Statutes - Acts of Parliament - Interpretation - Permissive, directory, mandatory provisions - General principles - Scope and object of enactment - Effect of treating provision as mandatory.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s16(1)(f).

Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355, applied.

Woods v Bate (1987) 7 NSWLR 560; Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444, followed.

Respondent Connector Park Pty Ltd: W M Griffiths

Respondent Connector Park Pty Ltd: Philip Gunton

Judgment ID Number: [2000] TASSC 101

THE QUEEN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL; ex parte GARY JAMES WILSON

1 On 29 December 1998, the respondent, Launceston City Council, issued a permit to the respondent, Connector Park Pty Ltd, for a subdivision subject to certain conditions.

2 On 11 January 1999, the prosecutor appealed against the decision to grant the permit to the respondent Resource Management and Planning Appeal Tribunal ("the Tribunal").

3 The prosecutor and Connector Park Pty Ltd entered into negotiations, attended a conference and finally reached an agreement which was reduced to writing and signed on 23 March 1999.

4 On 1 April 1999, the Tribunal determined the appeal by making an order in the terms of the written memorandum as it was empowered to do so by the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s17(2). It was a term of the memorandum, and a term of the order, that any application for costs must be made within 14 days of the date of the order and in default of any such application each party bear its own costs.

5 A period of 90 days from the filing of the notice of appeal expired on 11 April 1999.

6 On 12 and 13 April 1999 respectively, the respondent, Connector Park Pty Ltd, and the prosecutor made written applications to the Tribunal for costs.

7 On 28 May 1999 there was a hearing with respect to the issue of costs.

8 On 9 June 1999 the Tribunal made orders with respect to the payment of costs of the appeal.

9 The prosecutor seeks an order absolute for the issue of a writ of certiorari quashing those orders for costs upon the grounds that the Tribunal had no jurisdiction to make them. On behalf of the prosecutor, Mr McMillan relied upon the Act, s16, which relevantly provides:

"16 - (1) In an appeal before the Appeal Tribunal -

(f) the Appeal Tribunal must hear and determine the appeal within 90 days after it is instituted or within such further period as may be granted under subsection (6).

(6) The Minister may, by notice in writing given to the chairperson, extend the period of 90 days referred to in subsection (1) (f) where the Minister is of the opinion that the interests of justice so require."

10 Mr McMillan's submission, untrammelled by authority, was straight forward:

* the statutory period of 90 days within which s16(1)(f) required the Tribunal to "hear and determine the appeal" elapsed before the impugned orders with respect to costs were made;

* the Minister did not extend the time as he was empowered to do pursuant to the Act, s16(6);

* it follows that the Tribunal had no jurisdiction to make any orders after the expiration of the 90 day period.

11 The power of the Tribunal to award costs of an appeal is set out in the Act, s28. Argument was addressed upon the question of whether "the appeal" referred to in s16(1)(f) embraced the issue of costs, or whether costs were something separate from "the appeal". However, before considering that argument it is necessary to consider the more fundamental proposition involved in Mr McMillan's submission, viz, by the enactment of s16(1)(f) did Parliament intend to deprive the Tribunal of jurisdiction if for any reason, including inadvertence, it did not determine an appeal within the 90 day period and the Minister did not extend the time for such determination?

12 The starting point is the Land Use Planning and Approvals Act 1993, s61, which confers a right of appeal against a planning decision. The same Act, s53(3), provides that where there is an appeal against a planning authority's decision to grant a permit, that permit does not take effect until the determination or abandonment of the appeal. Thus, if Mr McMillan's submission is correct, the holder of a permit which is the subject of a notice of appeal will not only lose his or her right to have the appeal determined authoritatively, but will also lose the benefit of the permit if, by inadvertence, the Tribunal does not determine the appeal within 90 days and the Minister does not extend the time. A startling result one might think.

13 The issue is the intention of Parliament by the enactment of the Act, s16(1)(f). Resolution of the issue is to be found by examining the words of the section in the context of the legislation and by having a regard to the purpose of the section in the whole Act. In Hatton v Beaumont (1978) 20 ALR 314 Jacobs J said at 319:

"To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation ...".

14 In Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ addressed the problem of the validity of an act done in breach of a statutory provision when their Honours said at 390 - 391:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146 per Gummow J) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television Pty Ltd v Minister for Transport and Communication supra.) That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy (No 3) [1985] FCA 382; (1985) 8 FCR 93 at 102; [1985] FCA 382; 62 ALR 63 at 71; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corp v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454 at 457-60; [1989] HCA 15; 84 ALR 199; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-6; 98 ALR 68 at 90-2. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day [1997] NTSC 104; (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377). In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." (Tasker v Fullwod supra).

15 There is nothing new in the above statement of principle. In Montreal Street Railway Co v Normandin [1917] AC 170, the Privy Council said at 175:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only."

16 In Woods v Bate (1987) 7 NSWLR 560 McHugh JA (with whose reasons the President of the Court agreed) said at 566:

"A statute which requires an act to be done within a particular period does not necessarily invalidate the doing of that act outside the period. The purpose of the statutory requirement may be directory rather than mandatory. It depends on the terms of the enactment. If the purpose of the provision is to ensure that the act is done within the stipulated period, then the doing of the act outside that period is of no effect. If, however, the purpose of the provision is to state a direction but not an imperative requirement, then the doing of the act outside the period will not necessarily invalidate it. To determine what is the purpose of the provision, it is necessary to weigh the various consequences of a failure to comply with the statute: R v Ingall (1876) 2 QBD 199 at 208; Caldow v Pixell (1877) 2 CPD 562 at 566 and cf Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247."

See also R v Urbanowski [1976] 1 WLR 455.

17 Although all provisions have to be construed in the context of the statute in which they are enacted, and regard must be had to the purpose and object of each statute, the Full Court of Victoria decision in Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444 is particularly in point. In that case the Full Court was concerned with the meaning of the Accident Compensation Act 1985 (Vic), s117(5)(a), which provided:

"A Tribunal division shall commence to hear an application -

(a) within 60 days of an application under this Part for a determination by a Tribunal division being lodged with the Tribunal ..."

The court held that failure to comply with the section was an irregularity which did not affect the validity of what the Tribunal had done or might yet do upon the hearing of an application. The application of the following principle underpinned that result:

"The authorities make it plain that this question is answered by determining the whole scope and purpose of the enactment. A construction given one enactment is unlikely to be of assistance in the interpretation of another. It is 'the importance of the provision that has been disregarded, and the relation of that provision to the general object to be secured by the Act' that must be assessed: Howard v Bodington (1877) 2 PD 203, at p 211. It is also of assistance to ascertain whether failure to adhere strictly to the requirement has caused prejudice to those for whose benefit the requirement was introduced or whether the public interest would suffer a disservice if it were held to be mandatory."

18 See also Gahan v Frahm [1999] VSC 410, a case in which a single judge of the Victorian Supreme Court adopted the same canon of construction with respect to a similar provision in a statute.

19 It is inconceivable that by the enactment of the Act, s16(1)(f), the Parliament of Tasmania intended to deprive the Tribunal of jurisdiction if it did not determine an appeal within the prescribed 90 day period. Compliance with the 90 day period is something over which the parties have virtually no control. Such a construction would wreak great hardship on litigants before the Tribunal if, through an oversight, an appeal was not determined within the prescribed period. Such a construction could cause enormous delay and wastage of time and costs. All of this would be contrary to the objectives specified in the Act, Sch 1, the achievement of which the Tribunal is bound to attempt by virtue of the Act, s5(3).

20 The power conferred by s16(1)(6) may be exercised after the 90 day period has expired. See Re Coldham and Others; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation [1986] HCA 87; (1985) 159 CLR 522 at 529 - 530. Accordingly, subs6 mitigates against the construction of subs1_(f)_, contended for by Mr McMillan for it is unlikely that Parliament intended that the Tribunal might lose its jurisdiction and then regain it after a period of being without jurisdiction.

21 The whole purpose and tenor of the Act is to provide a Tribunal that will competently and efficiently determine appeals from planning decisions without being concerned with technicalities and legal forms. To reinforce this concept Parliament has directed the Tribunal to complete an appeal within 90 days of it being instituted, and to keep a watch on its work in this respect, Parliament has directed the Tribunal to, in effect, report to the Minister if in any case it is unable to do this. This direction does not mean that Parliament intended that in the event of a failure to complete an appeal within the period allowed by the statute, and in the event of a failure to obtain a Ministerial extension the Tribunal's jurisdiction to complete work that it is in the course of doing is lost, and its litigants rights are also lost with resultant waste of time money and resources. To so construe the statute would require clear, direct and unambiguous words to that effect, for such construction would be completely contrary to the purpose and policy of the whole Act.

22 It is unnecessary to consider whether or not the issue of costs forms part of "the appeal" within the meaning of s16(1)(f), for I am clearly of the view that whether it is or is not, the Tribunal had jurisdiction to make the orders in respect of which certiorari is sought, notwithstanding the expiration of the 90 day period. The order is discharged.