority that the respondents relied upon to hold the hearing that came to a halt by reason of the order made by Crawford J in the first case.

9 The body of the Instrument of Delegation dated 18 November 1998 continued:

"Acting under s8 of the Resource Planning and Development Commission Act 1997, the Commission delegates to each of the members of the Standing Committee who are listed in the Schedule, severally -

1 all of its functions and powers under Part 3 of the Land Use Planning and Approvals Act 1993, other than its functions and powers under s29 of that Act; and,

2 in connection with the fulfilment of those functions and powers, its powers under Part 3 of the Resource Planning and Development Commission Act 1997.

This delegation is subject to the condition that no action or decision may be taken by a delegate under the delegation, other than the holding of a hearing and the taking of any action or decision required in connection with the holding of a hearing, unless that action or decision has the concurrence of 3 of the members of the Standing Committee.

10 It may be noted that the Land Use Planning and Approvals Act 1993, s29 ("the Land Use Act") empowers the Commission to give final approval to a planning scheme.

11 The Commission executed another Instrument of Delegation, also on 18 November 1998. By it, the Commissioner delegated to seven named persons, one of whom is the respondent, Mr Vandenberg:

"1 all of its functions and powers under ss27, 28, 28AA, 40, 41 and 41A of the Land Use Planning and Approvals Act 1993; and

2 in connection with the fulfilment of those functions and powers, its powers under Part 3 of the Resource Planning and Development Act 1997."

Thus, by the first Instrument of Delegation, the Commission delegated to the respondent, Mr Davis, all its powers and functions under the Resource Planning and Development Act 1997, Pt 3, other than the power under s29, and subject to the restriction expressed in the last paragraph, but by the second Instrument of Delegation, conferred on the respondent, Mr Vandenberg, only the powers contained in those named sections in the Land Use Act.

The Land Use Planning and Approvals Act 1993

12 The Land Use Act, Pt3, makes provision for planning schemes. There are two Divisions to Pt3. The first Division deals with the preparation of planning schemes and the second Division deals with the amendment of planning schemes. This litigation concerns only the provisions of Div2. In his reasons for judgment handed down on 8 March 1999, Crawford J set out in summary form the effect of the relevant provisions of the Land Use Act, Div3. What follows is extracted from his Honour's reasons for judgment:

"By virtue of the Land Use Planning and Approvals Act 1993, ss35 and 36(1), the Council caused a copy of its decision and of the draft amendments to be submitted to the Resource Planning and Development Commission. By s36(4), the Commission was obliged to examine the draft amendments and, if they were suitable for exhibition, certify them accordingly and direct that they be publicly exhibited. In determining whether the draft amendments were suitable for exhibition, the Commission was required to have particular regard to the objective to encourage public involvement in resource management and planning as set out in Sch1, Pt1, item 1(c), (s36(5B)).

When a draft amendment of a planning scheme is placed on public exhibition by a planning authority (in this case the Hobart City Council) in accordance with s38, representations in relation to that draft amendment may be submitted to the authority by any person (s39(1)). Following the expiration of a period of time, the planning authority must forward to the Commission a report comprising a copy of each representation received by the authority in relation to the draft amendment, a statement of its opinion as to the merit of each representation and its recommendations in relation to the draft amendment as the authority considers necessary (s39(2)). As soon as practicable after receipt by it of a report under s39(2), the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report (s40(1)). For the purpose of its consideration, the Commission must hold a hearing in relation to each representation contained in the report (s40(2)). Such a hearing is not required if the Commission is satisfied that all the representations are in support of the draft amendment or if persons who made representations do not wish to attend a hearing (s40(2A)). The Commission may consolidate any of the representations and hold a hearing in relation to the consolidated representations (s40(3)). Once the Commission has held all hearings and has completed its consideration under s40, it may require the planning authority to modify or alter the draft amendment or it may reject the draft amendment (s41). Alternatively, if the Commission is satisfied that the draft amendment is in order, it must give its approval to it (s42(1)) and the draft amendment subsequently comes into operation on a date specified by the Commission (s42(3))."

13 For the purposes of this case, it is necessary to look at little more closely at some of those provisions.

14 The Hobart City Council considered all the representations it received with respect to Draft Amendment 1/1998 and in accordance with the Land Use Act, s39(2), reported to the Commission with respect to those representations. Upon receipt of that report, the Commission was obliged to act in accordance with s40, which provides:

40 - (1) As soon as practicable after receipt by it of a report under section 39(2), the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report.

(2) For the purposes of its consideration under subsection (1), the Commission must hold a hearing in relation to each representation contained in the report.

(2A) Despite subsection (2), the Commission may dispense with the holding of a hearing in relation to a representation contained in the report if, after examining each representation -

(a) the Commission is satisfied that all the representations received by the planning authority are in support of the draft amendment; or

(b) the Commission has consulted with a person who made a representation and that person has advised the Commission in writing that he or she does not wish to attend a hearing.

(2B) The Commission must, within 14 days of making a decision to dispense with the holding of a hearing under subsection (2A), give notice in writing to each person who made a representation under section 39(1) of its decision to dispense with the holding of a hearing.

(2C) The Commission must hold a hearing in respect of a representation if a person who has been notified under subsection (2B) requests the Commission in writing, within 7 days after the date of that notice, that a hearing be held.

(3) The Commission may consolidate any of the representations and hold a hearing in relation to the consolidated representations."

15 After the Commission has acted in accordance with the provisions of s40, it may require the Council to modify, or to alter to a substantial degree, the draft amendment or, it may reject it. That is provided for by the Land Use Act, s41. If the Commission's requirement is an alteration "to a substantial degree", the process of public exhibition, receipt of representations, Council's report and Commission hearing, has to start all over again.

16 Finally, the Land Use Act, s42, directs the Commission, "after consideration by [it] under section 40", and any modifications, to approve the draft amendment if "satisfied that [it] is in order."

17 In his affidavit, the Executive Officer of the Commission, Mr Casey, pointed out that the Commission is obliged to take into account State policies, some of which he annexed to his affidavit. Mr Casey deposed that the Commission established a committee called the Standing Committee on Planning "to which it has delegated all its powers and functions under Part 3 of the Act except those under section 29 which, confers a power to finally approve a planning scheme." I pause to observe that it seems to me that there may be some doubt about the Commission being authorised to confer a power upon a committee. It appears to me that the provisions of the Commission Act, s8(1), only confer a power to delegate to persons. However, nothing turns on this as the instruments of delegation, to which I have referred, clearly delegate powers to each of the respondents by name.

18 Mr Casey also deposed that the Commission established a panel of seven delegates who are called upon to conduct hearings under the Act. As I have said, one of these delegates is the respondent, Mr Vandenberg. Mr Casey deposed that until November 1998, it was the practice of the Commission to ask the delegate(s) who held the hearing pursuant to the Land Use Act, s40, also to determine the issue, viz, reject the amendment or approve it or require it to be modified. Since November 1998, that practice has changed. The new practice appears from Mr Casey's affidavit, pars13 and 14:

"13 Whilst it was the practice of the Commission until about November 1998 to have those delegates who conducted hearings under s40 also make the determinations under s41 whether a planning authority should be directed to modify or alter to a substantial degree a draft amendment or whether to reject a draft amendment or whether to approve a draft amendment, it has been the Commission's practice since that time to require of its delegates who conduct a hearing under s40 to present a report to the Commission following the hearing. Such reports include a summary of the various positions of the representors, a summary of the position of the planning authority concerned with respect to the representations, a summary of the evidence heard and from whom and the merit and weight to be attached to the representations. Finally the delegates make recommendations in the report as to whether the draft amendment should be rejected or be made subject to modification or alteration to a substantial degree or whether it should be approved.

14 The change in practice referred to in the preceding paragraph was made following an internal review of the Commission's procedures and the Commission's view that determinations made under s41 and final approval, if any, under s42, should be made by a larger body than the one, two and sometimes three delegates who may conduct hearings thus drawing upon a wider range of experience and expertise."

19 The gravamen of the prosecutor's complaint lies in this new procedure, viz, the persons conducting the hearing do not determine the issue of whether the draft amendment should be rejected, modified or approved. With respect to par13 of Mr Casey's affidavit, it must be borne in mind that the structure and content of the respondent's report to the Commission in this case will remain unknown until it is written.

20 The prosecutor's complaint is reflected in the grounds of the order nisi, viz:

"a) The delegates have no jurisdiction to conduct a hearing under Section 40 of the Land Use Planning and Approvals Act 1993 without being possessed of the authority to determine those representations and/or to determine to modify, alter, reject or approve the draft amendment.

b) That to hear representations in an adversarial proceeding with emphasis on orality including cross-examination when the subject matter of the proceeding is to be determined by a decision maker other than the hearing body involves or is likely to cause procedural unfairness amounting to a denial of natural justice."

The arguments in support of the issue of a writ of prohibition

21 As I understand them, the prosecutor's arguments are:

(a) As a matter of statutory construction, the provisions of the Land Use Act, ss40 and 41 confer an indivisible power to consider, to hold a hearing and to determine whether the draft amendment should be modified, altered, rejected or approved.

(b) As a matter of construction, the Instruments of Delegation delegate to the respondents the powers of consideration, holding a hearing and ordering modification, alteration, or rejection of the draft amendment and the respondents are obliged to exercise all the powers conferred upon them. In the case of the respondent Mr Davis, the additional power of approval of an amendment was conferred conditional upon it being exercised in conjunction with "three of the members of the Standing Committee".

Alternatively, if the power to hold a hearing is capable of delegation, the exercise of that power, without the exercise of the decision-making power, will result in procedural unfairness and a breach of the rules of natural justice.

22 The Land Use Act, s40(1), requires the Commission "to consider":

23 Pursuant to the Commission Act, s8(1), the obligation "to consider" imposed by the Land Use Act, s40(1) can be delegated.

24 The Land Use Act, s40(2), requires the Commission "for the purposes" of its consideration under s40(1), to hold a hearing in relation to each representation in the report from the Council. For the prosecutor, Mr Estcourt QC, submitted that as the consideration required by s40(1) encompassed the four matters listed in the subsection, and as the hearing required to be held by s40(2) was "for the purposes" of that consideration, Parliament intended that the duty to consider s40(1) and the duty to conduct a hearing (s40(2)) must be performed by the same body or person(s).

25 I do not accept this submission as correct. The consideration required under subs(1) does indeed encompass the four specified matters, but the expression "for the purposes of its consideration" in subs(2) does not necessarily encompass all of those four nominated matters. Subsection (2) means that, for the purpose of considering one or more of the four related matters set out in subs(1), the Commission must hold a hearing in relation to each representation. There will be a hearing "for the purposes of its consideration under subsection (1)", means to enable or to achieve the consideration under subs(1), or to assist the consideration there will be a hearing. There is no warrant for construing subs(2) to mean that the hearing can only be conducted by the body or person(s) who discharges the obligation of consideration under subs(1) because the hearing is for all of the matters that have to be considered. That this is the correct approach is reinforced by the provisions of s40(2A) which enable the Commission to dispense with the holding of a hearing in the circumstances prescribed by the subsections. Although clearly closely related, the duties imposed by subs(1) and (2), do not have to be carried out by the same person, for there is no presumption in the rules of natural justice that the decision-maker will personally conduct a hearing. The power of delegation conferred by the Commission Act, s8(1), is expressed to be in the widest terms. See Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208. I would respectfully adopt the following passage from White v Ryde Municipal Council [1977] 2 NSWLR 909 at 923, which was relied upon by the Full Court of the Federal Court in Whim Creek Consolidated NL v Colgan & Anor [1991] FCA 467; (1991) 103 ALR 204 at 227:

"As a general proposition, it is plain enough that he who decides must hear. However, this must be understood in the sense that the decision maker has before him the evidence and submissions of those entitled to be heard. It is by no means a universal requirement that the decision making body must see and hear witnesses, much less actually hear submissions or representations. So much appears from the leading authorities on this subject: Local Government Board v Arlidge [1915] AC 120 and Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551."

26 Accordingly, I conclude that the Commission has power to delegate its obligation under the Land Use Act, s40(2) without being required to delegate to the same delegate the obligation imposed by s40(1).

27 As noted earlier, the powers delegated to each respondent are not completely co-extensive. Mr Estcourt submitted:

* that the instrument of delegation delegating the powers to Mr Davis is sufficiently wide to empower him to determine the ultimate issue or, at least, to determine it with the concurrence of two other members of the Commission as is provided for in his Instrument of Delegation;

* in the case of Mr Vandenberg, the Instrument of Delegation empowers him to determine the ultimate issue by way of rejection or alteration, or substantial modification; and

28 All of this seems to be correct. Mr Estcourt submitted that it followed from the foregoing that both delegates were obliged to exercise all the powers, including the determinative powers that were imposed upon them. This seems to me an argument about whether a writ of mandamus should issue compelling the respondents to do their duty and thus whether this argument arises under ground A of the order nisi is questionable. However, I need not trouble about this further as I have come to the conclusion that the submission should not be upheld. There is, of course, ample authority for the proposition that the Court will compel the exercise of a statutory power. See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, in which case the court said at 398:

"Apart, however, from this imperative requirement, what s 25 does is to create a jurisdiction in the court, and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter: R v The Tithe Commissioner for England and Wales (In the Matter of Great Hale Tithes) [1849] EngR 1214; (1849) 14 QB 459 (117 ER 179); Julius v The Right Rev The Lord Bishop of Oxford (1880) 5 App Cas 214."

29 The Court will move in an appropriate case to compel the exercise of a statutory power. In the present case, the relevant statutory powers are those contained in the Land Use Act, ss40(1), (2), 41 and 42. All of the material filed in support of the present application indicates that all those powers will be exercised as and when necessary. Although the evidence shows that Mr Davis does not propose to exercise any power under ss41 or 42 and Mr Vandenberg does not propose to exercise any power under s41, the evidence makes it quite clear that these powers will be exercised after the hearing by a person authorised to do so. Accordingly, as I have held that the separation of the power to conduct a hearing from the power to determine the ultimate fate of the draft amendment is lawful, the complaint that the respondents do not propose to exercise all the powers vested in them does not entitle the prosecutor to any curial relief.

30 In his very helpful written submissions, Mr Estcourt QC succinctly set out his argument in support of this ground, viz, that on the facts of this case, the separation of the hearing power from the determinative power will result in a breach of the procedural fairness rule. In support of the submission, Mr Estcourt's written submission refers to the legislative scheme, the fact that until recently both powers had been exercised by the same person(s) and that the hearings are, as was held by Crawford J in the first case, largely adversarial in nature, with emphasis on orality, including cross-examination. I should interpolate that I do not understand Crawford J's finding to be that a hearing under the Land Use Act, s40(2) will, of necessity, be adversarial with the emphasis on orality, including cross-examination. I understand his Honour's finding to be that in the circumstances of the case before him as disclosed by the evidentiary material relied upon, that was the nature of the hearing.

"(f) many amendments to planning schemes are general in nature however in the present hearing Calvary Hospital and its neighbours are in direct conflict with each other over their immediate interests and issues of credit are involved;

(g) the structure of s40, s41 and s41 of the Act is such that even if the hearing and decision making process in relation to both the representations and the draft amendments are divisible they should not be separated;

(h) the parties have a legitimate expectation in adversarial proceedings with emphasis on orality, including cross-examination and the making of opening and closing submissions, that their rights will be determined by the persons who hear their evidence and submissions;"

32 The representations are not before me. I do not know whether issues of credit will be involved or not. I do infer that the representors are opposed to the expansion of the prosecutor's hospital and to the draft plan, but whether they speak with one voice or differing voices, I do not know. I note from Crawford J's reasons for judgment that when the hearing first was called on, it was intended that more than five persons give expert opinion evidence. Whether this is still intended, I do not know. Whether the opinions are in conflict, I do not know. I suppose it is likely that there will be some conflict in the expert opinion evidence, but the extent of that conflict is unknown.

33 As Crawford J determined in the first case, there is an obligation to afford procedural fairness in the conduct of a hearing under s40(2), but for the reasons I have given, the exercise of that power may be divorced from the exercise of the power to make a final decision. Of course, this division of labour is fraught with risk when the time comes for the exercise of the ultimate powers conferred by the Land Use Act, ss41 and 42. By virtue of those sections, the body or person(s) who has considered, as required by s40(1), may:

(a) require the planning authority to modify or alter to a substantial degree the draft amendment;

34 In the exercise of those powers, natural justice must be afforded to those whose "rights, interests and legitimate expectations" are affected by the decision. See Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584. In a case where the exercise of the powers conferred by ss40(1) and (2), 41 and 42, are all exercised by the same body or person(s), the exercise of the hearing power in accordance with the rules of procedural fairness will satisfy the requirements of natural justice upon the exercise of the determinative power. However, whether the rules of natural justice are satisfied in a case where the exercise of those powers are split between one or more persons will depend upon what information about the hearing is conveyed to the decision-maker in each case. The nature and complexity of the hearing and the accuracy and completeness of the information contained in the report will no doubt be significant factors in ascertaining whether the decision-making powers have been exercised in accordance with the rules of natural justice. Whether the separation of the hearing power from the determinative power will result in procedural unfairness will depend upon the circumstances of each case. It is easy to envisage a hearing, even a contested hearing, where there is a single simple issue, the evidence with respect to which is quite clear. In such a case a comprehensive report to the Commission would no doubt satisfy the natural justice rule. On the other hand, in a case where there are many witnesses involving substantial issues of credit, cross-examination and the use of documents, it may be very difficult to comply with the procedural fairness rule by way of report from the person who exercised the power, pursuant to the Land Use Act, s40(2) to the person(s) exercising the power conferred by ss41 or 42. Mr Casey's affidavit, par13, which I have set out, refers in a general way, to the contents of past reports from the person(s) conducting the hearing to the decision maker, but whether the report of the respondents will satisfy the requirements of natural justice in this case cannot now be determined. It cannot be determined until after the hearing has been conducted and the report has been prepared and delivered.

35 At this stage of the proceedings, I am not persuaded that the separation of the determinative power from the hearing power will afford procedural unfairness and warrant the issue of a writ of prohibition.